Tuesday, June 30, 2015
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.
Tuesday, May 26, 2015
Friday, May 8, 2015
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.
WGEM.com has details.
Wednesday, April 29, 2015
In Connecticut, Senate Bill 1028 would allow people who turn 18 to sue for personal injuries they suffered when they were minors and unable to sue in their own name. It would allow recovery for negligence, including med mal, and reckless misconduct. Trial lawyers and doctors are squaring off over the bill. The Hartford Courant has the story.
Friday, April 24, 2015
In 2012, the Missouri Supreme Court struck down that state's med mal damage cap. The legislature has passed a replacement, and it is now awaiting Governor Jay Nixon's decision whether to sign it. In sum:
The bill, if signed into law, would place a $400,000 cap on noneconomic damage awards in medical malpractice cases. The cap would be raised to $700,000 for catastrophic and wrongful death cases. Both caps would then increase by 1.7 percent each year.
There is a catch to the law. A jury would still be able to award an amount greater than the allowed caps. If a motion is then made contesting the award, the trial court will determine whether the limitations apply in that case.
The St. Louis Business Journal has the story.
Monday, April 20, 2015
The current cap in place for Maryland's municipalities is $200,000 per claim/$500,000 per incident. The House passed an increase to $300,000/$600,000 and the Senate passed an increase to $500,000/$1,000,000. Perhaps not surprisingly, a conference committee approved $400,000/$800,000 and that passed 89-45 in the House and 33-14 in the Senate. The bill also extends the filing period from 6 months to 1 year. HB 113 awaits the governor's signature. MarylandReporter.com has the story.
Wednesday, April 15, 2015
Late last month, the Maryland Court of Appeals upheld the cap on damages for claims against local governments. The current cap is $200,000 per claim, with a maximum of $500,000 for any number of claims stemming from a single incident. The House passed a bill raising those limits to $300,000 and $600,000. Last week a Senate committee proposed raising the limits to $500,000 and $1,000,000. The full Senate will vote on Friday. Cecil Whig has the story.
Monday, April 13, 2015
On Thursday, Arizona Governor Ducey signed into law a bill requiring plaintiffs to disclose asbestos claims they have filed or intend to file. The legislation, referred to as a transparency law, is justified as necessary to keep plaintiffs from double-dipping from asbestos trusts. Today's News-Herald has the story.
In other asbestos news, the California Supreme Court will hear an appeal regarding the status of "take home" asbestos claims. The lower appellate court denied the claim. The Pacific Legal Foundation provides information on the case and argues against such claims here.
Thursday, April 2, 2015
On Monday, the Maryland Court of Appeals upheld a cap on damages against local governments. A jury awarded $11.5M to the family of a man shot to death by police, and the family argued the cap was unconstitutional. The court rejected the challenge; the family will receive $400,000. The Baltimore Sun has the story.
Monday, March 23, 2015
Sunday, March 15, 2015
On Thursday, I reported the Missouri Senate had given preliminary approval to med mal caps. Here is an update:
The Senate voted 28-2 on Thursday to approve a measure limiting awards for pain and suffering in most personal injury cases arising from botched medical procedures to $400,000.
In catastrophic injuries, the limit would be $700,000. The measure also raised the existing cap on wrongful death cases form $350,000 to $700,000.
The bill will have to be reconciled with the House bill, which is a single noneconomic damages cap of $350,000. The Kansas City Star has the story.
Thursday, March 12, 2015
Last week, I reported the Missouri House had given preliminary approval to a $350,000 noneconomic damages cap in med mal cases. The Senate has now given preliminary approval to a med mal noneconomic damages cap, but the details are different:
In most cases, a cap of $400,000 would apply. In more serious "catastrophic" injuries specifically defined in the bill — including paralysis, brain injury or a loss of vision — the cap would be $700,000. The bill also raises an existing $350,000 cap on noneconomic damages in wrongful death cases to $700,000.
All three of these caps would increase each year by 1.7 percent under the bill.
AP has the story.
Tuesday, March 10, 2015
A Tennessee circuit court judge ruled yesterday that the state's cap on noneconomic damages is unconstitutional, likely triggering review by the Tennessee Supreme Court. Unlike caps in many states, this one is not limited to medical malpractice cases. The Chattanooga Times Free Press has the story.
Friday, March 6, 2015
The Missouri House provided initial passage of a bill to reinstate a $350,000 non-economic damages cap in medical malpractice cases. One more vote is needed before the bill goes to the Senate. The bill received 101 votes, not the 109 it would need to override a veto. OzarksFirst.com has the story.
Wednesday, March 4, 2015
In Iowa, the medical community and trial lawyers have agreed to a voluntary early resolution program for medical malpractice cases; a Senate subcommittee has recommended passage. The bill's "Explanation" section provides:
This bill allows a physician, or a physician jointly with a health facility, to engage in an open, confidential discussion with a patient related to an adverse health care incident.
If an adverse health care incident occurs, the bill allows a physician, or a physician jointly with a health facility, to offer to engage in an open discussion with the patient. The notice of an offer to engage in an open discussion must be sent to the patient within 180 days after the adverse health care incident. If the patient agrees to proceed with an open discussion, the physician or health facility may investigate the adverse health care incident, disclose the results to the patient, and discuss steps the physician or health facility will take to prevent similar adverse health care incidents. The physician or health facility may also communicate to the patient that either the physician or health facility has determined that an offer of compensation is not warranted or that an offer of compensation is warranted. An offer of compensation may be conditioned upon the patient executing a release of future liability as to the adverse health care incident. All communications made under the Code chapter are privileged and confidential, are not subject to discovery, subpoena, or other means of legal compulsion for release, and are not admissible in evidence in a judicial, administrative, or arbitration proceeding.
The Gazette has the story.
Tuesday, March 3, 2015
Last year, Georgia debated becoming the first state in the country to reform med mal along the lines of workers comp. The bill failed. Sen. Brandon Beach is introducing a similar bill, Senate Bill 86:
Under the proposal, the new system will be governed by an 11-person panel consisting of physicians, attorneys, accountants and patient advocates. The board will set maximum injury compensation rates and approve medical review panelists.
Complaints will be handled by independent panels, comprised of representatives from practices or specialty areas similar to the provider. If a claim is found to have merit, the plaintiff will receive a monetary award to be determined by a compensation committee.
NeighborNewspapers.com has the story.
Tuesday, February 24, 2015
The West Virginia Senate recently passed a bill reinstating the "open and obvious" doctrine in premises liability. In Illinois, a bill introduced in the House would go in the opposite direction, restricting consideration of open and obvious conditions to the trier of fact on the issue of comparative fault. Thus, a judge would not be able to consider open and obvious on the duty issue. The National Law Review has the story.
Monday, February 23, 2015
Current law in Indiana restricts medical providers from volunteering their services unless they have malpractice insurance. Similar to laws in several other states, House Bill 1145:
would establish a licensing procedure for both volunteers and locations at which medical services can be offered. Volunteers must sign a waiver and be working without compensation at a licensed facility in order for civil immunity to be applicable.
Exceptions to the malpractice immunity will be made in instances where gross negligence or willful misconduct has taken place or if a nonapproved procedure is performed by a volunteer.
Indiana Daily Student has the story.
Sunday, February 22, 2015
On Wednesday, on an 18-16 vote, the Senate defeated a punitive damages cap. On Thursday, on a 26-8 vote, the Senate passed a bill that capped damages at $500,000 or four times compensatory damages (up from 3x in the bill defeated a day earlier), whichever is greater. WV MetroNews has the story.
Thursday, February 19, 2015
West Virginia has been an extremely busy place for tort law this month. Yesterday the Senate declined to enact a punies cap of $500,000 or three times compensatory damages, whichever is greater. The vote was 18-16, with two Republicans joining the Democrats in opposition. WV MetroNews has the story.