Archive for the 'Laws' CategoryPage 2 of 26

Florida Leads the Charge Overturning Medical Malpractice Caps

On February 23rd, 2006, Dr. Archibald was called into Fort Walton Medical Center to perform a cesarean section on 20-year-old Michelle McCall. Although Dr. Archibald determined that the C-section would be unnecessary, he did stay to repair vaginal injuries McCall had from the birth. Dr. Archibald relied exclusively on a nurse to check McCall’s blood pressure. The nurse failed to report that McCall’s blood pressure was dangerously low. Michelle McCall died of cardiac arrest shortly thereafter.

Decorative Scales of Justice in the CourtroomMcCall’s family sued Dr. Archibald for medical malpractice. A federal judge gave her parents $750,000 each and McCall’s infant son $500,000, for a total of $2 million. However, the judge reduced the amount by half because Florida had enacted a law in 2003 which capped wrongful death suits from medical malpractice to $1 million. In March 2014, Florida’s Supreme Court reviewed the case and declared the law unconstitutional in a 5-2 decision.

Malpractice cap proponents bitterly denounced the decision. The Florida Medical Association released a statement, arguing that the decision would intensify the “access-to-care crisis” for patients. The complaints fell on deaf ears though because the Florida Supreme Court is set to review another medical malpractice case.

The “Medical Emergency”

Medical associations and their attorneys have long justified medical malpractice caps by invoking fears about out of control insurance premiums. There are three problems with these so-called “access-to-care crisis.” First, the judges had real doubts about whether malpractice claims were actually driving doctors of Florida. One judge noted that “during this purported crisis, the number of physicians in Florida were actually increasing, not decreasing.” Second, even if there was a crisis, “there is no evidence of a continuing medical malpractice crisis” that would justify the caps. Finally, the law which establishes malpractice caps “does not require insurance companies to use the acquired savings to lower malpractice insurance premiums for physicians.”

In other words, the Florida Supreme Court voided the cap on medical malpractice in wrongful death because the crisis was not real, or if the crisis was real it was over, and the law had no actual relationship to the purpose of reducing insurance premiums.

Interestingly, the Court didn’t stress the most important argument against malpractice caps in its ruling. In theory, medical malpractice caps save patients money by lowering the cost of business for insurance companies, who pass the savings to physicians, who in turn pass the savings to their patients. The big question in that chain is what is the expenditure in that chain? Insurance companies and medical associations would claim that trial lawyers are the expenditures, but personal injury attorneys can’t file a lawsuit without a client.

In reality, patients who are injured by their physicians are passing the “savings” to patients who haven’t been injured by incompetent doctors. People like McCall’s parents and her infant son are denied just compensation so that the rest of us can save a few bucks. It is shocking to me that so many people are ready to put injured patients in a worse position. It is very likely that the doctors who injured the plaintiffs will be treating us. By hurting the injured, we hurt ourselves.

The Future

Insurance companies might argue that $1 million is more than adequate compensation. However, $1 million is no replacement for growing up without a mother. Once the lawsuit is over, the family can’t go back to collect more. McCall’s son will need someone to pay for his food, his clothes, his home, his medical expenses, his schoolbooks, his transportation, and anything else a child might need. The $1 million must last for eighteen years. Given inflation, he’ll be lucky if it lasts that long.

Inflation is a huge problem when medical malpractice caps use absolute figures like $1 million. For instance, California’s Medical Injury Compensation Reform Act (MICRA) set up a malpractice cap of $250,000. The problem is that cap was written in 1975. In 1975, the price of gas per gallon in California was 57 cents. Today, the price of gas per gallon in California is consistently over $4.00. Prices are still going up, so the $250,000 that would have lasted a lifetime back in 1975 will not cover the same expenses today.

I bring up California because this November, Proposition 46 will be the state ballot. Prop. 46 could amend California’s own medical malpractice laws. Florida isn’t the end of medical malpractice reform. It’s the beginning.

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Home Is Where You Park It: The Legality of Living in a Car

It used to be illegal to sleep in your car in Los Angeles. The city’s municipal code outlawed using any vehicle parked on a public street, lot, beach, or harbor as living quarters either overnight, day-by-day, or otherwise.

living in a vehicleIn June 2014, the 9th Circuit handed down a decision invalidating this law. The court unanimously held this language was “overbroad,” meaning quite simply that the municipal code criminalized otherwise innocent, legal conduct. Since it was overbroad, it violated the Due Process Clause of the Fourteenth Amendment.

This may seem like a no-brainer. After all, as written, any activity one would do in a “living quarters” was illegal in a car, meaning eating, talking on a phone, and checking hair in the mirror. More pointedly, a tired surfer couldn’t take a nap before paddling back out, a vacationing family, couldn’t catch a few hours of sleep for the night before hitting the road again, and a struggling software salesman, forced into foreclosure after being hit hard by the recession, couldn’t pull over into a quiet neighborhood to sleep after a hard day’s work.

Of those three examples, the first two typically weren’t the target of law enforcement, but the last one was.

Since the Great Recession, many have taken to sleeping inside of their vehicles. Unsurprisingly, particularly in more wealthy neighborhoods, similar anti-vehicle dwelling ordinances have passed in an effort to give police the ability to eradicate this new type of “homeless” population.

While this opinion only directly invalidates the Los Angeles law, it will also have an impact on any similar law in Arizona, California, Hawaii, Idaho, Montana, Nevada, Utah, Oregon, and Washington. Those states collectively hold about 62 million people, or nearly 20% of the nation’s total population. Thus, this single decision not only potentially impacts a large portion of the country, but asks an important question to all of us: is living in a car really that bad? Perhaps more importantly, now is a good time to change how our country looks at homelessness.

Recent polls and census efforts indicate that upwards of 55-60% of employed homeless individuals reside in a vehicle. Maintaining and running a vehicle isn’t cheap, but it can certainly be less than rent in larger metropolitan areas. Living out of a car is even a preference for many. Business Week has reported on a trend of successful, young professionals opting to live in their vehicle rather than pay for posh apartments.

One example is Foster Huntington, who left a well-paying design job and apartment in New York City to live and do freelance design work out of his Volkswagen van, amassing nearly a million followers on his social media sites, and leading to the recent publication of his photo book on the subject of “van life.” The carefree, anchorless lifestyle embodied by “van life” is demonstrative of how these laws criminalize perfectly legal, if not remarkably practical and utilitarian life choices.

The other side of the token is that homeowners should be free from finding trash or waste strewn about from vagrants. They should also be free from seeing a camper parked on the street in front of their home for days on end. Considering there are already perfectly valid laws against criminal damage to property and littering in place, the former concern can be dispelled. Moreover, there are also laws in many, many cities against leaving in a vehicle parked on the street in one space for more than 24 hours. This leaves the homeowners complaints seemingly solely against having to see vans, campers, or cars filled with possessions or extra storage, and the unnecessary, perhaps misguided shortsighted stigma attached to their occupants. After all, it’s quite likely the occupant of that vehicle is working, paying taxes, and supporting a local economy.

Homeowners should also consider this: having a vehicle parked on your street is preferable to having someone sleeping on the sidewalk. Where vagrancy has been a real issue, spending more time addressing the causes is certainly more desirable than criminalizing looking for a place to find some rest. In the meantime, Los Angeles will have to adjust to the changes in their law, and other cities should be prepared to either stop enforcing anti-vehicle dwelling laws altogether, or spend some of those complaining homeowners hard earned tax dollars on defending the laws in court.

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California’s Death Penalty Declared Unconstitutional by a Federal Judge

In a decision being described as “stunning” and “path-breaking,” U.S. District Judge Cormac J. Carney issued an order on July 16, 2014 declaring California’s death penalty system unconstitutional. Not surprisingly, the decision has been met with a considerable degree of shock, with many commenters calling the move judicial activism.

greenbiz sanquentinThe opinion was rendered in the context of a federal appeal by the defendant, Ernest Dewayne Jones, in the case of Jones v. Chappell. Jones has been on death row since 1995 – almost 20 years – and the sentence in his case has yet to be settled. Jones’ lawyer argued, and Judge Carney agreed, that the length of delay and degree of uncertainty surrounding Jones’ sentence constitutes cruel and unusual punishment under the Eighth Amendment.

Background: California’s Death Penalty System

Jones’ case is not a unique one. Since California reinstated the death penalty in 1978, of over 900 inmates sentenced to death, only 13 have been executed. It takes, on average, more than 25 years for a death sentence to be finalized. A common misconception is that this delay is due to the number of appeals filed by death row inmates. As Judge Carney points out, the delay is actually caused by the state appellate system.

Inmates spend years waiting for a court-appointed attorney to be assigned to their case, they spend years waiting for the California Supreme Court to set a date for their hearing, and they spend years waiting for the court to issue a decision. This backlog is caused by a lack of funding. Budget cuts have forced the State Public Defender’s Office to reduce its staff, while private attorneys are discouraged from taking penalty appeals due to the low pay offered by the State.

At the Federal level, additional delay is caused by exhaustion rules that often send inmates back to the backlogged state court system to present newly discovered claims and evidence. Further delay is caused by state courts’ failure to publish their decisions or hold evidentiary hearings, requiring federal courts to conduct their own investigations to understand the state court decisions.

While the average death row inmate spends about 17 years moving through the state appellate system and another 10 years on federal appeals; the majority of this time is actually spent, not fighting convictions or appealing sentences, but waiting for a dysfunctional bureaucracy to make the next move.

Further complicating things, since the 2006 case Morales v. Tilton, executions have been halted in California due to risk of extreme pain from the state’s lethal injection protocol. Amending the protocol has taken years and still has not been accomplished.

Legal Support for Judge Carney’s Decision: The Furman Case

In holding that the current death penalty system violates the Eighth Amendment, Judge Carney relied heavily on the 1972 United States Supreme Court case Furman v. Georgia. This well-known case famously invalidated the death penalty as it was then being imposed across the United States.

In 1972, judges and juries had unchecked discretion over when to impose the death penalty, making a convict’s chances of being sentenced to death completely random. The Supreme Court, in Furman, held that courts have an obligation under the Eighth Amendment to ensure that punishment is not arbitrary and will further societal interests.

Judge Carney’s Ruling: California’s Death Penalty System is Arbitrary and Violates the Eighth Amendment

The Furman Court found that the way the death penalty was being imposed at the time was arbitrary because there was no meaningful basis for distinguishing cases that warranted a death sentence from those that did not. Judge Carney believes that even though the Furman Court was talking about arbitrariness in handing out death sentences, the current state of affairs in California creates the same type of arbitrariness.

What makes California’s death penalty system arbitrary is that whether an inmate will be executed is based on random factors related to how quickly the inmate moves through the appellate system – when they are assigned counsel, when their hearing is scheduled, when a final decision is issued – and not anything to do with the severity of the inmate’s crime or even something neutral like when the inmate was sentenced to death. Most death row inmates will never realistically face execution and the few that do will basically be selected at random.

The Furman Court held that when the death penalty is imposed in only a trivial number of the cases where it is legally available, sentencing is reduced to “little more than a lottery system” and is being inflicted arbitrarily. With only 13 executions out of 900 inmates that have been on death row, the Furman Court could just as easily be describing the current death penalty system in California.

Understanding Judge Carney’s Ruling

One thing that should be noted is that this is not an “anti-death penalty” ruling in the traditional sense. Judge Carney did not hold that the death penalty itself is unconstitutional. What Judge Carney takes issue with is the fact that California’s death penalty system is so slow and unpredictable that it is practically meaningless.

This is not only unfair to the inmates on death row who wait decades to find out their fates. It is unfair to affected families and communities that deserve closure. It is unfair to juries whose careful deliberations over whether to impose a capital sentence are actually inconsequential. Not to mention, it is a huge waste of California taxpayers’ money.

Judge Carney takes care to point out the degree to which judicial backlog is being caused by the State. He references some of the reforms that have been recommended to the legislature –increasing funding for court-appointed attorneys, limiting the number of crimes that carry a death sentence, and even abolishing the death penalty altogether. He points out that even the most conservative reforms are estimated to reduce the appeals process down to 11-14 years, bringing California in line with the national average.

Whether you think Judge Carney’s holding is “judicial activism” or firmly based in constitutional law, the opinion definitely reads like a criticism of the State. What remains to be seen is whether the State will funnel resources into appealing a decision that, given the 2006 moratorium on executions, has few practical implications currently. Analysts are already predicting that the case will be appealed all the way to the U.S. Supreme Court. Perhaps it would be a better use of the State’s time and resources to actually begin to address some of Judge Carney’s concerns.

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New York Legalizes Medical Marijuana (with Strings Attached)

New York became the 23rd state to legalize medical marijuana when Governor Andrew Cuomo signed the Compassionate Care Act (CCA) into law. In 2015, New Yorkers who suffer from cancer, AIDs, ALS, Parkinson’s disease, multiple sclerosis, spinal cord damage, epilepsy, and inflammatory bowel disease can use marijuana to help treat their conditions.

medical marijuana in New YorkHowever, the CCA has a number of differences which make it unique compared to medical marijuana programs of other states.

  1. The Department of Health has the power to price the medicine purchased. New York will start with a 7% tax.
  2. Even qualified patients aren’t allowed to smoke marijuana. Patients will be forced to mix marijuana with food, ingest pills, or breathe vapors instead. The only other state which legalizes medical marijuana but prohibits smoking is Minnesota.
  3. New York patients can’t grow their own marijuana. They must buy it from a state regulated dispensary. Finally, physicians who prescribe more than 2.5 ounces will be subject to penalties.

In short, New York will have the most regulated medical marijuana program in the country. Governor Cuomo and state legislators believe the law strikes an appropriate balance between medical need and public health. “Public health” means making sure people don’t abuse marijuana or use it as a gateway drug to more dangerous substances like heroin.

The problem is that the rules don’t correlate with public health. The smoking prohibition looks like a means to protect public health, but bans on tobacco smoking in public areas could easily be extended to marijuana. The ban on smoking will not guard against second-hand smoking. Forcing patients to ingest rather than smoke marijuana will cause patients to spend more money on the drug.

It is also difficult to understand how a tax would prevent addicted potheads from spending all their cash on weed. Given that patients must buy from state approved dispensaries, the CCA looks more like a way for the state to make money than to help sick patients. Of course, any amount of medical marijuana is better than none.

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Police Need a Warrant to Search Your Cell Phone

In 1973, the U.S Supreme Court held that police do not need a warrant to look inside a pack of cigarettes found in the pocket of a man who had been arrested. This decision was decided for the safety of an officer and to prevent concealment or destruction of evidence.

police need a warrant to search cell phonesJump forty years later to 2014. In the case Riley v. California, the U.S Supreme Court unanimously ruled that the police need search warrants to search the cell phones of people they arrest. This decision was made to help define the Fourth Amendment, which affirms “the right of people to be secure in their persons, houses, papers, and effects from unreasonable searches and seizures” in absence of a warrant.

This decision determined that a person’s cell phone contains more information than a person’s house. A person therefore has a “reasonable expectation of privacy” for the contents in their phone and police should not be able to search an arrestee’s cell phone without voluntary consent or a valid search warrant.

The U.S Supreme Court’s ruling makes total sense in regards to today’s high technology and the arrival of the smartphone. Nine out of ten adults in America own a cell phone and an average person has 33 apps installed. These apps contain email, pictures, bank records, intimate conversations, medical data, and GPS information.

Although officers can generally search any container within an arrestee’s car, a cell phone bears little resemblance to traditional containers. Allowing the police to freely search a person’s cell phone without a warrant would be a significant invasion of privacy, which is excessive and unreasonable under the Fourth Amendment.

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