March 22, 2008
What is Wrong with Tort Law? Discuss.
This morning, Walter Olson points his Overlawyered readers to a post and comments on Coyote Blog. The discussion was initiated because of comments by jurors in the Ritter med mal case that they were torn between sympathy for the family and their belief that the doctors were blameless. It's worth a look.
March 21, 2008
Peer Review & Discovery
I'm traveling (and writing this in a dark hotel room with the rest of my family asleep, so forgive incoherence), and so haven't been following it all carefully, but In The Pipeline notes, in connection with Pfizer's efforts to take discovery into the peer review process at the NEJM, some developments.
A fair amount of commentary has suggested that Pfizer is purely fishing and/or purely an attempt to scare reviewers off. Perhaps, but it's worth remembering (as I argue here (e-mail me for a final reprint)) that much of what happens in the peer review process can be quite relevant to litigation (tending to lead to admissible evidence) -- and peer reviewers, and journals, are just as much subject to discovery as, say, doctors' records.
This is all the more so if the methodology used in the article is at issue in the litigation, in which case the mere fact of peer review makes testimony based on that methodology more likely to be admitted under Daubert. All of the Daubert factors are fact issues; thus, discovery related to them is appropriate. (If the peer review is done poorly and the peer reviewers' notes indicate that, then that factor should get less weight, for instance.) After losing the first subpoena issued, Pfizer has narrowed its request in a way that suggests to me that they are in fact focused on Daubert issues, as they are just asking for peer reviewers' comments.
All that said, as again I argue, there are in some cases greater risks in connection with peer review discovery than garden-variety third party discovery, and I propose some protections. But I do not think it appropriate to treat the entire neighborhood of peer review as sacrosanct and immune from the same third-party discovery that the rest of us are subject to. The courts are looking at the requests and, probably appropriately, balancing the hassle compared to Pfizer's interests. Maybe these requests should be granted, maybe they shouldn't, but the outrage seems misplaced.
Washington AG Decries Costs of Tort Law
On Wednesday, the Attorney General of Washington, Rob McKenna(R), faulted tort law for siphoning away scarce government resources. He cited the lack of boundaries on claims and Washington's continued use of joint-and-several liability. He also compared Washington's annual tort payments with those of neighboring states (allegedly ten-times as much as Idaho and six-times as much as Oregon). McKenna did not advocate a return to sovereign immunity, but called for limits. He also said he would not propose tort reform again (he last did so in 2006) until it had a reasonable chance of passage. The Washington State Trial Lawyers disputed McKenna's characterization of Washington as overly-friendly to liability. The group noted that Washington is one of only two or three states that allows no wrongful death suit by anyone on behalf of a person who reaches the age of majority and has no children, thus allowing a complete avoidance of responsibility for the death. In addition, Washington is one of the few states that has no punitive damages. The full story is here.
Gibson on Doctrinal Feedback and the Standard of Care
James Gibson (Richmond, Visiting at Virginia) has posted on SSRN Doctrinal Feedback and (Un)Reasonable Care. In this piece, Gibson discusses the relationship between an abstract legal standard (e.g., reasonable care) and the "real world" to which the standard is applied (e.g., medical practice). Here's a taste from the abstract:
For example, suppose a physician provides more-than-reasonable care - extra tests, unneeded procedures, etc. - so as to steer clear of tort liability's considerable gray area. If other physicians follow suit, their precautions slowly but surely become the new legal norm, as the reasonable care standard dutifully absorbs the conduct of those it governs. Instead of discouraging wasteful practices, the law feeds them back into doctrine, making overcompliance into mere compliance and racheting up the standard of care. Overcautious physicians then have to do even more to steer clear of liability, and the cycle begins anew.
March 20, 2008
Torts at the Stadium
A 60-foot escalator allegedly malfunctioned at Giants Stadium in late December, immediately following the Giants-Patriots game. The Star-Ledger reports that eight people have filed notices to sue the New Jersey Sports and Exposition Authority. Several of the reported claims are serious. The potential overlap between products and premises liability can make these claims doctrinally interesting. Perhaps the potential defendant is taking a cue from the Sorry Works! theory reported by Sheila yesterday:
"While the investigation is ongoing it is inappropriate for us to comment, but the authority management empathizes with those guests of ours who were affected," said John Samerjan, a spokesman for the sports authority, which operates Giants Stadium.
Notice the distinction between an expression of sympathy and an acknowledgment of responsibility.
Tort Reform Dead Again in Hawaii
After passing the Health Committee, the Hawaiian tort reform bill moved to the House floor, where the House agreed by voice vote to send the bill back to committee. The Honolulu Advertiser has more. State KHNL reports that Rep. Josh Green (D-6th) plans to bring tort reform up again next session.
March 19, 2008
"Sorry Works!" - Apology to Prevent Med Mal Claims
I just read "Sorry Works!" by Doug Wojcieszak, James W. Saxton, and Maggie M. Finkelstein. I found the book's premise to be very interesting. The book argues that medical malpratice suits could be avoided through "disclosure and apology" programs. Sorry Works! posits that "anger - not greed - is what drives most customers to file medical malpractice lawsuits." Accordingly, the authors recommend that health care providers develop a disclosure and apology program.
Notably, the authors distinguish between saying "I'm sorry" - which is an "expression of sympathy" and an "apology", which is "an acceptance of responsibility or admission of fault." The authors provide concrete examples of this difference. "I'm sorry", for example, could include "I'm sorry about this complication..." or "I'm sorry for your loss." Apology, on the other hand, includes an admission of fault: "I'm sorry that I misread your x-ray." The book recommends that medical providers always offer an "I'm sorry" as a means of showing empathy, diffusing anger, and preventing misunderstanding. Apologies, on the other hand, should only be offered after investigation has indicated that a true medical error occurred. Very interesting concepts.
Katrina Victims Sue FEMA
Hurricane Katrina victims have added the Federal Emergency Management Agency to their suit against the manufacturers of trailers provided to the victims for emergency housing following the hurricane. The suit alleges that the trailers contained hazardous fumes that caused the nearly 100 plaintiffs to become ill. As the Houston Chronicle (via AP) reports,
Many trailer occupants have blamed their illnesses on formaldehyde, a common preservative found in building materials. Formaldehyde can cause respiratory problems and has been classified as a carcinogen by the International Agency for Research on Cancer.
The plaintiffs accuse trailer makers of using shoddy materials and construction methods in a rush to fill FEMA's unprecedented demand for emergency housing after Katrina laid waste to tens of Gulf Coast homes in August 2005.
Recent government tests on hundreds of FEMA trailers and mobile homes in Louisiana and Mississippi found formaldehyde levels that were, on average, about five times higher than what people are exposed to in most modern homes.
Plaintiffs seek certification as a class action.
March 17, 2008
The Pet Food Recalls - One Year Later
Kim Campbell Thornton has an interesting article at MSNBC reviewing the state of the law one-year after the biggest pet food recall in U.S. history:
While pet food safety legislation has been passed and an industry commission has made recommendations to improve the safety and quality standards for pet food, some critics say the efforts, even when they are fully implemented, may not amount to much more than the fox guarding the hen house.
Update: Tort Reform Alive Again in Hawaii
We've been following the on-again, off-again tort reform efforts in Hawaii for the past month or so. As Chris recently mentioned, the original bill died in the judiciary committee at the end of February.
At the same time, a resolution was offered in the House asking the Legislative Service Bureau "to study the effects of medical tort reform on access to health care and to submit a report of its findings to the Legislature no later than twenty days prior to the convening of the Regular Session of 2009."
Green on Corporate Punishment
In light of the recent Crimtorts Symposium at Widener, I find this piece by Christopher Green (Mississippi) quite interesting: The Food-Chain Issue for Corporate Punishment: What Criminal Law and Punitive Damages Can Learn from Each Other. Here's the abstract:
The admiralty case now at the Supreme Court, Exxon v. Baker, presents the Supreme Court with the food-chain question for corporate punishment: how high in the corporate hierarchy must misbehavior go before the corporation itself may be punished? Every American jurisdiction allows corporations to be punished with criminal liability and with some form of punitive damages. In both criminal law and the law of punitive damages, there is persistent division about the food-chain question. However, the fields develop with virtually no contact from one to the other, and the rules states adopt in each field have no correlation with the rules they adopt in the other. I survey approaches in criminal law and punitive damages, arguing that states have good reason to adopt the same rule in both fields, and point to several particular ways in which the development of the law in one field can profit from the insights of the other.
(Via Solum/Legal Theory Blog)
March 16, 2008
Med Mal: Torts v. Contracts
Jennifer Arlen (NYU) has posted to SSRN a new paper, "Contracting over Malpractice Liability," discussing the recent trend towards advocating for a contractual resolution of medical malpractice rather than a tort one. The abstract:
Proponents of contractual liability assert that contracting is superior to malpractice because patients will select the rules that maximize their welfare so long as contracting is voluntary and the parties correctly estimate the costs and benefits of imposing liability. This article analyzes the claim that patients have optimal incentives to contract into liability when they are informed about the consequences of liability. It shows that contractual liability is inefficient, even when patients are informed, because contracting itself is not an optimal mechanism for imposing liability because patients derive less benefit from imposing liability by contract than they could obtain from liability imposed by the state by fiat. Specifically, this article examines the two plausibly-efficient forms of contractual liability: individual negotiable contractual liability and MCO contractual liability. It shows that neither provides patients with sufficient benefits to induce optimal contracting over liability.
Patients engaged in individual negotiated contracting with medical providers at the point of service do not have optimal incentives either to adopt malpractice liability reforms or contract around reforms adopted by the state because malpractice liability is designed to confer collective, multi-period, benefits on patients - in the form of investments in safety that benefit many patients collectively both now and in the future. Patients do not derive the full benefit of the collective, multi-period investments produced by malpractice liability when required to impose it through individual contracts. Accordingly, even when contracting is informed and voluntary, patients can be harmed by the introduction of contractual liability because it provides incentives for them to reject liability even when they would be better off were liability imposed by the state. By contrast, collective non-negotiable contracting between patients and Managed Care Organizations) does not face as serious a collective goods problem. But this form of contracting is inefficient because it is distorted by adverse selection. MCOs will charge patients more for liability than is optimal because patients' demand for liability provides a signal of their expected demand for expensive medical services since liability confers the greatest expected benefits on patients likely to need hospital care. Accordingly, contractual liability will not induce even informed patients to impose liability whenever they would be better off were it imposed. Thus, we cannot be confident that states could better serve patients by allowing contracting over liability than they could by adopting effective reforms to malpractice liability and leaving it within the control of the tort system.