Friday, June 30, 2017
House Republicans had just enough votes to pass a med mal reform bill on Wednesday. The bill would impose a $250,000 limit on non-economic damages in med mal suits that involve coverage provided through a federal program such as Medicare or Medicaid or to coverage that is partly paid by a government subsidy or tax benefit. In addition, the bill would curb attorneys' fees and impose a three-year statute of limitations (with some exceptions). WaPo has the story.
Thursday, June 29, 2017
A scaled-back version of Lavern's Law, adopting the discovery rule, has passed the legislature in New York. The approved bill is more modest than the proposed bill in two ways. First, it only applies to med mal cases involving cancer. Second, the change is prospective only; there is no one-year window to revive past cases. Thus, the family of the bill's namesake, Lavern Wilkinson, would not be able to sue pursuant to it. Governor Cuomo, who supported the original bill, will review the bill as approved. The Daily News has the story.
Tuesday, June 13, 2017
Monday, June 12, 2017
James Goudkamp has posted to SSRN the Introduction to his book Tort Law Defences. The abstract provides:
The law of torts recognises many defences to liability. While some of these defences have been explored in detail, scant attention has been given to the theoretical foundations of defences generally. In particular, no serious attempt has been made to explain how defences relate to each other or to the torts to which they pertain. The goal of this book is to reduce the size of this substantial gap in our understanding of tort law. The principal way in which it attempts to do so is by developing a taxonomy of defences. The book shows that much can be learned about a given defence from the way in which it is classified.
Friday, June 9, 2017
Yesterday, on equal protection grounds, a sharply divided Florida Supreme Court struck down a 2003 cap on non-economic damages in medical malpractice cases:
“We conclude that the caps on noneconomic damages … arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries,” said the majority opinion shared by Chief Justice Jorge Labarga and justices Barbara Pariente, R. Fred Lewis and Peggy Quince. “We further conclude that because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps … and alleviating this purported crisis. Therefore, we hold that the caps on personal injury noneconomic damages … violate the Equal Protection Clause of the Florida Constitution.”
News 4 Jax has the story.
Wednesday, June 7, 2017
Tuesday, June 6, 2017
New York is one of the few remaining jurisdictions that does not have a discovery rule for its medical malpractice statute of limitations. For the past several years, a bill has been introduced to join the majority of jurisdictions. The bills have been referred to as "Lavern's Law" after Lavern Wilkinson, who died in 2013 after a misdiagnosis of cancer that delayed her treatment by two years. The New York Daily News ran a pro-Lavern's Law editorial yesterday.
Friday, June 2, 2017
James Goudkamp has posted to SSRN The Birth of a Tort: A Practical Perspective on the Tort of Malicious Prosecution of Civil Proceedings. The abstract provides:
The law of torts periodically spawns a new cause of action. For example, Wilkinson v. Downton  2 QB 57 established the tort of wilful infringement of personal safety. The Protection from Harassment Act 1997 created the tort of harassment. Tort law sometimes also grows by absorbing a cause of action that was previously understood to pertain to another branch of the law. Thus, the action in breach of confidence, which was for centuries understood exclusively as a species of equitable wrongdoing, has been acknowledged, at least in cases that involve a breach of privacy as opposed to the divulgement of secret information, as a “tort” (see, e.g., Douglas v. Hello! Ltd  UKHL 21;  1 AC 1  (Lord Nicholls)). The newest addition to the stable is the tort of malicious prosecution of civil proceedings. The Supreme Court recognised that action in its landmark decision in Willers v. Joyce  UKSC 43;  3 WLR 477. In doing so, the Court thereby gave the ancient tort of malicious prosecution of criminal proceedings a sibling. This article addresses the decision in Willers.