Monday, November 16, 2015
Because of the hurdles many states place on med mal cases, it is beneficial for defendants to classify falls in hospitals as malpractice. The Texas Supreme Court recently attempted to clarify the distinction between med mal and a premises liability slip-and-fall:
In Reddic v. East Texas Medical Center, decided on October 30, 2015, the Court stated that there must be “a substantive relationship between the safety standards the visitor alleged the hospital breached and the provision of health care” for the case to be considered medical malpractice.
Michael Ksiazek has more at The National Law Review.
Friday, November 13, 2015
Last week, I reported that open-heart surgery patients at York Hospital may have been exposed to bacteria that could lead to infections. This week, Penn State Hershey Medical Center announced that its open-heart surgery patients may have also been exposed to bacteria. This appears to be developing into potential products liability cases, perhaps all over the world:
The infections have been linked to heater-cooler devices that are part of the process of controlling patients' body temperature during open heart surgery. A department of health spokeswoman said heater-coolers are used in all open heart surgeries.
Pennlive has the story, including pictures of the device in question.
Wednesday, November 11, 2015
Phi Kappa Psi, the fraternity where an alleged gang rape occurred, has sued Rolling Stone and the author of a sensational article for publishing the account. Rolling Stone relied on the allegations of the alleged victim, but subsequent investigations found no evidence to substantiate the claims. Three individual members of the fraternity are suing for at least $225,000 each and an associate dean is suing for $7.5 million dollars. Virginia Lawyers Weekly has the story.
Updated: Because I practiced in Charlottesville, I have been looking for the name of the attorney representing the plaintiffs. It turns out that Tom Albro, for whom I worked for seven years, is that attorney. Rolling Stone had better be prepared.
Monday, November 9, 2015
Craig Allen (University of Washington) has posted to SSRN Investigations and Litigation Follow S.S. El Faro Tragedy. The abstract provides:
On October 1, 2015, the U.S. flag cargo ship El Faro sank with all hands in the Atlantic Ocean east of The Bahamas, during Hurricane Joaquin. The casualty is under investigation by the U.S. Coast Guard and the National Transportation Safety Board. In response to claims by families of some of the 33 crew member, the vessel owner invoked the U.S. Shipowner Limitation of Liability Act. Events leading up to the tragedy will be given strict scrutiny in the coming months.
Thursday, November 5, 2015
In a local case that made national news, York Hospital announced that as many as 1,300 patients who had open-heart surgery over several years could have been exposed to bacteria. The York Daily Record is reporting that attorneys throughout the region are receiving phone calls and setting appointments.
Monday, November 2, 2015
A man in London was seriously injured by a sofa that fell from a building. It is not known exactly what happened, but the sofa may have fallen from scaffolding more than 100 feet above the ground. BBC has the story.
Thanks to David Raeker-Jordan for the tip.
Thursday, October 29, 2015
Tuesday, October 27, 2015
According to a study published this week in Aon's annual benchmark analysis of hospital and professional liability, the average cost of closed claims with indemnity at U.S hospitals ($459,000) is near an all-time high. The effects of tort reform are an issue:
However, the experience of so-called tort reform states – where non-economic damages have been capped by statute – is particularly concerning. The severity of average claims in these states has been increasing faster than elsewhere. In 2008, only 2.2% of claims from tort reform states exceeded $2,000,000. By 2013, this proportion had risen to 4.1% and last year it jumped further, to 5%.
"Tort reform, though still valuable in restraining the cost of claims, provides less effective insulation to hospitals than was originally the case," said Steve Chang, healthcare claims team leader at Beazley. "The plaintiffs' bar has become very adept in maximizing the economic damages which remain uncapped. Moreover, we are finding that the distinction between tort reform and non-tort reform states is becoming increasing blurred with states such as California, Maryland and Florida, all of which are tort reform states, beginning to rival their non-tort reform counterparts."
CNN Money has the story.
Monday, October 26, 2015
Thursday, October 22, 2015
A recent NPR/ProPublica series on workers' compensation caused 10 Democratic Senators to urge action on the part of the Labor Department:
Ten ranking Democrats on key Senate and House committees are urging the Labor Department to respond to a "pattern of detrimental changes in state workers' compensation laws" that have reduced protections and benefits for injured workers over the past decade.
In a letter to Labor Secretary Thomas Perez, the lawmakers cited an investigation by NPR and ProPublica, which found that 33 states have cut workers' comp benefits, made it more difficult to qualify for benefits or given employers more control over medical care decisions.
The letter also referred to NPR/ProPublica stories last week that detailed an emerging trend of permitting employers to drop out of state-regulated workers' comp programs, write their own injury plans and limit benefits on their own.
NPR has the story.
Thursday, October 15, 2015
A Manhattan woman sued her then eight-year-old nephew for an enthusiastic hug that knocked her down and broke her wrist. A jury found the nephew was not liable. I assume the homeowner's policy was the target, but it couldn't have helped that she testified that it hurt for her to hold a plate of hors d'oeuvres. The Connecticut Post has the story.
Thursday, October 8, 2015
The Saskatchewan government has approved changes to tort and no-fault programs recommended after a review of the auto system.
Among others, the changes include:
• When an impaired driver causes a collision and is killed, allowing an innocent party or the family impacted to sue for pain and suffering or bereavement damages (No Fault and Tort coverage);
• Expanding the list of offences that trigger the ability for an innocent party to sue for pain and suffering or bereavement damages to include: criminal negligence causing death or bodily harm, criminal negligence causing bodily injury, flight from a peace officer and dangerous operation while street racing (No Fault and Tort coverage);
• Updating amounts paid for living expenses to reflect current market rates, increasing the overall amount available for assistance to those with cognitive impairment and implementing a process to regularly review the amounts for alignment with market rates (No Fault coverage);
• Ending the practice of reducing income benefits by the amount a customer receives through Canada Pension Plan (CPP) disability (No Fault coverage); and
• Ensuring Tort income benefits maintain pace with minimum wage (Tort coverage).
Canadian Underwriter has the story.
Monday, October 5, 2015
Tuesday, September 29, 2015
Sunday, September 27, 2015
Tuesday, September 22, 2015
In Florida last week, a jury hit RJ Reynolds with $14.7M in compensatory damages and $20M in punies for the death of an Air Force sergeant in another of the Engle progeny cases. The jury deliberated only a few hours. ABA Journal has the story.
Thursday, September 17, 2015
In Ontario, both major political parties, Provincial New Democrats and Conservatives, are calling for increased accountability from the Canadian Medical Protective Association (CMPA). The CMPA acts as an insurer for doctors accused of medical malpractice. Significantly, the CMPA receives massive public subsidies; approximately 81% of physician fees to CMPA are reimbursed out of tax funds. The Toronto Star has the story.
Wednesday, September 9, 2015
Tuesday, September 8, 2015
In Chavez v. 24 Hour Fitness, the Court of Appeal, Sixth Appellate District reversed the trial court's dismissal of plaintiff's case against her gym. Plaintiff was injured while working out; she sued 24 Hour Fitness for, among other counts, gross negligence. Relying on plaintiff's signed waiver, the trial court dismissed her claims.
The Court of Appeal found that plaintiffs had raised a triable issue of material fact as to whether 24 Hour’s conduct constituted gross negligence. The evidence showed regular maintenance was not performed and, on that basis, 24 Hour “failed to exercise scant care or demonstrated passivity and indifference toward results.” In addition, plaintiffs raised other triable issues of fact including the missing brackets and the owner’s manual’s requirement of weekly maintenance.
JD Supra has the story.
Wednesday, August 26, 2015
Texas is the only state in the country that has voluntary workers' compensation; employers can subscribe to it or not as they see fit. An employee of a non-subscribing employer, Kroger, as part of his duties, was mopping up a very slick substance in Kroger's bathroom. He slipped and seriously injured himself.
The Fifth Circuit certified the following question concerning the premises liability claim to the Texas Supreme Court: “Pursuant to Texas law . . . can an employee recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy? Put differently, does the employee's awareness of the defect eliminate the employer's duty to maintain a safe workplace?” Importantly, because Texas law forbids an employer who opts out of the workers’ compensation system from asserting an employee’s contributory negligence or assumption of the risk as a defense, if Kroger owed plaintiff a duty of care, and if it breached that duty, it would be liable for the all of the damages, regardless of plaintiff’s negligence or assumption of the risk.
The court provided the following answer to the certified question:
Under Texas law, an employee generally cannot “recover against a nonsubscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy.” As is the case with landowners and invitees generally, employers have a duty to maintain their premises in a reasonably safe condition for their employees, but they will ordinarily satisfy their duty as a matter of law by providing an adequate warning of concealed dangers of which they are or should be aware but which are not known to the employee. “The employee's awareness of the defect” does not “eliminate the employer's duty to maintain a safe workplace,” but with respect to premises conditions, that duty is ordinarily satisfied by warning the employee of concealed, unknown dangers; the duty to maintain a reasonably safe workplace generally does not obligate an employer to eliminate or warn of dangerous conditions that are open and obvious or otherwise known to the employee. Exceptions to this general rule may apply in premises liability cases involving third-party criminal activity or a necessary use of the premises. If an exception applies, the employer may owe a duty to protect the employee from the unreasonably dangerous condition despite the employee's awareness of the danger, and the [workers’ compensation act] will prohibit a nonsubscribing employer from raising defenses based on the employee's awareness.
The case is Austin v. Kroger Tex., L.P., __ S.W.3d __, 2015 WL 3641066 (Tex. June 12, 2015). Shannon Ramirez at LeClair Ryan has more in Virtual Strategy.