Saturday, August 2, 2008
Fredrick Vars (Alabama) has posted Illusory Consent: When an Incapacitated Patient Agrees to Treatment on SSRN. Here is the abstract:
Medical treatment requires informed consent, which in turn requires decision making capacity. When a patient with questionable capacity does not resist treatment, these requirements are often neglected: treatment is administered with no assessment of capacity and no consideration of alternative decision making. A variety of ethical and legal forces contribute to this neglect. The practical effect is that patients are treated when, if they had capacity, they would refuse treatment. This subverts the dominant interest in health care decision making: patient autonomy.
After surveying current law and practice, this article addresses the following issues: (1) when to test patients for capacity; (2) how to test capacity; and (3) what to do when capacity is lacking. The guiding principle throughout is that treatment decisions should correspond as closely as possible to patients' true preferences. On the first question, existing data and new theory are marshaled in support of mandatory capacity assessment in various circumstances. Second, this article argues that standardized instruments rather than physician discretion should be used to assess capacity. Third, when capacity is lacking and the patient does not resist treatment, a familial surrogate should make the medical decision because family predict patient preferences better than doctors.
Via Solum/Legal Theory Blog.
Friday, August 1, 2008
Welcome to the first Personal Injury Roundup (and, like Eric, I've no idea whether it should be "round up," "round-up", or "roundup," but let's go with "roundup") on TortsProf. We hope to maintain the quality of his year doing it and that of Brooks. As always, but especially for this, we'd love suggested links; e-mail addresses are off to the left.
It's getting to the end of summer, with all of us scrambling to finish various pieces, but it's still an interesting week in TortLand.
Reform, Legislation, Policy
- Public Citizen criticizes the pro-arbitration analysis performed in recent Chamber studies. [Public Citizen].
- Eric Turkewitz's op-ed published in regional NY paper; Ted Frank starts a dialogue on the statistics used within; commenters include Turkewitz and people from Public Citizen, originator of the stat in question [NY PI Law Blog, Overlawyered].
- Reforms in New Zealand [SSRN].
- Congress sends president bill banning lead, etc., in toys [AP, see also this week on TortsProf, and two-plus years ago on TortsProf].
- In a civil suit, what would have been said about this case without video? [Simple Justice]
- Six Flags discovery muddles along; 77 deps and at least 18 more months until trial on an accident that happened over a year ago [TortsProf].
- Bad documents from Zyprexa production in Alaska suggest avoidance of diabetes talk by reps [WSJ Health Blog].
Experts & Science
- Ongoing discussion of the "pharma-free expert list" prepared for journalists; most focuses on the import, or not, of it including some who have been paid litigation experts for plaintiffs [TortsProf, Beck & Herrmann, Tort Deform, Pharmalot, and HealthNewsReview.org (the list is there)].
Trials & Settlements
- An update on the Kivalina global warming litigation: Defendants have moved to dismiss arguing no cognizable tort. Hearing is scheduled for Dec. 9th. [Point of Law].
- Libya & U.S. are close to a settlement relating to 1980s terrorism [WSJ Law Blog].
- Mirapex/compulsive gambling bellwether trials start and one ends with a plaintiff's verdict [WSJ Law Blog; Pharmalot (notes $8.2 million verdict, evidently including punitives).
- $16 million verdict against Allstate upheld; could have settled the case for $50K limits [KansasCity.com].
- ScotusBlog discusses and links to Sharkey's Riegel piece and notes Levine's argument date (Nov. 3) [ScotusBlog].
- The Tennessee Supreme Court upheld a $13 million punitive damages award against Chrysler in a suit claiming that a collapsing minivan seat caused the death of a eight month old baby. [Point of Law, Overlawyered, ABA Journal]. Chrysler plans to appeal to the U.S. Supreme Court, with Ted Boutrous of Gibson Dunn at the helm. [AmLaw Daily].
- Real earthquake interrupts fake judge [YouTube].
- Ben & Jerry's marketing people are pretty sure the lawyers wouldn't like that video [Turkewitz, and read the URL, Ted].
- How I ended up in a chicken costume [Spare the Rock, Spoil the Child].
Shameless Self-Promotion (favorite posts of this week)
- Bill's: Okay, it's before this week, but hey, it's the first time we've done the round-up: And with that, a surgeon's insurer's head explodes.
- Sheila's: No Punitive Damages for NY Smokers.
Hey, that was fun. See you next week.
August 1, 2008 in Current Affairs, Damages, Experts & Science, Goofy Cases, Legislation, Reforms, & Political News, MDLs and Class Actions, Products Liability, Roundup, Scholarship | Permalink | Comments (2) | TrackBack (1)
Thursday, July 31, 2008
For the most part, certainly at the national level, tort issues have not been central to campaigning, at least so far this year. But this ad has been released in a Missouri race, attacking a Republican candidate for the U.S. House for her efforts to prevent damage caps when in the state Senate:
(The story describes it as a "Wev ad" -- I assume that's a typo and that it's a Web-only ad. It's pretty long -- 1:24 -- so I doubt it's actually aired on TV.)
American legal scholars and social scientists have long been intrigued by New Zealand's accident compensation system, which essentially abolished common law tort almost 40 years ago. This paper, prepared for a conference sponsored by the Brookings Institution and Common Good, provides an up-to-date account of the New Zealand system, with a focus on its treatment of two types of claims - for medical injuries and emotional distress - that raise particularly vexing boundary problems for the system. It then discusses a number of lessons that U.S. policymakers and scholars can draw from the New Zealand experience.
(Via Solum/Legal Theory Blog)
Wednesday, July 30, 2008
It's been a year since Katie Lasitter's feet were severed by the Superman: Tower of Power ride at Six Flags Kentucky Kingdom, and it astonishes me that the case is still going even now, especially after the various revelations since then (like, oh, this one). But discovery continues apace and now there's a trial date -- in 2010. There are 77 depositions yet to take (roughly evenly divided between the parties) and, intriguingly, Six Flags's counsel states that "Six Flags may also seek to add a defendant to the case." While he declined to identify that defendant, it seems like the manufacturer might come to mind.
A conference committee has reached an agreement on a bill to reform the Consumer Product Safety Commission (CPSC). The House passed a reform bill in December 2007, and the Senate passed its own measure in March 2008. Differences between the two bills, however, forced a long conference period. A copy of the Conference Report is available here [pdf].
Consumer Reports highlights a few key features of the Consumer Product Safety Improvement Act of 2008 (H.R. 4040) including "the toy safety standard, for which compliance has been voluntary, will become mandatory," and "[t]oys and other children’s products will be required to be tested for safety by independent laboratories before they are sold."
Yesterday, U.S. Department of Agriculture issued a new rule requiring meat, fruit, vegetable and nut retailers to notify customers of the food's country of origin. The rule takes effect September 30, 2008.
Tuesday, July 29, 2008
Well, we're going to take a shot at it now. With three of us, we figure we can rotate and it'll work out. Or not. We'll see.
So: send us tips -- our e-mail addresses are over there on the left -- and we'll start with our first this coming Friday!
Thanks to Eric and Brooks for setting the bar high. We hope we can keep up.
A few months back, Shannon Brownlee and Jeanne Lenzer wrote on Slate about potential conflicts of interest, addressing doctors who had received funds from pharma talking about SSRIs on public radio. They stated that they'd created a list of pharma-free experts for journalists, but declined to share it with Ted Frank at AEI. They also declined at the time to share it with me, but noted that they intended to post it publicly at some point, and sure enough, it's now up here at their site, HealthNewsReview.org.
Glancing through, I recognize one or two names from having done work for plaintiffs (e.g., Psaty), but not as many as I would have predicted. Update: Beck & Herrmann are collecting via the comments fields who all on the list has been a paid plaintiffs' expert.
Update: Whoops! Almost forgot my own disclosure. I have done some consulting for pharma companies. I have no current pharma clients, but have in this calendar year.
The California Supreme Court has accepted review in County of Santa Clara v. Superior Court (S163681). The question presented is whether a public entity may retain private counsel to prosecute a public nuisance abatement action under a contingency fee agreement. In the lower court's decision, the California Court of Appeal approved the practice.
In a decision last week, the New York Appellate Division (First Dept.) held that individual punitive damages claims by NY smokers are barred by the doctrine of res judicata. The court reasoned that the 1998 Master Settlement Agreement with the tobacco companies extinguished claims for punitive damages:
[A] claim by a private attorney general to vindicate what is an essentially public interest in imposing a punitive sanction cannot lie where, as here, that interest has been previously and appropriately represented by the State Attorney General in an action addressed, on behalf of all of the people of the State, including plaintiffs and the decedent, to the identical misconduct.
The court rejected the idea that punitive damages serve any private purposes:
[P]unitive damages claims are quintessentially and exclusively public in their ultimate orientation and purpose, and in that respect peculiarly appropriate for prosecution by the Attorney General in parens patriae. Such claims do not, even when asserted in the context of a personal injury action, essentially relate to individual injury. They are allowed, "not to compensate the injured party but rather to punish the tortfeasor and to deter th[e] wrongdoer and others similarly situated from indulging in the same conduct in the future". Indeed, the courts of this State have been so adamant that punitive damages are "a social exemplary remedy,' [and] not a private compensatory remedy," that the imposition of such damages for private purposes has been held to violate public policy.
A claim for punitive damages may, of course, be rooted in personal injury, but for such a claim to succeed the injury must be shown to be emblematic of much more than individually sustained wrong. It must be shown to reflect pervasive and grave misconduct affecting the public generally, to, in a sense, merge with a serious public grievance, and thus merit punitive, indeed quasi-criminal sanction by the State. As Chief Judge Breitel observed in Garrity, punitive damages are in their true aspect a prerogative reserved to the State for the accomplishment of social purposes, and it is thus fitting that those who pursue such damages in the context of private actions should be viewed as acting in the State's behalf, as "private attorneys general." (internal citations omitted).
(My thanks to Meredith Miller for alerting me to the opinion).
Monday, July 28, 2008
That's the conclusion of an article in the Washington University Journal of Law & Policy (with a 2007 citation date, but the press release is today). The article is available here [PDF], written by the president of and an attorney at the Center for Justice & Democracy. The conclusion:
Minorities are frequently forced to bear a disproportionately large share of this country’s health and safety problems. Whether it is inferior medical care, infringed civil rights, environmental pollution or any number of other indignities and injuries that juries are asked to evaluate every day, our civil justice system provides an essential tool to combat injustice in America.
Tort reform has a troubling and disproportionate effect on racial and ethnic minorities who have been injured and seek justice through the civil courts. In some cases, Congress has gone out of its way to exacerbate these effects. The civil justice system has been a beacon of civil rights over the last half of the twentieth century and for that it deserves to be celebrated, not stripped of its power.
It took a bit longer than I expected, but my article, When the Bell Can't be Unrung: Document Leaks and Protective Orders in Mass Tort Litigation, is now out in The Review of Litigation (the article is not online there, but available via Lexis and Westlaw). Its citation is 27 Rev. Litig. 565. It will be reprinted later this year by the American Enterprise Institute, and we're working on a panel discussion addressing it.
The Minneapolis Star Tribune reports that the first of three bellwether trials have started in Minneapolis (in front of my judge), testing the case for the link between Parkinson's/restless leg syndrome drug Mirapex and compulsive gambling. The first cases are being tried by veteran trial lawyer (and former U.S. Senate candidate) Mike Ciresi; the Strib reports that there are about 200 suits filed.
I first posted about Mirapex about two years ago.
A recent story about another suit involving the drug provides a typical fact pattern and also notes a recent study that "found that people taking dopamine agonist drugs—Mirapex is in this class of drugs—which help control movement problems, were two-to-three times more likely to have at least one of four common impulse control disorders: Pathological gambling, compulsive buying, compulsive sexual behavior, and binge eating."