Saturday, February 9, 2008
The Temple Journal of Science, Technology, & Environmental Law is sponsoring its 2008 symposium, "Shaping the Future of Medical Malpractice: Legal and Ethical Considerations." The event is on Friday, February 22 at Shusterman Hall on Temple's main campus.
The participants include legal academics, practicing lawyers, and physicians. The legal academics are Barry Furrow (Drexel), Phoebe Haddon (Temple), Mitchell Nathanson (Villanova), and Neil Vidmar (Duke). Temple's Frank McClellan is not presenting, but was involved in an advisory capacity.
Eric Turkewitz has an interesting post discussing a post by an obstetrical nurse (blogging at the very cleverly-named "At Your Cervix") who says she was directed not to accurately chart a covering physician's review of a tape. Worth a read.
Friday, February 8, 2008
The University of Georgia law school is seeking a podium visitor for Torts I in the fall - one or possibly two sections. If it's one section, the visitor would also teach an upper-division elective. They're moving quickly, so contact Paul Kurtz ASAP if interested.
Under this approach, courts would categorize products liability cases according to the type of use the plaintiff-consumer made of the product at the time he was injured. The categorization would have both substantive and procedural effects. Criminal or intentionally destructive uses would bar recovery altogether. Reckless or idiosyncratic uses would create a presumption of no-liability. Common ancillary uses would require expert evidence of defectiveness. Intended uses would create a presumption of liability, and intended uses of products violating statutes or regulations would result in absolute liability. By adapting liability schemes to consumer behavior, this five-tiered approach promises not just to clarify the law, but to better serve the Restatement Third`s objectives of efficiency and fairness.
Thursday, February 7, 2008
A group of plaintiffs in the still-going-and-going-and-going litigation against Exxon for the massive damage caused by the Exxon Valdez oil spill has launched The Whole Truth website (warning! starts talking at you without warning!). The site is part of what seems to be an effort to keep the damage clear in the public eye and to, one assumes, try to justify the punitive damages awarded and at issue before the Supreme Court later this month.
I regret that Mary Kate Kearney will be unable to present at the Crimtorts symposium on February 25. Fortunately, however, Frank J. Vandall (Emory) has agreed to present "The Criminalization of Products Liability." The revised brochure is here. We are very excited to include Frank in this stellar lineup.
This list of warnings that are scientifically accurate but perhaps not as alarming as they sound is evidently pretty old, but new to me and quite funny. My favorites:
HANDLE WITH EXTREME CARE: This Product Contains Minute Electrically Charged Particles Moving at Velocities in Excess of Five Hundred Million Miles Per Hour.
PUBLIC NOTICE AS REQUIRED BY LAW: Any Use of This Product, in Any Manner Whatsoever, Will Increase the Amount of Disorder in the Universe. Although No Liability Is Implied Herein, the Consumer Is Warned That This Process Will Ultimately Lead to the Heat Death of the Universe.
HEALTH WARNING: Care Should Be Taken When Lifting This Product, Since Its Mass, and Thus Its Weight, Is Dependent on Its Velocity Relative to the User.
The AP reports that the Minnesota Court of Appeals rejected a negligence claim brought against a hospital by the parents of a young boy who were unhappy with the results of his circumcision. From the opinion [PDF]:
Appellant is the mother of male child H.A.N. Appellant and H.A.N.’s father have another son who was born before H.A.N. Appellant and H.A.N.’s father agreed that it was up to the father to decide if their first son would be circumcised. He chose to have their first son circumcised. During a prenatal visit while appellant was pregnant with H.A.N., appellant completed a form regarding her circumcision preference. The form asked, “If you have a boy, would you like him circumcised?” Appellant circled a “Y” for yes, assuming that H.A.N.’s father would want the baby to be circumcised like their other son.
H.A.N. was born on January 21, 2000, at respondent Unity Hospital. Unity Hospital is part of a group of hospitals run by respondent Allina Health System. Dr. Berestka was the obstetrician on call at Unity Hospital after H.A.N.’s birth. Dr. Berestka approached a nurse employed by Unity Hospital and asked if there were any circumcisions to be performed. The nurse informed Dr. Berestka that there was one child to be circumcised and then prepared H.A.N. for the procedure. Dr. Berestka did not consult with appellant or H.A.N.’s father before performing the circumcision. After the circumcision, appellant and H.A.N.’s father were dissatisfied by the appearance of H.A.N.’s penis. As a result, appellant sought advice from another physician, who subsequently performed a revision for cosmetic purposes.
The physician involved, Dr. Berestka, settled the claim against him. The hospital, after a complaint was filed by H.A.N.'s parents, was found to be in violation of informed consent guidelines. But in the litigation, the hospital contended that the duty to obtain informed consent was on the physician.
The appellate court agreed, rejecting arguments that the hospital had a duty to "protect" the child against Berestka's alleged failure to obtain consent.
The plaintiffs' attorney is an interesting guy, and notes "circumcision law" as a part of his practice ("He contributes substantial amounts of time to ending the barbaric practice of routine infant male circumcision worldwide, insuring genital integrity for all citizens of the world."). The alt-weekly in the Twin Cities did a story about him a few years ago, terming him the defender of "all tomorrow's foreskins."
Wednesday, February 6, 2008
The American Medical Association (which, to say the least, has a dog in the liability fight) concludes that caps on punitive damages improves access to care:
The American Medical Association said yesterday its new analysis of independent research proves that capping punitive damages in medical malpractice cases both reduces doctors' malpractice insurance premiums and increases the number of physicians available to care for patients.
Daniel Farber (Berkeley) will discuss, “Tort Law in the Era of Climate Change: Katrina and 9/11” at the annual Monsanto Lecture at Valparaiso Law on Thursday, February 14th.
Farber will discuss how society now faces uncertain risks from terrorist attacks, natural disasters and other events that threaten massive harm to the public at large. While some assume that these risks are too extraordinary for the nation’s tort system to handle and present a threat of unconfined liability, Farber will argue that although the tort system is limited, is can prompt precautionary measures and government action to maintain societal risk-spreading.
More information (time and place) available from Valparaiso.
The Hawaii House Consumer Protection Committee holds hearings today on HB 1992, a bill that would cap non-economic damages in medical malpractice actions at $250,000, and also require that economic damages be allocated based upon proportionate percentages of negligence. The Honolulu Star Bulletin reports on the Hawaii Medical Association's support of the bill.
Tuesday, February 5, 2008
As Lloyds (via Dow Jones Newswire) reports, the Department of Justice has declined to intervene in the Katrina qui tam suit filed by Dickie Scruggs against State Farm:
"The Government's investigation has not been completed, as certain potentially relevant information has not become available," U.S. Attorney Dunn Lampton and Acting Assistant Attorney General Jeffrey Bucholtz wrote in court papers. Lampton and Bucholtz didn't elaborate on the nature of that information, but said they couldn't decide by Thursday's deadline whether to proceed. They asked Walker to seek the government's written consent before approving a dismissal or settlement of the case.
(Prior posts on this suit available here).
The Boston Globe reports on the latest settlement in the Rhode Island nightclub fire suit. In 2003, a pyrotechnics display during a Great White performance ignited a fire at a Rhode Island nightclub, and killed 100 people. The latest $30 million settlement involves Brian Butler, a cameraman for WPRI-TV, who was filming at the nightclub when the fire broke out, and LIN-TV (the owner of WPRI). The federal suit accused Butler of blocking an exit while filming the fire, an allegation Butler's lawyer has denied. The settlement must still be approved by U.S. District Judge Ronald Lagueux.
As Bill has previously noted, several other defendants settled last November for a combined total of $18.5 million. As the Globe notes, back in November, Judge Lagueux also appointed Professor Francis McGovern (Duke Law) to "devise a system to distribute settlement proceeds." Remaining defendants include the State of Rhode Island, the Town of West Warwick, members of Great White and various foam insulation manufacturers.