Feland wrote that the law's legislative record offered no explanation for how the $500,000 cap was chosen or how it would accomplish the Legislature's health care reform goals.
Thursday, July 5, 2018
Back in May, Judge Christopher Conner of the Middle District of Pennsylvania ruled that the Commonwealth could not take $200M from the state-created joint underwriting association (JUA) for medical malpractice insurance to balance the budget. The judge ruled it was a seizure of property without compensation and was unconstitutional. (Coverage here) Having been thwarted, the Commonwealth passed a budget that simply absorbs the JUA's operations into the Insurance Department. The JUA has sued again and has filed a motion for a temporary restraining order and preliminary injunction. WITF has the story.
Thursday, June 28, 2018
Yesterday, the Wisconsin Supreme Court ruled 5-2 that the $750,000 non-economic damages cap in med mal cases is constitutional. The trial court had ruled the cap unconstitutional as applied to this plaintiff, and the intermediate appellate court went further and held it was unconstitutional on its face. The majority acknowledged the sympathetic facts, but held the legislature was acting within its authority to make policy decisions. The Milwaukee Journal Sentinel, which covers tort and tort reform issues in depth, has the story.
Friday, June 22, 2018
On July 1, the compulsory auto insurance minimum limits in Nevada increase from 15/30/10 to 25/50/20. To translate, the new requirements in Nevada are $25,000 per person for bodily injury/$50,000 per accident for bodily injury/$20,000 per accident for property damage. The increase leaves Pennsylvania even more isolated on the low end of the spectrum with 15/30/5.
Monday, June 18, 2018
After having been struck down by the Arkansas Supreme Court right before it was scheduled for a vote, tort reform is back on the ballot this November:
The proposed constitutional amendment would set caps on attorneys' fees and certain lawsuit damages, plus -- in what lawyers say is the biggest affront to their business -- give lawmakers the final rule-making authority over the courts. Its backers in business and the Legislature pitch the amendment as tort reform that they say will reduce the costs of doing business in Arkansas by making companies less exposed to frivolous or costly litigation.
The bar generally opposes the measure, and business groups favor it. The Northwest Arkansas Democrat Gazette has a story from the Arkansas Bar Association convention.
Wednesday, June 6, 2018
In California, the "tort wars" have been quiet recently. That may change due to wildfires and a court decision finding lead paint manufacturers liable for a public nuisance. The state's utilities, potentially on the hook for billions of dollars in damage caused by wildfires, and lead paint manufacturers have sought legislation to protect themselves from damages. The Mercury News has details.
Tuesday, May 22, 2018
Pennsylvania, facing a large budget deficit, attempted to take $200M from a state-created joint underwriting association for medical malpractice insurance. The state passed a law requiring the JUA to give up $200M of its $268M surplus by December 1, 2017 or be dissolved. Judge Christopher Conner of the Middle District of Pennsylvania issued a preliminary injunction to halt the dissolution. Stating the money was private property, Judge Conner has held that the transfer is a seizure of property without compensation and is unconstitutional.
Wednesday, May 9, 2018
A mother and son who together experienced a failed liver transplant argued to the Pennsylvania Supreme Court on Monday that the seven-year med mal statute of repose should be struck down as violating the state constitution's "open courts" provision. The statute of repose was one of many provisions included in the MCARE statute, passed in 2003 to deal with an alleged med mal crisis in Pennsylvania. Law 360 has the story.
Wednesday, April 18, 2018
In 2011, a Wisconsin woman had all four limbs amputated. A jury determined health care providers were responsible by negligently failing to diagnose an infection and awarded her $25.3M. The non-economic damages portion of the award was approximately $16.5M. WI has a med mal cap on non-economic damages of $750,000. The trial judge ruled the cap was unconstitutional as applied to the plaintiff's case. The intermediate appellate court went further and ruled the cap was unconstitutional. Tomorrow the Wisconsin Supreme Court hears arguments in the case. The Milwaukee Journal Sentinel has the story.
Monday, March 5, 2018
The Kentucky Senate passed a comprehensive med mal reform bill on Thursday, and now it heads to the state House. The bill would do a number of things:
Among its many provisions, Senate Bill 20 would require medical malpractice lawsuits to contain an affidavit of merit. That’s a document stating that at least one doctor agrees the claim has merit.
A medical review panel opinion in favor of a patient would fulfill the affidavit of merit requirement. Senate Bill 4 from 2017 created panels of experts to review claims of medical error or neglect. If the medical review panel finds in favor of the medical provider, however, the patient would still have to get an affidavit of merit to advance to court.
A second provision would impose contingency caps on attorney fees in medical malpractice cases. An amendment would set those caps at no more than 33 percent of any awarded damages.
A third provision is known as the “I’m sorry” clause. It would allow health care workers to express condolences or apologies to patients or families without fear of having those words used against them in a lawsuit.
A fourth would regulate fees for copying medical records. An amendment included an exemption from medical record copying fees for pro bono and Social Security disability cases.
The Ohio County Monitor has the story.
Saturday, March 3, 2018
In the early 1990s, Louisiana adopted a med mal cap of $500,000, which has never been adjusted for inflation. The cap does not apply to "future medical expenses." State senators are debating whether the cap should be raised. Bossier Press-Tribune Online has the story.
Wednesday, February 14, 2018
A state lawmaker has filed a bill to shift Michigan from a no-fault auto system to tort law. Michigan has the highest insurance rates in the nation; it is also the only state with an unlimited amount of lifetime benefits. Florida is also considering reverting to the tort system. WTOL 11 has the story.
Thursday, February 8, 2018
Last year, Kentucky passed a law requiring med mal cases to be reviewed by a panel prior to advancing to court. Now another reform is working its way through the legislature. Senate Bill 20, which just advanced out of committee, would place caps on a plaintiff's attorney's fees and prohibit expressions of sympathy from being used against physicians in med mal cases. The story from ctpost is here.
Wednesday, January 31, 2018
At Law 360, Y. Peter Kang discusses 4 constitutional challenges to state tort reforms: 1. KY's med mal review panels; 2. ND's med mal damages cap, struck down by a state trial judge as unconstitutional; 3. the Oklahoma Supreme Court's review of a $350,000 cap on noneconomic damages; and 4. the Wisconsin Supreme Court's review of an appellate court holding that its noneconomic damages cap is unconstitutional.
Tuesday, January 30, 2018
The state legislature and Governor Cuomo have reached a deal on Lavern's Law, the only bill remaining from the last session on which Cuomo has taken no action. The Daily News reports:
Gov. Cuomo and state legislative leaders have struck a deal for the medical malpractice bill known as Lavern’s Law to be signed into law.
Cuomo plans to sign the bill this week, after the Legislature votes to amend the version it passed in June. The bill would start a 2 1/2-year window to bring malpractice cases involving cancer when the patient discovers the error. Currently, the clock starts when the mistake occurs — meaning patients may lose their chance to sue before they even find out there’s been an error.
Under the amended version, people whose statute of limitations ran out in the last 10 months will get a six-month window to sue. The bill the Legislature passed offered a window for cases going back seven years.
The changes also make it more clear that the new rules apply only to cancer, not other illnesses.
The full article is here.
Thursday, January 11, 2018
In 1995, North Dakota passed a $500,000 cap on non-economic damages in medical malpractice cases. Recently a state judge refused to apply the cap and reduce a non-economic damages award by $1 million:
[Judge] Feland ruled the 1995 law violates equal protection guaranteed by the state constitution by arbitrarily reducing damages for people who suffer the most severe injuries.
"The greater the harm caused by the negligent doctor, the greater the discount," said Tom Conlin, Condon's attorney. "The cap fell hardest on stay-at-home moms, the young and those who couldn't prove large economic loss."
CHI St. Alexius Health said on Tuesday that it's exploring legal options.
U.S. News has the story.
Tuesday, December 26, 2017
Last week the Wisconsin Supreme Court unanimously adopted proposed amendments to the state's class action procedures designed to bring them into alignment with Federal Rule of Civil Procedure 23. The order replaces a one-sentence class action statute that is a hold-over from the nineteenth century Field Code. The order is here: Download DC-#649050-v1-2017_amendments_to_Wisconsin_class_action_rule
Wednesday, December 20, 2017
On Monday, Governor Cuomo signed legislation making the default purchase of UM/UIM (called SUM in NY, for Supplemental Uninsured/Underinsured Motorist coverage) the same as the insured's purchase of liability insurance; the default had been the state minimum. Insureds can opt out. As someone who has seen terrible under-compensation of injuries due to failure to purchase, or failure to purchase sufficient amounts of, UM/UIM coverage, I applaud this change. Eric Turkewitz covers it here.
Thursday, December 14, 2017
A state representative in Wisconsin has introduced a bill allowing patients to request audio and video recordings in operating rooms. The rationale is to have better evidence of whether an alleged medical error occurred. A similar bill was introduced in 2015, but did not gain traction. No jurisdiction in the United States has such a law. WDJT Milwaukee has the story.
Wednesday, December 6, 2017
Nebraska has one of the few caps in the nation that is applied to total, as opposed to non-economic, damages in med mal cases. In August 2015, a jury awarded the family of a brain-damaged infant $17M in damages. Pursuant to the cap, the trial judge reduced the award to $1.75M. Last June, the Eighth Circuit unanimously affirmed the trial judge. On Monday, the United States Supreme Court declined to hear the case. The family had argued the cap is unconstitutional:
The Eighth Circuit’s ruling contravened the Supreme Court’s 1998 holding in Feltner v. Columbia Pictures, which gives juries, rather than a trial judge, the authority to determine damages, Schmidt contended.
Further, the Seventh Amendment’s constitutional right to a jury trial should be made applicable to the states through the due process clause of the Fourteenth Amendment, Schmidt argued. She drew a parallel to the Supreme Court’s 2010 ruling in McDonald v. City of Chicago, in which the justices applied the right of gun ownership to the states, and by extension local governments, that attempted to ban handguns.
Law 360 has the story.
Friday, November 24, 2017
PA: Federal Judge Issues Preliminary Injunction to Prevent State from Dissolving Med Mal Insurer and Taking its Money
Two weeks ago, I reported that the Commonwealth of Pennsylvania was attempting to use surplus funds from a med mal insurer that was created by state law, but was not a part of state government. Pennsylvania, trying to balance its budget, passed a law requiring the Pennsylvania Professional Liability Joint Underwriting Association (JUA) to turn over $200M of a $268M surplus by December 1. If it fails to comply, the law abolishes the JUA and transfers its money to the Department of Insurance. Now Judge Christopher Conner has issued a preliminary injunction barring the state from carrying out that action. The judge's order puts the issue on hold until a federal trial can be held. PennLive has the story.