Archive for the ‘About the Law’ Category

Why Do We Stop On Red and Go On Green?

April 4, 2012

As you approach a red traffic light you place your foot on your car’s brake pedal. Perpendicular drivers place their feet upon their accelerators because their light is green. This orchestrated movement happens millions of times every day. It allows people to safely use the roads. Why does this system work? Why red-why green? Why do all drivers agree to obey these symbols? The system works because the governed consent to be governed. There is a consensus about the terms and conditions for using cars based upon the concept of providing the greatest good for the greatest number of people. We, as citizens, have determined that these simple devices are the most efficient means for controlling the motoring public, even if some ( such as blind people) are excluded from driving and are therefore inconvenienced. What would happen if we started to disregard these regulations? What if we drove forward or stopped regardless of the colors shown on the traffic lights? Certainly there would be some accidents. We currently see intersection accidents every day. However, what would happen if everyone decided , in the exercise of their individual freedom, to do exactly what they wanted to do? We would expect to have accidents – horrible , needless accidents, occurring with more and more frequency. The police would be stretched to the limit in order to control the lawbreaking. Yet, we all know that there are not enough police in the entire United States to make people “stop” at red and “go” on green. The people basically govern themselves. The police merely reinforce that consensus. The police ticket and occasionally arrest the small minority who disregard the rules of the community. Suppose it wasn’t a small minority who disobeyed the rules. Suppose it was a majority of the citizens; and there was no consensus about the meaning of red and green signals. The government would be powerless to supervise its citizens without their consent, or without the necessity of imposing martial law, as it does in times of national disaster or civil insurrection. Why do citizens stop on red? It appears to be based on some of the following: education and training, custom, law enforcement, safety, and the consensus concerning its utility. Citizens seem to acknowledge that this “give and take” system wherein you go and then I go provides for an orderly and efficient movement of traffic. This system ultimately promotes an individual’s own enlightened self-interest by preventing traffic gridlock. Without such a system no one could go anywhere. There would be no communally accepted guidelines for behavior. In recent years, we all have experienced situations in which this consensus has broken down. The following scenario is typical: drivers are stuck in the middle of an intersection. They are unable to go forward or backward. More and more drivers continue to inch into the intersection  as the traffic light alternately turns red and green. Drivers facing the “go” signal lean on their horns in indignation as their turn to drive forward is denied to them. The result is gridlock. Gridlock occurs when drivers ignore traffic rules for an intersection and, as a result of the anarchy created, no car can move. These irrational acts of  individual aggressiveness have become so common that traffic signs are now posted at major intersections in New York city admonishing drivers to avoid gridlock. The traffic signs urge drivers to obey the law so that they can get home more quickly. A rather simple idea that would seem self-evident. In Boston, the traffic situation has so deteriorated that policemen now patrol major intersections at rush hour to control traffic movement. This is necessary because there is no longer a consensus by drivers as to when to go and when to stop. A driver’s decision currently seems to be based upon situational ethics: can I get away with it; will anyone catch me; will I get a ticket; or will that other driver really hit me as he seems prepared to do, or will he, in the rush-hour game of “chicken,” turn away at the last possible moment. What rage and anger are festering in our fellow citizens that leads mature men and women to risk life and limb in 4000 lb. cars that are powered by huge engines? They are isolated and alienated from each other’s concerns by tinted glass, stereo systems, sunglasses, over-sized utility vehicles mounted on tremendous tires, and talk show-powered adrenaline. Where do people learn to govern themselves? How do they come to the goal of being informed citizens? How long does it take to become an educated person, that is, not someone who is formally educated but someone with knowledge of the rights and obligations of a citizen? The old wives’ tale is probably true. “Attitudes are shaped at your mother’s knee.” They begin with the non-verbal examples of one’s parents. Imagine the following scenario: As a two-year old child you are sitting in the front seat of your father’s car. He backs out of the driveway of your house. He enters the street and drives forward. He comes to an intersection. At the intersection there is a steel pole at the corner with a box on the top and lights within the box. You notice that the light which is illuminated and facing you is red. Your father stops the car. Up to that point your father has said nothing to you. Over dozens, perhaps hundreds of times, this occasion repeats itself each time you enter the car. As a three-year old you notice the light even before it is illuminated. You point to it and your father begins a familiar pattern. He says to you the words: “Light, red, stop; light green, go.” You learn the meaning of these symbols but it takes a long time, and it requires constant reinforcement. On other occasions, you walk to the store with your mother. She comes to a street corner and waits. She points to that light again – red and green. It must be important because your mother stops walking when it is red. Cars drive by when it is green. It is just like the situation with your dad in his car. The child begins to learn he is not an island but a social being who will develop, mature and flourish in a social environment. He or (she) will realize that society has rules that will in many ways limit, control, shape and even impinge upon his actions. He will understand that he does not have unlimited freedom. The United States is unique because the overwhelming majority of its citizens are immigrants or the descendents of immigrants. The process of consensus building therefore is important and useful. As immigrants arrived in the United States they were assimilated into the “melting pot” of American society. Whether Irish, French, Jewish, Spanish, Italian or a person of African descent, upon entering the country the different characteristics of each group combined to create a unique, zesty and powerful stew that nourished unparalleled growth and prosperity for all citizens. In contrast to the past, we now emphasize not what we have in common but what divides us. We promote separateness, differences, diversity, and excess individualism to the exclusion of the commonness necessary to bind us together as one people. The glue that held us together combined the best traits of each heritage’s accomplishments. It made a uniquely democratic people and very prosperous ones too. Why do we now act in the very manner likely to destroy these healthy underpinnings?

Why do we go on red and green?     

Copyright 2012

Arthur F. Licata 

www.alicata.com   

arthur@alicata.com                             

Punitive Damages Part 3

February 20, 2012

A few weeks ago, in part two of our discussion concerning punitive damages, I referred to a case that was before the Massachusetts Supreme Court. The case is entitled Rhodes, et al v. AIG Domestic Claims, Inc., et al. Last week the court announced its decision. It stated that under the Massachusetts Consumer Protection laws, Chapters 93A and 176D, insurance companies are required to negotiate in good faith. It also held that if liability is reasonably clear insurance companies must make a reasonable offer of settlement in an attempt to settle the case, prior to litigation. The court then went on to explain the consequences to insurance companies for refusing to obey the Consumer Protection laws. If a jury returns a verdict for the plaintiffs there may be punishment damages awarded by the trial judge in addition to the jury’s award of compensatory damages. The judge may hold a separate hearing on whether the insurance company engaged in bad faith and unreasonably delayed the settlement of the case or refused to engage in a good faith negotiations. In the Rhodes case,  the Massachusetts Supreme Court decided, in clear and understandable language, that the insurance companies engaged in bad faith and that punitive damages were appropriate. The S.J.C. in Rhodes has done more to redress the economic disparity between the powerful and the weak, and the rich and the poor, than all the legislation passed in Massachusetts in the past 20 years. There was no dispute about liability. The car occupied by Mr. and Mrs. Rhodes was rear-ended by a truck. Mrs. Rhodes sustained severe injuries. The jury returned a verdict, with interest, of approximately $11,000,000. Under the Consumer Protection laws the award may be doubled or tripled as a punishment and as a deterrent. The state Supreme Court decided that 2x the jury award was an appropriate remedy for the many years of delay caused by the insurance companies. The punitive damage award was $22,000,000. I previously stated, in Part 2 of our punitive damages discussion, that money is the only sanction that gets the attention of an insurance company. At least in Massachusetts, insurance companies now have a clear motivation to do the right thing. It just became more expensive to ignore the law than to follow its requirements. The total amount of money that the insurance companies are required to pay  Mr. and Mrs. Rhodes is approximately $33,000,000. This case is particularly significant for the little guy who gets hurt once when injured and once again when they just string it out and hope to lowball and stonewall him. Prior to this ruling, the Massachusetts courts were looked upon as paper tigers on the issue of 93A and 176D. All this case does is to bring the courts back into line with what is fair and reasonable.

A Winning Attitude: Preparation for Trial

December 22, 2011

A Winning Attitude: Preparation for Trial

Based Upon The Book: The Mental Game of  Baseball by Dorfman and Kuehl

Annotations By Arthur F. Licata

1. The success we achieved in the past is more important than the failures we fear in the future.

2. Confidence: an attitude; the feeling a player has that he will perform well.

3. To go in to a competition with a sense of positive anticipation and well-being.

4. The typical athlete goes all out in competition. That’s easy. The exceptional athlete goes all out to prepare for competition.

5. The most prepared are the most dedicated.

6. Timing-knowing when you are ready.

7. The mind needs a warm-up as well as the body.

8. Create a mental state of mind that produces a calm, quiet confidence.

9. develope a mental peacefulness generated from complete preparation and then the time to quietly relax the mind through meditation.

10. Every “game” is prepared in the same way. Consistency and the repitition of successful physical acts and mental images lead to more success.

11. Develope consistency whether it is in practice , a regular game or the “Super Bowl”.

12. Good habits, practiced over and over again, lead to a winning way.

13. Visualization: the process refers to the ability to recall information in physical forms and images instead of words. A person mentally “sees” and experiences a winning sensation.

14. Use your imagination to mentally see all that you do and all that flows through you to create a winning experience mentally even before it physically happens.

15. Visualization: it programs the nervous system, muscles and fibers of the body.The cleaner the image-the more detail-the greater the effect upon the body’s readiness to perform successfully.

16. Imagination can trigger nerve and muscle response.

17. Your heart, breath, nerves and muscle all get their images from the internal pictures you draw and send to your nervous system.

18. To win you first must win in your “mind’s eye”.

19. Perform mental replays of successful performances.

20. See and Feel yourself performing just the way you want.

21. See yourself winning before you even begin to compete.

22. We realize that some conditions and problems are uncontrollable. But, when we control our reactions to problems and adversity we are controlling their effect upon us. How we act and react will illustrate the degree of our self-control and our mental discipline.

23. Pattern of control: control our awareness; control our thoughts; control our self-talk; control our behavior-mind/body connection. Thoughts influence the body and the body influences one’s thoughts.

24. We need balance. The pressure to perform successfully should not be too high and not too low. The goal is to maintain an even strain. A mental state of equilibrium.

25. Emotional trouble begins and stress and anxiety escalate when a person starts to concentrate on what the opponent might do; or what is happening to himself rather than on what he wants to make happen.

26. Control is lost when a person’s feelings and thoughts focus on consequences, e.g. catastrophic thinking.

27. Bad feelings are hard to control. The baseball pitcher, Tom Seaver, admitted: “You feel it is all hopeless. you want to quit. You have to force yourself to forget and start over as if it never happened.

28. Be intense without anxiety.

29. Negative thinking. Man is what he believes. The immune system and the nervous system are connected. What happens to one affects the other.

30. Breathe: a simple calming and awareness technique.

31. Pressure; antidote – preparation for performance.

32. Challenge and not a danger. Those who enjoy the challenge enjoy it because they interpret it as a challenge and not as a threat!

33. Positive self-talk: a calming and refocusing technique.

34. Fear of failure and imagined consequences create pressure.

35. Some sources of fear: the expectations of others.

36. Positive pressure: being “up” for a game.

37. Negative tension: fear of failure; the expectancy of the inability to perform, e.g. “choking”.

38. Resetting your balance.

39. Getting away from the source of the pressure.

40. Moving and stretching.

41. Visualization.

42. Tensing and relaxing.

43. Talking out loud.

44. Controlled breathing.

45. Really concentrate on the task and then let it go.                                                 Become “in the Zone.” Yogi Bera said: “why think?”

46. Loss of performance can be initiated by  a loss of self-confidence.

47. There is the danger of over-thinking a problem.

48. Practice and preparation create in a person a habituated winning behavior.

49. Muscle memory subconsciously wins before the act of doing is ever begun.

50. Anger: It creates a self-fulfilling behavior of failure. Inner intensity is a characteristic of all great athletes if it is applied to their performance in a positive way. These outstanding athletes do not punish themselves or put their emotions on parade. They examine what has happened during their performance in a rational way. They work at improving or fixing it. They know that anger makes it more likely that they will make another mistake. They will be distracted by what they just did and not focus on what must be done.

51. A mistake can be a learning experience to improve one’s performance. A mistake is not a value judgement on the person and it does not make him a failure because he made a mistake-especially if he learns from his mistakes.

52. The golfer, Jack Nicklaus, believed that instead of becoming emotional in a situation that might provoke another golfer to anger, he simply concentrated more on the task at hand. Athletes that learn to do that perform marvelously under pressure.

53. Pain: The yogis in India learned to enable the mind to exert control over the body’s autonomic nervous system.

54. Mental discipline and pain control. Mantra: I am performing pain-free; I am strong and healthy; I am healing more and more each day; My body is healthy and pain-free; I am healing and nurturing my body.

55. Start with relaxation and then move on to visualization. Feel yourself becoming warm, calm, quiet and relaxed. A relaxed person is a confident person. Confidence and a positive attitude result in the lowering of anxiety and thus lessening interference due to antagonistic muscle tension or the loss of one’s ability to direct and control his undivided attention towards the task at hand.

56. The striving for excellence is the enactment of the player’s idea of winning. The right results come from the right approach.

57. When you know the right way, and you know you want to go that way, there is no acceptable reason to make any other choice.

58. One must learn to accept adversity as part of the game of life; do not magnify the adverse conditions and seek sympathy.

59. Ingredients for winning: set the goals; set your goals and not the goals of “others”. Have the determination and committment to do the work necessary to succeed. Accept responsibility: to be responsible for what one does.

60. Attitude: a positive state of mind.

61. Confidence.

62. Learning: they know enough to learn how.

63. Preparation.

64. Mental discipline.

65. Self-esteem: how one thinks about oneself has an impact upon his thoughts and actions.

66. Learn to win or failure becomes a self-fulfilling prophecy.

67. Winners think of problems not as negative factors or obstacles but as challenges to overcome.

68. Failure is part of learning; just do not repeat past mistakes.

69. Winners are exceptional because they meet life’s challenges-they do and act-with positive thinking.

70. The effective integration of one’s mind and body can maximize one’s potential.

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Medical Information: Proof of Damages

December 2, 2011

Case evaluation, prior to accepting a client and executing the contingency fee agreement, frequently requires the preliminary assembly of medical information.  This preliminary evaluation process of medical information is all the more necessary when determining whether to accept a medical malpractice case.

It is good practice to retain a nurse and/or doctor to review the medical records and to assist in evaluating the potential case from a medical perspective.

The basic factors which are used by experienced trial counsel in evaluating large cases are the same fundamentals they use for analyzing their smaller cases when they were not so prominent.

A case is “small” in terms of economic value usually because the injury is not severe; the injury has successfully healed; there is little long-term disability; there is a lack of chronic pain or restriction of movement; or the economic value of the medical care is modest.

Smaller cases are useful preparation for attorneys to learn the skills necessary to handle major litigation.   The presentation of small cases is in fact, necessary for the artful maturation for one to become an experienced trial counsel.

I. How to Collect Medical Information

The initial source from which one obtains medical information is the client.  The process should begin at the initial client interview when the attorney asks questions of his client about the accident and the injuries caused by it.  The initial consultation can be augmented by giving the client a questionnaire to complete which inquires about the client’s current medical condition, medical history, present disability and associated pain.  This is a low-cost effective way to begin documenting your client’s medical damages.

The second procedure which should be completed at the initial consultation is to have the client sign medical authorizations so that you can obtain photocopies of his/her medical records from all of the pertinent health care providers.  These health organizations include:  doctors, hospitals, clinics, physical therapists, specialists and/or consultants, nursing homes, chiropractors, social workers, psychologists and psychiatrists, dentists and pharmacies.

When requesting medical records from a hospital, it is particularly important to send medical authorizations to each of the following departments:  medical records, radiology – for copies of x-rays and the accounting or billing department.  Though each patient is entitled to receive a photocopy of his medical records there is a charge for photocopying the record and for the cost of copies of x-rays.  By-laws of the Massachusetts Board of Registration and Discipline, approved at its meeting September 22, 1978, and M.G.L.c. 111 section 70.

It is important to be specific and careful concerning the information which you are seeking.  Many hospital administrators do not consider an accident and/or incident report, nurses’ or doctors’ notes of an accident, autopsy reports or peer review committee minutes as part of patient’s “medical record.”  It is better to ask for it with the following phrase “. . . including but not limited to the (e.g. autopsy) report . . . ”

Query:  From whom should you request medical information?

You should request records from the doctor(s) and hospital(s) which treated your client after the accident, but do not overlook the records of care-givers such as physical therapists, rehabilitation hospitals and family doctors.  Pre-accident medical records are important in that they 1.) provide an accurate picture of your client’s medical condition prior to the accident, and 2.) test the veracity of your client’s rendition of the facts.

This preliminary review of the medical records is an absolute necessity, perhaps more so in medical malpractice cases, and will assist you in determining whether or not your client has a viable claim.  The review process will also assist in identifying liability issues which may be contained within the medical history.  As the medical record is assembled it will document treatment, conscious pain and suffering, mental anguish, pain associated with the treatment, rehabilitation, disability issues and support the damage portion of the case.

II. How to Use Medical Records

A.     In order to admit the hospital records themselves, M.G.L.c. 233, section 79 provides an exception to the hearsay rule.  In order to be admissible, the hospital records must be kept pursuant to M.G.L.c. 111, section 70.  Out of state hospital records also appear to be admissible if they are kept in a manner similar to the dictates of M.G.L.c. 111, section 70.  (see, Commonwealth v. McDonough, 400 M639, 642 (1987); Commonwealth v. Sargent, 24 Mass. App. Ct. 657 (1987)).

A client’s medical record is necessary to establish the causal relationship between her accident and her resulting injuries.  It not only provides the factual underpinning upon which a doctor can render an expert medical opinion, but also provides objective documentation to which the doctor can refer for her diagnosis and prognosis.

B.     The jury, in its common knowledge, cannot determine whether the injuries suffered by the client are related to the accident.  This type of expertise is beyond their province and requires expert testimony by a qualified physician.  Thus, it is necessary to introduce medical records into evidence at trial.  A doctor can testify about his treatment and use his office notes to refresh his memory.  He can also state what he charged for his services.  The hospital record is subpoenaed into trial by the plaintiff, and is usually brought to the court clerk’s office by hospital personnel.  If appropriately documented by the subpoena, the record can then be offered into evidence by plaintiff’s counsel.  Medical bills can be automatically admitted into evidence through the affidavit procedure by M.G.L.c. 233, section 79G.  These records must be admitted into evidence so that they can be referred to during trial testimony.

The doctor, either treating physician or retained expert, uses the plaintiff’s medical record to objectively document pain and suffering, disability, limitation of motion, the need for specialized prosthetic devices, home care, modified home environment, nursing or rehabilitative institutional care, limitations on work capacity or types of occupations, learning disabilities and emotional and psychological impairments.

Medical testimony and the extent of injury is often explicated by the use of photographs.  Some doctors, particularly plastic surgeons, take photographs to show the before and after results of their work; photographs taken by family members or by professional photographers showing injuries sustained by your client can help to illustrate the doctor’s testimony.  3 Wigmore Evidence, section 795 (photographs of injured or mutilated parts); trial judge’s discretion as to the admissibility of photographs, Commonwealth v. Bys, 370 Mass. 350 (1976); exhibition of a person’s injury constitutes direct evidence of a material fact, Commonwealth v. Woods, 339 Mass. 7 (1959); photographs, skeletons, medical charts used as chalks at trial, Peloquin v. Robert Northbridge Furniture, 343 Mass. 317 (1961).

Practice Tips:  Retaining a nurse practitioner or a rehabilitation therapist to review and interpret the medical records can be very helpful.  These professionals can also assist the attorney in understanding what the medical terms mean in order to accurately and persuasively document the treatment rendered.

No Fault Insurance Law:  A plaintiff is required to have at least $2000.00 of reasonable and necessary medical expenses, or a fracture or scarring before he is permitted to bring a lawsuit for pain and suffering against the defendant as an operator in an automobile accident.  M.G.L.c. 6D;  Victum v. Matin, 367 Mass. 404 (1975);  Pietroforte v. Yellow Cab of Somerville, 19 Mass. App. Ct. 901 (1985)

III. The problem Areas in Medical Records

A.     There are, at times, inaccuracies in a medical record which often cause the plaintiff’s attorney difficulty.  The medical history section of the hospital record is the place where the accident is described.  Harried emergency room personnel who have little time and concern for the details of the accident, often transcribe their impressions in shorthand phrases which are, at worst, wrong and, at best, misleading.  The victim often is not the most coherent transmitter of information because he/she is seriously hurt, in pain, and/or in shock.

The nurses’ or doctors’ notes can contain inaccurate descriptions of liability issues and/or pre-existing medical problems.  On the other hand, these same liability notes, if supportive to the plaintiff, are admissible.  If a doctor testifies that he used information about the accident to help him determine his course of treatment, this information can be offered into evidence by either the plaintiff or defendant at the discretion of the trial judge.   Commonwealth v. Sargent, 24 Mass. App. Ct. 657 (1987);   Wright v. Precast, Mass. App. Ct. 1014 (1985);  Terrio v. McDonough, 16 Mass. App. Ct. 163, 175 (1983);  Commonwealth v. Perry, 385 Mass. 639, 641, 642 (1982).

B.     Pre-existing medical conditions which are the same or similar to the condition for which the plaintiff is seeking damages can also create problems.  A typical situation is as follows:  the plaintiff claims a herniated disc as a result of his/her accident but the hospital records, x-rays, radiologist’s reports and family doctor’s records indicate she was treated for the same condition several years prior to the accident.

If the plaintiff’s attorney is faced with this situation there is still a tactical way in which to handle it.  It is credible to state that the pre-existing condition was asymptomatic, that it caused the client no problems in her daily life prior to the accident, and/or that the problems associated with the pre-existing condition were transitory or intermittent and are now chronic and permanent.  The plaintiff’s doctor is then in a position to testify that the person’s injuries are an aggravation of a pre-existing condition and that what was once intermittent, is now a chronic and permanent condition.  Wallace v. Ludwig, 292 Mass. 251, 256 (1985).

C.     Negative or equivocal remarks by the client’s treating physician can lessen the strength of her claims.

In some instances the treating physician is unwilling to state or to opine that the plaintiff’s condition is causally related to the accident.  The doctor refuses to cooperate with plaintiff’s counsel, refuses to find that the accident contributed to the disability and is unwilling to testify in court.

This reluctance of doctors to cooperate with plaintiff’s counsel is now pervasive due to negative insurance company advertising, increased medical malpractice insurance premiums and a developing disdain on the part of health care providers for the legal system and in particular the attorneys who practice in the personal injury area.

IV. Medical Records Are a Necessary Pre-Requisite for a Doctor to Render an Expert Medical Opinion

A doctor retained by either party is usually asked to render an expert opinion in two parts:  1) the injuries are causally related to the accident; 2) the diagnosis, prognosis and pain and suffering associated with the injury which can be used by the jury to evaluate the appropriate damage award.  A defendant is liable to the plaintiff for reasonable compensation for pain and suffering caused by the defendant’s negligence.  Past as well as future probable pain and suffering may be a part of the plaintiff’s damages.   Cuddy v. L & M Equipment Co., 352 Mass. 458 (1967).

Doctors are frequently retained to render expert medical opinions (pre-trial for settlement purposes), for litigation purposes and ultimately for trial testimony.  The availability and cost of expert medical opinions is beyond the scope of this monograph.  Suffice it to say that you should obtain the best doctor you can find and work with him/her as closely as possible.  A review of the medical records with your client’s treating physician or a doctor retained for expert testimony is mandatory.

The better you comprehend the record and know its contents, both pro and con, the better prepared you will be to use its contents in the presentation of your case.

V. How to Order Medical Records – What to Ask For

You want everything and its a pain in the neck to obtain it.  You should keep track of what you have ordered and which health care providers have responded or failed to respond.  If possible, and if you believe your client is capable, have him/her obtain their own medical records.  The benefits are better service from the hospital, less antagonism from hospital personnel, quicker assembly of the record and decreased costs to you because the clients pay for them.

You must always read the records when they are received.  Sometimes pages are missing – sometimes pages are illegible.  If the words are unclear it is important to know what is written and what it means.  A doctor may purposely obscure a term or an entry.  If necessary, the doctors should be deposed and required to clarify the medical terms and interpret the record.  Photocopies are frequently so light that subsequent copies for office use will be difficult to reproduce.  You should check dates:  when the operation was performed, when the operative note or autopsy report was dictated and when it was transcribed (especially in medical malpractice cases).  Check the dates and the name on the x-rays; ask the hospital radiology department to make a complete copy of the x-rays and bill you for them.  Be prepared to pay in advance for medical records and x-rays and doctor’s reports.  X-rays can be made into positive prints by a reputable photo lab and used for settlement purposes, for review with your experts or as guidelines for medical illustrations.

The discharge summary of a hospital record is that part which briefly summarizes the course of the patient’s treatment while in the hospital, but it is by no means the complete hospital record.  Its use may be compared to one reading a book review instead of the book.  A good claims adjuster will not be satisfied merely with the discharge summary.

To increase its usefulness, the medical record should be segregated into its component parts for easy reference.  A medical record should be separated, tabbed and indexed so that it is easily digestible by laymen and experts alike.  This is particularly useful since different people will have greater need or place grater emphasis on different segments of the record.  A basic format could be organized by subject matter:

i.     admit sheet

ii.    operative note

iii.   consult notes

iv.   pathology reports

v.    radiology reports

vi.   nurses’ notes

vii.  medication records

viii. x-rays

ix.    doctors’ notes

x.     test results and reports

xi.    incident/accident reports

xii.   peer review committee minutes

xiii.  autopsy report

xiv.  discharge summary

xv.   accounting/billing records

VI. Medical Reports – Does One Need Them?

One should distinguish between a patient’s medical records and medical reports which are prepared by a doctor upon request.  A doctor can charge the requesting party a reasonable fee for his time spent reviewing the patient’s record and preparing a written report.

A medical report is usually a typed document prepared by a doctor at the request of an attorney.  If it is written by the treating physician it is usually discoverable as part of his office records.  If the treating physician is retained by the plaintiff’s counsel as his medical expert, it is more likely the report can be kept confidential, but there is no certainty under the discovery rules in this regard.  The use of a treating physician as an expert is preferable to an outside doctor since he is retained for treatment by the client rather than being hired by the client’s lawyer for litigation purposes – the classic hired gun.

If an expert medical report is written by a person specifically retained by an attorney it is frequently discoverable pursuant to M.R.C.P. 35(b) and 26(b)(4)(a&b). (see also, 7 Mass. Rules (Smith and Zobel) section 26.6; 35.6; 35.7)).

Practice Tip:  It is a good idea to communicate by telephone, in person or by correspondence with the doctor from whom you are seeking a report.  It is helpful to outline for him/her the general context of the case; provide for his/her review a photocopy of the pertinent medical records, and if necessary, x-rays; and arrange for him/her to examine your client.  The client examination is frequently delayed until right  before trial by some attorneys to save money, but this procedure is often awkward and it tends to undermine the credibility of all concerned.

A doctor’s report usually contains a history, a summation of the medical treatment to date, an examination and testing of the patient with the notation of significant findings, a diagnosis and prognosis.  The prognosis may discuss future care, disability and the costs associated with treatment.

If the future projected care is substantial, a medical economist can use the doctor’s report to project the reasonable and necessary medical costs for future care.  A vocational specialist can use the doctor’s report as the factual foundation for his opinion relating to employability and task function in the open job market.

Language limitations and translation difficulties or misunderstandings can create serious problems if not carefully addressed.  You should accompany your client or have a nurse practitioner go with him/her to the examining physician’s office.  This is particularly important when the examination is being performed by a physician retained by the defendant’s attorney.

It is safe to assume that all expert reports are discoverable under certain circumstances.  You may want to consult with the doctor verbally to review her findings, prior to preparing a written report.  You may also decide that a written report is unnecessary or counterproductive.

Although medical reports are not admissible into evidence, medical treatises, periodicals and books are admissible pursuant to the guidelines of M.G.L.c. 233, section 79c.

VII.  Why Do You Need Medical Records to Substantiate Damages

The basic elements of damages in a personal injury case are:

A.  medical care:  past, present and future

B.  pain and suffering:  past, present and future

C.  disability:  past, present and future

D.  lost wages:  past, present and future

Medical records are the foundation on which one factually and objectively quantifies the areas for which you want the jury to award damages.  They are used by one’s experts to substantiate their opinions and to assist in corroborating the testimony of the plaintiff and his/her family.

Experienced defense attorneys also use medical records.  A defense attorney is entitled to receive and review, pursuant to M.R.C.P. 34, the medical records of your client because the medical condition of the plaintiff is a fact at issue in a personal injury case.  The defense attorney, pursuant to M.R.C.P. 35(a) is entitled to request a physical examination of the plaintiff by a doctor retained by him.  The court will uphold this request by a suitable motion for discovery filed by defense counsel. When the defendant’s doctor examines your client you are entitled to receive a photocopy of the examining physician’s report pursuant to M.R.C.P. 35(b).

Psychiatric medical records can be particularly troublesome.  Psychiatry is an interpretive art as much as it is a science.  Psychiatrists and psychologists are prone to couch their language in terms of equivocal phrases or in terms of possibilities as opposed to probabilities.   This may be explained by the interpretive manner of the profession but it plays havoc with a litigator presenting evidence to a jury.

Practice Tip:  The concern to the practitioner is that opinions relating to a person’s psyche sometime rebound against the interest of the person seeking the opinion.  Once an opinion is rendered by a mental health professional it is difficult to overcome it if it casts a negative impression upon the client.

This same negative effect can often be created by a defense attorney in the following way:  The plaintiff has physical and emotional injuries.  Some of the physical injuries are not readily apparent:  migraine headaches and chronic back pain.  The emotional injuries manifest themselves in depression and family quarrels.  Plaintiff’s counsel in his zest to validate the veracity of his client’s emotional deposition testimony relating to emotional trauma sends her for a psychiatric evaluation.  The psychiatrist states that the client is depressed because she is suffering from a lack of a positive self-image which may be related to the injuries she suffered in her accident.

The defense attorney then moves to have her examined by a psychiatrist under the guise that her emotional state is an issue in question.  The defendant’s psychiatrist then writes a report that states that the plaintiff’s emotional problems pre-existed her accident and that her physical conditions are psychosomatic – that is, she evidences bodily symptoms and/or emotional symptoms as a result of mental conflict.  In this fashion the defense seeks to undermine both the bodily and emotional injuries for which the plaintiff seeks compensation.

One should note that even the best case can be destroyed by overreaching on medical causation and damages, and by under preparation of medical experts prior to writing an expert opinion or testifying at trial.

VIII.   The Treating Physician v. The Hired Gun

A rule of thumb:  the treating physician usually has greater credibility than a doctor specifically retained to review the medical records, examine the client and state an opinion for a fee.

If plaintiff’s counsel cannot secure anyone but an independent expert, the treating physician should be asked to make a referral or request a consult by the person proposed by counsel.  The consult can then be entered in the plaintiff’s medical record as a referral from one physician to another.

Treating doctors tend to be less antagonistic towards plaintiff’s attorney if they have been forwarned well in advance that they will be receiving a subpoena.  Whether it is the plaintiff’s attorney or the defendant’s attorney who is issuing the subpoena, a quick telephone call from you can only help.

It is also important to note that the preparation of the medical expert with the hospital records prior to his/her deposition or trial testimony is an optional procedure, but an absolute necessity.  Trial experts are a difficult and exhausting breed to properly prepare for trial;  they must be encouraged and at times spoon-fed the medical information upon which they must base their medical opinion.

The best protection for the experienced trial counsel and his medical expert is for the doctor to be told everything:  “the good, the bad and the ugly.”  He should receive photocopies of the plaintiff’s deposition, the defendant’s doctor’s report, and the medical records provided to defense counsel with the addition all pertinent x-rays.  He should review the medical literature or have it reviewed for him by a computer assisted medical check for articles, periodicals, books and treatises consistent with his opinion; this type of computer research should also be made for the defendant’s doctor and his published works.

The testimony of a medical expert generally includes his qualifications, the plaintiff’s case history, initial examination, diagnosis, course of treatment, present condition, cause of the injury, prognosis and amount of the bill for professional services rendered.

Though not a recommended practice, particularly in complex cases, it is not necessary that a physician be a specialist to give an opinion in a specialized area.  Nevanranta v. Koski, 335 Mass. 760 (1956).

A physician may use his records to refresh his memory in testifying but the notes themselves cannot be admitted into evidence since they do not fit into two of the four requirements of the business records exception rule (M.G.L.c. 233, section 78):  the records must be made prior to the commencement of the civil action, and the record must be of an act or an event rather than an opinion or diagnosis.  The Federal Rule of Evidence 803(b) is broader and allows “opinions or diagnosis”.

The facts upon which the physician testifies must already be in evidence.  Leech and Liacos, Massachusetts Evidence, 98-100 (4th Ed. 1967);  Comm. v. Harris, Mass. App. Ct. 265, 266-267 (1973).

IX.  Health Maintenance Organizations

It is estimated by the government that a majority of the doctors practicing within the U.S. are associated with some type of health maintenance organization and/or group practice.  HMOs are prepaid health care centers which charge their members a flat yearly fee, on a single, family or group basis, for all their medical needs.  In exchange for a sum certain the HMO agrees to provide for virtually all the health care requirements of its subscribers.  These services range from routine annual physical examinations to open heart surgery and rehabilitative care at specialized facilities.

If your client is a member, he or she will not receive a bill for services.  A medical bill is usually the primary factor to substantiate that the charge for services is fair, reasonable and necessary.  It is therefore important to find a way to estimate to a reasonable certainty the monetary value of the services performed at a HMO.  The jury needs this information as a means to assess damages for medical care in the past, present and future.  The mere fact that the client did not have to pay the full value of the services is no different from if he/she had purchased an insurance policy to pay for the medical costs generated by the HMO in the first instance; it is a collateral source.  An exception to this basic rule may exist in medical malpractice cases.

One can obtain the monetary value of the services in a couple of ways.  A financial administrator of the HMO could be asked to review the computer printout of the medical care provided and then ascribe a market value to each service based upon a comparison of like services in nearby hospitals.  Another approach would be to retain a medical economist to review the services provided by the HMO and have him determine their economic value based upon federal and state economic and private industry statistics and reports.

A local example of a facility which does not generate medical charges for its services is the Shriner’s Burn Institute in Boston. Its services are provided without charge.  The market value of its services is extraordinary. They should be documented in those catastrophic injury cases where future medical care is significant and its projected cost can be estimated, in part, from present costs.

XVI.  Future Medical Care and Disability

The cost of medical care has risen in the past and continues to rise at a rate well in excess of the Consumer Price Index.  In fact, the cost of medical care is one of the fastest rates of growth in the U.S. economy.  If one has a client with permanent injuries and longterm disability, it is advisable to retain a medical economist to review the medical care provided.  The information he needs includes the records from all health care providers, the client’s deposition, the medical bills, and the economic records of the client.  With this information the medical economist can project the total cost for comprehensive medical care over the reasonable life expectancy of the client.  This projection would include, where appropriate, the cost of institutional care at a number of similar facilities for comparative purposes.

If you have a client whose future medical problems are not catastrophic in nature, but are more appropriately described as chronic, you still must try to quantify the economic value of the care both for settlement and trial purposes.

If the medical services include an operation to be performed within the next year or so, the treating physician or surgeon is probably able to give an opinion which is admissible at trial, on the reasonable cost of such services.  (M.G.L.c. 233, section 79G allows proof of the reasonable value of past medical costs by affidavit without the necessity of having the physician or hospital administrator testify; also see M.G.L.c. 46, section 19, which allows the introduction of a death certificate into evidence as prima facie evidence of facts recorded).

XVII.  What is Contained Within a Medical Record – Pro and Con – or What Do The Words Mean

It is quite common for a medical record to contain many items which are at best, extraneous, and at worst, harmful to the plaintiff’s case. Such entires may include references to alcohol and/or drug use, abortions, mental illness, and pre-existing physical conditions which are the same or similar to the injury at issue.  Though they may not have any bearing on the current medical problems your client is suffering from, they are veritable targets for the defendant’s attorney to use, if for nothing else than, to question your client’s character.  The abuse of alcohol is often cited as a contributing cause of an accident either as the prime factor or as a contributing factor engendering inattentiveness or limiting the client’s normal physical reaction responses.

If your client has gone to the local hospital for most of his/her life it will contain records from her childhood, adolescence and adulthood.  The hospital records will probably contain old radiology reports and original x-rays, birth control problems and all the myriad things associated with one’s medical care and how it reflects a truncated picture of one’s life.  Many of these entries, in the hands of a skilled trial attorney, can be used to impeach  the client’s veracity, besmirch his/her character, limit his/her medical complaints and ultimately undermine his/her credibility.

On the other hand, the medication chart, if properly used by the plaintiff’s counsel can explicate the drugs used to control the client’s pain:  hour by hour; day by day; and week by week.  Nurses’ notes are often replete with entries documenting a patient’s discomfort, reaction to medication and the patient’s progress or lack of it.

The key to the use of medical records is to know how to read it or how to find someone to assist you in its interpretation.  One should approach the medical records as a story about his/her client, in which her physical condition is a manifestation of her impairments, disabilities and loss of well-being.

XIX.  Why Can One Collect for Medical Care and Pain and Suffering in the Past, Present and Future

A client is entitled to be compensated for her injuries which are proximately caused by the defendant’s negligence. The expenses incurred for medical care due to the defendant’s negligence are a factor the jury can consider in assessing damages and in determining a monetary award.  The jury is not permitted to guess or speculate, but must base its decision on the facts in evidence.  The medical records and expert medical opinion provide the jury with the facts upon which it can make an informed, reasonable and  intelligent decision.

There are times when medical records, reports and comments from collateral sources such as workmen’s compensation files are admissible in evidence within the discretion of the trial judge.  These types of records are frequently used by defense attorneys for impeachment purposes.  The more frequent tactical reason for which they seek their use is to inform the jury that the plaintiff has already received monetary benefits from other sources.  If the plaintiff, for example, has lump summed his compensation case, an itemization of the money received is contained within the settlement agreement.  The agreement also contains the client’s signature with some boilerplate language that the plaintiff is fit or able to return to work.  As a general rule, collateral sources are inadmissible.   Shea v. Rettie, 287 Mass. 45 (1934), but their admissibility into evidence on the issue of the plaintiff’s malingering is within the trial judge’s discretion.  Goldstein v. Gontarz, 364 Mass. 800, 808-809 (1974);  Pemberton v. Boas, 13 Mass. App. Ct. 1015 (1982); Corsetti v. Stone Co., 396 Mass. 1 91985); See also, James N. Esdaile, Jr., The Collateral Source Rule, Vol. 68, No. 3 Mass. L. Rev. 102 (Sept. 1983).

XX.  Jury Charges

A jury charge, although it comes at the end of the case when both trial counsel are emotionally exhausted, is an opportunity for persuasion which should not be lost.  It is at that point that the judge tells the jury the rules under which they decide who wins.

Some judge have standard charges from which they never vary.  Some are open to suggestions and actively solicit proposed jury instructions; and others, particularly newly appointed judges, look to trial counsel for proposed jury instructions as an aide in their learning process.

By the time you reach the judge’s instruction of the law to the jury, the case is almost over, but it is important that the jury understand what they are being told.  Often jurors are told the law, that is, it is read to them, but they have little sense of what it means or what they are supposed to do as a result of being “given the law”.

An attorney can assist the jury in their understanding and aid his client’s case by submitting proposed jury instructions on the issue of medical damages which are clear and concise.

If there are claims concerning unusual aspects of the plaintiff’s care for which compensation is sought, one should include a case citation to substantiate his proposed jury instructions to the judge.  The mere argument of a claim for medical compensation is hollow unless some precedent can be cited either within your jurisdiction or from other leading jurisdictions.  If one is trying “to make new law” it is advisable to cite cases which are as nearly analogous to the client’s claims as one can.  You want to suggest to the trial judge that you are seeking legal evolution and not revolution.

XXI.  Settlement Negotiations

It is a well documented fact that approximately 90% of the cases filed in court are settled prior to trial.   Attorneys, although schooled in the law, must learn the techniques and strategies of negotiation through experience, and trial and error.  The means by which you become a good negotiator is beyond the parameters of this monograph but it is axiomatic to say that one is persuasive as an advocate if he or she can support his position by well documented facts.

The medical care rendered by health care providers is also a means, in part, by which the attorneys, both plaintiff and defendant, prior to trial, go about the task of evaluating the economic value of the client’s case.

The extent of the plaintiff’s injury and the likelihood of future disability is, in part, predicated upon the picture portrayed in the medical records.  Since an insurance adjuster is probably less knowledgeable about the nuances of your client’s medical care and treatment than you are, it is incumbent upon the skilled practitioner to organize, document and package the information in the most easily digestible manner.

In order to get the attention your client deserves, it is important to provide the insurance adjuster with an organized, substantiated and distinctive file on your client – a little incentive for him/her to direct his/her energies to your case out of the perhaps hundreds that are in  his/her files.

Practice Tip:  You can inexpensively create a negotiation or settlement journal or book by photocopying, and indexing the medical records.  This journal should contain a narrative of the facts as they occurred and describe the medical treatment in chronological order.  Each time the narrative refers to an examination, a doctor’s report, a hospital admit note, a consult note, a pivotal x-ray, etc., it should contain a note in parentheses such as, see tab number 1 of medica record.  In this manner, the persuasive nature of the narrative is enhanced by easy reference to the underlying facts.

This ‘packaging’ of pertinent material also makes it easier for the adjuster to read. It eliminates the problem of loose and/or missing pages and creates a narrative theme for the plaintiff’s case.  It may also have the additional benefit of intriguing the adjuster by the professional manner of your presentation, enough so that he/she will take the time to read it.

At a minimum, such a journal disciplines you to get your file in order well in advance of trial.  It also informs the defendant’s attorney that he is dealing with a professional who is willing to exert that extra effort on behalf of his client.

Arthur F. Licata

Pain and Suffering: damages in a personal injury lawsuit

November 17, 2011

Everyone has heard the term “pain and suffering” associated with damages in a lawsuit. Many people discount the legitimacy of such damages and consider them overblown or exaggerated. This suspicion of  “pain and suffering” appears to exist until you are injured, until you are thrown into a world of hurt and until your world is turned upside down. Because pain and suffering is difficult to prove it does not mean that it does not exist.
For example, many people believe in god but no-one has ever seen the Divine.

Pain and suffering comprises both physical pain and emotional pain. Let’s see if we can describe what it feels like to be in constant, severe and unremitting pain:

the worst of hells is continuous pain; hell is continuous suffering;

pain and suffering shrinks your life; pain reduces your reality.

if life is a river you stay on the shore in the same place as when you were injured.

life continues in its normal flow without you.

you are disconnected from yourself, other people and the life you knew.

your identity is snatched away from you and you are in solitary confinement with yourself.

says the Buddah; he who is in perpetual hell never dies even if he wants to die.

infinite suffering for infinity.

constant unrelenting pain, every instant and for every second without relief with only death being able to relieve the pain.

“they shoot horses don’t they” to relieve their suffering.

the pain scours you.

it strips you of your self-respect.

it makes a coward out of you.

it debases you.

it makes you feel ashamed of yourself.

It, the pain, robs you of your hopes and dreams.

There is not enough money in the world to balance the scales of life to endure this pain and suffering. It is your reality from the moment you open your eyes in the morning to the time you struggle at night to close them.

These are some of the reasons that pain and suffering are part of the damages considered by juries in personal injury cases.

Arthur F. Licata

THE RULE OF LAW

September 17, 2010

THE RULE OF LAW

Why Is Democracy Failing?

Why is the rule of  law so important?   What characteristics separate a democracy from a dictatorship or oligarchy?  Why does the form of government play such a large role in the health and welfare of its people?

The rule of  law provides a system that holds people responsible for their actions.  Each citizen must be treated equally.  Even the most powerful are held accountable by the courts and are punished for their transgressions.

The rule of law works if the actions of elected officials are not arbitrary or capricious.  The laws, rules and regulations enacted by the people’s representatives must reflect a concern for the communal good.

These equitable concepts are deeply embedded in the U.S. Constitution.  It is assumed that the rule of law will protect our freedoms and that the right to be safe and secure in our homes will be respected.  The question then arises whether we have the wisdom and discipline to preserve, protect and defend these rights and privileges.

In the U.S., a legal  system has been established that tries to balance the needs of the individual with the needs of the community.  It tries to insure the greatest possible good for the greatest number of people.  Yet, there is unease in the body politic.  People recognize that something is wrong.  Things are not working.  The middle class is shrinking.  More and more people are falling into poverty.  Wages have remained stagnant.  Good manufacturing jobs have fled overseas.  The disparity between rich and poor has significantly widened and continues to do so.  The rich get richer.  The privileged seem to go unpunished and unrepentant.  The Congress is detached from the needs of its constituents.  Senators and Congressmen are primarily concerned with their re-election.  They want to stay in the exclusive world of Washington, D.C.  Special interests get preferential treatment as a result of their campaign contributions.  The checks and balances so brilliantly  incorporated into the Constitution have been circumvented.

Why does Democracy seem to be failing?  One reason may be that democracy requires intelligent and dedicated leaders.  It requires leaders that exhibit the political will to vote for what the country needs.  It also requires leaders who will resist the short-term interests advocated by political operatives and lobbyists.

People sense that there is no longer a level playing field.  In the name of deregulation, free market capitalism has turned into a rapacious, unfair and unequal system where the winner takes all.  The strong prevail and the weak get crushed.

The rich no longer want to share.  The middle class live from paycheck to paycheck.  Their job security is non-existent.  Their ability to raise a family with two parents working full-time jobs is under attack.  Is the country able to survive its leaders?  The accepted wisdom is that these problems are transitory.  The pendulum swings back and forth and that, over time, the system will return to equilibrium.

However, there is another view.  It is the belief that the American Century is over.  It posits that the preeminence of the United States was approximately one hundred years, that is, from 1890 to 1990.  It is now in the position of Great Britain after WWII.  The USA is broke.  It is the biggest debtor nation in the world.  It has and is living beyond its means.  Its national debt, its trade-imbalances and yearly deficits are unsustainable.  Just as Great Britain saw its power slowly decline and its Empire disintegrate,  so will the United States  experience the same phenomena in a shorter period of time.  The melting pot has turned into a cauldron of special interests.

The tragedy is that this decline is not inevitable.  It is self-inflicted.  The lack of political leadership, the lack of economic discipline, and the lack of shared communal values have undermined the country’s strengths.  The strengths of the U.S. political system is universal education, political accountability, a Constitution and a Bill of Rights, an independent judiciary, and a representative government.  The rule of law was designed to promote societal and economic values that benefit everyone and not just a privileged few.

The weaknesses of the U.S. system is a lack of political leadership; the corrosive effect of campaign contributions;   of the minority; the influence of  lobbyists; the culture wars; anti-governmental attitudes; individualism over communal needs; narcissism versus discipline; the lack of long-term planning; and the fragmentation of society.

The U.S. government waits for disasters to happen before it fixes a problem.  It is reactive instead of proactive.  An example of this gridlock is the national fiscal crisis.  The government is experiencing budget deficits, trade deficits, and a national debt that are unsustainable.   The Congress is well aware of these facts but it refuses to act.

In contrast, dictatorial regimes seem to have some advantages over democracies.  They do not have to be concerned with political gridlock when trying to implement national goals.  They can respond quickly to a perceived crisis.  Long range planning allows them to take advantage of their political and economic competitors.  The oligarchy that rules the P.R.C. (China) has set an agenda in which whole communities and villages have been sacrificed to achieve enormous national goals, e.g., The Three Gorges Dam.

Oligarchies also have the advantage and luxury of  time.  They are able to be patient.  They are not driven to make hasty decisions on insufficient information as a result of the 24-hour news cycle.  The influence of lobbyists is absent, although it must be admitted that corruption is rampant.

For example, in order to maintain power and control, the Chinese leadership has made a devil’s pact with its people.   Political freedom is not tolerated but, in exchange, its citizens are free to become rich.  There is a tacit understanding that says “Stay out of politics, accept the primacy of the Communist Party, and you can make as much money as you wish.”

The Chinese Communist Party prohibits political dissent in order to maintain its monopoly.  It forbids unauthorized street demonstrations; protests, referendums or initiatives;  opposition political parties; civil liberties; criticizing or questioning the rule of the political elite; and disputed elections.  The Communist Party maintains its dominance by nominating all candidates for political office.

In the last twenty-five years, this social compact has generated an economic miracle.  China has become the factory floor to the world.  It has hollowed-out the manufacturing base of the United States.  China has sown the seeds of surpassing the U.S.A. as the most powerful economic power in the world by the middle of the 21st Century.

The economic, political, social and cultural survival of the United States is at risk.  Yet, many people in the United States are still unaware of the threat’s severity.  We have a sense of entitlement.  We seem to believe that our country’s preeminence is permanent and not necessarily re-earned every generation.

The young people of the United States may be the first generation in a hundred years whose standard of living is less than that of their parents.  The flexibility of our democratic institutions rests, in part, upon the existence of this vast middle class.  In the past, everyone believed that with hard work, a good education and perseverance they could increase their standard of living.  They thought they would be able to leave to their children a world better than the one they had inherited.  Those beliefs and dreams are now under siege.  Young people now question whether their future standard of living will be better for themselves and their children.

This economic uneasiness can lead to political instability in the manner that was experienced during the Great Depression.  What is more troubling is that our leaders do not seem to understand the immediacy of the problems and the depth of their dangers.  They very freedoms we hold most may not be sustainable with a shrinking economic pie and the perception that the rich have abandoned the middle class.  Do our leaders, political and economic, have the will and the courage to make the hard decisions that may not come to fruition for a generation?

An example of a country where the rule of law is non-existent, is modern-day Russia.    Corruption is endemic to the system.  It permeates the entire governmental, judicial and social environment.  Its citizens have no rights upon which they can rely.  The courts are subject to political influence.  Domestic and foreign businessmen cannot make enforceable contracts that will be devoid of political machinations.  Premier Putin and the remnants of the old KGB leadership now run a criminal state.  As a result, after the initial euphoria of the Yelsin years, foreign investment in Russia has significantly declined and continues to do so.  Foreign companies have had their property appropriated by court order under the most pretextual of circumstances.

There is no independent judiciary.  The law is seen as a tool of the powerful.  The courts are avoided because their decisions are politically influenced.

Italy is another example of a country where the rule of law is unreliable.  Its economy is stagnating because it has a culture of corruption.  Despite the fact that it has been part of the European Union for over two generations, its economy is still one of the weakest in Western Europe.  Businessmen cannot rely upon contracts.  They cannot depend upon the courts to enforce their agreements.   The courts and the law are not to be trusted.  Preferably, they are to be avoided at all costs because the powerful and the privileged control them.

The economic crisis of 2009 should serve as a warning.  Many of our most powerful institutions failed.  Our regulatory system did not do its job.  Peoples’ greed and corruption circumvented our rules, regulations and laws.  The disdain of the wealthy and the powerful for the little guy was revealed in all its ugliness.  Short-term thinking prevailed with predictable consequences.  The lack of political leadership and political will compounded the problems.

Human nature will not change.  Greed and fear are part of the human condition.  What we can do is enact and enforce laws that are fair and equitable.

Copyright 2010

All Rights Reserved

Arthur F. Licata,

12 Post Office Square

Boston, MA. 02109

www.alicata.com

Robots and the Law

September 13, 2010

Robots and the Law

On the ceiling of the Sistine  chapel  in  Rome  God  the  Father  extends  his  fingertips  to  touch  those  of  Adam.  By  doing  so,  he  imparts  to him the  gift of  life.

Mankind may be on the threshold of  something similar.  In the not too distant future he may be able to create a robot that is capable of thinking; a robot that has emotions; and a robot that is self-aware.  Human beings are likely to create a robot that may ultimately be more intelligent than they are.

If  human beings do succeed in creating this robotic capability will it lead to the creature turning upon its creators in the manner of the Frankenstein story?  Will it lead to the return of discriminatory laws where robots assume the subservient conditions of slaves in the antebellum South?  Will robots have the rights and obligations of citizens?  Will they have the right to vote, and the freedom to enter into contracts and get married?  Will they be permitted to intermarry with human beings and have sex with them?

If all this seems like fantasy it is not,  and the law,  at the present time, has no  answer  to  these  questions.

Imagine it is the year 2050.   A robot is driving his owner’s nitrogen powered car to the gas station.  The robot has been “in existence” for two years.  He has been sent to fill-it-up before he, the robot, drives the family to its cabin in Maine.

At an intersection the robot runs a yellow traffic light.  He has incorrectly judged the time it would take for him to clear the intersection before the traffic perpendicular to his car proceeded.  He has made a poor judgement.  How is that possible?  Is it conceivable that “it” was daydreaming?

As a result of the crash both the humans and the robot in the second car are “dead” and beyond repair.  The driver of the first car, the robot,  is charged with vehicular homicide.  If found guilty, it will be rendered inoperable.

If  found negligent in a civil suit the careless robot will be indentured for a number of years.  Its work will be monetarily computed and applied to the financial benefit of the deceased’s survivors and owners.  If the robot has its own assets they will be forfeited to the surviving beneficiaries.  Under present law, the owner would be responsible for the actions of his/her robot as a malfunctioning machine.

If the law provides for the accused, in a criminal case, to be tried by a jury of his peers does that mean a robot must be tried by twelve other robots?  If in a civil case a robot is the defendant can the plaintiff’s attorney be prevented from exercising his peremptory challenges so that all the robots are excluded from the jury?  What are the characteristics that make human beings human?

If mankind makes autonomous robots with emotions and feelings to better interact with human beings, doesn’t it  introduce instability into the robot’s architecture?  If he makes a robot that thinks and feels then ultimately the robot may out-learn or reject the very things it was taught.   It would then have the human equivalent of free will.  A robot would become unpredictable and perhaps assume, over time, a superiority complex in relation to human beings.

An example of this reality is portrayed in the Stanley Kubrek movie “2001, A Space Odyssey.”  It is a story about two astronauts traveling into deep space.  Because the trip will take so long a computer with artificial intelligence is programmed to run and monitor not only the equipment but also the vital signs of the two men.  At some point the computer determines that it is superior to the human beings on the flight.  It decides that the men are the weak link in the mission and that it must remove them from control of  the spacecraft.  The computer’s artificial intelligence allows the computer to learn, evaluate and ultimately have emotions.  As a result the computer (a type of immobile robot) develops hubris based upon its superiority complex.  The astronauts spend the rest of the movie fighting the robot for control of the spaceship.  Ultimately, the only way they can prevail is by removing the artificial intelligence data cards from the computer; it becomes inoperative and “dies.”   As it is dying, it is still scheming.  It pleads to them not to disconnect it and that there has been a misunderstanding among them.

Another movie that captures the complexity of the future relationship between humans and robots is “I, Robot” starring Will Smith as a police officer.  The robots in his world have become ubiquitous. He doesn’t trust their reliability towards human beings and the ability of humans to keep the robots under control.  The robots start to develop minds of their own with unpleasant results for the humans.

Humans are developing robots that look and act like them.  They are making these machines the mirror image of humans.  The more robots look like humans the easier it is for humans to interact with them.  In the Artificial Intelligence Laboratory at the Massachusetts Institute of Technology scientists are developing robot heads that mimic the facial expressions, eye movement, and mouth smiles and frowns of people.  These cues and human-like traits are what make human beings comfortable when they interact with robots.

With the remarkable advancement of artificial intelligence, it is not incomprehensible to imagine robots that will learn, learn to learn and act autonomously.  The next step may be that robots will become more intelligent than their human creators.  If you add emotion to a robot’s capability then you introduce into the equation a wild card in which no one can predict how robots will interact with human beings.  There are benign emotions, sorrowful emotions and emotions associated with friendship and love.  These are the ones most advocated by robot enthusiasts.

However, there are other human emotions that robots may mimic, absorb and ultimately inculcate as character traits.  These emotions include anger, rage, jealousy, fear, greed, violence and depression.

In the movie “War Games” starring Mathew Broderick, the U.S. Airforce turns over all decision-making for fighting a nuclear war to a computer.  Only the computer is capable of making the instantaneous decisions necessary to launch intercontinental ballistic missiles in order to counter an enemy attack.  The computer malfunctions and it starts a countdown to thermonuclear war that will destroy mankind.  In an effort to make the computer “learn” and realize its error, the hero of the movie gets it to play checkers in which every game turns into a tie.  At the very last second the computer shuts itself off.  It then voices what it has learned:  “The only way to win is not to play the game.”

This admonition may well be applied to those exploring the frontiers of robots with artificial intelligence.  Man thinks it can control a smart machine or program into it certain limitations or governors to prevent it from turning upon its maker.   These beliefs must be similar to those held by the scientists who built the atom bomb during the Second World War.  Today, the biggest sponsor of robotics and artificial intelligence is the Pentagon.  It envisions robotic soldiers fighting alongside its regular troops.  These robots are described as “better than” human beings in highly dangerous environments.  They can be fitted with video camera eyes that are far more sensitive than humans.  They can be equipped with night vision and infrared capability.  Robots do not need food,  shelter or clothing.   They can be programmed to ignore fear.  They can kill without remorse.  The ties of family, friends and comrades in arms do not concern them.  They will be impervious to pain and compassion.  They will be relentless as machines, even thinking machines, in the pursuit of their destructive missions.  Aerial drones presently used by the U.S. military are a precursor to this scenario.

If a man perfects artificial intelligence in robots it is probable that these machines will have scienter.  This means they will possess a knowing awareness and a premeditation that could lead to passions beyond the imagination of their creators.  Perhaps we will have robots teaching robots and bypassing the human dimension altogether.  What shall we call these people who control the world of robotic friends?  Are they owners, operators, inventors, programmers, masters, superior officers, bosses or overseers?  Will artificially intelligent robots be defined as a person, a product or a thing?  Will robots be considered, under law, an inherently dangerous product or will laws, which apply to human beings, govern them?

What happens if these super soldiers start to act on their own?  What happens if they decide to drop the bomb?  Will man be smart enough to stop them before mankind falls over the precipice and into the abyss?  Will scientists become so enamored by the technological potential of robots that they become overwhelmed by the sheer fascination of being able to do it.  They may forget to ask whether they should do it.  There is some recent precedent for this scientific caution.  At the present time, there is a moratorium by the worldwide scientific community on human cloning.  The potential ramifications of such a technological feat have surpassed man’s ability to cope with the moral, ethical, religious and biological hazards.

Ronald Arkin, a roboticist from Georgia Tech University, recently finished a three-year project with the U.S. Army.  He designed prototype software for what he terms autonomous ethical robots.  He claims that the software contains “ethical architecture” which is based upon the international rules of law.  He states that these machines will have something akin to emotions.  He asserts that he has written software that has the notion of  “guilt.”  He says guilt will act as a preventive mechanism.  It will cause the robots to avoid specific behavior.  Does that mean these robots are capable of refusing to carry out what they perceive to be unethical orders?  If these robots have “emotions” Professor Arkin has also introduced instability and capriciousness into these autonomous systems.  Under the strain of the battlefield these machines may succumb to what humans call post-traumatic stress disorder.  The more humans make robots like themselves the greater the risk that they will develop all the strengths and weaknesses possessed by human beings.  Instead of Mr. Spock’s unemotional and objective demeanor, robots may become “confused” and “irrational.”  In a worst case scenario, the next Praetorian Guard could be composed of artificially intelligent robots.

Isaac Asimov was one of the greatest thinkers about these issues and the godfather of robot science fiction.  In 1950, he wrote the seminal book about robots entitled “I,  Robot.”  In his story he established the Three Laws of Robots:

1. A robot may not injure a human being, or through inaction, allow a human being to come to harm.

2. A robot must obey orders given it by human beings except where such orders would conflict with the First Law.

3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

These rules assume robots to be sophisticated, autonomous and emotional.  They also suggest that in the future robots will be ubiquitous.  The question is how will they relate to humans given the necessity of the Three Laws.  They might become any of the following:  friend, companion, personal assistant, bodyguard, valet, nanny, nurse, soldier, factory worker, competitor or adversary.

There is also the question of whether a robot could become prescient?  Could it think in the way humans do?  Could it have the ability to think about the future?  If robots had the ability to reflect, then, at what point would robots have to grapple with the concept of death or becoming “inoperable?”

This ability to think about the future and to reflect is what separates humans from all the other mammals.  If robots can learn from experience and from past mistakes then certainly over time they could develop prescience.  They may become self-aware and develop a robotic culture different from and perhaps superior to the belief systems of mankind.  At that point robots may be able to negotiate with humans.  Such sophisticated interaction combines intelligence, learning, trial and error behavior, emotion, psychology, strategy, bluffing, facial and body language, and observation.

When robots evolve to become indistinguishable from humans then it will be imperative for the law to address the issue of their “existence.”   They can be built to have their skin, hair, skeletal musculature, voice and body to be similar to humans.  They no longer will be dumb machines performing repetitive tasks on an assembly line.  They may be fully autonomous, intelligent and emotional “beings” or “entities.”  What will they be according to the Law?

When the U.S. Constitution was initially ratified it contained language that defined black people as property.  The law determined that slavery was legal.  Slaves belonged to their masters in just the same way as a horse. Black people could be bought and sold.  What is to prevent robots from becoming the new slaves?  What is to prevent robots from becoming the new overseers?  What is to ultimately prevent them from becoming the new masters?  This reversal of roles is entertainingly depicted in the movie “Planet of the Apes.”  In a post-nuclear holocaust where mankind destroyed its civilization apes are masters and men are slaves.  Certainly technology already exists to make robots smarter than apes.  If man can someday clone man, it is likely he can make robots in the image of man in the same way, it is said, that God made man in his image.

Japan leads the world in the development of artificially intelligent robots. Honda Corporation has a robot called Asimo that can walk, talk, climb stairs and perform tasks that are very human like.  Japan’s leaders have already determined to make robots that are intelligent and autonomous.  Japan has also decided that robots will be ubiquitous.  Its leaders have made far-reaching policy decisions that chart a course for sophisticated robot development.

Japan is one of the most homogeneous countries in the world.  It is 98% native Japanese.  The Japanese like it that way,  but they have a problem. Japan has an aging population.  There are not enough young workers to provide the monetary means to take care of its old people.  There are also not enough people to stay at home and to take care of their parents.  Both husband and wife are wage earners to partly offset the workers that would normally be provided by immigration. Japan’s answer is the use of robots in every facet of life.  It intends to encourage human acceptance of robots that look and act increasingly like their creators.  Japan has already decided that robots will “supplement” human endeavors.  What will Japan do if the robots start thinking for themselves?

Can robots become teachers with a particular robotic point of view? We accept the fact that men and women have different points of view, and that their joint collaboration often produces insight into a problem or a person that neither one of them would have obtained if acting alone.  A collaborative relationship between man and robots is the most likely outcome if robots become intelligent, autonomous and emotional.  Of course, these scenarios always look benign in the beginning, but what if the rise of robots, just like atomic energy, has unintended consequences.  The technology is likely to outstrip man’s ability to understand the pros and cons of another “species” conceivably being able to challenger man’s earthly supremacy.

Perhaps some Supplemental Laws of Robotics are necessary:

1. A robot must not terminate or damage another entity, either human or robot;

2. A robot is responsible for its actions;

3. A freeman (autonomous robot) can be terminated by the State for causing injury and damage in a civil and/or criminal matter.

4. An indentured robot (one owned by a human) may expose and implicate its human owner to civil and criminal sanctions.

How might the future look if robots become human companions and friends?  What we name them will certainly reflect how we define them. It will also provide a glimpse into how we will relate to them.

Consider the friend envisioned by the Japanese.  It is March 17, 2045.  In a suburb of Boston a “unit” backs out of “his” driveway.  It is early morning with the sunrise just breaking over the tree-lined landscape.  Another unit has just started to mow the lawn.  The unit in the car has plugged its electrical/neurological umbilical into the dashboard receptacle.  After the engine started, the GPS activated, the internet-connection confirmed, the home computer instructions downloaded, the unit performed a self-diagnosis and puts the car in gear.  It did so by creating a mental image of where it wanted to go.

The unit was happy.  He had been a member of the Jetson’s household for three years.  Prior to that he had been in a halfway house being further programmed and field-tested.  He had to pass a battery of tests before it could be certified for intimate human interaction as a “home companion.”  For reasons yet unknown to their creators some robots never make it beyond industrial classification.  The scientists that develop them think some robots are just not smart enough or perhaps have not adequately learned to learn.  What is the legal standing of the home companion?  Is it a person?  Does it have rights and responsibilities under law?  Is it some type of being like a dog, that is, a family pet, albeit a very smart one?  Is it merely a very sophisticated machine that is totally dependent upon its human programmers for its survival?

However we use and define robots, their existence will challenge the law for solutions to cope with their existence.  If they are human-like entities that are intelligent,  autonomous and full of emotion, the law will be necessary to ensure man’s survival and his independence.

There are many questions yet to be answered about the use and possible abuse of this powerful new and still evolving technology.  If robots, in some future courtroom, swear to tell the truth upon what value system will they be making their affirmation?  Can a robot make mistakes if it is programmed to learn?  How will it learn from its mistakes?  Who will teach it or will it autonomously teach itself?  If it teaches itself what hierarchy of values will it apply and from what sources?   Is not trial and error part of the learning process?  It seems logical that robots must make mistakes if they are, as humans do, to learn from their mistakes.

As robots evolve to become human-like they will develop the curiosity of human beings.  They may question their own existence and where they come from.  Thinking robots of the future may look upon humans as weak and imperfect creatures.  They may deduce that no human made them because no being can create another being that is superior to itself.

Artificially intelligent robots are likely to develop one of mankind’s primary characteristics, that is, man’s fierce will to live.  It will be natural for man to build robots in his own image and likeness.  If that transpires then human beings run the risk of sowing the seeds of their own destruction.

Copyright 2010

All rights Reserved

Arthur F. Licata,

12 Post Office Square

Boston, MA 02109

http://www.alicata.com

Personal Injury: The Basics

February 22, 2010

The most important thing to remember in a personal injury lawsuit is that the basics are essential:

1. investigate the facts

2. document the injuries

3. interview the witnesses

4. consult with healthcare providers

5. demonstrative evidence is vital: photos, video, x-ray slides and cds,

charts, diagrams, federal and state archives for engineering drawings, etc.

In litigation, it is true that a picture is worth a thousand words.

It is very helpful for the injured person and his or her spouse to keep diaries that document the facts of the accident. They can recall them when their memories are fresh. Clients also need to write a short day-to-day narrative of their physical and emotional injuries, rehab and pain and suffering.

Most people do not understand the trauma of a personal injury upon a person’s physical, economic, emotional and social well-being until they have such an accident.

part of an attorneys work is to speak on behalf of the clients and explain their damages. He or she cannot these tasks without the cooperation of the clients to write these fact rich and detailed narratives.

Arthur F. Licata

There are two main parts to a personal injury case

February 17, 2010

There are two main parts to a personal injury case:

1. liability was someone or a company negligent, that is, careless?

2. damages lost wages, medical expenses, pain and suffering, total or partial disability, limitations on one’s daily activities, scarring or disfigurement.

The plaintiff, that is, the one who is suing has the affirmative duty to prove liability and damages.  It is not the obligation of the defendant to disprove anything.

What is the standard of care, the formula, for proving liability and damages in a personal injury case? To answer that question it is important to first say what it is not. There is a general public misconception of what is required in a civil case.

On t.v. we always hear about “proof beyond a reasonable doubt.” This is the very high stanard of proof the State must provide to the jury to find  a person guilty in a criminal case.

In a civil case the proof, that is, the standard of care is significantly less:

the plaintiff must prove the negligence is “probable.”

The word probable means that  something, a fact for instance, is “more likely than not” to be true. This standard is not the high , very difficult standard in a criminal case.

“More likely than not” can best be understood by visualizing the scales of justice evenly balanced before you. If  the facts tip the scales of justice ever so slightly  one way or the other than there is proof  that it is “probable” or more likely than not.

Arthur F. Licata