Tuesday, September 11, 2018
KATV in Little Rock is reporting about a Talk Business & Politics-Hendrix College poll on the issue of whether the state constitution should be amended to cap attorney fees, limit damages in personal injury, property damage, or wrongful death lawsuits, and give the legislature the authority to control the rules of court procedure. The results? 25% of voters are in favor and 47% are opposed. More details are available here. It would be interesting to know if the advocacy of a Christian group against tort reform has had an effect.
Monday, August 20, 2018
Religious and business conservatives can make for uneasy allies on a number of issues. Tort reform, advocated by business conservatives, has not usually been such an issue. In Arkansas, however, the Family Council Action Committee, a conservative Christian group, is actively opposing the ballot measure to impose new limits on tort damages:
A Christian group has begun rallying churches and abortion opponents against the measure, saying that limiting damage awards in lawsuits sets an arbitrary value on human life, contrary to anti-abortion beliefs, and conflicts with biblical principles of justice and helping the poor.
It will be interesting to see if this spills over to other states. The News Tribune has the story.
Monday, August 13, 2018
Last year, Kentucky enacted a law requiring medical malpractice claimants to go through a panel procedure (review by health care professionals) prior to obtaining a jury trial. The process consumes nine months and the outcome is admissible, but not binding, at the subsequent trial. Last week, the Kentucky Supreme Court heard arguments over the constitutionality of the law. Plaintiffs claim the law obstructs the right to a jury trial, in violation of the state constitution. The Courier Journal has the story.
Friday, August 3, 2018
For several years, there has been a saga in Arkansas to get a tort reform measure on the ballot. The measure would cap non-economic damages, punitive damages, and attorneys' fees. Last month, I reported on the most-recent event, a former judge sued to block the measure on the basis that it unconstitutionally combines several proposals and also violates separation of powers. On Tuesday, a judge refused to grant a preliminary injunction because the plaintiff-former judge could not demonstrate irreparable injury if the ballot went forward. The case remains to be decided on the merits. The Times Record has the story.
Thursday, July 19, 2018
Judge Christopher Conner has issued a preliminary injunction stopping the Commonwealth of Pennsylvania from absorbing the JUA (and its money) into its Insurance Department. In May, Judge Conner ruled Pennsylvania could not take $200M from the JUA in an attempt to balance its budget because the money was private property and such a seizure violated the Takings Clause of the United States Constitution. The current ruling indicates those principles apply equally to an absorption. The May ruling is on appeal to the Third Circuit. PennLive has the story. Thanks to Dan Noon for the tip.
Wednesday, July 18, 2018
AMP (Arkansas Money & Politics) has the story. The gist:
Former Pulaski County Circuit Court Judge Marion Humphrey is challenging the ballot measure that would cap damages awarded in lawsuits and give legislative control over court rules in Arkansas.
Humphry filed the lawsuit last week, challenging the proposed constitutional amendment, also known as Issue 1, that Arkansas legislators voted in 2017 to put on the November ballot. The measure limits damages that can be awarded in civil lawsuits and contingency fees attorneys can receive in those suits. The measure also would give the Legislature power to change, repeal or adopt rules for the state’s courts.
In the lawsuit, Humphry claims the measure unconstitutionally combines four separate proposals. He also suggests it violates the separation of powers by giving the legislative branch power over the judicial branch. Humphry asks that a Pulaski County judge disqualify the measure and prevent election officials from counting any votes for it.
The proposed amendment caps noneconomic damages awarded in lawsuits to $500,000 and would restrict punitive damages to $500,000 or three times the amount of compensatory damages awarded, whichever is higher. The Legislature would be able to increase these limits with a two-thirds vote of the House and Senate. It also caps attorneys’ contingency fees at 33 1/3 percent of the net amount recovered in the suit.
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.