Sunday, April 29, 2007
That's what's happening some in Jersey:
If you want to see Ridgewood gynecologist Ruth J. Schulze, you'll have to sign a contract promising never to sue her for malpractice.
The veteran physician and a dozen other gynecologists in New Jersey require the contracts as a condition of treatment.
Schulze sees it as the only way to control the rising malpractice premiums that have put some of her brethren out of business.
The story indicates that patients aren't really quite giving up all rights to sue; they are instead agreeing to arbitration, to caps on noneconomic damages, and to no punitive damages.
The contract came about by way of a particular insurer specializing in OB/GYN coverage. The rates for doctors using the contract are approximately half of what they would be otherwise; the group also claims that it is much more aggressive about monitoring physician practice than is typical.
Saturday, April 28, 2007
The Drug & Device blog has a very useful overview of blogs touching on drugs & medical devices (and I don't just say nice things because they like this blog).
In other news, soon -- possibly as soon as this week -- I'll be joined by a new co-editor. I recently took on some new stuff that made me want to get some help on this, plus I'd been planning on recruiting a co-editor pretty much since I started. More on that once it's all confirmed.
Thursday, April 26, 2007
So you've got the Chamber of Commerce's Institute for Legal Reform rankings of states' litigation climates on the one hand.
And you've got AAJ's response, which includes the "ten worst states to get sick or injured in" (and I know dangling prepositions are mostly considered acceptable now, but it still grates to have that in a title).
As the AAJ points out, the ILR's survey isn't anything more than a survey of in-house counsel and litigators (defense side) ranking various states on criteria that the ILR considers relevant. Actually, the ILR makes that clear too:
The 2007 State Liability Systems Ranking Study was conducted for the U.S. Chamber Institute for Legal Reform among a national sample of in-house general counsel or other senior corporate litigators to explore how reasonable and balanced the tort liability system is perceived to be by U.S. business.
The AAJ response is a bit more emphatic:
“This latest propaganda is a made-up survey primarily of corporate lawyers earning millions of dollars defending their CEOs from being held accountable,” said Jon Haber, chief executive officer of the American Association for Justice. “The Chamber will stop at nothing to destroy the civil justice system in America, which protects the rights of consumers, employees, and shareholders against corporate wrongdoing and negligence.”
The AAJ's "ten states" list is of ten states with liability modifications that the AAJ finds particularly problematic (many of which I'm not fond of either). It is seemingly focused on restrictions on state (as opposed to private) liability, creating a disjunction with the focus on corporate wrongdoing in the pull quote, but also including various generally applicable damage caps, non-litigation systems for recovery, and so on.
Neither of the reports are particularly helpful in a bigger picture sense, though the rankings do seem to get a fair amount of press every year. (Hey, that sounds familiar.) I suppose it is reasonable for legislators or others to want to know what defense lawyers think about the various states, so long as it's not interpreted as being definitive about, well, anything. Similarly, the AAJ's list could bring extra attention to various statutory provisions that many would see as unfair, but it's far from a comprehensive look at what states are most unfair to injured parties. In other words, both are pitched as being bigger than they are.
Wednesday, April 25, 2007
The NYT story has more.
The story is written by Alex Berenson, described by Judge Weinstein as "conspiring" to improperly release documents in the litigation. Berenson describes the document leak as such:
The document from 2000 and others were provided to The Times by James Gottstein, a lawyer who represents mentally ill people he says are forced to take psychiatric medications against their will.
Tuesday, April 24, 2007
Pharmalot notes the endowment by several drugmakers of a center to study pharmaceutical legal issues at Seton Hall Law School; NY PI Law Blog is skeptical of its claimed neutrality. Of course, the entire Temple Law School is now named the Beasley School of Law after a posthumous contribution of $20 million from James Beasley, founder of the Beasley Firm, a plaintiff-side firm that has a substantial (and respected) pharma (and other products) practice.
The two situations are not apples-and-apples, granted, but I don't think Temple's any more likely to be pro-plaintiff than the Seton Hall center is to be pro-pharma, especially since both are done by endowments rather than pledges of future money (unless I'm reading the coverage incorrectly).
(As usual: I do some work for pharmaceutical companies, though I don't think my clients are among those who have contributed to the Seton Hall program.)
Several of my students in my Products Liability course (all of whom were in my very first class three years ago and who are graduating this spring) chipped in and got me a gift of a "Golfing Gizmo," a device from the 1960s and 1970s that is the subject of the Hauter v. Zogarts case (534 P.2d 377 (Cal. 1975)) in David Owen et al.'s Products Liability and Safety casebook and possibly others. And they even found the same model and manual as is in the case, including the almost-blank-verse notation on the front: "COMPLETELY SAFE BALL WILL NOT HIT THE PLAYER."
The manual (in PDF form) is here: Download Gizmo0001.PDF
For others who teach the case, I present some images you're welcome to use (click on the smaller images to get a bigger one):
A golf ball on a 20-foot cord attached to an elastic strap -- what could possibly go wrong?
The device set up. (Yes, our yard has seen better days, but we're putting on an addition this year and it's going to be dug up anyway, so that's my excuse, this year, for not reseeding.)
The top of the "T" is made of elastic attached to ground spikes. The longer part is thick non-stretchy cord.
The full set-up. The golf ball is attached at the far end of the cord (next to the treehouse post). And, um, yes, that is a sled on the ground. Hey, we had snow less than two weeks ago, honest.
Thanks to my students for the very thoughtful gift.
Monday, April 23, 2007
So says a Post story:
The Food and Drug Administration has known for years about contamination problems at a Georgia peanut butter plant and on California spinach farms that led to disease outbreaks that killed three people, sickened hundreds, and forced one of the biggest product recalls in U.S. history, documents and interviews show.
Overwhelmed by huge growth in the number of food processors and imports, however, the agency took only limited steps to address the problems and relied on producers to police themselves, according to agency documents.
Two new potentially interesting SSRN postings:
1. Kathryn Zeiler (Georgetown/NYU), Charlie Silver (Texas), Bernard Black (Texas), David Hyman (Illinois), and William Sage (Texas) have posted on SSRN "Physicians' Insurance Limits and Malpractice Payments: Evidence from Texas Closed Claims, 1990-2003" (forthcoming in the Journal of Legal Studies) The abstract:
Physicians' insuring practices influence their incentives to take care when treating patients, their risk of making out-of-pocket payments in malpractice cases, and the adequacy of compensation available to injured patients. Yet, these practices and their effects have rarely been studied. Using Texas Department of Insurance data on 9,525 paid malpractice claims against physicians that closed 1990-2003, we provide the first systematic evidence on levels of coverage purchased by physicians with paid liability claims and how those levels affect out-of-pocket payments and patient compensation. We find that these physicians carried much less insurance than is conventionally believed, that their real primary limits declined steadily over time, that policy limits often act as effective caps on recovery, and that personal contributions by physicians to close claims were rare. Our findings call into question a number of common assumptions about the relationship between physician insuring practices and the medical malpractice liability system.
2. John Rolph (USC Information & Operations Management Dept.), John Adams (RAND), and Kim McGuigan (Pfizer) have an SSRN posting of a piece that came out in the March Journal of Legal Studies, Identifying Malpractice-Prone Physicians. The abstract:
We analyze the claims database of a large malpractice insurer covering more than 8,000 physicians and 9,300 claims. Applying empirical Bayes methods in a regression setting, we construct a predictor of each physician's underlying propensity to incur malpractice claims. Our explanatory factors are physician demographics (age, sex, specialty, training) and physician practice pattern characteristics (practice setting, procedures performed, practice intensity, special risk factors, and characteristics of hospital(s) on staff of). We divide physicians into medical and surgical/ancillary specialty categories and fit separate models to each. In the surgical/ancillary specialty group, physician characteristics can effectively distinguish between more and less claims-prone physicians. Physician characteristics have somewhat less predictive power in the medical specialty group. As measured by predictive information, physician characteristics are superior to 10 years of claims history. Insofar as medical malpractice claims can be thought of as extreme indicators of poor-quality care, this finding suggests that easily gathered physician characteristics can be helpful in designing targeted quality of care improvement policies.
Saturday, April 21, 2007
I mentioned the speed with which a plaintiffs' attorney started advertising with Google AdSense seeking clients among the victims of the Virginia Tech shootings. The Google search I used no longer comes up with that ad, though the advertising website still has a page.
Friday, April 20, 2007
The National Review has an opinion piece evaluating Fred Thompson's potential presidential candidacy as it relates to modifications to the tort system.
(I'm hoping to return to my series of pieces about candidates' stated positions on the subject soon.)
Thursday, April 19, 2007
Jennifer Wriggins (Maine) points out an article potentially of interest to folks into comparative tort law -- Tort Reform A La Francaise: Jurisprudential and Policy Perspectives on Damages for Bodily Injury in France by David Corbe-Chalon and Martin Rogoff, in 13 Columbia Journal of European Law 231 (2007). It's not available for free online so far as I can tell.
My Nebraska Law Review piece is now out: The Overlapping Magisteria of Law and Science: When Litigation and Science Collide, 85 NEB. L. REV. 643 (2007). I don't have hard copies yet, but it's up at both Westlaw and Lexis; if you're interested in a reprint, send me an e-mail and I'll try to get one to you. The abstract (which does not appear in the journal):
The Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals transformed courts’ evaluation of expert testimony. Many courts, applying Daubert, focus extensively on whether the purported expert’s methodology has been published in a peer-reviewed journal.
This focus on peer review results in two unintended consequences that have triggered criticism: litigation-driven scholarship and litigants taking discovery into the peer review process. Critics contend that litigation-driven scholarship is irredeemably biased and that peer review discovery is too often an effort to intimidate scholars from speaking on subjects of public concern.
In this Article, I explore these phenomena and the criticisms of them, as well as the history of peer review itself. Contrary to the critics, I ultimately conclude that each, in fact, can strengthen both law and science through cross-fertilization, if appropriate checks are established. Such efforts will better reflect law and science’s overlapping magisteria (a term roughly meaning the disciplines’ area of authority). A better recognition and understanding of this overlap will create incentives to improve both law and science.
Wednesday, April 18, 2007
A new SSRN posting from Alexandra Klass (Minnesota) (forthcoming Minnesota Law Review) addresses valuing harm (i.e., the denominator in the 9:1 punitives: compensatory ratio) under State Farm and its progeny. The abstract:
In 2003, the Supreme Court created a presumption that only single-digit ratios of punitive damages to compensatory damages would satisfy substantive due process limits. The exception to this presumption is when the defendant's misconduct results in only a small amount of compensatory damages or when harm is difficult to value. This Article proposes that while lower courts have properly departed from single-digit ratios where the compensatory damage are small, they have had more difficulty doing so when harm is difficult to value. As a result, lower courts are mechanically applying a single-digit ratio in cases where the Court's current framework and the purposes of punitive damages justify departure from that ratio. This Article uses actions involving intentional torts on the one hand and private party actions involving environmental harm on the other to illustrate how lower courts have failed to fully implement the exception to single-digit ratios. This Article proposes that in conducting a due process analysis of punitive damages, courts should focus on the existence of uncompensated harm to either depart from single digit ratios or, in the alternative, calculate punitive damages based on the full amount of harm even if that exceeds the compensatory damage award. To avoid “windfalls” to plaintiffs in cases involving harm to public natural resources, state legislatures or state courts should utilize a “split-recovery” approach to direct a significant portion of punitive damages based on public harm to governmental or nonprofit coffers for environmental remediation. Such an approach is consistent with due process while still fulfilling the purposes of punitive damages.