February 9, 2007
Utah Considering ER Liability Changes
Utah is considering upping the standard of proof for plaintiffs in malpractice claims against emergency medical providers to clear and convincing evidence. A perspective from a plaintiffs' lawyer:
Under HB 338, the standard would be changed to a "clear and convincing standard" which, according to Charles Thronson, senior partner and medical malpractice litigator at Parsons Behle and Latimer, is a quasi criminal standard. He said this standard is just below the "reasonable doubt" standard, and it would make it virtually impossible for the victims of malpractice to win a lawsuit.
"This bill is a de facto grant of immunity to everyone who works in an emergency department in every emergency department in the state ... for whatever mistakes or misconduct that may occur," Thronson said.
I don't know the impact of increasing the burden of proof in similar circumstances, but it's not remotely accurate to say that it makes it "virtually impossible" to win a lawsuit. A remarkable percentage of patent invalidity claims (also using clear and convincing evidence) are successful, and plaintiffs frequently satisfy the burden for punitive damage claims in states that require that standard. Certainly it is a higher standard, and one can easily identify reasons to oppose it, but to suggest that it's blanket immunity is silly.
This, on the other hand, is an interesting argument:
lark Newhall, a board certified ER physician and a lawyer practicing in the area of medical malpractice, said this bill will vastly increase the costs of medical care because patients will be sent to more costly ERs for what would normally be done in a doctor's office.
"Which doctor is going to be foolish enough to see a patient in their office, particularly a new patient, when they can send that patient to the emergency department and see that patient in the emergency department and be immunized from malpractice," Newhall said.
Anyone know of any data on it?
February 8, 2007
Strengthening the FDA
An E-Mail Note
Earlier this week, and possibly continuing now in part, all e-mail to law.wnec.edu addresses was getting bounced. So if you sent me an e-mail and I didn't respond, you might try again. You can also always use childs AT masstort DOT org, which comes to the same machine and is on a server I control.
Consumers Union, Mental Health Groups Seek to De-Designate Zyprexa Documents
The Bazelon Center for Mental Health Law has gotten in on the Zyprexa documents party, filing a motion (press release) on behalf of Consumers Union and several mental health organizations seeking the de-designation of the documents at the center of the document leak dispute.
Of note, none of the groups making the request have had any involvement in any of the dispute to date, and there's been no allegation that they're involved in distributing the documents. They explicitly state that they have not actually seen the documents and are basing their motion on the NYT coverage. Indeed, judging from their affiliations (psychiatric groups, heads of state mental health agencies, etc.), I think it's safe to say that they're generally on the other side on many issues from folks like James Gottstein, MindFreedom, and the like.
The argument centers on what you'd expect it to - the lack of trade secrets in the documents as described in the Times, the lack of countervailing interest in keeping the documents secret, and the public interest. It does not make the bell-has-run-already argument.
It's a well-done brief and worth a read: Download ZYPREXAMOTION.pdf
February 7, 2007
Who Is David Egilman?
That's the question posed by the ever-more-interesting Pharmalot blog (even if they do call this blog the "Mass Torts Litigation Blog" - hey, I do mini torts too!). Egilman is, of course, a central figure in the Zyprexa documents story (do a Technorati search over there on the right for "Zyprexa" for much more) and involved in many mass torts.
(...including some in which I have been defense counsel.)
An Observation on Philip K. Howard's Sun Op-Ed
Phiip K. Howard of Covington & Burling and Common Good wrote an interesting op-ed for the New York Sun discussing the importance of, well, something.
Most of the piece is reasonably well-represented by this:
The U.S. securities markets are on the way to losing their pre-eminence. That's the conclusion reached by two recent reports, one indirectly sponsored by Treasury Secretary Paulson and the other by Mayor Bloomberg and Senator Chuck Schumer. The facts are indeed alarming — the American share of global initial public offerings declined to 5% from 50% in the last five years.
Foreign companies are being scared away in part, both reports conclude, by soaring costs of American law. The highwater mark for securities lawsuits was reached in 2005, with over $9 billion in class action settlements. The zeal of American prosecutors in corporate scandals is also of a different order of magnitude. In 2004, government fines in America totalled $4.74 billion, over 100 times more than in Britain, which had a total of $40.48 million. Sarbanes-Oxley, the federal law that imposes higher accountability standards on corporate boards, has almost tripled auditing costs for small public companies.
The piece then argues that the biggest problem with securities law (in particular Sarbanes-Oxley) is that foreign investors and businesspeople don't trust the U.S. legal system to treat like cases alike -- that securities laws no longer ensure transparency and fairness, but instead a CYA attitude and obstruction.
Okay, so it's a securities law piece, urging the modification of Sarbanes-Oxley. Fair enough. I don't do securities stuff and if there is a just God, I never will, so I don't have much of a basis to criticize or to agree.
But then there's the title: "Beyond Tort Reform." And this conclusion:
Trust, once lost, is hard to regain. Tort reforms limiting damages don't get close to the heart of the problem. American justice has a deeper flaw — it no longer reliably distinguishes right from wrong. Instead, decisions are made on an ad hoc basis, jury by jury, without predictable boundaries.
What's needed is not merely more tort reform, but also a fundamental shift in goals, toward balance and predictability. Only then can we rebuild the trust in law that used to be one of America's greatest competitive assets.
Whoa. Huh? None of the rest of the piece comes close to establishing, or even really suggesting, that the lack of predictability and transparency is in the tort system. It's all about commercial and contract law.
The studies he's addressing do a little more on the tort system, but they seem to me to be primarily focused on the securities system as well. And I don't think they establish anything like a conclusion that the tort system has no "predictable boundaries." (I have only read the coverage of the studies, not the studies themselves, so perhaps they do a better job than I think. Howard's piece, though, doesn't suggest that.)
Certainly there are problems with predictability in the tort system, and I tend to agree that in certain areas of tort law, there is less predictability than there once was. And other items on the Common Good website (a group that Howard leads) address those issues.
But this piece by itself seems a bit to me like a parent telling their child that because candy is unhealthy, the child will no longer get to watch as much TV. Maybe the latter idea is a good one, but it's not supported by the first part.
February 6, 2007
More Preemption Junction
I posted last March about the ongoing litigation relating to a train derailment in Minot, North Dakota. The federal judge overseeing the suits has ruled (Download Lundeen.pdf) that the all of the claims in the state tort cases are preempted by the Federal Railroad Safety Act.
There's nothing earth-shattering but it's an interesting read.
(As I noted last March, I clerked for Judge Rosenbaum.)
Berenson is Certain that Testifying Would be an Unsullied Delight, But Must Decline
Through the NYT's counsel, Alex Berenson has declined the invitation from Judge Weinstein to testify about how Berenson obtained the Zyprexa documents, and in particular his apparent involvement in coordinating their production.
The letter is here: Download NYTLetter.pdf
February 5, 2007
(b)(1)(A) Classes Unnecessary?
So say the folks at the Drug & Device Law blog. It's a bold assertion, to be sure.