Yesterday's Wall Street Journal had three stories on the Marketplace page about events which will influence the practices of DRI members and the lives of all of us over time.

First, Continental Airlines was found criminally liable for apparently improperly maintaining an airliner resulting in the crash of a Concorde outside Paris in 2000. Second, GNC an American vitamin retail chain is on the verge of being bought by a Chinese state backed company for more than $2 billion. Finally, Wal-Mart will receive a hearing at the Supreme Court which will address whether class action litigation is appropriate for employment cases where individual acts predominate.

In the first case, it's the criminalization of acts where there is was no criminal intent when the plane was maintained. Our tort system was designed to address private wrongs and seldom has the criminal process been used to punish mere negligence. We are seeing increased efforts in financial cases, products cases, and in other controversial situations to involve criminal prosecution to precede or augment tort suits. The Dodd-Frank act has put even more muscle behind criminal and civil suits involving financial fraud and at the same time it has created an even greater arena for whistle blowers and their lawyers to profit from uncovering questionable acts. The linking of criminal and civil proceedings isn't new, but it is becoming more prevalent, as evidenced by the Continental case.

If foreign governments take a greater stake in our businesses, on top of buying our debt, will our dispute resolution system survive? How will our regulatory system work with increased foreign ownership of companies which dominate the American marketplace? These foreign influences can impact our commercial and tort systems and bring new interests to the table when decisions need to be made. This is what can happen when more acquisitions like GNC occur.

Finally, if the scales shift the balance in dispute resolution to the aggregation of claims as opposed to a fact by fact, case by case, method of evaluating causation and damages, our system of justice will also change in ways never imagined when we were in law school. That is what is at stake in the Wal-Mart case.

These changes are going to affect all of us, our firms and our practices.  We should all work within DRI to be sure to share what we know and develop effective strategies to effectively represent our clients in the coming years in this very changed world. DRI has been very effective at helping its members do just that for the past 50 years and with your interest and commitment together we can make sure DRI help us all meet these new challenges, too.

When is a "Breach of the Standard of Care" medical liability and when is it criminal liability?  To my mind, that is the central question lying within the case of Dr. Conrad Murray and the death of Michael Jackson.
 
Lawyers who defend health care professionals every day are comfortable with the fluid nature of the concept of the "Standard of Care" for the administration of any treatment, or for that matter any drug or drugs.  There are few hard and fast rules in medicine for good reason; creativity and flexibility are often at the heart of effective treatment regimens.  Off label uses of drugs--sometimes entirely unaddressed by the FDA or the medical literature--can occasionally be magic bullet treatments.  Sometimes only a physicians' knowledge of how drugs work and interact in relation to a cluster of symptoms, and her willingness to try an untested or little tested protocol, will ease a patient's suffering or reverse the course of a disease.  But, too often, if the outcome of a well intentioned effort to use a drug in a novel way is poor or unanticipated someone will claim that a deviation from well accepted and documented treatment methods is a breach of The Standard of Care."  These become the Medical Liability cases we defend often and fully understand.  And, no one suggests seriously that the practice of medicine become so hidebound that each healthcare provider's choices be limited by the FDA or a manufacturer or a certain body of literature to practice and prescribe in certain ways.  Most knowledgeable observers agree than many commonly accepted practices in medicine are not evidence based and need review.  But, Dr. Murray's case might be outside the range of even the most creatively acceptable medical judgment.  Here, we see the unique use of Protocol--a powerful and fast acting Hypnotic frequently used in 'monitored anesthesia' (MAC) outpatient surgical procedures--as a sleep agent in combination with other drugs.  There is no suggestion that electronic monitors were being used or that supplemental oxygen was being provided. There is also no suggestion that a trained anesthetist was present. More...