Law prevents older children from suing over parents' deaths

By JANE MUSGRAVE

Palm Beach Post Staff Writer

Sunday, May 20, 2007

Julie McPherson figured it would be easy to punish those she believes caused her mother's death.

Hire a lawyer. Sue. Little did she know that her age (42) would scare off attorneys who initially indicated an interest in taking her case.

According to Florida law, only spouses or children under 25 can file a lawsuit seeking damages for a wrongful death caused by medical malpractice.

Because McPherson blames a home health care agency and a nurse for her mother's death, she and her siblings, ages 52 and 54, were too old to file a lawsuit challenging the circumstances surrounding the 2005 death of their 74-year-old mother, Camilla Combs.

"I couldn't believe I was being turned down," the Wellington woman said. "Someone killed my mother and you're turning us down? I couldn't believe this law existed. It made me sick."

Trial attorneys throughout the state share McPherson's view. Since it was enacted in 1990, their state organization, the Florida Justice Association, has sought to fight it in court and in Tallahassee to no avail.

It was upheld by the Florida Supreme Court in 2000 when five justices ruled it passed constitutional muster. The restriction, they wrote, "bears a rational relationship to the legitimate state interests of limiting increases in medical insurance costs."

Justice Barbara Pariente wrote a stinging dissent, saying the restriction was unjustified. She quoted a lower court judge who wrote that the restriction placed on adult children was akin to limiting the rights of "survivors with blue eyes or - heaven forfend! ñ of less than a certain height."

Powerless to persuade the court majority, Pariente asked the legislature to reconsider the law and give adult children who lose a parent to medical malpractice the same right to file lawsuits as those who lose loved ones in other ways, such as being killed by a drunk driver.

The legislature ignored her request.

And few expect that will change.

"It's not a groundswell issue," said Phil Burlington, a local trial attorney. "The Florida Medical Association is still strong. The insurance companies are still strong."

He added, sarcastically, "The only ones who care about it are the greedy trial attorneys."

Not surprisingly, attorneys have figured out a way to get around the restriction. But it's not an easy path.

To pursue a medical malpractice claim on behalf of adult children, they have to first prove the conduct was so outrageous that it goes beyond all bounds of decency.

"It's a high bar," Burlington acknowledged.

Greg Rice, the Lake Worth celebrity dwarf, filed a lawsuit last year against Good Samaritan Medical Center over the 2005 death of his 53-year-old twin, who died of a heart attack while being prepped for surgery. While a judge initially ruled that the conduct Rice alleged was outrageous, the lawsuit was withdrawn last month after Good Samaritan challenged the veracity of Rice's claims.

Attorney Ted Babbitt used the outrageous conduct argument successfully in a lawsuit he filed in 2003 on behalf of prominent West Palm Beach attorney F. Malcolm Cunningham and his siblings after their mother died during routine eye surgery. The lawsuit was ultimately settled out of court for an undisclosed amount.

McPherson and her siblings finally found an attorney willing to take the same tack against health care agencies High Tech Home Health and Private Care and nurse Lorri Ann DePasqua.

Tom Larkin, who owned the health care agencies that lost their licenses, said he believes the suit will be thrown out.

Attorney Craig Goldenfarb is equally convinced he has a good case

source : www.burlingtonfreepress.com

State: Doctors forged medical records to hide malpractice

Medical records were forged and evidence falsified in a medical file by at least one of three pediatricians at the Bnei Zion Medical Center in Haifa, northern district prosecutors said on Sunday. The three stand accused by the state of medical malpractice.

In an urgent communique to Judge Mordechai Argaman of the Krayot Magistrate's Court in Kiryat Ata, the prosecution said the falsified evidence created the impression that proper care had been given to Ziv Shriki, now 8 years old.

Shriki became brain-damaged allegedly after being
ad

administered an overdose of medication and then not being properly treated.

The prosecution said at least some of the doctors knowingly submitted this evidence to the court. The police were informed of these suspicions on Sunday, and began questioning staff at Bnei Zion's records department.

Ziv Shriki was treated in Bnei Zion's cancer ward. She recovered from cancer, but in June 2001 she was diagnosed with irreversible brain damage due to alleged failures in the medical and nursing care she received.

According to the indictment, a nurse gave Shriki 100 times the dosage she was supposed to have received. After this incident, the three doctors involved behaved in a seriously negligent manner.

The indictment was issued by attorney Bassem Kundelfat, the northern district deputy prosecutor, against Professor Michael Yaffe, then-head of the Bnei Zion pediatrics department (now retired); Dr. Dina Atias, head of the pediatric hematology and hematology-oncology
department; Dr. Yulia Nobikov, then-pediatric resident at Bnei Zion, who now works for a health maintenance organization; and nurse Lilia Oskatz, who admitted to the infractions and was sentenced to six months in prison commuted to community service, and a monetary fine.

The doctors are charged with ignoring signs of deterioration in Shriki's condition. Yaffe is also charged with "showing indifference" to Shriki's worsening condition, and with not examining Shriki thoroughly, even though he passed through her ward on rounds.

In March, Yaffe's attorney Nimrod Lipsker asked Gila Inbar, a pediatric nurse at Bnei Zion who witnessed Shriki's treatment, about Yaffe's examination of Shriki on June 25, 2001. Inbar was also shown a document from the child's medical file allegedly written that night by the duty physician, Nobikov.

According to the document, Shriki's condition was normal; Yaffe examined the child and reported by phone to Atias.

The defense submitted the document as supporting evidence to show Shriki received proper medical follow-up and Yaffe had personally checked her.

Then, in April, at the request of the defense, the court ordered Shriki's original medical file from the hospital, which the prosecution received on Thursday. The file contains Nobikov's notes as they were presented to the court.

However, the prosecution discovered in Bnei Zion's records department another photocopy of Shriki's file, apparently made the day after the incident. This file contains the same page, but lacks Nobikov's alleged real-time notation on Shriki's normal condition and her examination by Yaffe.

"In comparing the documents, it appears the medical notation was allegedly forged by the accused (or some of them), who added details ... to make it appear that the notation was made in real time ... of examinations ostensibly carried out on the girl and instructions for
treatment ... this interpretation is being sent for police investigation on suspicion of forgery by a public servant, falsifying evidence and knowingly making use of false evidence to mislead the judicial authority," the judge's report reads.

Attorney Doron Caspi, representing Ziv's parents, Ilan and Ayala Shriki, said the family had rejected Yaffe's claims all along. "Having been present at their child's hospital bedside the whole time, they said all along that Prof. Yaffe's claim that he examined her in real time is not true. The suspicions now revealed support their claims and show how far the medical staff is willing to go to cover up its negligence," he said.

The doctors denied the allegations on Sunday. "Instead of properly conducting the trial," Lipsker said, "the prosecution prefers to spread baseless accusations." Lipsker also said the allegation that the records were falsified is illogical since it was the defense that had requested the original records.

Attorney Ofer Doron, representing Nobikov, said, "The medical record as it was presented in court accurately reflects the girl's treatment, and when a note was added after the events, this was specifically stated."

Attorney Erna Lin, representing Atias, declined to comment, saying the issue was under police investigation.
source : www.haaretz.com

United States: Connecticut Attorney General Investigating Possible Anticompetitive Impact of Practice Guidelines

16 May 2007
Article by Judith L. Harris

Medical societies and associations of health professionals routinely adopt and disseminate practice guidelines, opine in position papers, provide expertise, and engage in advocacy before policymakers and, increasingly, before third-party payors on issues of concern to their membership. While these activities are generally designed to promote the highest quality patient care, they often, too, are in the best interest, sometimes the best pecuniary interest, of their members, and sometimes also have the effect of excluding certain products and services from the market.

The recent announcement by Richard Blumenthal, Connecticut’s Attorney General, of an investigation into the potentially anticompetitive impact of practice guidelines for the treatment of Lyme Disease—issued this past fall by the Infectious Diseases Society of America ("IDSA" or "Society")—has some in the scientific community crying "foul." At a minimum, however, Mr. Blumenthal’s investigation should serve as a caution to professional groups contemplating action that could adversely affect competing practitioners or the availability of treatment options.

Because of the very character of professional associations and learned societies, comprised as they are of individual competitors, and because of the nature of their activities and the reach of their influence, such groups and their members must be highly attentive to the antitrust laws. While some of their actions, such as "lobbying" governmental entities or legislatures on issues of collective concern, are generally immune from antitrust scrutiny, not all the activities of professional associations and learned societies are so protected.

It has long been recognized that by petitioning the government for certain forms of relief, competitors might be able to exclude others from commercial opportunities and thereby cause significant harm to competition. Notwithstanding such potentially anticompetitive results, however, courts have conferred antitrust immunity upon a wide range of activities designed to influence governmental bodies, as long as those activities do not fall within a "sham" exception. This exemption from the antitrust laws for legitimate efforts to influence legislative, administrative or judicial processes is known as the Noerr-Pennington doctrine, so named for the two U.S. Supreme Court cases in which the immunity was originally articulated. See, Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965). See also California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972).

However, many actions by professional associations, including those that tend to have the effect of excluding competitors or groups of competitors, are subject to antitrust scrutiny. As a general proposition, an association may be liable under Section 1 of the Sherman Act, 15 U.S.C. § 1, for engaging in exclusionary conduct intended to harm providers of products or services that pose a potential competitive threat to its members. Indeed, courts have frequently found professional associations or societies liable for unreasonable exclusionary behavior, including behavior growing out of the adoption of standards, practice guidelines and the like. See, e.g., American Society of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556 (1982); Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656 (1961).

Conduct has generally been deemed "exclusionary" not only when the exclusion is literal—such as when an authoritative standard-setting body uses a biased process to declare a product or service to be non-compliant with its standards—but also, for example, when an association of competitors engages in a coordinated campaign of disparagement intended to limit market access by others. In order to evaluate the legality of such conduct by a learned or professional society or association, courts generally apply a "rule of reason," meaning that joint conduct is deemed unlawful only where it is found to have resulted in an "unreasonable restraint on competition." Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49 (1977); see also, FTC v. Indiana Federation of Dentists, 476 U.S. 447, 458 (1986); Wilk v. American Medical Ass’n, 895 F. 2d 352, 359 (7th Cir. 1990).

In order to prevail in a rule of reason analysis, it must first be shown that a defendant possesses power in the relevant market and, then, that the actual or potential negative impact of the challenged conduct on competition in that market outweighs any putative benefits to consumers (or patients). Associations are typically treated as possessing market power if, either directly or through their members, they comprise a substantial portion of competitors in the relevant market or otherwise can be shown to wield substantial influence over competition in that market.

Claims have been brought with some regularity against medical associations and physician groups based also on unreasonable or unfounded disparagement of potentially competitive products or service providers. See, e.g., Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 326-27 (1991) (antitrust claim properly stated against ophthalmologists who sought to prevent competition from a practitioner of a lower-cost surgical procedure by disseminating an unfair and biased peer review report); Wilk v. American Medical Ass’n, 895 F. 2d 352, 356–57 (7th Cir. 1990) (affirming an antitrust judgment against the AMA based on disparaging and unfounded characterization of chiropractors as "an unscientific cult" and other conduct intended to "eliminate chiropractic" competition), but see, Schachar v. American Academy of Ophthalmology, 870 F. 2d 397 (7th Cir. 1989) (rejecting the claim of a group of ophthalmologists performing radial keratotomy surgeries that sued the American Academy of Ophthalmology for labeling the procedure "experimental.").

Lately, more and more third-party payors have been relying on association practice guidelines and "expert" position papers describing treatment options and medical devices as "untested," "unproven," "experimental," and the like to deny coverage for a wide array of treatment options, often with devastating effects on patients. This appears to be the concern driving the Connecticut investigation. Further, Mr. Blumenthal apparently has not ruled out extending his office’s inquiry to insurers which deny coverage for chronic Lyme disease,- citing the IDSA guidelines in their coverage statements.

According to a statement by Mr. Blumenthal, the ISDA, through its overly strict recommendations, might harm Lyme disease patients by effectively limiting their insurance coverage. "These rules diminish the options available to doctors and their patients in ways that can sanction insurance company decisions to deny coverage, so they have an economic impact that could be very serious," Mr. Blumenthal said in an article that appeared in the Boston Globe in late December ("Connecticut disputes doctors’ Lyme disease guidelines," by Associated Press, Dec. 31, 2006.)

The scientific community is alarmed. A recent article in The Scientist describes Mr. Blumenthal’s investigation as "an unprecedented move that raises questions about the government’s role in scientific consensus." ("State official subpoenas infectious disease group," published Feb. 7, 2007). The Scientist quotes IDSA’s lawyer as saying that, "If we have to worry each time [we craft medical guidelines] that maybe we will be getting subpoenaed and to go through the time, effort, and expense of responding, then we might not take controversial but appropriate positions."

The ISDA, not surprisingly, sticks by the guidelines it enacted in October, which, it contends, were carefully researched and are sound. The Society’s website, when last visited April 19, 2007, prominently posted a message from its President, Dr. Henry Masur, in which he described ISDA Practice Guidelines as "valuable, credible, flexible," indeed, "one of the most important activities" of the Society. In his message, Dr. Masur noted that, last year alone, more than 150,000 visitors downloaded the Society’s guidelines from the IDSA website. Dr. Masur then went on to describe in some detail how IDSA ensures the quality of its guidelines…an action that he apparently felt compelled to take "(g)iven [the guidelines’] importance, and the recent attention some—particularly the new guidelines on Lyme disease—have received in the media."

At last check, Connecticut’s investigation remains open; its outcome uncertain. Mr. Blumenthal’s office is in the process of reviewing documents and answers to interrogatories provided by the Society in response to an administrative subpoena issued to the IDSA in November. Whatever the resolution of this particular investigation, the matter should serve to reinforce how carefully associations must tread when their actions might adversely impact competition and, thus, might implicate the antitrust laws.

This article is presented for informational purposes only and is not intended to constitute legal advice.
source : www.mondaq.com

Chromium in drinking water causes cancer: U.S. agency

By Jill Serjeant
Reuters
Wednesday, May 16, 2007; 8:18 PM

LOS ANGELES (Reuters) - A type of chromium highlighted in the film "Erin Brockovich" causes cancer in lab animals when they drink it in water, and it could be harmful to people, the U.S. National Institutes of Health said on Wednesday.

Hexavalent chromium, also called chromium 6, already has been shown to cause lung cancer when inhaled and is controlled by the Environmental Protection Agency as well as by states.
It is best known as the contaminant exposed by campaigner Erin Brockovich, whose battle against a polluter was dramatized in the May 2000 movie of the same name.

"I am relieved and pleased and sorry because there are a lot of people who have ingested chromium 6," said Brockovich, who still works in Los Angeles as a legal consultant on environmental issues.

"It is high time but it is no surprise to me," she told Reuters. "This is a chemical that there have been ongoing arguments about, and now a third party has concluded that it can cause cancer by ingestion."

Environmentalists, who have been fighting for decades for tighter limits on how much chromium can be present in drinking water, said the findings offered a basis for such restrictions.

High doses of chromium 6 given to rats and mice in drinking water caused malignant tumors, the two-year study by the NIH's National Toxicology Program or NTP found.

"In the rats we saw oral cavity tumors," said Michelle Hooth, who worked on the report. "In the mice we saw tumors in the small intestine."

Hooth said the animals were given much higher doses of chromium than people would ever encounter in drinking water, which is the usual practice in testing chemicals for cancer-causing potential.

INDUSTRIAL USES

Hexavalent chromium compounds are often used in electroplating, leather tanning and textile manufacturing and have been found in some drinking water sources, the NTP said.

Brockovich started investigations in 1991 into exposure to chromium 6 in drinking water in the town of Hinkley, California. In 1996, she and lawyer Ed Masry won a landmark $333 million settlement with Pacific Gas and Electricity over claims of toxic exposure.

Brockovich said on Wednesday she had settled another lawsuit with PG&E involving the contaminant last year. But she said there were potentially dozens more toxic sites around the country.

The lowest doses given to rats and mice in the study were 10 times higher than what humans could consume from the most highly contaminated water sources identified at Hinkley, the researchers said.

From 1987 to 1993, according to the Toxics Release Inventory, chromium compound releases to land and water in various U.S. states totaled nearly 200 million pounds.

"The chromium industry has been trying to convince regulators for years that hexavalent chromium is actually quite safe when consumed via drinking water, even though it has long been known to be carcinogenic when inhaled," said Renee Sharp, a senior analyst at the Environmental Working Group.

"NTP's findings will finally allow state and federal regulators to set drinking water standards based on up-to-date sound science, rather than having to rely on old, inadequate, and/or biased studies often funded by chromium polluters," added Sharp, whose group has lobbied for tighter regulation of chromium and other chemicals.

(Additional reporting by Maggie Fox in Washington)

source : www.washingtonpost.com

State high court declines to review previous ruling

By Terri Somers
UNION-TRIBUNE STAFF WRITER

May 17, 2007

The state Supreme Court yesterday delivered a final, fatal blow to the legal challenges that have prevented California from issuing bonds to fund stem cell research since 2005.

The state's high court declined to review a lower court ruling that upheld the constitutionality of the California Institute for Regenerative Medicine, created when 59 percent of voters approved a $3 billion ballot measure in November 2004.
“The California Institute for Regenerative Medicine has lift-off today,” said Robert Klein, a lawyer and patient advocate who wrote the initiative known as Proposition 71 and later was chosen to lead the institute's governing board.

Proposition 71 was promoted as an avenue for California taxpayers to circumvent federal funding restrictions on human embryonic stem cell research, which proponents say has the potential to lead to therapies for some of the world's most devastating diseases.

The research is controversial because it destroys human embryos. Taxpayer advocacy groups with ties to individuals who oppose abortion had challenged the constitutionality of the initiative, and the stem cell institute it created, because the money it would be distributing was not under the direct control of state officials.

Since that argument was centered on state issues, lawyers on both sides agreed yesterday that it could not be pursued in federal courts. The state treasurer's office therefore can begin to issue the bonds to fund the stem cell institute.

“The taxpayers are the real losers here,” said Dana Cody, a lawyer with Life Legal Defense Fund who represented the People's Advocate, one of the initiative's challengers. Also challenging the initiative were the California Family Bioethics Council and the National Tax Limitation Foundation.

The court's decision allows $3 billion in taxpayer money “to go down the rabbit hole,” Cody said. “But voters voted for it, so what can I say?”

Cody said there could be other issues on which to base future legal challenges. “My client will probably continue to look at what is going on as far as (the institute's) spending,” she said. “Its first audit was just completed not too long ago, and it was pretty questionable.”

Gov. Arnold Schwarzenegger said yesterday the will of the voters had finally prevailed.

“(The court's) decision reaffirms voters' will to keep California on the forefront of embryonic stem cell research,” he said. “California's leadership gives the best promise of finding a cure for deadly and debilitating diseases.”

Under Proposition 71, the state treasurer's office can be authorized to sell up to $350 million in bonds annually to fund the stem cell institute. If the institute does not use all that funding in a given year, what is left can be rolled over to the following year.

Last year, the state authorized the treasurer's office to sell $250 million in bonds for the institute as soon as the legal challenges were resolved. Those bonds will now be sold, Klein said.

Funds raised through the bond sale will be used to repay $153 million in state loans and $45 million in loans from private individuals and foundations that were made to the stem cell institute to help it start operations and issue its first grants while the legal challenges played out, Klein said.

Among those who made loans were Padres owner John Moores and Qualcomm founder Irwin Jacobs. If the state had lost the legal challenges, their loans would have become donations to the institute.

“It's gratifying to know the legal system works,” Moores said after hearing about the court's decision.

He said the “mean-spirited” challenges were a delaying tactic of which “the impact on humans is incalculable, because these scientists are going to do great things with that bond money.”

As for his loan, Moores said he always intended for those funds to go to stem cell research. His refund check, he said, would likely go to the Scripps Research Institute, of which he is chairman.

To date, the stem cell institute has approved $158.8 million in research and training grants, making it the world's largest funder of embryonic stem cell research, Klein said. However, most of that money has been promised to cover multiyear grants and has not actually been distributed.

The institute has the available funds to cover another $48.5 million in grants that it plans to award this year for the construction of research lab space that can be shared by scientists pursuing stem cell research, Klein said.

In August, the institute plans to issue a request for applications for $220 million in grants that will be awarded for the creation of major research facilities. Applicants for these grants will be required to show that they can provide matching funds, which means another $440 million will be directed to advancing stem cell research, Klein said.

The availability of funds will also allow the institute to hire more staff. Since its inception in January 2005, the institute has been able to hire less than half of the 50-member staff allowed under Proposition 71.

The current staff has put together the documentation and support needed to fight the lawsuits, as well as accommodate more than 90 public meetings of the institute's governing board and its subcommittees. It has also been involved in creating the agency's medical and ethical standards and conducting due diligence on those awarded grants.

Taxpayer advocates, who monitored and critiqued the institute for the past two years as its standards and policies were formulated in public meetings, lauded the court's decision, but remained cautions.

“Like anyone else interested in stem cell science, I am delighted with the court's decision,” said John Simpson, of the Foundation for Consumer and Taxpayer Rights in Santa Monica. “But I hope in light of the understandable exuberance that everyone at the institute must be feeling that they don't forget the very solid procedures that they have put in place . . . and hand money willy nilly out the door.”

Klein said that while the institute would intensify its funding of stem cell research, it would continue to fund only the most promising science and scientists.

Some institute watchdogs said they thought the funding delay may have been positive for the institute.

At the institute's first meeting, in January 2005, Klein said he wanted the first round of grants to be made by May of that year, recalled Jesse Reynolds of the Center for Genetics and Society.

“I think the lawsuit, although we didn't support it, was a blessing in disguise because it put the brakes on, so they could get policy in place before the big bucks started going out,” Reynolds said.

But longtime Proposition 71 supporters scoffed at that argument. The institute would have had a full staff and found a way to do it right, said Larry Goldstein, an embryonic stem cell researchers at the University of California San Diego.

Goldstein was a member of the initial group of politicians, patient advocates and scientists who came up with the idea of asking state taxpayers to fund stem cell research.

“It's not that we would have come up with a new therapy or cure in those two years,” he said. “It's that we are starting two years behind. And if it takes 15 years total to come up with a cure, it's going to take us 17 years. And that is going to affect whoever gets sick 10 years from now.”

“It's a real human cost when you score it.”
source :www.signonsandiego.com

Malpractice Suit Proceeds Against Firms

Anthony Lin
New York Law Journal
May 14, 2007

A New York state judge has permitted a legal malpractice suit to proceed against plaintiffs lawyers who allegedly failed to seek a bankruptcy extension for their client, causing her medical malpractice case to be thrown out as untimely.

In denying a motion to dismiss the action against law firms Morelli Ratner and Schapiro & Reich, Manhattan Supreme Court Justice Emily Jane Goodman said a combination of equitable estoppel and the U.S. Bankruptcy Code's tolling of statutes of limitations might have saved the underlying lawsuit, even though the medical malpractice at issue took place over a decade ago.

Victoria Kremen underwent a double mastectomy in 1995 after receiving a cancer diagnosis from two doctors. But she claimed she found out on April 14, 1999, that the cancer had been misdiagnosed and that the surgery was unnecessary. In October 1999, she filed for personal bankruptcy.

A medical malpractice suit was not filed in the case until July 2001, a month after Kremen retained the law firm now known as Morelli Ratner. The suit was originally filed on behalf of Kremen and her bankruptcy trustee, but her lawyers took steps to have the trustee removed from the case.

The statute of limitations for medical malpractice cases in New York is 2 1/2 years following the malpractice. The trial court dismissed the suit as untimely and rejected the plaintiff's argument that the misdiagnosis had been fraudulently concealed from her. The Appellate Division, 1st Department, upheld the ruling in 2005, finding that Kremen's 25-month delay in bringing an action even after learning of the alleged malpractice in 1999 was "unreasonable as a matter of law."

But Justice Goodman, in Kremen v. Morelli & Associates, 101739/06, said the delay may not have been unreasonable in light of §108 (a) of the Bankruptcy Code, which grants debtors an additional two years to file claims that "applicable nonbankruptcy" laws would otherwise require them to file in the midst of bankruptcy.

The judge said New York's laws on the tolling of statute of limitations law constituted the type of non-bankruptcy law contemplated in the Bankruptcy Code.

She also cited prior decisions in which courts applied equitable estoppel to toll statutes for plaintiffs who only discovered alleged medical malpractice years after undergoing a treatment or procedure. In such cases, she noted, a delay of several months in filing a claim had been found reasonable. Thus, Kremen's claim could still have been viable when she filed for bankruptcy in October 1999, and then preserved by bankruptcy tolling until October 2001.

The case is against some well-known names in the legal community. Morelli Ratner is the firm headed by Benedict P. Morelli, the former president of the New York State Trial Lawyers Association. The now-defunct Schapiro & Reich was the firm of Perry S. Reich, a noted appellate lawyer who is serving a 27-month sentence for forging a federal magistrate judge's order.

Kremen is represented by Scott H. Seskin.

source : www.law.com

Lawyer's Alleged 'Bedside Manner' Is Ground for Ethics Probe, Not Lawsuit

Charles Toutant
New Jersey Law Journal
May 10, 2007

When Miguel Herrera was badly hurt in a 2002 car crash, he didn't have to look far for legal representation. Cherry Hill, N.J., lawyer Jeffrey Hark appeared one day in his hospital room. Herrera says that in pain and under heavy medication, he signed a contingency fee agreement.

It wasn't until much later, Herrera says, that he learned of Hark's conflict of interest: The other driver in the crash was Vernon Roth, Hark's wife's grandfather.

Herrera says Hark told him he could not recover more than Roth's $100,000 automobile insurance policy, even though Hark knew Roth had substantial assets.

And, Herrera says, Hark arranged a lawyer for him in a municipal court case arising from the crash while arranging for another lawyer to represent Roth. Both were tenants of Hark's law building.

While those facts make out a prima facie case of deviation from acceptable professional standards, a Camden County, N.J., judge properly dismissed Herrera's legal malpractice case on summary judgment, an appeals court ruled on Tuesday.

Herrera can't recover damages for malpractice because the lawyer who replaced Hark in the negligence case settled it for an acceptable amount. "Herrera has not shown how he would have obtained a better result than the $95,000 settlement, even if Hark had disclosed his conflict of interest. In short, no showing of damages has been made," wrote Judges Ariel Rodriguez and Thomas Lyons in Herrera v. Hark, A-1862-05.

Nevertheless, the panel referred the case to the Office of Attorney Ethics for an investigation of Hark's conduct.

The panel cited Rule of Professional Conduct 7.3(b)(1), which forbids initiation of contact with prospective clients whose physical, emotional or mental state is such that the person could not exercise reasonable judgment, and In re Pajerowski, 156 N.J. 5 (1998), which found RPC 7.3(b)(1) violated where a runner was sent to a victim's hospital room shortly after an accident.

Hark, contacted after Tuesday's ruling, disputed many of the facts Herrera alleged. He did not visit the hospital room unannounced but was contacted by a friend of Herrera about representation, and Herrera signed the fee agreement in Hark's office, not the hospital, Hark says. He also says he had no involvement in retaining lawyers to represent Herrera or Roth in municipal court.

Hark says Herrera sued him for malpractice to get leverage in a fee arbitration between Herrera and the law firm that settled the case, Perskie, Wallach, Fendt & Holtz of Atlantic City, N.J. Herrera also sued the Perskie firm, which was dismissed as a defendant.

Hark says Herrera reported him to the OAE and that an investigation has been pending for three years.

Herrera's lawyer, Sebastian Ionno II of Clifford Van Syoc's office in Cherry Hill, did not return a call.

source : www.law.com