TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, November 17, 2017

PA: State Senator Introduces Bill Banning Non-disclosure Agreements in Sexual Assault and Harassment Cases

Sen. Judy Schwank introduced a bill in the Pennsylvania Senate designed to prevent sexual offenders from settling cases without exposure:

Schwank's proposal, rolled out at a Capitol press conference Wednesday, would bar any contract or out-of-court settlement from containing provisions that:

* Prohibit disclosure of the name of any person suspected of sexual misconduct or any information relevant to a claim.

* Would block reports of such claims to an "appropriate person."

* Requires the destruction or expungement of related evidence.

The bill would, however, grant a shield of confidentiality to victims making allegations of abuse, giving them rights similar to juveniles in a child welfare case who can have cases brought through their initials or other identifiers.

California is the only state with such a law.  Opponents argue the bill would discourage defendants from settling these cases.

Pennlive has details.

November 17, 2017 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, November 13, 2017

KY: CoA Rules Med Mal Panels Can Proceed

Almost two weeks ago, I reported that a Kentucky judge held unconstitutional the state's 2017 law requiring med mal cases to be reviewed by a panel of doctors prior to proceeding to trial.  On Friday, the Kentucky Court of Appeals issued a stay of the order.  The 89 current cases will proceed and prospective cases will have to proceed through the panel process.  The stay is in effect until further notice.  The Northern Kentucky Tribune has details.

November 13, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, November 10, 2017

PA: Can the Commonwealth Use a Med Mal Insurer's Surplus to Balance the Budget?

The Pennsylvania Professional Liability Joint Underwriting Association (JUA) was created by state law in 1975, but the entity is not a part of state government.  The JUA was founded as a last-ditch insurer for doctors at a time when malpractice insurance was in the first of several cyclical crises.  It has a surplus of $268M.  Pennsylvania, trying to balance its budget, passed a law requiring the JUA to turn over $200M of the surplus by December 1.  If it fails to comply, the law abolishes the JUA and transfers its money to the Department of Insurance.  The JUA has sued Governor Tom Wolf in federal court, asserting the seizure is an unconstitutional deprivation of property without due process of law.  The Inquirer has details.

November 10, 2017 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, November 1, 2017

KY: Judge Declares Med Mal Panels Unconstitutional

Earlier this year, the Kentucky legislature passed a law requiring med mal cases to go through a panel of doctors prior to going to trial.  A state judge ruled Monday the law was unconstitutional and issued an order banning the state from enforcing the law.  The state has announced it will appeal the ruling.

WKMS has details

November 1, 2017 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, September 15, 2017

Institute for Legal Reform Ranks the States' Lawsuit Climates

Tuesday, August 1, 2017

PA: Med Mal Insurer Threatens to Sue if State Uses Its Money to Plug a Deficit

Like many states, Pennsylvania is facing a budget deficit.  The legislature has gotten increasingly creative in finding ways to balance the budget.  Years ago, the Pennsylvania Professional Liability Joint Underwriting Association was created by state law to provide med mal insurance.  Now it has $200M that a Senate bill is requesting; if the money is not given to the state by November 1st, the Senate bill would abolish the Association.  The Association has threatened to sue if the state moves forward; the bill is pending in the House.  The San Francisco Chronicle has details.

August 1, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, July 31, 2017

AZ: Governor Favors Federal Med Mal Cap

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.

July 31, 2017 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, July 28, 2017

Federal Tort Reform Stalls in the Senate

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.

July 28, 2017 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, July 12, 2017

SD: Med Mal Payouts Down Last Year

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.

July 12, 2017 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, July 10, 2017

KY: Suit Challenges Constitutionality of Med Mal Panels

A Kentucky woman has filed a lawsuit alleging that the medical malpractice panels put in place earlier this year and effective June 29th are unconstitutional:

The 38-page suit claims the law “discriminates against a class of litigants who, based on nothing more than legislative whim, must delay any judicial remedy while other litigants can pursue their rights in court immediately.” It asks the court to “preliminarily and permanently” stop the state from enforcing the new law and to award the plaintiffs unspecified “reasonable costs.”

The lawsuit said at least seven states have removed medical review panels and five others have found them unconstitutional.

Jack Brammer of the Lexington Herald Leader has the story.

July 10, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, July 3, 2017

KY: Republican Legislator on the Failure of Med Mal Panels

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.”

July 3, 2017 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (1)

Thursday, June 29, 2017

NY: Revised Lavern's Law Approved by Legislature

A scaled-back version of Lavern's Law, adopting the discovery rule, has passed the legislature in New York.  The approved bill is more modest than the proposed bill in two ways.  First, it only applies to med mal cases involving cancer.  Second, the change is prospective only; there is no one-year window to revive past cases.  Thus, the family of the bill's namesake, Lavern Wilkinson, would not be able to sue pursuant to it.  Governor Cuomo, who supported the original bill, will review the bill as approved.  The Daily News has the story.

June 29, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, June 9, 2017

FL: Supreme Court Strikes Down Med Mal Cap

Yesterday, on equal protection grounds, a sharply divided Florida Supreme Court struck down a 2003 cap on non-economic damages in medical malpractice cases:

“We conclude that the caps on noneconomic damages … arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries,” said the majority opinion shared by Chief Justice Jorge Labarga and justices Barbara Pariente, R. Fred Lewis and Peggy Quince. “We further conclude that because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps … and alleviating this purported crisis. Therefore, we hold that the caps on personal injury noneconomic damages … violate the Equal Protection Clause of the Florida Constitution.”

 News 4 Jax has the story.

June 9, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, June 6, 2017

NY: "Lavern's Law," the Attempt to Move to a Med Mal Discovery Rule

New York is one of the few remaining jurisdictions that does not have a discovery rule for its medical malpractice statute of limitations.  For the past several years, a bill has been introduced to join the majority of jurisdictions.  The bills have been referred to as "Lavern's Law" after Lavern Wilkinson, who died in 2013 after a misdiagnosis of cancer that delayed her treatment by two years.  The New York Daily News ran a pro-Lavern's Law editorial yesterday.

June 6, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, May 31, 2017

KY: Med Mal Panels Forming

Back in March, I reported that a med mal review panel bill had passed the legislature in Kentucky.  The bill was signed by the governor and goes into effect on June 29.  The Kentucky Cabinet for Health and Family Services is accepting applications from attorneys interested in participating in those panels; fifty attorneys have already expressed interest.  

Panels will have nine months to review cases and render an opinion, with the results admissible in court, but not binding. They can render one of three opinions:

 A medical provider violated standard of care and that action was the proximate cause of injury.

 The provider violated standard of care, but it was not the proximate cause of injury.

 Standard of care was not violated.

Kentucky New Era has the story.  The panels will add further delay to the resolution of med mal cases, which are already too slow (averaging 4-5 years from event to resolution).

May 31, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, May 8, 2017

IA: Governor Signs Med Mal Reform Bill

On Friday, Iowa Governor Terry Branstad signed into law a bill for med mal cases requiring a certificate of merit and capping non-economic damages at $250,000 except in cases involving permanent impairment, disfigurement, or death.  The Des Moines Register has the story.

May 8, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, May 1, 2017

Bloomberg BNA Article on Lawsuit Abuse Reduction Act

Bruce Kaufman at Bloomberg has a lengthy piece on LARA, the federal act that makes Rule 11 sanctions mandatory under certain conditions.  The gist:

May 1, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, April 24, 2017

MO: Asbestos Transparency Bills

Twelve states have passed asbestos transparency laws requiring plaintiffs in asbestos suits to disclose claims they have filed with asbestos trusts.  In Missouri, such bills have been filed in both the House and Senate.  What's the rationale for such bills?

“We know from the Garlock bankruptcy case, as well as many case reports and studies that have come out, that withholding of plaintiff exposure evidence is widespread and problematic nationally, including in St. Louis,” Mark Behrens, a partner with the Washington, D.C., law firm Shook Hardy & Bacon, told the St. Louis Record.  

Behrens was referencing a nearly 4-year-old case involving Garlock Sealing Technologies in which it was alleged in a lawsuit that a handful of law firms representing asbestos plaintiffs in civil actions were untruthful about their clients’ exposures, telling different stories through filings with the bankruptcy trust system than were alleged through the suits.

The bills have until the end of May to be taken up by the legislature.  The St. Louis Record has the story.

April 24, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, April 19, 2017

IA: Senate Passes Med Mal Reform Bill to Reconcile with House

I reported last week that the Iowa House passed a med mal bill with a general cap of $250,000 on non-economic damages, but an exception for cases of “substantial or permanent loss or impairment of bodily functions and substantial disfigurement.”  The Iowa Senate, having already passed the bill without the exception, passed a bill with the exception on Monday.  The bill now goes to Governor Branstad's desk.  He is expected to sign it.  The Des Moines Register has the story.

April 19, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, April 14, 2017

IA: House Passes Med Mal Reform Bill

The Iowa House passed a med mal reform bill after amending it to include a "soft cap" exception to the general cap of $250,000:

The key to winning bipartisan support for Senate File 465 was an amendment that removed a hard cap on non-economic damage awards “in the most egregious cases,” said the floor manager Rep. Ashley Hinson, R-Marion. It would allow juries to make awards of more than $250,000 in cases of “substantial or permanent loss or impairment of bodily functions and substantial disfigurement.”

The Senate previously approved the bill without the exception, and the two bills will need to be reconciled.  The bill also includes a certificate of merit requirement.

The Waterloo Cedar Falls Courier has the story.

April 14, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)