May 26, 2012
PA: Court Rejects "Any Fiber" Theory of Causation for Asbestos
The opinion (pdf) is here: Download DC-#375579-v1-Pa__Betz_Simikian_Supreme_Court_opinion_pdf.
May 25, 2012
Culhane on "Duty Per Se" in Child Abuse Cases
John Culhane (Widener) has posted to SSRN Duty Per Se: Reading Child Abuse Statutes to Create a Common Law Duty in Favor of Victims. The abstract provides:
This article examines recent high-profile cases involving the sexual abuse of children. It focuses on a case involving a Delaware pediatrician convicted of sexually molested hundreds of children, and also discusses cases of alleged abuse by priests and by a Pennsylvania State University football coach, Jerry Sandusky. The article proposes that courts use "duty to report" statutes to recognize a common law duty for medical professionals who know or suspect abuse to report it. Failure to discharge that duty should result in liability where the causal connection between that failure and subsequent abuse can be established.
The article introduces the concept of duty per se, and, building on insights from the Restatement (Third) of Torts, distinguishes cases of affirmative duty to act from cases of misfeasance that are considered under a negligence per se analysis. It proposes that courts consider four questions in deciding whether a statutory duty to act should create a corresponding duty under common law: (1) How important is the state’s interest in preventing the harm the statute covers? (2) How closely connected is the class of actors upon whom the duty is imposed to the harm suffered? (3) Is the prospect of tort liability for failure to follow the statutory directive likely to cause unintended consequences for those upon whom the duty is imposed? (4) How likely is it that this harm will be adequately addressed by other means?
In the case of child abuse statutes, the answers strongly counsel courts to recognize a duty by medical professionals to report child abuse, under penalty of tort liability for failing to do so.
May 23, 2012
Reforming the Reform: No-Fault Auto Insurance
A couple of weeks ago (while I was busily grading papers and exams), Susan Ladika published a piece at Carinsurance.com that was picked up by Fox Business News entitled Reforming Reform: Fixing no-fault insurance.
In the article, the author discusses current efforts to reform no-fault insurance, given its greater-than-expected costs. No-fault has been successful in some ways. The article often relies on a 2010 RAND study by James M. Anderson, Paul Heaton, and Stephen J. Carroll, The U.S. Experience with No-Fault Automobile Insurance. That study, at pages 96-97, found that "no-fault systems provide reimbursement for a larger proportion of economic losses, greater satisfaction with the speed of payment, and faster resolution of third-party claims." However, no-fault was advertised as being cheaper than liability insurance. Instead, in most states, it has been just as expensive, if not more so. As a result, no-fault, which once seemed on the cusp of becoming the law of nearly every state, has lost traction. What went wrong and how can it be fixed?
First, the thresholds were set poorly. No-fault was designed to compensate the injured for small and moderate injuries and leave tort for serious injuries. This would be more efficient and would leave the full (and expensive) tort system for those claims that were sufficient to merit it. The key is to separate small and moderate claims from serious ones. This was done by thresholds. However, monetary thresholds were set too low and verbal thresholds were too vague. The Ladika article points to three jurisdictions, Georgia, Connecticut, and Colorado, that moved back to liability insurance from no-fault. In all three jurisdictions, costs were reduced when the state reverted to liability insurance. However, each jurisdiction had a monetary threshold (as part of a combination threshold) that was miserably low: Georgia's was $500, Connecticut's was $400, and Colorado's was $500 (though raised to $2,500 before it was repealed in 2003). Almost any auto accident will create $500 in costs, which means that the tort system will operate in addition to the no-fault system for such claims. As such, costs are bound to increase.
In addition to being set too low, monetary thresholds, even if part of a combination threshold, created incentives for padding medical bills, inequitably treated those living in low cost areas, and provided an easy way for no-fault opponents to undermine the law. Instead, jurisdictions should use a verbal threshold that is sufficiently limited and clear to reduce litigation.
Second, protections against fraud were not included. This may be understandable. No one thought that no-fault would have fraud problems; tort, with its payment for pain and suffering, was supposed to be the favored target for fraud. However, that was overly optimistic. No-fault has attracted considerable fraudulent claims in many jurisdictions, and it must be dealt with to keep costs under control. This may be jurisdiction-specific, but New York has proposed legislation that would: (1) modify the requirement that insurers pay claims within 30 days if there is a suspicion of fraud; (2) allow the insurance department to review and decertify unscrupulous medical providers from billing and collecting no-fault benefits; and (3) increase penalties and enforcement for insurance fraud.
Third, no-fault insurers did not implement the same restrictions that health insurers routinely use. The RAND study found that a major problem with no-fault was spiraling health care costs. However, it was not clear whether total costs increased or there was a reallocation of costs from health insurance to auto insurance. No-fault insurers need to implement restrictions, such as fee schedules and medical protocols, that are already used by health insurers. For example, New Jersey recently implemented precertification medical guidelines or "Care Paths." Care Paths set forth the particular paths of treatment that are acceptable for specified injuries; when the treatment plan deviates from the Care Paths, the treatment will be reimbursed only where demonstrated to be reasonable and necessary.
Another improvement would be to make no-fault into a choice plan. Allow motorists to choose between tort and no-fault. Evidence from Kentucky, New Jersey, and Pennsylvania suggests that a large number of motorists will choose no-fault if given the option.
Facebook Settles Privacy Class Action
The Recorder reports that Facebook has settled a putative class action that alleged that Facebook's "Sponsored Stories" feature violated the right to publicity under California law. According to the story, " 'Sponsored Stories' are paid advertisements that appear on someone's Facebook page when a friend "likes" an advertiser, complete with that person's name and photograph." As a putative class action, the settlement requires judicial approval.
May 22, 2012
47% Decrease In Med Mal Cases in PA
The Pittsburgh Post Gazette reports that the number of medical malpractice cases have dropped 47% in the ten years since two reform measures took effect. In particular, Pennsylvania requires that "cases be brought in the venue only where the cause of action arose and that a certificate of merit be obtained from a medical professional to certify the lawsuit before complaints are filed." The Gazette reports:
Despite the 10-year downward trend, there was a small uptick in the number of medical malpractice filings in Pennsylvania between 2010 and 2011. There were 1,528 filings in 2011 and 1,491 filings in 2010; 2010, meanwhile, had the lowest number of filings since the rule changes
May 21, 2012
Prosser Award Nominations--Second Call
Andy Klein, a member of the AALS Torts & Compensation Systems Section's Executive Committee, writes:
This is a "second call" for nominations for the 2013 William L. Prosser Award. The award "recognize[s] outstanding contributions of law teachers in scholarship, teaching and service in ... torts and compensation systems ... ." Recent recipients are Richard Posner, Guido Calabresi, Oscar Gray, Dan Dobbs, and Robert Rabin. Past recipients also include luminaries such as Leon Green, Wex Malone, and John Wade.
As my previous announcement explained, any law professor is eligible to nominate another law professor for the award. Nominators can renew past nominations by resubmitting past nominations and materials. Selection of the recipient will be made by members of the Executive Committee of the Torts and Compensation Systems Section, based on the recommendation of a special selection committee. The announcement of the award will be made at the annual AALS meeting in January, 2013.
Nominations, accompanied by a brief supporting statement, should be submitted no later than July 2, 2012. E-mail submissions to email@example.com are preferred. If you would rather mail hard copies of nomination materials, please use the address in the signature line below. If you prefer to mail the nominations, please send them to the address below.
Let me know if you have any questions, and thanks.
Andrew R. Klein
Paul E. Beam Professor of Law
Indiana University Robert H. McKinney School of Law
Chief of Staff
Office of the Chancellor
355 N. Lansing Street
Indianapolis, IN 46202