TortsProf Blog

Editor: Christopher J. Robinette
Widener Univ. School of Law

A Member of the Law Professor Blogs Network

Thursday, November 27, 2014

CA: Supreme Court to Review Constitutionality of Med Mal Damages Cap

Less than a month after voters rejected raising the $250,000 med mal damage cap in California, the state's high court is going to review whether the cap is constitutional.  Insurancenewsnet.com has the story.

November 27, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2014

PA: Justices Urged to Ban Informed Consent Forms from Strict Med Mal Trials

On Tuesday in Harrisburg, the justices heard arguments over whether informed consent forms should ever be admissible in strict med mal cases (those without allegations of informed consent violations).  Plaintiff's lawyer argued the forms could be used in a prejudicial way to insinuate that consent for the procedure included consent to risks caused by negligence.  Defense lawyer responded that the form could be relevant depending on the facts of the case.  Chief Justice Castille indicated that, for him, the case came down to the fact that a patient cannot consent to negligence.  Seven jurisdictions have adopted a blanket ban of informed consent forms in strict med mal cases; Pennsylvania will decide whether to become the eighth.  The Legal Intelligencer has the story.

November 20, 2014 in Current Affairs, Documents | Permalink | Comments (0) | TrackBack (0)

Monday, November 17, 2014

Postmortem on Prop 46

The LA Times has a postmortem on Prop 46, which was defeated by over 2/3 of the vote and in every single California county.  The piece examines the politics of raising the med mal cap in a blue state. 

November 17, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, November 3, 2014

MD: Reaffirms No Duty to Warn Rule

In May v. Air & Liquid Systems Corp., the Court of Special Appeals of Maryland reaffirmed the rule that there is no duty to warn of asbestos-containing replacement parts that defendants did not manufacture or place in the stream of commerce.

JDSupra has coverage here.

November 3, 2014 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Thursday, October 30, 2014

Engstrom, Rabin & Mello on Prop 46

Nora Engstrom, Bob Rabin & Michelle Mello (Stanford) published an op-ed in Tuesday's LA Times entitled "What Prop 46 Would Fix."  They respond to arguments against adjusting the med mal non-economic damages cap to reflect inflation since 1975, and then provide reasons in favor. 

October 30, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, October 24, 2014

Eric Andrist: Pro-Prop 46

EricCali

 

Proposition 46 on California’s November ballot takes three steps to improve patient safety. While the doctors, hospitals and medical malpractice insurance companies that have spent tens of millions of dollars to oppose this initiative love to say it’s about making more money for trial lawyers, what it’s really about is the safety of all of us who live here. Because any of us could be killed, maimed or disfigured by medical negligence. Any of us could be harmed by a doctor impaired by drugs or alcohol. Any of us could have our lives turned upside down by the actions of a doctor-shopping prescription drug addict who received too many pills from too many doctors.

Of course no one thinks it will happen to them. I didn’t think it would happen to me. Until it did.

Both my elderly mother and my mentally retarded sister died from medical negligence at the same prestigious Los Angeles hospital where actor John Ritter died and his family sued/settled for millions of dollars. Actress Alicia Cole also went to this hospital for a routine surgery and ended up contracting “Flesh Eating Disease” there and almost died.  After my sister’s horribly painful death, I turned to the legal system to hold those who treated her accountable and try to prevent other families from going through the same nightmare. You can see a bit about my sister’s story at http://goo.gl/sni513.

But attorney after attorney I approached told me they wouldn’t take the case, despite its merits. That’s because my sister, who was unable to work because of her disability, had no income. She never married and had no children. (I was her full-time caregiver.) And because she was dead, there were no ongoing medical bills to pay.

It wasn’t until I started trying to pursue justice in this case that I learned California has a law, enacted in 1975 and never changed since, that limits compensation for medical malpractice cases like hers to $250,000. And while that amount has been frozen for almost 40 years, the cost of taking a case to trial hasn’t – a good chunk of that cost being the enormous hourly fees paid to doctors as expert witnesses. So after the trial costs have been deducted from the $250,000, the victim’s attorney gets a percentage of the balance, a percentage that’s also limited on a sliding scale by state law. That amount is their compensation for what is often years of work on the case (these lawyers don’t receive hourly fees and don’t get a penny until their client wins an award).

Keep in mind the doctors and hospitals face no limits on what they can spend on their legal defense. In the face of that, most lawyers will look at the potential return on a case like mine where the damage award is capped and say it’s simply not worth it.

I don’t blame them. I blame the law that put them in that position in the first place.

Continue reading

October 24, 2014 in Current Affairs, Guest Blogger, Legislation, Reforms, & Political News | Permalink | Comments (1) | TrackBack (0)

Thursday, October 23, 2014

Debating Prop 46

One of the biggest events in tort law this fall is Prop 46, the California ballot initiative over whether to raise the MICRA cap on non-economic damages in med mal cases (set in 1975 at $250,000 and not raised since).  I have contacted both pro- and anti-Prop 46 spokespeople and asked them to write a post supporting their respective positions.  Eric Andrist is a leading voice in the pro-Prop 46 movement.  His post will appear tomorrow.  I have reached out several times to the California Medical Association, and I am still hoping to receive a post from them.

October 23, 2014 in Current Affairs, Guest Blogger, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 21, 2014

GA: Parents May Be Liable for Negligent Supervision in Failure to Have Child Take Down Fake Facebook Page

On October 10, the Court of Appeals of Georgia allowed a claim to go forward against the parents of a middle-school-aged child who created a fake Facebook page for a classmate and posted defamatory statements.  In Georgia, parents have a duty to supervise their children with regard to conduct that poses an unreasonable risk of harming others.  The court's decision was based on the fact that the parents did not compel their child to take down the fake Facebook page after they became aware of it.  The page remained up for approximately 11 months after the parents learned of its existence.  The case is Boston v. Athearn

Thanks to Mark Weber for the tip.

October 21, 2014 in Current Affairs, Web/Tech | Permalink | Comments (1) | TrackBack (0)

Thursday, October 16, 2014

SC: $97M Verdict in Officer Shooting Death Case

Yesterday, a federal court in Charleston awarded the family of the former mayor of Cottageville, SC $97M for his shooting death at the hands of a police officer.  The award includes $7.5M in compensatory damages, $60M in punies against the town, and $30M in punies against the officer.  The State has the story

Thanks to Susan Raeker-Jordan for the tip.

October 16, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

Med Mal Insurance Premiums Fall Again

For the seventh straight year, med mal insurance premiums have dropped for 3 bellwether specialties:  ob/gyn, internists, and general surgeons.  Rates dropped by approximately 1.5% for the specialties combined.  Since 2008, rates for the 3 specialties have fallen by approximately 13%.  The survey found that internists in 8 states can obtain insurance for less than $5,000.  On the other end of the spectrum, ob/gyns in Nassau and Suffolk Counties in New York must pay $214,999 for a policy.  One reason for the premium decline is the decline in claims per physician, regardless of outcome.  Moreover the amount of awards and settlements has remained flat.  Medscape has the story.

October 15, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, October 10, 2014

TX: Ebola Lawsuit Unlikely

Thomas Eric Duncan died of Ebola in Texas on Wednesday.  Several news stories have discussed the possibility of success of a hypothetical med mal suit in the case.  Experts consider it unlikely.  Texas has a "willful and wanton" standard for liability in emergency medicine cases; it also has a cap on non-economic damages.  As a result, a case is not likely attractive to plaintiffs' lawyers.  This would be especially true given the difficulty of proving causation:  Ebola has no known cure.  Stories are here:  NBC News (quoting Charles Silver and Seth Chandler); EaglefordTexas.com (quoting Joanne Doroshow, Silver and Dallas plaintiffs' lawyer, Les Weisbrod).

October 10, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 8, 2014

NJ: Non-Customer of Bank Cannot Bring Negligence Claim for Improper Transfer

In a matter of first impression, the New Jersey Supreme Court held that a non-customer of a bank can't bring a common law negligence claim for an improper money transfer made by over the Internet.  The court held the legislature intended New Jersey's version of UCC 4A to create the exclusive remedy for an alleged breach of duty when a bank makes an electronic funds transfer.

(Via JDSupra)

October 8, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 30, 2014

Drones and Tort Law

A recent Volokh Conspiracy column analyzed the applicability of various existing laws to the increasing use of drones.  Discussed are:  intrusion upon seclusion, publication of private facts, battery, assault, negligence, trespass, and nuisance.

September 30, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, September 26, 2014

PA: AG's Office Invokes Victim Fault in Rape Suit

A 24-year-old typist at a prison in Bellefonte, PA was brutally raped last year by one of the inmates.  The inmate had been convicted three times previously of sex-related crimes and then transferred from a different prison for assaulting a female employee there.  Despite this, the inmate had access to the typist's office, even after she states she complained to her bosses about the inmate's behavior toward her.  The victim filed suit in federal court against the state Department of Corrections and several individual employees.  The AG's office, charged with defending the lawsuit, included in the answer the allegation that the woman "acted in a manner which in whole or in part contributed to the events."  In essence, the AG's office was pleading comparative fault, resulting in a political firestorm.  The issue was covered on CNN and the Attorney General herself felt compelled to address the filing

The best defense of the allegation is that it was necessary to preserve a defense of comparative fault for trial.  A lawyer has to defend his or her client and FRCP 8 requires the pleading of, among other things, contributory negligence.  It seems to me, however, that this should have been handled differently.  Given:  (1) the sensitive nature of the plaintiff's complaint; (2) the fact that Rule 15 allows liberal amendments; and (3) the fact that the DA in the county fully supported the typist and successfully prosecuted the inmate for rape, apparently without uncovering any evidence that the she contributed to the attack on herself, this allegation should not have been included in the answer. 

September 26, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 24, 2014

PA: General Liability Coverage Providers Must Defend Products Claims

Last week, the Pennsylvania Supreme Court refused to hear an appeal from a Superior Court ruling, leaving in place a holding that general liability coverage providers are required to defend products claims brought against their policyholders.  In a series of cases filed against door and window manufacturers, the Superior Court held that because the company's allegedly defective products allegedly led to other damaged property as well as personal injuries, there were "occurrences" under the policy:

In issuing its opinion, the Superior Court specifically rejected the application of the “gist of action” theory to bar tort claims in insurance coverage disputes. In Pennsylvania law, the doctrine serves to prevent plaintiffs from reshaping breach of contract claims into tort claims.

“Ultimately, because the gist of the action doctrine has never been adopted by our Supreme Court in an insurance coverage context, we are convinced that, at this juncture of a duty to defend claim, applying the gist of the action doctrine is inappropriate,” Judge Shogan said.

Law 360 has the story.

September 24, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, September 21, 2014

Study: Cost of Defensive Medicine 2.9% of Healthcare Costs

A study with a lead author from the Cleveland Clinic, published in JAMA Internal Medicine, concludes that purely defensive medicine accounts for 2.9% of U.S. healthcare costs.  The study is available for purchase here.  The L.A. Times's "The Economy Hub" discusses the study here.

September 21, 2014 in Current Affairs, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 16, 2014

IL: Stay in the Crosswalk!

The First District Appellate Court of Illinois determined the City of Chicago owed no duty to a pedestrian who broke his foot in a pothole that was a few inches outside of a crosswalk.  The pedestrian was apparently straddling the line, partially in and partially out of the crosswalk.  The court applied settled law that municipalities have a duty to keep streets reasonably safe for pedestrians only in those areas in which pedestrians are permitted to walk.  The National Law Review has the story.

September 16, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, September 15, 2014

PA: No Duty Because No Foreseeability

In April 2012, a woman was taken to an ER and voluntarily admitted based on a suicide attempt.  She later slipped out of the hospital, walked through the woods, and rolled into traffic on a nearby bridge.  She was struck and killed by a car; a father was driving and his (then-juvenile) daughter was a passenger.  The father and daughter filed suit against the hospital for emotional distress.  The trial judge held the hospital had no duty to the plaintiffs based on a lack of foreseeability.  The Superior Court affirmed the judge's decision.  Now the Pennsylvania Supreme Court has refused to consider the appeal.  Pennlive has the story

September 15, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Poll: Support for Prop 46 "a mile wide and an inch deep"

A new USC Dorsife/LA Times poll found support for Prop 46 " a mile wide and an inch deep."  When likely voters were polled on Prop 46, 61% supported it, 29% opposed it, and 10% were undecided/refused to answer.  When those surveyed heard both sides' main arguments, the numbers shifted to 37% in support, 50% opposed, and 12% undecided/refused to answer.  The LA Times has the story.

September 15, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 10, 2014

Third Circuit Revives Fraud Claim Against Attorneys

Last week, the Third Circuit revived a fraud claim alleging BASF Catalysts, Inc. took part in systematic fraud with the help of its attorneys Cahill Gordon & Reindel to hide the existence of asbestos in its products.  The case has been remanded for further proceedings.  The Washington Examiner  has the story.

September 10, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)