July 2, 2009

Landmark Ruling Concerning Nursing Home Neglect

While it is out of our jurisdiction it is worth noting that the 3rd Circuit has recognized a cause of action for civil rights violations at nursing homes resulting from inadequate and abusive treatment.  The case is Grammer v. John J. Kane Regional Centers.

The Court held that the Federal Nursing Home Reform Amendments (FNHRA) "is explicitly and unambiguously rights-creating," and that its provisions make clear that "nursing homes must provide a basic level of service and care for residents and medicaid patients."

Under the law, nursing homes:
are required to care for residents in a manner promoting quality of life, provide services and activities to maintain the highest practicable physical, mental and psychosocial well-being of residents, and conduct comprehensive assessments of their functional abilities...

According to the holding the FNHRA also:
specifically guarantees nursing home residents the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat their medical symptoms.

Recent years have seen an increase in nursing home abuse and neglect cases because families have finally begun to speak up for their loved ones who are often unable to fight for themselves.  This is an important decision and gives federal support to this area of tort law.

If you believe a family member has been subjected to nursing home abuse or neglect, please contact my office for a free consultation.
June 30, 2009

Proud to Announce the Start of my Entertainment Law Practice

A very good friend of mine also happens to be an extremely talented artist on the verge of big things, by way of helping him through the legal tangles of the entertainment and music biz - I have learned a great deal about entertainment law and have devoted significant time to studying this area. 

I now represent both artists and record labels and want to expand this practice area.  I want to invite anyone who needs assistance in this area to contact my office, including but not limited to, existing record labels and record label start-ups, artists, bands and musicians, writers, agents, etc. 

Those familiar with this area understand that entertainment law is primarily a network of contracts fighting over rights and royalties to copy-written and original material.  Artists, publishing houses, and records labels all need an attorney to make sure that their interest in the work is protected and that the best possible deal has been obtained.
June 30, 2009

Racial Profiling Still Pervasive In RI says ACLU Report

According to a new report from the ACLU released today, RI is doing a poor job combating racial profiling by police. 


 Earlier independent analyses of three years worth of traffic stops data from all police departments throughout the state uniformly found that African Americans and Latinos were much more likely to be stopped by police and much more likely to be searched once stopped, even though whites were more likely to be found with contraband.


Our legislature must do more to combat this problem.  Race and religion are not and should not be probable cause for a stop and search.
June 29, 2009

New Study shows Outpatient Facilities Frequently Fail to Inform Patients of Clinically Significant Results

A study published in the Archives of Internal Medicine shows that doctors and medical centers often fail to inform patients of clinically significant test results.  The test included a review of over 5000 randomly selected patients from a variety of clinics and medical centers.  The findings show "the rate of apparent failures to inform or to document informing the patient was 7.1%."

Failure to diagnose an illness or medical condition has often been determined to be medical negligence.  I expect to see a growing number of medical malpractice cases based on failure to properly inform a patient of clinically significant results.   These clinics must understand that if a patient does not hear from their doctor after a test or blood work is done, he or she will assume that everything was normal.  Any patient who fails to seek or obtain medically necessary treatment because he or she was unaware that it was needed, should have a case for malpractice.  If you or a loved one believes that you have been harmed by a failure to be informed of clinically significant test results, please contact our office for a free consultation.

Special thanks to thepoptort.com for bringing this article to my attention.
June 24, 2009

Do I Really Need a Lawyer?

It  is the first and most obvious question to ask oneself if injured in an accident.  Because of my prior work experience as an adjuster for an insurance company, I seem to be asked this question an awful lot.  I have worked on both sides of an injury claim, previously for the insurance companies, and today for my injured clients.   So knowing how insurance companies evaluate claims, the question is often raised to me - does an attorney make a difference? Do I need a lawyer?

The simple answer, no surprise, is yes.  I do not give this answer simply to solicit business.  A good lawyer (and I include myself in this grouping) takes a case with the expectation that it will have to go to trial.  That said, evidence and all vital information is secured early, the theory of liability is well thought out, and the case is monitored from the onset to ensure that nothing goes wrong.  In so doing, a good lawyer gains leverage over the insurance companies.

In addition to protecting the strength of the case, a lawyer is necessary to secure a fair value for the injury suffered.  Adjusters are quick to say that they evaluate claims the same way whether a claimant has an attorney or not - and to some extent this is true.  If an injury is a relatively minor one, the evaluation will be approximately the same with or without an attorney.  If you have been seriously injured, however, you NEED an attorney to obtain fair value.  Insurance companies will make sometimes embarrassingly low offers for fractures or scarring, for example, and an unsuspecting claimant might accept such a number thinking it is a good deal.

Therefore, if you have been seriously injured in any kind of accident, hire an attorney to protect your rights and ensure that you receive full value for the injury suffered.  My office offers a free consultation and is open to discuss any questions you may have regarding the process.
June 16, 2009

"You're out of Order!"

I want to take a second and have a little fun on this post.  One of my favorite websites, avclub.com, has a post today discussing 18 of the craziest and legally unlikely courtroom scenes Hollywood has ever produced.  Definitely worth your visit - very funny.
June 16, 2009

RI House of Representatives Amends Wrongful Death Statute

The House has voted to approve H5969 which amends the wrongful death statute to allow parents to make a claim for loss of parental society and companionship even if the child is over the age of 18 and no longer a minor.

The amendment comes in the wake of the tragic case of Francis J. Marx, who was only 21 at the time of his death as a result of an accident during a URI pub crawl.  I applaud this amendment for recognizing that no parent should ever have to bury their child and that the pain is not reduced because the child was an adult.
June 9, 2009

Judge's Instruction to Jury on Spoliation of Evidence Upheld

The Rhode Island Supreme Court in an opinion authored by retiring Chief Justice Williams, upheld a $500,000 medical malpractice settlement against a Barrington urologist.  The plaintiff Woon Kam Youngsae sufferred from kidney disease and ultimately had to undergo a kidney transplant. 

One of the issues on appeal was Dr. Jacques Susset's inability to produce certain diagnostic and visit reports pertaining to the plaintiff.  In her instructions to the jury, trial Justice Gibney stated:
"Under certain circumstances, spoliation of evidence may give rise to an adverse inference that the missing or spoliated evidence evidence would have been unfavorable to the position of the party unable to produce it. A showing of bad faith is not required before the jury will be permitted to draw this inference."

Attorneys for the defense argued that such an instruction unfairly prejudiced the jury, but Williams writing for a unanimous Court said that the instructions did not so prejudice the defendant as to warrant reversal. 

It is only reasonable that juries be allowed to make a negative inference when doctors are unable to produce records because medical malpractice cases are built on the records written and in the possession of the defendant.  A plaintiff's only chance at justice requires truth and accuracy in medical reporting.
June 3, 2009

RI Legislature Passes Law Allowing Domestic Partners to Make Funeral Arrangements - Is This Progress?

The Rhode Island State Senate unanimously approved a bill granting "domestic partners" the right to claim the bodies of, and make funeral arrangements for their loved ones.  The bill defines "domestic partner" as someone who had been in "an exclusive, intimate and committed relationship'' with the deceased and had cohabited for at least a year before the death.

The law rises from a tragic story of a man who desperately tried to obtain the body of his deceased lover in order to cremate him according to his wishes.  The story becomes secondary to a much larger picture here in Rhode Island.  Rhode Island is the only State in New England that fails to recognize any legal relationship between homosexual couples.  Our Court and legislature have previously refused to expand the rights of homosexuals in this State, yet today, the legislature agrees to let a domestic partner claim a body and make funeral arrangements?

I find this decision curious, to put it mildly.  While it can be argued that any progress is beneficial progress, I can't escape the irony that our State refuses to recognize any legal relationship for same sex couples during their life and yet acknowledges the validity and strength of same sex relationships in death.

I encourage any comments as I would like to open this question up for debate - Is this law progress for Rhode Island or a slap in the face?
June 3, 2009

J.D. Salinger Fighting Publication of New Book

Well this case has nothing to do with the law of our fine state but I thought that I would write about J.D. Salinger's lawsuit for a couple of reasons.  First, I remember reading the Catcher in the Rye with great fondness.  Second, because J.D. Salinger has been such a reclusive figure throughout his life.  And finally, because it raises a fascinating legal question - and here we get to the point of my post.  For those of you unfamiliar with the lawsuit, J.D. Salinger is trying to prevent the publication of a novel depicting Holden Caufield as an old man, some sixty years after the events in Catcher of the Rye.

The fascinating legal question is whether Holden Caufield, a young man who appeared in only one novel many years ago and never had a physical or illustrative depiction, is copyrightable.  The Wall Street Journal Blog has an interview with copyright lawyer, Marc Reiner, in which they discuss this issue among others.  salinger
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.