Monday, March 30, 2015
Last week, Florida adopted new model jury instructions for products cases. On design defects, there is a split in Florida circuits between the consumer expectations and risk-utility tests; the instructions do not resolve the split. Newsome Melton's website has more details here.
Friday, March 27, 2015
Back in November, I reported that the Pennsylvania Supreme Court was deciding whether to become the eighth state to completely ban informed consent evidence from a traditional med mal trial. The plaintiff's lawyer argued that the informed consent could be used in a prejudicial way to insinuate that consent to the procedure amounted to consent to risks of negligence. The court declined to adopt a bright-line rule excluding informed consent evidence and overruled a contrary Superior Court ruling. The court, however, through Chief Justice Saylor, emphasized that informed consent and traditional med mal cases are very different:
The fact that a patient may have agreed to a procedure knowing its risks does not speak to whether the doctor fell below the standard of care in performing that procedure, Saylor said.
"Put differently, there is no assumption-of-the-risk defense available to a defendant physician which would vitiate his duty to provide treatment according to the ordinary standard of care," Saylor said. "The patient's actual, affirmative consent, therefore, is irrelevant to the question of negligence."
So, like with Brady's complaint, when a malpractice complaint only asserts negligence, and not a lack of informed consent, evidence of informed consent should be excluded, Saylor said.
Saylor noted that a jury could be confused by informed consent and conclude the plaintiff consented to the injury.
The court thus held that evidence of informed consent is "generally irrelevant to a cause of action sounding in medical negligence."
The court was unwilling to take the next step and hold evidence of informed consent is never admissible in a traditional med mal case. The Legal Intelligencer has the story.
Wednesday, March 25, 2015
CA: Failing to Pay Prevailing Wages May Be Intentional Interference with Prospective Economic Advantage
A California Court of Appeal has held that a second-place bidder on a public works contract may sue the first-place bidder for failure to pay prevailing wages pursuant to the business tort of intentional interference with prospective economic advantage. Garret Murai at JD Supra has the details.
Wednesday, March 18, 2015
On March 6th, Sharon McQuown addressed the ABA's Health Law Section on emerging issues in health care law and discussed the impact of EHR (electronic health records) on med mal litigation. Specifically, she discussed how the design of EHR could have helped avoid the misdiagnosis of Ebola in a Texas hospital. Shortly after the patient died, the hospital instituted EHR changes, including:
- Adding a new tool in the EHR requiring a "hard stop confirmation" by the physician that he/she had been told that the patient had recently been to a country of concern
- Creating a more robust screen that draws attention to travel with a red box on top and specific identification of countries traveled
- Adding a banner alert screen if a patient is flagged for infectious disease with an alert of steps to be immediately taken
- Changing the discharge process so that discharge papers could no longer be printed early or if anything was unresolved in the document.
Fierce EMR has the story.
Sunday, March 8, 2015
In Grebing v. 24 Hour, a California Court of Appeal upheld a release signed by a gym member for the ordinary negligence of the gym. Moreover, the court reaffirmed that a company that predominantly provides services, rather than goods, cannot be held liable for products liability. J.D. Supra has the story.
Wednesday, February 25, 2015
In a case of a boundary dispute turned ugly (mooning, public urination, etc.), the Vermont Supreme Court adopted the dominant-purpose test for determining the existence of a spite fence. Moreover, the standard was met when the fence blocked the view of a mountain (from a bed-and-breakfast property), caused backed-up drainage, and contained signs on the side facing the neighbor's property. The case is Obolensky v. Trombley. Coverage from Roger McEowen at the Iowa State Center for Agricultural Law and Taxation is here.
Tuesday, February 17, 2015
The Texas Supreme Court case, which was announced on Friday, is Nabors Wells Services, Ltd. v. Romero. The case (pdf) is here: Download TX Sup Ct = Seat Belt Admiss From the opinion:
We hold relevant evidence of use or nonuse of seat belts, and relevant evidence of a
plaintiff’s pre-occurrence, injury-causing conduct generally, is admissible for the purpose of
apportioning responsibility under our proportionate-responsibility statute, provided that the
plaintiff’s conduct caused or was a cause of his damages.
Thanks to Jill Lens (Baylor) for the tip.
Wednesday, February 11, 2015
In Watts v. Medicis Pharmaceutical Corp., an intermediate appellate court in Arizona reversed the dismissal of plaintiff's complaint, holding that the Uniform Contribution Among Tortfeasors Act abrogates the learned intermediary doctrine. The opinion is here: Download AMANDA WATTS, an adultindividual, PlaintiffAppellant, v. MEDICIS PHARMACEUTICAL CORPORATION. Thanks to Bob Bohrer (Cal Western) for the tip.
Monday, February 9, 2015
In a case out of Palm Beach County, a woman who had repeatedly been told to stay off the premises was shot in the leg at a common area of an apartment complex. Pursuant to Florida law, the premises liability status categories are invitee, discovered trespasser, and undiscovered trespasser. The duty of care owed to the entrant on land varies with the category; the standards are negligence for invitees, gross negligence for discovered trespassers, and intentional conduct for undiscovered trespassers. Because the plaintiff was a discovered trespasser, the apartment complex was only liable for gross negligence, which was not proved. The Naples Daily News has the story.
Friday, January 30, 2015
Melissa Rivers, daughter of comedian Joan Rivers, has instituted a lawsuit claiming medical malpractice against the clinic where Joan Rivers was undergoing surgery at the time of her death, and the doctor who performed it. There are allegations that, during the procedure, the staff at the clinic were acting like "groupies," taking "selfies" with the comedian while she was under anesthesia. The main complaint, however, is the doctor's failure to perform a tracheotomy, which allegedly could have enabled Joan Rivers to begin to breathe again after her breathing stopped during the surgery. There are other allegations that the staff performed two unauthorized procedures on the comedian. It is alleged that Joan Rivers would be alive today had a tracheotomy been administered. The doctor was terminated by the clinic soon after the Joan Rivers' death. Due to the amount of projects the comedian was working on at the time of her death (fashion police television show, writing books, and performing stand-up), it is predicted that the Rivers' family could receive millions in damages. Rolling Stone has the story.
Wednesday, January 28, 2015
Friday, January 16, 2015
Last month, I reported that the Indiana Court of Appeals (the intermediate appellate court) heard arguments on whether Indiana's tort claims damages cap for governmental defendants was constitutional. On Wednesday, the court upheld the damages cap as constitutional, mirroring a similar ruling from Pennsylvania in November.
Thursday, January 15, 2015
Dubuque, Iowa is moving ahead with an ordinance banning sledding in all but 2 of its 50 parks based on liability concerns and demands from the city's insurer. In the past decade, there have been sled injury verdicts of $2M or more in Omaha, Nebraska and Sioux City, Iowa. Several cities have started banning sledding, while other post signs warning of the risks. ABC News has the story.
Wednesday, December 31, 2014
Tuesday, December 30, 2014
For the eighth time since 2008, Louisiana-based LAMMICO is returning a percentage of premiums to its customers. The physician-owned company will return five percent of premiums during the first quarter of 2015. The Daily Journal has details.
Saturday, December 27, 2014
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.