A Tale of Three Rosenblums
CASE TYPE: Malpractice (Legal and Medical) | AWARD: $500,000 (equivalent to $5 million today)
Case Type: Malpractice (Legal and Medical)
Defendant: Judge Rosenblum
Length of Case: 2 years
Award: $500,000 (equivalent to $5 million today)
What makes this case unique: Effective arguing two cases, both the legal malpractice and the underlying medical malpractice.
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Several years ago, I was a volunteer for a national organization whose fundraising was mainly done by volunteers. They developed a program that involved asking volunteers to travel to distant cities to solicit donations from an existing donor base who the organization thought could and would give more.
In this case, I went from Albany to Orlando, Florida, and was given a list of donors, many of whom were impressed with the fact that volunteers were willing to come from out of town to solicit their donations.
There was a local donor named Ed Rosenblum, who was a practicing lawyer in Orlando. What was particularly interesting about this fellow is that he had worked his way through college and law school as a rodeo cowboy. In addition to our surnames, we also had a hobby in common: sailing. Shortly after I was back in Albany, Ed called me to ask if I would undertake a lawsuit against another lawyer in New York whom he alleged had engaged in legal malpractice.
The client for this case was Steven Solomon, an engineer who had lived in Rochester for many years. Solomon was married with three sons. The boys picked up an interest in toy trains when they were young. Being an engineer, Solomon built with his sons a train track layout that covered nearly the entire basement floor. It was like something from Disneyland. It was clear from the way he and his wife interacted with the children that it was a very loving relationship. He was clearly very devoted to his children though I surmised he himself had more than a modest interest in the toy railroad hobby he and his sons avidly pursued.
Solomon had been treated by a Rochester doctor some years earlier for psoriasis and psoriatic arthritis. Solomon claimed that improper use of a drug had led to him being diagnosed with cirrhosis of the liver.
I did a lot of research on the drug, which was called methotrexate. This was in the early years of its use for psoriasis. Methotrexate was a cancer-fighting drug, which stopped the cells in the tumor from proliferating. On the surface, it seems like a good treatment for psoriasis, which sees the skin cells proliferating. Methotrexate was seen to have a deterrent effect of this and could improve the condition. The problem with methotrexate was and is that it can be toxic to the liver.
An attorney in Rochester named Richard Rosenblum–yes, another Rosenblum!–had undertaken the lawsuit. But it had gone awry. Richard Rosenblum had served a summons on Solomon’s doctor to start the lawsuit. That is appropriate. But he failed for 18 months to submit a complaint outlining the case of medical malpractice.
The defense attorney for the doctor had made a demand for the complaint. Normally, this must be responded to within 20 days. But Rosenblum negligently waited over a year and a half to respond.
As a result, the defense lawyer for the doctor made a motion to the Monroe County Supreme Court to toss the case. However, the judge denied the motion and instead ordered Rosenblum to serve a complaint. The defense appealed that ruling. The Appellate Division of the Supreme Court upheld the earlier decision and let the lawsuit continue.
The case was finally taken to the New York State Court of Appeal by the defense lawyers and the high court then dismissed the case. Unfortunately for Richard, the statute of limitations of 2.5 years had now passed, and he couldn’t start the lawsuit all over again.
So the legal liability of the lawyer was clear.
When a lawyer is sued for legal malpractice, and damages are claimed, the plaintiff’s attorney must prove both that the attorney failed in his duty to the client and also that the case itself had a plausible chance of winning. This means, in essence, I was arguing two cases, including the original medical malpractice case.
There was not a lot of medical literature on the drug methotrexate at this time. I remember going to New York City to the medical library at Columbia University. I found proceedings in Congress about it. Even then there were complaints that it was being pushed by the pharmaceutical company for use in psoriasis even though the protocols for its use were not well established. In fact, its use for psoriasis was a so-called “off-label” use and in that sense experimental.
It’s worth noting that today when methotrexate is used for psoriasis or any other condition, patients are constantly tested for healthy liver function.
I came to the conclusion that I could prove that had the original case started by Richard Rosenblum gone forward, there was a substantial chance of winning. It was on that basis that I sued the lawyer for legal malpractice. We went through the usual discovery process, depositions, and so on.
Because this was a Rochester case I wasn’t familiar with the judges, local juries, or courts. At that time, Rochester was a very successful urban center. Xerox and Polaroid were based there. This was, relatively speaking, a rich city. I was concerned about the type of jurors I was going to get.
The effect of the drug on Solomon was very severe. He had been treated for liver poisoning at Strong Memorial Hospital in Rochester, NY. He was also treated at the Mayo Clinic in Rochester, MN, and at Shands Teaching Hospital at the University of Florida.
He had developed varicose veins in his throat. With cirrhosis, the liver becomes unable to process the blood that comes into it. Blood goes into the liver through a portal vein. The pressure of the portal vein increases if the liver can’t absorb the blood. As a result, the blood backs up into the throat and the veins of the throat become inflamed.
At the time of the trial, Steve had already had two major bleeds. Typically, alcoholics die from bleeding in the throat. The universal statistics are bad. Most people die from one bleed. He had suffered two at this point. At trial, I brought in a doctor who testified that Solomon was likely to die if he had a third major bleed.
The lawyer who had failed this case had since been appointed a Family Court judge. But here he was, Judge Rosenblum, sitting in the courtroom as a defendant. (Ultimately Rosenblum was elected to the Monroe County Supreme Court.)
We had expert witnesses come and testify that the dose of methotrexate my client had been prescribed was excessive and that it caused the symptoms that Solomon now suffered from.
The night before the defense was going to start, I was looking through the Mayo Clinic records for the fourth or fifth time when I found an entry from a social worker’s notes. It read that the patient said he had been popping methotrexate like M&Ms. If that was brought to the jury’s attention, they might find him responsible for his own injury. Thankfully, the defense failed to discover this medical record entry and it was never brought to the jury’s attention.
After the defense rested their proof, the judge brought us into chambers to try and settle. After a lot of wrangling, all we could agree on was a so-called high-low. This is an agreement that parties will enter to ensure a minimum or maximum award, depending on the outcome. In this case, if we lost, Rosenblum’s malpractice insurance company agreed to pay $250,000. However, if we won and got a judgment, we would either take that amount or the full coverage, which was $500,000, whichever was lesser. Keep in mind, this was the 1970s, so this was equivalent to about $5 million today.
The largest verdict in any kind of lawsuit in Rochester before that was only $550,000.
Solomon stopped working as an engineer after the verdict and went to Emory University Medical Center in Atlanta to find a doctor who could protect him against further bleeding. In an experimental effort to save my client, the doctors at Emory did this by hardening the veins in the throat, making them sclerotic. Unfortunately for Steve, the expert opinion that we heard in Rochester proved prophetic. Steve Solomon died four years after the trial of a third major and final throat hemorrhage.
Interestingly, his wife Sandy went into the real estate business. She had been a school teacher but left that profession after the trial. She invested the money from the case in real estate and did very well, eventually becoming mayor of a suburban town outside of Orlando.