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January 21, 2009 NEWSLETTER
Doug Wojcieszak, Founder & Spokesperson
Contact phone/e-mail address: 618-559-8168; doug@sorryworks.net
THIS WEEK'S EDITION:
SORRY WORKS! EDITORIAL: WATCH OUT FOR UNQUALIFIED "DISCLOSURE" LAWYERS
DISCLOSURE ADVICE FROM NOTED TORT REFORM ADVOCATE
AUSTRALIAN UPDATE
SORRY WORKS! SPEAKING OPPORTUNITIES - PIGGYBACK OPPS?
SORRY WORKS! EDITORIAL: WATCH OUT FOR UNQUALIFIED "DISCLOSURE" LAWYERS
Question...you wouldn't seek criminal defense help from an attorney who does wills and trusts for a living, would you? What about getting your patent filed by a...plaintiff's attorney? Or how about asking a patent attorney to represent you in a med-mal case?
Hopefully you answered "No, no....and no!"
Now, these may seem like absurd questions....but that's the point. We offer up these absurdities to highlight another absurdity: Asking for advice or even a presentation on disclosure and apology from an attorney who knows little about the subject.
Last week we blasted an attorney for penning a poorly written advice piece on disclosure in Medical Economics. The fellow in question is a practicing med-mal defense attorney, but just because someone specializes in med-mal doesn't mean anything when it comes to disclosure.
Disclosure is almost becoming a specialized part of the law. Indeed, at the heart of the matter, disclosure is all about generating evidence for a strong defense, but there's a lot more to it. Attorneys need to be trained on the entire picture when it comes to disclosure. How the program works. Empathy versus true apology. Communicating with patients & families. Compensation and working with insurers. Etc, etc, etc. There's a lot of moving pieces to learn for a would-be "disclosure lawyer."
And we at Sorry Works! are amused - and often aggravated - when we are queried for a presentation or disclosure training and later told that the hospital or insurer simply got local counsel to do the job - and local counsel is on the phone or e-mail asking us what to say to the hospital or insurer!!
In developing and running a disclosure program, you will need legal help. However, before you accept any legal advice ask an attorney or law firm what specialized training they have received in disclosure? If they have received training, who trained them? Moreover, as you develop your disclosure program and start training your staff, demand that your outside counsel participate in the training so they can be on the same page as your organization.
For more information on Sorry Works! training and materials - including the Sorry Works! Book - call 618-559-8168 or e-mail doug@sorryworks.net
DISCLOSURE ADVICE FROM NOTED TORT REFORM ADVOCATE
For those who know the tort reform movement, attorney Victor Schwartz is a giant in the movement. Schwartz coined the phrase, "Judicial Hellhole." Schwartz is also a very personable fellow.
Below is an interview Schwartz had with the Wall Street Journal Law Blog about product liability involving Mattel Toys. Look closely at the advice offered by Schwartz - very similar to many messages championed by Sorry Works!
Advice for Mattel, Courtesy of Shook Hardy's Victor Schwartz
Posted by Ashby Jones
Wall Street Journal Law Blog
Toy-maker Mattel is back in hot water. The company today announced it was pulling off the shelves some 436,000 die-cast cars world-wide that contain lead paint and expanding a November 2006 recall of toys that contain magnets. It was the second recall in as many weeks. Earlier this month, the company announced it was recalling some 967,000 toys that may contain hazardous levels of lead paint, including items featuring popular characters like Elmo and Big Bird.
Perhaps not surprisingly, the lawsuits against the company have already started. And more will likely follow. Add to that any possible govermental inquiries and the inevitable public relations hit and, if you're a an executive at Mattel, you just might have a lot of restless nights ahead of you.
So what does a company do in a situation like this? We checked in with Victor Schwartz, the head of the public policy practice at Shook Hardy & Bacon in Washington. Schwartz's practice is interesting. He and the rest of the public policy folks at Shook Hardy offer high-level strategic advice to companies going through product-liability meltdowns, much like Mattel is. Schwartz, the author of a leading casebook on torts, the former dean at the University of Cincinnati College of Law, a leading tort-reform advocate, and quite a character to boot, shared with us his thoughts on what he'd be telling Mattel were he retained (so far, he hasn't been).
Hi Victor. Thanks for taking our call.
Well, you know, The Wall Street Journal and I go way back. They wrote a profile on me in 1982. After that, I got a number of phone calls from elderly Jewish women.
Uh, okay. So, what advice would you be giving Mattel right now?
What good companies do in these situations is avoid looking at the situation in one dimension. The problems need to be looked at in three dimensions: the litigation dimension, the public-relations point of view and from a governmental regulations point of view. You're not going to believe me when I tell you this, but often you've got these three departments within a company working in three different silos when something like this happens. TheyÂ’re not even talking to each other.
You're right. I don't believe you.
It's true! They all sit in their little rooms and don't talk to each other, which is such a mistake. You've got to coordinate all three dimensions. We call it the Iron Triangle Defense. We actually trademarked that - the Iron Triangle Defense.
You did not.
We absolutely did.
Okay. Well, any other advice?
You've got to act quickly. Your problem is like a stock option - its value changes over time. Some action promptly is much better than sitting around for a month waiting for the perfect action while everyone sits around wondering if your company is in the business of poisoning children. Any delay hurts the company's name. Remember the Pinto? Nobody will ever buy another Pinto. But Tylenol still exists. Why is that? Because Ford dawdled when its Pinto problems broke out. With Tylenol, Johnson & Johnson recalled the product, put sealed caps on the bottles and redesigned its pill. Today, the Tylenol brand is worth billions.
Another reason you've got to act quickly: Every lawsuit is theoretically looked at by a jury - and you've got two weeks from the beginning of the problem to affect the way the problem is looked at by the jury pool, which, in a situation like this, is effectively the entire country. If people see you acting responsibly, if you immediately establish an easy way for people to return products, you're going be seen as doing the right thing. You're also going to lessen the impact of consumer protection class-action cases come along.
Wait, why is that?
Well, by offering refunds now, by taking your loss now, by paying 10 bucks for every lead paint [toy] that's out there you avoid much more in lawyer fees and damages for fraud and misrepresentation. When there's a clear, easy defect to understand - which there may be here - then you work hard to make people who bought the product satisfied.
The situation with Mattel strikes us as different from the situations mentioned earlier, where you've got exploding cars or cyanide-laced over-the-counter medicines. You really can't determine whether anyone's going to wind up injured as a result of the defect, right?
That's right. With the lead paint cases, Mattel isn't going to have personal injury cases now. I mean, if someone has eaten a lot of paint off of one of these toys, maybe. Maybe you compensate that person now. But otherwise, there's nothing you can do on this front.
What about medical monitoring? Does it make sense to settle early with folks looking for money to monitor their children for injuries as they grow up?
I don't really think so. Medical monitoring has been rejected by most courts. Now, if you're in a state [where courts have approved of] medical monitoring - West Virginia and Missouri are the two I'm thinking of - you may want to look at whether there's a serious risk and then talk to the person about assisting if they don't already have good medical coverage. Even then, offer to set up a fund they can use over time. Don't offer cash. Most people just take cash and run out and buy a pick-up truck. With a fund, they have to use it for its intended purpose.
How aggressive should Mattel be in regard to pursuing claims against its Chinese suppliers?
The company should be thinking about this now. But it really shouldn't point the finger through the media. A few years ago, when Jack In the Box had issues with tainted meat, they handled it really well. Jack In the Box said it was responsible - they never pointed the finger...even though the meat was tained when they got it. Jack In the Box is alive and kicking today.
Thanks, Victor. How do you feel about giving Mattel all this free advice?
Ah, it's okay.
AUSTRALIAN UPDATE
A few weeks ago we provided an update on disclosure in Canada with a recent editorial that had numerous problems as well as notice of an upcoming meeting on disclosure. Well, this week we're doing the same for Australia.
On February 6th there will a meeting on disclosure in practice in Bunbury and then again on February 16th in Perth. For more, information, visit http://www.healthreview.wa.gov.au .
Two high-level articles were recently published in Australia on the subject: "Open Disclosure: A Review of the Literature" & "Implementing The Australian Open Disclosure Standard: The legal situation in WA."
The literature review was fairly good minus a gaping hole in the success stories section...they only mentioned the VA Hospital in Lexington, Kentucky. The Lexington VA is a great success story that has been followed up by many more, well-publicized success stories. We encourage the authors to dig further.
As to the legal situation paper, well, uh...just look at the editorial above. Here's the line of the day from paper: "In these jurisdictions apologies can include admissions of fault." The authors were referring to jurisdictions with apology immunity laws. Again, who cares about the legal nothings known as "apology laws" and how can one apologize without an admission of fault? We don't need to get into it again this week....just another flawed paper written by so-called "disclosure lawyers."
UPCOMING SORRY WORKS! PRESENTATIONS - PIGGYBACK OPPORTUNITIES?
The Sorry Works! speaking schedule is filling up quickly for spring and early summer - however, there are still holes in the schedule. Furthermore, when we are out on the road we like to double up with presentations in nearby locations to save on travel costs and make the most use of time on the road. Below is the list of upcoming presentations and dates - if you are nearby one of these sites and would like your own presentation for your hospital, insurer, or association, please let us know by contacting doug@sorryworks.net, calling 618-559-8168, or clicking on this link: http://www.sorryworks.net/presentation.phtml . Furthermore, if you are not by one of these sites but still want your own presentation and see a hole in the calendar, call or e-mail today and help us fill it!
Sorry Works! presentations are perfect for Grand Rounds, ethics seminars, and for training on disclosure and apology. Of course, presentations always qualify for CME & CEU credits.
Feb 2, 3 - Northern Iowa
Feb 6th - Oregon
Feb 10th - Memphis, TN
Feb 11th - San Diego
Feb 18/19th - Northern Indiana
Feb 26/27th - Oklahoma
March 5th - Arkansas
March 10th/11th - Northern Indiana
March 12th (tenative) - New Jersey
March 13th - Connecticutt
March 26th/27th - Oklahoma
March 30th - San Diego
April 10th - Cleveland, OH
April 17th - San Diego
April 22nd - Las Vegas
May 24th - San Diego
May 26th - Seattle
June 19th - Peoria,IL
Call 618-559-8168 or e-mail doug@sorryworks.net to schedule a Sorry Works! Presentation today!
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