TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, May 12, 2015

PA: Med Mal Cases Decline Again

Pennsylvania med mal cases filed in 2014 have hit an all-time low since tracking began in 2000, and are down 46.5% from the base years of 2000-2002.  Only 1463 cases were filed across the Commonwealth last year.  In a separate category, of the 2014 verdicts in med mal cases, 81% were for the defense. 

Central Penn Business Journal has the story.

May 12, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, May 4, 2015

AL: Bill to Overturn "Innovator Liability"

Last year, the Alabama Supreme Court let stand its holding that name-brand manufacturers can be liable for misrepresentations or failures to warn in regard to generic drugs they did not manufacture or distribute.  (Coverage here)  Now the legislature has sent a bill to the governor that would overturn the result.  The bill passed the Senate 32-9 and the House 86-14.  Legal Newsline has the story.

May 4, 2015 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 28, 2015

CA: Janitorial Mistake is Not Professional Negligence

A California court of appeal has overturned a trial court holding that a woman who slipped on a wet floor in a hospital was subject to MICRA's one-year statute of limitations.  Holding that a janitor's conduct is not "professional negligence," the court of appeal applied the two-year statute for ordinary negligence suits.  The Metropolitan News-Enterprise has the story.

April 28, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 21, 2015

CO: Commercial Tenant Not Liable for Slip-and-Fall

A woman tripped on an uneven area of sidewalk and was injured.  She settled with the owner of the commercial property and then sued one of the tenants.  The Colorado Supreme Court rejected the contention that the tenant in this case was also the landlord:

“The clinic was not in possession of the sidewalk because it had only a right of non-exclusive use and the landlord retained responsibility for maintaining that area,” the ruling said. “Second, the court concludes that, under the terms of the lease and the facts of this case, the clinic was not legally responsible for the condition of the sidewalk or for the activities conducted or circumstances existing there. It therefore holds that the clinic is not a landowner within the meaning of the Premises Liability Act.”

The Denver Business Journal has the story.

April 21, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, April 13, 2015

Mini-Asbestos Roundup

On Thursday, Arizona Governor Ducey signed into law a bill requiring plaintiffs to disclose asbestos claims they have filed or intend to file.  The legislation, referred to as a transparency law, is justified as necessary to keep plaintiffs from double-dipping from asbestos trusts.  Today's News-Herald has the story.

In other asbestos news, the California Supreme Court will hear an appeal regarding the status of "take home" asbestos claims.  The lower appellate court denied the claim.  The Pacific Legal Foundation provides information on the case and argues against such claims here.

April 13, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, April 9, 2015

TX: Watching Soccer Not a Recreational Use

Plaintiff was injured while watching her daughter play soccer.  She sued the owner of the facility; the owner defended by asserting the recreational use statute.  The Texas Supreme Court held that watching soccer is not a recreational use within the statute. 

Iowa State's CALT has details.

April 9, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 8, 2015

FL: $4.5M Wrongful Death Award in Premises Case

In 2005, two siblings were shot to death in their Florida apartment.  The Florida Supreme Court recently upheld a $4.5M premises liability verdict against the owner of the apartment complex, based on the failure of the owner to repair a security gate at the gated complex.  The criminal case is still unsolved. has the story

April 8, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 7, 2015

MA: No Duty to Provide Medicine

On March 25, the United States District Court for the District of Massachusetts decided Hochendoner v. Genzyme Corp., 2015 WL 1333271.  Plaintiffs suffered from Fabry disease; defendant manufactured a drug used to treat the disease.  Plaintiffs alleged that defendant negligently contaminated the medicine, causing a reduced supply and harming plaintiffs.  The court dismissed the case, holding defendant had no duty to provide the medicine. 

Thanks to Bob Bohrer (Cal Western) for the tip.

April 7, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, March 30, 2015

FL: New Model Jury Instructions for Products Liability

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.

March 30, 2015 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, March 27, 2015

PA: Justices Reject Complete Ban of Informed Consent Evidence in Traditional Med Mal Cases

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.

March 27, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

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.

March 25, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 18, 2015

Design of Electronic Health Records and Med Mal

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.

March 18, 2015 in Current Affairs, Experts & Science, Science | Permalink | Comments (0) | TrackBack (0)

Sunday, March 8, 2015

CA: Release of Liability for Negligence Upheld for Gym

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.

March 8, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 25, 2015

VT: "Spite Fence" Standard Established

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.

February 25, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 17, 2015

TX: Evidence of Seat Belt Non-Use is Admissible to Apportion Responsibility

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.

February 17, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 11, 2015

AZ: Learned Intermediary Doctrine Is Inconsistent With Uniform Contribution Among Tortfeasors Act

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.

February 11, 2015 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2015

FL: Woman Shot in Common Area of Apartment Complex Loses Premises Case

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

February 9, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, January 30, 2015

Med Mal Suit Over Joan Rivers' Death

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

January 30, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 28, 2015

NE: "Total Idiot" Not Defamatory

The Nebraska Supreme Court has upheld the dismissal of a libel lawsuit based on an e-mail in which a home inspector was called a "total idiot."  Olson/Overlawyered

January 28, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, January 16, 2015

IN: Governmental Damages Cap Upheld

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.

January 16, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)