September 15, 2006
Med Mal Insurance Rates
There have been a couple of developments that have been pointed to as evidence of changes in liability law working -- Mississippi saw another reduction in med mal insurance rates, and Texas has a new survey in which physicians state that they feel better about practicing there, and there is apparently a fairly significant increase in the number of new license applications. (Texas has also seen some reductions in insurance rates.)
One quote caught my eye in the Texas Medical Association press release:
“As it should be, Texas physicians’ No. 1 challenge is how to cure the patient, not how to avoid a frivolous lawsuit,” [TMA president Homer] said.
One can certainly assert with some credibility that the liability caps had at least something to do with the insurance rate reductions -- if the total exposure drops, one would expect the carriers to recognize that. And if insurance rates are lower, one can also expect physicians to be more open to riskier procedures.
But was there something in the 2003 reforms that targeted "frivolous" suits? Screening panels? Tightening up expert testimony? If not, how do caps reduce frivolous suits?
September 14, 2006
Over at MassTort.org, where I write about amusement and carnival safety (among other things), I've posted the complaint in a lawsuit over the death of a man in 2004 on a ride called the Sizzler in Shrewsbury, Massachusetts. The ride (a spinning ride) essentially fell apart around the rider and threw him to his death. Subsequent regulator investigations indicated poor maintenance and apparent use of improper parts in replacing bolts and the like.
There's nothing particularly unusual about the case, but it presents potentially useful examples of a lot of things -- a case that you might think would be a products case, but with no manufacturer in it (the ride is the most popular carnival ride in the world, has existed for decades, and the potential defect is essentially new, plus the manufacturer has been in and out of bankruptcy); an attempt to get the insurance company directly on the hook, given the relatively low insurance limits of the ride owner and operator (and their lack of other assets); and implications of connections among the insurer and the ride financing company.
If you're looking for an example case, it might be of interest.
Stanford Docs' Kids to Have to Start Buying School Supplies
Stanford is, starting October 1, banning all gifts to physicians from drug companies. The policy also seeks to bar publishing ghost-written articles ("Individuals are prohibited from publishing articles under their own names that are written in whole or material part by industry employees.") and requires disclosure of relationships with drug companies in publications. It does not speak to expert witness relationships and whether those should be disclosed.
So claims a new suit seeking class status for smokers of "light" cigarettes, claiming that the plaintiffs relied on representations that the light cigarettes were safer when they were not.
September 13, 2006
OT: TortsProf Beats Anonymous Lawyer
Okay, we probably won't ever beat the traffic for the blog-now-book Anonymous Lawyer, but Torts profs the nation over will no doubt be cheered to hear that the TortsProf fantasy football team The Raspberry Tort(e)s beat Jeremy Blachman's team Completely Guessing. To be fair, he was, um, completely guessing. Plus, he has a fancy book.
More coverage at Unbillable Hours (who calls me "pretty smart"!).
September 12, 2006
Call For Authors
[From friend-of-TortsProf Andrew McClug...note that Torts is already taken as a subject.]
Carolina Academic Press (CAP) is beginning a series of comparative law texts called the “Contextual Approach Series” (CAS). I’m serving as editor. CAP and I are looking for U.S. law professors in a variety of subject areas to serve as the lead authors for entries in the series.
The goal of the CAS is to create a series of interesting, student-friendly, self-contained, accessible comparative law books that—using co-authors from the U.S. and two other countries—clearly and concisely explain how law “really works” around the world in different subject areas. The series is grounded in part in the notion that the most qualified persons to write about the law of a particular nation are people who were educated and practice in that nation. The books will be paperbound and roughly 200 pages.
The first book, Practical Global Tort Litigation: U.S., Germany and Argentina (McClurg, Koyuncu and Sprovieri), is in publication production and available for use as a model. Detailed guidelines for authors in the series also are available.
As the title of the series suggests, each book will be based on a set of case or problem facts raising prototypical, universal legal issues in the particular subject area. (Examples: a criminal law text could take a simple theft case through the U.S. and two other legal systems; a family law text could take a divorce problem through the U.S. and two other systems; a criminal procedure book could compare the handling of a search, arrest and confession in the U.S. and two other systems, etc.) This contextual approach is intended to bring comparative law to life and make it more digestible and understandable to law students by giving them a framework to attach the law to.
Authors from the U.S. and two other nations will explore and analyze issues raised by the problem facts from the perspective of their respective legal systems in side-by-side country-specific sections.
The U.S. author will serve as the lead author and will enlist, with the editor’s help, co-authors in two other countries. The U.S. author has primary responsibility for supervising, editing, and integrating the contributions of the non-U.S. authors. In selecting countries for study, one goal is to choose legal systems that are representative of major world regions, legal traditions or both.
Prospective authors should possess the following attributes: (1) expertise in the relevant subject matter from a U.S. perspective; (2) excellent writing and composition skills; (3) dependability and reliability; (4) an eye for detail in consistency of organizational structure, style, formatting, and citation style; and (5) the time and resources to pursue the project to completion on deadline (roughly 18 months from signing of contract).
A lack of experience or background in comparative law is not a bar if you possess the above qualifications. The non-U.S. co-authors are expected to provide the primary expertise regarding foreign law. I had no prior background in comparative law before writing Practical Global Tort Litigation with Adem Koyuncu in Cologne and Luis Sprovieri in Buenos Aires. In one sense, this proved to be an advantage. On the other hand, as a former faculty member at the Florida International University College of Law, I did have access to international resources, which proved essential.
All subjects are open to consideration, although we are particularly interested early on in first-year courses and core upper-level courses.
If you have an interest in becoming an author in this series, please send a preliminary inquiry to firstname.lastname@example.org that includes: (1) the subject area you would be interested in writing about; (2) a c.v.; and (3) any early ideas you might have regarding a set of problem facts and candidates (and co-authors) for the two non-U.S. countries.
I look forward to hearing from you.
Andrew J. McClurg
Herbert Herff Chair of Excellence in Law
Cecil C. Humphreys School of Law
The University of Memphis
3715 Central Avenue
Memphis, TN 38152
Law & Tech
Interesting news at our neighbors the Workplace Prof Blog about the use of technology (primarily in research) among lawyers.
Surgeon Age & Complications
Common wisdom among surgeons is that a surgeon is at the height of his or her abilities between 5-15 years out from residency, give or take, where a surgeon has had enough time to acquire "seasoning," but is still young and current with the latest techniques. That is the cliche, anyway. This study suggests that, for complex procedures, there is little difference among age groups, except for the oldest surgeons. (The study does not address the question of whether the youngest and most inexperienced surgeons also have similarly elevated mortality rates.)
RICO & Tobacco
September 11, 2006
Grande Latte Please, And Sign This Proof Of Service
A ways back, Starbucks e-mailed a coupon to some employees to pass along to friends and family members. The coupon was good for a large iced drink.
But -- shock and surprise! -- it got forwarded to more than just a few people and Starbucks decided not to accept it any more, despite its printed expiration date of September 30. Feeling "betrayed," Kelly Coakley of Queens, has filed suit, seeking class action status and $114 million.
Business Week has an example. This one involves DuPont using Filipino attorneys (some U.S.-trained) to review documents, but there's no obvious reason it couldn't be used in document-intensive tort cases by both sides; basically one step removed from the contract attorneys defendants often use for document coding.
It's interesting to consider the financial implications for big cases. The difference in costs seems unlikely to make an otherwise-unattractive case attractive, but (if they do a reasonable job) it could fairly significantly improve profit margins and the speed with which large numbers of documents could get reviewed. It might also be a better immediate use for overseas attorneys than doing U.S. legal research, even when the attorneys are in common law countries.
September 10, 2006
Unlicensed surgery, it seems, may be more common than at least I thought.
Fabiola DePaula's quest for beauty took her to a condominium basement, where authorities say she paid an unlicensed doctor $3,300 for a nose job and liposuction performed on a massage table.
But something went terribly wrong and the 24-year-old nanny died, exposing what investigators say was an underground cosmetic-surgery network used by immigrants from Brazil - a country whose women are world-famous for their beauty and their willingness to go under the knife to achieve it.
Yikes. For profs who start off with negligence, this might be a useful story for discussing the standard of care of professionals and of those who hold themselves out as professionals.