Monday, July 31, 2017
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.
Friday, July 28, 2017
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.
Wednesday, July 12, 2017
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.
Monday, July 10, 2017
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.
Monday, July 3, 2017
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.”
Thursday, June 29, 2017
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.
Friday, June 9, 2017
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.
Tuesday, June 6, 2017
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.
Wednesday, May 31, 2017
Back in March, I reported that a med mal review panel bill had passed the legislature in Kentucky. The bill was signed by the governor and goes into effect on June 29. The Kentucky Cabinet for Health and Family Services is accepting applications from attorneys interested in participating in those panels; fifty attorneys have already expressed interest.
Panels will have nine months to review cases and render an opinion, with the results admissible in court, but not binding. They can render one of three opinions:
A medical provider violated standard of care and that action was the proximate cause of injury.
The provider violated standard of care, but it was not the proximate cause of injury.
Standard of care was not violated.
Kentucky New Era has the story. The panels will add further delay to the resolution of med mal cases, which are already too slow (averaging 4-5 years from event to resolution).
Monday, May 8, 2017
On Friday, Iowa Governor Terry Branstad signed into law a bill for med mal cases requiring a certificate of merit and capping non-economic damages at $250,000 except in cases involving permanent impairment, disfigurement, or death. The Des Moines Register has the story.
Monday, May 1, 2017
Monday, April 24, 2017
Twelve states have passed asbestos transparency laws requiring plaintiffs in asbestos suits to disclose claims they have filed with asbestos trusts. In Missouri, such bills have been filed in both the House and Senate. What's the rationale for such bills?
“We know from the Garlock bankruptcy case, as well as many case reports and studies that have come out, that withholding of plaintiff exposure evidence is widespread and problematic nationally, including in St. Louis,” Mark Behrens, a partner with the Washington, D.C., law firm Shook Hardy & Bacon, told the St. Louis Record.
Behrens was referencing a nearly 4-year-old case involving Garlock Sealing Technologies in which it was alleged in a lawsuit that a handful of law firms representing asbestos plaintiffs in civil actions were untruthful about their clients’ exposures, telling different stories through filings with the bankruptcy trust system than were alleged through the suits.
The bills have until the end of May to be taken up by the legislature. The St. Louis Record has the story.
Wednesday, April 19, 2017
I reported last week that the Iowa House passed a med mal bill with a general cap of $250,000 on non-economic damages, but an exception for cases of “substantial or permanent loss or impairment of bodily functions and substantial disfigurement.” The Iowa Senate, having already passed the bill without the exception, passed a bill with the exception on Monday. The bill now goes to Governor Branstad's desk. He is expected to sign it. The Des Moines Register has the story.
Friday, April 14, 2017
The Iowa House passed a med mal reform bill after amending it to include a "soft cap" exception to the general cap of $250,000:
The key to winning bipartisan support for Senate File 465 was an amendment that removed a hard cap on non-economic damage awards “in the most egregious cases,” said the floor manager Rep. Ashley Hinson, R-Marion. It would allow juries to make awards of more than $250,000 in cases of “substantial or permanent loss or impairment of bodily functions and substantial disfigurement.”
The Senate previously approved the bill without the exception, and the two bills will need to be reconciled. The bill also includes a certificate of merit requirement.
The Waterloo Cedar Falls Courier has the story.
Wednesday, March 22, 2017
The Iowa Senate passed a tort reform bill in an attempt to attract more physicians to the state:
Senate File 465 includes provisions governing doctor-patient communications after adverse medical incidents; capping limits on non-economic damages, such as pain and suffering, at $250,000; requiring a "certificate of merit" to screen out frivolous litigation; and establishing standards for expert witnesses. The Des Moines Register has this story.
These reforms, including the cap, are unlikely to significantly affect physician supply in Iowa, as I stated back in 2014.
Thursday, March 16, 2017
Wednesday, March 15, 2017
Monday, March 13, 2017
Friday, March 10, 2017
Bruce Kaufman at Bloomberg has this piece: House Approves Sweeping Class Action Overhaul Legislation.
Monday, March 6, 2017
Both the House and Senate have passed a med mal review panel bill, and it is on its way to Governor Matt Bevin. The gist:
The proposed law would require plaintiffs to submit medical malpractice claims for review to an advisory panel that would review the case and determine whether it has merit or is frivolous before issuing a nonbinding opinion as to whether the case should proceed.
Trial judges would decide the admissibility of the panel's finding.
When our firm represented med mal plaintiffs in Virginia, a review panel law was in place. We routinely declined to participate in the process. When the results were provided to the jury our non-participation in the panel procedure was noted. The panels are a waste of time. A better way to reduce suspect lawsuits is to use a certificate of merit procedure. It is not perfect, but it accomplishes the goal of reducing frivolous suits more directly, and without an impact on plaintiffs whose suits are meritorious. Needless to say, it is far superior to caps for the same reason.
The National Law Review has the story.