TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, November 19, 2015

Med Mal Protections Do Not Apply to Sexual Assault Incidental to Medical Treatment

On Monday, I posted about defendants attempting to use med mal tort reform protections to make it harder to recover for falls in hospitals.  In a similar vein is a recent Alabama case in which a doctor attempted to invoke a prohibition against discovering and introducing at trial evidence of other malpractice to avoid the admission of the evidence as modus operandi (FRE 404(b)(2) or state equivalent).  The claim, however, was that the doctor had sexually assaulted the plaintiff during the course of medical treatment.  In Ex parte Vanderwall, — So.3d —- 2015 WL 5725153 (Ala. 2015), the Alabama Supreme Court held the prohibition only applies in med mal cases, which do not include cases of sexual assault.  The plaintiff was, therefore, able to use past instances of sexual misconduct incidental to medical treatment as proof that the doctor responsible for that misconduct assaulted her as well.  Alex Stein has more blogging at Harvard's Bill of Health. 

November 19, 2015 in Legislation, Reforms, & Political News, Weblogs | Permalink | Comments (0)

Tuesday, October 27, 2015

Risk Management at U.S. Hospitals: Hard Times

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.

October 27, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, October 22, 2015

Workers' Comp: States Limit Benefits; Federal Oversight Urged

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.

October 22, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, October 13, 2015

WI: Another Bill to Allow Parents to Sue for Med Mal on Behalf of Their Adult Children

Wisconsin law does not allow the parents of adult children to sue on their behalf for medical malpractice.  For years, bills have been introduced to change the law (here is a post from last session), and Senator Harris Dodd is trying again.  This bill would allow parents to sue for their children up to age 27 if they die as the result of medical error.  This year's bill is scaled back:

Earlier versions would have allowed adult children to sue if a parent died because of malpractice and also called for allowing parents of children of any age to sue for malpractice in death cases.

The Milwaukee Wisconsin J0urnal Sentinel has the story.

October 13, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, October 12, 2015

Texans for Lawsuit Reform Claims Increase in Physicians; Link to Reform

TLR's website has the story.

October 12, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, October 8, 2015

CA: Saskatchewan Approves Changes to Auto Coverage Programs

 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.

October 8, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, October 7, 2015

NV: Med Mal Non-Economic Damages Cap Upheld

Last week, the Nevada Supreme Court unanimously upheld the state's $350,000 med mal cap on non-economic damages.  A lower court had ruled the cap violated the constitutional right to trial by jury.  The court also overturned the lower court's holding that the cap applies separately to each plaintiff and each defendant.  The Las Vegas Review-Journal has the story.

October 7, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, October 5, 2015

Culhane on the Opening of the AMTL

John Culhane attended the opening of the American Museum of Tort Law and reported about it for this column in Politico.

October 5, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, September 21, 2015

ABA Opposes Lawsuit Abuse Reduction Act

ABA governmental affairs director Thomas Susman sent a letter to Congress urging the defeat of HR 758.  He argues that the act will have the perverse effect of increasing litigation.  ABA Journal has the story.

September 21, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, September 17, 2015

Ontario: Call for Accountability for Malpractice Insurer

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.

September 17, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, August 31, 2015

The Innocent Sellers Fairness Act

Twelve U.S. House members are sponsoring the Innocent Sellers Fairness Act (H.R. 1199), designed to remove liability for product injuries from sellers and keep it on manufacturers.

The bill would make it so that no seller of any product would be liable for damages, except in the following cases:

  • The seller was the manufacturer of the product;
  • The seller participated in the design of the product;
  • The seller participated in the installation of the product;
  • The seller altered, modified or expressly warranted the product in a manner not authorized by the manufacturer;
  • The seller had actual knowledge of the defect in the product as a result of a recall from the manufacturer or governmental entity authorized to make such recall or actual inspection at the time the seller sold the product to the claimant;
  • The seller had actual knowledge of the defect in the product at the time the seller supplied the product;
  • The seller intentionally altered or modified a product warranty, warning or instruction from the manufacturer in a way not authorized by the manufacturer; and
  • The seller knowingly made a false representation about an aspect of the product not authorized by the manufacturer.

A version of the bill has been in the House since 2007, but the number of sponsors has risen recently.  U.S.Glass News Network has details.

August 31, 2015 in Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0)

Thursday, August 27, 2015

Reducing Med Mal Through Cameras in ORs?

Earlier this month, I reported on a bill in Wisconsin to allow patients to have surgeries recorded.  On Tuesday, The Washington Post (Tom Jackman) covered the idea in an article.  A sample:

Currently, re-creating what went wrong in an operating room involves a mixture of memories and whatever notes were taken at the time or shortly afterward, a vague combination that vexes families trying to get to the truth about a failed procedure or a fatal complication. Recording surgeries “offers transparency, truth and accuracy,” Ayer said, “in collecting data for the medical record and testimony. It offers data and insight for medical boards and even prosecutors. It offers oversight and policing.”

The medical industry is treading cautiously. The American Hospital Association, the American Medical Association and the American College of Surgeons all declined to comment for this article. In 2005, the AMA adopted a policy on filming patients in health-care settings — it encouraged the practice for educational purposes — but focused on patient privacy and on filming only those who give their consent.

August 27, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, August 4, 2015

WI: Bill to Allow Patients to Have Surgeries Recorded

A lawmaker in Wisconsin has introduced a bill that would allow patients to have their surgeries videotaped.  The purpose is to preserve data that could later shed light if a patient had a poor outcome.  The application to med mal is obvious.  The National Law Review has the story.

August 4, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, July 28, 2015

IA: Med Mal Early Resolution Program

In Iowa, the reform I reported on here has become law.  It has similarities to a program at the University of Michigan, which has also inspired laws in Massachusetts and Oregon.  Readers of the blog know I am a big fan of programs that aim to more swiftly and certainly resolve disputes without litigation, especially in med mal cases. 

The CANDOR law is reviewed at JD Supra.

July 28, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, July 22, 2015

FL: Intermediate Appellate Court Upholds Ex Parte Communications Med Mal Reform

In 2013, the Florida legislature passed a med mal reform requiring claimants filing lawsuits to sign forms authorizing ex parte communications:

In ex parte communications, for example, defense attorneys representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information could come from other doctors who treated the patient, and disclosure could occur without the patient's attorney being present.

In October of 2014, the Eleventh Circuit held that the reform did not violate HIPAA. 

Now the 1st District Court of Appeal has upheld the constitutionality of the reform from challenges that it violates the right to privacy and separation of powers. CBS Miami has the story

July 22, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, July 13, 2015

WI: Lowest Med Mal Claim Payments in the U.S.

...according to this story in the Milwaukee Journal Sentinel.

July 13, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, July 9, 2015

FL: Intermediate Appellate Court Rules Med Mal Cap Unconstitutional

Relying on the Florida Supreme Court's ruling that a cap on emotional distress damages in wrongful death cases is unconstitutional, an intermediate appellate court (the Fourth District Court of Appeal) ruled the state's med mal cap on noneconomic damages violates the equal protection clause of the Florida Constitution.  Courthouse News Service has the story.

July 9, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, June 30, 2015

Engstrom on Health Courts

Nora Freeman Engstrom has posted to SSRN A Dose of Reality for Specialized Courts:  Lessons from the VICP.  The abstact provides:

The latest in a long line of reform proposals, health courts have been called “the best option for fixing our broken system of medical justice.” And, if health courts’ supporters are to be believed, these specialized courts are poised to revolutionize medical malpractice litigation: They would offer faster compensation to far more people, while restoring faith in the reliability of legal decisionmaking. But these benefits are, as some leading supporters have acknowledged, “hoped for, but untested.” The question remains: Will health courts actually operate as effectively as
proponents now predict?

The best evidence to answer that question comes, I suggest, from the Vaccine Injury Compensation Program (VICP) — a Program that employs very similar procedures to handle very similar claims and that had, at its birth, a very similar ambition. Mining nearly three decades of previously untapped material concerning the VICP’s operation, this Article analyzes how an American compensation program that wrests jurisdiction from traditional courts has, in practice, fared. Findings are discouraging. Though the VICP and health courts share many of the same procedural innovations, those innovations, in the VICP context, have largely failed to expedite adjudications and rationalize compensation decisions. This fact carries significant implications for health courts, suggesting that they won’t operate nearly as effectively as their proponents now predict. More broadly, this study of an American no-fault regime, in action and over time, enriches — and at times complicates — current understanding of the prospects, promise, and “perceived virtues” of other specialized courts and alternative compensation mechanisms.

June 30, 2015 in Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0)

Tuesday, May 26, 2015

FL: Med Mal Cap Not Retroactive

The Florida Supreme Court ruled last week that Florida's 2003 medical malpractice cap is not retroactive to damage done prior to the law's passage.  WCTV has details.

May 26, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, May 8, 2015

MO: Governor Signs Med Mal Caps Bill

Missouri Governor Jay Nixon signed the med mal caps bill passed by the legislature (earlier coverage here):

The limits apply only to noneconomic damages, not medical costs or lost wages.

Most noneconomic damages would be capped at $400,000. For catastrophic cases, including paralysis or brain injury, the cap would be $700,000.

The bill also doubles the limit in wrongful death cases to $700,000. has details.

May 8, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)