March 16, 2012
NH: "Early Offers" Med Mal Proposal in State Senate
The New Hampshire Senate is touting an early offer approach to medical malpractice. The proposal was designed with the input of Jeffrey O'Connell (Virginia) who conceived of the concept of early offers and has championed it for years. The NH proposal allows the patient, not the health care provider, to initiate the early offer process. One proponent of the bill explained:
victims of malpractice would send a notice of injury to the medical provider. The provider then has 90 days to decide to extend an early offer and can ask the patient to undergo a physical exam. The patient then has 60 days to accept or reject the early offer, and can ask for a hearing with state insurance officials if any disputes need to be resolved.
The Union Leader has the details.
March 14, 2012
AALS Torts Panel on Civil Recourse Podcast
AALS has posted the podcasts from the Annual Meeting. Former Chair of the Torts & Compensation Systems Section Mike Rustad planned and moderated the panel "Twenty-First Century Tort Theories: A New Audit of Civil Recourse Theory." One Torts Prof said it was the best torts panel he had heard in nearly 30 years of Annual Meetings.
After Mike brought the meeting to order, Ben Zipursky nominatedJudge Richard Posner for the Prosser Award. Judge Posner was unable to attend, but Mike read a letter from Judge Posner accepting the award. The panelists then spoke in the following order: John Goldberg, Ben, Judge Guido Calabresi, Martha Chamallas, and me. The presentations were terrific and I had the best seat in the house--literally inches from the speakers.
The Indiana Law Journal will publish the papers of the panelists--and a piece from Judge Posner--early in 2013. The podcast is here. I tried to upload the podcast, but it was too large. You will need to enter your e-mail address and AALS password. Then, you will have to scroll down to the appropriate podcast.
March 13, 2012
Conk on the BP Settlement
George Conk analyzes the BP settlement at TortsToday.
March 12, 2012
Green & Gilead on Misalignments in Tort Law
Mike Green (Wake Forest) and Israel Gilead (Hebrew University) have posted to SSRN Maligned Misalignments. The abstract provides:
This article responds to a fascinating and provocative article entitled “Misalignments in Tort Law,” authored by Ariel Porat and published at 121 Yale L.J. 82 (2011). Porat argues that the rule embodied in Section 29 of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm creates a doctrinal misalignment that should be removed. This "scope of liability" provision, which Porat names "the wrongful risks limitation," provides that "[a]n actor‘s liability is limited to those harms that result from the risks that made the actor‘s conduct tortious" (wrongful risks). Porat argues that as "all foreseeable risks created by the injurer should be and are considered by courts when they set the standard of care," liability should not be limited to wrongful risks, as required by Section 29, but rather extend to all harms materializing from foreseeable risks. Limiting liability to wrongful risks, Porat argues, is a misalignment which should be removed because it is unjustified in terms of efficiency and cannot be convincingly justified in terms of corrective justice.
This article argues that Porat's analysis and criticism of the "scope of liability" rule in Section 29 is flawed. While courts should take all foreseeable risks into account when deciding whether a conduct was negligent (namely, when determining whether the standard of care was breached), they should nevertheless for scope of liability purposes distinguish between unreasonable risks on the one other hand and reasonable risks on the other. When an actor is found negligent, liability should be limited to harms materializing from the unreasonable risks and exclude harms materializing from reasonable risks. The article seeks to demonstrate that such a limitation on liability, sanctioned by Section 29, constitutes a rule, even if a misalignment, that, contrary to Porat, contributes to more appropriate incentives to avoid unreasonable conduct and produces fairer results.