Wednesday, July 19, 2017
Monday, July 17, 2017
Citing a story at Law.com, Byron Stier at Mass Tort Profs notes that Judge Jack Weinstein of the Eastern District of New York has been on the bench for over 50 years. Among other contributions, Judge Weinstein is known for his opinions in mass tort cases.
Wednesday, July 12, 2017
There is more data that med mal payouts continue to decline, this time from South Dakota. Payouts in South Dakota for 2016 amounted to $1.8M statewide (for 12 cases), less than half the amount of payouts from 2015. With the small number of cases, such a one-year decline might not mean a lot. Payouts, however, continue a declining trend dating to 1992. The Sioux Falls Argus Leader has details.
Monday, July 3, 2017
Chad McCoy, a Republican state House member and husband of a physician, explains in this article why med mal panels are a bad idea. Like me, he prefers a certificate of merit program. Here's a sample:
“If the panel tells me there’s no negligence, I’m still going to court,” McCoy said, if he has done his homework and thinks there’s a legitimate claim.
“All it does is delay it,” he said. “When you look at Indiana, which has almost the same law, the delays are horrible. It delays cases, on average, about three years.”
Kentucky’s constitution says there can be no “unreasonable delay” in a court case.
The statute also makes cases more expensive because the insurance companies have to hire attorneys to make their arguments before the review panels whether they go to court or not, he said.
The people on the panel don’t make any money. The lawyer who chairs it gets paid in a day about what he could bill for an hour if he were working other cases, and the doctors don’t get paid at all. They’re conscripted.
“The intention is great. Let’s get rid of frivolous lawsuits. Let’s make justice efficient. I’m for all of those things. It’s just unfortunate that this is not the best way to go about it,” McCoy said.
In fact, it may actually result in more, not fewer, frivolous lawsuits, he said.
Currently, there aren’t that many of them in Kentucky despite the all the TV ads for ambulance chasers. That’s because it costs so much to take those cases. The plaintiff’s attorney has to decide if he’ll earn enough to pay the tens of thousands of dollars it costs to get a doctor to testify as an expert witness. In most cases, it isn’t worth it.
“I turn away, on a daily basis, probably four or five medical malpractice cases, not because they didn’t show a mistake, but because the damages weren’t high enough to even get past our fixed costs,” he said.
Now that the new law is in place, however, he and his partner have a couple of cases they intend to file with the cabinet because it won’t cost them anything.
McCoy got out a 2015 edition of the “Kentucky Trial Court Review,” a compendium of court cases, to show that the number of medical malpractice cases has declined steadily since 1998, and most cases don’t result in awards.
“Look at how the number of cases has plummeted over the years,” he said. “It’s almost like this is a solution in search of a problem.”
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, May 25, 2017
Jerry Canterbury, the plaintiff in Canterbury v. Spence, died aged 78 in March. From the NYT obituary:
The ruling, by a federal appeals court in Washington in 1972, declared that before a patient provided informed consent to surgery or other proposed treatment, a doctor must disclose the risks, benefits and alternatives that a reasonable person would consider relevant.
Previously, the onus of soliciting that information had rested with the patient, and any description of risks was provided at the doctor’s discretion. A doctor had been considered negligent only when treatment was administered against the patient’s wishes.
“It would not be an exaggeration to say that the opinion is the cornerstone of the law of informed consent” to medical treatment, “not only in the United States, but in other English-speaking countries, too,” said Prof. Alan Meisel, who teaches law and psychiatry at the University of Pittsburgh School of Law.
(Via Chris Nace at The Legal Examiner)
Wednesday, April 26, 2017
Eric Goldman & Angie Jin have posted to SSRN Judicial Resolution of Nonconsensual Pornography Dissemination Cases. The abstract provides:
Nonconsensual pornography dissemination has emerged as one of the key social issue of the digital age. In response, legislators are rapidly adding new laws to combat it. However, these laws supplement an extensive body of civil and criminal laws that already address many of the same concerns.
To get a better sense of the regulatory scope of the existing laws, we compiled eighty-seven enforcement actions involving nonconsensual pornography disseminations dating back to the 1980s. This compilation provides a useful baseline to critically evaluate any new laws against nonconsensual pornography dissemination.
Tuesday, April 18, 2017
On April 6, the Florida Supreme Court ruled, unanimously, that Congress's decision to regulate, but not ban, cigarettes does NOT preclude tort claims under state law. The court reached the opposite conclusion from a 2015 Eleventh Circuit case, which held tort claims undermine the decision by legislators to keep cigarettes on the market. The Eleventh Circuit is schedule to review its holding en banc, and a final ruling is still pending. Courtroom View Network has the story.
Thursday, April 6, 2017
Chinese tort law is struggling with when and how to recognize what they refer to as "veneration rights," similar to our emotional distress, but with an increased sensitivity to remedies of rehabilitation of reputation and apology. George Conk has coverage at OTHERWISE.
Wednesday, April 5, 2017
At Reason.com, surgeon Jeffrey Singer states he would love tort reform, but he has caveats. First, citing empirical studies, he acknowledges it is unlikely to significantly reduce medical costs. Second, he wants state-based tort reform because he believes federal malpractice reform would be unconstitutional.
Tuesday, April 4, 2017
Mark Lemley & Eugene Volokh have posted to SSRN Law, Virtual Reality, and Augmented Reality, which includes a discussion of tort law. The abstract provides:
Virtual Reality (VR) and Augmented Reality (AR) are going to be big -- not just for gaming but for work, for social life, and for evaluating and buying real-world products. Like many big technological advances, they will in some ways challenge legal doctrine. In this Article, we will speculate about some of these upcoming challenges, asking:
(1) How might the law treat “street crimes” in VR and AR -- behavior such as disturbing the peace, indecent exposure, deliberately harmful visuals (such as strobe lighting used to provoke seizures in people with epilepsy), and “virtual groping”? Two key aspects of this, we will argue, are the Bangladesh problem (which will make criminal law very hard to practically enforce) and technologically enabled self-help (which will offer an attractive alternative protection to users, but also a further excuse for real-world police departments not to get involved).
(2) How might the law handle tort lawsuits, by users against users, users against VR and AR environment operators, outsiders (such as copyright owners whose works are being copied by users) against users, and outsiders against the environment operators?
(3) How might the law treat users’ alteration of other users’ avatars, or creation of their own avatars that borrow someone else’s name and likeness?
(4) How might privacy law deal with the likely pervasive storage of all the sensory information that VR and AR systems present to their users, and that they gather from the users in the course of presenting it?
(5) How might these analyses reflect on broader debates even outside VR and AR, especially order without law and the speech-conduct distinction?
Volokh has also published this column in WaPo.
Monday, April 3, 2017
In Volusia County, Florida, a jury has awarded $8 million to a woman hit by a drunk driver. The plaintiff was represented by Morgan & Morgan. From the press release:
As a result of the crash, Tamara Roundtree sustained extensive injuries, including several disc herniations, requiring her to undergo surgical procedures. She has had to endure a lumbar decompression procedure, after exhausting other more conservative medical measures. She is also in need of a cervical surgical procedure. Ultimately, the total past medical bills at the time of trial were about $188,000.
Large verdicts are often altered on appeal, so it will be interesting to see if this one stands.
Wednesday, March 29, 2017
Defendant was sued after shooting plaintiff's drone out of the sky when it was over defendant's property. Plaintiff sued in federal court claiming the drone was an aircraft, and, thus, under the regulation of the FAA. Senior U.S. District Judge Thomas Russell, based in Louisville, disagreed:
Russell wrote in a March 21 opinion that the suit was essentially a garden-variety state tort claim that should not be in federal court. Although the Federal Aviation Administration has an interest in enforcing regulations governing federal airspace, “its interest in applying those regulations in the context of a state tort law claim for trespass to chattels is limited or nonexistent,” Russell said. At most, the FAA regulations are ancillary issues in the case, he concluded.
ABA Journal has the story.
Thursday, March 23, 2017
A Georgia sperm bank is facing numerous suits based on a donor who was touted as a Ph.D. in neuroscience with an IQ of 160 when he was, in fact, a college dropout with a criminal record and a diagnosis of schizophrenia. The suits, however, have run afoul of a distinction in Georgia law between wrongful birth and wrongful conception. Wrongful birth claims normally arise when the parents contend they would have aborted the child if they had been fully aware of the child's condition. By contrast, wrongful conception claims generally arise when a sterilization or abortion procedure goes wrong and a live birth unintentionally results, allowing a plaintiff to recover for medical expenses, pain and suffering and other claims. Georgia courts recognize the latter, but not the former; courts are finding the claims to be of the disfavored wrongful birth variety.
The judge dismissing the most-recent claims stated: "The reason why Georgia courts have looked on wrongful birth claims with disfavor is not because of the timing of the tort or the causal link between the defendant and the harm. The true difference between the two torts is the measure of damages. Wrongful birth claims are disfavored because they require the court to decide between the value of a life with disabilities and the value of no life at all."
The National Law Journal has the story.
In related news, the Texas Senate has voted 21-9 to abolish that state's wrongful birth cause of action. Thanks to Jill Lens for the tip.
Thursday, March 16, 2017
Tuesday, March 7, 2017
Monday, March 6, 2017
Attorneys representing the families of the children slain at Sandy Hook attempted to fit their allegations within an the negligent entrustment exception to the 2005 Protection of Lawful Commerce in Arms Act. Their case was dismissed, and now they are appealing to the state supreme court. The attorneys rely on a 1977 Michigan case:
The families attorneys are hoping a case involving a slingshot injury in Michigan will help them prove that one of the largest gun manufacturers in the world negligently entrusted the AR-15 to Lanza even though he didn't actually purchase it and help them overcome PLCAA's strict language favoring the gun manufacturers.
The case in Michigan was a 1977 lawsuit by the family of a 12-year-old against a company that manufactured slingshots. The boy was injured when he was struck in the eye by a pellet fired from a slingshot that richocheted off a tree.
The court allowed the case to go before a jury ruling that the company entrusted the slingshot to a class of people, in this case younger children, that made the ultimate accident foreseeable.
In this case, Koskoff argued instead of a slingshot Remington used marketing and product placement to purposefully target a "younger demographic of users" interested in the most dangerous and lethal use of their weapon.
The Hartford Courant has the story.
Thursday, March 2, 2017
Last month, the New York Court of Appeals ruled that a substance abuse treatment facility was not responsible for an assault perpetrated by one of its former residents, shortly after he left the facility:
According to the court’s written opinion, penned by Justice Sheila Abdus-Salaam, the appellate court found that “JCAP had some control or authority over its residents while they remained participants of the program. But JCAP residents could leave the facility and terminate their participation in the program against medical advice… In the absence of the authority to prevent a participant from leaving, it follows that, when a participant is discharged from JCAP for violating facility rules, or withdraws from the program, he or she is no longer under the facility’s control.”
Legal NewsLine has the story.
Wednesday, March 1, 2017
Bruce Kaufman at Bloomberg has a 3-part series on federal litigation reform 2017. The first 2 pieces are available:
Wednesday, February 22, 2017
The jurisdictions wrestle with the line between battery and negligence, especially negligence based on informed consent. The Virginia Supreme Court just drew the line in a case in which a physician fused the wrong level on the patient's spine (C-6 and C-7 instead of C-5 and C-6). The court ruled this was an issue of negligence, not battery:
In the case of battery, there has been precedent that defines it as any unwanted bodily contact or the consent of the patient. Whereas the tort of negligence has been set up to ensure individuals act with reasonable care. As well, in battery there is the question of intent whereas intent is not a consideration in negligence.
“These considerations lead us to conclude that a physician is not liable for battery unless the plaintiff establishes a prima facie case that the physician performed an operation ‘against the patient’s will or substantially at variance with the consent given,’” according to the court's opinion.
The court also concluded that whether or not Mayr disclosed the risks involved with the surgery will also fall under the tort of negligence.
“When a patient has consented to surgery but complains that the physician has not disclosed certain risks, the dispositive question is whether the physician breached the standard of care by failing to disclose those risks. Breach of the standard of care falls within the realm of negligence and does not constitute an intentional tort,” the opinion states.
Forbes has the story.