Wednesday, May 22, 2013
Turkewitz on PI Advertising and Mass Accidents
Over at New York Personal Injury Law Blog, Eric Turkewitz looks at lawyer advertising in the wake of the Metro-North derailment.
Tuesday, May 21, 2013
CT: Attorneys Absolutely Immune During Litigation from Fraud, IIED Claims
A divided Connecticut Supreme Court affirmed yesterday that attorneys are absolutely immune from claims for fraud and IIED for conduct that occurred during litigation. The case involved a series of attorneys who allegedly concealed a client's large inheritance from her spouse and described her as financially strapped during divorce proceedings, costing the spouse approximately $400,000 in extra legal expenses. Although attorneys must be free to litigate their cases, this amount of protection seems excessive. Alex Long (Tennessee) has some guidance on how to handle this situation in this piece from last year.
Culhane on Concussions as a Public Health Problem
John Culhane (Widener) has posted his contribution to the FIU symposium on concussions to SSRN. Entitled Not Just the NFL: Compensation, Litigation, and Public Health in Concussion Cases, the abstract provides:
This article examines the recent attention given to traumatic head injury in the National Football League from a public health perspective. It notes that injuries are prevalent in many sports (not just football), and argues that the goal should be to design interventions that reduce the incidence and severity of such injuries. The article explores and evaluates some of the measures that have been taken throughout football (from the NFL down through youth leagues) to make the sport safer, and notes how these steps also affect other sports and injuries to other parts of the body. Since football and other dangerous sports are unlikely to be eliminated, harm reduction should be the goal. Taken together, these measures
are likely to be successful by that measure.
The article concludes with some observations about the use and limitations of tort claims and compensation funds to redress the harms caused by participation in dangerous sports such as football.
Friday, May 17, 2013
Catastrophic Payments and Medical Malpractice
Terry Baynes of Reuters has written an article about the recent study by a group of physicians at John Hopkins finding that large med mal awards do not contribute significantly to healthcare costs. The article quotes the lead author of the study, Dr. Marty Makary, and me on the issue. My comments appear somewhat more skeptical of the med mal tort system than I actually am (through no fault of Ms. Baynes), and that caused me to reflect further on the significance of the study.
The study (pdf) finds that catastrophic judgments (of over $1M) constitute approximately .05% of national healthcare costs (as measured in 2010). I believe the inferences and recommendations that Dr. Makary and his colleagues draw from this are generally correct. First, they determine that catastrophic payouts are not a major driver of health care costs. Second, at least in interviews, Dr. Makary argues that defensive medicine due to the vague standard of care is a bigger expense than catastrophic payouts. Third, acknowledging the study does not include costs of defensive medicine, the authors conclude that the financial savings due to malpractice reform may be minimal compared to other drivers of health care costs. Fourth, at least in interviews, Dr. Makary argues that malpractice reform should not be focused on caps, but on the standard of care.
First, the study does support, at least modestly, a policy decision against caps. The argument is that "lopping off" the top of large med mal judgments does not save a lot of money because the amount of large judgments is small. There are, however, confounding variables. The study uses $1M or more as the definition of catastrophic payouts. Most caps are set well below $1M and are caps not on total awards, but on noneconomic loss alone. I don't see that the study differentiates between economic and noneconomic damages. This is not a criticism; I don't believe the National Practitioner Data Bank from which the data are drawn makes this distinction. It does, however, prevent a direct comparison between catastrophic payments and how caps would operate on them.
There are certainly other arguments against caps. They have a disparate impact on those who are most seriously injured. The most seriously injured in tort law are already under compensated, receiving a portion of economic loss, while those whose injuries are minor tend to receive several times economic loss. Moreover, to the extent that caps are aimed not at the top awards but at generally reducing suits, particularly frivolous suits, there is a much more direct and fair tool available: certificates of merit. Suits filed without merit is a problem; a 2006 study found that 37% of med mal claims in random samples of closed-claim files at 5 med mal insurance companies were non-meritorious. (David M. Studdert et al., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 354 New Eng. J. Med. 2024 (2006)). Pennsylvania has used certificates of merit (and no cap) to positive results.
Second, I agree that malpractice reform would not dramatically reduce costs in the vast health care system. Steven Brill's Time piece in March discussed numerous non-malpractice-related problems driving up costs. That doesn't mean malpractice law should not be reformed, just that it should be reformed for other reasons.
Third, and most significantly, I agree with the conclusion that the standard of care is a big part of the problem with med mal litigation. What is reasonable under the circumstances can be difficult to determine under banal circumstances. When applied to the practice of medicine, those complications multiply. Dr. Makary focuses on this as the cause of defensive medicine, and I'm sure it happens (though measuring it seems challenging). Moreover, the uncertainty created by the standard leads to delay and transaction costs as the parties genuinely dispute whether a health care provider acted reasonably under the circumstances. As to delay, the Studdert study referenced earlier found the average med mal claim spanned 5 years from occurrence to closing. As to transaction costs, the study found only 46 cents of every dollar went to claimants. Both these figures are consistent with prior studies.
Thus, the uncertain standard creates 3 problems. First, not all results are accurate. The Studdert study found an accuracy rate of determining medical errors (not quite the same as med mal, but close) at between 70 and 75 per cent. That is a better than random, but not great, particularly in light of the other 2 problems: delay (5 years on average) and transaction costs (running the system costs 54 cents of every dollar). This obviously creates potential problems for health care providers: the possibility of an erroneous adverse judgment, time spent worrying and not focused on health care, and high attorneys' fees/insurance premiums. To me, it is even worse for claimants. The Studdert study found 1 in 6 victims of medical error did not recover. In fact, the study found nonpayment of claims with merit occurred more frequently than did payment of claims that were not associated with errors or injuries. Moreover, a 5-year wait can be devastating to a claimant, particularly if there are large medical bills and lost wages involved.
Instead of simply raising the standard to make it more difficult for claimants to recover (recall 1 in 6 already doesn't recover when s/he should), it makes sense to me to provide claimants and health care providers a voluntary way to opt out of the tort system and handle the claim more along insurance lines, paying economic loss and a modest amount for pain and suffering. New Hampshire's early offers law passed last June was a step in the right direction. It may not be perfect, but it is an improvement over the current system. I won't make a long post any longer, but those who are interested in New Hampshire's early offer law can go here, here, and here.
There is one other facet of the study that is interesting. The authors find a physician's years in practice and, most significantly, previous paid claim history had no effect on the odds of a catastrophic payout. Ted Frank mentioned this at Point of Law. I would not have expected a strong correlation, but the lack of any correlation is surprising to me.
Thursday, May 16, 2013
Scheuerman on Class Certification in NFL Concussion Litigation
TortsProf's Sheila Scheuerman has posted to SSRN The NFL Concussion Litigation: A Critical Assessment of Class Certification. The abstract provides:In the world of high-stakes class action litigation, a new theory is emerging that seeks to overcome the longstanding hurdles that have precluded certification of personal injury class actions: the "medical monitoring" class action. A recent example is the concussion-related lawsuits brought by former football players against the National Football League. The players allege that the NFL concealed the long term effects of on-field head injury, and failed to warn players of the risks of harm from repeated concussions. The players only seek class certification on a medical monitoring claim — a tort that may allow asymptomatic plaintiffs to recover anticipated medical testing. Like the putative personal injury class or no-injury class, however, aggregation of medical monitoring claims presents its own individual issues that preclude class certification under the Federal Rules of Civil Procedure.
This symposium essay examines the class certification issues presented by the "NFL concussion" litigation. The essay presents the history and status of this litigation, provides an overview of concussion science, and examines the players’ claims against current standards for class certification. The essay concludes that the players’ medical monitoring claim as currently pled fails to satisfy the criteria for class certification. This does not mean that these plaintiffs have no redress against the NFL. It means only that the NFL players need to employ the traditional personal injury lawsuit — not the class action device — to pursue their relief.
Tuesday, May 14, 2013
Rhee on the Tort Foundation of Duty of Care and Business Judgment
Robert Rhee (Maryland) has posted to SSRN The Tort Foundation of Duty of Care and Business Judgment. The abstract provides:
This Article corrects a misconception in corporation law – the belief that principles of tort law do not apply to the liability scheme of fiduciary duty. A board’s duty of care implies exposure to liability, but the business judgment rule precludes it. Tort law finds fault; corporation law excuses it. The conventional wisdom says that the tort analogy fails. This dismissal of tort principles is wrong. Although shareholder derivative suits and ordinary tort cases properly yield systemically antipodal outcomes, they are bound by a common analytical framework. The principles of board liability are rooted in tort doctrines governing duty, customs, and pure economic loss. Properly applied, they produce a duty “to care” (vis-à-vis duty of care), based on a good faith undertaking of care, but upon such undertaking no liability for negligently inflicted economic loss – the exact result achieved by the fiduciary duty of care and the business judgment rule. A sound tort analysis not only theorizes the enigmatic relationship between the duty of care and the business judgment rule, but it also explains Delaware’s puzzling procedural-substantive divide. Fiduciary duty in corporation law rests on a tort foundation. Lastly, the thesis of this Article has a broader implication. The contractarian view of corporation law seeks to relegate the role of courts to passive custodians of the corporate contractual terms provided by the legislature and the corporation’s constituents. However, this view is constrained by a tort framework wherein courts do and should play a robust, albeit reserved, role in regulating important aspects of corporate governance through the continued common law process of doctrinal development of the idea of a wrong.
Condo/Co-Op Liability Following Hurricane Sandy
The New York Law Journal has an interesting story about negligence suits filed against Condo and Co-Op Associations following Hurricane Sandy.
Thanks to Lisa Smith-Butler for the alert.
Monday, May 13, 2013
Can a texter be liable for sending text and distracting driver?
The ABA Law Journal reports on an novel theory being tested in the New Jersey appellate courts: Does sending a text to someone you know is driving create tort liability? The plaintiffs were injured by a driver who was distracted by a text message. In a twist, the plaintiffs sued both the driver and the sender of the text message. The plaintiffs argued that "the court should impose a duty of care on those who know the recipient is both behind the wheel and likely to be reading texts while driving." In response, the defendant-texter has argued that she could not control when the message is read. Let's see what the New Jersey appellate court decides.
Wednesday, May 8, 2013
Catastrophic Medical Malpractice Payouts in the United States
A team of doctors has published a study by this name in the Journal for Healthcare Quality. The absract provides:
Catastrophic medical malpractice payouts, $1 million or greater, greatly influence physicians’ practice, hospital policy, and discussions of healthcare reform. However, little is known about the specific characteristics and overall cost burden of these payouts. We reviewed all paid malpractice claims nationwide using the National Practitioner Data Bank over a 7-year period (2004–2010) and used multivariate regression to identify risk factors for catastrophic and increased overall payouts. Claims with catastrophic payouts represented 7.9% (6,130/77,621) of all paid claims. Factors most associated with catastrophic payouts were patient age less than 1 year; quadriplegia, brain damage, or lifelong care; and anesthesia allegation group. Compared with court judgments, settlement was associated with decreased odds of a catastrophic payout (odds ratio, 0.31; 95% confidence interval [CI], 0.22–0.42) and lower estimated average payouts ($124,863; 95% CI, $101,509–144,992). A physician's years in practice and previous paid claims history had no effect on the odds of a catastrophic payout. Catastrophic payouts averaged $1.4 billion per year or 0.05% of the National Health Expenditures. Preventing catastrophic malpractice payouts should be only one aspect of comprehensive patient safety and quality improvement strategies. Future studies should evaluate the benefits of targeted interventions based on specific patient safety event characteristics.
Monday, May 6, 2013
The Compensation Fund: Feinberg's Back
Massachusetts Governor Deval Patrick and Boston Mayor Tom Menino have appointed Ken Feinberg to run the One Fund Boston for victims of the Boston marathon bombing. The Enterprise has an interview with Feinberg as does MSNBC. Similar to his work in prior compensation funds, Feinberg will be holding town hall meetings with the public (today and tomorrow), and meeting privately with victims. According to The Enterprise:
The final protocol and claim forms will be available on the fund’s website by May 15, and people will have a month to register. Feinberg, who has sole authority over the fund, said the money will be distributed to Boston victims by the end of June.
Friday, May 3, 2013
2013 Med Mal Payouts
Diederich Healthcare has released the 2013 statistics for med mal payouts. It's a treasure trove of data. Some quick takes:
- $3.6 billion in med mal payouts in 2012
- 12,142 total payouts in 2012
- Payouts were 3.4% lower than 2011 (continuing a downward trend since 2003)
- 5% of payouts were judgments versus 93% settlements
- The largest alleged injury (31%) was death
Swan on Tort Law, Sexual Assault, and Third Parties
Sarah Swan (JSD Candidate, Columbia) has posted to SSRN Triangulating Rape. The abstract provides:
Civil actions for rape and sexual assault have recently been undergoing significant changes in both quantity and quality. Quantitatively, the number of these kinds of cases has increased dramatically since the 1970s. Qualitatively, the litigation has shifted from a woman versus man paradigm to a triangulated tort claim involving a female plaintiff, a male defendant, and a corporate or institutional third party entity that either facilitated or somehow failed to prevent the sexual harm. While it may seem odd to think of sexual assault as involving three parties, the legal forms of rape have traditionally been triangulated. Historically, rape was a legal wrong between two men regarding one’s proprietary interest in a woman: one man’s rape of another man’s wife, daughter, or servant would be legally constructed as a wrong done to him. Then, as this triangulation faded and the criminal justice system became the main forum for rape redress, the criminal triangulation of state versus male defendant, regarding the wrong to a woman, became the dominant structure of rape law.
Despite the fact that the criminal regime has been demonstrably unsuccessful in addressing or deterring sexual harms, it remains the primary forum for their adjudication, and many cultural, legal, and political pressures encourage women to rely solely on this system. This article argues against those pressures, and asserts that triangulated claims in private law represent a potentially promising avenue of redress for sexual harms. These civil suits can function as “crimtorts” (private civil actions which target public harms). Although they must overcome some significant obstacles, triangulated civil suits can serve as an important tool in targeting the social realities that contribute to sexual assault.
Thursday, May 2, 2013
FL: House Passes Med Mal Reform; To Scott for Signature
Yesterday the Florida House passed a med mal reform bill that restricts experts testifying against a defendant doctor to the same specialty, not just the same field. Bloomberg Businessweek has the story.
Wednesday, May 1, 2013
PA: Venue Rule Covering Out-of-State Doctors Is Constitutional
A Philadelphia judge has held that a rule allowing venue over out-of-state doctors in any county in Pennsylvania is constitutional. Amaris Elliott-Engel has the full story for The Legal Intelligencer (behind a pay wall).
Today in Med Mal Reform
In Missouri, the Senate is debating whether to reinstate a cap on med mal damages after the Missouri Supreme Court ruled last year that a prior cap was unconstitutional. At this point, negotiations are "in limbo," with no vote after 8 hours of discussion. St. Louis Public Radio has the story (see also the San Francisco Chronicle)
Meanwhile, in Florida, the House is set to vote on a bill that would restrict the type of experts eligible to testify against a defendant doctor. See earlier posts here and here. The Jacksonville Business Journal has the story.
Tuesday, April 30, 2013
Terrorism Insurance in the Wake of the Boston Marathon Attack
Because of the link between torts and insurance, many of you either teach Insurance or are interested in the subject. Here's a local story focusing on terrorism insurance after Boston. The upshot is that homeowners are generally covered and businesses generally are offered coverage as a separate option every time they renew. Is anyone seeing similar interest in terrorism insurance in their locality?
Thanks to David Raeker-Jordan for the tip.
Friday, April 26, 2013
Guest Blogger Max Kennerly: "The Danger of Assuming Judicial Omniscience in Tort Law"
When Chris invited me to write a guest post for TortsProf, I already knew what I was going to write about: how the courthouse doors were being increasingly closed on tort plaintiffs by way of procedural changes, to the point that, in many contexts, civil procedure law was more determinative of the outcome of tort disputes than substantive law. Between the time I came up with my article, however, and the time it was due, civil procedure Professor Arthur Miller published his new article, “Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure.”
Talk about being preempted.
Professor Miller’s article is, unsurprisingly, thorough and erudite, covering the last thirty years of changes — the majority of them made out of whole judicial cloth — in the law applicable to procedural issues like summary judgment, class action certification, arbitration, pleading, jurisdiction, and discovery, all of which greatly benefitted defendants in tort lawsuits, particularly well-financed corporate defendants. I do not mean to repeat Professor Miller's arguments, nor to rehash the many arguments made by consumer and civil justice advocates against these recent developments (I’ve made many similar criticisms before), but to address them from the perspective of, shall we say, epistemology.
Society develops its laws by making choices about public policy, both choices about who should prevail in a given hypothetical where the facts are known, and choices about whom we favor when the true facts are unsettled, unknown, or unknowable. For example, in criminal prosecutions, we in theory demand considerable certainty — “beyond a reasonable doubt” — before permitting a conviction, in part because we claim to adhere to Blackstone’s formulation that “it is better that ten guilty persons escape than that one innocent suffer.” Blackstone’s formulation is itself an expression of the belief that, where there is a reasonable possibility that an element of the crime is not truly
known, we will favor the defendant.
For decades, tort law has been discussed as the rules we follow to decide when one party must pay for the injuries suffered by another. With the growing influence of civil procedure and evidentiary rules in tort litigation, and the growing cost of litigation (which affects plaintiffs just as much, if not more, than defendants) the real question in tort law that determines cases today is decreasingly a question of when one party will be liable to another and increasingly a question of when we allow an injured party to access the judicial system at all. The above procedural changes noted by Professor Miller are not mere alterations to the process by which a party brings their civil dispute to the court and presented to a jury; they are routinely outcome determinative.
The Federal Rules of Civil Procedure and of Evidence do not contemplate any circumstance in which a plaintiff with a potentially meritorious claim with unsettled facts is dismissed before trial, and yet tort litigation –— including nationwide multidistrict litigation involving thousands of claimants, billions of dollars in damages, and significant factual disputes — is routinely dismissed in advance of trial on the basis of factual determinations made by judges about what is known, unknown, or unknowable.
Thursday, April 25, 2013
Tomorrow's Guest Blogger: Max Kennerlydied during liposuction (a case that required a five week trial in 2008, resulting in a $20.5 million jury verdict, including the largest punitive damages ever awarded in a Pennsylvania medical malpractice case), to a baby boy injured at birth by a hospital that refused to perform a c-section for hours and so developed cerebral palsy, to the estate of a 19-year-old woman killed by a fatigued truck driver who was encouraged by his employer to fabricate his log book so he could spend more hours on the road. Max has also successfully represented a number of individuals and businesses with financial damages, including a homeowner whose mortgage company failed to properly search the title of her home and a small electronics business defrauded by a wealthy former contractor. As of 2012, in addition to his personal injury and medical malpractice work, he represents dozens of clients with product liability lawsuits arising from the Actos, Pradaxa, and implanted mesh erosion litigations.
The law isn’t just a job for Max, it’s a profession, and he devotes substantial time and energy to pro bono efforts and to educating lawyers and non-lawyers about the law. Max has several times appeared on the Philadelphia Court’s Pro Bono Honor Roll for his volunteer service. One of his passions is writing, and so he spends a lot of time informing the public about the law on his Litigation & Trial blog and through contributions to non-legal publications such as Emergency Physicians Monthly, where he debated a physician about malpractice issues, and NYC Aviation, where he discussed the Reno Air Races disaster. He has been referenced as a legal analyst in publications like The New York Times, The Atlantic and Business Insider. Most recently, he was quoted by the Philadelphia Daily News / WHYY’s ”It’s Our Money” project discussing Occupy Philadelphia, cited by Vanity Fair discussing the Facebook ownership lawsuit from The Social Network, and quoted by Reuters news discussing the Penn State child abuse scandal.
Within the law, Max was selected by his peers to be included in Super Lawyers magazine as a Pennsylvania Rising Star. He has also taught Continuing Legal Education seminars for the Pennsylvania Bar Institute, has contributed to legal publications such as The Jury Expert, and has been quoted by publications like Inhouse Counsel and the American Association for Justice’s Trial magazine.
Max also wrote one legal book with Jim Beasley, Jr., a guide for civil lawyers in Pennsylvania, that was published earlier this year, and is working on another one (also with Jim) for civil lawyers nationwide, due in another two years.
Max graduated from Yale University with Honors in History and from the Beasley School of Law at Temple University as a Law Faculty Scholar and a member of the Rubin Public Interest Society. At Yale he wrote an award-winning paper on the history of the Federal Reserve. At Temple Law he was a Teaching Assistant in Constitutional Law for Dean Robert Reinstein and a clerk in the Federal Court Clerkship Clinical program.
JOTWELL Torts: Zipursky on Moore on Intent
At JOTWELL, Ben Zipursky (Fordham) reviews Nancy Moore's Intent and Consent in the Tort of Battery: Confusion and Controversy, 61 Am. U. L. Rev. 1585 (2012).
CFP: AALS Sections on Torts and Insurance
The 2014 AALS Annual Meeting will feature a combined Torts and Compensation Systems and Insurance Sections presentation "On the Unavoidable Intersection of Torts and Insurance." Speakers include Tom Baker (Penn),Nora Freeman Engstrom (Stanford), and Kent Syverud (Wash. Univ. in St. Louis). If you would like to join this panel, there is a call for papers. The information is available over at the Faculty Lounge.