Saturday, June 30, 2012
Over at Litigation & Trial, Max Kennerly has found a problem with the early offer law, but it is not as serious as he first believed.
Kennerly argues that early offers do not cover future lost wages. He arrives at this conclusion by noting that the definition of "economic loss" includes wages, but does not include "earning capacity." His conclusion is that "wages" only means wages that would have been earned at the time the claim is filed. He then provides an example of someone who lost $50,000 in past lost wages and Kennerly is concerned that he will only receive the $50,000 in lost wages.
The statute makes it clear that future lost wages are included. Section 5:19-C:5 provides that future lost wages will be paid. That section divides payments by the health care provider into section I, covering economic losses previously incurred, and Section II, covering future economic losses. Subpart b to Section II covers lost wages, and states: "Payment of lost wages shall be made weekly." Moreover, the payments are adjusted annually to keep up with inflation.
What then does "earning capacity" mean? Kennerly is right that it should have been defined in the statute. However, I think he arrived at the answer in his updated post that responded to my comment. Moreover, in so doing, I think he sheds light on the nature of early offers. He says that "earning capacity" includes "estimates of increased wages due either to individual career advancement or advancement of wages as a whole in a particular sector." Early offers does include increased wages due to inflation. What it doesn't include, what it can't include, based on its very nature, is the individualized treatment that Kennerly wants.
This is the tradeoff. Tort law generally provides individualized justice. If you want to push your case far enough, a jury will decide whether the health care provider was liable and how much pain and suffering that the claimant, this particular claimant, suffered. As a result, it can be slow, averaging about 5 years per med mal case, and expensive, chewing up a lot of transaction costs. Early offers is based more on an insurance premise. The claimant gives up the possibility of having a jury take all of her particular circumstances into account for recovery that is certain and much swifter. Especially when one considers that the most seriously injured claimants often recover only a fraction of their economic loss and claimants lose a large portion (around 80%) of tried med mal cases, the tort route can be daunting for claimants who understand it.
As I have said before, early offers is not for everyone. Kennerly proffers a college student client who had no lost wages, but the potential to earn $3 to $5 million. Absent more information, I would say this client should not request an early offer if one were possible. But there are claimants for whom it makes sense. I was a plaintiffs' lawyer, and I can recall any number of clients for whom it would have made sense. I hope plaintiffs' attorneys in New Hampshire will give it fair consideration as an alternative for those types of clients.
Thursday, June 28, 2012
On Wednesday, the legislature in New Hampshire voted to override Governor Lynch’s veto of the early offers bill. Despite some imperfections in the bill, it was a good decision. Because all of the criticism is coming from the claimants’ perspective, I specifically state that the early offers law is good for claimants. I defended an earlier version of the bill from the claimants’ perspective here.
In a post on Wednesday, The Pop Tort pronounced early offers “horrendous.” Unlike the editors of many torts-related blogs, I don’t know the people who write for The Pop Tort. I don’t always agree with their positions, but I admire their dedication to victims of tortious conduct. This is a major reason why I want to respond to their early offers post. I would like those typically supportive of claimants to seriously consider endorsing early offers.
Because the bill has changed since I last defended it, I will start by briefly explaining the version that is now the law of New Hampshire. Pursuant to the bill, a patient who believes she is the victim of malpractice may send a notice of injury to the heath care provider requesting an early offer. The provider has 90 days to decide to extend an early offer and can ask the patient to undergo a physical exam. If extended, the offer must cover all economic loss—medical bills and lost wages. There are modest amounts of pain and suffering damages included based on classification of the injury as determined using the National Practitioner Data Bank severity scale. Moreover, the offer includes payment of the claimant’s attorney. The patient then has 60 days to accept or reject the early offer. If she accepts the offer, the case is over. However, if she rejects the offer and pursues a tort claim, she must be awarded at least 125 percent of the early offer or have to pay the defendant’s attorney’s fees. To ensure these fees can be paid, a bond must be posted.
I begin by examining the specific points of opposition in the post.
There's a great hypo in here: The Georgia Supreme Court recently ruled that a golf club and homeowners' association was not liable for the wrongful death of an elderly woman killed by an alligator in 2007. Although the Court of Appeals had allowed the suit, the Georgia Supreme Court reversed.
The Supreme Court's majority decision, written by Justice Harold D. Melton, stated that even though no warning signs were posted at the lagoons, the homeowners association had warned residents in its publications and on its website that alligators were present and could be dangerous. Thus, Williams assumed the risk when she went out for an evening walk near the lagoons.
More from Daily Report.
Wednesday, June 27, 2012
It is not yet being confirmed by the media, but it appears that the legislature has overridden Governor Lynch's veto, making New Hampshire the first state to adopt an early offers law.
Updated: The veto override is confimed by the New Hampshire Union Leader.
Tuesday, June 26, 2012
John Oberdiek (Rutgers-Camden) has posted to SSRN Method and Morality in the New Private Law of Torts. The abstract provides:
The just-christened New Private Law is especially intriguing, for it self-consciously aspires to draw insight from both instrumentalism and formalism. In his ambitious and illuminating "Palsgraf, Punitive Damages, and Preemption," for example, Benjamin Zipursky could not be any more forthright in combining instrumentalist and formalist themes. On his view, the New Private Law’s methodology is sensitive to both the functions and the concepts internal to law. Thus the New Private Law promises to be the elusive third way. And in Zipursky’s hands, it seems to me, the New Private Law of Torts makes good on that promise, offering a sound approach to the adjudication of vexing questions at the frontier of tort law. But Zipursky nevertheless falters in eschewing consideration of the approach’s moral foundations. In addition to explicating just what a commitment to the New Private Law of Torts comes to, then, it is the aim of this essay to assess where normative and specifically moral considerations do, should, and must come into play in the New Private Law of Torts.
A woman chasing her ex-husband for unpaid alimony slipped and fell at the motel where she found him "holed up" with his girlfriend. The ensuing lawsuit returned a defense verdict.
Daily Report has the full story (which includes outstanding warrants and a pick up truck).
Thanks to Lisa Smith-Butler for the alert.
Monday, June 25, 2012
Jason Solomon (W&M) has posted to SSRN Civil Recourse as Social Equality. The abstract provides:
In the past decade, civil recourse theory has emerged as an important way of thinking about tort law as individual justice, and private law more broadly. But it has also been criticized as lacking an adequate normative foundation. On its face, the right to civil recourse seems like a form of retaliation or vengeance, and it seems unlikely that this is an appropriate part of a modern liberal state.
In prior work, I explained how the idea of equal accountability was an attractive moral norm and conceptual foundation for the right to recourse. This paper explores whether there are conceptions of equality that might support the right to recourse as a matter of political theory. Specifically, I argue that the right to recourse can be justified by drawing on two related notions of equality — a distributive one and a relational, or social, one.
I argue that these two conceptions of equality relate in the following way. The right to hold accountable those who have wronged you is a good subject to principles of distributive justice. And this good is something that the state provides to help constitute a community that aspires to social equality — where individuals relate to one another as equals. My task here is to explain what I mean in drawing on these two conceptions of equality, and how they relate to civil justice.