pageok
pageok
pageok
Craziest Tort Ruling Yet Issued by a State Supreme Court:

My nominee, not surprsingly, is from New Jersey (which provides several other candidates), Canesi ex rel. Canesi v. Wilson 158 N.J. 490, 730 A.2d 805 (1999). Mother takes Provera during pregnancy. PDR tells physician to warn mother about possibility of congenital defects, including limb reduction defects. Doctor negligently fails to warn. Mother gives birth. Baby has limb reduction defect. Scientific evidence shifts. Evidence accumulates that Provera does not cause limb reductions. PDR drops warning. Mother sues doctor for "wrongful birth." None of mother's experts is willing to testify that there is any relationship between Provera and limb reduction defects. New Jersey Supreme Court nevertheless holds that mother should be able to recover the costs of raising her baby, because she likely would have aborted the baby had she been informed of the risks from Provera.

The majority claims that it would not approve the award of damages to a mother not apprised of a risk "completely unrelated" to the damage suffered by her baby, but they never explain why. If a mother can claim damages for not being warned of a limb defect not in fact caused by Provera, simply because other congenital defects are caused by Provera, why shouldn't the mother be able to claim damages for, say, not being warned about a genetic risk of Tay Sachs when her baby was born with Spina Bifada? In either case, the mother might have aborted the baby if she had been informed of the risk, and in either case, the harm was ultimately not related to the risk not warned against. The majority and the concurrence suggest that the risk of limb defects from Provera is "not proven" not "nonexistent," but they provide no evidence that disputes the dissent's contention that Provera does not cause limb defects.

Justice Pollock, dissenting, sums things up well: "Under the majority opinion, the parents of a child born with congenital defects may maintain a wrongful birth action against physicians who failed to warn the mother of the potential adverse effects of a drug that did not cause the defects. The import of the holding is that the parents need not prove that the drug was the proximate cause of the birth defects that give rise to the action. All the mother need prove is that she would have aborted the fetus if apprised of potential risks, even if the risks never materialized."

I'm currently writing an article responding to a piece that actually praises Canesi as a model decision.

Fr. Bill (mail):
I'm an opponent of abortion, and so I hate the whole category of "wrongful birth" suits morally and legally.

Nevertheless, I think that this case, while bizarre in its facts, is not so obviously wrongly decided. Imagine that the suit had been brought and decided before it was known that Provera was not the cause, but after.

If we learned after such a trial that Provera was not the cause, would we think that the doctor had been wrong? So far as he knew at the time, he he should have warned, and he was indeed negligent. The new medical knowledge would not lead such a one to say "whew, I was not negligent after all." The duty of the doctor to warn at some time past is not diminished by newfound knowledge.

And if the tort system is meant in part to get people not to be negligent, then we should not be particularly bothered by this result. This does not cure the proximate cause problem, but the philosophical problems with proximate causality are already legion--what's the serious harm in adding one more? It sort of raises a legal Gettier problem with a time shift element. But perhaps I'm just working too late on a Friday.

At the same time, since I oppose abortion, and am particularly bothered by those which occur to avoid some prediction of likely birth defects, it would be nice to see some lawsuits for wrongful death coming out of this set of facts, namely from people who aborted their children following false warnings about Provera.
6.10.2005 8:13pm
Eric Daniels (mail):
I am not a lawyer, law student, or anything close to an expert on tort law, but I am not sure I follow your logic here, David.

The mother is suing the doctor for something he did not do out of negligence. If he had done it, she would have pursued an alternate course of action. At the time of the negligence, he was in fact obligated to warn about taking the drug while his patient was pregnant. He did not. So, she has a legitimate claim that he failed to perform his duties as required by their relationship (doctor-paitent).

Now, just because the evidence changed does not retro-actively immunize the doctor from his negligence, does it? After all, she cannot go back and decide not to have the baby. It's a done deal. Of course, she has the burden of proving that she would have chosen to abort if given the warning, but that is a matter for the trial isn't it?

I see this as a different case from, say, if she were suing the pharma company that made the drug. Then, yes, I would understand that she would have to show a causal relationship between the drug and the harm inflicted, which it appears she cannot.

Consider this analogy. A person hires a building contractor, who is required by law to disclose that building material X is safe for all purposes except roofs (as determined by some federal safety standards and regulated by the zoning board). Say the material is believed by the zoning board and federal safety people to be vulnerable to collapse in heavy rain. The contractor negligently fails to inform the client that material X should not be used for the roof, and the client goes ahead and has contractor build roof from X. Now, two years down the road, federal study suggests that material X is fine for roofs and is not vulnerable to collapse in heavy rain. Client's roof nevertheless fails in heavy rain two years on. Now, he had at the time of building been considering using sheet metal (say) for his roof. Had he been warned (however erroneously, given the later findings) about material X and roofs, he would never have chosen it for his roof. Now, since it was actual negligence on the part of the contractor to have failed to inform about material X at the time, when he was actually required to warn, does his action not then become in some way causally responsible for the ultimate roof problem. That is, because of his negligence, his client took a course of action that he would not otherwise have taken, and had he taken that course (in the absence of negligence), he would not have incurred the damage in question. (Of course, for this analogy, the client would have to prove that his having used sheet metal in the original instance would have prevented the later damage, even though it was not necessarily because of material X. That is, he has to show that his informed decision (to avoid mat. X) would have saved him the ultimate harm. This may not fit exactly in this analogy, but in the pregnancy case it would be easier to establish--that is, it wasn't a choice of materials with potential failure rates, but a decision to have a baby or not, the latter of which is 100% certain to avoid the ultimate harm since there would be no fetus.)

Is this a fit analogy? I do not think that the doctor is wholly responsible, but his negligence definitely played a part in causing the outcome. When one deals with a medical professional, one has the expectation that his or her advice is competent. If the advice becomes the basis of a decision that one makes, is it not right to say that the advisor bears some professional responsibility for the outcome of the action? Or are professionals somehow exempted from responsibility in these cases, where a client takes action that he or she would not have on the advice of the professional, and thereby incurs a harm? I am not an expert in torts, so I am unsure what the law says about this. It seems, however, that my common sense understanding is that the professional does assume some responsibility for the outcome of his or her advise--after all, they carry liability insurance, they can be negligent in cases where scientific evidence doesn't change, etc. Thus, the mere 20/20 hindsight that is possible in this case does not seem to make a difference. The client acted on medical advice (or lack thereof), and thus the professional is in some way responsible for the harm. Maybe it should be some percentage or something, but it is causally related in my eyes.
6.10.2005 8:15pm
Bob (mail):
Sorry, though this analogy has a bit of logic to it, it does not follow the law. Actual or proximate cause is required in order for any tort claim to stand. If you cannot prove that the negligence was the proximate cause of the injury suffered, then in general you lose.

You cannot bootstrap any theory together to try and draw sympathy from the judge or the jury.

Imagine the case where the car manufacturer failed to warn about wearing seatbelts and the passenger is severely burned during an automobile accident where in fact wearing a seatbelt probably would have left the victim worse off. Actionable claim because the manufacturer failed to warn? I think not!
6.10.2005 8:33pm
Michelle Dulak Thomson (mail):
I really don't see it, Fr. Bill &Eric Daniels. I'm not a lawyer either, but to me this is rather as though someone went on a camping trip, in a park where the staff failed to warn him that there had been sightings of mountain lions in the vicinity; but rather than being mauled by a mountain lion, the man was instead struck by lightning in a freak thunderstorm and badly injured. It turns out afterwards that the mountain-lion reports were a malicious rumor.

Were the staff negligent? Sure. Are they in some sense responsible for the man's injury? Only in the sense that he might have turned around and gone home had he heard about the totally nonexistent mountain lions. But he might also have turned around and gone home if he'd looked at the state of the outhouse behind his cabin, and I doubt that the person who failed to clean it would get as much credit for saving him from the lightning bolt as you want the staffer who didn't mention the mountain lions to take in blame for not saving him from it.
6.10.2005 9:03pm
Dick King:
Eric, the difference between the case before us and your roof hypothetical is that our state of knowledge in preventing roof collapses is a great deal more advanced than our state of knowledge in preventing birth defects. Because roofs very seldom collapse if you follow all of the codes your hypothetical is very unlikely to occur. On the other hand, babies are born with defects all the time even if the mothers take no unsafe drugs.

This seems to me to be a clear case of the doctor being negligent but the damages being $0.

-dk
6.10.2005 9:29pm
Fr. Bill:
Michelle,

Your disanalogy would be more powerful, indeed decisive, if things were as clear in the case at hand as in your example. Two things in particular: (1) that there are no mountain lions--in this case, that Provera was not the cause of the defects; (2) that lightning struck--in this case, that there was an identifiable intervening cause.

But it is precisely in the muddle of this case that the court feels it has dealt sufficiently with the proximate cause problem, and that's why they don't want to let the negligent doctor off with zero damages. As I indicate above, not entirely satisfying, but sufficiently cabined (limited, it appears, to circumstances of similar ambiguity about "medical causation"--the court says that causation is not required, but I imagine if a clear alternative medical cause were present (the "lightning" of your example) the court would have gone another way) so as to allay fears like Prof. Bernstein's and the dissent's. Hardly the first time that tort law was stretched a bit to advance a social goal (in this case, discouraging negligent behavior on the part of doctors) and far from the craziest of tort rulings (though perhaps the "issued by a state supreme court" rather than "allowed to stand" by one makes that a closer call).
6.10.2005 9:38pm
Ted Frank (www):
Eric, there's actually a famous 1899 Pennsylvania tort case with precisely the scenario you suggest, Berry v Sugar Notch Borough. A streetcar was negligently speeding; a passenger was injured when a tree fell onto the streetcar. The passenger sued: if the streetcar hadn't been speeding, it would've been somewhere else when the tree fell, and wouldn't have hit the streetcar. Court holds no liability: the speeding was not the *proximate* cause of the injury, just because of the happenstance of the tree falling.

Similarly, in Central of Georgia Ry. v Price (Ga. 1898), a train scheduling mishap resulted in the plaintiff having to spend the night at a hotel, where the plaintiff was injured by an exploding kerosene lamp. The railroad's negligence was the but-for reason why the plaintiff was in the hotel to be injured, but it was not the proximate cause of the plaintiff's injuries.

So the New Jersey Supreme Court is essentially reading proximate cause out of tort law with this decision, against centuries of precedent. It's part of a larger troubling trend in tort law.
6.10.2005 10:20pm
Paul Allen:
Let us presuppose for a moment that the doctor merely asserted his opinion that there was no limb defect link with Provera.

The PDR past and present ought to be a moot point--that is, unless and until, it is demonstrated that the doctor errored in his personal assessment.

In this case, the doctor's assessment turned out to be correct.

If you want to know what the PDR, go to the library and read it yourself. If you want your doctors opinion (which I hope is based on more than the PDR commentary), then you should ask your doctor.


We're facing a real crisis right now in "advisory warnings" when I pickup a bottle of mouth wash and it says "contact poison control immediately if ingested" I have _NO_ idea whether the situation is actually serious or dramatized as a result of some screwball precedent.

*This is a disaster* and arguably it is attributable to decisions such as the one you mention.
6.10.2005 10:48pm
frank cross (mail):
Ted, those are different cases, because the harm suffered was of an entirely different sort than the risk created by the negligence, a traditional proximate cause requirement. In this case, the harm suffered was of the same general sort as the risk created. I think the decision is wrong, but it is not crazy and it its not a radical departure from precedent. Indeed, a decision the other way, which I favor, might well have been a departure from precedent.

In securities law, a plaintiff must prove loss causation. I.e., that the drop in value of the securities was due to the particular fraud that the plaintiff alleged (regardless of actual transaction causation from the fraud). That is the question this common law case raises. However, tort law in many states does not have this concept of loss causation that would allow the case to be dismissed. This would have been a good case for the court to establish that requirement, but it might well have been a departure from the state precedent.
6.10.2005 11:04pm
Michelle Dulak Thomson (mail):
frank cross,

My goodness. So it might make a serious difference whether the harm the negligence would hypothetically have caused and the harm that actually happened were of the same or different kinds?

I was just concocting a hypothetical in which it was actually my illegal pet scorpion that poisoned the neighbor's toddler, while the neighbor-on-the-other-side's equally-illegal pet poisonous snake was blamed. But never mind ;-)

Fr. Bill, thanks for the clarification. I wouldn't think you'd need specific causes ("lightning") for birth defects that happen fairly frequently anyway, but the fact that auto-immune disorders happen fairly frequently didn't save Dow over breast implants, either. As for the social benefits of policing medical advice in this way, I'll be extremely curious to see if anything comes of the last graf of your first post. Something ought to.
6.10.2005 11:33pm
SupremacyClaus (mail):
Little difference between this case and the majority of torts cases. No merit. The plaintiff attorney has virtual immunity from accountability to adverse third parties. The judge has absolute immunity. They feel free and safe to pillage our beleaguered economy.

All immunities have been self-dealt by the lawyer. This is a giant land piracy enterprise. This conflict of interest criminality dwarfs Enron and all other corporate scandals combined. The take from this land piracy dwarfs all organized crime.

I propose the executive branch carry out its oath to the Constitution. They have to arrest judges, indict them if they accepted campaign contributions from lawyers, and incarcerate them in Federal prison for long prison stretches.

Lawyers must be excluded from the bench, the legislature, and all policy position in the executive branch. The conflict of interest is insurmountable and criminal self-dealing, per se.
6.10.2005 11:58pm
Eric Daniels (mail):
Thanks to all for your responses.

Let me say that I did not mean to suggest that the decision was necessarily correct. I was just attempting to follow the logic of David's reasoning, and that of the opinions of the case.

In general, I think that tort law probably has been harmed here. I posed my hypo more as a case of clarifying exactly what the law requires and what it does not. The proximate cause issue still seems hazy to me. Obviously, the Provera was not the direct cause--that much is clear. Still, does the law always rule out the "but-for" type of reasoning I used in my analogy? I know roof collapses can be pretty well accounted for compared to birth defects, but leaving aside the state of knowledge about the potential outcome, is there not some kind of interaction between a professional and a client that implies that the client's action is, well, actionable if the professional is negligent?

I am inclined to say no, and caveat emptor and so on, but I am more curious about what the law says. Is there never a "but-for" situation that can be a tortious harm?

Say, for example, "Hey, Mr. Birdge-Inspector, is this bridge safe?" "Yes, it is" Right then, the bridge collapses and questioner's leg is broken. Now, bridges can collapse for all kinds of reasons (say, a lightening strike), and I doubt that bridge inspector could be responsible in any case for always foreseeing all of them. Indeed, walking on bridges is, depending on the bridge and the context, an inherently risky venture. That is, if people could sue for every "but-for" then yes, it would get quite ridiculous--I would not be here in this car wreck but for the fact my mother gave birth to me on a Tuesday instead of a Thursday (sure, a long chain of causation, but by no means foreseeable by poor old Mom). But, are there no but-fors that are also proximate causes?

I guess that is where I still have some thinking to do. What qualifies as a but-for in tort law, and when does it become a proximate cause? No need to give me a whole lesson in torts--I'm more than happy to have readings suggested to me.
6.11.2005 12:12am
frank cross (mail):
Eric, proximate cause is notoriously mushy. But there are some standards that the courts use. For example, was the injury reasonably near in time and space to the negligent action? And was the injury of the same type as that risked by the negligent action? A common thread is foreseeability, was this injury a foreseeable consequence of the action. Was there some unforeseeable intervening event, like a criminal act, that makes the injury too remote from the negligent act?

This is a goofy case that seems to satisfy the general legal criteria for proximate cause, yet logically shouldn't be considered proximate cause. It is cases like these from which new doctrines should evolve, but I think the court here played it cautiously.
6.11.2005 12:20am
Kris (mail) (www):
If I may add my two cents: simply because the problems with proximate cause are legion doesn't mean we have to condone yet another permutation of the current incoherency. The loss at issue is the birth of a child with limb reduction, not merely the birth alone. The failure to warn of a non-existant side effect concededly may have caused the child to have been born when it otherwise would not have been, but it did not proximately or otherwise cause the child to be born with a limb reduction. To make the causal connection, there needs to be some link between the reduction and the harm alleged, in this case the drug. There may have been negligence on the part of the physician, but the negligence is simply irrelevant to the harm alleged. Instead of recognizing this, the court broadens the definition of the harm into the birth alone, and so finds recovery. The logical extension of this, though, would allow a mother to sue for wrongful birth even absent a birth defect. I mean, she's got to bear the expense of raising the kid. If you'd warned her about the side effects of the drug, she'd have aborted, right? But for your admitted negligence in failing to warn her, she wouldn't have all this college tuition to save for. Or am I missing something?
6.11.2005 12:25am
SupremacyClaus (mail):
The central doctrine of torts is foreseeability, from 1200 AD, when people were stupid enough to buy that medieval swill. You cannot predict the future. You cannot reasonably predict the future. You cannot predict the future at all. That is why they are called accidents. This is a scam, so cons can shop for the next Gulfstream Jet.

Every penny stolen comes from the care of other patients. The cost of this theft is multiplied by an order of magnitude in generating defensive medicine. That little bill could pay for top of the line insurance for 20 million uninsured families.

I am not addressing the lawyers here. I am addressing the victims of this scam, patients deprived of care. The criminals are in charge of 3 branches of government, have Airborne divisions to enforce land piracy. There is no legal recourse. The victims have to decide what happens.
6.11.2005 1:14am
PG (mail) (www):
The dissent recognizes that a wrongful birth action based on the doctor's failure to warn requires only the occurrence of the unwarned risk.

No, the loss at issue -- if you read the decision -- is the loss of the autonomy to make the decision to abort the pregnancy so there would have been no dead twin fetus and no disabled child. The court says, "The Canesis presented insufficient proof of a causal relationship between Provera and the defect suffered by Brandon. That failure of proof also supports summary judgment in favor of Drs. Wilson and Loewe to the extent the Canesis sought damages in the nature of a claim for wrongful life based on their allegation that the drug caused Brandon's defect."

Without taking a position on the merits, isn't it bizarre to have 'a wrongful life cause of action "brought by or on behalf of" a child with a defect when negligent medical treatment deprived his parents of the option to terminate the pregnancy and avoid his birth' (see fn 2 of case)? I can understand why the parents would sue on their own to recoup the extra costs of caring for a disabled child, but for the child to say that he ought to have been aborted and wants to be compensated on that basis seems paradoxical.
6.11.2005 1:30am
Dan Simon (www):
I'm amazed that anybody is shocked at this ruling, and even more amazed that some are actually taking it seriously, and discussing it as if it were a genuine attempt to apply the law. What's next--treating Supreme Court rulings as if they were sincere, apolitical attempts to interpret the Constitution?

There are many ways for a society to deal with the tragic events that befall people from time to time. In some places, government-run institutions take care of them; in others, private insurance reimburses them; in still others, charitable or religious organizations take on most of the burden. America has the tort system.

It's totally arbitrary, ludicrously unfair, hideously expensive, and more often than not corrupt to the core. But Americans have always had the power, through the democratic process, to substitute something less insane, and they have consistently chosen not to. One can only conclude that for some inexplicable reason they actually prefer it.
6.11.2005 2:10am
SKlein:
I know these are comments, not a law review article, but I wonder what precedents the commenters who find that think this isn't a departure from standard notions of proximate causation have in mind. If the breach is failure to warn, the injury is "loss of autonomy", the damage is being burdened with an unwanted child, and there need be no causal connection between the risk not warned against and the circumstances that make the child unwanted, why does there need to be anything "wrong" with the child at all? Isn't "breeders remorse" alone sufficient?
6.11.2005 8:53am
Ryan (mail) (www):
The issue is whether Provera doctored evidence or the research methodologies used to determine of their drug has a direct association with increased rates of congenital birth defects. Furthermore, this drug may cause devolomental abnormalities inutero which may manifest themselves in a number of ways, not excluding limb deformity.
6.11.2005 9:28am
Fishbane:
Um, SupremacyClaus, I understand that you dislike torts, and have strong feelings about proximate cause, etc., and equally strong opinions about what should be done. Can you please explain what you're talking about regarding 'land piracy'? I suspect that's a short-hand notation for a bundle of concepts, but it is a notation that I've not encountered. Thanks.
6.11.2005 1:40pm
Toby:
Some of the comments suggest that it would be safest (from a legalstandpoint) for all Doctors to always advise every patient at every visit "You know, it would be safer to abort". Else, anything that happens to mother or child would be a harm that might have been prevented if only the mother had acted on the physicians advice.
6.11.2005 1:41pm
StratPlanner:
Although I have tremendous issues with the conduct of the Plaintiff's bar, I don't think of them as land pirates. A better description would be robber barons. They are the like the elite caste in medieval times that were given the power to do great things and maintain justice and instead pillaged their fiefdoms. Some plaintiff attorneys do seem to meet the requirements of their oaths and the obligations of the power the state grants them... too many simply abuse the system and pillage and too many companies are now bankrupt and their employees in other jobs for torts not committed (Breast implants etc.)

If there is a legislative backlash that severely limits recovery, is it because the Plaintiff's bar abused their privilege or that the court system did not exercise their responsibility to reel in the excesses?
6.11.2005 2:40pm
William Spieler (mail) (www):
SKlein: Indeed. It seems like under the court's theory (without having read the decision), any mother whose doctor negligently failed to inform the mother of all health concerns that could influence her to choose to terminate the abortion in face of the risk of some harm would have a claim of wrongful birth against the doctor even if the baby were born without defect.

I wonder if this could be extended to other fields. Imagine a husband and wife. The wife gets pregnant and gives birth to a baby. Soon after, the husband leaves the wife. Could the (now ex-) wife sue not only for child support but also for wrongful birth?
6.11.2005 2:42pm
SupremacyClaus (mail):
Fish: Feelings of resentment are aimed at the lawyer, and especially at the Supreme Court. Yes, victims of tort lawsuit abuse have a lot to complain about. However, violent crime victims have the most to complain about. The lawyer is looking out only for itself, and is doing next to nothing to protect the public.

Back to torts. Lawyers on the bench are paid by lawyers on both sides for campaign expenses. They have Airborne Divisions to enforce their robbin' and lootin'. Cases are brought before them involving metaphysical requirements, such a predicting the future ("reasonably," yet), and mind reading. One's behavior must conform to the standards of a fictional character, most similar to Mickey Mouse in personality. Any juror attempt to think of how some reasonable but real person they know would have acted is automatic grounds for reversible error. From these metaphysical, fictional concepts, they take by force, $bils from defendants.

The latter are not even upset, after 1000's of lawsuits directed at their corporations. The defense pretends to advocate, but must somehow always have a trial. Proposals to intimidate or in any way scare the Gulstream fleet flying plaintiff side with the slightest sliver of a hint of accountability is shocking and out of the question for them.

Insurance companies and corporate defendants don't care, because it is not their money. They are just pipelines. They raise their prices, their premiums. Higher prices have higher profit margins. They do OK. Doctors get back 3 times what they lose in medmal by practicing bogus, waste of time, defensive medicine.

The sole land piracy victim is the public from whom every penny must come. If the public refuses to cough up the loot, then access to essential services and products are cut off, as with flu shots, as with the stealthy litigation tax in product and service.

The law is a chattel, with every jot and dot paid for by the public. It has been converted by all these land pirates. At some point, the public gets it. It seeks to retrieve its converted chattel in self-help, and kicks all their asses.
6.11.2005 4:48pm
James B. Shearer:
The mother asked about risks to the fetus from the drug. The doctors told her not to worry although at the time it was believed that the drug could cause limb reduction defects. The baby was born with a limb reduction defect. Under the circumstances I think the burden of proof should be on the doctors to show that the drug did not cause the defect and not on the mother to show that the drug did cause the defect. This take is intermediate between the majority opinion and dissent.

I also think that if this is the craziest tort opinion ever by a state supreme court then the legal system must be doing a much better job on tort cases than I would have suspected.
6.12.2005 12:00am
phillymikec73e (mail) (www):
Well, just great! In my medical school malpractice class I was taught that you needed three things to lose.
1. negligence
2. proximate cause and
3. actual damage.

Now according to this case by the NJ supreme court step 2 is gone and its not neccessary to prove that what you did actually caused the harm. It just has to be vaguely related to what you did. I'm almost more mad at my school for wasting my time learning this legal theory crap when clearly malpractice judgments have absolutely nothing to do with it. For crying out loud if the supreme court doesn't even care about proximate cause, what laws would an ordinary jury care about. I'll tell you. None at all. [extreme bitterness]

Phillymikec73e
6.12.2005 2:49am
SupremacyClaus (mail):
Yo, Philly. Don't be like me.

You are arguing with land buccaneers. Tell your medical friends to check this blog. They way they talk, their Medieval, High Scholaticism, supernatural sickthink, in violation of the First Amendment Establishment Clause, their self-serving lies, their obliviousness to the self-evident, their relaxed self-satisfaction, their superciliousness. Today, only the Chapelle Show is funnier than this blog.

If a lawyer was giving the class, he forgot something in that list. There must be an injury. Where is the proof limb deformity is an injury? The pirates have no problem with supernatural knowledge. They can divine the process of fetal development. They are better than ultrasound. If you get an equivocal results on a test of a patient in your OB rotation, take the patient to the Appellate Court in Jersey. Using their supernatural abilities, they will resolve your OB dilemna. I already know their advice. Abortion.

The core doctrine of torts is foreseeability. The pirates also read minds, forecast the future, and judge others by the standards of a fictional character. It is not insanity. It is slick, lucrative thievin'. I will not insult Gypsy fortune tellers by comparing them to justices of appellate courts. I apologize in advance. I meant no offense, if any Tsiganis are reading. The Gypsies have not dealt themselves total legal immunity and a safe harbor from the slightest sliver of a hint of any accountability. The pirates are airtight in their self-dealt immunity. The great benefits of torts, deterrence, product safety, justice, compensating the vast numbers of their victims? No. Not for them. One of the other benefits of torts they forgot? It reduces "self-help." That is lawyer gibberish for violence. The airtight immunities provide the intellectual justification for self-help, the dumbasses do not understand. See the immunites and privileges of George III, and the result in 1776. I forgot. Lawyer education erases high school.

Also missing from the list, proof of "legal causation" after foreseeable proximate causation. That means it must be shown nothing else caused the alleged injury. What's in Jersey? A vast, underground lake of toxic chemicals. Did the mom have a drink of water, smoke, eat products with preservatives, have a virus infection, have stress, eat a veggie with pesticide residue, get exposed to a nematode, have a family background of birth defects in the past 10 generations?

No? The court has figured out the legal cause of limb deformity, bad advice, that turned out to be good. The plaintiff would have been dead, and thrown in a trash can if the advice had been wrong, but legally correct.

Every penny going to maintain the Gulfstream fleets of the land buccaneers, to buy the plaintiffs what is already provided in health care, every penny comes from the care of poor people. Docs are getting the money on the back end. That is why the organized medical profession chooses to not really go after the land pirates. They like them. Medmal cost them a dollar? They make 3 dollars from defensive medicine. All that "care" the verdict must pay for goes to ... ? They can charge their full fees to the settlement account. They love it.

At some point, the public wakes up to this conflict of interest criminality, dwarfing Enron in boldness and scope, with a take bigger than organized crime.
6.12.2005 10:45am
phillymikec73e (mail) (www):
THe blog link didn't work.
6.12.2005 1:12pm
Kevin:
I agree with Dan Simon and am amazed that people argue about these cases. Do people really believe that these cases are decided based upon the "law?" A perceived "injustice" was done, some judge thought it needed to be remedied, and something as small as the law wasnt getting in the way.
6.13.2005 12:18pm