South Carolina Personal Injury Law Blog

Pay Discrimination Ruling Expected to Have Broad Ramifications

According to experts, the U.S. Supreme Court's ruling this week in Ledbetter v. Goodyear Tire & Rubber, limiting the ability of employees to pursue pay discrimination claims against their employers, may have broad ramifications for employment discrimination lawsuits of all kinds.

The 5-4 ruling generally excludes the right for employees to sue for pay discrimination unless they file charges within 180 days of a specific event, like a boss giving a worker a smaller raise because of her sex.  Establishing a pattern of discrimination over several years will no longer be possible.

Some legal experts said the ruling would put pressure on workers to file discrimination claims within 180 days even when they are still seeking more conclusive evidence that they were discriminated against.

Source:  "Experts Say Decision on Pay Reorders Legal Landscape" by Steven Greenhouse, published in The New York Times.

Doctor Requires Patients to Promise Not to Sue

Before gynecologist Ruth J. Schulze will see her patients, she requires them to sign a contract promising never to sue her for malpractice. The veteran physician in Ridgewood, N.J., requires the contract as a condition of treatment. Dr. Schulze sees it as the only way to control the rising malpractice premiums that she believes have put some of her brethren out of business.

As you might expect, patient advocates and legal experts are troubled by the idea of asking patients to sacrifice their legal rights — and they worry the practice could spread. By signing the contract, patients forfeit their right to a jury trial and agree to limits on pain and suffering awards and punitive damages. The contract blames patient lawsuits for ‘ever-escalating’ malpractice insurance rates.

Source:  "Contract Care: Patients Promise Not to Sue for Malpractice, Before the Exam" by Mary Jo Layton,  published in The Herald.

What Our Soldiers Really Need Is Lawyers

You have probably heard about the scandal involving the conditions at the Walter Reed Army Medical Center.  However, what you probably have not heard is even more shocking.  Did you know that for decades, our military servicemembers have been barred from suing for medical malpractice and other forms of negligence by the government under the Feres Doctrine?

This doctrine prohibits servicemembers from seeking the same relief that other citizens can when harmed due to the negligence of others.  Of course, the threat of a lawsuit (and more specifically a judgment) serves as a critical deterrence of negligence by the government, companies, and others.  In other words, knowing that one could be held accountable, required to pay compensation, and possibly pay punitive damages will cause most rational people to take steps to ensure that they act reasonably and thus minimize their legal exposure.

In the military system, there is little deterrence for military negligence beyond self-regulation, bad publicity, or a political scandal, thanks to the Feres Doctrine.  Further, since most accidents are isolated and military personnel tend to stay within the chain of command, these are relatively low risks for military tort-feasors and since such accidents are not litigated, there is no reliable system to determine the rate of accidents in the military.

The military medical system is a prime example of what happens when patients are stripped of their legal protections.  For example, consider the following real-life scenarios:

• A female sailor had to have a fallopian tube removed, but military surgeons left five sponges and a plastic marking device in her abdomen, where the remained undetected for months.  Finally, her resulting complications forced a second surgery to remove her other fallopian tube, which left her infertile.  Her "compensation" for this medical malpractice: $66 per month in disability pay.

• A Lieutenant Commander spent 11 months with red lesions from his legs to his torso that a doctor classified as eczema. It was correctly diagnosed as cancer shortly before he died.

• An Airman was turned away twice by a military hospital that told him his intense stomach pains was nothing more than stomach flu.  He died of a bowel obstruction.

• A Naval Petty Officer went to a military hospital with pneumonia, which is treatable with antibiotics.  However, the doctor left it untreated, and the patient suffered brain damage.

• An Air Force Staff Sergeant had appendicitis but was repeatedly misdiagnosed and sent home with some antibiotics.  After finally collapsing at home, he was rushed into surgery, but he came out brain-dead. It's alleged that a series of malpractice led to his death, including the use of a pediatric rather than an adult device to open an airway when he had trouble breathing.

Both liberals such as Justice John Paul Stevens and conservatives such as Justice Antonin Scalia have denounced the Supreme Court's continued use of the Feres Doctrine, as have dozens of lower court judges.  This doctrine has done more harm to military personnel and families than any court-made doctrine in the history of this country.  If members of Congress truly want the best for our troops, they should start by giving them the same legal protections as the the non-military citizens that they are protecting.

Source:  "What Our Soldiers Really Need: Lawyers" by Prof. Jonathan Turley, published in USA Today.

Century 21 Sued for Racial Discrimination

The National Fair Housing Alliance and an African-American family are suing Century 21 Real Estate and a franchisee for allegedly discriminating against potential homebuyers based on their race. The lawsuit accuses the defendants of engaging in unlawful racial steering by showing potential black homebuyers homes in primarily black neighborhoods and showing potential white homebuyers homes in primarily white neighborhoods.

The federal Fair Housing Act makes it illegal to discriminate based on race, color, national origin, religion, sex, disability or familial status.  The complaint was originally filed in July 2005 with the U.S. Department of Housing and Urban Development and the Michigan Department of Civil Rights, who has announced a charge of discrimination against the franchisee and its owner.

Source:  "Housing Group Sues Century 21" published in the Houston Chronicle.

Pentagon Attempts to Punish Lawyers for Representing Prisoners

 According to an article in the New York Times, a top Pentagon official encouraged corporations to fire their lawyer if that lawyer works for a firm that is representing prisoners at Guantánamo Bay, Cuba. This is an outrageous attempt to deny due process by threatening lawyers involved in controversial cases. This government seems to forget that ALL people are entitled to due process, not just the people the government likes. Excerpts from the article:

• The comments by Charles D. Stimson, the deputy assistant secretary of defense for detainee affairs, produced an instant torrent of anger from lawyers, legal ethics specialists and bar association officials, who said Friday that his comments were repellent and displayed an ignorance of the duties of lawyers to represent people in legal trouble.
• “This is prejudicial to the administration of justice,” said Stephen Gillers, a law professor at New York University and an authority on legal ethics. “It’s possible that lawyers willing to undertake what has been long viewed as an admirable chore will decline to do so for fear of antagonizing important clients.
• “We have a senior government official suggesting that representing these people somehow compromises American interests, and he even names the firms, giving a target to corporate America.”
• In his radio interview, Mr. Stimson said: “I think the news story that you’re really going to start seeing in the next couple of weeks is this: As a result of a FOIA request through a major news organization, somebody asked, ‘Who are the lawyers around this country representing detainees down there?’ and you know what, it’s shocking.” The F.O.I.A. reference was to a Freedom of Information Act request submitted by Monica Crowley, a conservative syndicated talk show host, asking for the names of all the lawyers and law firms representing Guantánamo detainees in federal court cases.
• Mr. Stimson, who is himself a lawyer, then went on to name more than a dozen of the firms listed on the 14-page report provided to Ms. Crowley, describing them as “the major law firms in this country.” He said, “I think, quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”
• Karen J. Mathis, a Denver lawyer who is president of the American Bar Association, said: “Lawyers represent people in criminal cases to fulfill a core American value: the treatment of all people equally before the law. To impugn those who are doing this critical work — and doing it on a volunteer basis — is deeply offensive to members of the legal profession, and we hope to all Americans.”
• The role of major law firms agreeing to take on the cases of Guantánamo prisoners challenging their detentions in federal courts has hardly been a secret and has been the subject of many news articles that have generally cast their efforts in a favorable light. Michael Ratner, who heads the Center for Constitutional Rights, a New York-based human rights group that is coordinating the legal representation for the Guantánamo detainees, said about 500 lawyers from about 120 law firms had volunteered their services to represent Guantánamo prisoners.

Source:  "Pentagon Tries To Punish Lawyers For Representing Prisoners" by Bob Kraft, published at his P.I.S.S.D. blog, discussing "Official Attacks Top Law Firms Over Detainees", published in the New York Times.

Study Reveals Disparity in the Treatment of Cancer Patients

A study published in the Journal of Clinical Oncology suggests that women with low incomes or low levels of education receive insufficient doses of chemotherapy, which may be one reason they are less likely to survive the disease than other women.

According to researchers, as many as half of breast cancer patients are not started on enough medicine. After reviewing information on 746 randomly selected women, dosages varied based on education levels, obesity, and geographical location.

Source:  "All Breast Cancer Patients Are Not Treated the Same" by Nicholas Bakalar, published in the New York Times.