June 2, 2006
Manslaughter and Malpractice
The number of doctors prosecuted for manslaughter has risen steeply since 1990, but the proportion of doctors convicted remains low. Prosecution for deliberately violating rules is understandable, but accounts for only a minority of these cases. Unconscious errors—mistakes and slips (or lapses)—are an inescapable consequence of human actions and prosecution of individuals is unlikely to improve patient safety. That requires improvement to the complex systems of health care.
How -- if at all -- might the conclusions be relevant to civil liability in the US?
Compensation: Fair vs. Full
In an article (SSRN, forthcoming in the DePaul Law Review) that could have significant implications for debate over damage caps, John C.P. Goldberg argues that the current conception of damages -- as aiming for full "make-whole" compensation -- is inconsistent with history. The abstract:
This article argues against the now-conventional idea that the remedial concept of make-whole compensation - understood to refer to a damages payment that corresponds to the losses a tort victim has suffered - is somehow an essential feature of substantive tort law. The article proceeds mainly by reviewing historical materials, including judicial decisions and treatises. These suggest that the prevailing notion of tort damages was until the late Nineteenth Century one of “fair” rather than “full” compensation. They also suggest that the modern tendency to equate tort with the idea of making whole rests on a subtle but critical re-characterization of the concept of injury, which once predominantly referred to a doing - a wronging of the victim by the tortfeasor - but now predominantly refers to an outcome - a loss suffered by the victim. Appreciation of these contrasts, I argue, sheds light on various contemporary debates, including those concerning the propriety and purposes of punitive damages. It also helps us to see that the tendency of modern academics, starting with Holmes, to define tort in terms of a notion of indemnification or restoration is in fact an attempt to impose a particular and controversial theory of tort onto tort doctrine and practices. Finally, I argue that a recovery of the traditional division between substantive tort law and the law of remedies, as well as an appreciation of the fair compensation conception of tort damages, will help academics grasp more clearly what tort law is and what sort of work it is well-suited and poorly-suited to do within our legal system.
June 1, 2006
Punitives and the Supreme Court
He doesn't note that Scalia and Thomas dissented in State Farm, which is presumably the position he considers proper. He does mention Scalia in a paragraph asserting potential corruption in the court system.
[via Greedy Trial Lawyer.]
May 31, 2006
Also, Profs Who Bounce a Ball Off the Wall of Their Office Before Class are Way More Interesting
This article contains a sentence I never thought I'd see:
The research, conducted by New York City's Beth Israel Medical Center with the National Institute of Media and the Family, shows surgeons who played Super Monkey Ball for 20 minutes before surgical tests were faster and more accurate than those who didn't.
Can't wait for a suit asserting that the standard of care for surgeons includes a warmup with XBox.
A "Culture of Intoxication" At Giants Stadium?
Aramark is challenging on appeal the award of over $100 million in damages ($65 million in punitive damages) in an alcohol-liability case in New Jersey arising from a drunk driving accident causing the paralysis of a young girl.
Aramark disputes various evidentiary and jury instruction rulings as well as asserting that punitives are unavailable under the New Jersey alcohol liability statute (which is silent as to punitives).
The plaintiffs successfully argued that a culture of intoxication was present:
During the four-week trial, Mazie presented evidence that Aramark vendors repeatedly violated rules against selling more than two beers to a single fan at a time. Lanzaro was called to the witness stand and testified he drank the equivalent of 16 twelve-ounce beers on Oct. 24. 1999, most of them at the stadium, and was slurring his speech when he tipped a vendor at halftime to buy six beers at once.
After leaving Giants Stadium, Lanzaro crashed into the Vernis' car as they returned home from a pumpkin-picking trip. Lanzaro's blood-alcohol level was measured at 0.266 percent, more than 2 1/2 times what was then the legal limit of 0.1 percent. He is serving a five-year prison term.
Aramark disputed the relevance of the "culture" evidence as well as asserting several other arguments:
As part of its appeal, Aramark also argued that the trial judge erred by dismissing claims of liability against the Giants, the National Football League and the New Jersey Sports and Exposition Authority, which had settled with the Vernis for about $700,000. Aramark argued that the jury should have been able to consider whether those defendants were partly responsible for the accident.
Aramark's attorneys also argued that the jury should have considered the potential liability of other parties: Antonia Verni's father, who did not put Antonia in a child car seat before the accident; a friend of Lanzaro who drank with him before the game and was in the car with him at the time of the crash; and a local strip club that the pair patronized shortly before the car crash.
Anthony Sebok wrote a piece about the case back in 2003, concluding that the plaintiffs' case was "dicey," based on the idea that the liability statute was aimed more at corner bars than a stadium.
More on the Williams Case
The Post has a piece about the Court granting cert. in Williams v. Philip Morris, noting, among other things, that it's really the first chance we'll have to see Justices Alito and Roberts dealing with torts issues, which were not a major part of their confirmation hearings.
May 30, 2006
150-1 Punitives:Compensatory Ratio to be Reviewed
According to an editorial in the NYT, a recent proposed shift in defining hypertension was funded by -- and perhaps pushed by -- drug companies standing to increase sales via a larger number of patients being diagnosed with hypertension. The editorial notes that the new definition (which looks at other risk factors in shifting people who would now be pre-hypertensive into the hypertensive category) has some merit and defenders, but focuses on the funding as a concern.
The Post has a closely-related piece about Restless Leg Syndrome, a bona fide but previously-little-known syndrome that has become much better-known via direct-to-consumer advertising via GSK (the first drugmaker to gain an RLS indication). The basic issue, policy-wise:
The debate has focused attention on what some have dubbed "disease-mongering" -- taking something that is within normal bounds and labeling it a disease needing pharmaceutical treatment.
"We're increasingly turning normal people into patients," said Lisa M. Schwartz of Dartmouth Medical School.
Shy people have "social phobia," requiring psychotropic drugs. High-strung boys have attention deficit disorder and need amphetamines. Baby boomers with slightly elevated blood pressure have "pre-hypertension" and line up for beta blockers. A few nights of restlessness calls for sleeping pills.
"The ordinary experiences of life become a diagnosis, which makes healthy people feel like they're sick," Schwartz said.
On the issue of DTC advertising:
"The argument the pharmaceutical industry is always making is that this is patient education -- that this is an under-diagnosed condition and 'we're just trying to raise awareness,' " said Michael Wilkes of the University of California at Davis. "If you're talking about something like hepatitis C or measles, that might be true. But if you're talking about toenail fungus or baldness or restless leg syndrome, I just don't buy it."
[Hypertension story via Greedy Trial Lawyer. Disclosure: I perform litigation consulting for a couple of drug companies.]
May 29, 2006
Compensating Tort Victims
The post's basic concept, based on Gilbert's research indicating that non-disabled people underestimate the happiness of disabled people, is that non-disabled jurors may overcompensate via hedonic damages tort victims who have become disabled.
May 28, 2006
News Coverage After an Accident
The amusement industry happens to be my particular interest (see my other blog, MassTort.org, for more rambling about it), but this story from the Minneapolis Star-Tribune is certainly representative of a more general category of media coverage -- the industry overview after a high-profile accident. The recent mining tragedies triggered a similar series of stories. It's worth a look in that context.
The CPSC has no oversight over fixed-site amusement parks, only over traveling carnivals, and state regulation varies widely, ranging from state inspections of every ride to no state oversight at all (SaferParks.org has a generally accurate overview). In Minnesota, ride safety is left to the parks and their insurers (except, I assume, if a worker is injured, in which case OSHA or the state equivalent could get involved, or if there is a criminal offense). This exchange seems to summarize the ongoing debate about regulation of rides -- but really it could be about regulation of nearly everything:
When there's an accident in a system like Minnesota's, "there's no one there who doesn't have a serious vested financial interest," said Kathy Fackler, who started an advocacy group in La Jolla, Calif., called Saferparks, after her son lost toes on a ride at Disneyland eight years ago.
But that financial interest keeps parks from being reckless about safety, said Tip Harrison, physical plant director at Valleyfair.
The financial incentive argument, of course, has its limitations, especially at the undercapitalized end of the spectrum (typically but not exclusively non-fixed-site entities like traveling carnivals). Valleyfair is owned by Cedar Fair LP, with net revenues over $500 million a year (about to jump dramatically after its purchase of the Paramount Parks chain); there is no shallow pocket problem.
The one thing the story doesn't quite make clear -- and stories rarely do -- is that the proposal to remove the exception for fixed-site parks (sometimes called the "rollercoaster loophole") is not preemptive of state regulation. The CPSC does not have an inspection system, nor does anyone, I think, expect them to create one.
What the CPSC may be good at is serving as an information clearinghouse -- so that if, as in the case of Valleyfair, there's a problem with a particular part on a particular kind of coaster made by a particular manufacturer, the CPSC can facilitate information-sharing among competing chains and independent parks. See these documents relating to a death on a Sizzler ride at a fair in Massachusetts to get a sense of what the CPSC does now in connection with non-fixed-site rides.