SAdly, I haven't been reading Unfogged much lately, but I'm sure you did fantastic, heebie.
Is there such thing as a "Poster in Chief" position, defined ex-ante here at Unfogged? If so, was the decision made at an Unfogged summit that Heebie would succeed Ogged in that position, virtual torch-passing ceremony and all? Or is it just a title one earns based on sheer posting frequency?
In any case, as a long-time lurker, I can say your posts are by far the best (my indicator of post "goodness" being a composite index of cleverness, entertainment (or goof-off at work) value, and funniness; I think if I were judging on funniness alone, for instance, Stanley would be the better poster).
I've been trying to spend less time here, but failing. Maybe it is your fault.
I think if I were judging on funniness alone, for instance, Stanley would be the better poster).
I don't know about that, but apo definitely crushes everyone else in the "heroism" category.
You're the best Heebs!
Now that Un and Ogged and both gone, I vote this blog be renamed to Heebiebreathistan.
(No offence intended to other posters. I just zoomed down the home page tallying names.)
I'll notice! Whenever you go away things are a bit quiet on the blog.
However, I can't pick favorites among the posters. To quote Pauly, you're all the best! The absolute best!
Hooray! Here's an angle to keep this thread from being overly complimentary: what kind of posts would you like to see more of? (you don't need to be explicit about the posts you don't like because feelings ok thanks.)
I'd love to see more posts by that Ben fellow.
I actually like the parenting blogs. Hearing you all talk about your children is very sweet.
Let's see, what else? News of the weird posts are always fun. As are observational/comic pieces. And
i have more thoughts but my mom called so I'm stopping here....
I noticed, heebie. In fact, finally I could trust the blog again, until now I found out you've chosen to betray me.
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A question for the lawyers here: when is it reasonable (i.e., ethical) to sue for over a medical claim? And, when a lawsuit is reasonable, how does one go about finding a lawyer?
I took this, contracted Stevens-Johnson syndrome, was in the hospital for a few days, and almost died. Also, I've had a number of tendon injuries since then, and the drug is associated with tendon injuries
That sounds bad, but side effects are random, so some percentage of the population taking a drug that's mostly beneficial should be expected to suffer from negative side effects, even if the drug has net positive benefit. Given that, is it really reasonable to sue or get involved in a class action suit?
In my particular case, a doctor who I saw in the hospital remarked that there was no reason for me to be on any antibiotic in the first place, given my original symptoms, but that's an issue with a doctor and not a drug company. I could imagine being able to sleep at night after successfully suing a big pharma company, but it seems a bit unreasonable to sue a doctor out of existence for making a mistake; everyone makes mistakes.
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what kind of posts would you like to see more of?
Noticing that the pace of unfogged has slowed down over the last couple of years, and that there are more conversations that stretch over 2-4 days I'd like to see more links to good longer pieces. Obviously those are hard to find, and will never be more than occasional post topics but, for example, I've been meaning to send in this David Runciman article as a guest post for a while. It doesn't offer any notable conclusions, but it manages to combine several really interesting and thought-provoking questions in one piece.
..
Actually, I'll just go ahead and send you some excerpts as a guest post, but I would be be interested in seeing more (but still occasional) links to the sort of longer essay that takes a couple of days to work through.
12: sue the bastards if you stand a good chance of winning and you need the money.
but it seems a bit unreasonable to sue a doctor out of existence for making a mistake; everyone makes mistakes.
The doctor doesn't pay; his insurance will. The insurance is designed to compensate people (in part, because of course no one is actually "made whole") for the costs of his mistakes.
I can't advise on the specifics of your situation, and I don't know at all if you have a case; a lot depends on what was disclosed and how and other facts. Nor am I, thank god, a professional ethicist. But the bottom line is that people are making a lot of money off of something that causes serious costs, as happened in your case, and the people who make the money aren't bearing the costs. It seems terribly wrong to avoid at least talking to a lawyer out of some kind of ethical qualm.*
*I am tempted to say, not only wrong, but the result of brainwashing by decades of right wing anti-trial lawyer propaganda.**
**Yes, in a utopia, a lot of this could be done by social insurance; your entire cost of health care could be free, from start to finish, and there could be an insurance scheme to compensate you for the mistake. In the United States, you need a trial lawyer.
BTW, we had a nice Unfogged garden party last night. And Heebie is a great poster, though you all shine in equally beautiful but different ways in my eyes.
I would like to see more trolling of one's own blog, which is after all the skill that Ogged perfected to a T, and thus the signature style of this place.
13: You might try zunguzungu's Sunday link round up, along with two other sites devoted to the art of long articles: Longform and Longreads.
Thanks. I'll at least speak with a lawyer.
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14: I don't need the money. I had decent medical insurance at the time, and covering the rest of the monetary cost wasn't a problem. Not that I'd turn down free money, but I'm getting by ok.
15: How do I find a lawyer to talk to? If I google either the drug or the side effects, I find various websites, ranging from the incredibly sleazy to the somewhat sleazy, that tell me I can GET A FREE EVALUATION BY JUST FILLING OUT THIS FORM. For all I know, the lawyers behind those websites are ethical people and brilliant lawyers, but the sites themselves make them sound, to put it mildly, not so great.
The only lawyer I know is the guy we contract to prosecute patents for my company. The reason I'm asking about this now is because this happened nearly two year ago, and he mentioned that there's a two year statute of limitations on some of these things. I suppose I could ask him for a reference. Surely he must know at least one personal injury lawyer (is that even what I want? That's how clueless I am. I don't even know what sort of lawyer I should talk to. Similarly, I have no idea what you mean when you say "what was disclosed").
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13/17: aldaily.com used to be good for that sort of thing, too. I haven't followed it since Denis Dutton died, so I can't vouch for it now, though.
18: I knew I was forgetting one. I still stop in once a month and it doesn't seem much changed, but I am not close enough to the site to really know.
Also, all of that sounds pretty awful, ugh. Good luck.
How do I find a lawyer to talk to?
Try one of your local bar associations (state/county/city), they often operate a referral service.
The lawyer will help you sort out whether you should be suing the dr., the drug company, or the hospital, or all of them. The job of the courts will be to figure out who is legally on the hook, and ethically, you are allowed (in fact basically required) to use the courts to assert your rights.
To find a lawyer, I would use a consumer referral service, like Angie's List.
What state are you in? If you are able to give me some non-revealing internet address, I may be able to send you a reference or two. The best way to find a lawyer is to talk to another lawyer, even in a very different area, who you think to be competent (I'd be leery of both Angie's list and bar association referrals).
If you got a real disease as a side effect of a drug you were prescribed, no one would say you are filing a frivolous lawsuit.
It may turn out that you were properly warned of potential side effects, or that everyone made the best decisions they could with the information available, but you are not wasting the court's time when you ask them to check these things. You almost died, for Christ's sake. If it turns out no one else is legally at fault, you can say "I'm sorry I doubted you, I just wanted to be sure I got what I was entitled to, no more or less."
"internet address" s/b "email address" of course. And I know I'm stretching things with "lawyer you think to be competent" but I do know a lot of competent lawyers.
22: Thanks! I'm in Texas. Hmm. My name doesn't show up as a link on preview even if I put an address in. Does that mean it won't take?
My 2 cents is no it's not ethical. Unless there's some aspect of the story that you haven't shared, it seems to me that the doctor's behavior was within reason. (I mean, I think there need to be some laws against overprescription of antibiotics, but there aren't.) Drugs have side affects. Sure it sucks that things went horribly wrong for you, but it doesn't sound to me like anyone behaved wrongly here. Medical treatment is inherently risky.
The problem is that the definition of "negligence" is completely vague which means that no one can be sure whether they'll win or lose a court case. In my opinion, if someone does roughly the same thing a thousand times and only 1 of those times something horrible goes wrong then they weren't being negligent. But most people aren't comfortable with probabilistic reasoning, and so you can get a jury of people who think that people should be able to magically guess right all the time.
21
The lawyer will help you sort out whether you should be suing the dr., the drug company, or the hospital, or all of them. ...
My guess is the lawyer would want to sue everyone involved. And if you hire a lawyer on a contingency basis you probably won't have much say in how he pursues your claim. Also the plaintiff's bar doesn't care about ethics in any abstract sense they just care about how likely you are to recover money damages (and how much of course). So don't ask them for advice on ethics.
(Fwiw, surely they care about ethics in the "following the ethical rules of the profession" sense. The issue is just that "ethics" in the usual use of the word is not exactly the same thing as the technical meaning of professional ethics for a lawyer.)
26 is just ignorant, especially w/r/t how med mal claims work, but I don't really need the aggravation of arguing about legal basics on a nice Sunday.
26
... In my opinion, if someone does roughly the same thing a thousand times and only 1 of those times something horrible goes wrong then they weren't being negligent. ...
When it comes to things like plane crashes or anesthesiology deaths 1 in 1000 isn't nearly good enough.
I don't really need the aggravation of arguing about legal basics on a nice Sunday.
That's technically a violation of state law anyhow.
28
... The issue is just that "ethics" in the usual use of the word is not exactly the same thing as the technical meaning of professional ethics for a lawyer.
The difference is more than is implied by "not exactly the same thing". Completely unrelated is more like it.
Stevens-Johnson syndrome
Holy Christ. I would warn anyone else who might be squeamish not to Google that or look at the Wikipedia entry.
I'm glad you're okay, Pres. Taft! And after seeing the photos, I say sue whomever you can.
Well, the instructions we got as jurors about what negligence was were completely vague. But that wasn't for malpractice, so I was probably overgeneralizing.
33: Completely unrelated is a little strong. There are certainly things that are ethically required of lawyers that are ethically required in the colloquial sense. (Say, judges shouldn't be sleeping with the prosecutor.)
34.last is exactly why you shouldn't sue someone just because you might win. You might be winning because you managed to get enough jurors who see photos and figure you should get money no matter what.
The lawyer might want you to sue everyone, but she or he can also give you a sense of which parties you have a better case against. If he then says "you don't have a particularly good case against the doctor" and you don't personally hold the doctor responsible, you can then ask the lawyer not to sue the doctor. A good lawyer should be able to work with the clients priorities in this way.
if someone does roughly the same thing a thousand times and only 1 of those times something horrible goes wrong then they weren't being negligent.
I agree, and if that's what the doctor did, either the courts will either find him not liable, or the notion of legal liability is more fucked up than I thought.
I defer to actual lawyers like Halford on advice about finding lawyers.
Not completely unrelated, but pretty close to it. If you want a lawyer to tell you if something would would be the right thing to do, I agree that 'ethics' is the wrong word for it -- it triggers 'in technical compliance with the applicable ethics regulations' rather than 'right and wrong'.
The specialty you're looking for is a medical malpractice lawyer, not exactly personal injury (same guy might easily do both, but they're distinguishable specialties). And asking Joe Random, Esq., in the right geographical area, is a good way to find a reputable lawyer -- most of us are only one or two degrees of separation from someone in most specialties. However, on the facts as you've described them, it doesn't sound as if you think the doctor made an error at all, which means I think suing them would be a lousy thing to do -- getting sued is an awful experience even if your insurance covers it.
On the other hand, talking to a lawyer wouldn't hurt, so long as you understand that the lawyer may have a financial interest even in a case that's fundamentally bullshit, because it could be settled for nuisance value. If you think you can figure out if the lawyer thinks there's much likelihood that there was actual malpractice, and walk away from it if there wasn't, then it wouldn't be wrong, IMO, to look into it.
And this:
And if you hire a lawyer on a contingency basis you probably won't have much say in how he pursues your claim.
is straight up wrong. The client is the master of the case, whatever the fee arrangement is. The lawyer advises the client on what actions to take, but after giving that advice she does as she's told or she withdraws if she can't ethically follow the client's orders.
30: I took 1 in 1,000 to be just a random number. Obviously the real number would have to be determined by looking at the severity of the possible negative outcomes, the benefits of positive outcomes and all sorts of other stuff that lawyers and accountants get paid to work out the details of.
I don't necessarily think it's unethical to look into it. The problem is that once you invest a certain amount of time an energy and once someone else with a financial stake is involved it'll be harder to make a clear decision.
30: Sure. Exactly the situation is going to make a difference as to what the right "batting average" is. If people have a batting average that's an outlier for their profession then they should lose their license. But the legal system doesn't work on long-term probabilities. It works on specific cases.
38
I agree, and if that's what the doctor did, either the courts will either find him not liable, or the notion of legal liability is more fucked up than I thought.
I don't agree at all. If the doctor does something that is well known to incur a easily avoidable risk of death (or major injury) of 1 in 1000 then he was almost certainly negligent and should be liable.
On more thought, if you look into a claim then you might be able to find out whether this person is a bad doctor. (There's a lot of data that you can only get at through litigation.) If they're a bad doctor then you can go ahead with a free conscience.
39
However, on the facts as you've described them, it doesn't sound as if you think the doctor made an error at all, ...
If the doctor prescribed an antibody for no good reason that almost killed the patient that sounds like at least a possible error to me.
On the other hand, talking to a lawyer wouldn't hurt, so long as you understand that the lawyer may have a financial interest even in a case that's fundamentally bullshit, because it could be settled for nuisance value. If you think you can figure out if the lawyer thinks there's much likelihood that there was actual malpractice, and walk away from it if there wasn't, then it wouldn't be wrong, IMO, to look into it.
There are cases that are fundamentally nonsense that have far more than nuisance settlement value. And a malpractice lawyer doesn't care if there was actually malpractice, they only care if the legal system is likely to find there was malpractice.
Drugs have side affects. Sure it sucks that things went horribly wrong for you, but it doesn't sound to me like anyone behaved wrongly here. Medical treatment is inherently risky.
I think you're missing WHT's "there was no reason for me to be on any antibiotic in the first place." We tolerate drug side effects and medical complications because we assume the treatment is more likely to help overall. If the drug was wrongly prescribed, and there was no positive effect it could have had, the only outcome to be expected is (occasional) side effects, and that's exactly the sort of thing negligence should cover.
47: What we know is that *one other doctor* thought that there was no good reason for him to be on an antibiotic. Of course this probably means he has a case because they'll be able to hire an expert witness who agrees. But that doesn't mean that the other doctor was necessarily right! It's not obvious. Sometimes people die from not having antibiotics.
The adversarial expert witness system makes me angry.
Or maybe just jealous that they get paid a market wage and jurors don't.
40
is straight up wrong. The client is the master of the case, whatever the fee arrangement is. The lawyer advises the client on what actions to take, but after giving that advice she does as she's told or she withdraws if she can't ethically follow the client's orders.
So if I hire a law firm on a contingency basis and they spend hundreds of thousands of dollars preparing for trial and on the eve of trial they are offered a multi-million dollar settlement I can still change my mind and drop the case? I find this hard to believe.
Or do you mean I can drop the case as long as I am willing to pay the law firm at their regular hourly rates for the work they have already put in (or even worse the fee they would be entitled to if I accepted the settlement)? In which case it seems a little disingenuous to say the client is in control.
Sure, there's a question of fact. But whether side effects are acceptable in principle is moving the goalposts.
On the general topic of the fallibility of our court system for medical malpractice, various studies have found that doctors win malpractice cases much more frequently than defendants in other types of personal injury cases, and that using independent physician reviews of the underlying facts of 1452 cases, plaintiffs received awards where no error was found only 10% of the time, whereas they received no awards even though error was found 16% of the time. Could be better, but doesn't sound like systemic bias to me.
Also: the fruits of malpractice award caps (not that anyone here has argued for that (yet)).
The problem is that the important thing isn't errors, it's error *rate*. That there was an error is necessary for it to be ethical to sue them, but everyone makes some mistakes and looking at the number of cases with errors doesn't really tell you anything about the rate of errors. (And, as James has pointed out, the rate of error is likely to be very different for different kinds of decisions.)
13: You might try zunguzungu's Sunday link round up, along with two other sites devoted to the art of long articles: Longform and Longreads.
I think this reveals the problem with my suggest, and also makes me reflect on how much I appreciate the unfogged community.
I have some interest in finding good long-form pieces online (and the zunguzungu link round-up that Ben linked to was fantastic), but I don't think I would look at any of those regularly because it would just feel like an obligation.
The potential advantage of unfogged is that once a couple of people have read an entire piece it makes it much more tempting to go ahead and read it, because this is an interesting crowd to discuss things with, but if nobody gets interested in the link then the thread does tend to die quickly.
Mostly, I say listen to Halford with the added listen to LB. I would just add that, I don't know about Texas, but the added obstacles for a med mal suit around here are enough that barring a shot at astronomical damages, lawyers aren't generally inclined to take them. (Need a doc/appropriate professional to certify that there's merit to the claim, need to pay a retained expert in most cases to be able to go forward, etc.) Slip and falls can be a different story.
So if I hire a law firm on a contingency basis and they spend hundreds of thousands of dollars preparing for trial and on the eve of trial they are offered a multi-million dollar settlement I can still change my mind and drop the case? I find this hard to believe.
Yes, typical contingency fee contract, you can drop the case on the eve of trial and they have to abide by your wishes. You can't take the settlement and then stiff them on their fee, but you can say, "you know what, I forgive Dr. Joe. Never mind." I can't say I have ever seen a client drop a case after being offered a multimillion dollar settlement, but assuming that happens, well that's the trade-off for expecting a client to give you a third (or more) of any award if you do win.
The problem is that the important thing isn't errors, it's error *rate*.
Do I read you right in taking this to mean we need to look at the error rate to determine whether malpractice law is socially useful? If so, sure: very few people who experience harmful errors actually sue, so we definitely need more systemic remedies. I'm arguing, though, that regardless of their collective utility, and aside from the resource-based barriers to entry, malpractice cases are typically a just and legitimate method of redress when used individually.
55: I should say, regardless of the contract, client can drop the case whenever he wants. You can't have a lawsuit without a plaintiff. And a contract that effectively imposed a penalty on the plaintiff for dropping a case would, I have to think, be unethical because it creates a conflict of interest between the lawyer and the client.
And a contract that effectively imposed a penalty on the plaintiff for dropping a case would, I have to think, be unethical because it creates a conflict of interest between the lawyer and the client.
I'm guessing that somebody somewhere has sued their lawyer over something similar to that.
You can't have a lawsuit without a plaintiff.
She said, racking a shell into the shotgun's chamber like Linda Hamilton in Terminator 2.
53: This seems to be a quite abstract and mechanistic concept of error. If 1 out of every 1000 doctor/patient visits results in a doctor failing to do something correctly, resulting in serious illness or injury to the patient, it's no excuse to say, well that was the 1 in 1000. The cause matters. But I doubt this is what you're actually saying.
I suspect that if you could just write off mistakes as part of the error rate, the rate would grow. In fact, a higher rate would protect more mistakes. But I'm not so cynical to think that the rate would grow that much; one of the good things about the professional ethic is that people are supposed to internalize doing the right thing absent visible coercion, and the incentives even without malpractice suits are for patients to get better and doctors to help them.
If 1 out of every 1000 doctor/patient visits results in a doctor failing to do something correctly, resulting in serious illness or injury to the patient, it's no excuse to say, well that was the 1 in 1000. The cause matters.
This is complicated. If even a normally competent, or an exceptionally competent, doctor makes a real mistake that could hurt people every so often (and most of us in most professions do make errors in the course of our professional lives) there's something counterproductive about a system that treats each such error as something for which the doctor should be (in effect) punished. The patient should recover, but there should be some mechanism for recognizing that doctors can't be expected to be error free.
I really appreciate your posts, Heebie. Hope you can find time for more even with your workshops starting up. In general the blog has had a good summer....
The patient should recover, but there should be some mechanism for recognizing that doctors can't be expected to be error free.
Isn't it called malpractice insurance?
Not to say that a no-fault system with independent inquiries and statutory compensation wouldn't be more equitable and efficient.
61: Right, that's all I meant by the cause mattering. I'm just arguing that the analysis can't be reduced just to error rates.* This is probably a stating-the-obvious-argument like the whole correlation/causation thing.
*Well, I suppose you can set up a system like that. But I don't think that's the system we have.
I thought you had to prove negligence and that was a higher bar than "error" anyway.
Protip: Leaving a watch inside somebody is always negligent.
But surgeons have to pay more for that mistake than dentist and proctologists.
Negligence, like many legal doctrines, has a qualitative and not a quantitative definition. "Not doing what a reasonable person would have done" doesn't say whether you failed to do something that a reasonable person would fail to do 10% or 1%.
All legal concepts are stupid like that. Reasonable doubt? Preponderance of the evidence?
63: Insurance helps, but it doesn't distinguish between an incompetent doctor, and a competent doctor who made a mistake because everyone does occasionally but most of us aren't in a position to hurt people with our screwups. I don't have a coherent proposal for how to deal with it, but malpractice suits are awfully hard on competent but not necessarily perfect doctors.
51: I find this hard to believe.
Didjya do any research before forming your belief? Now? Ever?
Sorry for derailing the thread, but thanks (again) for the advice. Frankly, I hope Di's 55 is true in Texas, and it will turn out no one will want to take the case. That way, if I have huge medical expenses in the future as a result of this, I won't feel terrible for not having done what I could.
71: I don't have a coherent proposal for how to deal with it
How about a functional social safety net, such that losing an income due to someone else's mistake is not a guarantee of future poverty and despair? That would solve a big chunk of cases right there. Add to that a much more active and transparent regulatory regime, such that people could trust, to a high degree of certainty, that the professionals they dealt with met a standard of performance that did not allow repeated egregious errors and negligence, and you're getting close to no need for the ridiculous excesses of medical malpractice insurance and claims.
72: I find it hard to believe that great pressure and vast threats wouldn't come down on a plaintiff who refused a to take the money. If I had a nickle for every time I've had a lawyer threaten to take me to court for something that I knew was perfectly legal, I'd have like fifteen or twenty cents.
Christ, it got really hot, really fast here. Might be the soup and wine, but I blame carbon dioxide.
73: If there's a decent chance of bankrupting medical results then you should look into it, ethics be damned. If the system only gives you one way to deal with huge bills then you have to take the only option.
With a $250,000 cap on damages from all parties, it'll probably be much harder to find a lawyer in Texas than wherever Di is.
78: I'm not a lawyer, but I'm fairly certain no state's cap includes costs of medical care. Are the caps for pain and suffering as well as punitive damages.
75: Is it easier to believe if you remember that a plaintiff who goes as far as hiring an attorney and getting to the point of a substantial settlement, who then walks away, is a fairly unlikely animal? I'm sure a contingency-fee lawyer would try to persuade such a plaintiff to take the money, but it's not going to be a common enough occurrence that med mal lawyers are going to feel the need to systematically guard against it.
74: All true. I should have said I didn't have a tightly malpractice-litigation focused solution.
80: I'm not saying that it is a common occurrence or that there is any systematic policy on this. But, you have a very large asymmetry of knowledge (depending on the client) and the risk/reward ratio for the lawyer would strongly encourage them to use whatever argument they could. And they're probably right to press in nearly every case, since it is almost certainly in the client's interest to take the money.
It would be hugely hugely unethical for a lawyer to act contrary to instructions, as in fundamentally misunderstands the concept of being a lawyer unethical. Now, of course, that tells you nothing about actual lawyering, but at least they would know they are being unethical when they were heavily pressuring you to sue. It would be the great area of should I should I not where there'd be dangers, I think, not the clean cut 'I don't want to do this'.
Interestingly, I think* in some jurisdictions you can sell your right to sue, and then you probably can find yourself in that situation.
Apparently contingency fees used to be thought to offend against the prohibitions against champerty and maintainance, which probably brings up some of the same issues.
* where by think I mean somewhere a Law Lord mentions it in that lovingly condescending manner they have of discussing anywhere else.
Ps no-fault accident compensation ftw, at least as a stepping stone to universal free at point of need healthcare.
Sure, but asymmetry of information and an incentive to persuade is different from vast threats. A plaintiff who firmly wanted to drop a case, their lawyer wouldn't have any way to stop them (and I'm pretty sure Di's right, that a contract that financially penalized a plaintiff for dropping a case would be per se unethical.)
Interestingly, I think* in some jurisdictions you can sell your right to sue
I thought the Righthaven thing showed that you can't in the U.S.
A patent is nothing but a right to sue, and you can sell those.
84: I agree that there's probably nothing the lawyer can do.
I am unsure whether these jurisdictions actually exist; the context was a discussion of retrospective law changes, and whether certain rights were substantive or procedural. I suspect the lords would not be above using questionably founded examples in discussing hypothetical cases...
I should probably stop less-than-sober-non-lawyer-legal-advice about now, but I do remember reading that Righthaven lost not on commonsense grounds of being huge assholes, but because they didn't actually own the copyrights they were suing over. I'm going to find a newspaper article about it and paste the whole text into a comment here.
83: I mean somewhere a Law Time Lord mentions it in that lovingly condescending manner they have of discussing anywhere else planets other than Gallifrey.
Hahaha they actually used champerty and maintenance ! That is totes awesome.
72
Didjya do any research before forming your belief? ...
Of course not. I do have a general opinion that the legal system is first of all arranged up for the benefit of lawyers.
84
... (and I'm pretty sure Di's right, that a contract that financially penalized a plaintiff for dropping a case would be per se unethical.)
I found a contingency agreement on the web which contains this clause:
5. Abandonment of Claim. If the Client elects at any time to abandon this claim or discharge Counsel, then in either such event, the Client agrees to pay to Counsel at that time a reasonable fee for the services performed by the attorneys prior to the date of such discharge or abandonment.
Now this Harish Bharti guy seems a bit flamboyant . Still if this clause were clearly unethical I wouldn't expect him to be putting it on the web for everyone to see.
To be fair I also found a model contract in which it appears clear the client can drop the case without owing anything.
95: Now that you say the word, I think it was mentioned here.
That's a nice summary. IIRC, Righthaven originally claimed to own the copyright, then it was revealed that nope, they were just farmed out suing suits. And then it got down to whether you could buy just the right to sue. I don't quite get why the newspaper didn't just sue in its own name.
61
This is complicated. If even a normally competent, or an exceptionally competent, doctor makes a real mistake that could hurt people every so often (and most of us in most professions do make errors in the course of our professional lives) there's something counterproductive about a system that treats each such error as something for which the doctor should be (in effect) punished. The patient should recover, but there should be some mechanism for recognizing that doctors can't be expected to be error free.
You (in theory at least) are not punishing every such error just the ones with serious consequences. This is no different than the situation with respect to auto accidents. Like most people I think I am an above average driver but I still have made numerous mistakes (fortunately without serious consequences). However the legal system expects me to provide financial compensation if I do make an error with serious consequences. Which is why I buy liability insurance. The system recognizes errors are inevitable by only attaching civil (as opposed to criminal) liability for inadvertent mistakes. The theory behind this is the person best able to prevent bad results should bear the costs. You can question how well this works in practice but I don't see any reason for some special exemption for doctors.
97 -- I doubt that contract clause could be enforced against any client. (IANAWL.) I certainly would draw any inference at all from the fact that he's posted it on the internet.
Oh, yes, 250,000 is for non-economic damages. Still makes it pretty unlikely unless resulting medical bills or lost income are pretty enormous.
102 -- Or you can aggregate the claims of other people who suffered side effects from the same product.
On assignability of claims, I'd say that statutory creatures like copyright aren't where you'd start looking when thinking about what the usual rule is.
And even when there's a clear answer, sometimes there are workarounds. There's a stature that prevents you from assigning claims against the US government, which means that you cannot convey legal title to your tax refund before the check has been cashed. You can, however assign equitable title. This means that the assignee can't collect from the US government, but that can get a court to order you to turn over the funds once you get the check.
At common law, there's a distinction, depending on where you are, between assignments of tort and contract claims, and among torts between personal and property injuries. Here's a spiffy little footnote from a 5th Circuit case (Texas is in the 5th) from 2009 on tort claims: Although at least one common law jurisdiction bars assignment of all tort claims, regardless of nature, Bolz v. State Farm Mut. Auto. Ins. Co., 274 Kan. 420, 52 P.3d 898, 901 (2002) ("It has long been recognized in Kansas that all choses in action, except torts, are assignable."), and at least one jurisdiction has conflicting authority, In re Buildnet, Inc., 2004 WL 1534296, *10 (Bankr.M.D.N.C.2004) (discussing uncertain North Carolina precedent), most states permit the assignment of property damage tort claims. See, e.g., In re Redditt, 2006 WL 3103013, *1 (Bankr. E.D.Mo.2006) (citing State ex. rel. Parker Nat'l Bank v. Globe Indemn. Co., 332 Mo. 1089, 61 S.W.2d 733, 735-36 (1933)) ("The assignment of an unliquidated claim for property damage, however, is valid under Missouri law."); Midtown Chiropractic v. Illinois Farmers Ins. Co., 847 N.E.2d 942, 944-45 (Ind.2006) ("However, the assignment of such interests has gained gradual acceptance over time, beginning with those interests based in contract, and later for torts against personal property."); TMJ Hawaii, Inc. v. Nippon Trust Bank, 113 Hawaii 373, 384, 153 P.3d 444 (2007) (permitting, under Hawaii law, the assignment of the "non-personal" tort claims of professional malpractice, breach of fiduciary duty, and fraud); Larabee v. Potvin Lumber Co., Inc., 390 Mass. 636, 459 N.E.2d 93, 96 (1983) ("Claims for injury to property interests are clearly assignable."); Canal Indem. Co. v. Greene, 265 Ga.App. 67, 593 S.E.2d 41, 46 (2003); Ford v. Summertree Lane Ltd. Liability Co., 56 P.3d 1206, 1209 (Colo.App.2002) ("[C]hoses in action in tort for damage to property, such as the fraudulent transfer of land, are transferable and may be assigned."); Dubina v. Mesirow Realty Development, Inc., 308 Ill.App.3d 348, 241 Ill.Dec. 681, 719 N.E.2d 1084, 1088 (1999) ("[C]auses of action for damage to property are generally assignable in Illinois."); National Union Fire Ins. Co. of Pittsburgh, Pa. v. KPMG Peat Marwick, 742 So.2d 328, 330 (Fla.App.1999) ("A cause of action, which is not based on a personal tort such as malpractice, may be assigned.").
I realize the thread has moved on, but thanks for giving it your all, Heebie. And I'm sorry that I'm not much of a commenter anymore. Sometimes it seems as though I've been utterly charmless since my pseud change.
101
I doubt that contract clause could be enforced against any client. (IANAWL.) I certainly would draw any inference at all from the fact that he's posted it on the internet.
Here is a decision of the Washington Supreme Court which states (609):
[3] The settled law in this state is expressed in Ramey v. Graves, 112 Wash. 88, 91, 191 P. 801 (1920):
The rule is that, where the compensation of an attorney 609*609 is to be paid to him contingently on the successful prosecution of a suit and he is discharged or prevented from performing the service, the measure of damages is not the contingent fee agreed upon, but reasonable compensation for the services actually rendered.
which seems consistent with enforcing the contract provision I cited.
There's an awful lot of stupid in this thread, but Shearer is dead right in 100. That "good doctors make mistakes" doesn't mean that they (or, more precisely, their insurance companies) shouldn't have to pay for their mistakes. Why should the patient, as opposed to a doctor's malpractice insurance company, bear the full cost of medical error? That's the whole point of the malpractice system.
Note also that the standard of care is that of the reasonable doctor, not the reasonable person -- acts that are medically ordinary but risky are noncompensable. If a standard procedure is perfectly executed in accordance with ordinary procedures, and the risks are disclosed, but has a 1/1000 risk of injury and you happen to strike on the 1, you don't have a med mal claim. And this isn't just some legal theory that doesn't apply in the actual litigation system; juries are not particularly pro-plaintiff in med mal cases, so the people who do these cases will tell you that you need to show egregious error.
Indeed, the reality in practice is that med mal cases are so incredibly hard and expensive to bring, and the doctor's lobby is so powerful, and so many people have unfounded intuitions like Unfoggetarian's, that it's almost impossible to get meaningful compensation for actual medical mistakes in many jurisdictions, including particularly Texas.
[To put it more starkly. I have no idea what happened exactly to President Taft, and neither do the rest of you. But a highly plausible reading of Mr. Taft's situation is that he suffered an actual error from a doctor and/or pharmaceutical company that he is suffering horrific consequences from without possibility of redress. At least he appears to have bought into right-wing brainwashing on much of this, as have (apparently) many of you, so at least he can be comforted in his purportedly ethical behavior while the doctors and pharma companies take in profits without ever having to pay for the consequences of their errors. Awesome. What you're talking about is the systematic stripping of one of the few forms of social insurance (because we don't have much else by way of decent social insurance) available to ordinary Americans. But, at least we can go to sleep at night comforted that we haven't done something mean like sue a poor hardworking doctor and make him call his insurance company.]
On the other hand, Shearer's stuff about contingency fee lawyers pressuring one into continuing a case is rank bullshit at so many levels. As a sometimes-contingency fee lawyer, let me tell you that once you take a contingency fee case, you're stuck with a client's direction; the idea that contingency fee lawyers are pressuring people into contiuning with litigation they don't want to pursue is just totally disconnected from reality. The real problem, by the way, is not a client who wants to settle a case on the cheap (you just write that client off and go on to the next one), it is an insane client who rejects what looks like an excellent settlement and forces an expensive trial, because the client is insane. And, guess what, there is absolutely nothing the lawyer can do in that situation. Believe me.
108 -- the rule is that if you (the lawyer) take a case on a contingency, and you put some work in, and the client dumps you without any reason (which is the client's right) and gets another lawyer and recovers a lot of money in settlement, you can contract to recover from the settlement some compensation for the work that you put into the case. That compensation is usually based on some kind of hourly rate scaled to the value of the contribution to the eventual settlement.
That doesn't mean you can force anyone to accept or reject a settlement, nor does it provide any incentive for the client to do so. If he gets a settlement in the other litigation, he may have to pay the former lawyer something, but it will be based on some measure of the contribution of the former lawyer to obtaining a settlement. In practice this is not a big deal at all.
110
And here is a Washington state case in which it was ruled that:
John Taylor discharged his attorney, Fred Zeder, in a personal injury action nine days before trial and after Zeder had negotiated a settlement offer of $225,000. Taylor claims the trial court erred in concluding that Zeder substantially performed the contingency fee contract entitling him to a one-third share of the settlement offer. We hold that Zeder is entitled to the contingency fee because he substantially performed the contract.
111 was intended to be a further response to 101 not 110.
110
108 -- the rule is that if you (the lawyer) take a case on a contingency, and you put some work in, and the client dumps you without any reason (which is the client's right) and gets another lawyer and recovers a lot of money in settlement, you can contract to recover from the settlement some compensation for the work that you put into the case. That compensation is usually based on some kind of hourly rate scaled to the value of the contribution to the eventual settlement.
Suppose the client dumps you and drops the case. Can he be required to compensate you for work performed?
113 -- generally, no.*
*One could theoretically draft a fee agreement that says, if you win, I (your lawyer) get 1/3 of the recovery, and if you don't win, you pay me for my time. In practice, of course, that's a horrible deal for the client so you don't see that fee agreement much, but I don't think it's obviously unethical.
What isn't possible is signing up a client on a pure contingency fee basis, having the client dump you and then dropping the case, and then pursuing the client for payment on some extracontractual theory.
111 -- The client didn't drop the case. He took a settlement made possible by the work of the lawyer. Of course the lawyer is going to get his fee.
114 -- Well, I guess we just disagree about whether such a clause would be enforced.
Most likely, a fee arrangement that said, if you win, I get a third, and if you lose, you pay me for 100% of my time wouldn't be enforced, at least against an unsophisticated client. (And, of course, that fee agreement makes no sense in the real world). But there are plenty of hybrid arrangements that aren't dissimilar -- something like, "you pay me 1/2 of my hourly rate on an ongoing basis, and I also get a 25% contingency" is not uncommon.
Of course, all that is totally unrelated to whatever point Shearer is trying to make.
The successful lawyer in 111 has what looks like CLE materials on the internet, and seems quite certain that absent specific performance, no fee is due in a contingent fee case, even if the contract provides for one. This makes the clause in 97 unenforceable without substantial performance. He doesn't address JBS' hypothetical -- what happens if the lawyer substantially performs, and there is no recovery solely because the client has decided he doesn't want the money.
Should be 'substantial' performance in the first line of 118, and I should go back to bed.
The patient should recover, but there should be some
mechanism for recognizing that doctors can't be expected to be error free.
I'd say the answer here is that doctors get paid a premium, which more than compensates for any "unfairness" in expecting them to be error free. (As do lawyers, who also get sued for making them.) Part of the job you are getting paid to do is to know what mistakes might lead to serious consequences and be extra-careful not to make them.
Yeah, I may simply be being sentimental about the poor doctors. In the system we've got, injured patients have to be able to recover economically for errors -- the non-economic costs of being a defendant in any serious litigation, particularly one where your personal wrongdoing is an issue, just seem great enough that it's a shame they get imposed on doctors whose error rate isn't abnormal.
Natilio's socialist utopia would be easier on everyone.
In fact the premium serves chiefly to enable them to meet their insurance costs, n'est-ce-pas?
I'm not really clear here what President Taft would be suing for? Loss of earnings while in hospital? Distress? As far as I can see, in spite of this doctor's best efforts, the good president is as fit as a flea now, so I can't see how he's collect a very large payday even if he were successful. Quite aside from the ethical issues, the question arises, is it worth the time and trouble?
122: Sounds like there were increased medical costs from the nearly dying part, nearly dying presumably entails some compensable physical and mental suffering, and Taft mentioned future care which may now be necessary as a result of the (possible) error.
123. Yeah but no but. Presumably Taft's first doctor thought there were good reasons to prescribe as they did. We are confronted with two opinions and absolutely no information as to which one was right. If the case went to court, the court would decide (which I'm not sure is an excellent way of validating medical decisions, but that's another story), but at this point we have no certainty that the court would favour the opinion of the second doctor.
Assuming the first doctor informed Taft of the possibility of serious side effects, I don't see how he would have a case because he experienced them. Nearly dying is not much fun, but Taft was told the odds and unfortunately drew a bad hand. When I was advised to have an angiogram, I was told there was about a 1 in 200 chance it would go wrong enough to kill me, assuming it was done right. If that had happened and my heirs and assigns had tried to sue the doctor on the basis that my number had come up, they'd have rightly been laughed out of court.
I don't know whether the possibility of future care needs was covered by the advice Taft was given before he accepted the treatment, but if it was, then the same applies.
So at the moment we have a position where we're being asked to advise Taft whether to sue on the basis of two (so far) conflicting medical opinions. Even odds. If a court were to find that the first doctor had not acted unreasonably in prescribing and had given appropriate advice as to the effects of the drug, then I don't see how Taft would be due a red cent. I think he needs to talk to some more doctors before he troubles a lawyer.
123 responded to your question about what Taft's damages are. Your concerns in 124 about whether the doctor is really responsible are a totally separate issue. You presume the doctor was probably acting reasonably. But Taft has received information that suggests the doctor was not acting reasonably in prescribing the drug. What he was or wasn't informed prior to getting the drug is a question only Taft can answer for us, but is irrelevant if the drug should never have been given. No one here is advising him to sue -- that would be irresponsible in the absence of a full consultation and attorney-client relationship. But consulting a lawyer is a reasonable call, especially since there are time limits to bringing a suit if one proves to be appropriate.
I haven't read the thread closely but: Cipro is a really common antibiotic. It's standard for UTIs and anthrax, off the top of my head.
(My dad sent us Cipro to keep in the fridge when those packets of weaponized smallpox were being thrown around in the mail, ten years ago. I eventually repurposed it for a UTI.)
At any rate, this makes me sympathetic for the doctor. He was in no way violating any community standard if he's prescribing Cipro.
Not entirely a separate issue, as if the prescription is defensible, then Taft doesn't have the damages you identify. As you say, nobody's advising him to sue at this point, nobody can. But since the whole dispute currently seems to rest on the (strongly!) divergent opinions of two professionals, whose judgement Taft doesn't claim to be able to evaluate, wouldn't it make more sense for him to consult another doctor before he consults a lawyer, as I'd think the first thing a lawyer would do would be to get further medical advice anyway?
114
What isn't possible is signing up a client on a pure contingency fee basis, having the client dump you and then dropping the case, and then pursuing the client for payment on some extracontractual theory.
Suppose the contract provides (as the example I linked in 97 from an actual lawyer does) that if the client abandons the case the lawyer is entitled to a fee for their work to date.
HG -- IANAD, but I was under the impression that Cipro is not generally a first line antibiotic but something reserved for more serious infections (eg., anthrax). But neither of us is qualified to opine on what the community standards are, and even if it is ordinarily perfectly safe drug, if there was no sound medical reason to prescribe it, that would violate community standards.
Chris -- he'd still have those damages, they just wouldn't be the doctor's responsibility. Consulting a lawyer without first polling a bunch of other doctors is a good idea because a lawyer can advise Taft on procedural issues like how long he has to figure out whether or not to sue the doctor, what it would cost to do so (contingency fees do not mean the lawyer is going to eat expert witness fees, etc.), and so on. Just consulting a lawyer isn't going to hurt the doctor, so I'm failing to see why you are so concerned about Taft doing so.
128: As previously said, such a clause would almost certainly be void as against public policy and would seem to create an improper conflict of interest between the lawyer and the client.
117
Of course, all that is totally unrelated to whatever point Shearer is trying to make.
The point I am trying to make is that you should think carefully before unleashing the hounds of hell because you may have trouble controlling them.
130
As previously said, such a clause would almost certainly be void as against public policy and would seem to create an improper conflict of interest between the lawyer and the client.
The Washington Supreme Court in the decision I linked in 108 seems to feel otherwise.
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Another legal bleg. I'm trying to figure out how the ADA applies to law students. Can anyone recommend a good one? Lawyers practicing or admitted to the bar in Massachusetts or California would probably be best.
I'm in MA, but the relevant school is in CA. Please send names to the BG account above.
If nobody has any names, please provide suggestions for how to find one on my own either by e-mail or here. I'd be really grateful.
BG
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132: Actually, Halford already explained in 110 why your reading of the case linked in 108 is wrong. The client in that case did not elect to drop the case; he elected to drop the lawyer. The doctrine of quantum meruit provides that when the client then obtained an award -- facilitated, as it was, by the attorney's work, the attorney is entitled to be compensated. Hiring a new lawyer and abandoning a case are, in fact, two completely different things.
Re: The client decides to drop the contingent fee case after the lwayer has put a few months or years of work into it. This is a painful memory. The lawyer gets nothing. In my case, we alleged fraud agaisnt our client's former investment partner. It wasn't on the eve o ftrial, but after we had invested seeral hundred thousand dollars into the case, and it looked like we could prove fraud. The client decided to drop the case because he wanted to make peace with his former buddy adn co-investor. We suspected that our client had worked out a settlement with his buddy and was receiving something to drop the case, possibly a good deal on a future co-investment, in which case we could rasonably collect our percentage fo whatever he received, but he denied it and there was nothing we could do.
Another permutation: the client died shortly before a mediation that would have led to a very substantial recovery, and the heirs, who received very substantial and unexpected inheritances, decided not to bother continuing the case. Lawyer is again screwed, although it's more understandable.
134
Actually, Halford already explained in 110 why your reading of the case linked in 108 is wrong. The client in that case did not elect to drop the case; he elected to drop the lawyer. ...
The case linked in 111 and the case linked in 108 are different. The 108 case is a complicated mess in which the Washington Supreme Court stated the law as follows:
[3] The settled law in this state is expressed in Ramey v. Graves, 112 Wash. 88, 91, 191 P. 801 (1920):
The rule is that, where the compensation of an attorney 609*609 is to be paid to him contingently on the successful prosecution of a suit and he is discharged or prevented from performing the service, the measure of damages is not the contingent fee agreed upon, but reasonable compensation for the services actually rendered.
No distinction is made between dropping the case and dropping the lawyer.
135
... The lawyer gets nothing ...
Suppose he has a contract (like the one I linked in 97) which provides otherwise.
136: While I'm not going to get the facts of 108 straight without drawing diagrams, it's still a case where the client got a substantial recovery after having been represented throughout most of a litigation by the same lawyer. Any holding isn't applicable to a fact pattern where the client recovers nothing.
137: The contract you link also includes the words in bold "If there is no recovery, there will be no attorneys fee." Ambiguities in a contract are construed against the drafter -- any attorneys fees due after 'abandonment' would therefore have to be after an 'abandonment' that nonetheless resulted in some sort of recovery to the plaintiff. If the contract had not had the language I quote? I haven't seen it litigated, but I'd be really surprised to see it enforced.
"If there is no recovery, there will be no attorneys fee."
That's what the lawyer ad on the back of the phonebook says.
We are confronted with two opinions and absolutely no information as to which one was right.
Taft didn't get two opinions that he's spoken of: first he got a prescription and later he got an opinion about its appropriateness from someone else. So it's jumping to conclusions so call this case where medical opinion is not clear-cut - it could turn out, on investigation, that the prescription was not based on any justifiable line of medical thinking.
137: We don't have that contractual term, perhaps because we represent fairly sophisticated clients who wouldn't accept it. I suspect that in almost any medmal case, the lawyer's claim would be uncollectible. A wily client could overcome it by sabotagin thier own case, e.g. by denying any injury at depositoin or trial.
Halford is correct that the more common problem is the cleint rejecting a favorable settlement because they want the fun and the jackpot possibiity of a trial, which the lawyer is unlikeley to happen. We do havde a contractual provision that helps us with that one, hwihc allows us to withdraw fro the case at our discretion at any time permitted by ehtical rules -- but if we do that, we don't get paid at all so I don't thnk we've ever used it.
136: The case linked in 111 and the case linked in 108 are different.
Right. That's why I referred you to Robert's explanation in 110, not 111. The case in 108 is not actually very complicated, particularly on the point you are attempting to cite it for. I explained it for you in 134.
it could turn out, on investigation, that the prescription was not based on any justifiable line of medical thinking.
It could, or it could turn out that the second doctor misunderstood the situation. They're both doctors. I don't understand why people are jumping to the conclusion that the second guy's criticism is any more or less likely to be right than the first guy's prescription.
It's a leap of logic, but it makes more intuitive sense since the second one is a spoken, reasoned opinion and the first is just an action (that we know of). And it's more exciting because it leads to a more clear-cut case for a suit.
144: I don't know that anyone is jumping to that conclusion. But the fact is that once you have had a bad outcome and have received information suggesting that the outcome was the result of medical negligence, the clock starts to tick on your opportunity to do something about it.
What you're talking about is the systematic stripping of one of the few forms of social insurance (because we don't have much else by way of decent social insurance) available to ordinary Americans.
I agree with the rest of 109, but I feel you're jumping the gun a bit here. While Medicaid sucks majorly, ordinary people probably benefit from it a lot more, in aggregate, than they do from malpractice suits.
146 gets it better than me: this thread has had a bunch of a priori distaste for the idea of a lawsuit, and it's important to emphasize that without at least investigating with legal tactics, Taft will probably never know whether it's a tort or not.
this thread has had a bunch of a priori distaste for the idea of a lawsuit
Taft might be in the position where a lawsuit is appropriate, and I don't think there's anything wrong with him talking to a lawyer to investigate. But a priori distaste for the idea of a lawsuit is totally appropriate -- they're horrible for plaintiff and defendant alike.
I keep reading the title of this post as Meat-blogging.
they're horrible for plaintiff and defendant alike.
Not so horrible for plaintiff as being left uncompensated for serious injury, though. That is, a priori distaste for the idea of a lawsuit is, in my opinion, not totally appropriate at all. Lawsuits very often serve a very useful purpose.
Hell, I was involved in a case once in which the plaintiff, though losing her lawsuit, was diagnosed with and cured of a fatal but rare disease because the defense medical expert was really, really good. If she hadn't sued, she would be DEAD. Are you tort reformers really trying to kill president Taft, you monsters?!
James, you can't draw an inference like that from the fact that the Washington Supreme Court didn't make a distinction that wasn't relevant to the case. (Ramey is another case where the client abandoned the lawyer but not the case). We already know that the excerpt you quote does not perfectly describe Washington law on the subject: a Washington lawyer in not entitled even to quantum meruit if his task has not been substantially performed.
My off the cuff reaction to the contract in 97 was based on the knowledge that a lawyer-client relationship is viewed as one-sided, legally, and the feeling that unless the client is actively trying to cheat the lawyer, and a 'common fund' has been created, a court is very unlikely to reach into the client's pocket.
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Filling out a recommendation. One of those check-box charts where you grade each quality on a scale of Excellent-good-fair-poor-cannot judge.
One of the categories is "Health". This is for a grad program in Math Ed. Why on earth should they be inquiring to the recommender's perception of the candidate's health?!?
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Hell, I was involved in a case once in which the plaintiff, though losing her lawsuit, was diagnosed with and cured of a fatal but rare disease because the defense medical expert was really, really good.
That sounds like it could have been an episode of House.
Sounds downright inappropriate to ask!
155: Ha! I was thinking it would make a good episode of Drop Dead Diva!
Why on earth should they be inquiring to the recommender's perception of the candidate's health?!?
Is it even legal to ask? Is the next question, "Is the candidate hott?"
But a priori distaste for the idea of a lawsuit is totally appropriate -- they're horrible for plaintiff and defendant alike.
Good point, but I mean the "well, doctors are going to make mistakes" and "juries will be inappropriately sympathetic" stuff specific to med-mal.
It might indeed be illegal! The ADA bans:
using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.
154: to cover both disability and addiction, I would assume.
160. Thought that might be the case, because our Disability Discrimination Act is explicitly based on ADA and you be in a world of trouble asking a referee about a candidate's health here. If there are medical qualifications for the job, you ask for the name of the candidate's physician and get a proper answer.
I'm pretty sure it's illegal, from being prepped on things we weren't allowed to ask when I've been on hiring committees.
I just checked Cannot Judge.
Maybe it's asking if the person seems to have the mental stamina to go through the rigors of grad school. I've seen questions along those lines on recommendation forms before. Though then you'd think they could ask the question better. Leaving it at 'health' seems to be asking for trouble.
And none of you have answered my question about finding an ADA lawyer!
163
I'm pretty sure it's illegal, from being prepped on things we weren't allowed to ask when I've been on hiring committees.
Does employment law apply to graduate school admissions?
118 119
The successful lawyer in 111 has what looks like CLE materials on the internet, and seems quite certain that absent specific performance, no fee is due in a contingent fee case, even if the contract provides for one. ...
I don't see how you are concluding this. The material you linked states (2-11):
In the event that you do not qualify for substantial performance, then the only recovery the law allows is under the doctrine quantum meruit. quantum meruit means simply the reasonable value of the services performed. ...
So you don't qualify for a contingency fee but may still get a fee based on your effort expended.
138
The contract you link also includes the words in bold "If there is no recovery, there will be no attorneys fee." Ambiguities in a contract are construed against the drafter -- any attorneys fees due after 'abandonment' would therefore have to be after an 'abandonment' that nonetheless resulted in some sort of recovery to the plaintiff. ...
I didn't notice the clause at the top. So I guess Mr. Bharti probably isn't a very good lawyer (which doesn't surprise me too much). Note the clause I quoted purports to make the fee payable at the time of discharge or abandonment. So even if the client is just switching lawyers and pursuing the case no recovery would have occurred yet.
However even if this clause is completely unenforceable it still can be used to browbeat a naive client into continuing a case they would prefer to drop. You have to be awfully confident to get in a fight with a lawyer about something like this.
However even if this clause is completely unenforceable it still can be used to browbeat a naive client into continuing a case they would prefer to drop.
Yes, awful.
167 -- The fairness of which is measured based, inter alia, on the result obtained by the client.