Saturday, December 29, 2007
An interesting abstract regarding externalities and payment for medical errors was recently posted on SSRN by Michelle M. Mello, David M. Studdert, Eric J. Thomas, Catherine Yoon, and Troyen A. Brennan. The article is entitled "Who Pays for Medical Errors? An Analysis of Adverse Event Costs, the Medical Liability System, and Incentives for Patient Safety Improvement."
Here is the abstract:
Patient safety advocates argue that the high costs of adverse events create economic incentives for hospitals to invest in safety improvements. However, this may not be the case if hospitals externalize the bulk of these costs. Analyzing data on 465 hospital adverse events derived from medical record reviews, we investigated the amounts that hospitals and other payers incurred in medical-injury-related expenses. On average, the sampled hospitals generated injury-related costs of $2,013, and negligent-injury-related costs of $1,246, per discharge. However, hospitals bore only 22% of these costs. Legal reforms or market interventions may be required to address this externalization of injury costs.
The entire article is available in the Journal of Empirical Legal Studies, Vol. 4, No. 4, pp. 835-860, 2007.
Friday, December 28, 2007
The Oregon Supreme Court ruled today that its tort claims act's elimination of a cause of action against public employees, coupled with a cap on damages payable by the state amounting to a tiny fraction of plaintiff's economic losses, is unconstitutional. Like many states and the federal government, Oregon replaced complete sovereign immunity with a tort claims act. Oregon's version made the state itself the exclusive defendant for claims involving public employees. Furthermore, plaintiffs are severely limited in their ability to recover from the state.
In Oregon those limits are:
"(a) $50,000 to any claimant for any number of claims for damage to or destruction of property, including consequential damages, arising out of a single accident or occurrence.
"(b) $100,000 to any claimant as general and special damages for all other claims arising out of a single accident or occurrence unless those damages exceed $100,000, in which case the claimant may recover additional special damages, but in no event shall the total award of special damages exceed $100,000.
"(c) $500,000 for any number of claims arising out of a single accident or occurrence."
In other words, if employees of a public hospital commit malpractice on a plaintiff, only the state may be sued. The individual physicians, nurses, etc. may not. Additionally, the state has to pay only a relatively small amount to a successful plaintiff.
In a case involving medical malpractice in which the plaintiff's economic damages exceeded $12 million, the court declared the limits in violation of the Oregon Constitution. Under the tort claims act, the plaintiff was entitled to no more than $200,000. The court held the tort claim limits left the plaintiff with no adequate remedy at law, contrary to Article I, section 10 of the Oregon Constitution. The opinion is here.
As you have probably heard, a tiger named Tatiana escaped from the San Francisco Zoo on Christmas day, killing a teenager and wounding two other people. I haven't done the research into California law or even plotted out my own analysis, but the issues involved seem truly interesting (maybe even exam-worthy).
First, you have the escape of a wild animal, one of the few areas of law clearly governed by strict liability. However, to complicate matters, some courts have been unwilling to use strict liability against a public zoo. Because it is a public entity, there are also potential issues of sovereign immunity.
Assuming you get by strict liability and sovereign immunity, a negligence analysis promises to be rich. First, there is the issue of the height of the wall enclosing Tatiana. It appears the wall is four feet below industry standards. However, the zoo is accredited by the Association of Zoos and Aquariums, and the accreditation inspectors visiting three years ago did not note the wall as a deficiency.
Then there is the fact that Tatiana attacked a zoo keeper and chewed flesh off of his arm during a public feeding last year. Is this notice that Tatiana was dangerous?
Finally, the investigation is looking into the possibility that Tatiana escaped by climbing up a leg or other body part to get over the wall. There are unconfirmed rumors that the victim may have been dangling his legs over the wall and taunting Tatiana. Whether that is true or not, it would make for an interesting comparative negligence discussion.
Thursday, December 27, 2007
The decision came from a birth control patch blood clot suit against Johnson & Johnson that had been consolidated in a federal MDL; the judge overseeing that MDL certified four questions regarding the measures in question. The measures capped non-economic harm at $250,000 or three times economic harm, whichever is larger, but not to exceed $350,000 (with a cap buster provision for major or permanent injuries); additionally, they capped punitives at two times compensatory damages. The legislation also made collateral source payments admissible, but the court found that the plaintiffs lacked standing to challenge that provision and thus punted.
The majority starts with the notion that it is tough to prove a statute unconstitutional on its face and, unsurprisingly given that starting tone, approves the statute. The majority does at least hint that an as-applied challenge might be more successful when it concludes:
We appreciate the policy concerns Arbino and her amici have raised. However, the General Assembly is responsible for weighing those concerns and making policy decisions; we are charged with evaluating the constitutionality of their choices. Issues such as the wisdom of damage limitations and whether the specific dollar amounts available under them best serve the public interest are not for us to decide. Faced with a highly deferential facial challenge to these statutes, our review causes us to conclude that the General Assembly has responded to our previous decisions and has created constitutionally permissible limitations.
(Emphasis in original.)
Meet Laurence Dry, M.D., J.D., a med-mal lawyer in Kentucky, and proud owner of two judgments against him -- one for losing a purportedly sure-winner case, and one for bringing that same case, this time purportedly frivolous.
On the one hand: His (legal) malpractice insurer recently paid $750,000 to a former client, John Conley, for losing a can't-miss lawsuit against one Dr. John Johnson. Conley lost much of his vision and alleges that it was the result of (medical) malpractice by Johnson in performing back surgery.
Dry initially reviewed the case and found it not worth bringing, but then, later, without realizing he'd previously reviewed it, he changed his mind and brought it...but he was coming up against the statute of limitations and brought it without experts. Once he did get experts, there were further problems:
[O]ne of the expert witnesses he claimed he found later to support his theory insisted in a deposition for Johnson's case that he had said no such thing. The other expert witness had Alzheimer's disease and couldn't be interviewed, Sitlinger said.
So he dropped the suit, and was sued by both Conley for losing the case (by ignoring what he identified as a better factual theory targeting the anesthesiologist) and Dry for bringing it at all. A jury awarded Johnson $80,000, and Dry paid that judgment earlier this year, calling it a "love tap."
'Tis the season for skiing cases. A week before Christmas, the Utah Supreme Court, by a 3-2 vote, held that waivers of the right to recover for the negligence of ski resorts are void as against state public policy. Utah follows the familiar two-step inquiry in analyzing waivers (express assumption of risk). First, is the language of the waiver clear? Second, even if the language is clear, does the waiver violate public policy?
The court acknowledged that public policy can be difficult to discern:
[P]ublic policy is a protean substance that is too often easily shaped to satisfy the preferences of a judge rather than the will of the people or the intentions of the Legislature.
However, the court stated it had found clear public policy in a statute that provided ski resorts are not liable for the inherent risks of skiing, so that the resorts would be able to acquire insurance at reasonable rates:
The bargain struck by the Act is both simple and obvious from its public policy provision: ski area operators would be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance. By extracting a preinjury release from [plaintiff] for liability due to their negligent acts, [defendant] breached this public policy bargain.
The dissent stated that the majority had read into the statute more than was there:
Nowhere does the text suggest that ski area operators may not contractually further limit their liability for risks that are not inherent to skiing.
The full opinion [pdf] is available here. Thanks, again, to Alberto Bernabe for the tip.
The House a week ago or so passed legislation to allow only trace amounts of lead in toys, increase inspections, and increase CPSC funding (this is the bill as to which the amusement ride amendment was rejected). CPSC chair Nancy Nord, who had been a little ambivalent in the past, praised the legislation.
Wednesday, December 26, 2007
In his latest Findlaw column, Tony Sebok analyzes the tort suit implications of the Megan Meier case, the thirteen year old girl who committed suicide after being taunted on-line by what turned out to be a "fake" friend - a profile created by the mother of a girl Megan knew. In a thorough analysis, Sebok concludes that a negligence claim against the fake friend/mother is "not promising," but an IIED claim might succeed.
Tuesday, December 25, 2007
The Globe has the details. Powers Fasteners (which supplied epoxy) is paying $6 million to the family of the woman who died when the ceiling collapsed. The plaintiffs alleged that Powers failed to properly warn regarding the use of a certain type of epoxy.
Fourteen other defendants remain in the suit.
Monday, December 24, 2007
Okay, I can't make this quite be a torts suit, since it seems solidly in the IP camp, but I can't resist it anyway. Chuck Norris is suing Penguin Books and the TruthAboutChuck.com website for the satirical "facts" about him, such as the unicycle-wheelie one above and the like ("Chuck Norris counted to infinity. Twice.").
"Some of the 'facts' in the book are racist, lewd or portray Mr. Norris as engaged in illegal activities," the lawsuit alleges.
Norris, who rose to fame in the 1970s and 1980s as the star of such films as "The Delta Force" and "Missing in Action," says the book's title would mislead readers into thinking the facts were true.
"Defendants have misappropriated and exploited Mr. Norris's name and likeness without authorization for their own commercial profit," said the lawsuit.
The suit, filed in Manhattan federal court, seeks unspecified monetary damages for trademark infringement, unjust enrichment and privacy rights.
There. That's my Christmas gift to you.
Adam Liptak in the NYT has a column today discussing ATRA's Judicial Hellholes report. He points out that it's based largely on anecdotal evidence, and that, not shockingly, not everyone would agree that ATRA's goals are good ones. ATRA responds to the first point:
“We have never claimed to be an empirical study,” said Darren McKinney, a spokesman for the association. “It’s not a batting average or a slugging percentage. It’s no more or less subjective than what appears in The New York Times.”
It's worth a read.