TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, December 30, 2016

NM: "Ban the Box" Meets Negligent Hiring and Retention

The New Mexico legislature is considering a law that would extend the prohibition on asking job applicants whether they have criminal convictions to the private sector.  Currently, governmental units are prohibited from asking the question at the screening phase.  The goal is to allow people with convictions to more easily reintegrate into society.  The rub, however, is that New Mexico recognizes the torts of negligent hiring and retention.  An employer who hires or retains an employee who commits a tort when the employer knew or should have known of the risk posed by the employee could be liable.  In his column, Joel Jacobsen calls for protections for employers as part of the new law.  Of course, employers can still ask the question in subsequent phases of the hiring process.

December 30, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, December 26, 2016

Indiana vs. Kentucky on Med Mal Tort Reforms, Insurance Premiums, and Medical Costs

The Courier-Journal compares Indiana and Kentucky on medical malpractice tort reforms, insurance premiums, and medical costs.  The gist:

Indiana is only one of six states that cap damages of all kinds – including lost wages and the cost of medical treatment – to victims of medical malpractice.

Though the figures are scheduled to rise over the next three years, for now, individual doctors and hospitals are only on the hook for $250,000, and the total award to plaintiffs is limited to $1.25 million.

Patients also must submit their claims to medical malpractice review panels, before they can sue and go to court.  And punitive damages are limited to three times the actual damages to the plaintiff.

The result is cheaper medical malpractice insurance premiums for doctors in Indiana, which Michael Rinebold, director of government relations for the Indiana State Medical Association, said encourages doctors to locate there.

Figures collected from malpractice insurance brokers show that doctors pay about 25 percent less for insurance in Indiana than Kentucky.

But doctors in Kentucky pay out only slightly more in average claims per year than their counterparts in Indiana, according to the National Practitioner Data Bank. And consumers in the two states pay virtually the same amount per person on doctors and hospitals, according to the most recent data available.

Read the full article here, and a related piece here.

December 26, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, December 22, 2016

MI: Bill Passes to Restrict Med Mal Damages to Amount Paid, Not Charged

In July, the Michigan Supreme Court ruled that state law in med mal cases allowed plaintiffs to recover the gross amount of medical bills charged by providers.  Because insurers, Medicare, and Medicaid have provider rates substantially less than the charged rates, plaintiffs were able to recover more than the amount paid.  The Michigan Senate has passed a bill restricting the amount of compensation in med mal cases to the amount paid, regardless of the amount charged.  The bill is on its way to the governor for his signature.  The Daily Reporter has the story.

December 22, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, December 21, 2016

The Columbus Dispatch Urges Amendment to Noneconomic Damages Cap

The editorial board of The Columbus Dispatch has weighed in on the noneconomic damages cap upheld last week by the Ohio Supreme Court.  It urges the General Assembly to amend the law next session to enact an exclusion for sexual-assault victims.  It's a sound idea.  Even if you support caps on noneconomic damages, caps that cover intentional acts are very rare.

December 21, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, December 19, 2016

OH: Cap on Noneconomic Damages is Constitutional

The Supreme Court of Ohio has ruled, again, that a cap on noneconomic damages is constitutional.  The suit involved a 15-year-old girl who was raped by her senior pastor during a counseling session in his office.  The girl and her father sued the pastor and several other defendants and obtained a $3.6M verdict.  After the cap was applied, the judgment was trimmed to $500,000.  Marianna Brown Bettman (Emeritus, Cincinnati) has a detailed post at her blog, "Legally Speaking Ohio".

December 19, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, December 13, 2016

McMichael, Van Horn, & Viscusi on Apology Laws

Benjamin McMichael, Lawrence Van Horn, and Kip Viscusi (all Vanderbilt) have posted to SSRN Sorry is Never Enough:  The Effect of State Apology Laws on Medical Malpractice Liability Risk.  The abstract provides:

State apology laws offer a separate avenue from traditional damages-centric tort reforms to promote communication between physicians and patients and to address potential medical malpractice liability. These laws facilitate apologies from physicians by excluding statements of apology from malpractice trials. Using a unique dataset that includes all malpractice claims for 90% of physicians practicing in a single specialty across the country, this study examines whether apology laws limit malpractice risk. For physicians who do not regularly perform surgery, apology laws increase the probability of facing a lawsuit and increase the average payment made to resolve a claim. For surgeons, apology laws do not have a substantial effect on the probability of facing a claim or the average payment made to resolve a claim. Overall, the evidence suggests that apology laws do not effectively limit medical malpractice liability risk.

December 13, 2016 in Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0)

Friday, December 2, 2016

Senate Bill Introduced Limiting Racial and Gender Discrimination in Damages

A bill was introduced in the Senate yesterday by Senators Booker and Gillibrand seeking to limit the consideration of race and gender in computing damage awards.  The bill will have bipartisan sponsors in the House of Representatives.  Ohio State's Martha Chamallas has been heavily involved in the legislation.  The Washington Post has details.

December 2, 2016 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, November 15, 2016

The Trump Administration and Preemption

Some thoughts by James Beck at JDSupra Business Advisor.

November 15, 2016 in Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0)

Sunday, October 16, 2016

Sandy Hook Lawsuit Against Gun Manufacturers Dismissed

A Connecticut judge dismissed the case filed by parents of children killed at Sandy Hook Elementary School against gun manufacturers.  The parents alleged negligent entrustment in an attempt to get around the Protection of Lawful Commerce in Arms Act.  The judge ruled the plaintiffs did not meet the exception.  WaPo has the story.

October 16, 2016 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, October 14, 2016

Galasso & Luo on Tort Reform and Innovation

Alberto Galasso (Toronto-Strategic Management) & Hong Luo (Harvard Business School) have published Tort Reform and Innovation.  The abstract provides:

Current academic and policy debates focus on the impact of tort reforms on physicians’ behavior and medical costs. This paper examines whether these reforms also affect incentives to develop new technologies. We find that, on average, laws that limit the liability exposure of healthcare providers are associated with a significant reduction in medical device patenting and that the effect is predominantly driven by innovators located in the states passing the reforms. Tort laws have the strongest impact in medical fields in which the probability of facing a malpractice claim is the largest, and they do not seem to affect the amount of new technologies of the highest and lowest quality. Our results underscore the importance of considering dynamic effects in the economic analysis of tort laws.

Download here:   Download GalassoHong_27Sept16 (1)

October 14, 2016 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, October 13, 2016

AR: Supreme Court Strikes Down Ballot Initiative

The Arkansas Supreme Court has just killed the ballot initiative to amend the state constitution to allow the legislature in medical lawsuits to set a cap on noneconomic damages of at least $250,000 and limit attorney's fees to one-third of the recovery.  The court ruled the ballot title left critical elements, including "noneconomic damages", undefined.  Arkansas Times has the story.

October 13, 2016 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, October 10, 2016

AR: Constitutional Ballot to the Supreme Court; Recusals?

In November, the people of Arkansas are supposed to vote on a ballot measure amending the state constitution to allow the legislature in medical lawsuits to set a cap on noneconomic damages of at least $250,000 and limit attorney's fees to one-third of the recovery.  A special judge has determined there are flaws in the petition process; nursing home employees allegedly solicited signatures from nursing home residents.  Family members of the residents question whether the residents were able to understand what they were signing.  The issue now goes to the state supreme court.  A big issue, however, is whether some of the judges should recuse themselves.  The only member of the court not to receive campaign contributions from the nursing home industry is the chief justice.  Arkansasmatters.com has the story.

October 10, 2016 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, October 4, 2016

Culhane on the Justice Against Sponsors of Terrorism Act

John Culhane has published "Time to End 9/11 Exceptionalism" in Politico.

October 4, 2016 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, September 14, 2016

AR: Governor Silent on Ballot Measure

This November, Arkansawyers/Arkansans (not entering this debate!) are voting on a proposed amendment to the state constitution which would allow the legislature in medical lawsuits to set a cap on damages of at least $250,000 and to limit attorney's fees to one-third of the recovery.  Governor Hutchinson has remained neutral on the issue.  He says he will likely tell voters how he will vote on the measure, but not anytime soon.  Arkansas Online has the story.

September 14, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, June 30, 2016

MO: Gov. Nixon Vetoes Collateral Source, Expert Witness Bills

Governor Jay Nixon vetoed a bill that would have essentially abrogated the collateral source rule, stating the bill was particularly unfair to those purchasing insurance.  He also vetoed an expert witness qualification bill he stated was targeting the injured.  The Missouri Times has a discussion of all of Nixon's actions on bills this week.

June 30, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, June 22, 2016

PA: Two Women Sue Altoona-Johnstown Diocese Over Alleged Molestation in the 1970s

Back in March, I posted about a grand jury report detailing the sexual molestation of children in the Altoona-Johnstown Diocese.  Now two women have filed lawsuits alleging that a priest from the parish abused them in the 1970s.  The grand jury report led to a debate in the legislature about extending the statute of limitations and possibly including a window in which expired cases could be filed.  The state House passed a bill that would retroactively extend the civil statute of limitations (from age 30 to age 50).  The state Senate Judiciary Committee held a meeting last week and heard from five experts on the constitutionality of retroactively altering the statute of limitations.  The Pennsylvania Constitution has arguably been interpreted as more restrictive than the United States Constitution on the issue.  Four of the five experts opined that the bill was unconstitutional.  The women's lawsuits appear to make a case for extending the statute based on the alleged concealment of the cover-up by the diocese extending through last year.

June 22, 2016 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, June 20, 2016

NY: Med Mal Discovery Rule Bill Fails in Legislature (Again)

Last month, I reported on a bill to adopt the discovery rule for med mal cases in New York.  The bill would toll the (2 1/2 year) statute of limitations until the plaintiff discovered the alleged malpractice.  New York is one of only six states that does not follow the discovery rule in this context.  The bill died over the weekend.  New York Daily News has the story.

June 20, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, June 7, 2016

PA: Med Mal Claims Hit New Low (Again)

For several years, I have reported the decline in med mal claims in Pennsylvania from the base rate of 2000-2003.  Once again, a new low has been set.  In Allegheny County, of which Pittsburgh is the county seat, cases have fallen from 49 per year in 2000-2003 to 10 in 2015.  The Pittsburgh Business Times has the story.

June 7, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, May 30, 2016

The Workers Comp Bar in Ohio

Cincinnati.com has a story about the operation of the workers comp bar in Ohio and the requirement of intent on the part of employers.

May 30, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, May 26, 2016

NY: Med Mal Discovery Rule Bill

Yesterday I posted about New York's sexual assault statute of limitations.  Another bill in front of the legislature involves the med mal statute of limitations, specifically whether the discovery rule should be adopted.  Currently, New York's 2 1/2-year statute begins to run when the negligence is committed.  The bill, named Lavern's Law after a woman who died in 2013, would toll the statute until discovery, but leave the length at 2 1/2 years.  New York is 1 of only 6 states without the discovery rule for med mal cases.  The New York Daily News has the story, focusing on a tragic case.

May 26, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)