July 6, 2012
Kendrick on the Relationship Between Chilling Effect and Speaker's Intent
Leslie Kendrick (UVa) has posted to SSRN Speech, Intent, and the Chilling Effect. The abstract provides:
In First Amendment doctrine, the “chilling effect” is often invoked as an objection to an otherwise legitimate rule that has the incidental effect of over-deterring protected speech. Although applications of the chilling effect are pervasive in cases involving the freedom of speech, they have received surprisingly little attention.
This Article focuses specifically on the use of chilling effect arguments to explain the role of speaker’s intent in protecting free speech. Speaker intent requirements, such as the “actual malice” standard for defamation, are common features of First Amendment law, and the chilling effect has been the primary doctrinal and normative explanation for their presence. This Article argues that the chilling effect is an unsatisfactory justification for such requirements. Moreover, the failure of the chilling effect to account for important aspects of free speech doctrine ought to raise more general concerns about the use of deterrence-based arguments in constitutional law.
July 5, 2012
Teninbaum on Medical Apologies
Gabriel Teninbaum (Suffolk) is pursuing a project on the harm caused to patients by medical apology programs. He has a paper uploaded to SSRN How Medical Apology Programs Harm Patients. The abstract provides:
When an attorney suspects that he has committed legal malpractice, he must disclose it to the client and recommend that the client seek outside counsel to get objective legal advice on how to proceed. By contrast, when a doctor suspects that he has committed medical malpractice, at many facilities he is expected to employ a set of protocols that discourage the injured patient from considering the need for compensation. Yet, while an attorney could be disbarred for this sort of behavior, medical apology programs widely receive praise.
This Article argues that it is time to reconsider medical apology programs and the methods by which they operate. To do so, the Article explains the history of medical apology programs, how they work and how their design subverts the goals of fully compensating patients under the principles of tort law. The Article then suggests straightforward, effective cures for the misuse of medical apology programs.
Thanks to Alberto Bernabe for the tip.
July 2, 2012
More on Early Offers
I realize we have readers not terribly interested in early offers. I hope to take a break from them after this.
Max Kennerly, of the Beasley firm in Philadelphia, posted some comments on my previous early offers posts and, instead of answering them piecemeal, I want to address them comprehensively. The crux of Kennerly’s opposition to early offers is actually the same as my support for them: the desire that claimants receive compensation.
As I understand Kennerly’s comments, he has two principal objections. First, the penalty for turning down the offer will exacerbate the amount of claimants who do not recover because it will prevent lawyers from taking their cases. Second, the amount of and process to obtain the early offer would be insufficient for a variety of reasons.
The Penalty for Turning Down the Early Offer Will Lead Attorneys to Turn Down Cases.
Kennerly notes a 2006 New England Journal of Medicine article finding that approximately one in six claimants with valid claims did not recover. He believes the addition of the bond and fee-shifting will mean more claimants will not be able to obtain a lawyer (because of the risk involved).
There are two responses to this concern. First, New Hampshire’s law has safeguards in place that encourage claimants to have an attorney involved in the initial decision of whether to seek an early offer. Unrepresented claimants are assigned a neutral advisor whose job is to encourage the claimant to seek an attorney and explain the difference between early offers and traditional tort law. Thus, many claimants will likely have attorneys before the offer is requested, reducing (but not eliminating) the scenario Kennerly fears. In this vein, I’m actually more concerned that claimants who would benefit from early offers will fail to request them on the advice of counsel than I am that claimants will request an offer when it is ill-advised.
Second, and more significantly, the only way a claimant will have the burden of fee-shifting attached to the claim is if the claimant requested an offer and the offer has been made. In other words, the claimant has already been assured economic loss (on this issue, see Kennerly’s next objection), a modest amount for pain and suffering, and the payment of her attorney’s fees. If the concern is that one in six claimants with valid claims recovers nothing, surely this is an improvement. Especially when one considers the fact that the most egregiously injured claimants often recover only a portion of economic loss pursuant to tort law.
The Amount of and Process to Obtain the Early Offer Would Be Insufficient.
Kennerly has a number of objections to the amount of and process to obtain an early offer. As to the amount, he believes that economic loss is not properly included in the law. Economic loss is the recovery by the claimant of the actual out-of-pocket expenses caused by the tortfeasor. The largest categories of economic loss, or “specials,” are medical bills and lost wages. Past medical bills and lost wages are paid at the time the claim is made and accepted. Future medical bills are paid as the bills accrue. Kennerly currently objects to the method of payment of future lost wages. He thinks: (1) they should be paid in a lump sum and (2) future economic losses are incomplete because of an exclusion for “earning capacity.”
In repaying economic loss for future lost wages, there is nothing necessary about paying a lump sum. It was generally understood to be a trade off of less accuracy for administrative efficiency. Making calculations about what someone will earn 30 years from now involves a considerable amount of guess work. (One of my favorite examples of this comes in the related area of future medical expenses. In Seffert v. Los Angeles Transit Lines, “Drugs for 34 years” was estimated at $1,000. The plaintiff likely paid more!). Paying the wage losses as they accrue, with increases for inflation, seems acceptable for an alternative compensation program like early offers.
The issue of whether a claimant would receive complete economic loss because of the exclusion for “earning capacity” has been discussed at length. Kennerly is concerned that the exclusion will cause any number of claimants, such as college students, to receive essentially nothing for future wage loss. I think the statute as written should be interpreted differently. The statute provides for payment of future lost wages and it includes in economic loss “100% of the claimant’s salary, wages, or income from self-employment or contract work lost as a result of the medical injury.” It also makes clear that in the analogous situation of a minor injured prior to the age of majority who is unable to work, payment for future lost wages will be based on a particular wage index. Perhaps not the individuation Kennerly wants, but substantial.
Still, I wondered about the meaning of “earning capacity,” which was not defined in the statute. Jeffrey O’Connell advised on the drafting of the statute, and it turns out that language is his and was not changed during the course of negotiations. He explained the intent of the phrase. Loss of earning capacity is to be distinguished from loss of actually expected earnings. It covers, for example, the spouse of a wealthy individual who is not working now, and is not necessarily expecting to be employed, for the loss or lessening of the potential to earn money. Apparently, this is recoverable in some jurisdictions. That clarification is being sought, which should remove any doubt about the matter.
Finally, Kennerly has objections to the procedure of obtaining compensation under early offers. First, he said there is a danger of discontinuing the accrual payments at any time (a point related to his lump sum argument). This is unlikely for two reasons. First, there are the procedural safeguards I’ve mentioned before. I won’t repeat them now, but they are in this post (under point 2). Second, reneging on promised compensation is not in the interest of the health care providers who sought this law in the first place. They wanted an alternative way to compensate injured patients. If no one uses the alternative, it is worthless. Reneging on payments will ruin any chance that attorneys will recommend the early offers process.
His second procedural objection is to the administrative burden of submitting expenses as they accrue. There is undoubtedly a burden in so doing. However, it is easy to overemphasize it. Medical bills are already processed by health insurers. Claimants earning a salary should be easy to process. Once the health care provider has the salary, it must be divided into weekly installments and updated annually for inflation. That’s not difficult. Hourly earners will undoubtedly be more trouble. However, there are large administrative burdens to a malpractice case as well.
Kennerly has 2 final points. First, he said if you want an early offer system, you don’t need a law. The insurers and health care providers can simply make their offers earlier. They could, but they don’t. And they won’t. They are doing what makes economic sense to them. And they will continue to do so unless different incentives are put in place. (There is also the possibility of a contractual alternative, but new incentives are needed.)
Finally, he is concerned that only weak cases will be dumped into the early offer system, meaning that anyone compensated through it will be undeserving. Unlike many auto cases, med mal cases tend to involve very serious losses. Serious losses cost serious money. Insurers may settle weak auto cases for nuisance value, but I don’t see them settling weak med mal cases, even pursuant to early offers. The incentives aren’t there. Moreover, there are claimants who would prefer to avoid litigation and receive swift and certain compensation, even if their case is strong. They should have this opportunity.
Congratulations to Widener's Scott Cooper
Now that it is July, Scott Cooper (Widener Law '93) is officially the President of PA Justice. Congratulations to Scott, a great lawyer and a good man.