May 2009 Archives

May 28, 2009

Governor Carcieri Chooses Justice Suttell for Chief Justice Post

me and SuttellGovernor Carcieri has nominated Justice Paul Suttell to replace Chief Justice Frank Williams at the State's highest Court.

The Governor said of Judge Suttell:
Justice Suttell brings a wealth of judicial and scholarly experience to the position of Chief Justice...He has served the public with the highest honor and distinction, first as a member of the Rhode Island House of Representatives and later as a Family Court Judge and Supreme Court Justice. He is a dedicated and conscientious jurist, whose understanding of the law and ability to lead will serve him well as Chief Justice.

Justice Suttell has been on the State Supreme Court since 2003 and his appointment as Chief Justice should pass the State House of Representatives and Senate.

As a bonus - Justice Suttell and I at my swearing in.
May 26, 2009

Obama to Nominate Sonia Sotomayor to Replace Souter

It has been leaked by several news sources that President Obama is going to nominate Sonia Sotomayor to replace David Souter on the Supreme Court.  Justice Sotomayor of the Second Circuit would join Justice Ginsburg as the second woman on the bench and would be the first Hispanic Supreme Court Justice.

Though first nominated to the Federal Bench by a Republican, George Bush, her decisions have leaned largely to the left and she was nominated to the Second Circuit by President Clinton.  She has had two Second Circuit decisions overturned by the Supreme Court because her opinions failed to gain the support of the conservative majority. 

I applaud this decision by President Obama and am confident that Judge Sotomayor will pass through Congress to ultimately replace Judge Souter.
May 19, 2009

New York Most Recent State to Challenge Validity of Learned Intermediary Rule

The learned intermediary rule, which roughly holds that a manufacturer (typically pharmaceuticals) satisfies their duty of care by providing a "learned intermediary" (usually a doctor) with all necessary information including risk of harm, because the learned intermediary will interact with the consumer and relay the risks.

The Rule has been challenged in a number of states with a wide ranging difference of opinion... And now it comes before New York.

I do not think I could state the justification for abolishing the rule any better than the sponsors of the bill, Brodsky and Weisenberg:
In 1997 the F.D.A. relaxed its guidelines for
direct-to-consumer advertisement of pharmaceuticals. Since that time,
there has been an onslaught of marketing in an attempt to influence a
patient's choice of a drug. These efforts have become an essential
part of manufacturer's marketing plans, resulting in an increase from
$843 million in 1997 to annual costs in the billions for print and
broadcast advertising. This change has also resulted in an increase in
the number of prescriptions written: fifteen months into the
relaxation of the guidelines, one heavily marketed drug saw an
increase in sales of more than one hundred times that of prescriptions
written prior to advertisement.

This controversial new marketing technique, opposed by the American
Medical Association, undermines the patient-physician relationship by
encouraging consumers to ask for advertised products by name. As
"patient choice" becomes an increasingly popular concept, physicians
are being relegated to a passive role where, upon demand, the patient
receives a prescription for the advertised drug 73% of the time.

The purpose of the bill, as stated by the sponsors, echoing the opinion of all those who oppose the learned intermediary rule is:
To require that pharmaceutical
manufacturers who engage in direct-to-consumer advertising of
prescription drugs satisfactorily advise consumers of the risk
involved in the ordinary use of the prescription advertised. This bill
also requires that, in products liability actions, the adequacy of the
warning be a question of fact for the jury.

I applaud the New York assembly for challenging this rule and hope that it abolished.  Such a doctrine may have been appropriate in 1966 when it was first raised in Sterling Drug v. Cornish, 370 F. 2d 82), but it is a dangerous doctrine today when pharmaceutical companies directly advertise their product to the public.
May 13, 2009

5th Wrong Site Surgery at Lifespan Hospital in 2 Years

A surgeon at Hasbro Children's Hospital began operating on the wrong part of a patients mouth before realizing the error and performing the required surgery on the appropriate area of the mouth.  It is unclear what injuries the child may have suffered as a result of the mistake, but at the very least I am sure he will endure additional scarring and pain.

One would think that such mistakes are impossible, after all this is as obvious as medical malpractice gets, yet this is the fifth time that a surgeon at a Lifespan hospital has operated on the wrong part of the body in just the last two years.   Following the investigation, the surgeon and surgical team has been placed on administrative leave.

UPDATE: On October 23, the Rhode Island Department of Health is reporting another incident of wrong site surgery at Rhode Island Hospital.  Appears that it has happened again.
May 7, 2009

RI Supreme Court Upholds Domestic Violence Conviction

The RI Supreme Court has upheld a conviction even though the alleged victim changed her testimony.  Acting Chief Justice Goldberg recognized that the Court was "confronted with yet another victim of domestic violence who, after her abuser was arrested and charged with a felony, changed her story and gave markedly different testimony at trial to protect her abuser."

The SC held that a jury could rightfully base their decision on prior testimony given at the time of the incident so long as there is other evidence to support a finding that a crime was committed.

Based on an understanding of human psychology, this is the proper decision.  One could argue that the jury is hearing direct testimony from the alleged victim that is contrary to a finding that a crime occurred, and therefore should find the defendant not guilty.  On the other hand, there are volumes of text showing that victims of domestic violence will often protect their accusers, and therefore, the trial testimony should not be given any credibility.  If the jury decides, based on this latter point, that the testimony given to police on the night of the arrest is more credible than the testimony given at trial, then it is appropriate for the SC to uphold the conviction.
May 2, 2009

My Rant About Accident Reporting

Like many of you I have been following the tragic story of Kimberly Pisaturo who was killed by a school bus yesterday while walking to school.  Having brought her up, I offer my condolences to her family and friends for their loss.  But I mention this tragedy as a way of raising another topic, specifically, the way in which the media is quick to find fault with the victim.

The Projo article concerning this accident points out that Kimberly may have had a hooded sweatshirt on (suggesting that her vision was impaired), that she may have been looking down at her cell phone at the time of the accident, and that an Ipod was found on her person (both suggesting that she was distracted).  The latter is particularly ridiculous because it is certainly not worth mentioning that she had an Ipod if no one is sure that she was listening to music at the time of the accident.  To make matters worse, next to this article online is a link to another article stating "most agree Ipods and cell phones are "in" but they can be a distraction."

Does it reduce the tragedy if we walk away from the article believing it was the victim's fault? Is this article written by a defense attorney intent on painting a beneficial picture?

I was involved in a high profile case in Boston as well, in which a student was struck by a passing vehicle.  Similar to this story, the Boston Globe highlighted how the student was listening to an Ipod at the time of the accident and according to witnesses, was not paying attention.  The comment section of the newspaper was in a frenzy blaming the victim!

Reporters please - present the facts as you find them, but realize that if the victim is unable to speak for him or herself, then you are presenting an imbalanced version of events.