Saturday, February 28, 2009
Tom Baker (Penn) and Timothy Lytton (Albany) have posted Allowing Patients to Waive the Right to Sue for Medical Malpractice: A Response to Thaler and Sunstein on SSRN. Here is the abstract:
This essay critically evaluates Richard Thaler and Cass Sunstein's proposal to allow patients to prospectively waive their rights to bring a malpractice claim, presented in their recent, much acclaimed book, Nudge: Improving Decisions about Health, Wealth and Happiness. We show that the behavioral insights that under gird Nudge do not support the waiver proposal. In addition, we demonstrate that Thaler and Sunstein have not provided a persuasive cost-benefit justification for the proposal. Finally, we argue that their liberty-based defense of waivers rests on misleading analogies and polemical rhetoric that ignore the liberty and other interests served by patients' tort law rights. There are many ways in which nudges could be part of reforming medical malpractice litigation and improving the quality of medical care. Thaler and Sunstein's use of behavioral economics to explore new ways of addressing persistent problems is an invitation to innovative and meaningful policy reform. Our criticisms of their medical malpractice waiver proposal are designed not to disparage this effort, but to remind policymakers of the importance of careful consideration of the facts before choosing a path for change.
Friday, February 27, 2009
On this day in 1922, the Supreme Court upheld the 19th Amendment to the Constitution guaranteeing the right of women to vote. Now on to this week in torts...
Reform, Legislation, Policy
- Mandatory country-of-origin food labeling requirements will go into effect March 16th. (Progressive Grocer)
- NY Court of Appeals urges legislative reform on insurance issues. (Eric Turkewitz)
- FDA meets with Dartmouth researchers about "drug fact boxes" (akin to the nutritional boxes on food products). (NY Times)
- White House moves forward on health reform. (TortsProf, Politico, Politico II, CNN, Reuters)
- New Mexico Senate rejects bill that would have required drug companies to report gifts that they give to health providers. (Forbes/AP)
- FDA consolidates operations at former Navy site in White Oak, Maryland. (NY Times)
- Four passengers injured in the Continental crash last December (where the plane veered off the runway into the ravine) have sued Boeing. At least 8 other passengers already have suits against Continental. (AP)
- The woman injured in Morgan Freeman's car accident last August announced her intent to sue the actor. (TMZ)
- Three New Jersey women sue dentist who referred them to an oral surgeon who allegedly groped them as they recovered from surgery. (They'd already sued the surgeon). (Star Ledger)
Trials, Settlements & Other Ends
- Strange things in Illinois - a settlement of $2.5 million in a suit against a homeowner who did not buy alcohol or even know that plaintiff was drinking in her home. (Jonathan Turley)
- California woman who was unknowingly infected with herpes wins $4 million compensatory damages, $2.75 million punitive damages, and a BMW. (ABA Journal, Jonathan Turley)
- California appellate court grants Seyfarth a new trial in malpractice action by TaeBo creator Billy Blanks. (National Law Journal/law.com, AmLaw Daily)
- Eleventh Circuit affirms exclusion of plaintiff's causation expert in Remicade case. (Mass Tort Defense)
- Judge who awarded millions to Melvin Weiss joins Weiss's former firm n/k/a simply Milberg. (Jonathan Turley, WSJ Opinion, ABA Journal, Point of Law, Overlawyered)
- Eric Turkewitz discusses whether anti-solicitation ethical rules really work. (Turkewitz)
Thursday, February 26, 2009
New York Personal Injury Cases Blog is providing us with some recent pain-and-suffering data points:
Opening statements were made yesterday in the New Brunswick, NJ med mal trial of a dentist and oral surgeon. A 21-year-old man died in August 2005 the day after his wisdom teeth were pulled when his larynx swelled and blocked his airway. Family members are suing the dentist and oral surgeon who treated him, arguing that both knew the patient suffered from an immune deficiency disease that caused parts of his body to swell after trauma. The dentist and surgeon blame each other and the patient for the death. The Star-Ledger has the details.
Wednesday, February 25, 2009
H.B. 1603 passed the Oklahoma House Judiciary Committee and now moves to the full House. The bill would "cap non-economic damages; require an expert witness for pre-certification of a lawsuit; and eliminate joint and several liability, among other reforms." More from Insurance Journal.
Tuesday, February 24, 2009
The University of Montana's law and journalism schools are blogging the criminal case involving W.R. Grace and the harms in Libby, Montana. Past posts about Libby and WR Grace, mostly by guest blogger Andrea Peacock, are here.
On Monday, the Oregon Senate passed a bill that would substantially increase public liability tort limits. Currently, liability against a government agency is capped at $200,000. The new bill raises the cap and sets up a two-tier system depending on whether the suit is against the state or a local government. As LegalNewsline reports, for claims against state government, the bill increases "the liability cap $100,000 a year to a maximum of $1.5 million by 2015 for individual claims against state government. The plan would increase the cap to $3 million for all claims from a single incident." The Oregonian also has more.
Jeffrey Young at the Hill reports that President Obama has scheduled a health reform summit for next week:
"Everybody here understands a lot of the tradeoffs involved in health care and that there are no perfect solutions, but in the sound-bite political culture that we've got, it's very hard to communicate that," Obama said, adding that he wants to "educat[e] the public" on "what these tradeoffs are" and why they are necessary to reform the health care system.
Monday, February 23, 2009
A jury recently awarded about $80,000 to a group of undocumented workers who sued an Arizona rancher for a variety of claims. Their conspiracy and civil rights claims were dismissed by the judge; they prevailed on assault and intentional infliction of emotional distress.
A few years ago, a woman died after falling from an amusement ride on which the owner had allegedly bypassed the safety devices. Specifically, he had overridden the microswitches that prevented the ride from operating if the restraints were not locked in place; hers were not and she fell to her death. You can see a collection of my posts on that case at MassTort.org here.
In reaction, the state imposed insurance requirements (which took effect previously) and required state inspection, which is now in effect.
Saturday, February 21, 2009
The upcoming March 2009 issue of The Annals of the American Academy of Political and Social Science is dedicated to a symposium covering class actions in about two dozen countries. The articles were submitted by leading scholars in each country. The Academy's website is here.
Thanks to Mark Behrens for the tip.
Friday, February 20, 2009
I am considering suing the snow if it returns. Is spring coming? Is snow judgment-proof?
Anyway: This week in torts...
Reform, Legislation, Policy
- Eric Turkewitz, as usual, is the go-to source for information about sketchy client solicitation after the Buffalo plane crash [NY Personal Injury Attorney Blog]
- Restatement (Third) of Torts symposium takes on, well, everything [TortsProf]
- Video of David Michaels's lecture at WNEC Law [WNEC Law]
- Walter Olson on CPSIA [Overlawyered]
- Suit filed to force detergent manufacturers to disclose ingredients [LA Times]
- Lawsuit alleges lead levels covered up in DC water system, challenging study done by GWU professor (whose contract required approval by water system) [GW Hatchet, MSNBC]
Trials, Settlements & Other Ends
- $2.3 million for person who fell, intoxicated, in front of a subway [Overlawyered, Tort Deform]
- $8 million in post-Engle case [TortsProf]
- Vicki Iseman drops suit against NYT; NYT says it didn't imply an affair or unethical behavior [Politico]
- Truth a defense to defamation claim? Apparently not always. [Citizen Media Law Project]
- Possibility of recusal for Justice Roberts in Levine? [Writ]
- NJ Supreme Court hear sex abuse case implicating discovery rule [NJ.com]
- What drives damage caps? [SSRN]
- Criminal trial against WR Grace begins [NYT, 2006 TortsProf guest posts]
- Roundtable discussion on FASB rules about contingencies, including pending litigation [Drug & Device Law Blog]
- Potential liability in chimp attack? [A Connecticut Law Blog]
Thursday, February 19, 2009
This is the question addressed by Jonathan Klick (Penn) and Cathy Sharkey (NYU Law) in their SSRN posting of the same name. Here is the abstract:
A number of states have passed caps on non-economic and punitive damage awards in civil cases. The conventional wisdom is that the passage of these caps is driven by "out-of-control" jury awards that need to be reigned in. However, it could be the case that voters harboring anti-litigation, pro-tort reform sentiments are more likely to support the passage of caps even in the absence of an upsurge in awards. To examine the effect of jury awards on the passage of caps, we estimate semi-parametric hazard models of cap passage using data from the Jury Verdict Research Reporter.
Wednesday, February 18, 2009
In a ruling yesterday, the United States Court of Appeals for the Second Circuit upheld the New York City rule requiring chain restaurants to list calorie information on menus. The New York State Restaurant Association had challenged the regulation on two grounds: (1) the rule was expressly preempted by the Nutrition Labeling and Education Act of 1990 and (2) the rule violated the Association's First Amendment rights under a compelled speech theory. The Second Circuit rejected both arguments.
The AP has details; $100M of the amount sought is punitive damages. The jury found causation in an earlier phase of the trial, and the since-decertified class action established in Florida that the tobacco companies hid risks of smoking.
Tuesday, February 17, 2009
The New York Times reports that the stimulus bill includes $1.1 billion to fund "comparative effectiveness" research, i.e., comparing the effectiveness of different treatments for the same condition or illness.
Dr. Elliott S. Fisher of Dartmouth Medical School said the federal effort would help researchers try to answer questions like these: Is it better to treat severe neck pain with surgery or a combination of physical therapy, exercise and medications? What is the best combination of “talk therapy” and prescription drugs to treat mild depression? How do drugs and “watchful waiting” compare with surgery as a treatment for leg pain that results from blockage of the arteries in the lower legs? Is it better to treat chronic heart failure by medications alone or by drugs and home monitoring of a patient’s blood pressure and weight?
The U.S. Health and Human Services Department will oversee the funds with a "council of up to 15 federal employees to coordinate the research." According to the Times, "[s]ome money will be used for systematic reviews of published scientific studies, and some will be used for clinical trials making head-to-head comparisons of different treatments." President Obama is expected to sign the bill today.
Titled "Opportunities and Challenges Facing FDA & the New Administration," the Food & Drug Law Institutes's Annual Conference will focus on changes under President Obama's new administration. The conference is scheduled for April 22-23rd, 2009. An agenda and speaker list is not yet available.