No. 04-859
IN THE
United States Supreme Court
RALPH H. SPEKEN, M.D. and STEPHANIE Z. SPEKEN, M.S.
Petitioners
V.
THOMAS R. MOORE, ESQ.
Respondent
On Petition For A Writ of Certiorari
To The Appellate Division of the Supreme Court of the State of New York,
First Judicial Department
PETITION FOR A WRIT OF CERTIORARI
2
TABLE OF CONTENTS
QUESTIONS PRESENTED…………………………………………………………………….3
PARTIES TO THE PROCEEDINGS BELOW………………………………………….4
TABLE OF CONTENTS………………………………………………………………………….2
TABLE OF AUTHORITIES…………………………………………………………………….5,6
PETITION FOR WRIT OF CERTIORARI………………………………………………7
OPINIONS BELOW………………………………………………………………………………..8
JURISDICTION……………………………………………………………………………………..9
CONSTITUTIONAL PROVISIONS INVOLVED………………………………………9
STATEMENT OF THE CASE…………………………………………………………..10-14
REASONS FOR GRANTING THE WRIT………………………………………….15-19
I. Our Seventh Amendment Right Was Denied Without A Hearing…………………………..15
II. There Was No Good Reason For Denying The Fourteenth
Amendment Right Of Procedural Due Process……………………………………………………..16
III. There Are Important National Issues In This Case That Should
Be Resolved By This Court…………………………………………………………………………………18
CONCLUSION……………………………………………………………………………………………………………20
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Questions Presented
1. Was the decision by the New York Supreme Court to bar the Spekens from suing their former lawyer Constitutionally deficient?
2. Were the Spekens Constitutionally abused by the deprivation of their Fourteenth
Amendment Procedural Due Process right as well as their Seventh Amendment
right to trial?
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PARTIES TO THE PROCEEDINGS BELOW
Plaintiffs-appellants below are Stephanie Z. Speken, M.S.
and Ralph H. Speken, M.D. They are the parents of the
decedent, Seth B. Speken.
Defendant-appellee below, and respondent to this Court,
is Thomas R. Moore, Esq.
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TABLE OF AUTHORITIES
Cases
Daniels v. Williams, 474 U.S., 327, 339……………………………………………………………………………………..16
Dent v. West Virginia 129 U.S. 114, 123 (1889)………………………………………………………………………….18
Gilbert v. Homar, 520 U.S. 924, 931………………………………………………………………………………………….16
Hallock v. State of New York, 64 NY2d 224………………………………………………………………….11,13,14,15
Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 179………………………………………………18
Matthews v. Eldridge, 424 U.S. 319, 335……………………………………………………………………………………16
Sei Young Choi v. Dworkin, 230 AD2d 780, lv denied 89 NY2d 805…………………………………………….14
Speken v. Columbia Presbyterian Medical Center, 278 AD2d 154……………………………………………….13
Speken v. Columbia Presbyterian Medical Center, 304 AD2d 489, lv denied NY2d 511…………………13
Teichner v. W & J Holsteins, Inc., 64 N.Y.2d 977………………………………………………………………………14
Washo v Washo,170 AD2d 827, 829 (NY)………………………………………………………………………………….13
Wolff, Warden, et. al. v. McDonnell, 418 U.S. 539, 558……………………………………………………………..15
Zinermon v. Burch, 494 U.S. 113, 126………………………………………………………………………………………16
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TABLE OF AUTHORITIES – PART 2
Statutes:
7 U.S.C. …………………………………………………………………………………………………………11,13,15,16
14 U.S.C. § 1…………………………………………………………………………………………………………………9
14. U.S.C. Procedural Due Process right………………………………………………………………….14,19
28 U.S.C. § 1254 (1)………………………………………………………………………………………………………9
Rules:
New York State Mental Health Law § 33.04…………………………………………………………………10
Other Authorities:
“A Measure of Malpractice,” Lucien Leape, et al.,
Harvard University Press, 1993………………………………………………………………………………18
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PETITION FOR WRIT OF CERTIORARI
Petitioners Dr. and Mrs. Ralph H. Speken respectfully petition for a writ of certiorari to review the judgment of the State of New York Court of Appeals. That Court refused to hear our Constitutional argument.
Petitioners are the parents of the decedent, Seth B. Speken who died as a result of medical malpractice at Columbia Presbyterian Hospital in the City of New York. Petitioners allege that they were coerced and defrauded into signing a settlement agreement on July 8, 1999. The contract included a silence clause they did not want.
Petitioners refused to accept the proceeds from the settlement. They initiated suit against their former lawyer for his malfeasance in obtaining their silence. The suit was dismissed without any evidentiary hearing. This petition involves whether such deprivation of the Seventh Amendment right without Procedural Due Process is Constitutionally acceptable.
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OPINIONS BELOW
The legal malpractice lawsuit was originally brought in New York State Supreme Court alleging that respondent coerced and defrauded the plaintiffs into accepting an unwanted settlement in a medical malpractice case against Columbia Presbyterian Hospital. The plaintiffs rejected silence as a precondition for receiving the proceeds of the settlement.
The Decision and Order of the New York State Supreme Court in the medical malpractice case is reproduced at Appendix pages 13a-38a. The Decision of the New York State Supreme Court to dismiss the legal malpractice suit on the grounds of res judicata is reproduced at pages 7a-12a. Subsequently, appeal was taken to the New York State Supreme Court, Appellate Division, First Department and their affirmation of the dismissal of the legal malpractice lawsuit is reproduced at pages 3a-6a. A motion for leave to appeal the decision to the State of New York Court of Appeals was made and denied. This is reproduced at pages 1a-2a.
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JURISDICTION
The State of New York Court of Appeals denied a leave to appeal the decision of the New York State Supreme Court, Appellate Department, First Department, on September 21, 2004.
This Court has jurisdiction to hear this petition pursuant to 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
Section 1 of Amendment XIV of the Constitution of the United States provides:
All persons born or naturalized in the United States and subject
to the jurisdiction thereof, are citizens of the United States and of
the State wherein they reside. No State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
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STATEMENT OF THE CASE
Our son, Seth Speken, died on August 27, 1993, at Columbia Presbyterian Hospital in the City of New York. The cause of death was massive Pulmonary Emboli that developed because of 66+ hours of 4 and 5 point restraints applied in direct violation of New York State Mental Health Law §33.04. Seth had been in withdrawal from Xanax prescribed for him by Dr. Speken.
A medical malpractice lawsuit was filed in the fall of 1994 by Thomas R. Moore, Esq. (hereinafter “Moore”) and his co-counsel Richard Frank Esq. (hereinafter “Frank”). The Hospital filed a countersuit alleging that Dr. Speken withheld the information that he had been prescribing medication to Seth. A third lawyer, Clare Pare, Esq. (hereinafter “Pare”) was engaged by Moore to defend Dr. Speken.
On July 8, 1999, we were informed by Moore that he had settled the case and that we must sign a General Release “to indemnify and hold harmless” New York Presbyterian Hospital. In return for our silence regarding the Hospital’s reckless treatment of our son that ended his life, they would pay $500,000. Silence was against our wishes. We were to learn that our lawyer, Moore, had skillfully defrauded and coerced us into signing the ‘Contract for Silence’.
In February of 1996, incensed by our knowledge of how and why our son died, we developed a website, http://www.med-malpractice.com. The site is active and remains on the Internet to this day. The removal of our website was a key provision of the General Release we signed. Moore’s fraudulently promised he would assist us in keeping the site up in a revised form. He also threatened us that the Hospital intended to initiate a “multi-million dollar lawsuit for defamation if we did not remove the website.
Frank resigned as Moore’s co-counsel just prior to the settlement of July 8, 1999. On July 29, 1999, Frank submitted a Show Cause Order to prevent disbursement of money from the settlement on the grounds that Moore informed him that he would not receive any part of the settlement money due him for his prior work on the case.
We never wanted the settlement. Prior to Frank’s Show Cause Order, we had great trust in Moore and believed he was acting in our best interest.
The Show Cause Hearing was held before the Justice on the case, The Hon. Sherry Klein Heitler, on August 25, 1999. Frank brought forth a number of allegations against Mr. Moore. Given the extent of his charges, Judge Klein Heitler adjourned the matter to a later date.
After examining Frank’s allegations against Moore we understood the significance of the statements Moore had made that persuaded us to sign. Moore made false representations that were fraudulent and coercive. Prior to our open court responses to Justice Klein Heitler’s questions, Moore reiterated his argument that the “Judge is
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corrupt.” He warned us not to speak with the Judge and told us that she intended to immediately authorize a defamation lawsuit regarding our website if we offered any opposition to the settlement agreement. He told us he would resign as our lawyer if we did not sign the agreement, and that the medical malpractice lawsuit would be dismissed because we would not be able to retain any other lawyer.
With our understanding of how we had been defrauded, we immediately submitted a motion to vacate the General Release that detailed our allegations against Moore.
Frank’s Show Cause Hearing was held on November 30, 1999. There was never a hearing on our charges that we had been defrauded and coerced by Thomas R. Moore, Esq. into signing a ‘Contact for Silence’.
In our Motion to Vacate, we presented our allegations against Moore and the manner in which he had defrauded us of our First Amendment Right to speak about our son’s death.
Judge Klein-Heitler submitted her Decision and Order on March 31, 2000. The opinion found that Moore was wrong in withholding money from Frank. It found that he was wrong in bringing into the case the third lawyer, Pare, and that he was wrong in requesting money from the proposed settlement to which he was not entitled. Moore’s actions were in violation of the New York State Medical Malpractice Fee Schedule and were we to have accepted the proceeds of the settlement he would have further defrauded us out of $90,625 that would have gone directly into his pocket.
In spite of Moore’s obvious malfeasance, that Judge Klein Heitler herself acknowledged, she did not vacate the contract. Hallock v. State of New York, 64 NY2d 224 is the precedent case in New York State that establishes the principle that the only basis for vacating a contract rests on proving the adversary’s lawyer was guilty of malfeasance We were not alleging this.
Our allegation was that our lawyer’s actions were culpable. “Under these circumstances, plaintiffs, not defendant, must bear the responsibility for their attorney’s malfeasance” (Hallock v. State, supra, 64 NY2d, at 229). This decision established the precedent that while a fraudulently obtained contract cannot be set aside, the lawyer can be sued for malfeasance. Essentially, New York State is granting the right to sue that parallels the 7th Amendment right of the United States Constitution.
Although Justice Klein-Heitler held a hearing over Frank and Pare’s fee dispute, there was never an evidentiary hearing over our allegations. In fact, her only comment about these allegations prior to her Decision and Order came in the Frank “Show Cause” hearing when she said, “I don’t know what Moore said to you or did not say to you about the Court system.”
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In the Decision and Order, the Judge reiterated we had a right to sue: “Accordingly, here, plaintiffs must bear responsibility for Moore’s alleged malfeasance in allegedly coercing them into the settlement, and are relegated to relief against him for any damages which his conduct may have caused them.”
But then, using gratuitous and circular reasoning without benefit of a full evidentiary hearing, she stated “Plaintiffs have not established that their agreement to settle this case was procured by fraud and coercion.”
How could we possibly establish that we had been defrauded and coerced by Moore without the benefit of an evidentiary hearing? An example of the gratuitous nature of Judge Klein Heitler’s comments can be found in the manner in which she summarily dismissed our informing her of Moore’s statement that the “Judge is corrupt”. He told us that she would immediately facilitate a defamation suit against us were we to offer any resistance to signing the General Release. It is illogical to assert, as she does, that we were not coerced since we were under an “obligation to advise the court at that time that they did not want to settle and/or that they were under duress”. Moore had skillfully and maliciously convinced us that expressing any such statement to the Judge would lead to our financial ruin. It should be noted that in response to widespread concerns at the time regarding corruption in the New York State Court System, Chief Justice Kaye established a commission to investigate Judicial corruption.
Justice Klein Heitler found sufficient grounds for Moore’s unethical behavior towards his co-counsels that she referred their fee dispute to a hearing. Moore brought Pare into the case with an agreement that would have earned her $90,625 from the settlement only to later have her discharged and claim the whole fee for himself. The Judge, realizing this was in violation of the statutory amount he was entitled, refused to award him this amount. She was essentially acknowledging another example of his malfeasance. But the Judge dismissed, without any evidentiary hearing, our allegations that he had behaved in a similarly reprehensible manner toward us. She stated, “Plaintiffs, who are both educated and sophisticated individuals, personally attended and participated in virtually all of the eight settlement conference held by this Court.” An evidentiary hearing would have established that we attended only 3-4 conferences. Moreover, “educated and sophisticated individuals”, particularly persons who have been living for years with the grief of a child’s death, are more vulnerable to fraud and coercion than most.
Subsequent to Judge Klein Heitler’s Decision and Order, we submitted an appeal to the Supreme Court of the State of New York, Appellate Division, First Department, on September 12, 2000. Three issues were presented for determination:
1. Whether the July 8, 1999 Stipulation should
be vacated upon the grounds that it was procured
by fraud and coercion?
2. Whether the defenses of Moore’s actions in procuring
the settlement were meritorious?
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3. Whether the stipulation of settlement constituted an
unlawful contract for silence?
The New York State Supreme Court, Appellate Division, First Department made no comment on issues 2 and 3. ( Speken v. Columbia Presbyterian Medical Center, 278 AD2d 154). The opinion stated only, “There is no basis shown to set aside the stipulation of settlement entered into in open court after full allocution by the court ( see Hallock v. State of New York, 64 NY2d 224, 230): Washo v. Washo,170 AD2d 827, 829).
We next initiated suit to have the General Release vacated on the grounds that it constituted an illegal ‘Contract for Silence’. The contract was illegal because our son died due to acts committed by unsupervised trainee housestaff who recklessly endangered his life. Moreover, these acts were explicitly forbidden by the New York State Mental Health Law on Restraints (§ 33.04). It is well established law that silence cannot be pledged when criminal behavior is involved. However, the New York State Supreme Court did not agree with this position and the opinion of the lower court dismissing our suit was affirmed by the State of New York Court of Appeals (Speken v. Columbia Presbyterian Medical Center, 304 AD2d 489, lv denied 100 NY2d 511).
Judge Klein Heitler’s Decision and Order permitted us to sue Moore “…plaintiffs… are relegated to relief against him for any damages which his conduct may have caused them.” Her subsequent comment that “Plaintiffs have not established that their agreement to settle this case was procured by fraud or coercion” was a factual matter only for a Jury to decide.
We initiated a lawsuit against Moore on June 28, 2002.
The Hon. Walter B. Tolub, J.S.C., in his Decision and Order of April 23, 2003, dismissed the lawsuit. The dismissal was based on the assertion that Judge Klein Heitler’s gratuitous comments, made without the benefit of an evidentiary hearing, provided Moore the protection of res judicata . Contrary to Judge Tolub’s assertion, we were damaged by Moore because he defrauded us into giving up our First Amendment right as a precondition for receiving any compensation from the Hospital for our son’s death. Thus, Judge Tolub’s decision denied our right to sue granted both by the 7th Amendment to the Constitution of the United States as well as the State of New York Court of Appeals opinion in Hallock.
We appealed Judge Tolub’s decision to the New York State Supreme Court, Appellate Division, First Department, on December 18, 2003. Our Appellate brief discussed Judge Klein Heitler’s gratuitous comments. We reiterated that the Judge, while holding a formal hearing over Frank’s motion to obtain his legal fees, held no hearing over our allegations. An evidentiary hearing would have clearly shown the duplicitous and unethical behavior of Moore towards us as well as the other lawyers. It would have shown how he was cleverly manipulating to obtain an additional $90,625 from the settlement. We would have been able to depose the other lawyers as to his improper behavior towards them. In our appeal to the New York State Supreme Court, Appellate
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Division, First Department, we clearly pointed out that the denial of an evidentiary hearing amounted to an unfair deprivation of our Fourteenth Amendment Procedural Due Process right. Our Seventh Amendment right to a civil suit, as well as the right to sue granted in Hallock, was similarly taken from us.
The Appellate Decision did not address our Constitutional argument over a denial of procedural due process. It affirmed the opinion of the Court below and relied on the case of Sei Young Choi v. Dworkin, 230 AD2d 780, lv denied 89 NY2d 805. We demonstrated previously in our Reply Brief why this case was inappropriate since, contrary to our case, the lawyer in that case had acted in a totally ethical manner. The pivotal State of New York Court of Appeals case in which the Court did demand an evidentiary hearing in case of legal malpractice was totally ignored. (Teichner v. W & J Holsteins, Inc., 64 N.Y.2d 977).
We appealed this decision and our argument reiterated why it was incorrect to deny our right of trial for legal malpractice. We stated that “…the lack of so much as an evidentiary hearing over Defendant’s legal malpractice was arbitrary, unjust, and in violation of Due Process and Seventh Amendment rights.”
The New York State Court of Appeals, however, chose not to accept our appeal. They made no comment on our Constitutional argument.
This petition for certiorari followed.
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REASONS FOR GRANTING THE WRIT
Certiorari should be granted because the State of New York Court of Appeals did not address our argument that the refusal of the Courts below to permit us to sue our former lawyer was unconstitutional. The taking of our Seventh Amendment Right without Procedural Due Process conflicts with important decisions of the United States Supreme Court. It also presents important national issues that should be addressed by this Court.
I. Our Seventh Amendment Right Was Denied Without A Hearing
In New York State, fraud, coercion or other improprieties on the part of the adversary’s lawyer are the only basis to vacate a contract. Similar behavior on the part of one’s own lawyer are not sufficient grounds (Hallock v. State of New York, 64 NY2d 224).
However, even though the New York State Courts will not vacate a contract obtained by fraud, duress, and unethical behavior committed by one’s own lawyer, it did establish a right to sue the lawyer when it stated (ibid, p.230), “We conclude that plaintiffs must bear that responsibility and are relegated to relief against their former attorney for any damages which his conduct may have caused them.” Thus, even though state action has limited the traditional grounds for vacature of a contract, it does not shelter the unethical lawyer from a lawsuit. New York State Appellate law grants the right to sue that parallels the Federal Seventh Amendment right.
The Supreme Court of New York State would not permit use to sue our former lawyer. As we demonstrated in the motions to the New York State Appellate Courts, the grounds for doing so were gratuitous. And most importantly, we were denied our right to sue without any evidentiary hearing and in spite of the fact that the available evidence supported our allegations.
Wolff, Warden, et. al. v. McDonnell, 418 U.S. 539, 557, 558, addresses a deprivation of the Procedural Due Process Right we now wish this Court to consider in our case. In that case, the “…State itself has not only provided a statutory right to good time, but also specifies that it is to be forfeited only for serious misbehavior.” (ibid. p, 557). It continues, “But the State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner’s interest has real substance and is sufficiently embraced within Fourteenth Amendment “liberty” to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated.”
Finally, this Court stated (ibid, pp. 557, 558), “This analysis as to liberty parallels the accepted due process analysis as to property. The Court has consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interests.”
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In the Hallock decision, the New York State Court of Appeals established the plaintiff’s right to sue a coercive and fraudulent lawyer even though a contract achieved by the lawyer’s unethical behavior cannot be set aside. The reasoning of Wolff v. McDonnel that “some kind of hearing” was needed to deprive us of our right to sue, a right granted not only by the Seventh Amendment of the Bill of Rights but also New York State, should be applied. The fact that the New York State Court of Appeals did not consider this argument was an unwarranted deprivation of our basic rights.
Justice Klein Heitler did not hold an evidentiary hearing over our allegation that Moore had coerced and defrauded us into signing the General Release. She did hold a hearing into the matter of the Moore’s intentions to keep money from the proposed settlement that rightfully belonged to the other lawyers, but no hearing was provided us in spite of the fact that we told her that the lawyer had convinced us she was “corrupt”. Her only comment was, “I don’t know what Mr. Moore said to you or did not say to you about the Court system”. Her reasoning in her Decision and Order that we were not defrauded and coerced was gratuitous. She acknowledged major improprieties on the part of Moore towards his co-counsels in the case. Despite an awareness of Moore’s major malfeasance in other aspects of our case, the procedure she used in claiming that we were not coerced and defrauded was woefully inadequate. Procedural Due Process required a full evidentiary hearing with discovery and cross examination of all parties. An evidentiary hearing would have established that Moore had a history of fraudulent actions towards other clients that would lend credence to our allegation that he had similarly defrauded us. Discovery of the lawyer’s background would also have revealed that he defrauded the United States Government out of paying taxes on over $2,000,000 of income in 1993.
In Zinermon v. Burch, 494 U.S. 113, 126, Justice Blackmun stated, “Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what procedure the State provided, and whether it was constitutionally adequate.”
As stated by Justice Stevens in Daniels v. Williams, 474 U.S., 327, 339, “…even though the State may have every right to deprive a person of his property or his liberty, the individual may nevertheless be able to allege a…due process claim…because the state procedure itself is fundamentally flawed.”
In depriving us of our right to sue, without the benefit of a full evidentiary hearing, the procedure of the New York State Court System was fundamentally flawed and Constitutionally deficient.
II. There Was No Good Reason For Denying The Fourteenth Amendment’s Right of Procedural Due Process
Justice Scalia, in Gilbert v. Homar, 520 U.S. 924, 931, in determining what process is constitutionally due, refers to the following analysis from Matthews v. Eldridge, 424 U.S. 319, 335:
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“First, the private interest that will be affected by the
official action: second, the risk of an erroneous depriva-
tion of such interest through the procedures used, and
the provable value, if any, of additional or substitute
procedural safeguards’ and finally, the Government
interest.”
We were denied the process of an evidentiary hearing that was due us on all three grounds:
A. First, our private interest. This Court understands the grief we feel over the loss of our precious son. He died from a type of medical malpractice that amounted to a criminal act, that of reckless endangerment. He suffered and we continue to suffer. It is only morally right that we receive some sort of compensation.
B. By not permitting an evidentiary hearing with full examination of all the evidence as well as cross examination of all parties in the case, the Judge’s gratuitous comments were then used to erroneously provide res judicata protection for the fraudulent lawyer when we attempted to sue. An evidentiary hearing would have established factual issues that rightfully should have gone to a Jury for decision.
C. Finally, the New York State Court System should have no serious interest in denying such a hearing. Given the seriousness of the issues we raised, the cost of a hearing should not have been a factor. What the New York State Court system did by not allowing an evidentiary hearing was to effectively shelter a corrupt, fraudulent lawyer. This is certainly not a legitimate function of Government.
The Hospital, whose deficient medical procedures killed our son, wanted a ‘Contract for Silence’. They will not provide compensation without it.
But we, both in the medical field, believe that it is unconscionable for the Hospital to demand silence. Given the extent and seriousness of medical malpractice in this country, the public interest demands that details of medical malpractice cases must be in the public domain. The more knowledge the public has about malpractice the better. In this way, our medical system can be made safer.
We have chosen, for the safety of others, not to remain silent. We were coerced and defrauded into signing the Hospital’s General Release. The Hospital wanted their actions in our son’s death to be removed from the public record. Were we to have accepted the proceeds from the settlement, Moore’s corrupt actions would have been rewarded with nearly half the settlement. We had a right to bring our charges to a Jury. In ignoring the Fourteenth Amendment’s guarantee of Procedural Due Process, we were deprived of our right to sue.
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III. There Are Important National Issues In This Case That Should Be Resolved
This Court
Mr. Justice Douglas in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 179 wrote:
It is not without significance that most of the provisions of the
Bill of Rights are procedural. It is procedure that spells much of
the difference between rule of law and rule by whim or caprice.
Steadfast adherence to strict procedural safeguards is our main
assurance that there will be equal justice under law.
Our objection to the contract was that it required us to be silent about Hospital’s malpractice before they would provide any compensation for our son’s death. We were defrauded and coerced by our lawyer into agreeing to this. The New York State Courts, by not permitting us to sue Moore for monetary damages, were effectively punishing us for talking. This was the sort of abuse of Court power proscribed in Dent v. West Virginia 129 U.S. 114, 123 (1889).
The American Association of Retired Persons estimates that approximately 180,000 Americans have their lives ended prematurely each year by medical malpractice. Other authorities put the number much higher. To put the medical malpractice problem in more graphic terms, the amount of death is at least equivalent to one jumbo jet crashing each and every day of the week for the entire year.
According to the Harvard Medical Malpractice Study (“A Measure of Malpractice”, Lucien Leape, et.al., Harvard University Press, 1993) only 1 in 7 malpractice cases is ever discovered by the legal system. The vast bulk of the cases that do enter the legal system are settled with silence. Considering the extent of this national problem, the concept of a ‘Contract for Silence’ in medical malpractice is wrong.
It is contrary to the First Amendment that there should be any silence regarding medical malpractice. The public interest demands that the more known about the details of the risks of the medical system, the better. Improved safety and effectiveness of our healthcare system will depend on a knowledgeable public. Currently, according to the World Health Organization, we rank only 37th among the nations in the overall quality of our healthcare system.
In their denial of our rights, the New York State Court System did not provide us equal protection. More importantly, the court did not exercise its power to protect the public. Courts must provide victims and the families of victims constitutional protections so that they are not forced to give up their First Amendment right. It is all too common that victims and families of victims, distressed by years of litigation, are subtly and not so subtly pressured into giving up their right to inform others about the abuses they have suffered in the medical system.
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The New York State Courts denied us our Fourteenth Amendment Procedural Due Process right in a manner the Dent case refers to as “arbitrary action” (ibid, p. 123). There are several issues of national concern. First of all, State Courts should not be permitted to ignore the procedural safeguards of the Constitution and the rights they themselves have established as they did in the Hallock case. Secondly, corrupt lawyers should not be given the message that their abusive actions towards clients will go uninvestigated and unpunished. And finally, if ‘Contracts for Silence’ in medical malpractice are going to be permitted, the Courts must insure that they are concluded fairly and without duress.
“When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power.” (ibid, p.124).
It is only right that this Court remand our legal malpractice case back to New York State Supreme Court for depositions and trial.
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CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari should be granted.
