Friday, September 15, 2017
Thursday, September 14, 2017
OH: Dram Shop Act is Sole Avenue to Recovery for Injuries Caused by an Establishment Furnishing Alcohol
At Legally Speaking Ohio, Marianna Brown Bettman analyzes a case handed down by the Ohio Supreme Court last week. The court held that the state's dram shop act precluded common law negligence liability for serving alcohol that causes injuries.
Thursday, September 7, 2017
The heart balm torts are back in the news. Almost all states recognized some or all of the 4 heart balm torts (alienation of affections, criminal conversation, seduction, breach of promise to marry) at one time. Now, however, only about 7 or 8 states recognize any of them. Alienation of affections and criminal conversation are the most common. These are suits against an interloper to a marriage based on the interloper alienating the affections of one spouse (alienation) or having sex with the spouse (criminal conversation). The North Carolina bar seems the most committed to them. Approximately 230 cases were filed last year in that jurisdiction.
Recently, a trial judge in Forsyth County (think Winston-Salem) ruled the heart balm torts were unconstitutional. The judge ruled that state law violates a person's constitutional free speech and free expression rights to engage in intimate sexual activity and expression with other consenting adults. The Court of Appeals in North Carolina overruled the judge. Eugene Volokh analyzes the opinion, which he pronounces "generally sound", here. That makes sense to me. I still hold, however, the same position I held a decade ago, that the torts don't make sense as a matter of tort theory.
Friday, September 1, 2017
Thursday, August 31, 2017
Two large med mal death verdicts were just handed down in Detroit and Minneapolis.
In Detroit, a jury awarded $40M for the death of a 26-year-old college student. The decedent presented in the ER with signs of a pulmonary embolism and was sent home without the benefit of any tests, diagnosed with a virus. She died the next day. Michigan has a somewhat variable noneconomic damages cap, but the Detroit Medical Center has not yet asked for it to be applied. The Detroit News has the story.
Meanwhile in Minneapolis, a jury has awarded $20M against a hospital for the death of a 30-year-old woman who had just given birth. The family alleged an ER nurse ignored lab results showing the decedent had sepsis and sent her home. The decedent returned to the hospital 12 hours later and died. Minnesota does not have a cap. US News has the story.
Wednesday, August 23, 2017
Geisinger is settling a med mal case, in which one of its patients died, for $4.5 million. The proceeds will be paid to the patient's wife of 48 years. Details of the alleged negligence are not available, and no one is commenting about the case:
Court documents say the parties entered into settlement negotiations that lasted several months, ultimately agreeing to the multi-million dollar sum in recent weeks. The settlement, court documents say, will be paid out in two installments: an initial $3.5 million due within 20 days and another $1 million payable by Dec. 31.
[The patient’s] family will receive approximately 2.5 million while [attorneys] will receive approximately 1.8 million. Remaining funds will go toward liens and other miscellaneous fees.
The Wilkes Barre Times-Leader has the story.
Monday, July 31, 2017
Arizona Governor Doug Ducey weighed in favorably on a federal med mal cap, calling it an important element of any replacement of the Affordable Care Act. Voters in Arizona have rejected a state med mal cap three times. The Arizona Daily Star has the story.
Friday, July 28, 2017
Bruce Kaufman at Bloomberg BNA has written a piece about tort reforms stalling in the Senate. The House passed several bills that have not gained traction:
The bills, two of which still lack Senate sponsors, are:
- The Fairness in Class Action Litigation Act and Furthering Asbestos Claims Transparency Act ( H.R. 985) affects nearly all facets of class action practice, and mandates increased reporting of payments to plaintiffs by trusts that pay out asbestos exposure claims against bankrupt companies. It passed the House March 9 by a 220-201 vote.
- The Innocent Party Protection Act ( H.R. 725) targets what is known as fraudulent joinder—the improper addition of local defendants to suits in a bid to keep cases in more plaintiff-friendly state courts. It passed the House March 9 by a 224-194 margin.
- The Lawsuit Abuse Reduction Act ( H.R. 720; S. 237) requires judges to impose mandatory sanctions on attorneys who file “meritless” civil cases in federal courts. It passed the House March 10 by a 230-188 margin.
Several commentators in the piece focus on a surprising amount of conservative opposition to the bills.
Wednesday, July 26, 2017
Joe Palazzolo has a piece in the WSJ (behind a paywall) about the declining number of tort suits. According to the National Center for State Courts, less than 2 in 1,000 people filed tort suits in 2015, down from 10 in 1,000 in 1993. The story cites a number of factors as contributing to the decline, including tort reform, the increasing cost of bringing suits, improved auto safety, and a campaign by business to discredit plaintiffs and their lawyers.
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.