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August 29, 2006

A Story That Doesn’t Have a Leg to Stand On

[Originally appeared in the Wall Street Journal, Mar. 27, 1995]

You've probably heard a lot lately about the poor guy in Tampa who went to the hospital to get his leg amputated and woke to find they'd taken off the wrong leg. Thanks to the skill of the litigation lobby in spinning the media, there's also a lot about the case you probably haven't heard.

It happened last month at University Community Hospital when Dr. Rolando Sanchez mistakenly removed the left rather than right leg of 51-year-old Willie King. Making matters worse were reports of two unrelated incidents of negligence -- one fatal -- at the same hospital, Tampa's third largest.

The theme was simple. This is the kind of thing that goes on in hospitals, and only lawsuits can stop it. If the wicked Republicans succeed in limiting damages in malpractice suits, patients like Mr. King will be both more numerous and less well reimbursed.

Parts of the press bit hard. The Associated Press, in dream-come-true coverage for opponents of legal reform, led off with the King case as an example of the kind of incident likely to go undercompensated "if the House of Representatives gets its way".

ABC's World News Tonight was equally unsubtle about the moral to draw, quoting Mr. King's lawyer: "Congress should be working to make doctors more accountable for their mistakes, not less." Newsweek quoted the head of the Association of Trial Lawyers of America saying something rapturous about lawsuits. Ralph Nader went on CNN.

Some press accounts added a few more details. Remarkably, Mr. King, a diabetic retiree, had not reacted to his loss with anger, at least not at first. The hospital had promptly acknowledged the error and said it was miserably sorry.

Dr. Sanchez, for his part, did not seem to fit the profile of a problem doctor. A New York University Medical School grad with an impressive background in teaching vascular surgery, he had a 14-year record unblemished by official complaints. Colleagues and former patients were vocal in his defense. The hospital itself, despite the cluster of accidents, had had no unusual rate of past problems.

One question cried out for an answer. Operating rooms are brightly lit. How could an experienced surgeon mistake a healthy leg for one with gangrene? At his news conference, Mr. King's lawyer, Peter Brudny, pursued this theme. The difference "should have been obvious", Mr. Brudny said. "Willie never would have consented to have the right leg removed if he didn't feel he had a good left leg the rest of his life."

When the hospital finally spoke to the press, after the story had been beamed worldwide, another side of the story emerged. Most of its briefing was devoted to questions of how the error could have happened and a recurrence prevented. But the hospital's chief of staff, Dr. Brendan O'Malley, himself a diabetes specialist familiar with Mr. King's case, also added a few salient facts:

* Mr. King suffered from progressive vascular disease in both legs arising from diabetic complications that had affected several organs. He was losing both legs to these complications; the question was in what order they would go.

* Both of Mr. King's legs had undergone extensive assessment. According to many of the tests, his left leg was actually farther gone than his right, its arteries 90 percent occluded. This severely diseased leg was in no way normal-looking, and would have had to be amputated in "a very short period of time". But King had asked doctors to remove the right leg because it was giving him more pain. There followed the goof.

To be sure, Mr. King's attorney flatly denied Dr. O'Malley's assertions, and with some vehemence. "He never had any serious problem whatsoever with his left leg," Brudny said of his client. "Never, ever." But to a journalist, the direct contradiction between the two accounts should make the story more interesting, not less.

Neither AP nor ABC breathed a word about the condition of King's other leg. But they wouldn't have had to do much digging. The subject had come up in Tampa Tribune coverage a week and a half earlier, available on Nexis. Newsweek was told but omitted the fact.

Now the full story may never come to light. The hospital's and Mr. King's lawyers settled their dispute, clamping a confidentiality lid on the case.

The spinmasters of the trial bar have moved on to new daily themes, such as the supposed predilection of tort reformers for oversimplified horror stories. And the press, having availed itself of such a good tale, wouldn't want to spoil it now. As columnist Diana McLellan once put it with a wink: "Never check stories out, dear. That's how you lose them."

August 24, 2006

Read These Books -- And Sue Every Boss In Sight

[Originally appeared in the Baltimore Sun, Feb. 16, 1997]

Furious at your high-handed boss? A generation ago you might have called a union organizer, but now you’re likelier to dial 1-800-LAWSUIT. From Mitsubishi to Texaco to the guy down the hall who put in an age-bias claim after getting downsized, lawyers and threats to sue have been fast supplanting unions and threats to strike as the prime movers of workplace conflict in this country.

The shift is reflected at the bookstore, where for every volume on collective bargaining you can find a half dozen aimed at disgruntled individual workers with titles like Your Rights in the Workplace by Marcia Stewart and Barbara Kate Repa (Nolo Press, 1996), The Employee Strikes Back! by Brian Zevnik and John Rapoport (Macmillan, 1994), and Can They Do That? A Guide to Your Rights on the Job by Michael A. Zigarelli (Lexington, 1994).

I read a sackful of these self-help volumes in the course of researching a forthcoming book on the new employment law and how it’s transforming the American workplace. Most were reasonably well-written and accurate, if also somewhat single-minded in nurturing among readers a bristly assertiveness about their rights. But they also made clear, sometimes with inadvertent humor, that the influx of lawyering into the nation’s offices and plants is making America a more contentious place in which to go about our daily work, which spells bad news for employers and quite possibly for the rest of us as well.

Attorney E. Richard Larson minces no words in his book’s title: Sue Your Boss (Farrar, Straus & Giroux, 1981). Larson tells workers who’ve been fired, passed over for promotion, or otherwise aggrieved that newly enacted laws are "very much in your favor" and just "waiting to be used". "Vast sums" can be on the table, he adds, just in case any readers have been dozing off. "Money -- lots of it -- has been changing hands."

How to get some? To begin with, says Larson, you "always should assert your rights under as many of the laws as are available." Each separate claim gives the employer something else to sweat over and pay its lawyers for, and what with this country’s lack of a loser-pays rule there’s no penalty if you’re wrong on one (or for that matter all) of them. If you fall into more than one protected-group category -- race, sex, age -- Larson advises throwing in a claim for each, whether or not you’ve seen actual evidence of bias: "there is no reason to give your employer the benefit of any doubt. Instead, assume the worst."

Most of these martial-arts-meets-the-human-resources-department volumes broadly resemble each other in format. Their drawback as a publishing proposition is that they date so quickly, falling out of print (like Larson’s), or requiring updated editions as the law relentlessly expands through such enactments as the Americans with Disabilities Act of 1990, the Civil Rights Restoration Act of 1991, the Family and Medical Leave Act, and so forth. Maybe at some point trade publishers will emulate the professional law-book houses which address this problem by publishing in looseleaf format or with kangaroo-like "pocket parts" in back for new developments.

As the manuals make clear, the law in practice is not the law as it may look on the page. Academic writers on sexual harassment split hairs about the difference between consulting a "reasonable woman" and a "reasonable person" in deciding what jokes or comments are permissible in the workplace. Ellen Bravo and Ellen Cassedy in the 9 to 5 Guide to Combating Sexual Harassment (Wiley, 1992) are blunter and more practical. "Who decides what behavior is offensive in the workplace?" they ask. "The recipient does." They advise potential offendees to "trust your instincts" about what constitutes harassment.

Thorough if not obsessive documentation is a common theme. One author suggests starting a file every time you take a new job and saving in it every scrap of paper the company ever gives you. "The one with the biggest pile of papers wins," writes Lewin G. Joel III in Every Employee’s Guide to the Law (Pantheon, 1993). What if co-workers make, say, "wisecracks about your age"? "Don’t wait until you get home from work. As soon as you are alone and have a chance to write them down, do it. Go to the rest room if you have to. Remember to bring a pencil." Take notes on supervisors’ remarks "even at a chance meeting at a ballgame or nightclub".

If relations with your boss weren’t tense already, they may get that way before long. Some authors propose that you insist on a written job description and formal performance reviews even if your company doesn’t normally follow either practice, and demand at frequent intervals to inspect the contents of your personnel file. "If you were made uncomfortable because of jokes, pin-ups or cartoons posted at work, confiscate them -- or at least make copies," write William Petrocelli and Barbara Kate Repa in Sexual Harassment on the Job (Nolo Press, 1992). Bravo and Cassedy suggest objecting to offensive goings-on in "any tone that feels right to you". (Sample wording: "If you touch me/talk to me that way one more time, I’ll report you so fast you won’t know what hit you.").

Nearly all the manuals are written by practicing employment lawyers, and after a while it becomes clear that many of them have a product to sell. "_Talk to an attorney early_", advises Darien McWhirter in Your Rights at Work (Wiley, 1989) [emphasis in original]. "...Many employees could avoid throwing their cases away if they would talk to an attorney before doing something stupid, like resigning or admitting guilt." (Admit guilt? What a dumb move!). Every Employee’s Guide to the Law, one of the livelier volumes and one of the franker in boosting litigation, tells of "a jury award out there with your name on it."

The assert-your-rights manuals are rather skimpy, however, on warning readers of the costs of a decision to get into a fight with their employers. A leading study of litigation by university professors found most who sued suffered lasting harm to "their finances; their relationships with family, friends, and colleagues; their attitudes toward lawyers and the legal process in general; and most of all their careers." Yes, there are often tempting short-term settlements to be had, shared with one’s lawyer; but they may come at a future price part of which is paid when other employers think twice about an applicant who’s shown a willingness to sue.

Then there’s the lawsuit itself, which participants often compare to an especially nasty divorce. To see this side of the process one does well to turn to real-life accounts. One of the most absorbing comes in Nan Robertson’s history of women at the New York Times, The Girls in the Balcony (Random House, 1992). The paper was targeted by an early landmark sex-bias case for paying less to female than to male employees. Robertson strongly sympathizes with the lawsuit’s aims, but recounts its events with palpable ambivalence. Waging a lawsuit against one’s employer is a "long, slow, painful, difficult, and ego-destroying process", said attorney Harriet Rabb, who represented the women employees. Grueling depositions, unmerciful invasions of both sides’ privacy, and staggering expenses helped turn the atmosphere at the paper "poisonous". The thought of going to trial "scared the socks off" both Rabb and her opposite number, Times lawyer Kathy Darrow: "We knew that people were going to get up on that stand and say terrible things about each other in public," said Darrow. "....Even taking the depositions, people cried, people were devastated, and there was nobody there but the lawyers to hear them."

If it were up to me, I’d tuck a story like that into the back of all the enthusiastic how-to-sue manuals, where it would make a much-needed "pocket part".

Disabling America

[Originally appeared in National Review, May 5, 1997]

You may think I'm making this up unless I offer a verbatim quote, so here's exactly what the Washington Post reported in a front-page story on April 8: "In January, a former truck driver for Ryder Systems, Inc., won a $ 5.5-million jury verdict after claiming, under the ADA [Americans with Disabilities Act], that Ryder unfairly removed him from his position after he suffered an epileptic seizure, saying his health condition could be a safety hazard. During the time he was blocked from his job at Ryder, the driver was hired by another firm, had a seizure behind the wheel and crashed into a tree. Ryder is appealing the verdict."

That's one of many emerging cases where the right to sue employers under new civil-rights laws "may be on a collision course" with public safety, according to Post reporter Kirstin Downey Grimsley. For instance, the Clinton Administration's Equal Employment Opportunity Commission has filed an ADA suit against United Parcel Service over its policy of employing only drivers with sight in both eyes. The Department of Transportation forbids one-eyed drivers from operating big rigs; UPS applies the same policy to drivers of its delivery trucks. The EEOC says such a rule is unlawful and is demanding that the company fork over back pay.

Years of litigation by advocacy groups and freelance employment lawyers have put customers, co-workers, and the general public alike at risk: -- Physically incapable, mentally unstable, and alcoholic or addicted employees have again and again used new laws to hold onto safety-sensitive positions. The Massachusetts Supreme Court ruled that a Boston police recruit had the right to lie on his job application to conceal a record of repeated hospitalizations as a psychiatric in-patient. Ship's officers have won suits against oil companies for the right to command vessels despite serious boozing pasts; Northwest Airlines rehired a pilot who had flown passengers while drunk.

-- Contagious disease carries protected status too. UCLA hospital officials knew a heart surgeon was infected with the serious and highly transmissible hepatitis-B virus; he went on to spread the virus to 18 patients. "The hospital's decision to allow the surgeon to keep on operating even after he was found to be infected," it was explained, was "in compliance with federal regulations." Prominent disabled-rights advocate and former Ted Kennedy staffer Laurence Gostin has declared that, "seen through the lens of the ADA, public-health regulation may be regarded as discrimination against people with disabilities."

-- Workers' inability to read safety warnings or comprehend verbal instructions has led to accidents on the job, yet employers are under legal pressure not to turn away workers on the grounds that their proficiency in English is poor. One manual warns employers that if they want to stay on the law's safe side they shouldn't demand more English proficiency than they're prepared to prove is necessary to fill a particular position: "Sometimes only a very rudimentary vocabulary -- 'stop,' 'don't,' 'look out,' etc. -- is all that is needed to perform a job."

The reaction in progressive circles? "Advocates for the disabled," reports Kirstin Downey Grimsley, say that "even if there is an increased risk, society must accept it as the price of creating a fairer workplace for the disabled." "We can't live in a risk-free world," said Chai Feldblum, a law professor and American Civil Liberties Union activist who helped draft the ADA. Pretty ironic, since in other contexts it's thought suitable to demand punitive damages from a business that tolerated even the slightest elevation of an injury risk -- by serving coffee at any temperature above tepid, for instance.

Invariably, backers of the new laws cite language that seems to let employers take safety concerns into account. But in practice, employers act on such exceptions only at dire legal risk.

Thus the ADA allows employers to refuse a job to persons who would "pose a direct threat to the health or safety of other individuals in the workplace." In a famous case, GTE tried to fire a computer team leader who had stolen thousands of dollars from his colleagues' desks and purses and had brought a loaded gun to the Tampa office. He sued, claiming his actions had arisen from a "chemical imbalance" that GTE was obliged to accommodate. Federal judge Elizabeth Kovachevich allowed his suit to proceed.

Feminist litigators have applied similar paralysis-by-analysis tactics in order to eviscerate strength tests for prospective firefighters, police, and other public-safety officers. Strength testing is rife with "disparate impact" because inherent physiological differences between the sexes are so profound: in Chicago's 1985 fire exam, the highest-ranking woman placed 1,200th among 7,500 applicants. Upper-body strength, important for such tasks as lifting hoses and smashing down doors, shows an especially wide gap: the fittest one-fifth of women roughly match the strength of the least fit one-fifth of men.

Seldom is it declared openly that the goal is to end testing; the problem is said to be that the particular test in question is insufficiently "validated." That's how advocates can get courts to second-guess tests to death, as in Brunet v. Columbus (1986). The city of Columbus had put would-be firefighters through a series of tests simulating typical fire-scene tasks, most dramatically a rescue in which applicants were asked to carry a 125-pound sandbag along a twisting course. When the case reached court, federal judge Joseph Kinneary accepted the plaintiffs' contention that it was unfair for the city to count off points against recruits who chose to drag the sandbag instead of carrying it. After all, the lawyers pointed out, in smoky rooms firefighters sometimes find it safer to drag bodies to safety. The implication was that the city should be indifferent between recruits who could use only one of the two rescue techniques and those who could use both -- leaving Columbus residents to hope, next time they needed help, that the hazard in their particular room was smoke rather than glass or burning fluid on the floor. (At least they're better off than residents of San Francisco, which formerly asked recruits to carry a 150-pound sack up a flight of stairs, but now lets them drag a 40-pounder across a smooth floor.)

Judge Kinneary also disallowed the city's practice of awarding credit for speed in accomplishing the dummy rescue or other simulated tasks such as hoisting equipment to upper floors (men tended to finish the tasks more quickly than women). Why? Well, Kinneary wrote, again accepting the arguments of plaintiffs' lawyers, testimony had been given that "sometimes firefighters work all-out, and sometimes they pace themselves; it depends on the task at hand." In other words, they hurry only sometimes, and other times save their energy because they expect to need it later. From this the judge concluded that all applicants who made it through the tasks at all deserved equal ranking. The case for preferring recruits who could work quickly was merely, he said, "anecdotal." Yes, you read that right. It seems people have picked up this anecdotal idea that firefighters should do their job fast, maybe because they've heard anecdotally that fires left undoused tend to spread. Many press accounts adopted the same high-minded agnosticism about exactly what it takes to fight fires. City officials defending tests say "speed is critical" in combating blazes, reported the New York Times, in the best tradition of we-print-all-viewpoints journalism. "Opponents argue that it is not."

Police have fared no better. Subduing suspects by force is part of a police officer's job, but the Ninth Circuit declared it improper for Los Angeles to test police recruits for agility. In 1986 the New York Police Department agreed to drop its pre-employment physical for recruits, under threat of lawsuits. Within a few years, more than one in five city cops were considered out of shape; some hires, according to an expose in New York, fell in "the almost inconceivably unfit first percentile" -- that is to say, "worse than 99 per cent of others their age and gender."

Age-discrimination law, which now forbids automatic retirement at 65 in most lines of work, adds another risk dimension. When former Sen. Howard Metzenbaum (D., Ohio) blocked efforts in Congress to retain a retirement exemption for public-safety workers, Frederick Nesbitt, who heads the 200,000-member International Association of Fire Fighters, warned that elderly fire and rescue workers would more often be incapacitated at critical moments: extending age-bias law into this area, he said, would "result in the injury or death of innocent people."

The crusade against strength tests is immensely popular in the law schools, where it's seen as a shining example of what feminist law can do. And yet despite two decades of activism, the actual number of women firefighters remains low, an estimated 2 per cent nationally. Many wash out of training when they learn the physical demands of the job, or go on disability later. But what may be most corrosive about the courts' hostility to strength tests is that it keeps services from upholding standards among men: if they can drag the 40-pound dummy, they're in. Call it a pro-child policy, since only tots are guaranteed a capable rescuer.

Now the ADA is making things much worse. Nesbitt suggested in congressional testimony that the combination of the ADA and new bans on test "norming" is likely to make designing meaningful fitness tests "extraordinarily difficult and perhaps impossible." He added, "To date, EEOC has been unable to identify valid tests that will meet these criteria."

Not all women are happy about the assumptions made by the courts and the lawyers who presume to speak for women. "You have to ask yourself, if it was your child or your mother, who do you want to go and get her down the ladder?" asked Lauren Howard, for years the only woman on the Chicago fire department. "Do you want somebody big, incredibly strong, extremely fast, or someone who is average?"

Let's hope the life of someone we love never depends on the answer to that question.

Review of Marcia Angell, Science on Trial

[Originally appeared in National Review, Nov. 11, 1996].

In recent years leading medical researchers have come out with big studies finding -- contrary to what we were told in one of the great scare campaigns of modern times -- no link between silicone-gel breast implants and the rate at which women contract diseases such as scleroderma, rheumatoid arthritis, and lupus. As PBS's Frontline summed up the data, "Women with implants do not have measurably different health from women without implants." Millions of women were badly scared, it seems, for nothing. As Gilda Radner used to say, "Never mind."

In a rational world this news would have been followed first by a huge sigh of relief, then by a round of apologies, and soon thereafter by some quiet retirements from public life. First to apologize would be the trial lawyers who stoked the panic at every stage, recruited tens of thousands of anxious women (1-800-RUPTURE was one hotline), filed lawsuits on their behalf that often shared the same typos, bankrupted formerly healthy Dow Corning, and pocketed millions in contingency fees from the resulting jury awards.

Next in line to offer regrets would be various figures manipulated wittingly or not by the lawyers. Connie Chung, who touched off the big panic in a 1990 CBS news show, would send a producer to accept a Golden Oops statuette. Food and Drug chief Dr. David Kessler would quit after squirming before a congressional committee probing his decision to order the devices banned. Public Citizen, the Ralph Nader operation that sedulously spread the scare, would shamefacedly halt its sale of implant-litigation kits to trial lawyers and disband its clearinghouse for implant law firms; and its spokesman, Dr. Sidney Wolfe, would find his card tossed from many a press Rolodex.

Of course this is America in the 1990s, so none of this happened. The lawyers and Public Citizen simply denied everything; Dr. Kessler dodged; Miss Chung's producers had long since moved on to other projects. Studies or no studies, some juries -- enough to keep the game highly profitable -- go right on awarding damages; one in Nevada awarded $ 14 million.

As executive editor of the nation's leading medical journal, the New England Journal of Medicine, Dr. Marcia Angell published the pioneering Mayo Clinic study finding no link to disease. "Almost immediately," she relates, "I received phone calls from reporters who had spoken with plaintiffs' attorneys eager to discredit the Mayo Clinic, the New England Journal of Medicine, and me personally." Soon the lawyers were aiming punishing subpoenas at her and at Mayo's Dr. Sherine Gabriel.

Bad move. Provoked, Dr. Angell has now written a damning book about the whole implant scandal, on top of the damning journalistic exposes that have been running lately in places like the New York Times, Fortune, Discover, Reason, and the editorial (but not news) side of the Wall Street Journal.

Dr. Angell writes with quiet authority on the medical issues, detailing the lawyers' retreat "bunker by bunker" to claims quite different from those they made at first. She notes that while studies based on health records before the panic indicate zero effect, those drawn from later records are inevitably skewed by the panic itself toward finding the publicized (self-reported) symptoms; lawyers have seized on this effect hoping to keep the debate open. Dr. Angell also disposes of the claim, much bruited about in letters to the editor, that the researchers forgot to check for new patterns of "atypical" auto-immune or connective-tissue illness.

Though Dr. Angell strives for a sober and analytic tone, human drama keeps nosing in. A Texas woman doesn't believe herself ill but says "my family will kill me" if she doesn't file a claim. Dr. Angell blasts "blatantly unethical" members of her own profession who assist the lawyers by running diagnosis mills. One Texas doctor makes $ 2 million a year certifying illness in implant recipients, more than 90 per cent of whom come in as lawyer referrals. A diagnosis in hand "is of great value to your claim," his brochure explains; "the manufacturers (and frankly, jurors) value a woman's case much lower" without one. Other doctors proceed to "unnecessary, costly, and sometimes risky treatments" such as dosing patients with steroids; one woman was put through $ 90,000 of hospitalization and $ 10,000 a month in therapy.

Before the studies came out several manufacturers had agreed to settle for a numbing $ 4 billion, including $ 1 billion in fees for the lawyers. The terms were generous: for example, as Dr. Angell notes, "a woman could claim joint and muscle aches, disturbed sleep, fatigue, and burning pain in the chest, none of which can be objectively verified by her doctor or anyone else, and collect up to $ 700,000." Lawyers surprised even themselves by recruiting hundreds of thousands of women claiming compensable illnesses, and the $ 4-billion deal collapsed as too _low_.

New to the subject of lawsuit reform though she may be, Dr. Angell offers generally excellent proposals, emphasizing rules that would exclude unreliable expert testimony -- "junk science" -- from court proceedings. (Trial lawyers have fought such rules, with help from Harvard's Laurence Tribe and some other academics.) Though silent on loser-pays, she puts her finger on our sore lack of ways to bring lawyers' incentives into line with society's. Other businesses tempted to violate ethical rules, she notes, risk losing customers and getting into trouble with the law. "Plaintiffs' attorneys are not similarly restrained. Their clients gain right along with them, and they are not only acting within the law, but using it as an instrument." Perhaps contingency fees "should be forbidden in this country, as they are elsewhere."

In an arresting passage, Dr. Angell writes of how she views herself as a feminist and "liberal Democrat . . . quick to see the iniquities of large corporations. I disclose my political philosophy here, because it did not serve me well in examining the breast-implant controversy. The facts were simply not as I expected they would be." But "my most fundamental belief is that one should follow the evidence wherever it leads." Whether silicone causes disease "is not ultimately a matter of opinion or legal argument; it is a matter of biological fact."

Capitol Hill bully John Dingell finally ran aground when he began casually defaming the respected liberal scientist David Baltimore. Let's hope this book marks a similar turning point.