TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, February 16, 2018

Miller on Suicidal Patients and Physician Immunity

Lauren Miller (Student, Maryland) has posted to SSRN Taking a Chance on Patient Life:  Suicidal Patients, Involuntary Admissions, and Physician Immunity in Maryland.  The abstract provides:

Maryland jurisprudence exempts from liability any physician that elects not to involuntarily admit a mentally ill patient into treatment. This article explores through both statutory and case law jurisdictional differences in the duty owed by physicians to their foreseeably suicidal patients. These findings are applied to Chance v. Bon Secours Hospital and used to advocate against expanding statutory immunity to physicians that recklessly release involuntarily admitted patients from treatment before improvements to their mental health are achieved.

February 16, 2018 in Scholarship | Permalink | Comments (0)

Wednesday, February 14, 2018

MI: Bill to Replace No-Fault Auto System with Tort

A state lawmaker has filed a bill to shift Michigan from a no-fault auto system to tort law.  Michigan has the highest insurance rates in the nation; it is also the only state with an unlimited amount of lifetime benefits.  Florida is also considering reverting to the tort system.  WTOL 11 has the story.

February 14, 2018 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, February 13, 2018

The Duty of Care in Negligence by James Plunkett

Hart Publishing announces The Duty of Care in Negligence by James Plunkett.  The blurb provides:

This book aims to provide a detailed analysis and overview of the duty of care enquiry, drawing on both academic analyses and judicial experience in leading common law systems. A new structure through which duty problems can be analysed is also proposed. It is hoped that the book provides some fresh insights and clarity of the concept to the reader.

The flyer, with a 20% discount, is available here:  Download Plunkett

February 13, 2018 in Books | Permalink | Comments (0)

Monday, February 12, 2018

Yale Fellowship in Private Law

The Yale Law School Center for Private Law is now accepting applications for the 2018-19 Fellow in Private Law. The Fellowship in Private Law is a full-time, one-year residential appointment, with the possibility of reappointment. The Fellowship is designed for graduates of law or related Ph.D. programs who are interested in pursuing an academic career and whose research is related to any of the Center for Private Law's research areas, which include contracts (including commercial law, corporate finance, bankruptcy, and dispute resolution), property (including intellectual property), and torts. More information is available here.

February 12, 2018 | Permalink | Comments (0)

Friday, February 9, 2018

Fordham Symposium: Civil Litigation Reform in the Trump Era

The Fordham Law Review is hosting a symposium on Friday, February 23.  Speakers are:  Mark Behrens, John Beisner, Andrew Bradt, Stephen Burbank, Scott Dodson, Howard Erichson, Sean Farhang, Jonah Gelbach, Maria Glover, Deborah Hensler, Alexandra Lahav, and Judge Lee Rosenthal.  From the announcement:

In the first year of the Trump presidency, several litigation reform bills passed the House of Representatives. The fate of these bills remains uncertain, but the set of issues they raise will not disappear anytime soon. Legal reform advocates see an opportune moment to pursue an aggressive reform agenda, while critics view the bills as threats to civil justice. In addition, the Trump administration has been at the center of a swirl of litigation, raising issues about the role and processes of civil justice. This one-day symposium will address the prospects of civil litigation reform in the Trump era, taking seriously both the threat to the justice system and the opportunities for improving the litigation process.

February 9, 2018 in Conferences | Permalink | Comments (0)

IL: Plaintiff Dies the Day Before Verdict, Which is Reduced by $15M

An Illinois appellate court has cut a med mal verdict from $22M to $7M because the plaintiff died the day before the verdict was handed down.  Among the reasons cited was that the money for the plaintiff's suffering was no longer relevant.  The Peoria Journal Star has details.

February 9, 2018 in Damages | Permalink | Comments (0)

Thursday, February 8, 2018

KY: Med Mal Reform Bill Advances

Last year, Kentucky passed a law requiring med mal cases to be reviewed by a panel prior to advancing to court.  Now another reform is working its way through the legislature.  Senate Bill 20, which just advanced out of committee, would place caps on a plaintiff's attorney's fees and prohibit expressions of sympathy from being used against physicians in med mal cases.  The story from ctpost is here.

February 8, 2018 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, February 5, 2018

Rabin on Tort and Workers' Compensation

Bob Rabin has posted to SSRN Accommodating Tort Law:  Alternative Remedies for Workplace Injuries.  The abstract provides:

In this paper, I explore the often-contested territory that tort occupies within the more expansive domain of worker’s compensation. This exploration reveals that, far from being substitutes, tort and worker’s compensation are, in fact, deeply and inextricably joined: A complementarity that underscores the trade-offs intrinsic to each system. Whatever the source and scale of harm, the incentives to pursue a third-party tort suit—in light of the bar on a direct claim against the employer—are straightforward. Worker’s compensation no-fault benefits feature stringent caps on economic loss beyond medical expenses, and bar non-economic recovery altogether. By contrast, tort provides the prospect of recovery for total wage loss, as well as pain and suffering, which is considerably more remunerative than worker’s compensation benefits—particularly in the case of more serious injuries or workplace-related fatalities.

These tort claims, in turn, can raise a related question that again demonstrates the inextricable tie between worker’s compensation and tort: Whether the third-party product manufacturer, if responsible in tort, can recover a portion of the tort award through a contribution claim against the employer, despite the ban on a direct employee tort claim against the employer. Correlatively, there is the prospect of the employer seeking to recapture worker’s compensation benefits paid to the employee through a subrogation claim against the third-party tort defendant.

These intersecting claims most frequently involve accidental harm in the workplace, rather than intentional misconduct or reckless disregard for the safety of workers. But in the latter cases of egregious employer misconduct, most states recognize an exception from the bar on tort recoveries. As a consequence, these are situations where tort recovery may be a substitute for worker’s compensation rather than standing side-by-side with tort, as in accidental harm cases. Similarly, Title VII claims for sexual harassment in the workplace stand as a distinct tort-type source of recovery entirely apart from the worker’s compensation system.

February 5, 2018 in Scholarship | Permalink | Comments (0)

Friday, February 2, 2018

Gardner on Tort Theory

John Gardner has posted to SSRN Tort Law and Its Theory.  The abstract provides:

This paper explores the body of scholarly writing known as 'tort theory', and in particular the polarization of 'economic' and 'moral' approaches to the subject. It queries the ambitions, the discourses, and the presuppositions of work on both sides of that divide. In particular it investigates: the sense in which both approaches are (and are not) inevitably 'normative'; what counts as tort law, and what counts as a tort, according to the two approaches; and what it means (and what it does not mean) to think of tort law as 'instrumental'.

February 2, 2018 | Permalink | Comments (0)

Wednesday, January 31, 2018

Law 360: "4 Tort Reform Challenges to Watch"

At Law 360, Y. Peter Kang discusses 4 constitutional challenges to state tort reforms:  1.  KY's med mal review panels; 2. ND's med mal damages cap, struck down by a state trial judge as unconstitutional; 3. the Oklahoma Supreme Court's review of a $350,000 cap on noneconomic damages; and 4. the Wisconsin Supreme Court's review of an appellate court holding that its noneconomic damages cap is unconstitutional.

January 31, 2018 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, January 30, 2018

NY: Gov. Cuomo to Sign Amended Lavern's Law

The state legislature and Governor Cuomo have reached a deal on Lavern's Law, the only bill remaining from the last session on which Cuomo has taken no action.  The Daily News reports:

Gov. Cuomo and state legislative leaders have struck a deal for the medical malpractice bill known as Lavern’s Law to be signed into law.

Cuomo plans to sign the bill this week, after the Legislature votes to amend the version it passed in June. The bill would start a 2 1/2-year window to bring malpractice cases involving cancer when the patient discovers the error. Currently, the clock starts when the mistake occurs — meaning patients may lose their chance to sue before they even find out there’s been an error.

Under the amended version, people whose statute of limitations ran out in the last 10 months will get a six-month window to sue. The bill the Legislature passed offered a window for cases going back seven years.

The changes also make it more clear that the new rules apply only to cancer, not other illnesses.

The full article is here.

January 30, 2018 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, January 29, 2018

4th Annual Civil Procedure Workshop: Call for Papers

The 4th annual Civil Procedure Workshop will be held at Stanford on November 9-10, 2018.  Confirmed speakers include Judge Diane Wood, Janet Alexander, Elizabeth Burch, Margaret Lemos, David Engstrom, Myriam Gilles, and Deborah Hensler.  More information, and a call for papers, is available here:  Download Civil Procedure Workshop Call For Papers.2018

January 29, 2018 in Conferences | Permalink | Comments (0)

Saturday, January 27, 2018

2018 AALS Annual Meeting Torts Section Podcast

In case you could not join is in San Diego earlier this month, the podcast from the Torts Section's meeting is here:  

https://soundcloud.com/aals-2/torts-and-compensation-systems/s-qQHGP?in=aals-2/sets/2018-annual-meeting/s-kIL0u

(You will need to log in with your AALS username and password.)

January 27, 2018 in Conferences | Permalink | Comments (0)

Tuesday, January 23, 2018

Regulating Risk Through Private Law

Regulating Risk Through Private Law, edited by Matthew Dyson, is now available from Intersentia.  The blurb provides:

Regulating Risk Through Private Law sets out, for nine significant legal systems, an overarching conception of risk in legal theory, particularly of the linked role of risk-taking in generating liability and in liability regulating risk. It examines and explains what risk-based reasoning adds to private law.

Taking tort law as the core case study, the book analyses national variation in risk understanding, liability, culture and regulation and from that, develops a legal framework for understanding and responding to risk. Then, looking beyond tort, the volume examines the contextual and cultural setting of different risks and how different legal systems seek to regulate them.

The volume draws on more than 25 leading scholars of private law and risk from around the world to develop a coherent and systematic study of risk. The legal systems included span the common law and civil law, large and small, codified and uncodified, as well as those with wider and narrower strict liability rules and causation rules: England and Wales, France, Sweden, Italy, Spain, the Netherlands, Chile, South Africa and Brazil.

This is the first multi-handed work on risk to explore what risk-reasoning adds to private law and how best it can be deployed, resisted or simply understood.

Matthew Dyson is an Associate Professor in the Faculty of Law, University of Oxford, and Tutorial Fellow of Corpus Christi College. Previously, he was a Fellow of Trinity College and Jesus College, Cambridge. He is an associate member of 6KBW College Hill Chambers, a Research Fellow of the Utrecht Centre for Accountability and Liability Law and Vice President of the European Society for Comparative Legal History. He is the editor of Unravelling Tort and Crime (2014), Comparing Tort and Crime (2015) and Fifty Years of the Law Commissions (2016).

With contributions by Cristián A. Banfi (University of Chile), Bernardo Bissoto Queiroz de Moraes (University of Sao Paulo), Mia Carlsson (Stockholm University), Nadia Coggiola (University of Turin), Matthew Dyson (University of Oxford), Anton Fagan (University of Cape Town), Duncan Fairgrieve (University of Paris-Dauphine PSL), Richard Fentiman (University of Cambridge), Sandra Friberg (Uppsala University), Bianca Gardella Tedeschi (Università del Piemonte Orientale), María Paz Gatica (University of Chile), Ivo Giesen (Utrecht University), Michele Graziadei (University of Turin), Cyril Holm (Uppsala University), Elbert de Jong (Utrecht University), Marlou Overheul (Utrecht University), Ignacio Maria Poveda Velasco (University of Sao Paulo), Alistair Price (University of Cape Town), Otavio Luiz Rodrigues Junior (University of Sao Paulo), Albert Ruda (University of Girona), María Agnes Salah (University of Chile), Helen Scott (University of Oxford), Sandy Steel (University of Oxford), Jenny Steele (University of York), Simon Taylor (University Paris Diderot), Eduardo Tomasevicius Filho (University of Sao Paulo) and Véronique Wester-Ouisse (Deputy Prosecutor at the Court of Appeal of Rennes).

More information is available here:  Download E-flyer_Regulating Risk Through Private Law

January 23, 2018 in Books | Permalink | Comments (0)

Monday, January 22, 2018

Lewis on the Effect of Personality on Tort Litigation

Richard Lewis has posted to SSRN Humanity in Tort:  Does Personality Affect Personal Injury Litigation?.  The abstract provides:

This article examines whether the character of people involved in personal injury claims affects their outcome irrespective of the legal rules. For example, does the personality or background of the litigants or their lawyers influence whether an action succeeds and how much damages are then paid?


A rise in the number of claims is noted here as part of a contested ‘compensation culture’ in personal injury. In a demographic analysis, the article identifies typical claimants and the injuries from which they suffer. Claims have been gathered in increasing numbers by law firms in response to market pressures encouraging them to process minor injury cases in bulk. The firms have changed their structure and created ‘settlement mills’ where there may be little scope for individuals to affect the routine processing of small claims. By contrast, in more serious injury cases character and personality are more likely to make a difference. These findings are suggested by the author’s empirical study of the views of lawyers on the operation of the claims system: practitioners who have been interviewed are given voice here. 


The article challenges traditional perspectives of tort where it is often implicit that claims are resolved only in court on the basis of textbook rules on liability and damages. There has been a failure to take account of other factors which may influence both the settlement of claims and the few cases that go to trial. In this wider context the article forms part of a literature revealing that the operation of the tort system in practice differs markedly from that in theory. It calls into question those philosophies of tort liability which fail to consider how claims are actually determined.

January 22, 2018 in Scholarship | Permalink | Comments (0)

Thursday, January 18, 2018

Foreign Objects Left in Patients

Leaving a scalpel in a patient is a common fact pattern for res ipsa loquitur, and it is in the news.  Senator Richard Blumenthal (D-CT), of the Senate Committee on Veterans' Affairs, wrote several letters to VA leaders on Tuesday demanding answers for "allegations of appalling medical malpractice."  One memorable case included a surgeon who allegedly admitted leaving a 5-inch scalpel in a patient's abdomen, where it remained for approximately 4 years.  The Hartford Courant has the story, and reports:

A study of 100 health care organizations from 2011-12 found 428 incidents of items mistakenly left inside patients, including 128 sponges, 43 needles, 171 instrument fragments, 77 whole instruments and 9 towels.

January 18, 2018 | Permalink | Comments (0)

Tuesday, January 16, 2018

Chamallas on Affirmative Consent

Martha Chamallas has posted to SSRN her contribution to the JTL symposium on the Restatement (Third) of Intentional Torts to Persons, The Elephant in the Room:  Sidestepping the Affirmative Consent Debate in the Restatement (Third) of Intentional Torts to Persons.  The abstract provides:

In contemporary debates about legal responsibility for sexual misconduct, the status of “affirmative consent” is front and center. Most often associated with the campus rape crisis and the enforcement of Title IX by colleges and universities, affirmative consent places responsibility on individuals who initiate sex to secure the affirmative permission of their partners before engaging in sexual conduct. Going beyond “no means no,” affirmative consent is best captured by the slogan “only yes means yes” and aims to protect those sexual assault victims who react passively or silently in the face of sexual aggression, even though they do not desire to have sex and would not have initiated the sexual activity if they had been given the choice. The criminal law in most states has not yet caught up with these developments and has continued to require either a showing of “force” on the part of the defendant or proof of a verbal objection on the part of the victim.

Given its prominence, one might expect affirmative consent to emerge as a central issue in the revision of the Restatement (Third)’s provisions on consent.

Instead, affirmative consent makes an appearance only briefly in the Restatement's commentary and has not affected the core black letter statements of the law of consent. Although purporting to be neutral, the approach of the Restatement (Third) is incompatible with affirmative consent, both in the Restatement's definitions of actual and apparent consent and in its determination to assign the burden of proof to the plaintiff instead of the defendant.

Because there is no controlling precedent that would prevent the Restatement (Third) from embracing affirmative consent, the Restatement (Third) is free to follow the Title IX model and incorporate affirmative consent into the body of tort law. This article makes the case for adopting affirmative consent in sexual misconduct tort cases, even if the criminal law in any given jurisdiction continues to apply a more defendant-oriented consent rules.

January 16, 2018 in Scholarship | Permalink | Comments (0)

Thursday, January 11, 2018

ND: State Judge Rules Med Mal Cap Unconstitutional

In 1995, North Dakota passed a $500,000 cap on non-economic damages in medical malpractice cases.  Recently a state judge refused to apply the cap and reduce a non-economic damages award by $1 million:

[Judge] Feland ruled the 1995 law violates equal protection guaranteed by the state constitution by arbitrarily reducing damages for people who suffer the most severe injuries.

Feland wrote that the law's legislative record offered no explanation for how the $500,000 cap was chosen or how it would accomplish the Legislature's health care reform goals.

"The greater the harm caused by the negligent doctor, the greater the discount," said Tom Conlin, Condon's attorney. "The cap fell hardest on stay-at-home moms, the young and those who couldn't prove large economic loss."

CHI St. Alexius Health said on Tuesday that it's exploring legal options.

U.S. News has the story.

January 11, 2018 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, January 9, 2018

Gifford on the Role of Technology in Changing Tort Law

Don Gifford has posted to SSRN Technological Triggers to Tort Revolutions:  Steam Locomotives, Autonomous Vehicles, and Accident Compensation.  The abstract provides:

Waves of technological change explain the most important transformations of American tort law. In this Article, I begin by examining historical instances of this linkage. Following the Industrial Revolution, for example, machines, no longer humans and animals, powered production. With greater force, locomotives and other machines inflicted far more severe injuries. These dramatic technological changes prompted the replacement of the preexisting strict liability tort standard with the negligence regime. Similarly, later technological changes caused the enactment of workers’ compensation statutes, the implementation of automobile no-fault systems in some states and routinized automobile settlement practices in others that resemble a no-fault system, and the adoption of “strict” products liability. From this history, I derive a model explaining how technological innovation alters (1) the frequency of personal injuries, (2) the severity of such injuries, (3) the difficulty of proving claims, and (4) the new technology’s social utility. These four factors together determine the choice among three liability standards: strict liability, negligence, and no-fault liability with limited damages. I then apply this model to the looming technological revolution in which autonomous vehicles, robots, and other Artificial Intelligence machines will replace human decision-making as well as human force. I conclude that the liability system governing autonomous vehicles is likely to be one similar to the workers’ compensation system in which the victim is relieved of the requirement of proving which party acted tortiously and caused the accident.

January 9, 2018 in Scholarship | Permalink | Comments (0)

Thursday, January 4, 2018

AALS Annual Meeting: Torts Section

I hope to see many of you tomorrow at the Torts and Compensation Systems Section's program at the Annual Meeting.  The program is Friday, January 5 from 1:30-3:15.  We will do three things:

1.  Present the William L. Prosser Award:  Mike Rustad will introduce the 2018 winner, Marshall Shapo.

2.  Panel presentations on "The Role of History in Tort Theory":  Speakers are Martha Chamallas, Don Gifford, John Goldberg, and Ted White.  Unfortunately, John Witt is not able to speak.  The panel will take questions from the audience.

3.  Elect the 2018-19 Executive Committee:  The slate is Chair:  Stacey Tovino; Chair-Elect:  Adam Scales; Secretary:  Scott Hershovitz; Treasurer:  Mary Davis; Members:  Tim Lytton and Nora Freeman Engstrom.

January 4, 2018 in Conferences | Permalink | Comments (0)