TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Monday, February 20, 2017

AR: Tort Reform Clears Senate

The Arkansas Senate voted 21-10 to send a proposed constitutional amendment involving damage caps to the House for further consideration.  Given that 53 of the 100 members of the House are co-sponsors, it has a good chance of passing.  If the House approves the proposal, it will be on the ballot in the 2018 general election.  Arkansas Online has the story; more coverage at KARK.

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

Thursday, February 16, 2017

KY: Med Mal Panel Bill "Idling in the House"

A bill to create med mal panels has, once again, been introduced in Kentucky:

The bill states that unless all parties involved agree to go directly to court, the complaint should be reviewed by an independent panel before it can move forward. The panel would consist of one attorney and three health care providers, with the attorney acting as the panel chairperson.

Once the panel is chosen, both parties may submit evidence to be reviewed. Two or more members of the panel must agree that evidence shows there was or was not malpractice.

The opinion will be issued within six months of the complaint being filed. That opinion can be used as evidence in the court if the case is able to move forward.

The bill passed the Senate in early January, but has made no progress in the House.  Legal NewsLine has the story.

February 16, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, February 15, 2017

AR: Senate Panel Approves Tort Reform Amendment

Yesterday an Arkansas Senate committee voted to advance a constitutional amendment involving damage caps to the full Senate.  The bill's sponsor will request a vote tomorrow.  McClatchy DC Bureau has details.

February 15, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, February 10, 2017

AR: Tort Reform Returns

You may recall that last fall the Arkansas Supreme Court struck down a tort reform ballot initiative.  It's back.  The Arkansas Times reports:

A proposed amendment to the Arkansas Constitution filed last week in the Senate seeks to limit the amounts that can be awarded to claimants in civil actions, such as medical malpractice lawsuits. If Senate Joint Resolution 8 is approved by the General Assembly — and with a long list of co-sponsors, it seems likely to pass — it would appear before voters on the 2018 ballot. Sen. Missy Irvin (R-Mountain View) is the lead sponsor.

Like the so-called "tort reform" measure on the 2016 ballot (which was disqualified by the state Supreme Court not long before the election), SJR 8 would place a cap of $250,000 on noneconomic damages, meaning compensation for hard-to-quantify personal losses such as pain and suffering. The proposed amendment also places a cap on punitive damages, though that ceiling is more flexible. But SJR 8 also would give the legislature control over the rules of pleading, practice and procedure in the judicial branch, thus taking power away from Arkansas courts and giving it to the General Assembly.

February 10, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, February 9, 2017

MO: Collateral Source, Daubert Bills Pass House

Tort reform measures altering the collateral source rule and establishing Daubert as the standard to judge scientific methodology in state courts have passed the Missouri House.  The Missouri Times has the story.

February 9, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, February 6, 2017

MO: Tort Reform Update

According to this article in The Missouri Times, the collateral source and Daubert bills I reported on earlier are going to pass the state House.  The next reform bills will focus on venue and joinder, and are aimed at restricting out-of-state plaintiffs from Missouri.

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

Tuesday, January 24, 2017

MO: Collateral Source, Daubert Bills Voted Out of House Committee

In Missouri, tort reform bills to adopt Daubert as the state standard on scientific and technical evidence and restrict the collateral source rule passed 9-3 in the House Special Committee on Litigation Reform.  The bills move on to the full House.  The Missouri Times has details.

January 24, 2017 in Experts & Science, Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, January 6, 2017

Nader on Tort Reform

Plaintiffs' lawyer Mike Papantonio interviews Ralph Nader on tort reform here.

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

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)