TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, January 11, 2018

ND: State Judge Rules Med Mal Cap Unconstitutional

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.

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.

"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.

January 11, 2018 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, December 26, 2017

WI: Supreme Court Aligns State Class Actions Rule With FRCP 23

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

December 26, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, December 20, 2017

NY: UM/UIM Law Changes

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.

December 20, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, December 14, 2017

WI: Bill to Allow Patients to Request the Recording of Operations

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.

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

Wednesday, December 6, 2017

USSC Declines to Review NE's Med Mal Damages Cap

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.

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

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.

November 24, 2017 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

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)