Wednesday, March 4, 2015
In Iowa, the medical community and trial lawyers have agreed to a voluntary early resolution program for medical malpractice cases; a Senate subcommittee has recommended passage. The bill's "Explanation" section provides:
This bill allows a physician, or a physician jointly with a health facility, to engage in an open, confidential discussion with a patient related to an adverse health care incident.
If an adverse health care incident occurs, the bill allows a physician, or a physician jointly with a health facility, to offer to engage in an open discussion with the patient. The notice of an offer to engage in an open discussion must be sent to the patient within 180 days after the adverse health care incident. If the patient agrees to proceed with an open discussion, the physician or health facility may investigate the adverse health care incident, disclose the results to the patient, and discuss steps the physician or health facility will take to prevent similar adverse health care incidents. The physician or health facility may also communicate to the patient that either the physician or health facility has determined that an offer of compensation is not warranted or that an offer of compensation is warranted. An offer of compensation may be conditioned upon the patient executing a release of future liability as to the adverse health care incident. All communications made under the Code chapter are privileged and confidential, are not subject to discovery, subpoena, or other means of legal compulsion for release, and are not admissible in evidence in a judicial, administrative, or arbitration proceeding.
The Gazette has the story.
Tuesday, March 3, 2015
Last year, Georgia debated becoming the first state in the country to reform med mal along the lines of workers comp. The bill failed. Sen. Brandon Beach is introducing a similar bill, Senate Bill 86:
Under the proposal, the new system will be governed by an 11-person panel consisting of physicians, attorneys, accountants and patient advocates. The board will set maximum injury compensation rates and approve medical review panelists.
Complaints will be handled by independent panels, comprised of representatives from practices or specialty areas similar to the provider. If a claim is found to have merit, the plaintiff will receive a monetary award to be determined by a compensation committee.
NeighborNewspapers.com has the story.
Monday, March 2, 2015
I have posted to SSRN my contribution to the Journal of Tort Law's Jeffrey O'Connell tribute. Entitled Party Autonomy in Tort Theory and Reform, the abstract provides:
Tort theory has been dominated by a debate between scholars who view tort law as rooted in individualized justice and scholars who argue tort law is an instrument of social policy. This dialogue has distracted scholars from the more important issue of how to properly separate cases worthy of individualized justice treatment from those better suited to routinized resolution. Tort law already contains both types. One potentially fruitful method of separation is to empower the parties themselves to make the decision. They could do so by voluntarily trading liability for the elimination or substantial reduction in non-economic damages. Such an approach honors individualized justice by leaving the parties in control of the case and, if used, would increase both compensation and administrative efficiency, arguably without a reduction in the deterrent effect. Although the purpose of this article is not to design the ideal proposal(s) to embody such an approach, Jeffrey O’Connell has given us several models to begin our deliberations. It is only the latest contribution in his impressive legacy.