Tuesday, July 30, 2002

Blogroots: Using Blogs in Business
Surviving the Bar exam: Law students begin testing process in Charleston today

The Dominion Post captures the frantic cramming of a few law students preparing for their rite of passage.

One student seems perplexed that the February pass rates are lower than the July rates. Could it be because most people take the July exam first, and those who fail in July take the exam again in February? Statistically, I believe those who fail the exam once are much more likely to fail it in their subsequent attempts. The February exam is full of second- and third-timers, so it seems logical that the pass rate would be lower.

Monday, July 29, 2002

Ernie the Attorney is keeping a list of other legal weblogs. He maintains the Law Blogs list in a cool outline format I'm going to have to try for myself in the future.
For some good tips on using technology in the courtroom, take a look at Tech Secrets for Successful Trials at Law.com.

Saturday, July 27, 2002

An article in Slate.com explains how Senator John Edwards is outsmarting Bush on the tort reform issue.

"Edwards is an expert at taking himself out of the picture, because that's what an artful plaintiff's lawyer does. He focuses relentlessly on his client, forcing the jury—or in this case, the electorate—to choose between a poor plaintiff and a deep-pocketed defendant. He reduces the cast of characters from three to two."

Friday, July 26, 2002

Ailing Man Sues Fast-Food Firms
Fox News

"A New York City lawyer has filed suit against the four big fast-food corporations, saying their fatty foods are responsible for his client’s obesity and related health problems."

Folks, we lawyers have an image problem, and this case doesn't help.

Thursday, July 25, 2002

Labor and Employment Law Resources on the Internet 2002
LLRX.com

A great guide to free labor and employment law resources on the Internet.
On trial: Digital copyright law
CNET News.com

"The American Civil Liberties Union filed a lawsuit on Thursday in an attempt to overturn key portions of a controversial 1998 copyright law.

"The suit asks a federal judge to rule that the Digital Millennium Copyright Act (DMCA) is so sweeping that it unconstitutionally interferes with researchers' ability to evaluate the effectiveness of Internet filtering software."

Here are links to the press release, the complaint, and the Digital Millenium Copyright Act.

Wednesday, July 24, 2002

Law School Applications Soar

Findlaw.com News

"PHILADELPHIA (AP) - Law school applications are up dramatically in the biggest rise in at least two decades, and business schools and other graduate programs are also seeing an increase as students decide to stay in class rather than take their chances in a shaky job market.

"It's a big difference from late 1990s, when students skipped graduate school for high-paying jobs and big signing bonuses at dot-coms."

Justice with sprinkles: Danville attorney also operates the community's Dairy Queen
Charleston Daily Mail

"After a stressful workday at his law office here, Scott Briscoe often likes to take off his tie -- and put on his apron.

"Briscoe, 30, then walks across the road and stands behind the counter at his fast food restaurant, where he serves up Dairy Queen hot dogs, cheeseburgers, French fries, milkshakes and banana splits alongside his employees."

Friday, July 19, 2002

Court rulings could strain workers' comp:
Dissenting justices worry about impact


"Two recent state Supreme Court decisions are testing the mettle of West Virginia's already strained Workers' Compensation program. The high court voted to give injured workers more choices and looser standards when it comes to seeking compensation and treatment for on the job injuries." [Charleston Daily Mail]

The decisions are Repass v. Workers' Comp, No. 27730 AND Bower v. Workers' Comp, No. 28392, and State ex rel. McKenzie v. Smith, et al., No. 29645.

The new syllabus points in Repass are as follows:

3. The ultimate responsibility for the fiscal health of the West Virginia Workers' Compensation system rests with the Legislature. Balancing the conflicting goals of minimizing premiums while providing full and fair compensation to injured workers is the exclusive province of our publicly elected legislators, and is not to be invaded by the Commissioner, or the Courts.

* * *

8. A rule promulgated by the Workers' Compensation Division that mandates the use of a non-legislatively created guide for the examination of certain injuries is valid only to the extent that the mandated guide does not conflict with the specific dictates of the Legislature as expressed by statute. Those aspects of the mandated guide that are in conflict are invalid.


9. Because the Diagnosis-Related Estimate Model for the examination of spine injury claims, as set forth in The American Medical Association's, Guides to the Evaluation of Permanent Impairment, Fourth Edition (1993), cannot be reconciled with several specific workers compensation statutes promulgated by the West Virginia Legislature, any medical examination conducted in accordance with that model is invalid and unreliable.


The new syllabus points in McKenzie are

5. The prohibition against employers entering 'into any contracts with any hospital, its physicians, officers, agents or employees to render medical, dental or hospital service' contained in W.Va. Code, 23-4-3(b) [1995] includes contracts regarding the rendering of physical or vocational rehabilitation services.


6. Under W.Va. Code, 23-4-3(b) [1995], an employer is prohibited from entering into any contract with a health care provider for purposes of providing services, including rehabilitation services, to employee-claimants injured in the course of and as a result of their employment.


7. Under W.Va. Code, 23-4-3(b) [1995], a claimant has a right to select his or her initial health care provider or provider of rehabilitation services for the treatment of a compensable injury or disease. If the claimant thereafter wishes to change his or her provider, and if the employer participates in a program to manage health care costs, then the claimant must choose a provider through the employer's managed care program. If the claimant thereafter wishes to change his or her provider, and if the employer does not participate in a managed care program, but the Division does participate in a managed care program, then the Division may choose the claimant's new provider through its managed care program.

8. When the Workers' Compensation Commissioner determines that a claimant is a candidate for rehabilitation services, W.Va. Code, 23-4-9 [1999] requires the Commissioner to develop and implement a plan for the claimant's rehabilitation services. The Commissioner must, with the assistance of the claimant's rehabilitation professional develop and monitor the rehabilitation plan, and the employer, the claimant, the claimant's physician and the Commissioner must cooperate in the development of the rehabilitation plan.

* * *

13. The Commissioner's regulations, policies and procedures regarding referral of claimants to an 'employer's preferred provider for rehabilitation services' are contrary to the clear language of the Workers' Compensation Act, and therefore void and unenforceable.

Wednesday, July 17, 2002

Meet the Nigerian E-Mail Grifters. Those increasingly ubiquitous Nigerian e-mails 'respectfully requesting your assistance' and promising great rewards actually do work -- for the Nigerians. An admitted scammer explains how it works. By Michelle Delio. [Wired News]


Watch out! I have received a snail mail request for assistance from these folks, and it was pretty convincing. I just thought it was a crackpot, but as it turns out, it's a scam.

Tuesday, July 16, 2002

Judge Rules on Web Pop-Up Ads

"RICHMOND, Va. (AP) - A California software company must stop delivering ads that pop up unauthorized when surfers visit the Web sites of several prominent media companies, a federal judge has ruled.

"U.S. District Judge Claude Hilton in Alexandria, Va., issued the preliminary injunction Friday in a lawsuit that 10 media companies filed last month against Gator Corp. of Redwood City, Calif."[ No comments: Links to this post
E-Legal: Court Rules Insurance Doesn't Cover Damage to Computer Systems

"Faced with a consumer lawsuit alleging that AOL's Internet software caused substantial damage to users' computer systems, AOL sued its commercial general liability insurance carrier, arguing that the insurer had a duty to defend AOL in the litigation. A federal court in Virginia disagreed, ruling that AOL wasn't entitled to such defense because the loss asserted by the consumers did not amount to damage to 'tangible' property." [law.com]

Monday, July 15, 2002

For you appellate lawyers
Ernie the Attorney highlights a few articles on technology and appellate practice.

Friday, July 05, 2002

W.Va. Supreme Court holds that non-patients can sue for malpractice

In Osborne, et al. v. United States of America, et al., No. 30115, a family of plaintiffs received catastrophic injuries when their car was struck by a vehicle driven by an intoxicated driver. Blood alcohol tests following the accident showed that the tortfeasor had trace amounts of alcohol in his system, while blood testing for medications revealed the presence of Butalbital, Codeine, and Valium. It was presumed that the Butalbital and Codeine are attributable to prescription medications prescribed by the driver's longtime physician.

Apparently, the physician had prescribed numerous medications for the intoxicated driver, including several controlled substances for the management of pain, but the physician did not always verify that such medications were medically necessary.

In addition to the driver, the plaintiffs sued the physician for malpractice in federal court under the West Virginia Medical Professional Liability Act, W. Va. Code § 55-7B-1, et seq. On a motion for summary judgment, the parties presented arguments concerning the justiciability of a third party cause of action under the Act.

The federal judge ruled that the claim was justicable, but certified the following question to the West Virginia Supreme Court: “Does West Virginia's Medical Professional Liability Act provide a cause of action by a third party against a health care provider for foreseeable injuries to the third party proximately caused by the health care provider's negligent treatment of a patient/tortfeasor?”

The Supreme Court held that such a claim was viable because the Act "permits a third party to bring a cause of action against a health care provider for foreseeable injuries that were proximately caused by the health care provider's negligent treatment of a tortfeasor patient."

The Court seized upon the Legislature's use of both the terms "patient" and "person" in the Act. The Legislature defined the term “'[m]edical professional liability'” to “mean[] any liability for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient.” W. Va. Code § 55-7B-2(d) (1986) (Repl. Vol. 2000) (emphasis added).

The Court held that "it is apparent that the Legislature intended to allow individuals generally to recover damages for injuries attributable to medical professional liability regardless of whether they are actually 'patients.'”

And people wonder why doctors can't afford to practice medicine in this state.

Here is a link to an AP story on the case published in the Dominion Post.