Friday, December 13, 2013

MO: Bill Would Restore $350K Med Mal Noneconomic Damages Cap

Rep. Eric Burlison has pre-filed a bill that would reinstate a noneconomic damages cap of $350,000 on med mal cases in Missouri.  In 2012, the state supreme court struck down a similar cap.  The Missouri House passed a cap last year, but it died in the Senate.  KMSU has the story.

--CJR

December 13, 2013 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, November 18, 2013

House Passes "Lawsuit Abuse" Bill

As I mentioned, last week, the U.S. House was taking up the Lawsuit Abuse Reduction Act.  The ABA Journal reports that the bill passed the House on Thursday.   The bill reinstates mandatory sanctions and eliminates the 21-day safe harbor for frivolous claims under Rule 11 of the Federal Rules of Civil Procedure.  

Thanks to Lisa Smith-Butler for the alert. 

- SBS

November 18, 2013 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

"Tort Reform the Song"

From John Day comes "Tort Reform the Song".  As Day explains,

"Tort Reform - The Song" was authored as part of the American College of Trial Lawyers Sixth Circuit Conference held in April 2013 in Nashville. The Conference brought together Michigan, Ohio, Kentucky and Tennessee Fellows and their spouses.

It was appropriate to draw upon Nashville's incredible music history and talent as part of this program, and thus three professional songwriters, led by Ryder Lee, a law student at the Belmont University School of Law and founder and former member of The Lost Trailers helped us write a song. Ryder came into the program with the music and a strong start on the lyrics. The attendees, now co-authors of this work, contributed during the program. Ryder and I finished the work in a writer's room at Universal in Nashville and - no kidding - while sitting on the tailgate of Ryder's truck in the parking lot below Taylor Swift's condominium.

- SBS

November 18, 2013 in Current Affairs, Legislation, Reforms, & Political News, Music | Permalink | Comments (1) | TrackBack (0)

Friday, November 15, 2013

House Passes Tort Reform Bills

On Monday, Sheila reported that two tort reform bills, the Furthering Asbestos Claim Transparency Act (FACT) and the Lawsuit Abuse Reduction Act (LARA) might receive votes in the U.S. House of Representatives this week.  FACT passed on Wednesday with a 221-199 vote and LARA passed yesterday 228-195.

--CJR

November 15, 2013 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, November 11, 2013

Two Tort Reform Bills on House Calendar This Week

Two tort reform bills have been placed on the House calendar for this week:  the Lawsuit Abuse Reduction Act and the Furthering Asbestos Claim Transparency Act.  According to Govtrack.us, both bills are scheduled to be heard by the House Committee on Rules on November 12th.  

Workers' Compensation Blog has more.

- SBS

November 11, 2013 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, October 24, 2013

PA Adopts Med Mal Apology Immunity Legislation

Yesterday Gov. Tom Corbett signed legislation excluding from evidence apologies made by physicians and nursing home staff and administrators in med mal cases.  Statements accompanying the apology remain admissible.  The bill passed the state House 202-0 and the Senate 50-0.  PennLive has the story.

--CJR   

October 24, 2013 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 1, 2013

Ohio Tort Reform - 10 Years Later

WOSU, the public radio station in Columbus, Ohio, reports on the impact of Ohio's caps on non-economic damages passed 10 years ago.

- SBS

October 1, 2013 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, September 27, 2013

Gifford & Reynolds on CAFA and Parens Patriae Actions

Don Gifford & Bill Reynolds (Maryland) have published in the North Carolina Law Review Addendum The Supreme Court, CAFA, and Parens Patriae Actions:  Will it Be Principles or Biases?.  The abstract provides:

The Supreme Court will hear a case during its 2013-2014 term that will test the principles of both its conservative and the liberal wings. In Mississippi ex rel. Hood v. AU Optronics Corp., Justices from each wing of the Court will be forced to choose between the modes of statutory interpretation they usually have favored in the past and their previously displayed pro-business or anti-business predispositions. The issue is whether the defendant-manufacturers can remove an action brought by a state attorney general suing as parens patriae to federal court. Beginning with their actions against tobacco manufacturers in the mid-1990s, state attorneys general often sued as parens patriae in litigation of nationwide significance. In Hood, the Supreme Court considers whether mass plaintiffs’ attorneys, by partnering with state attorneys general in parens patriae actions, will be able to circumvent the requirements of the Class Action Fairness Act that allow defendants to remove class actions and other forms of mass actions to the typically more defendant-friendly confines of federal courts. Resolution will turn on the Court’s interpretation of the statutory term “mass action.” A textualist interpretation, usually favored by Justice Scalia and his conservative colleagues, would not allow such removal—a decidedly anti-business result. At the same time, a purposive approach to interpreting the statutory provision, promoted by Justice Breyer, possibly would allow such removal. For each group of Justices, the conflict is clear: Will they follow their previously articulated principles of statutory interpretation or their ideological biases?

--CJR

September 27, 2013 in Legislation, Reforms, & Political News, MDLs and Class Actions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, September 20, 2013

MO: Lawmakers Override Vetoes on 3 Limitations of Liability

In Missouri, 3 of the 10 veto overrides were on issues of tort reform.  Missouri now limits punies in some lead-contamination cases, bars uninsured motorists injured in auto accidents from recovering non-economic damages from insured drivers who were at fault, and shields volunteer health care workers from liability for all but the most egregious conduct.  The Bellingham Herald has the story.  The article discusses a trend I have noticed lately.  The reforms being proposed and adopted tend to be much more discrete and limited than in the past.

--CJR

September 20, 2013 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 11, 2013

OK: Legislature Concludes Special Session

Oklahoma legislators concluded a five-day special session on Monday.  Called by Governor Mary Fallin, the session addressed tort reform in the wake of a June ruling by the state's supreme court that a 2009 tort reform law was unconstitutional.  Legislators passed about two dozen bills addressing, among other things, med mal, class actions, and products liability.  There were disputes about the certificate of merit requirement and an exemption from liability for manufacturers of "inherently unsafe" products.  The San Francisco Chronicle has the story.

--CJR

September 11, 2013 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, September 6, 2013

GA: Senate Considers Replacing Med Mal with a Compensation System

Georgia's Senate is considering SB 141, a bill that would replace medical malpractice litigation with a compensation system.  The study committee vetting the bill will likely hold 4 or 5 hearings on it.  Organizations representing both trial lawyers and physicians are opposed, so enactment seems unlikely.  Tom Crawford's Georgia Report has the details.

--CJR

September 6, 2013 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 21, 2013

Nearly 30 Bills To Re-Enact OK Tort Reform

The Oklahoman Speaker of the House has reportedly stated that "it will take 26 to 28 separate bills to reenact the lawsuit reform legislation of 2009." The OK Supreme Court struck down the tort reform bill back in June.  More from the Oklahoma Watchdog.

- SBS

August 21, 2013 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 13, 2013

Engstrom & Rabin Op-Ed: Raise the MICRA Cap

Monday, July 29, 2013

"Ten Years of Tort Reform in Texas"

Joseph Nixon and the Texas Policy Foundation have posted  "Ten Years of Tort Reform in Texas: A Review." The abstract provides:

Ten years of tort reform have provided greater access to health care and helped make Texas the nation’s leading job producer. Indeed, by recognizing the causal connection between economic prosperity and efficient, fair courts, the Texas legislature passed and Governor Rick Perry signed House Bill 4 (HB4)—powerful tort reform legislation that is the foundation of the Texas economic miracle. Yet, despite the awesome economic growth and increased access to health care triggered by HB4, members of the trial bar are still working to overturn this reform. While Texans should stand their ground and rebuff efforts to undo HB4’s successful tort reforms, all Americans should take notice of Texas’s remarkable transformation and look to enact similar reforms in their own states.

 

- SBS

July 29, 2013 in Current Affairs, Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (1) | TrackBack (0)

Friday, July 26, 2013

More on the MICRA Ballot Measure

Thursday, July 25, 2013

CA: Potential Ballot Measure to Raise MICRA Med Mal Cap

In 1975, California enacted one of the most influential tort reforms (MICRA), and it included a $250,000 cap on noneconomic damages in med mal cases.  The cap was not indexed to inflation and has remained in place for nearly 40 years.  There is a movement to get a measure on the 2014 ballot to raise the cap.  Starting in September, proponents will attempt to collect the 400,000 signatures of registered voters needed to get the measure on the ballot.  KPBS has details.

--CJR

July 25, 2013 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, July 19, 2013

OK: Special Session on Tort Reform?

Oklahoma Governor Mary Fallin is deciding whether to call the legislature into special session in response to the Oklahoma Supreme Court's decision that a 2009 tort reform law was unconstitutional on the grounds it contained more than one subject.  OklahomaWatchdog.org has an overview.  The Enid News and Eagle has an opinion piece opposing a special session because of its costs to the taxpayers.

--CJR

July 19, 2013 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 2, 2013

Lawyers Challenge FL Med Mal Reform

One of the medical malpractice reforms recently adopted in Florida allows lawyers for health care providers in med mal claims to collect information on private conversations between patients and other health care providers without the patient's consent.  Five lawsuits filed yesterday challenge the reform on the grounds that it violates both the state constitution and federal law (HIPAA).  The Miami Herald blog has details.

--CJR

July 2, 2013 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, June 10, 2013

Oklahoma Supreme Court Finds Tort Reform Law Unconstitutional

The Oklahoman reports that the Oklahoma Supreme Court ruled that the state's Comprehensive Lawsuit Reform Act of 2009 was unconstitutional under the state constitution.   The court found that the statute violated the single-subject rule of the OK state constitution, which requires that each bill only deal with a single subject. Forbes also has a report. 

The Times Union reports that the Oklahoma legislature is trying to figure out how to re-enact the provisions of the 2009 act in a manner that comports with the court's ruling.  

- SBS

June 10, 2013 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, May 17, 2013

Catastrophic Payments and Medical Malpractice

Terry Baynes of Reuters has written an article about the recent study by a group of physicians at John Hopkins finding that large med mal awards do not contribute significantly to healthcare costs.  The article quotes the lead author of the study, Dr. Marty Makary, and me on the issue.  My comments appear somewhat more skeptical of the med mal tort system than I actually am (through no fault of Ms. Baynes), and that caused me to reflect further on the significance of the study. 

The study (pdf) finds that catastrophic judgments (of over $1M) constitute approximately .05% of national healthcare costs (as measured in 2010).  I believe the inferences and recommendations that Dr. Makary and his colleagues draw from this are generally correct.  First, they determine that catastrophic payouts are not a major driver of health care costs.  Second, at least in interviews, Dr. Makary argues that defensive medicine due to the vague standard of care is a bigger expense than catastrophic payouts.  Third, acknowledging the study does not include costs of defensive medicine, the authors conclude that the financial savings due to malpractice reform may be minimal compared to other drivers of health care costs.  Fourth, at least in interviews, Dr. Makary argues that malpractice reform should not be focused on caps, but on the standard of care. 

First, the study does support, at least modestly, a policy decision against caps.  The argument is that "lopping off" the top of large med mal judgments does not save a lot of money because the amount of large judgments is small.  There are, however, confounding variables.  The study uses $1M or more as the definition of catastrophic payouts.  Most caps are set well below $1M and are caps not on total awards, but on noneconomic loss alone.  I don't see that the study differentiates between economic and noneconomic damages.  This is not a criticism; I don't believe the National Practitioner Data Bank from which the data are drawn makes this distinction.  It does, however, prevent a direct comparison between catastrophic payments and how caps would operate on them.

There are certainly other arguments against caps.  They have a disparate impact on those who are most seriously injured.  The most seriously injured in tort law are already under compensated, receiving a portion of economic loss, while those whose injuries are minor tend to receive several times economic loss.  Moreover, to the extent that caps are aimed not at the top awards but at generally reducing suits, particularly frivolous suits, there is a much more direct and fair tool available:  certificates of merit.  Suits filed without merit is a problem; a 2006 study found that 37% of med mal claims in random samples of closed-claim files at 5 med mal insurance companies were non-meritorious.  (David M. Studdert et al., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 354 New Eng. J. Med. 2024 (2006)).  Pennsylvania has used certificates of merit (and no cap) to positive results.   

Second, I agree that malpractice reform would not dramatically reduce costs in the vast health care system.  Steven Brill's Time piece in March discussed numerous non-malpractice-related problems driving up costs.  That doesn't mean malpractice law should not be reformed, just that it should be reformed for other reasons.

Third, and most significantly, I agree with the conclusion that the standard of care is a big part of the problem with med mal litigation.  What is reasonable under the circumstances can be difficult to determine under banal circumstances.  When applied to the practice of medicine, those complications multiply.  Dr. Makary focuses on this as the cause of defensive medicine, and I'm sure it happens (though measuring it seems challenging).  Moreover, the uncertainty created by the standard leads to delay and transaction costs as the parties genuinely dispute whether a health care provider acted reasonably under the circumstances.  As to delay, the Studdert study referenced earlier found the average med mal claim spanned 5 years from occurrence to closing.  As to transaction costs, the study found only 46 cents of every dollar went to claimants.  Both these figures are consistent with prior studies. 

Thus, the uncertain standard creates 3 problems.  First, not all results are accurate.  The Studdert study found an accuracy rate of determining medical errors (not quite the same as med mal, but close) at between 70 and 75 per cent.  That is a better than random, but not great, particularly in light of the other 2 problems:  delay (5 years on average) and transaction costs (running the system costs 54 cents of every dollar).  This obviously creates potential problems for health care providers:  the possibility of an erroneous adverse judgment, time spent worrying and not focused on health care, and high attorneys' fees/insurance premiums.  To me, it is even worse for claimants.  The Studdert study found 1 in 6 victims of medical error did not recover.  In fact, the study found  nonpayment of claims with merit occurred more frequently than did payment of claims that were not associated with errors or injuries.  Moreover, a 5-year wait can be devastating to a claimant, particularly if there are large medical bills and lost wages involved.

Instead of simply raising the standard to make it more difficult for claimants to recover (recall 1 in 6 already doesn't recover when s/he should), it makes sense to me to provide claimants and health care providers a voluntary way to opt out of the tort system and handle the claim more along insurance lines, paying economic loss and a modest amount for pain and suffering.  New Hampshire's early offers law passed last June was a step in the right direction.  It may not be perfect, but it is an improvement over the current system.  I won't make a long post any longer, but those who are interested in New Hampshire's early offer law can go here, here, and here.   

--CJR 

There is one other facet of the study that is interesting.  The authors find a physician's years in practice and, most significantly, previous paid claim history had no effect on the odds of a catastrophic payout.  Ted Frank mentioned this at Point of Law.  I would not have expected a strong correlation, but the lack of any correlation is surprising to me.

May 17, 2013 in Legislation, Reforms, & Political News, Scholarship, Science | Permalink | Comments (0) | TrackBack (0)