"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Wednesday, November 14, 2018

On the bar to access to court to disabled and injured children - Part II. New York's statute of limitations for injured chidren

In my previous blog I have started to cover bars to access to court for children - and a case where the U.S. Supreme Court have barred disabled children injured by vaccines from access to court.

Before going further into analysis of that case, I would like to cover the general principles of the "rule of law", as expected by the majority of people - in order to see whether these concepts are alive and effective in application to both adult population, children, and disabled and injured children.

The concept of the "rule of law" is not that complicated, even if there is a pretense to make it so in the United States.

It is, really, quite easy what people want.

1.  an opportunity to complain to an impartial authority about injuries;
2.  an opportunity to obtain a remedy for injuries;
3.  so that this opportunity be equal notwithstanding the social and financial standing of the complainant.


4. in a federation like the United States, what is added is the separation of powers of the federal and state government, where it is the state government, under the 10th Amendment, that must handle the care and protect health and safety of its citizens.

Just 4 concepts.

The 1st, 10th and 14th Amendment.  That's it.

Whether and how the government provides effective remedies to people who have suffered harm, especially grievous harm, like permanent injury or death, is the measure of whether the country has, in reality, "the rule of law".

And, the best test of that rule of law is whether and how the government provides remedies to the least protected members of the citizenry:

  1. the poor;
  2. the disabled;
  3. the legally incompetent - including and especially, children, and especially, disabled and injured children.
And, in the United States, the government provides remedies to injured or disabled children very, very badly.

For example, in New York, the statute of limitations for children to sue for negligent or intentional harm is "tolled" by infancy - meaning that the statute of limitations cannot be used against a child until the child becomes an adult, at 18, and then the statute of limitations starts to be counted.

But, there is a big exception - all in all, the delay to sue, with infancy tolling even, cannot exceed 10 years.

Once again, the text of the statute:

208. Infancy, insanity. If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases, or the person under the disability dies, the time within which the action must be commenced shall be extended to three years after the disability ceases or the person under the disability dies, whichever event first occurs; if the time otherwise limited is less than three years, the time shall be extended by the period of disability. The time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues, except, in any action other than for medical, dental or podiatric malpractice, where the person was under a disability due to infancy. This section shall not apply to an action to recover a penalty or forfeiture, or against a sheriff or other officer for an escape.

That means that, if a child is 8 when the injury has occurred, at the time the child becomes an adult he is barred from suing for his injury, the infancy toll does not apply to children 8 years of age and younger, those who cannot represent themselves in court because they are legally incompetent - as children - to do so.

Therefore, New York punishes children for inactivity of their legal representatives - parents and guardians - by barring them from obtaining a remedy for their injuries.

That means, for example, that children who have suffered traumas at birth due to negligence of physicians, may sue - and may not sue pro se, since they are legally incompetent, since they are minors - only until they reach 10 years old.

Meaning, they can only sue if their parent or legal guardian chooses to do that until they turn 10.

Note that the 10-year-bar is not applicable to injuries received by the child from negligence of people who are not medical professionals.

Remember that when you take your child to your kind pediatrician - that that kind pediatrician has lobbied for himself not to be subject to lawsuit of the child he provides services to, when the child becomes an adult and considers the quality of such services.

Any other service provider will be subject to your child's lawsuit after the child reaches the age of majority and becomes an adult, but not the child's physicians - if physicians in question injured your child early enough, before the child reaches the age of 8.

That is an open invitation to malpractice and experimentation on children under the age of 8 to New York physicians - especially on those in foster care.  A doctor can do ANYTHING to those children and escape liability.

Think about it.

The child is barred from making his or her own conscious decision when the child becomes an adult to sue or not to sue for her injuries - if those who injured the child are physicians.

Yet, if you do not take your child under the age of 8 to that physician and not subject your child to paid manipulations of those physicians, you will most likely be turned into CPS and ruled a bad parent by courts.

And, there are many, many case reported in the United States when parents who are not happy with the quality of services provided to their young children are turned into CPS by physicians themselves - and when CPS grabs custody of the child in order to subject the child to manipulations of physicians without parental consent, manipulations which the child cannot contest through a lawsuit and CPS, its guardian, will never do.

Apparently, the most vulnerable population injured by CPLR 208 in New York are not just children injured by medical malpractice, but children injured by medical malpractice while in foster care - because physicians in New York, as in other states, are the CPS's best friends to report what doctors think is abuse and neglect, and are, thus, the supplies of children into the CPS pipeline (funded by federal incentive money).

CPS will never shoot themselves in the foot and will never sue doctors for medical malpractice, and children under 8 injured at birth are absolutely barred from bringing a lawsuit for medical malpractice against physicians.

That is a violation of the principle of equal protection of law and access to court.  

Because an adult would be able to sue pro se without asking permission from parents or legal guardians, and no third party, but the adult will be responsible for not filing a lawsuit on time within the statute of limitations - while a child's right of access to court after a birth trauma depends entirely on decisions of third parties.

This 10-year bar, as I was explained in law school, was introduced in New York to give some fairness and finality to those who committed negligence and intentional acts that may have led to injuries, and to allow them to peacefully live their lives, not worrying that they may be sued and that their livelihood or property may be in danger.

Apparently, New York was more concerned about fairness to medical professionals - who have a powerful lobby in the legislature that passed CPLR (Civil Practice Law and Rules) 208 - than about the fate of injured children.

Moreover, even if the child's parent or guardian does sue between the child's birth and 10 years of age, there is no way to establish, before the child became at least 18, what the child is going to do in life, what kind of talents and inclinations the child may have that the injury would prevent him from developing and excelling at - and that is also the result of lobbying by doctors, aimed to block children from ever being able to get adequate damages for their injuries in such lawsuits.

And THIS is the main feature showing whether New York does or does not have the so-called "rule of law" - whether the law protects adults, and adults with powerful lobbies, or legally incompetent individuals, children, who cannot, on their own, protect themselves.

Adults won, children - and the rule of law - lost.

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