TortsProf Blog

Mello & Studdert on Individual and System Factors in Med Mal

Michelle Mello (Harvard--Health Policy & Management) & David Studdert (University of Melbourne--Law & Medicine) have posted the abstract to their latest article, Deconstructing Negligence:  The Role of Individual and System Factors in Causing Medical Injuries, on SSRN.  The abstract:

Like most branches of tort law, medical malpractice is largely premised on the notions that injuries arise from individual carelessness or lack of expertise, that culpable actors can be readily identified, and that their negligence can be deterred by setting damages sufficiently high to induce medical professionals to take due care. The emerging science of patient safety takes a very different view of the occurrence and prevention of medical injury in favor of a “systems” view of accident causation. In this Article, we examine new evidence about the nature of the relationship between individual and systems factors in the production of medical injury relationship and consider its salience for tort doctrine’s conventional view of injury causation. The data come from an empirical study of 1,452 closed malpractice claims. Three key findings have implications for tort doctrine. First, the causality of medical injuries is multifactorial and weblike. This challenges the traditional tort-law notion of the causal chain. Second, in analyzing the complex causality typically associated with medical injury, it is difficult to cleanly separate individuals and their failures from the larger environments or systems in which they work. This raises questions about medical malpractice doctrine’s heavy focus on individual liability. Finally, the pattern of etiologic factors identified suggests that the most promising opportunities for injury prevention lie at the organizational level. Yet tort incentives currently run to individuals, not organizations. We conclude with some suggestions for realigning tort doctrine to better reflect the realities of medical-injury causation.

COPIES OF THE ARTICLE CAN BE OBTAINED BY EMAILING MMELLO@HSPH.HARVARD.EDU.

--CJR

Personal Injury Roundup No. 45 (8/7/09)

Here's what happened last week in the world of torts:

Reform, Legislation, Policy

• House passes Food Safety Enhancement Act of 2009.  (FDA Law Blog, Overlawyered, Mass Tort Defense)
• More on health reform.   (NYT, ABC News Political Punch)
• State attorneys general and health advocacy groups call for tougher regulation of caffeinated alcoholic drinks.  (WSJ)
• Senate Committee holds hearings on Medical Device Safety Act, which would overturn the Supreme Court's preemption decision in Riegel.  (Life Sciences)

New Lawsuits

• Teen passenger in speeding car sues victim of crash.  (Overlawyered)
• Chicago doctor sued for performing surgery on the wrong knee.  (AboutLawsuits)
• Sarah Palin threatens defamation suit over divorce rumors.  (Hollyscoop)

Trials, Settlements and Other Ends

• Northern District of Illinois dismisses proposed baby bottle cooler class action against Platex Products.  (Mass Tort Defense)
• Two products liability cases dismissed under Iqbal pleading standard.  (American Lawyer/law.com)
• Merck reaches $80 million Vioxx settlement with third-party payor plaintiffs.  (AP/law.com, WSJ)
• $1.6M verdict in Florida school bus crash case. (About Lawsuits)
• Pennsylvania state court judge recommends defamation verdict against The Citizens' Voice be vacated and a new trial held.  (How Appealing)
• Shoe-manufacturer Crocs settles products liability suits over design of the popular rubber foam clogs.  (OnPoint News)
• Merck & Schering-Plough settle Vytorin suits for $41.5 million.  (AP/law.com)

Damages

• California Court of Appeals reverses one punitive damages award because plaintiff failed to submit evidence of the defendant's financial condition and reverses a default award because the plaintiff failed to serve a statement requesting a specific amount of punitive damages. 

Miscellaneous    

• Rejecting the plaintiffs' attorneys plan to divide leadership among seven firms, federal judge names lead counsel in Aetna class action.  (NJ Law Journal/law.com)
• WSJ Law Blog has interesting follow-up (via AP) on the coupon redemption rate in the Ford rollover litigation settlement:  Of the 1 million class members, 75 have redeemed their settlement coupon. 

- SBS

Raz on the Negligence Standard

Joseph Raz (Oxford & Columbia Law) has just updated his recent SSRN posting Responsibility & the Negligence Standard.  Here is the abstract:

The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.

--CJR

Blackwater Founder Implicated (in Tort Suit Affidavits) in Murder

We've previously noted litigation against Blackwater International, brought by Iraqi civilians.  This week, The Nation reports that affidavits filed in that case allege that the founder of the company, Erik Prince, was connected to homicide:

A former Blackwater employee and an ex-US Marine who has worked as a security operative for the company have made a series of explosive allegations in sworn statements filed on August 3 in federal court in Virginia. The two men claim that the company's owner, Erik Prince, may have murdered or facilitated the murder of individuals who were cooperating with federal authorities investigating the company. The former employee also alleges that Prince "views himself as a Christian crusader tasked with eliminating Muslims and the Islamic faith from the globe," and that Prince's companies "encouraged and rewarded the destruction of Iraqi life."

--BC

Crocs Settles Design Defect Suits

Crocs - the maker of popular rubber clogs, not the man-eating animal - has settled at least five products liability suits alleging that the shoes are unsafe for children to wear on moving escalators.  On Point News has more.

- SBS

Charleston Super Store Fire Defendants Try To Add City To Case

Awhile ago, the families of several Charleston fire fighters who died in a horrific furniture store fire back in 2007 filed suit against the store and a furniture manufacturer.  On Monday, attorneys for the defendants argued that the City of Charleston should be added as a defendant.   As the Charleston Post & Courier reports:

The city is immune from paying damages in such a case, but adding the city as a defendant and allowing a jury to potentially assign the city some blame for the nine firefighter deaths could reduce any award the remaining defendants might have to pay.

- SBS

And the health care debate takes to the road...

The New York Times reports on the plans of both Democrats and Republicans to take the health care debate on the road in a series of town hall meetings, radio and television appearances. 

- SBS

Becker & Posner on Health Reform and Obesity

Judge Richard Posner and Professor Gary Becker address health reform and obesity in this week's blog posts.  

- SBS

Early Offers: Another View of the Empirical Evidence

Bernard Black (Texas), David Hyman (Illinois), & Charles Silver (Texas) have posted to SSRN The Effects of "Early Offers" in Medical Malpractice Cases:  Evidence from Texas.  Here is the abstract:

Medical malpractice litigation is costly and time-consuming. Professor Jeffrey O'Connell, with various coauthors, has long advocated 'early offer' rules that would encourage defendants to offer to settle for economic damages plus attorney fees, and punish plaintiffs who refuse such offers. Using detailed closed claims data from Texas for 1988-2005, we simulate the effects of these 'early offers.'

We find that defendants will normally not make early offers in cases with large economic damages (over $500,000 in 1988 dollars) because doing so will increase payouts. Early offers will normally reduce payouts, and hence will be made, in cases with small economic damages (under $100,000 in 1988 dollars). Defendants may also make offers in cases with moderate ($100,000-500,000) economic damages, depending on case characteristics and the plaintiff’s chances of prevailing.

An early offer program will (i) sharply reduce payouts in cases with small economic damages; (ii) will not materially affect predicted payouts in other cases; (iii) will have very different effects on different types of plaintiffs, with large payout reductions for elderly and deceased plaintiffs and much smaller effects for newborns and employed adult plaintiffs; and (iv) will overlap substantially in its effects with statutory caps on non-economic damages, and hence have a smaller effect in states with these caps.

Our mixed results contrast sharply with dramatic claims by O’Connell and co-authors, who predict 70% reductions in payouts and defense costs. Their estimates reflect the compound effects of a series of unreasonable assumptions.

--CJR