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.
April 27, 2009

Plaintiff Lawyers - The Answer to Foodborne Illnesses?

The Editor of Forbes Magazine, William Baldwin, has suggested that plaintiff lawyers help protect the quality of the Nation's food supply by bringing suits against companies who have slipped under the FDA radar.  As he points out, food-borne illness sickens 76 million Americans per year, kills 5,000, and runs up $3 Billion in medical bills.

These statistics, coupled with numerous salmonella scares and constant questions about the quality of food products brought in from China, shows that the FDA is clearly overwhelmed and unable to protect our country from dangerous food products.  A few high profile lawsuits with punitive damage awards, may be able to do what the FDA cannot. 

As Mr. Baldwin points out, "genetic subtyping can make an unmistakable link from food to victim."  Such certainty prevents frivilous lawsuits and eliminates doubt in the minds of victims who may or may not have been sickened by the food they ate.

Food-borne illness can range from mild stomach pain to death.  If you feel that you or a loved one has been the victim of food poisoning, contact our office for a free consultation.
April 24, 2009

Medical Malpractice Award Upheld Against Psychiatrist who Slept with Patient

When we think of medical malpractice cases it is natural to think of missed diagnoses, improper treatment, etc.  But a Long Island Court has upheld a medical malpractice award of $416,500 against a psychiatrist accused of sleeping with his patient whom he was treating for depression and anxiety.  The woman initially sought treatment after her child was born with cerebral palsy.  As a result of the psychiatrists abuse of trust, the woman claimed that her husband divorced her, she lost partial custody of her daughter, and her anxiety and depression skyrocketed.

The jury, interestingly, found the plaintiff 25% at fault which raises difficult legal questions.  The plaintiff argued, of course, that because of her mental state and the nature of the doctor-patient relationship, she should not be held at all responsible for the inappropriate relationship.  Justice Rebolini disagreed:
[G]iven the plaintiff's age and experience and notwithstanding the defendant's professional status and the nature of the parties' relationship at its inception (doctor/patient), it remained that the plaintiff was possessed of a will of her own and was not utterly bound by defendant's influence or choices but, rather, free to exercise her judgment and to engage in such conduct as she chose.

In response to plaintiff's post-verdict motion, Judge Rebolini further stated:
Plaintiff was not denuded, by virtue of the physician patient relationship, of an ability to control her own conduct and to exercise her own adult judgment given the extended period of and the palpably apparent consequences of the conduct in question herein, an affair where both parties were married to others.

The defense argued that this was not a medical malpractice case at all, but rather, a claim for seduction or alienation of affection, both of which have been abolished by state law.  Rebolini reasoned that a jury could conclude that the prescription of medications could have had an impact on the plaintiff which in view of the inappropriate relationship is rightfully medical malpractice.
April 22, 2009

Should Bush Lawyers Face Jail Time for Legal Advice

New Attorney General, Eric Holder, is in a predicament.  He has the choice of prosecuting fellow attorneys for an interpretation, albeit misled interpretation, of the Constitution, or to forego prosecution and let the past eight years slip away like a dark memory.  John Yoo and his compatriots advised former President Bush on interrogation techniques and greenlit investigative procedures that were likely illegal under international law and many people want to see those responsible tried as war criminals.

Is it possible that in only a matter of months, DC could experience such a change of thinking that what was permissible a mere four months ago is now widely considered torture?? 

The approved interrogation techniques did not suddenly become illegal overnight - they always were.  Congress, law Professors, and first year law students all realized that John Yoo's interpretation of Presidential power was excessive.   But was it criminal?  Legally speaking, I doubt it.  And I doubt that Eric Holder will take any action because of the questionable precedent that it would set.
April 20, 2009

RI Public Defenders Office Severely Overworked

Rhode Island Public Defender, John Hardiman, has informed the Providence Journal that his staff is among the most overworked in the country.  Each attorney on average handles 1517 misdemeanors and 239 felony cases each year!  That's right, almost two thousand cases!

Not only is this caseload excessive, it would likely be considered unethical if maintained by a for-profit attorney because it is impossible to protect a clients best interest when so overworked.  But of course, these cases are forced upon the RIPD which cannot reject them.  Cases are only referred to court appointed attorneys when the RIPD has a conflict of interest.  Oh, and by the way, the system which pays court appointed attorneys is also woefully underfunded.

I was fortunate enough to intern at the RIPD during law school and I have the upmost respect for all of the attorneys who practice there.  They do a tremendous job for their clients under difficult conditions that no private attorney would be forced to work under.  Interestingly, our criminal justice system has no lack of resources for the Attorney General's Office.  Our legislators provide to the AG's Office because they believe that voters want to see criminals put in jail.  It is upon us as the voters, to let the legislators know that justice is equally important to results.
April 14, 2009

Thompson and McConnell Nominated for Federal Posts

Senators Jack Reed and Sheldon Whitehouse have nominated Superior Court Justice, Ojetta Rogeriee Thompson and attorney John McConnell to fill two vacancies in the federal court system. 

Justice Thompson is nominated to fill the seat on the First Circuit left vacant by Judge Selya.  It will be a difficult task for anyone to fill the shoes of the prolific and highly regarded Judge Selya, but if appointed, I believe Judge Thompson will do a fantastic job.  Her greatest challenge may be in replicating the literary and humorous opinions that were a trademark of Judge Selya and which brought momentary joy to overworked law students.

Attorney John McConnell has been tapped to fill the District Court vacancy left by the retirement of Judge Torres.
April 11, 2009

Brown University Study Shows Higher Percentage of Nursing Home Abuse and Neglect Among Minorities

A Brown University Study of nursing home patients found a higher percentage of nursing home abuse and neglect among minority patients.  The University points out that this is not necessarily racially motivated, but likely because racial minorities are more prone to end up in nursing homes that are underfunded and poorly run.  Many nursing homes hire poorly trained and unqualified staff to meet the day to day needs of its patients.  Nursing home neglect can result in bedsores, improper follow-up of illnesses, improper administration of medicine, and failure to diagnose illnesses.  As this study points out, such abuse and neglect, is even more likely to occur if the nursing home is in a poor area and is underfunded.

Nursing home abuse and neglect is preventable if family and friends of the patient stay involved.  Often, poor care at nursing homes is allowed to continue because the patient has no family to lodge a complaint or to hire an attorney.  Nursing homes must treat our aging friends and family with all of the care that they deserve, but it is up to us to ensure this happens.

If you believe that your friend or loved one is suffering abuse or neglect in their nursing home, please contact us for a free consultation.
April 9, 2009

Massachusetts Department of Health Releases Report on Preventable Injuries in Hospitals

Hospitals have long been required to report adverse events that occur on the premises, but now Massachusetts is compiling this information and releasing it to the public in the hope of reducing preventable accidents and injuries.  In 2008, Massachusetts hospitals reported over 300 serious events with falls as the leading category (over 200!)  The other categories include surgical error, patient care error, and product or device failure.

I applaud the State's efforts to identify the cause of such serious errors and to work towards elimination of unnecessary injury.  I have provided a link to the press release here.

If you or a friend or family member have been injured through hospital negligence, it is in your best interest to speak to an attorney.  Our office is able to guide you through the process and inform you of your legal rights and remedies.
April 8, 2009

Gay Marriage in Rhode Island

Rhode Island has its fair share of pressing issues and we will soon be faced with yet another.  A number of factors are forming below the surface that will make gay marriage in Rhode Island a major issue in the coming weeks.

Rhode Island is now the only New England State that does not recognize some form of gay marriage or civil union for homosexuals.  Vermont recently added their name to the growing list of States recognizing gay marriage and the Iowa Supreme Court this week unanimously overturned a ban on same sex marriage.  In addition, the Rhode Island House Judiciary Committee is planning to vote on legislation that would allow a homosexual couple married in a state that recognizes such marriages to divorce in Rhode Island.  This is in conflict with the 2007 Rhode Island Supreme Court decision, Chambers v. Ormiston, which held that the Family Court lacked the jurisdiction to address the legal concerns of homosexual couples.  Finally, we all need to be aware that this issue is going to influence Carcieri's appointment to replace Chief Justice Williams on the Supreme Court. 

And where does Carcieri stand on this issue...

Today our Govenor spoke at an anti-gay marriage conference at the State House.  Carcieri wishes to see the topic on a State ballot rather than allow the Court system to bind Rhode Island law.   It should be noted that all the justices writing for the Chambers decision, including the dissenters Justice Goldberg and Justice Suttell, agree that the status of gay marriage in Rhode Island is to be determined by the legislature after open public debate, and not by the judiciary.

However, all of this, brings us full circle to the question of whether gay marriage is a fundamental right.  This and only this is the question that needs to be answered... and it needs to be answered by the Supreme Court.  If gay marriage is a fundamental right, it can not be placed on the ballot for majority vote to decide.  It is equivalent to trying to decide the issue of slavery by majority opinion.  On the other hand, if gay marriage is not a fundamental right, then homosexuals are not guaranteed such Constitutional protection.

If our Governor and Supreme Court are unwilling to alter their stance on gay marriage, the issue may have to come to a ballot vote.  If that were the case, how would our democratic and liberal state vote?
April 7, 2009

Continuing Fallout with Medtronic Sprint Fidelis Cables

The New York Times ran an interesting article today pointing out that the decision to remove the troublesome Medtronic Sprint Fidelis device from the market does nothing to assist the tens of thousands who have already had the device installed.  Such people face the difficult choice of an additional dangerous heart surgery, or to continue to live with a potentially fatal device installed in their heart.  The Times reports that  four people have already died during the extraction process.

Yet despite the associated deaths and the high fail rate on these devices, Medtronic has been largely shielded from lawsuits thanks to the Supreme Court decision in Reigel v. Medtronic.  The Supreme Court barred common-law claims challenging the safety or effectiveness of a medical device marketed in a form that received premarket approval from the FDA.  The lack of testing performed on the device is seemingly irrelevant, so long as it received premarket approval from the FDA.

Democratic lawmakers are already considering a move to enact legislature reversing this decision.
April 7, 2009

My First Post

Welcome to the first post of my new blog that begins today on the same day that I open my own practice.  I will focus on the case law and statutes of Rhode Island and Massachusetts as well as the areas in which I practice.  I hope to be helpful and informative and I accept your opinions and criticism to each and every post.


Since this is the first – here is a bit about me…


Prior to graduating from Boston College Law School, I spent several years as a personal injury adjuster for a national insurance company. In this capacity I gained experience negotiating and resolving the most serious forms of injury, including brain injuries, scarring, fractures, burns, and fatalities. I negotiated and settled hundreds of cases and participated in mediations and arbitrations for the most complex of situations.


In my final year of law school, I gained further experience by working with one of Providence’s most respected law firms and as an intern for a Justice of the Rhode Island Supreme Court.


Following law school, I worked for one of New England’s premier personal injury law firms.


Today, I open the Law Office of Joseph Lamy focusing on personal injury and civil litigation.  Thanks for reading today, and in the future.