Friday, March 27, 2015
Back in November, I reported that the Pennsylvania Supreme Court was deciding whether to become the eighth state to completely ban informed consent evidence from a traditional med mal trial. The plaintiff's lawyer argued that the informed consent could be used in a prejudicial way to insinuate that consent to the procedure amounted to consent to risks of negligence. The court declined to adopt a bright-line rule excluding informed consent evidence and overruled a contrary Superior Court ruling. The court, however, through Chief Justice Saylor, emphasized that informed consent and traditional med mal cases are very different:
The fact that a patient may have agreed to a procedure knowing its risks does not speak to whether the doctor fell below the standard of care in performing that procedure, Saylor said.
"Put differently, there is no assumption-of-the-risk defense available to a defendant physician which would vitiate his duty to provide treatment according to the ordinary standard of care," Saylor said. "The patient's actual, affirmative consent, therefore, is irrelevant to the question of negligence."
So, like with Brady's complaint, when a malpractice complaint only asserts negligence, and not a lack of informed consent, evidence of informed consent should be excluded, Saylor said.
Saylor noted that a jury could be confused by informed consent and conclude the plaintiff consented to the injury.
The court thus held that evidence of informed consent is "generally irrelevant to a cause of action sounding in medical negligence."
The court was unwilling to take the next step and hold evidence of informed consent is never admissible in a traditional med mal case. The Legal Intelligencer has the story.
Wednesday, March 25, 2015
Greetings! In my capacity as Secretary of the AALS Torts & Compensation Systems section, I am writing to pass along two important notices.
1. Torts and Compensation Section Newsletter
As most of you know, our section publishes a newsletter each fall listing: (1) symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law. If you know of any works that should be included, please forward relevant citations and other information to me at firstname.lastname@example.org. The deadline for inclusion is August 17, 2015.
2. 2016 William L. Prosser Award
This is the first call for nominations for the 2016 William L. Prosser Award. The award recognizes “outstanding contributions of law teachers in scholarship, teaching and service” in torts and compensation systems. Recent recipients include Mike Green, James Henderson, Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray, and Dan Dobbs. Past recipients include scholars such as Leon Green, Wex Malone, and John Wade.
Any law professor is eligible to nominate another law professor for the award. Nominators can renew past nominations by resubmitting materials. Living tort scholars and those who have passed away within the last five years are eligible for the award. Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee. The award will be presented at the annual AALS meeting in January 2016.
Nominations must be accompanied by a brief supporting statement and should be submitted no later than July 13, 2015. Email submissions to email@example.com are preferred. If you would rather mail hard copies of nomination materials, please mail to: Chris Robinette, Widener University School of Law, 3800 Vartan Way, P.O. Box 69380, Harrisburg, PA 17106-9380.
Our committee will send additional reminders about both the newsletter and the Prosser Award as the deadlines approach. In the meantime, feel free to contact me if you have any questions.
CA: Failing to Pay Prevailing Wages May Be Intentional Interference with Prospective Economic Advantage
A California Court of Appeal has held that a second-place bidder on a public works contract may sue the first-place bidder for failure to pay prevailing wages pursuant to the business tort of intentional interference with prospective economic advantage. Garret Murai at JD Supra has the details.
Monday, March 23, 2015
Friday, March 20, 2015
Nora Engstrom (Stanford) has posted her contribution to the O'Connell tribute to SSRN. Entitled Exit, Adversarialism, and the Stubborn Persistence of Tort the abstract provides:
Serious tort reformers have long tried to divert certain claims from the tort system into no-fault or “replacement” regimes where, it is said, compensation can be more easily, expeditiously, predictably, and simply delivered. Yet while many continue to champion no-fault’s expansion, surprisingly few have stopped to ask how America’s various no-fault experiments, in place for over a century, have thus far fared. Taking up that challenge, this Essay, written in memory of no-fault pioneer Jeffrey O’Connell, canvasses America’s four boldest experiments with no-fault legislation. The investigation — of workers’ compensation, automobile no-fault, the Vaccine Injury Compensation Program, and birth injury funds in Florida and Virginia — reveals that all four of our most ambitious no-fault experiments have, in significant respects, failed. Seepage from no-fault regimes and into the tort system has been a persistent problem. Further, even when compensation has been provided within existing no-fault mechanisms, the mechanisms have become bogged down by adversarialism, marked by longer times to decision and increased combativeness, attorney involvement, and reliance on formal adjudicatory procedures. Showing how and why no-fault has repeatedly fallen short, this Essay seeks to complicate conventional wisdom concerning no-fault’s ostensible advantages. And, it seeks to honor O’Connell’s proud legacy, for only by identifying what’s gone wrong, might we start anew on a path toward the creation of better and more resilient reforms.
All of the papers in the JTL tribute are now available here.
Thursday, March 19, 2015
Herb Kritzer (Minnesota) and Neil Vidmar (Duke) have posted to SSRN Lawyers on Trial: Juror Hostility to Defendants in Legal Malpractice Cases. The abstract provides:
In contrast to medical malpractice, legal malpractice is a phenomenon that has attracted little attention from empirically-oriented scholars. This paper is part of a larger study of legal malpractice claiming and litigation. Given the evidence on the frequency of legal malpractice claims, there are surprisingly few legal malpractice cases that result in jury verdicts. There are many possible explanations for this, one of which reflects the perception that lawyers are held in such low esteem by potential jurors that they risk harsh treatment by jurors when they are defendants in legal malpractice trials. Because we could find no empirical evidence that that either supported or rejected the reality of this perception, we designed a simple jury simulation experiment to test this as an hypothesis. Using three different case scenarios, each in two forms (one set within a legal malpractice framework and one outside legal malpractice), we found support for the hypothesis in only one of the three scenarios and even there the effects were at best modest. These results held up controlling for other possible factors that might influence juror responses to the case scenarios.
Wednesday, March 18, 2015
On March 6th, Sharon McQuown addressed the ABA's Health Law Section on emerging issues in health care law and discussed the impact of EHR (electronic health records) on med mal litigation. Specifically, she discussed how the design of EHR could have helped avoid the misdiagnosis of Ebola in a Texas hospital. Shortly after the patient died, the hospital instituted EHR changes, including:
- Adding a new tool in the EHR requiring a "hard stop confirmation" by the physician that he/she had been told that the patient had recently been to a country of concern
- Creating a more robust screen that draws attention to travel with a red box on top and specific identification of countries traveled
- Adding a banner alert screen if a patient is flagged for infectious disease with an alert of steps to be immediately taken
- Changing the discharge process so that discharge papers could no longer be printed early or if anything was unresolved in the document.
Fierce EMR has the story.
Tuesday, March 17, 2015
Richard Ausness (Kentucky) has posted to SSRN 'Danger is My Business': The Right to Manufacture Unsafe Products. The abstract provides:
While no one would dispute that safety is a desirable objective, it may not always be an absolute priority. Rather, in some cases, other societal interests such as personal autonomy, consumer choice, product cost, and performance may trump legitimate safety goals. This is reflected in some of the doctrines and defenses that have evolved to protect the producers of unsafe products against tort liability. Some of these doctrines, such as those determining liability for the producers of optional safety equipment, inherently dangerous products, products with obvious hazards, and prescription drugs and medical devices, are part of the law of products liability. Other doctrines, such as the regulatory compliance defense and the contract specification defense, are aspects of the broader law of torts. Finally, a few of these doctrines, such as federal preemption and the government contractor defense, are rooted in principles of federal supremacy.
Monday, March 16, 2015
Mike Wells (Georgia) has posted to SSRN Constitutional Remedies: Reconciling Official Immunity with the Vindication of Rights. The abstract provides:
A great deal of scholarly attention is devoted to constitutional rights and comparatively little to remedies for their violation. Yet rights without remedies are not worth much, and remedial law does not always facilitate the enforcement of rights, even of constitutional rights. This Article discusses an especially challenging remedial context: suits seeking damages for constitutional wrongs that occurred in the past, that are unlikely to recur, and hence that cannot be remedied by forward-looking injunctive or declaratory relief. Typical fact patterns include charges that the police, prison guards, school administrators, or other officials have engaged in illegal searches and seizures, or fired people on account of protected speech, or deprived them of liberty or property without due process of law, or discriminated against them in violation of equal protection. Because these backward-looking suits bear some resemblance to ordinary tort law, the doctrine is often called “constitutional tort.”
This Article examines a well-settled and routine — but destructive and quite unnecessary — consequence of the interplay between the liability rule and the official immunity doctrine. Consider two plaintiffs, Alice and Bob, each of whom sues for damages under § 1983. Suppose that both plaintiffs lose, but for different reasons. Alice establishes a violation of her constitutional rights, but fails because the defendant successfully asserts official immunity. Bob cannot show that his rights were violated in the first place. Despite the difference between their cases, current Supreme Court doctrine directs that Alice and Bob be treated the same. Both go away empty-handed. Under the Court’s approach, the competing goals behind liability and immunity are balanced in the following way: On the one hand, the aim of constitutional tort law is to compensate the plaintiff and to deter violations of rights. But on the other side of the balance, official immunity carries enough weight to override the compensation and deterrence goals. Thus, the official’s successful immunity defense carries the same force as a successful defense on the merits. Both result in total victory for the defense.
In this Article, I argue for a different conception of constitutional tort law, in which it is recognized that Alice’s case differs fundamentally from Bob’s. The point is not to question official immunity, a doctrine that has broad support from the Supreme Court. My project is to reconcile official immunity with Alice’s legitimate claim for a remedy.
Sunday, March 15, 2015
On Thursday, I reported the Missouri Senate had given preliminary approval to med mal caps. Here is an update:
The Senate voted 28-2 on Thursday to approve a measure limiting awards for pain and suffering in most personal injury cases arising from botched medical procedures to $400,000.
In catastrophic injuries, the limit would be $700,000. The measure also raised the existing cap on wrongful death cases form $350,000 to $700,000.
The bill will have to be reconciled with the House bill, which is a single noneconomic damages cap of $350,000. The Kansas City Star has the story.
Friday, March 13, 2015
Thursday, March 12, 2015
Last week, I reported the Missouri House had given preliminary approval to a $350,000 noneconomic damages cap in med mal cases. The Senate has now given preliminary approval to a med mal noneconomic damages cap, but the details are different:
In most cases, a cap of $400,000 would apply. In more serious "catastrophic" injuries specifically defined in the bill — including paralysis, brain injury or a loss of vision — the cap would be $700,000. The bill also raises an existing $350,000 cap on noneconomic damages in wrongful death cases to $700,000.
All three of these caps would increase each year by 1.7 percent under the bill.
AP has the story.
Wednesday, March 11, 2015
Betsy Grey (Arizona State) has posted to SSRN The Future of Emotional Harm. The abstract provides:
Why should tort law treat claims for emotional harm as a second-class citizen? Judicial skepticism about these claims is long entrenched, justified by an amalgam of perceived problems ranging from proof difficulties for causation and the need to constrain fraudulent claims, to the ubiquity of the injury, and a concern about open-ended liability. To address this jumble of justifications, the law has developed a series of duty limitations to curb the claims and preclude them from reaching the jury for individualized analysis. The limited duty approach to emotional harm is maintained by the latest iteration of the Restatement (Third) of Torts. This Article argues that many of the justifications for curtailing this tort have been discredited by scientific developments. In particular, the rapid advances in neuroscience give greater insight into the changes that occur in the brain from emotional harm. Limited duty tests should no longer be used as proxies for validity or justified by the presumed untrustworthiness of the claim. Instead, validity evidence for emotional harm claims — like evidence of physical harm — should be entrusted to juries. This approach will reassert the jury’s role as the traditional factfinder, promote corrective justice and deterrence values, and lead to greater equity for negligent infliction of emotional distress (NIED) claimants. The traditional limitations on tort recovery, including the rules of evidence and causation, are more than adequate to avoid opening the floodgates to emotional distress claims.
Tuesday, March 10, 2015
A Tennessee circuit court judge ruled yesterday that the state's cap on noneconomic damages is unconstitutional, likely triggering review by the Tennessee Supreme Court. Unlike caps in many states, this one is not limited to medical malpractice cases. The Chattanooga Times Free Press has the story.
Sunday, March 8, 2015
In Grebing v. 24 Hour, a California Court of Appeal upheld a release signed by a gym member for the ordinary negligence of the gym. Moreover, the court reaffirmed that a company that predominantly provides services, rather than goods, cannot be held liable for products liability. J.D. Supra has the story.
Friday, March 6, 2015
The Missouri House provided initial passage of a bill to reinstate a $350,000 non-economic damages cap in medical malpractice cases. One more vote is needed before the bill goes to the Senate. The bill received 101 votes, not the 109 it would need to override a veto. OzarksFirst.com has the story.
Thursday, March 5, 2015
Bob Rabin (Stanford) has posted to SSRN his contribution to the JTL's O'Connell tribute. Entitled Jeffrey O'Connell and the Compensation Principle in Accident Law: Institutional and Intellectual Perspectives, the abstract provides:
In this essay, I locate the principles that animated the career of Jeffrey O’Connell in a larger context of examining the role of compensation in accident law. I provide a short historical excursion to set the stage. Next, I discuss how O’Connell followed his initial venture involving auto no-fault with a more expansive scheme of elective no-fault coverage for products and medical mishaps, which in turn was followed by his early offers proposal. Then, I briefly trace the legacy of O’Connell in the present era of mass tort and disaster relief claims. A final section offers a concluding note.
Wednesday, March 4, 2015
In Iowa, the medical community and trial lawyers have agreed to a voluntary early resolution program for medical malpractice cases; a Senate subcommittee has recommended passage. The bill's "Explanation" section provides:
This bill allows a physician, or a physician jointly with a health facility, to engage in an open, confidential discussion with a patient related to an adverse health care incident.
If an adverse health care incident occurs, the bill allows a physician, or a physician jointly with a health facility, to offer to engage in an open discussion with the patient. The notice of an offer to engage in an open discussion must be sent to the patient within 180 days after the adverse health care incident. If the patient agrees to proceed with an open discussion, the physician or health facility may investigate the adverse health care incident, disclose the results to the patient, and discuss steps the physician or health facility will take to prevent similar adverse health care incidents. The physician or health facility may also communicate to the patient that either the physician or health facility has determined that an offer of compensation is not warranted or that an offer of compensation is warranted. An offer of compensation may be conditioned upon the patient executing a release of future liability as to the adverse health care incident. All communications made under the Code chapter are privileged and confidential, are not subject to discovery, subpoena, or other means of legal compulsion for release, and are not admissible in evidence in a judicial, administrative, or arbitration proceeding.
The Gazette has the story.
Tuesday, March 3, 2015
Last year, Georgia debated becoming the first state in the country to reform med mal along the lines of workers comp. The bill failed. Sen. Brandon Beach is introducing a similar bill, Senate Bill 86:
Under the proposal, the new system will be governed by an 11-person panel consisting of physicians, attorneys, accountants and patient advocates. The board will set maximum injury compensation rates and approve medical review panelists.
Complaints will be handled by independent panels, comprised of representatives from practices or specialty areas similar to the provider. If a claim is found to have merit, the plaintiff will receive a monetary award to be determined by a compensation committee.
NeighborNewspapers.com has the story.
Monday, March 2, 2015
I have posted to SSRN my contribution to the Journal of Tort Law's Jeffrey O'Connell tribute. Entitled Party Autonomy in Tort Theory and Reform, the abstract provides:
Tort theory has been dominated by a debate between scholars who view tort law as rooted in individualized justice and scholars who argue tort law is an instrument of social policy. This dialogue has distracted scholars from the more important issue of how to properly separate cases worthy of individualized justice treatment from those better suited to routinized resolution. Tort law already contains both types. One potentially fruitful method of separation is to empower the parties themselves to make the decision. They could do so by voluntarily trading liability for the elimination or substantial reduction in non-economic damages. Such an approach honors individualized justice by leaving the parties in control of the case and, if used, would increase both compensation and administrative efficiency, arguably without a reduction in the deterrent effect. Although the purpose of this article is not to design the ideal proposal(s) to embody such an approach, Jeffrey O’Connell has given us several models to begin our deliberations. It is only the latest contribution in his impressive legacy.