Friday, July 26, 2013
In Wednesday's LA Times: "Big-bucks battle shaping up over bid to raise malpractice award limit"
Thursday, July 25, 2013
In 1975, California enacted one of the most influential tort reforms (MICRA), and it included a $250,000 cap on noneconomic damages in med mal cases. The cap was not indexed to inflation and has remained in place for nearly 40 years. There is a movement to get a measure on the 2014 ballot to raise the cap. Starting in September, proponents will attempt to collect the 400,000 signatures of registered voters needed to get the measure on the ballot. KPBS has details.
Wednesday, July 24, 2013
Jean Eggen (Widener) has posted to SSRN Medical Malpractice Screening Panels: An Update and Assessment. The abstract provides:Many states enacted screening panel statutes as part of their medical malpractice reform packages. Studies on the effectiveness of medical malpractice reforms are inconclusive at best due to insufficient data and conflicting results. Recent federal healthcare reform largely ignored medical malpractice litigation. Observers concluded that screening panels might not deliver the anticipated systemic results. Many states remain committed to medical malpractice reforms, including screening panel statutes, which have undergone state constitutional challenges and mostly survived, although the challenges persist. One controversial provision in some panel statutes is the admissibility of panel findings in a subsequent trial. A recent New Hampshire Supreme Court case provides renewed heft to arguments against admissibility. This article emphasizes the need for an updated and broad-based empirical study of medical malpractice claims, but concedes that such a study may not be forthcoming. It concludes that states with screening panels should encourage judicial efficiency through pretrial resolution of actions and offers provisions to assist in this process.
Tuesday, July 23, 2013
Alan Calnan (Southwestern) has posted to SSRN Defenseless Self-Defense: An Essay on Goldberg & Zipursky's Civil Recourse Defended. The abstract provides:In a recent symposium issue published by the Indiana Law Journal, Professors John C. P. Goldberg and Benjamin C. Zipursky provide a spirited defense of their theory of civil recourse, which sees the tort system exclusively as a means of empowering victims of wrongs. This essay assails that defense, finding it curiously defenseless in two related respects. First and most obviously, civil recourse theory lacks any meaningful explanation of the defensive rights at play within the tort system. Second and more importantly, Goldberg & Zipursky’s theory is inescapably indefensible because it cannot cure this omission without simultaneously self-destructing. When recourse meets defense, it is transformed into competition. This competitive framework precludes the antithetical enablement interpretation of civil recourse. By counterbalancing rights, tort does not take sides. It mediates and moderates the parties’ polar positions.
Goldberg & Zipursky misunderstand this unique human institution because they completely disregard human nature. People possess a conflicted mix of instinct and rationality mediated by a constant yearning for reconciliation and balance. This triune nature permeates our cultural artifacts, including our laws. Indeed, as this essay will show, it accounts for much of the history, substance, and structure of the tort system. Though broadly drawn, this extraordinary consonance bears further investigation. But to discover tort’s inner truth, we cannot continue searching with blinkered perspectives like civil recourse theory. Instead, we must open our eyes to the law’s deepest foundations.
Monday, July 22, 2013
The Litchfield County Times (CT) has an article about Ralph Nader's plans for a tort museum in the small town of Winfield, Connecticut (Nader's hometown). Nader has been discussing building the "American Museum of Tort Law" in his home town since the 1990s. He recently purchased the former Winsted Savings Bank building for the musuem, and renovations are scheduled to begin in August. Nader states that he plans to have the museum open within the next two years.