Saturday, June 29, 2013

Criminal DNA Testing

DNA testing under the microscope

With the proliferation of CSI type crime dramas over the last few years, many people from Juries to the lay public have come to assume that DNA testing is a quick and foolproof way of proving the guilt or innocence of a criminal suspect. In fact, some experts even worry that this “CSI culture” is invading the purview of the courts; leading juries to expect and even demand DNA evidence from the prosecution even in cases where such evidence would add little of substance to the analysis. Adding to the confusion are the range of media reports, some of which warn about the possible inaccuracies of DNA testing procedures and others which hail the ways in which the technology has been used to absolve and free convicted criminals.

However, despite the media hype and many public misconceptions to the contrary, DNA testing is a highly reliable and accurate method of matching a sample with a donor, or of proving that no match exists. But, this accuracy depends entirely on the methods used, the care and skill of investigators and lab specialists, and the presentation of the resulting evidence by lawyers during trial.

What is DNA testing?

DNA testing is the process of comparing a sample of DNA, such as from a crime scene, to a potential suspect; a match implying the suspect’s presence at the scene. This is possible because every person’s DNA is unique, distinct in some way from every other person who has ever lived or who will live – with the exception of identical twins who share exact DNA. However, while each individual’s DNA is unique to that person, current testing methods do not allow for a complete DNA profile.

Methods are improving however. First developed in 1985 by British scientist Alec Jefferys and colleagues, DNA testing has come a long way from the early days, both in quality and cost. Analyses that once required a fresh tissue sample the size of a quarter can now be completed with just a few partially degraded cells from a cold case file. Tests which were once impossible, such as distinguishing individual DNA profiles from the mixed semen of multiple rapists, have now become common place and DNA testing has even been used to compare non-human samples, such as the seeds of a tree which were used to tie a suspect to a crime scene in one recent Arizona case.

How accurate is a match?

The entirety of a DNA sample is not currently tested. Instead, sections known to vary substantially among humans are sampled and compared. While any single sample site has about a 7.5% chance of matching another random human, insufficient for criminal identification, the odds increase exponentially with every additional sample site considered. At about 4 to 6 sample sites – called markers – identification becomes reasonably possible. For good measure, the standard FBI test compares 13 markers, leading to greater than 1 in 1 billion certainty that a suspect is in fact the person who left the sample. In other words, by comparing 13 quality (which means highly variable) markers, less than 7 people in the entire population will be statistically probable matches. Given that the pool of suspects cannot ever include the entire population of the planet, this level of certainty can provide the evidence necessary for conviction beyond a reasonable doubt.

(For more details on these numbers please visit here)

What’s the catch?

Naturally, there are some caveats about the numbers listed above. While the statistics are solid, they have been tested repeatedly by many different mathematicians and scientists the world over, the accuracy of any purported match comes down to process; and here is where CSI type shows drive unreasonable expectations about DNA results. As with much of the criminal justice system, human error is a major factor. Collecting DNA samples from a crime scene often requires expert training and professional equipment. Samples must then be transferred and stored in approved ways to avoid degradation. A qualified lab must properly utilize expensive edge equipment to analyze the sample to produce a DNA profile. That profile is then compared against either a sample taken from a suspect or against one of the many available databases of DNA profiles, which imply a number of privacy and security concerns, and a match determined.

Every step of this process is fraught with potential error. Crime scenes can be contaminated or evidence planted, samples can become contaminated or degrade, labs might employ outdated techniques or scientists might not have the requisite training, computer error could be introduced, jurors might give too much weight to DNA evidence; and all along the way, human malfeasance might undermine the validity of a match. And all this stems from but a single situation; a single trial.


While for individuals the results of a single DNA match are of the utmost importance, whether the evidence is being used to convict or exonerate, for the criminal justice system – and its promise of fairness and justice for the public as a whole – systemic problems become the more critical consideration. On this level, a number of issues must be dealt with if DNA testing is to remain a viable tool in criminal prosecutions.

Evidence from analysis of the UKs national DNA database shows that a disproportionate number of the DNA profiles in the system come from minorities. While it can be argued that this represents the increased prevalence of minority convictions, the increasing use of so called “cold matches” wherein DNA from every arrested person is periodically checked against the database, leads to possibilities of institutionalized racism and prejudice. Additionally, the increasingly popular practice of collecting samples from arrestees prior to any conviction is leading to a number of very serious privacy and security considerations. DNA samples can, in addition to providing material for a possible match to a criminal investigation, also reveal family connections, expose health conditions, and even predict sexual orientation or inclinations.

Protecting the future

DNA profiling has become an increasingly important feature of our criminal justice system, both exonerating the innocent and convicting previously unreachable suspects; however its future use is imperiled by a growing number of developing problems with the practice. More must be done to protect this valuable criminal justice resource from corruption, error, and prejudice.  The worrisome backlog of untested samples should be cut down, and the public at large – many of whom ultimately become jurors – must be better informed about the accuracy, and potential shortfalls, of the science.

Saturday, June 15, 2013

Caps on damage awards hurt patients

In July of 2010, six-week old Mia Chavez was taken to an L.A. emergency room with a worsening cough. Her doctor, believing that the cough was a symptom of the common cold, sent Mia home with antibiotics. A week later the infant died during her second visit to the ER; the cause, pertussis, a flu-like strain of whooping cough on the rise in L.A. County. Public health officials had previously circulated warnings about the illness, warnings of which Mia’s doctors were well aware. Tragically, none of the simple tests for whooping cough were run and the antibiotics which were prescribed probably decreased the tiny infant’s capacity to fight the disease on her own.

In January of 2009, 17 year old Olivia Cull walked up the steps of Mattel Children's Hospital UCLA in Westwood for a routine heart catheterization, the last in a long line of procedures designed to correct a minor birth defect. Olivia, a top student already admitted to Smith College, never left the hospital. An intern, unlicensed to practice medicine at UCLA, removed Olivia’s heart catheter without supervision and Olivia slipped into a coma. A few days later while parents Robert and Joyce Cull struggled with the decision to terminate life support, Olivia’s 11 year old sister crawled into the hospital bed with her; a nurse sobbed in the corner.

The thread that ties these tragic stories together does not end with the malpractice that caused their deaths, but extends to the gross undervaluation of their lives under current California law. The girls were each subject to the inequities created by a California which was passed in 1975 in an attempt at insurance reform. The law, known as the Medical Injury Compensation Reform Act (MICRA – Cal. Civ. Code 3333.2), limits non-economic damages in medical malpractice suits to $250,000 – the legally imposed value of a child’s life in cases of doctor negligence.

Manufactured insurance scare

Enacted in the face of a now discredited insurance industry panic about the rapidly rising costs of malpractice insurance, MICRA was proposed as a an ineffective solution to a problem that did not exist. In the 12 years that followed the passage of the law, insurance rates for malpractice skyrocketed an astounding 190%, stopped only by the much more sensible passage of proposition 103 in 1988 which brought malpractice rates under the regulation of the California Department of Insurance. Despite the scandal surrounding MICRA it has continued unchanged for almost 40 years, never once adjusted for inflation; a flaw which has reduced the economic impact of the $250,000 cap by about 75% over the last three decades.

An abject failure

While targeted at ballooning malpractice insurance premiums, MICRA has done nothing to help the doctors who often fight for it, but has instead served to line the pockets of California’s malpractice insurance providers. Under California law, insurance companies are required to maintain a reserve fund for use in paying future claims. Medical malpractice carriers in the State, however, have used increasing profits to build up enormous reserves despite the fact that they routinely over-estimate future claims. Each of the three largest carriers in the state have, at least once over the course of the last ten years, carried a reserve account as much as 10 times larger than the required amount. In fact, despite their claims about the growing costs of medical malpractice suits, California carriers pay out an average of only 25% of their gross receipts to such claims, holding the rest for lawyer’s fees, administrative costs, and profits.

National efforts

Despite the complete failure of MICRA to reduce insurance rates in California, and the tragic consequences disproportionately dealt to the poor, unemployed, elderly, and children, proponents of such caps have taken the fight nationwide. After MICRA, 23 states enacted some sort of pain and suffering damages cap and bills have recently circled in Washington that would impose a similar Federal cap, ostensibly as part of the national effort to reduce healthcare costs. Ironically, many of the proponents of such a cap themselves earn more per year then they allow for a lifetime of patient pain and suffering.

Doctors’ groups such as the AMA and the American College of Obstetrics and Gynecologists have been vocal supporters of caps on a patients legal rights while simultaneously opposing similar caps on their own ability to sue health insurance companies for unfair practices; a conflict only recently recognized by the AMA when it chose to drop efforts to advocate against caps on insurance company lawsuits, instead focusing exclusively on limiting patient lawsuits nationally.

Bottom line

Olivia’s and Mia’s heartbreaking stories are not isolated incidents. Medical malpractice is a growing problem which kills as many as 390,000 people annually, making it the most deadly national health concern after heart disease and cancer. Yet many victims are unable to even find a lawyer capable of shouldering the substantial costs associated with the complex legal proceedings surrounding medical malpractice cases; costs which can routinely run over $100,000 not counting legal fees.

It is time to revisit MICRA in California to ensure that patients, not insurance companies’ profits, are protected under the law.

Sunday, June 2, 2013

Private Settlements Are a Big Risk

If you are the victim of a car accident and are wondering whether you should accept the other party’s offer to settle privately, without involving the insurances companies, you might turn to Google for advice. Unfortunately, many of the results that turn up are user comments on non-legal forums where non-attorneys attempt to explain the complications of a vehicle collision. Despite this dearth of expert advice, many people keep trying, driven by a fear that their insurance rates will be raised if they report the accident to the authorities.

While private settlements might seem like a convenient way to avoid the potential hassles of dealing with insurance adjusters and claims processors, these types of arrangements are almost always a bad idea; at least without some input from an experienced attorney. There are just too many potential complications of which many people may be unaware. The following are some examples of the types of problems you might encounter during a private settlement attempt.

Who’s at fault?

California follows what is known as the Pure Comparative Fault Rule. Under our system an accident victim can file a lawsuit against the person at fault, even if the victim partially caused the accident. For example, let’s say you're in a car accident with another driver. At trial the jury determines that you were 10% at fault for the accident and that your total damages are $100,000. Under California law, you’ll be able to collect 90% of those damages from the other party; or $90,000. Of course, you may also have to pay them for the 10% of damages you caused them.

The situation gets dramatically more complex in cases where the plaintiff is more than 50% at fault. Without qualified legal advice, you may not know for sure who is legally responsible for your injuries or for how much each party will ultimately be liable. Trying to guess can be costly.

Damage calculations

Estimating exactly what a settlement is worth, poses a challenge even for experienced attorneys. Questions abound, such as: will the injuries create a permanent disability, have the full extent of the injuries been discovered, and how lost wages or other income should, be calculated.  There is a lot to consider, and this list barely scratches the surface. Without expert advice, your estimate of the damages or injuries might be way off the mark. Ultimately this means that you may be accepting an offer which grossly under compensates you for your injuries.

Insurance misconceptions

Many people considering a private settlement are worried that their insurance rates will skyrocket if they report an accident, even one in which they were not at fault. I wish that there was an easy way to settle this question but the truth is the situation is a bit more complicated. How an accident will affect your rates is determined by the particular insurance company involved. For some companies, rate increases are only assessed against drivers who are at-fault in a collision. In other situations the severity of the incident or the amount of damage is a critical factor. In today’s competitive insurance market, some insurers actually market policies that include accident forgiveness clauses designed to prevent rate increases associated with certain types of collisions. Ultimately you will have to check with your particular insurer for details. However, it is unwise to attempt a private settlement merely out of fear that your rates will go up.


While they may not raise your rates for reporting an accident in which you were not primarily at fault, not reporting an accident can give the insurance company a reason not to pay for any later claims you may decide to file for the incident. This is because most policies have a notification clause that requires you to give them a fair opportunity to duly investigate the situation. If you do not tell them in time, and the delay ends up hurting their ability to protect themselves legally, they may be able to avoid paying on your claim.

Don't forget the DMV

While not reporting an incident to your insurance company is a matter of choice – albeit with some consequences for choosing poorly – reporting to the DMV is not optional. Under California law any accident with over $750 in damage or with any personal injury – no matter how minor - must be reported within 10 days of the incident. Both parties must file this report, regardless of fault. Furthermore, if any party was uninsured at the time of the incident, the DMV will still impose sanctions on that person including suspending their license for one year.

Dishonesty, double-dipping, and fraud

Even if you avoid the minefield presented by the above issues, there’s sometimes no accounting for human ingenuity. Without the benefit of deep insurance pockets, you may have a very difficult time actually collecting on your private settlement; especially if you agreed to take payments. Personal checks are often no good, and by the time you figure this out it might be too late to find the person. In every accident you should always take down insurance and driver’s license details from all parties involved, in addition to taking pictures of the scene and any damage. This way, even if you accept a private settlement up front, you’ll have some recourse if things go south later on.

Hire a lawyer

Hire an attorney! I know this might seem suspect coming from an attorney, but I hope I've convinced you that it’s good advice. Settling your accident privately is legally and financially risky and the motivations for doing so are weak at best. Get the legal help you need and avoid years of potential headache down the road. Your attempt to save a few bucks in the short term might end up costing you everything.