Saturday, May 17, 2008
Professor Michael Rustad (Suffolk) passes on a study entitled Malpractice Premiums in Massachusetts, A High-Risk State: 1975 to 2005, performed by his colleague Professor Marc Rodwin and several co-authors. Here is the abstract:
Massachusetts has the fourth-highest median malpractice settlement payments for all states. The American Medical Association (AMA) declares it a crisis state. As a test case, we analyzed its premiums from 1975 to 2005. In 2005 mean premiums were $17,810 for the coverage level and policy type most frequently purchased. Most physicians paid lower inflation-adjusted premiums in 2005 than in 1990. Mean premiums increased in only three specialties comprising 4 percent of physicians: obstetrics, neurology, and orthopedists--spinal surgery. However, because of discounts and surcharges, in 2005 premiums within the three highest-risk specialties varied nearly threefold, and nearly one-third paid less than in 1990.
The full article, which is sure to be hotly discussed, is available (in pdf) here:
Friday, May 16, 2008
Alaska lawyer Jim Gottstein, who essentially served as a conduit between plaintiffs' expert David Egilman and the world (in particular the NYT's Alex Berenson) for documents designated as confidential in the Zyprexa litigation, has renewed his appeal of Judge Weinstein's injunction, Pharmalot reports. He still sounds optimistic that he will settle (as did Egilman, who admitted to violation of Judge Weinstein's order, notwithstanding any claim that he did nothing illegal), but is apparently trying to push a little harder to get the settlement done.
In related news, I just sent back the final edit of my forthcoming article for The Review of Litigation on protective order violations in the context of new technologies, so that will hopefully be out soon.
This is the fifth in a series of posts on medical malpractice litigation. Several previous posts focused on the flaws of uncertainty, delay, and high transaction costs. Next week, I will end the series with a post in which I attempt to respond to several possible objections.
What can be done about these flaws? In my opinion, Professor Jeffrey O’Connell’s early offers proposal is the best response. The mechanics of the proposal are simple: A defendant may at its option offer an injured claimant within a defined statutory period (e.g., within 180 days of a claim) a settlement of periodic payments sufficient to cover the claimant’s net wage loss and medical expenses, including rehabilitation, plus a claimant’s reasonable attorney’s fee (10% of the recovery, which reflects the reduced amount of work necessary in the shortened process). Pain and suffering is not included. No defendant is forced to make an early offer, and, if no offer is made, normal common-law principles apply as to both liability and damages. In making an early offer, however, the defendant triggers strong incentives for claimants: If the claimant accepts, that of course ends the matter. But a claimant who elects not to accept will face a higher burden of proof at trial (either “clear and convincing” or even “beyond a reasonable doubt”) and the defendant is held to a lower standard of care (“gross negligence”).
It is vital to note that the early offer must in effect provide the claimant the equivalent of a major medical/disability policy covering the claimant’s net economic losses as long as they are reasonably accrued. In other words, a defendant cannot make a lesser offer and gain the advantages of the early offer law. In this connection, once an early offer is tendered, that can be seen as imposing discipline on offerors by the transformation of the claim into a first-party one, thus subjecting the offeror to both more regulatory supervision by state insurance departments as well as claims based on bad faith for refusal to pay benefits, unlike the situation prevailing in adversarial third-party claims.
Although injury victims tendered early offers would lose their recourse to full-scale tort litigation, they would correspondingly be paid without the uncertainty, delay, and transaction costs they now face. Moreover, they would lose their recourse to full-scale tort litigation only when they are guaranteed prompt payment of their economic losses plus attorney’s fees. Thus, in return for promptly offering to pay claimant’s net economic damages, a defendant protects itself from the vicissitudes of non-economic damages. But the message to claimants is clear: “If you want more than what insurance normally pays, namely your economic damages, you had better be sure the defendant is not just arguably, but clearly very much, at fault.”
And yet that does not mean that the early offers approach is overly favorable to health care providers. First, only defendants willing to forgo obstructive defenses will be advantaged by the proposal. Second, defendants making early offers must still pay victims’ net economic losses—which will often be substantial—thereby internalizing the cost of such accidents. The proposal could also include a minimum offer of, say, $250,000 for serious injuries (carefully defined by statute) when actual net economic losses suffered, for example, by some children, homemakers, or retirees, are relatively small. Third, if no offer is made, or if the claimant, despite an offer, goes to trial and prevails, the claimant can recover pain and suffering or even punitive damages. This would mean reserving awards of such non-economic damages to cases where liability for wrongful conduct is quite clear or where a recalcitrant defendant unwisely declines to make an early offer.
O’Connell, along with Professors Kip Viscusi and Joni Hersch, performed a study of medical malpractice cases from Texas and Florida. The authors conducted an analysis of how the system would have performed if an early offers law had been in effect. Joni Hersch, Jeffrey O’Connell & Kip Viscusi, An Empirical Assessment of Early Offers Reform for Medical Malpractice 36 J. Legal Stud. 231 (2007). The savings, in both time and money, would be dramatic. Although there are a lot of variables considered, the average savings in time would be approximately two years, and litigation costs alone would be reduced, on average, between $100,000 and $200,000 per claim.
Thursday, May 15, 2008
The UCLA Law Review has two torts-related articles that may be of interest to our readers. First, Professor Noah Sachs (Richmond) has published Beyond the Liability Wall: Strengthening Tort Remedies in International Environmental Law, 55 UCLA L. Rev. 837 (2008). Second, Professor Joanna M. Shepherd (Emory) has published Tort Reforms' Winners and Losers: The Competing Effects of Care and Activity Levels, 55 UCLA L. Rev. 905 (2008).
(Via Concurring Opinions)
The girl whose feet were severed on a ride at Six Flags Kentucky Kingdom traveled to Washington yesterday to advocate, with her parents, for Rep. Markey's bill adding fixed site amusement parks to the CPSC's jurisdiction.
The longer the family's litigation against Six Flags continues, the more I think it really is at least in part about information gathering and distribution. The money will almost certainly be there whether they settle now or later (or even if they go to trial, if the facts as they seem to be are accurate), and they're better able to get press in this setting.
Wednesday, May 14, 2008
Lawyers Weekly USA has a story quoting me on the state of litigation and regulation of the amusement industry.
My support for Rep. Markey's bill to give CPSC oversight of fixed site parks is moderate to say the least. I think there are likely better agencies to oversee it, and find his discussion of amusement safety to be overblown in many particulars. As the story notes, I think the industry does an excellent job in almost all situations; I support the bill in the hopes that it will provide better information, both for consumers and for industry.
The ABA Journal reports that several foam insulation manufacturers have agreed to a $30 million settlement in the Rhode Island nightclub fire suit in which a pyrotechnics display during a Great White performance ignited a fire at a Rhode Island nightclub, and killed 100 people. As USA Today notes, this brings the total settlement to over $101 million. Remaining defendants include the State of Rhode Island and Anheuser-Busch, Inc. (For more on the prior settlements, see these prior posts here, here and here).
As the New York Times reports, the FDA has asked Congress for an "immediate infusion of $275 million to ensure that imported foods, drugs and medical devices are safe."
Last week, Senator Herb Kohl, Democrat of Wisconsin, who is chairman of the Senate appropriations subcommittee with jurisdiction over the F.D.A., sponsored a measure that would provide the F.D.A. an additional $275 million this year as part of an emergency supplemental appropriations bill largely intended to finance the war in Iraq.
The supplemental bill may be the only way to provide additional financing to the F.D.A., since appropriations bills for next year are likely to stall.
Mr. Kohl’s measure mirrors [FDA Chief] Dr. von Eschenbach’s letter to Mr. Specter. Both call for $125 million to finance food safety activities; $100 million for medical product and drug safety activities; $40 million for modernizing F.D.A.’s science and work force; and $10 million to upgrade agency facilities and laboratories.
Two upcoming conferences of note:
1. Off Label Uses of Approved Drugs: Medicine, Law and Policy. Presented by AEI, May 21st, in Washington, DC.
“Off-label” prescribing—that is, doctors prescribing drugs for purposes other than those expressly approved by the Food and Drug Administration (FDA)—is often useful although little is known of its extent. In the last several years, nearly every major pharmaceutical company has paid hundreds of millions of dollars to settle allegations of illegal marketing of drugs for off-label uses. There has been a growing trend of actions by federal prosecutors, state attorneys general, and cooperating trial lawyers to litigate against pharmaceutical manufacturers for allegedly doing too much to promote off-label use of prescription products. Citing recent legal changes mandating exclusion from federal programs after a conviction, many manufacturers say they are forced to settle rather than risk defending themselves—even as prosecutions against individual executives have foundered in front of juries.
At this AEI Legal Center event, experts on both law and health care will present papers on the law, economics, medicine, and public policy of off-label marketing, discussing everything from off-label prescribing and the abuse of class action mechanisms to implications for the First Amendment and medical malpractice. Speakers include former FDA chief counsel Daniel Troy; former Cephalon general counsel John Osborn; former deputy attorney general George Terwilliger; principal deputy assistant attorney general and acting assistant attorney general for the Civil Division Jeffrey Bucholtz; attorneys Brian Anderson, James Beck, Mark Herrmann, Richard Samp, and Kyle Sampson; law professor Margaret Johns; and AEI scholars John E. Calfee, Theodore H. Frank, and Scott Gottlieb. The session will begin with results from a new survey of oncologists about off-label prescribing and information about off-label uses.
2. Mass Litigation. Presented by ALI-ABA, May 29-31st, in Charleston, SC.
In this new course of study, a distinguished faculty of judges, academics, practitioners, and others examines both the procedural and the substantive sides of the rapidly evolving field of mass litigation.
The course considers class actions, not just under the Class Action Fairness Act (CAFA), but also as they affect ERISA and subprime claims. It discusses discovery (especially as it relates to electronic records), sanctions, case management, evidentiary issues, and the use of expert testimony. Attention is also paid to negotiation of settlements, mediation of claims, post-resolution management of claims and the distribution of proceeds, and punitive damages.
On the substantive side, the course updates registrants on litigation over a number of issues, discusses the increasing use of the Alien Tort Claims Act and Qui Tam proceedings, offers novel theories for recovery, and considers liability for climate change.
International issues receive attention as well. The faculty discusses foreign claims and defendants, foreign product recalls, and cross-border discovery (with emphasis on how foreign privacy laws affect U.S. discovery rules).
Tuesday, May 13, 2008
Two AALS-related things:
CALL FOR PAPERS
FOREIGN TORT LAW: BEYOND EUROPE
ASSOCIATION OF AMERICAN LAW SCHOOLS
SECTION ON TORTS AND COMPENSATION SYSTEMS
San Diego, California
January 9, 2009
Injury, particularly human physical injury, is a universal problem. And yet, in the United States little is written about other countries’ mechanisms for awarding civil liability for injury. In recent years, with the European Group on Tort Law’s publication of its Principles of European Tort Law, more is known about liability rules in the European Union. This panel attempts to further expand U.S. scholars’ understanding of foreign tort law. The program will address issues of accountability, deterrence and compensation for injury in other nations, particularly developing nations. The panel will address foreign approaches to civil liability in its broadest sense. Some approaches to injury response may be easily recognizable as tort law, and other approaches may differ more markedly from what might be considered tort law in the United States.
The executive committee of the Torts and Compensation Section is now accepting proposals for papers concerning foreign tort law. Special consideration will be give to the tort law of developing countries. Proposals for papers may be written by either foreign or U.S. scholars. A limited amount of funding is available for foreign scholars to travel to the United States to speak at the program. Drafts of accepted papers will be presented on January 9, 2009 at the AALS Annual Meeting in San Diego. Final versions of the papers will be published later in the year in a symposium edition of THE ARIZONA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW.
PAPER SUBMISSION PROCEDURE:
Interested authors and speakers should submit an abstract of fewer than 300 words to:
Email: firstname.lastname@example.org by June 16, 2008.
Questions and requests for further information can also be directed to:
Professor of Law
University of Arizona James E. Rogers College of Law
1201 E. Speedway Blvd.
P.O. Box 210176
Tucson, Arizona 85721-0176
Prosser Award Nominations
At the 2009 AALS Annual Meeting in San Diego next year, the Torts and Compensation Systems section will once again present the William L. Prosser Award to a law professor who has made outstanding contributions to Torts scholarship, teaching and service. Any law professor is eligible to nominate another law professor for the award. Selection of the recipient will be made by members of the Executive Committee of the Torts and Compensation Systems section based on the recommendations of an appointed special selection committee.
Nominations, accompanied by a brief supporting statement, should be submitted to Catherine Sharkey, Secretary of the Executive Committee, either by regular mail or e-mail, at the following address: Catherine Sharkey, New York University School of Law, 40 Washington Square South, 403, New York, NY 10012. E-mail: email@example.com. Nominations must be received no later than 5 p.m. Eastern Time (U.S.) on July 2, 2008.
Professors who nominated a candidate who was not chosen for last year’s award cycle are welcome to renew their nominations by sending a copy of their prior nominating letter to Professor Sharkey.
Questions and requests for further information can also be directed to Ellen Bublick, Chair of the Executive Committee, via email at firstname.lastname@example.org.
Kyle Graham recently posted his forthcoming article, "Why Torts Die" on SSRN. The abstract provides:
Alienation of affections. Claims for insult. Maintenance and champerty. Suits against saloonkeepers for spousal alcoholism. These are just a handful of the many torts that have disappeared, or are presently passing into history. Why Torts Die examines why these and other torts have vanished or are in danger of extinction. The central thesis of Why Torts Die is that the collapse of a tort typically owes to a confluence of compromising conditions or events. Changes in the ambient cultural atmosphere may threaten a tort theory, but the effects of these changes will be magnified or mitigated by several other factors: the nature, quality, and volume of critiques directed against the tort; the interests and limitations of the audiences that decide whether to retain or reject the cause of action; the relative power and influence of the tort's opponents and supporters; the availability and desirability of alternatives to the tort; and the intrinsic qualities of the threatened claim itself. To flesh out the hypothesis that most defunct torts haven't simply fallen victim to sudden cultural downdrafts, Why Torts Die offers three case studies, each detailing how a gravely endangered tort or torts came to find itself in that condition. This review of the diminutions of the tort of insult, of obesity lawsuits, and of the heartbalm torts (alienation of affections, breach of promise to marry, criminal conversation, and seduction) suggests that the disappearance of a tort is typically a complicated affair, implicating several of the factors discussed above.
As MSNBC (via AP) reports, the United States Supreme Court upheld a Second Circuit decision allowing an Alien Tort Claims Act suit to proceed against various banks and corporations based on their alleged "aiding and abetting" of the apartheid system in South Africa by providing loans and goods. The Supreme Court did not reach the merits of the appeal, but rather was forced to affirm when four Justices recused:
Chief Justice John Roberts and Justices Samuel Alito, Stephen Breyer and Anthony Kennedy provided no explanation for their decision not to take part in the case.
But those justices have ties to Bank of America Corp., Bristol-Myers Squibb Co., Colgate-Palmolive Co., Credit Suisse, Exxon Mobil Corp., Hewlett-Packard Co., IBM and Nestle SA, among nearly three dozen companies that asked the high court to step in.
Kennedy does not hold stock in any affected company, but his son, Gregory, is a managing director at Credit Suisse. Kennedy sat out a case last term involving the investment bank.
The case returns to the lower courts for further proceedings. In a two-part series on Findlaw, Tony Sebok analyzed the Second Circuit's decision and argued that the win may prove to be a "pyrrhic victory" for the plaintiffs. (Prior posts here and here).
Monday, May 12, 2008
I don't see this up on the Oversight Committee's website yet, but just received this by e-mail:
Should FDA Drug and Medical Device Regulation Bar State Liability Claims?
Committee on Oversight and Government Reform
Wednesday, May 14, 2008, 10:00 AM at 2154 Rayburn House Office Building
Witnesses: Actor Dennis Quaid and his wife Kimberly, parents of newborn twins, Thomas Boone Quaid and Zoe Grace Quaid, who were victims of a heparin overdose; William Maisel, director of the Medical Device Safety Institute, Department of Medicine, Beth Israel Deaconess Medical Center, Boston; Aaron Kesselheim of the Harvard Medical School's Division of Pharmacoepidemiology; David Kessler, professor of pediatrics and epidemiology and biostatistics at the School of Medicine, University of California, San Francisco; David Vladeck, professor of law at the Georgetown University Law Center; Gregory Curfman, editor of the New England Journal of Medicine; Christine Ruther, president and chief engineer for C&R Engineering, Inc.; and Utah State Representative David Clark (R) of the National Conference of State Legislatures.
Jamie Leigh Jones's tort suit against KBR (and its former parent Halliburton) will, after the pure workplace claims are resolved, go to litigation. Details at Forbes (AP story) and TimesOnline; via TortDeform. Past post here.
The opinion is here: Download KBR.pdf
It's far from a rejection of arbitration, even arbitration of tort suits, or even arbitration of tort suits related to employment (though it's clear that Judge Ellison has concerns about broad arbitration clauses). He finds the arbitration clause valid and enforceable, rejecting arguments relating to fraud in the inducement, unclean hands, unfair bargaining power, and so on.
His conclusion is fairly simple and not dependent on any policy arguments: even though the arbitration clause is valid and enforceable, it doesn't reach some of this alleged conduct. The more pure employment claims are arbitrable, and he stayed the non-arbitrable claims pending the arbitration of those claims.
Pharmalot has the details of the test case focusing on whether the mercury-based preservative in vaccines can by itself cause autism.
In related news (though not part of the same case), if I haven't already pointed you to Eric Turkewitz's ongoing posts (and links to other posts) about the subpoena served on autism blogger Kathleen Seidel, well, head on over there now.
If you're interested in the "elephantine" asbestos situation, you should review the last week or so of Point of Law's asbestos category. Recent posts started with the release of the Manhattan Institute's asbestos report and followup discussions, including AAJ's news release in reaction (which PoL notes, pretty accurately, isn't actually a response so much as a criticism of the Manhattan Institute's funding and of the Manhattan Institute's legal issues director).