Wednesday, April 18, 2018
In 2011, a Wisconsin woman had all four limbs amputated. A jury determined health care providers were responsible by negligently failing to diagnose an infection and awarded her $25.3M. The non-economic damages portion of the award was approximately $16.5M. WI has a med mal cap on non-economic damages of $750,000. The trial judge ruled the cap was unconstitutional as applied to the plaintiff's case. The intermediate appellate court went further and ruled the cap was unconstitutional. Tomorrow the Wisconsin Supreme Court hears arguments in the case. The Milwaukee Journal Sentinel has the story.
Tuesday, April 10, 2018
The AP's John Seewer has a piece about ride inspectors and liability; the upshot is that states generally protect inspectors and they are almost never included as defendants. This is often done via immunity, public duty rule, or both. The Ohio Fair deaths last summer are a striking example because the ride had been inspected hours prior to the incident.
Updated: A relevant paper from this blog's founder, Bill Childs, from 2006.
Friday, April 6, 2018
In The Regents of the University of California v. Superior Court, 2018 Cal.LEXIS 1971 (March 22, 2018), the Supreme Court of California held that universities have a special relationship with their students and a duty to protect them from foreseeable violence during curricular activities. Thanks to Robert Bohrer for the tip.
Wednesday, March 28, 2018
The same grand jury that indicted the park and former director of operations with numerous felonies has indicted the park's owner and ride designer with reckless second-degree murder:
According to the indictments, Henry [owner] decided in 2012 to build the world's tallest water slide to impress the producers of a Travel Channel show. Henry's desire to "rush the project" and a lack of expertise caused the company to "skip fundamental steps in the design process."
The indictment said, "not a single engineer was directly involved in Verruckt's dynamic engineering or slide path design." The indictment said that in 2014, when there were news reports emerging about airborne rafts, a company spokesperson "discredited" them and Henry and his designer began "secretly testing at night to avoid scrutiny."
The indictment listed 13 injuries during the 182 days the ride was in operation, including two concussions. In one of those cases, a 15-year-old girl went temporarily blind while riding.
The Chicago Tribune has the story.
Monday, March 26, 2018
Schlitterbahn Waterpark of Kansas City has been charged with criminal behavior in the death of 10-year-old Caleb Schwab according to WaPo:
Schlitterbahn and Tyler Austin Miles, former director of operations, have been charged with involuntary manslaughter and several counts of aggravated battery, aggravated endangering a child and interference with law enforcement. Investigators say the company knew the waterslide was unsafe and could result in injuries and deaths, but still rushed to open it to the public. Perhaps more disturbing is the allegation that several injuries, from neck pain to concussion, had already occurred before Caleb’s death. Still, investigators allege, Schlitterbahn and Miles kept the ride open to the public — and even hid reports of those injuries and other alarming safety problems from law enforcement officers who were investigating the boy’s death.
Thursday, March 1, 2018
The Supreme Judicial Court of Massachusetts has ruled that the Massachusetts Tort Claims Act insulates school districts from paying damages for injuries suffered by victims of bullying. The case was filed on behalf of a bullied 4th grader who eventually was pushed down the stairs and suffered permanent paralysis. The Boston Globe has the story.
Tuesday, January 30, 2018
The state legislature and Governor Cuomo have reached a deal on Lavern's Law, the only bill remaining from the last session on which Cuomo has taken no action. The Daily News reports:
Gov. Cuomo and state legislative leaders have struck a deal for the medical malpractice bill known as Lavern’s Law to be signed into law.
Cuomo plans to sign the bill this week, after the Legislature votes to amend the version it passed in June. The bill would start a 2 1/2-year window to bring malpractice cases involving cancer when the patient discovers the error. Currently, the clock starts when the mistake occurs — meaning patients may lose their chance to sue before they even find out there’s been an error.
Under the amended version, people whose statute of limitations ran out in the last 10 months will get a six-month window to sue. The bill the Legislature passed offered a window for cases going back seven years.
The changes also make it more clear that the new rules apply only to cancer, not other illnesses.
The full article is here.
Thursday, December 21, 2017
On Tuesday, the Wyoming Supreme Court recognized intrusion upon seclusion. According to the opinion, there is now only one jurisdiction in the U.S. that has not taken a stand on the invasion of privacy torts. Of the other 48 states, only 2 have explicitly refused to adopt intrusion upon seclusion. The case involved allegations that a rent-to-own company installed software on laptops without plaintiffs' knowledge. The software allegedly could be used to remotely access the laptops’ cameras, capture the content of the laptops’ screens and log keystrokes entered on the laptops. KPVI has the story.
Wednesday, December 13, 2017
Tuesday, December 12, 2017
A Columbus, GA woman brought suit against a hospital and one of its physicians based on an allegedly botched neck surgery. After the surgery, among other injuries, the plaintiff went blind, suffered brain damage, and was confined to a wheelchair. Following a two-week trial, the jury awarded $26 million in damages. The Ledger-Enquirer has the story.
Monday, November 27, 2017
Gregory Parks (Wake Forest) has a piece in The Huffington Post about the tort duties of fraternities and sororities with regard to hazing. The issue is relevant in Pennsylvania due to the February death of a pledge at a Penn State fraternity. Stacy Parks Miller, the Centre County District Attorney, has been aggressive in prosecuting numerous members of the now-defunct fraternity where the death occurred. The pledge is on tape (the tape having been recovered by the FBI after allegedly being deleted by a fraternity member) being given 18 drinks in 82 minutes. Other footage shows fraternity members not seeking help during the course of an entire night for the unconscious pledge who suffered several falls.
Parks focuses on tort law. After discussing custom in the "industry," Parks continues:
Regarding hazing, fraternities and sororities have reached a point—and probably did so long ago—when what is expected of them should be heightened. No longer should they be able to say that they’ve done their best or that their approaches are consistent with others in their industry. At its most basic level, what should be expected of fraternities and sororities is that they have harnessed, internalized, and employed the totality of research on hazing. They must also engage with hazing researchers and consultants who employ hazing research and hazing prevention best-practices. You can’t say that you’ve adequately attempted to address hazing and are grossly ignorant of the research on the topic and haven’t engaged with those grappling with the issue.
Friday, November 24, 2017
PA: Federal Judge Issues Preliminary Injunction to Prevent State from Dissolving Med Mal Insurer and Taking its Money
Two weeks ago, I reported that the Commonwealth of Pennsylvania was attempting to use surplus funds from a med mal insurer that was created by state law, but was not a part of state government. Pennsylvania, trying to balance its budget, passed a law requiring the Pennsylvania Professional Liability Joint Underwriting Association (JUA) to turn over $200M of a $268M surplus by December 1. If it fails to comply, the law abolishes the JUA and transfers its money to the Department of Insurance. Now Judge Christopher Conner has issued a preliminary injunction barring the state from carrying out that action. The judge's order puts the issue on hold until a federal trial can be held. PennLive has the story.
Friday, November 17, 2017
PA: State Senator Introduces Bill Banning Non-disclosure Agreements in Sexual Assault and Harassment Cases
Sen. Judy Schwank introduced a bill in the Pennsylvania Senate designed to prevent sexual offenders from settling cases without exposure:
Schwank's proposal, rolled out at a Capitol press conference Wednesday, would bar any contract or out-of-court settlement from containing provisions that:
* Prohibit disclosure of the name of any person suspected of sexual misconduct or any information relevant to a claim.
* Would block reports of such claims to an "appropriate person."
* Requires the destruction or expungement of related evidence.
The bill would, however, grant a shield of confidentiality to victims making allegations of abuse, giving them rights similar to juveniles in a child welfare case who can have cases brought through their initials or other identifiers.
California is the only state with such a law. Opponents argue the bill would discourage defendants from settling these cases.
Pennlive has details.
Thursday, November 16, 2017
One woman from Florida and one from California filed suit against Uber on Tuesday in federal court in San Francisco. The women alleged they were sexually assaulted by Uber drivers and the cause was inadequate background screening and monitoring by Uber. The suit seeks class action status, and:
It asks the court for unspecified damages to compensate the women, and also seeks court-ordered safety measures including fingerprint background checks for drivers and a panic button on the Uber app that would alert the company and authorities to safety problems.
The lawsuit was filed by the New York firm Wigdor LLP, which is suing Uber in a separate case on behalf of a woman who was raped by an Uber driver in India. The firm also is suing Fox News on behalf of employees who allege race discrimination and sexual harassment.
The New York Post has the story.
Friday, November 10, 2017
The Pennsylvania Professional Liability Joint Underwriting Association (JUA) was created by state law in 1975, but the entity is not a part of state government. The JUA was founded as a last-ditch insurer for doctors at a time when malpractice insurance was in the first of several cyclical crises. It has a surplus of $268M. Pennsylvania, trying to balance its budget, passed a law requiring the JUA to turn over $200M of the surplus by December 1. If it fails to comply, the law abolishes the JUA and transfers its money to the Department of Insurance. The JUA has sued Governor Tom Wolf in federal court, asserting the seizure is an unconstitutional deprivation of property without due process of law. The Inquirer has details.
Thursday, November 9, 2017
At Politico, John Culhane analyzes the potential case against the federal government for the failure to enter the shooter's domestic violence conviction in a national database that would have prevented him from legally purchasing a gun.
Tuesday, November 7, 2017
Wednesday, November 1, 2017
Earlier this year, the Kentucky legislature passed a law requiring med mal cases to go through a panel of doctors prior to going to trial. A state judge ruled Monday the law was unconstitutional and issued an order banning the state from enforcing the law. The state has announced it will appeal the ruling.
WKMS has details.
Tuesday, October 31, 2017
Friday, October 27, 2017
The Oklahoma Supreme Court has ruled the state's med mal certificate of merit requirement unconstitutional. This is the third time the court has rejected a certificate of merit requirement, striking down laws in 2006 and 2013.
The court says the statute created "a costly, meaningless and arbitrary barrier to court access" and infringed on the district court's authority.
U.S. News has the story.