Saturday, March 1, 2008
Several significant tort reform actions in the states from the last day or two:
CO: The full senate passed a bill increasing the cap on noneconomic damages in medical malpractice cases. The story is here.
HI: A bill that would have capped noneconomic damages at $500,000 for high risk medical specialties died because the judiciary committee chair would not hear it. The story is here.
WY: A bill is under review by a state senate committee that would restrict the medical malpractice loss of chance doctrine to cases where the chance of survival was less than 50%, but greater than 25%. The vote is expected next week. The story is here.
Yesterday, the Supreme Court of Virginia unanimously ruled that foundations set up to administer the clinical practices of faculty at public medical schools are not eligible for charitable immunity.
To be eligible for charitable immunity in Virginia, an entity must prove: 1. that it was organized for a recognized charitable purpose; 2. that it operates in fact in accord with that purpose; and 3. the tort claimant was a beneficiary of the charitable entity at the time of the alleged injury. The court found the foundation was entitled to a presumption that it was a charitable entity based on its Articles of Incorporation. However, the court held the foundation does not operate as a charity:
In this case, we find the following four factors determinative of the conclusion that HSF [the foundation] does not operate in fact with a charitable purpose: (a) HSF was created to correct billing and collection problems; (b) the ratio of HSF's revenue compared to the cost of its charitable work is substantially disproportionate [charitable work is .66% of total revenue]; (c) HSF's incentive payment structure is functionally a profit-based bonus system, much like a for-profit enterprise, and (d) HSF does not accept charitable gifts.
As a result of the decision, patients in Virginia's three public medical hospitals will continue to be able to recover for a health care provider's negligence. The full opinion [pdf] is here.
Friday, February 29, 2008
Cardozo is hosting a lecture entitled "The Vioxx Story: Mass Settlement Without Class Actions" on Tuesday, March 11 at 6:30 p.m. The featured speaker is Christopher Seeger (Seeger Weiss), one of the principal architects of the Vioxx settlement. Professor Howard Erichson (Seton Hall; Co-Editor of Mass Tort Litigation Blog) and Kathleen O'Connor (Dechert) will provide commentary. Professor Anthony Sebok (Cardozo; Findlaw's Writ Columnist) will serve as moderator. RSVP at [email protected].
Thursday, February 28, 2008
Minnesota Public Radio's News Cut blog summarizes the sad case, and litigation aftermath, of Amanda Jax:
Where do we start with the sad case of Amanda Jax, the legal adult who drank herself to death on her birthday? Our time to discuss it intelligently is short. What's happened today is the stuff talk radio hosts dream of and once they awake, well, you know.
According to a story by MPR's Art Hughes, five of her friends are among those being sued by the Jax family. Their alleged crime? They, not Amanda, bought the drinks for her.
Local accounts indicate that her friends documented the evening of heavy drinking with photographs, including allegedly pictures of Jax, after she became unconscious. The complaint (filed today) alleges that Jax had the equivalent of seventeen shots.
The family's lawsuit also names the bar that served Jax those shots.
The lawsuit for defamation, IIED, and so on against various posters on the AutoAdmit forums continues, with one of the pseudonymous defendants ("AK47"), who declared that people named Jill and another common name "should be raped," seeking to quash a subpoena against his ISP.
Jacob Nussim (Bar-Ilan University-Faculty of Law) has posted Distributive Aspects of Legal Standards on SSRN. Here is the abstract:
There are various differences between a negligence regime and a strict liability regime; there are various differences between price and quantity controls of behavior. This study shows that, typically, these legal mechanisms differ in their distributive outcome as well. In reality, tort victims as well as externality victims are heterogeneous in the potential harm they would suffer if injured, but potential injurers cannot observe individualized harm ex ante (e.g., car accidents, pollution). Therefore, a uniform rather than individualized legal standard of behavior is applied. It is shown that a negligence regime with a uniform care standard redistributes among potential victims, while an equally (second best) efficient strict liability regime does not. A similar conclusion follows for the choice between quantity and price instruments.
Via Solum/Legal Theory Blog.
I've been following the case related to Katie Lassiter, the young girl whose feet were severed while on the "Superman: Tower of Power" drop ride manufactured by Intamin for Six Flags Kentucky Kingdom. Local news reports that the ride is being dismantled and that the victim had a bone removed a few days ago.
In related news, the Kentucky Commissioner of Agriculture recently called for more inspectors for that state's amusement rides, saying the state was lucky that there had been nothing worse than serious injuries on its rides.
Wednesday, February 27, 2008
The New York Times reports on a suit filed yesterday by the Alaska native village of Kivalina against 20 oil, electric, and coal companies. The village, which is being forced to relocate because of flooding caused by global warming, accuses the companies of creating a public nuisance and also of conspiracy:
“There has been a long campaign by power, coal and oil companies to mislead the public about the science of global warming,” the suit says. The campaign, it says, contributed “to the public nuisance of global warming by convincing the public at large and the victims of global warming that the process is not man-made when in fact it is.”
The suit alleges that the cost for relocating the village is $400 million.
The New York Times reports on the prosecution of a California doctor for allegedly hastening the death of a patient in order to retrieve his organs. According to the criminal complaint, the doctor "ordered excessive doses of morphine and Ativan, an anti-anxiety medicine, both of which are used to comfort dying patients." The complaint also charges that the doctor introduced Betadine, a topical antiseptic which may cause death if ingested, into the patient.
“If you think a malpractice lawsuit is scaring surgeons off, wait to see what happens when people see a surgeon being charged criminally and going to jail,” said Dr. Goran B. Klintmalm, president of the American Society of Transplant Surgeons, who added that he considered the case unprecedented.
The patient's mother also has filed a civil suit against the doctor, the donor network, and other doctors in the operating room. The mother separately settled a civil suit against the hospital.
Tuesday, February 26, 2008
Yesterday's WSJ includes an editorial, "Lawsuit, Inc.," which addresses the practice of state attorneys general outsourcing lawsuits to private plaintiffs' attorneys. The editorial notes that the Mississippi Senate recently passed a bill that would require competitive bidding on such contracts of more than $500,000. But, Mississippi Attorney General Jim Hood reportedly is trying to block passage of the bill in the state house.
The WSJ reviewed various documents from the Hood's office, and found that "Hood retained at least 27 firms as outside counsel to pursue at least 20 state lawsuits over five years." The WSJ further found that "these 27 law firms -- or partners in those firms -- made $543,000 in itemized campaign contributions to Mr. Hood over the past two election cycles."
In his latest Findlaw column, Tony Sebok discusses the Riegel decision and how it may reveal the Court's approach to the remaining preemption cases on the Court's docket. In particular, Sebok finds clues in Justice Stevens's concurrence, and concludes that "Stevens seems to be telling Scalia that the theory of preemption that Stevens had developed extends only to cases of express preemption--that is, in cases where Congress has clearly stated that it wants to supplant state law, including state common law."
Ron Springs, a former Dallas Cowboy football player, is one of eleven named plaintiffs in a suit challenging Texas's 2003 damage caps, reports the AP via the NYT. Springs's suit alleges medical malpractice during surgery to remove a cyst that resulted in brain damage.
Monday, February 25, 2008
With Ralph Nader's announcement yesterday that he is again running for president, I thought it might be a good time to link to a 1995 column he wrote on tort reform for Legal Times, reproduced on the 'Lectric Law Library (still proudly sporting a 1995-era web design). You can also check out the Google cache of his 2004 statement on the issue; his new site does not appear to have anything on the subject as yet.