Friday, May 31, 2013
Tony Sebok has posted to SSRN Control Issues: Litigation Investment, Insurance Law, and Double Standards. The abstract provides:
Investment in litigation, sometimes known as litigation finance, is becoming increasingly accepted around the world. Once disfavored by the common law, it is now embraced in England and Australia, as well as in many civil law nations. In the United States, the development of a robust market for investment in litigation by laypersons otherwise unconnected to the legal matter at issue has been met by various objections. These include that it interferes with the autonomy of lawyers, and that it would promote frivolous litigation.
This article takes up an argument against litigation investment frequently made by the U.S. Chamber of Commerce and other important stakeholders in the Civil Justice System: that the legal system should not encourage parties to alienate their control over litigation that would vindicate their rights. This criticism suggests that private law theory requires that control stay with the original right holder, and that a contract between a party who wants to sell (or give up) all or some of her control over her litigation to a stranger should be struck down for being contrary to public policy.
While I briefly consider justifications rooted in moral philosophy for the view that control of litigation cannot be alienated, I focus mostly on arguments based on an interpretation of common law practice. I argue that arguments based on the structure or nature of the common law against the alienation of control of litigation are anachronistic. Such arguments constrained markets in the Nineteenth Century, but as social needs evolved, especially as the role of insurance in society grew, courts reinterpreted common law practices to permit the alienation of control of litigation for profit in various contexts, including subrogation and liability insurance.
The article concludes by arguing that we can learn from the evolution of insurance law how rigid attitudes about the relationship between victims and wrongdoers can bend to fit social needs. It argues that, given the strong market interest in litigation investment in the United States, (as well as its social benefits), the common law should accommodate the alienation of control in this new context.
Thursday, May 30, 2013
John Goldberg & Ben Zipursky have posted to SSRN Tort Law and Responsibility, a chapter in Philosophical Foundations of the Law of Torts (edited by John Oberdiek and available next year). The abstract provides:
It borders on banality to observe that tort law enables injury victims to hold tortfeasors responsible for having wrongfully injured them. Yet modern torts scholarship has largely obscured the centrality of responsibility to tort law. This is true not only of avowedly instrumental and prescriptive theories, but also of many corrective justice theories.
In this chapter, we aim to provide an account of the centrality of responsibility to tort law, thereby restoring its proper place in tort theory. We first review the impressive effort of Stephen Perry to harness Tony Honoré’s notion of “outcome-responsibility” to supply a satisfactory understanding of tort law, and negligence law in particular. We then demonstrate how notions of responsibility of the sort invoked by Perry help explain some of the most important developments in modern tort doctrine, including the emergence of strict products liability, comparative fault, and robust-yet-limited affirmative duties. Finally, we argue that our own interpretive account — the civil recourse theory of tort — is superior to Perry’s in that it places notions of responsibility at the center of tort law while also making better sense of prevailing doctrine.
Wednesday, May 29, 2013
The Indiana Law Journal has posted to its website the articles from the 2012 AALS Torts & Compensation Systems panel on civil recourse theory:
|Indiana Law Journal|
|Volume 88: Issue 2
AMERICAN ASSOCIATION OF LAW SCHOOLS TORTS & COMPENSATION SYSTEMS PANEL
|Twenty-First Century Tort Theories: The Internalist/Externalist Debate
Michael L. Rustad
|Civil Recourse Theory’s Reductionism
|Instrumental and Noninstrumental Theories of Tort Law
Richard A. Posner
|Beneath the Surface of Civil Recourse Theory
|Two Roads Diverge for Civil Recourse Theory
Christopher J. Robinette
Civil Recourse Defended: A Reply to Posner, Calabresi, Rustad, Chamallas, and Robinette
Friday, May 24, 2013
Howard Erichson and Ben Zipursky of Fordham recently chaired a symposium on "Lawyering for Groups." Participants included Beth Burch, Kristen Carpenter, Sam Issacharoff, Alexandra Lahav, Troy McKenzie, Nancy Moore, and Eli Wald. The papers are available at Mass Tort Lit Blog.
Wednesday, May 22, 2013
Tuesday, May 21, 2013
A divided Connecticut Supreme Court affirmed yesterday that attorneys are absolutely immune from claims for fraud and IIED for conduct that occurred during litigation. The case involved a series of attorneys who allegedly concealed a client's large inheritance from her spouse and described her as financially strapped during divorce proceedings, costing the spouse approximately $400,000 in extra legal expenses. Although attorneys must be free to litigate their cases, this amount of protection seems excessive. Alex Long (Tennessee) has some guidance on how to handle this situation in this piece from last year.
John Culhane (Widener) has posted his contribution to the FIU symposium on concussions to SSRN. Entitled Not Just the NFL: Compensation, Litigation, and Public Health in Concussion Cases, the abstract provides:
This article examines the recent attention given to traumatic head injury in the National Football League from a public health perspective. It notes that injuries are prevalent in many sports (not just football), and argues that the goal should be to design interventions that reduce the incidence and severity of such injuries. The article explores and evaluates some of the measures that have been taken throughout football (from the NFL down through youth leagues) to make the sport safer, and notes how these steps also affect other sports and injuries to other parts of the body. Since football and other dangerous sports are unlikely to be eliminated, harm reduction should be the goal. Taken together, these measures
are likely to be successful by that measure.
The article concludes with some observations about the use and limitations of tort claims and compensation funds to redress the harms caused by participation in dangerous sports such as football.
Friday, May 17, 2013
Terry Baynes of Reuters has written an article about the recent study by a group of physicians at John Hopkins finding that large med mal awards do not contribute significantly to healthcare costs. The article quotes the lead author of the study, Dr. Marty Makary, and me on the issue. My comments appear somewhat more skeptical of the med mal tort system than I actually am (through no fault of Ms. Baynes), and that caused me to reflect further on the significance of the study.
The study (pdf) finds that catastrophic judgments (of over $1M) constitute approximately .05% of national healthcare costs (as measured in 2010). I believe the inferences and recommendations that Dr. Makary and his colleagues draw from this are generally correct. First, they determine that catastrophic payouts are not a major driver of health care costs. Second, at least in interviews, Dr. Makary argues that defensive medicine due to the vague standard of care is a bigger expense than catastrophic payouts. Third, acknowledging the study does not include costs of defensive medicine, the authors conclude that the financial savings due to malpractice reform may be minimal compared to other drivers of health care costs. Fourth, at least in interviews, Dr. Makary argues that malpractice reform should not be focused on caps, but on the standard of care.
First, the study does support, at least modestly, a policy decision against caps. The argument is that "lopping off" the top of large med mal judgments does not save a lot of money because the amount of large judgments is small. There are, however, confounding variables. The study uses $1M or more as the definition of catastrophic payouts. Most caps are set well below $1M and are caps not on total awards, but on noneconomic loss alone. I don't see that the study differentiates between economic and noneconomic damages. This is not a criticism; I don't believe the National Practitioner Data Bank from which the data are drawn makes this distinction. It does, however, prevent a direct comparison between catastrophic payments and how caps would operate on them.
There are certainly other arguments against caps. They have a disparate impact on those who are most seriously injured. The most seriously injured in tort law are already under compensated, receiving a portion of economic loss, while those whose injuries are minor tend to receive several times economic loss. Moreover, to the extent that caps are aimed not at the top awards but at generally reducing suits, particularly frivolous suits, there is a much more direct and fair tool available: certificates of merit. Suits filed without merit is a problem; a 2006 study found that 37% of med mal claims in random samples of closed-claim files at 5 med mal insurance companies were non-meritorious. (David M. Studdert et al., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 354 New Eng. J. Med. 2024 (2006)). Pennsylvania has used certificates of merit (and no cap) to positive results.
Second, I agree that malpractice reform would not dramatically reduce costs in the vast health care system. Steven Brill's Time piece in March discussed numerous non-malpractice-related problems driving up costs. That doesn't mean malpractice law should not be reformed, just that it should be reformed for other reasons.
Third, and most significantly, I agree with the conclusion that the standard of care is a big part of the problem with med mal litigation. What is reasonable under the circumstances can be difficult to determine under banal circumstances. When applied to the practice of medicine, those complications multiply. Dr. Makary focuses on this as the cause of defensive medicine, and I'm sure it happens (though measuring it seems challenging). Moreover, the uncertainty created by the standard leads to delay and transaction costs as the parties genuinely dispute whether a health care provider acted reasonably under the circumstances. As to delay, the Studdert study referenced earlier found the average med mal claim spanned 5 years from occurrence to closing. As to transaction costs, the study found only 46 cents of every dollar went to claimants. Both these figures are consistent with prior studies.
Thus, the uncertain standard creates 3 problems. First, not all results are accurate. The Studdert study found an accuracy rate of determining medical errors (not quite the same as med mal, but close) at between 70 and 75 per cent. That is a better than random, but not great, particularly in light of the other 2 problems: delay (5 years on average) and transaction costs (running the system costs 54 cents of every dollar). This obviously creates potential problems for health care providers: the possibility of an erroneous adverse judgment, time spent worrying and not focused on health care, and high attorneys' fees/insurance premiums. To me, it is even worse for claimants. The Studdert study found 1 in 6 victims of medical error did not recover. In fact, the study found nonpayment of claims with merit occurred more frequently than did payment of claims that were not associated with errors or injuries. Moreover, a 5-year wait can be devastating to a claimant, particularly if there are large medical bills and lost wages involved.
Instead of simply raising the standard to make it more difficult for claimants to recover (recall 1 in 6 already doesn't recover when s/he should), it makes sense to me to provide claimants and health care providers a voluntary way to opt out of the tort system and handle the claim more along insurance lines, paying economic loss and a modest amount for pain and suffering. New Hampshire's early offers law passed last June was a step in the right direction. It may not be perfect, but it is an improvement over the current system. I won't make a long post any longer, but those who are interested in New Hampshire's early offer law can go here, here, and here.
There is one other facet of the study that is interesting. The authors find a physician's years in practice and, most significantly, previous paid claim history had no effect on the odds of a catastrophic payout. Ted Frank mentioned this at Point of Law. I would not have expected a strong correlation, but the lack of any correlation is surprising to me.
Thursday, May 16, 2013
TortsProf's Sheila Scheuerman has posted to SSRN The NFL Concussion Litigation: A Critical Assessment of Class Certification. The abstract provides:In the world of high-stakes class action litigation, a new theory is emerging that seeks to overcome the longstanding hurdles that have precluded certification of personal injury class actions: the "medical monitoring" class action. A recent example is the concussion-related lawsuits brought by former football players against the National Football League. The players allege that the NFL concealed the long term effects of on-field head injury, and failed to warn players of the risks of harm from repeated concussions. The players only seek class certification on a medical monitoring claim — a tort that may allow asymptomatic plaintiffs to recover anticipated medical testing. Like the putative personal injury class or no-injury class, however, aggregation of medical monitoring claims presents its own individual issues that preclude class certification under the Federal Rules of Civil Procedure.
This symposium essay examines the class certification issues presented by the "NFL concussion" litigation. The essay presents the history and status of this litigation, provides an overview of concussion science, and examines the players’ claims against current standards for class certification. The essay concludes that the players’ medical monitoring claim as currently pled fails to satisfy the criteria for class certification. This does not mean that these plaintiffs have no redress against the NFL. It means only that the NFL players need to employ the traditional personal injury lawsuit — not the class action device — to pursue their relief.
Tuesday, May 14, 2013
Robert Rhee (Maryland) has posted to SSRN The Tort Foundation of Duty of Care and Business Judgment. The abstract provides:
This Article corrects a misconception in corporation law – the belief that principles of tort law do not apply to the liability scheme of fiduciary duty. A board’s duty of care implies exposure to liability, but the business judgment rule precludes it. Tort law finds fault; corporation law excuses it. The conventional wisdom says that the tort analogy fails. This dismissal of tort principles is wrong. Although shareholder derivative suits and ordinary tort cases properly yield systemically antipodal outcomes, they are bound by a common analytical framework. The principles of board liability are rooted in tort doctrines governing duty, customs, and pure economic loss. Properly applied, they produce a duty “to care” (vis-à-vis duty of care), based on a good faith undertaking of care, but upon such undertaking no liability for negligently inflicted economic loss – the exact result achieved by the fiduciary duty of care and the business judgment rule. A sound tort analysis not only theorizes the enigmatic relationship between the duty of care and the business judgment rule, but it also explains Delaware’s puzzling procedural-substantive divide. Fiduciary duty in corporation law rests on a tort foundation. Lastly, the thesis of this Article has a broader implication. The contractarian view of corporation law seeks to relegate the role of courts to passive custodians of the corporate contractual terms provided by the legislature and the corporation’s constituents. However, this view is constrained by a tort framework wherein courts do and should play a robust, albeit reserved, role in regulating important aspects of corporate governance through the continued common law process of doctrinal development of the idea of a wrong.
Monday, May 13, 2013
The ABA Law Journal reports on an novel theory being tested in the New Jersey appellate courts: Does sending a text to someone you know is driving create tort liability? The plaintiffs were injured by a driver who was distracted by a text message. In a twist, the plaintiffs sued both the driver and the sender of the text message. The plaintiffs argued that "the court should impose a duty of care on those who know the recipient is both behind the wheel and likely to be reading texts while driving." In response, the defendant-texter has argued that she could not control when the message is read. Let's see what the New Jersey appellate court decides.
Wednesday, May 8, 2013
A team of doctors has published a study by this name in the Journal for Healthcare Quality. The absract provides:
Catastrophic medical malpractice payouts, $1 million or greater, greatly influence physicians’ practice, hospital policy, and discussions of healthcare reform. However, little is known about the specific characteristics and overall cost burden of these payouts. We reviewed all paid malpractice claims nationwide using the National Practitioner Data Bank over a 7-year period (2004–2010) and used multivariate regression to identify risk factors for catastrophic and increased overall payouts. Claims with catastrophic payouts represented 7.9% (6,130/77,621) of all paid claims. Factors most associated with catastrophic payouts were patient age less than 1 year; quadriplegia, brain damage, or lifelong care; and anesthesia allegation group. Compared with court judgments, settlement was associated with decreased odds of a catastrophic payout (odds ratio, 0.31; 95% confidence interval [CI], 0.22–0.42) and lower estimated average payouts ($124,863; 95% CI, $101,509–144,992). A physician's years in practice and previous paid claims history had no effect on the odds of a catastrophic payout. Catastrophic payouts averaged $1.4 billion per year or 0.05% of the National Health Expenditures. Preventing catastrophic malpractice payouts should be only one aspect of comprehensive patient safety and quality improvement strategies. Future studies should evaluate the benefits of targeted interventions based on specific patient safety event characteristics.
Monday, May 6, 2013
Massachusetts Governor Deval Patrick and Boston Mayor Tom Menino have appointed Ken Feinberg to run the One Fund Boston for victims of the Boston marathon bombing. The Enterprise has an interview with Feinberg as does MSNBC. Similar to his work in prior compensation funds, Feinberg will be holding town hall meetings with the public (today and tomorrow), and meeting privately with victims. According to The Enterprise:
The final protocol and claim forms will be available on the fund’s website by May 15, and people will have a month to register. Feinberg, who has sole authority over the fund, said the money will be distributed to Boston victims by the end of June.
Friday, May 3, 2013
Diederich Healthcare has released the 2013 statistics for med mal payouts. It's a treasure trove of data. Some quick takes:
- $3.6 billion in med mal payouts in 2012
- 12,142 total payouts in 2012
- Payouts were 3.4% lower than 2011 (continuing a downward trend since 2003)
- 5% of payouts were judgments versus 93% settlements
- The largest alleged injury (31%) was death
Sarah Swan (JSD Candidate, Columbia) has posted to SSRN Triangulating Rape. The abstract provides:
Civil actions for rape and sexual assault have recently been undergoing significant changes in both quantity and quality. Quantitatively, the number of these kinds of cases has increased dramatically since the 1970s. Qualitatively, the litigation has shifted from a woman versus man paradigm to a triangulated tort claim involving a female plaintiff, a male defendant, and a corporate or institutional third party entity that either facilitated or somehow failed to prevent the sexual harm. While it may seem odd to think of sexual assault as involving three parties, the legal forms of rape have traditionally been triangulated. Historically, rape was a legal wrong between two men regarding one’s proprietary interest in a woman: one man’s rape of another man’s wife, daughter, or servant would be legally constructed as a wrong done to him. Then, as this triangulation faded and the criminal justice system became the main forum for rape redress, the criminal triangulation of state versus male defendant, regarding the wrong to a woman, became the dominant structure of rape law.
Despite the fact that the criminal regime has been demonstrably unsuccessful in addressing or deterring sexual harms, it remains the primary forum for their adjudication, and many cultural, legal, and political pressures encourage women to rely solely on this system. This article argues against those pressures, and asserts that triangulated claims in private law represent a potentially promising avenue of redress for sexual harms. These civil suits can function as “crimtorts” (private civil actions which target public harms). Although they must overcome some significant obstacles, triangulated civil suits can serve as an important tool in targeting the social realities that contribute to sexual assault.
Thursday, May 2, 2013
Yesterday the Florida House passed a med mal reform bill that restricts experts testifying against a defendant doctor to the same specialty, not just the same field. Bloomberg Businessweek has the story.
Wednesday, May 1, 2013
A Philadelphia judge has held that a rule allowing venue over out-of-state doctors in any county in Pennsylvania is constitutional. Amaris Elliott-Engel has the full story for The Legal Intelligencer (behind a pay wall).
In Missouri, the Senate is debating whether to reinstate a cap on med mal damages after the Missouri Supreme Court ruled last year that a prior cap was unconstitutional. At this point, negotiations are "in limbo," with no vote after 8 hours of discussion. St. Louis Public Radio has the story (see also the San Francisco Chronicle)
Meanwhile, in Florida, the House is set to vote on a bill that would restrict the type of experts eligible to testify against a defendant doctor. See earlier posts here and here. The Jacksonville Business Journal has the story.