LinkedIn Endorsements Pique the Ire of New York and Florida Legal Ethicists

It turns out that posting endorsements on LinkedIn could be problematic from an ethics standpoint.  See this article:

http://it-lex.org/linkedin-lawyers-mind-your-language/

NFL Concussion Settlement By the Numbers

Yesterday, the NFL and former players who sued the League agreed in principle to resolve the pending litigation for $765 million.  The players' claims were based on the alleged cover-up of the effects of concussions and Traumatic Brain Injuries (TBI).  Here is the breakdown of the numbers:

SETTLEMENT:  $765 million (the players' attorneys fees also to be paid by NFL)
NUMBER OF YEARS FOR NFL TO PAY OUT SETTLEMENT:  20
NUMBER OF PLAINTIFFS:  4,500
NUMBER OF PLAYERS COVERED BY SETTLEMENT: 18,000
MAXIMUM AWARD FOR AN INDIVIDUAL PLAINTIFF:  $5 million
NFL REVENUE FOR 2012:  Approximately $10 billion
NFL TV CONTRACT:  $3.1 billion
MINIMUM LENGTH FOR EXISTENCE OF FUND FOR FUTURE PAYOUTS:  60
MINIMUM BALANCE FOR FUND FOR FUTURE PAYOUTS:  $50 million
2010 EARNINGS OF TOP 8 NFL OFFICIALS:  $51.5 million

Most importantly, the issues surrounding this case will not be brought to light in a court of law, and the public will never know when and what the NFL knew or should have known about concussions and TBIs.

Not New York, But of Note....

Let us take a moment away from New York issues to address two out-of-state issues involving politics and the law.

First, the justice system in Florida is once again the target of an attack that is significantly more dangerous than any in the state’s history.  Three Supreme Court Justices – Fred Lewis, Peggy Quince, and Barbara Pariente – are being targeted for removal by Republican state party officials, the Koch brothers, and other individuals.    Below are some articles on the subject:

http://www.tampabay.com/news/courts/florida-supreme-court-justices-fight-back-to-retain-seats/1255242

http://www.nytimes.com/2012/10/03/us/republican-party-aims-to-remake-florida-supreme-court.html?pagewanted=all

Although we try to be apolitical here, an independent judiciary is paramount to the rule of law.  For our Florida readers, we implore you to vote to retain these three eminently-qualified justices and send a message that politics must be kept separate from the courts.

* * * * * *

Second, as we recover from the wrath of Hurricane Sandy, we are reminded of the benefits of the rule of law and the leadership our politicians must show in the face of adversity.  One of the most memorable examples of such leadership comes from our neighboring state of New Jersey.

Since October, 2011, Governor Chris Christie has supported Mitt Romney’s run for President, and has been a harsh critic of President Obama since before then.  The Governor was the keynote speaker at the 2012 Republican National Convention and is in line for a top cabinet position if Romney wins on Tuesday.

Hurricane Sandy caused grave devastation to New Jersey’s coastal and inland areas.  Rather than tiptoe around the positive federal response, Gov. Christie stood up and praised the President for his management of the crisis and at the same time blasted any suggestion that he should be concerned with politics.  His quotes:

I have to give the president great credit. He's been on the phone with me three times in the last 24 hours. He has been very attentive and anything that I've asked for he's gotten to me, so I thank the president publicly for that. He has done, as far as I'm concerned, a great job for New Jersey.

I spoke to the president three times yesterday. He called me for the last time at midnight last night, asking what he could do. I said 'if you could expedite designating New Jersey as a major disaster area that that would help us to get federal money and resources in here as quickly as possible to help clean up the damage here.

And on the issue of the election:

I have no idea nor am I the least bit concerned or interested. I've got a job to do here in New Jersey that's much bigger than presidential politics and I could care less about any of that stuff. I have a job to do.

I've got 2.4 million people out of power. I've got devastation on the shore. I've got floods in the northern part of my state. If you think right now I give a damn about presidential politics then you don't know me.

Kudos to the Governor for being a true leader and one who puts people before politics.

The Boogaard Lawsuit We Didn't Expect

On May 13, 2011, Derek Boogaard, a 28-year old hockey player for the New York Rangers, died of an accidental mix of alcohol and oxycodone.  He was the Rangers’ “enforcer,” or “tough guy,” or “goon,” whose job it was to fight another player when his team needed an emotional lift or when an opposing player took liberties with one of his team’s more skilled players.

Boogaard’s death raised questions about the impact that the repeated head traumas and the treatment he received had on his physical and psychological condition.  It even led to a three-part piece in The New York Times called, “Punched Out: The Life and Death of a Hockey Enforcer,” by John Branch.[1]  Boogaard’s autopsy revealed significant traumatic brain injuries and chronic traumatic encephalopathy (CTE).

Today, news surfaced[2] that Boogaard’s parents filed a $9.8 million lawsuit against the NHLPA, the players’ union, and claimed that the union was responsible for collecting the $4.8 million remaining on their son’s contract, and $5 million in punitive damages.

After reading the Times’ series, we have been closely monitoring whether any lawsuit would flow from Boogaard’s death, however, this contract-based action was not the lawsuit we expected.

Today’s news acknowledges that Boogaard had been prescribed, “a multitude of narcotics and sleeping pills by both the team doctors, physicians, trainers, and dentists of the New York Rangers and the Minnesota Wild.”[3]  Based on those claims, we expected the Boogaards to file a negligence and medical malpractice case against those who may have contributed to their son’s deteriorating physical and mental health.

So, who -- if anyone -- breached his/her duty to keep Derek Boogaard safe, healthy, and free from unreasonable danger?  As Branch explicitly detailed in his series, it appears that multiple parties could be held liable for what happened to Boogaard, and we explain the conduct of the potential defendants below (independent of any statute of limitation restrictions):

·         Western Hockey League/Hockey Canada – The gateway to the NHL, junior hockey has condoned fighting forever, allowing 16-19 year olds to square off against one another more often than NHLers do.  The organizations certainly had notice of the potential consequences with Don Sanderson's death.[4]

·         Regina Pats/Prince George Cougars/Medicine Hat Tigers – In 1999, Boogaard’s junior team and the league in which it plays allowed the 17-year old to fight teammates 12 times in 4 scrimmages.

·         Boogaard’s junior career continued with his role as enforcer, and his teams marketed him as the “Boogeyman.”

·         East Coast Hockey League/Louisiana IceGators – Minor pro league and team.  This league has been known as a rough-and-tumble double-A-type league since 1988.

·         American Hockey League/Houston Aeros – The “Boogeyman Cam,” showing fight replays, is born.

·         National Hockey League – With the NFL concussion lawsuits starting to make national news, it is only a matter of time before NHL players realize that the League knew or should have known about the effect that fighting has on the brain.  This is not boxing.  This is bare-knuckle brawling.  Litigation may be the only way for players to ensure their future safety.

·         Minnesota Wild – Coaches witnessed behavioral changes and did nothing other than let him leave the team to become a free agent.

·         New York Rangers – “Len Boogaard, knowing that his son had been enrolled in a substance-abuse program since September 2009, was surprised to see so many prescription bottles in the bathroom with the names of Rangers doctors. He was also surprised to hear from his son that he had been given four days’ notice for his next drug test.”[5]  Tellingly, “[t]he team refused to answer a detailed list of questions regarding their medical treatment of Boogaard during the season and his time in rehabilitation.”[6]

·         Team Doctors – Branch reports that in 2009 a doctor asked Boogaard to name a word that starts with the letter “R.”  Boogaard couldn’t.  Also in 2009, Boogaard was going through 8-10 painkillers at a time.  “Boogaard had learned that there was no system to track who was prescribing what.”[7]  This is not the first time that a player has questioned the actions of NHL team doctors.[8]

·         NHLPA – Apart from the contractual claims, if the union is truly in place to look out for the players’ safety, how could it not demand a prudent standard of care among team doctors and trainers?  This is not the first curious stance from the union, as it still takes the position that eye-protecting visors should not be mandatory.

The numerous failures of those above in setting up monitoring systems and flagrantly prescribing narcotics should certainly give current players pause in thinking about who, in fact, is actually looking out for their best interests.

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[1] http://www.nytimes.com/2011/12/04/sports/hockey/derek-boogaard-a-boy-learns-to-brawl.html

[2] http://slam.canoe.ca/Slam/Hockey/NHL/NYRangers/2012/09/21/20221451.html

[3] Id.

[4] http://slapshot.blogs.nytimes.com/2009/01/02/senior-player-dies-from-injury-sustained-in-on-ice-fight/

[5] http://www.nytimes.com/2011/12/06/sports/hockey/derek-boogaard-a-brain-going-bad.html?pagewanted=3&_r=moc.semityn.www

[6] http://www.nytimes.com/2011/12/06/sports/hockey/derek-boogaard-a-brain-going-bad.html?pagewanted=6&_r=moc.semityn.www

[7] http://www.nytimes.com/2011/12/06/sports/hockey/derek-boogaard-a-brain-going-bad.html?pagewanted=2

[8] http://www.ama-assn.org/amednews/2002/05/20/prse0520.htm

We Must Ensure That New York Treats Victims Fairly.

In New York, a plaintiff must bring an ordinary medical malpractice case within 2 1/2 years from the date when the malpractice occurs.  The problem with this limitation is that a patient may not be aware that a doctor was negligent until after that time has expired.  As a result, a victim will have no remedy because the courthouse doors will be closed to him/her.

The most frequent instances where this patently unfair law rears its head is when a doctor misreads a test, such as a mammogram, PAP smear, or prostate test.  If the test shows evidence of cancer, a curable disease may become a symptom-free killer.  New York is one of five states (Arkansas, Idaho, Maine, and South Dakota) to have this archaic accrual rule.  A New York judge has even called this rule, "unjust, illogical, and cruel."

Today, Buzin Law, P.C., spoke to a number of State Assemblymen and Senators in an effort to change this law.  To ensure that such injustices do not remain the law, contact your local legislators!

In one of the first appellate decisions of 2012, the Third Department allowed a plaintiff in a wrongful death action, which arose from medical malpractice, to pursue a claim for punitive damages where the plaintiff alleged abandonment and where the medical staff failed to take certain precautions before administering medication.  Marsh v. Arnot Ogden Medical Center, 2012 WL 87957 (3d Dep't).  The court acknowledged that certain medical facilities are not putting patient safety as their top priority and stated, "[a] medical facility's failure to provide appropriate safety precautions and training may constitute a basis for a punitive damages award if shown to constitute conscious disregard for patient safety."  (Citations omitted).  Id.

Hospitals that have chosen to prioritize patient safety have seen incidences of medical malpractice drop precipitously.  It is in both the patients' and their physicians' best interests to continue to emphasize patient safety in all medical facilities.