Thursday, December 18, 2014
Back in July, I posted about a case in front of the Pennsylvania Supreme Court over whether the statutory component of bad faith is assignable. The issue, specifically, was whether the statutory bad faith remedies, sounding in tort, are, like the common law bad faith contract action, assignable. On Monday, the court answered in the affirmative. The court stated:
We recognize that the policy considerations (which are ably developed in the
arguments of the litigants and their amici) are mixed in character. On balance,
however, we find that consideration of the occasion and necessity for Section 8371, the
object to be attained, the previous legal landscape, as well as the consequences of our
interpretation, favor Wolfe’s position. Centrally, we simply do not believe the General
Assembly contemplated that the supplementation of the redress available for bad faith
on the part of insurance carriers in relation to their insureds would result either in a
curtailment of assignments of pre-existing causes of action in connection with
settlements or the splitting of actions. Certainly, if we are incorrect in our assessment in
this regard, the General Assembly may seek to implement curative measures pertaining
to future cases, subject to constitutional limitations.
Widener alumnus Scott Cooper co-authored an amicus brief, cited in the opinion, on behalf of the Pennsylvania Association for Justice.
Monday, December 15, 2014
A California appellate court has concluded there is no duty on the part of a premises owner to warn of take-home asbestos dangers. The court was concerned about "limitless liability." A dissenter argued the Rowland factors establish a duty. Legal Newsline has the story.
Monday, December 8, 2014
A family with a 5-year-old son was staying in a second-floor room at a hotel in La Jolla. The mother had asked for a ground-floor room, but none were available. The family opened the window to hear the ocean. While they were distracted, their son pushed through the screen, fell to the ground, and suffered serious injuries. The hotel had safety bars in many of the windows, including other windows in the same room, but not at the particular window through which the child fell.
The parents filed suit alleging premises liability. The hotel filed a motion for summary judgment and the trial court granted it. The Court of Appeal, Fourth Appellate District reversed. The court held the hotel had failed to carry the burden on summary judgment that it had no duty. The court found such an incident was reasonably foreseeable and, in the process, indicated that compliance with building codes was essentially irrelevant. The opinion is here. JD Supra comments here.
Monday, December 1, 2014
As part of the overhaul at the VA, a website is being created so veterans can check if their doctors have ever been sued for malpractice and found at fault. CBS Los Angeles has the story, including data that is not surprising given this story from last year.
Thursday, November 27, 2014
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.
Thursday, November 20, 2014
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.
Monday, November 17, 2014
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.
Monday, November 3, 2014
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.
Thursday, October 30, 2014
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.
Friday, October 24, 2014
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.
Thursday, October 23, 2014
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.
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.
Thursday, October 16, 2014
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.
Wednesday, October 15, 2014
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.
Friday, October 10, 2014
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).
Wednesday, October 8, 2014
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.
Tuesday, September 30, 2014
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.
Friday, September 26, 2014
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.
Wednesday, September 24, 2014
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.
Sunday, September 21, 2014
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.