March 29, 2008
King on the Common Knowledge Exception
Joseph King (Tennessee) has published an interesting article: The Common Knowledge Exception to the Expert Testimony Requirement for Establishing the Standard of Care in Medical Malpractice, 59 Ala. L. Rev. 51 (2008). In the piece, King wrestles with one of tort law's great shortcomings, uncertainty, in the context of the common knowledge exception.
Pursuant to the exception, a plaintiff does not need to use an expert to establish the standard of care in a med mal case if the subject matter of the allegedly unreasonable conduct is within the common knowledge of people without medical training. Although King supports the doctrine in theory, he argues that its application has been so unpredictable as to arouse rule-of-law concerns. The challenge is to provide sufficient guidance to judges, lawyers, and litigants while retaining enough flexibility to cover an array of factual scenarios.
King's solution is to construct two alternative preconditions, the presence of one or the other being necessary, but not sufficient, for a court to invoke the common knowledge exception:
Either the specific conduct that allegedly constituted negligence was of such a nature that not only could an unlicensed layperson legally perform it without violating or offending applicable medical or health care licensure statutes or duly authorized regulations governing the practice of the health care professions, but also that such an unlicensed layperson would ordinarily be deemed competent and foreseeably expected to routinely perform such conduct; or, the specific decision making by the health care provider that allegedly constituted negligent conduct that caused the injury did not involve the exercise of uniquely professional medical skills, a deliberate balancing of medical risks and benefits, or the exercise of therapeutic judgment.
March 28, 2008
Are Insurers Responsible for High Malpractice Premiums? Updated
That's the view in this op/ed piece in today's Concord Monitor. On the one hand, the author, Christopher J. Seufert, is a trial lawyer. He has a financial stake in the argument, and one should take the opinion with a grain of salt. On the other hand, he does support his argument with some empirical data. Does he prove his point?
Hylton on Nuisance and Environmental Regulation
Keith Hylton has posted on SSRN The Economic Theory of Nuisance Law and Implications for Environmental Regulation. Here's the abstract:
I explore the economic structure of nuisance law as a mechanism for regulating environmental interferences and propose a modernized enforcement regime. The modern regime would retain public enforcement primarily in identifying environmental harms and as a backstop for private enforcement.
March 27, 2008
Baker at WNEC on "The Medical Malpractice Myth"
My colleague Barbara Noah has helped put together this event:
On April 1st, 2008, Professor Tom Baker, Connecticut Mutual Professor of Law and Director of the Insurance Law Center at the University of Connecticut, will present "Confronting the Medical Malpractice Myth", an overview of his well-received book on the same subject. (See Tom Baker, The Medical Malpractice Myth, University of Chicago Press, 2005 (ISBN: 0-226-03648-0]). The event will be hosted by the student Health Law Association at Western New England College School of Law.
Torts Prof Rawks
Andrew McClurg (Memphis) is an accomplished torts scholar and teacher, and now we know he can also rawk:
That's him singing.
How Much Does One Big Accident Cost?
Quite a number of people were injured on the Son of Beast roller coaster at Paramount's Kings Island in Ohio in 2006 when a timber in the support structure broke. The ride went through extensive reworkings, including the complete removal of the loop (it had previously been the only extant wooden roller coaster in the world with a loop) and major structural changes. In addition, many, if not all, of the riders filed suit for their injuries. Now we know how much, in rough terms, all of that cost.
At least that's how much the park had been awarded in a lower court ruling in its suit against the ride designer's insurer. But the intermediate appellate court reversed, ruling that the kind of damages at issue were not covered.
That's probably about how much the park spent on the coaster when it was initially built.
March 26, 2008
Sebok on "New Duty" for New Jersey Restaurants to Protect Bar Patrons
In this week's Writ Column on FindLaw, Tony Sebok analyzes an interesting dram shop case in New Jersey: Bauer v. Nesbitt. As Sebok explains, Bauer involved several young men who were drinking at the C View Inn in Cape May, NJ. One young man, James Hamby, was visibly intoxicated. He left with his friend Frederick Nesbitt, who was not visibly intoxicated and - to the restaurant's knowledge - had been drinking soda all evening. Nesbitt crashed his car, killing Hamby. Hamby's estate sued Nesbitt and the C View Inn under New Jersey's Dram Shop Law. The trial court dismissed the suit against the C View Inn, but in a recent opinion, the appellate court reversed.
As Sebok notes, the appellate court "held that the risks that the Dram Shop Act was intended to prevent were not just accidents resulting from drunk-driving, but also any accidents that could foreseeably result from intoxication." Sebok argues that the appellate court "created a new duty in Bauer. It essentially held that since Hamby, the passenger, was visibly drunk, the bar had a duty to protect him against his own bad judgment which led him to accept a ride from Nesbitt, the driver. The problem with this logic, however, is that while Nesbitt was too drunk to drive, and Hamby knew it, the staff at the bar did not."
The full column analyzes the underlying rationales of the decision, the precedents cited by the court, and the potential policy implications. Give the column a read!
Is the FDA Tougher Than Its European Counterpart?
Today's Wall Street Journal includes an interesting article by Jeanne Whalen comparing the FDA's approval process for new drug applications with the European process:
It is unclear whether getting FDA approval has become tougher than getting approval from its European Union counterpart in London, the European Medicines Agency, known as the EMEA. Current data on the speed of approvals in the regions aren't available. In a study comparing the FDA and EMEA from 2000 to 2005, Tufts University researchers found that mean approval times were similar at the agencies -- about 15.7 months -- but that there was "considerably more variability" in FDA approval times.
Some industry executives theorize that the FDA faces more public and political pressure when considering approvals.
March 25, 2008
Neurontin Class Action Against Pfizer Includes Generic Purchasers
As the Philadelphia Legal Intelligencer (via law.com) reports, Philadelphia Common Pleas Judge Mark I. Bernstein has held that Pfizer can be held liable for off-label marketing of the generic version of its epilepsy drug, Neurontin:
The plaintiffs in the class action allege that the drug company defendants conducted a campaign to promote the prescription of its Neurontin drug and its generic equivalent, gabapentin, for a number of medical uses not approved by the FDA, according to court papers.
Philadelphia Common Pleas Judge Mark I. Bernstein let stand the claims of negligent misrepresentation, negligence and intentional misrepresentation in Clark v. Pfizer Inc. regarding the generic gabapentin made by third-party drug manufacturers.
Bernstein said that the legal question presented in Pfizer's and Warner-Lambert's motion for partial summary judgment was whether a drug company, which "negligently or intentionally perpetrates a fraud upon the medical community" by the off-label marketing of its name-brand drug, can be held responsible for money paid to other drug companies that make the generic equivalent of the name-brand drug. Assuming that the plaintiffs can prove their allegations at trial, "under Pennsylvania law, a defendant may be liable for misrepresentation to foreseeable plaintiffs even without any direct relations between the parties," Bernstein said in his March 14 opinion. It was foreseeable that the marketing of Neurontin for off-label use would increase the demand for the generic version of the drug, Bernstein said.
Under the judge's order, the class action against Pfizer will proceed with purchasers of both the brand-name Neurontin as well as purchasers of the generic gabapentin.
Hillary on Tort Reform
MedPage Today reports on a conversation with Neera Tanden, the chief policy director for Senator Hillary Clinton's presidential campaign. The interview included Senator Clinton's position on tort reform:
On tort reform, Clinton and Obama see practically eye to eye. Before they became presidential candidates, the two senators co-authored an article in the New England Journal of Medicine and co-sponsored legislation to fund programs for the disclosure of medical errors and compensation to patients. The bill would have created an office of public safety. Physicians would be given some protection from liability under a system that encourages greater disclosure.
Like Obama, Clinton strongly opposes caps on awards for pain and suffering. "There are instances where injured patients would be disadvantaged by a cap," said Tanden. "Malpractice premiums have gotten out of control and Hillary is focusing on reforming the insurance system so that physicians won't have to pay as much."
McCain, who has voted in favor of caps, says tort reform is a top priority. He favors eliminating liability for physicians who follow clinical guidelines and adhere to patient safety protocols.
March 24, 2008
Bullying and Litigation
The NYT today has a story about a now-fifteen-year-old boy in Fayetteville, Arkansas, who has been subjected to endless and merciless bullying over the years. As the story notes, it's not at all clear why he's been targeted the way he has been; at least one school official seems to think he is inviting it in some way. After several years and what seem to be reasonable efforts to work with the school system, the family has turned to litigation:
The Wolfes are not satisfied. This month they sued one of the bullies “and other John Does,” and are considering another lawsuit against the Fayetteville School District. Their lawyer, D. Westbrook Doss Jr., said there was neither glee nor much monetary reward in suing teenagers, but a point had to be made: schoolchildren deserve to feel safe.
2003 Photos Show Bends in Minnesota Bridge Gusset Plates
In news that is certain to be central to litigation over the Minnesota bridge collapse, the AP (via the Washington Post) reports that 2003 photos showed bends in gusset plates that are now believed to be among the key failure points in the collapse.
The two photos are believed to have been taken by URS Inc., a San Francisco consulting firm the state hired to examine the bridge from 2003 to 2007.
"URS and the state have both got a lot of explaining to do as far as why (the bending) was not observed, and if it was observed, why that was not immediately investigated," James Schwebel, an attorney representing a group of victims, told the AP on Sunday. "How could it possibly have been missed?"
No lawsuit has been filed, but Schwebel said his engineering experts are studying the information.
Attorney Phil Sieff, who represents another group of plaintiffs, said the deformation could have affected how much weight the gusset plate could hold.