Tuesday, January 20, 2015
On Friday, I reported that Indiana's intermediate appellate court upheld its governmental damages cap from a constitutional challenge. The Pennsylvania Supreme Court reached a similar conclusion in November. Maryland is the latest state to consider the issue; last Monday, the Maryland Court of Appeals heard arguments over the state's $400,000 cap. If the court joins Indiana and Pennsylvania in affirming the constitutionality of the cap, the legislature should consider an insurance waiver to the governmental immunity cap, similar to the one in place in Delaware. The Baltimore Sun has the story.
Friday, January 16, 2015
Last month, I reported that the Indiana Court of Appeals (the intermediate appellate court) heard arguments on whether Indiana's tort claims damages cap for governmental defendants was constitutional. On Wednesday, the court upheld the damages cap as constitutional, mirroring a similar ruling from Pennsylvania in November.
Thursday, January 15, 2015
Dubuque, Iowa is moving ahead with an ordinance banning sledding in all but 2 of its 50 parks based on liability concerns and demands from the city's insurer. In the past decade, there have been sled injury verdicts of $2M or more in Omaha, Nebraska and Sioux City, Iowa. Several cities have started banning sledding, while other post signs warning of the risks. ABC News has the story.
Monday, January 5, 2015
Wisconsin law allows only spouses, minor children, or the parents of minor children to sue for wrongful death in med mal cases. The restriction prohibits adult children who lose their parents or parents who lose college-age children from suing for medical negligence. Bills to eliminate the restriction have been repeatedly introduced and defeated. This year State Senator Harris Dodd plans to introduce a narrower bill that would allow parents of children younger than 27 to file suit for medical malpractice. The Milwaukee Wisconsin Journal Sentinel has the story.
Monday, December 29, 2014
A panel created by the General Assembly has recommended a compensation fund for babies suffering neurological injuries at birth. Virginia and Florida set up similar funds years ago. The Baltimore Sun has the story.
Tuesday, December 23, 2014
Many jurisdictions have fewer civil than criminal jurors. On Friday, Illinois Governor Pat Quinn signed legislation to reduce civil juries from 12 to 6, effective June 1, 2015. In cases filed prior to June 1, the parties are entitled to a jury of 12. Public Act 098-132 is here. (Via The National Law Review)
Wednesday, December 17, 2014
Like many jurisdictions, Indiana has a tort claims act. Pursuant to Indiana's version, the maximum total payout to victims for any single event is $5M. In 2011, a stage at the Indiana State Fair collapsed; 62 victims have been paid damages from the incident. One of the injured, 10-years-old at the time, opted to sue the state. On Monday, an appellate court heard arguments that the cap is unconstitutional. In a filing, plaintiff's lawyers stated:
“The $5 million cap, both on its face and as applied, violates Plaintiff’s constitutional rights, which provides in relevant part [that] all courts shall be open, and every person for injury done to him and his person, property or reputation, shall have remedy by due course of law."
WISHTV.com has the story.
Thursday, December 4, 2014
The Ohio General Assembly is considering a bill to expand the state's apology immunity statute in med mal cases to include admissions of fault. The bill passed the state House last week and is expected to get hearings in the Senate prior to the end of the lame-duck session this month. The Akron Beacon Journal has the story.
Monday, December 1, 2014
As part of the overhaul at the VA, a website is being created so veterans can check if their doctors have ever been sued for malpractice and found at fault. CBS Los Angeles has the story, including data that is not surprising given this story from last year.
Thursday, November 27, 2014
Less than a month after voters rejected raising the $250,000 med mal damage cap in California, the state's high court is going to review whether the cap is constitutional. Insurancenewsnet.com has the story.
Wednesday, November 26, 2014
Automobile insurance is more expensive in Ontario than anywhere else in Canada. Last week, in an attempt to reduce costs, the Ontario Government passed "Bill 15," which will:
- Reduce extraordinarily expensive vehicle storage costs that some facilities and towing companies charge when they know drivers have no other option;
- Create a new and more efficient system to expedite the hearing of disputes, thereby preventing backlogs and helping reach decisions in a timely manner;
- Align pre-judgment interest rates on pecuniary and non-pecuniary damages (pain and suffering) to today's market rates.
Apparently more will need to be done to reduce claim costs, which consume 65 cents of every dollar paid in premiums. CNW has the story.
Monday, November 17, 2014
The LA Times has a postmortem on Prop 46, which was defeated by over 2/3 of the vote and in every single California county. The piece examines the politics of raising the med mal cap in a blue state.
Wednesday, November 5, 2014
Thursday, October 30, 2014
Nora Engstrom, Bob Rabin & Michelle Mello (Stanford) published an op-ed in Tuesday's LA Times entitled "What Prop 46 Would Fix." They respond to arguments against adjusting the med mal non-economic damages cap to reflect inflation since 1975, and then provide reasons in favor.
Wednesday, October 29, 2014
Tuesday, October 28, 2014
On October 6th in Buffalo, Ken Feinberg was the keynote speaker at a conference on cutting-edge tort issues. He both praises and damns tort law in his remarks to the Buffalo Law Journal.
Friday, October 24, 2014
Proposition 46 on California’s November ballot takes three steps to improve patient safety. While the doctors, hospitals and medical malpractice insurance companies that have spent tens of millions of dollars to oppose this initiative love to say it’s about making more money for trial lawyers, what it’s really about is the safety of all of us who live here. Because any of us could be killed, maimed or disfigured by medical negligence. Any of us could be harmed by a doctor impaired by drugs or alcohol. Any of us could have our lives turned upside down by the actions of a doctor-shopping prescription drug addict who received too many pills from too many doctors.
Of course no one thinks it will happen to them. I didn’t think it would happen to me. Until it did.
Both my elderly mother and my mentally retarded sister died from medical negligence at the same prestigious Los Angeles hospital where actor John Ritter died and his family sued/settled for millions of dollars. Actress Alicia Cole also went to this hospital for a routine surgery and ended up contracting “Flesh Eating Disease” there and almost died. After my sister’s horribly painful death, I turned to the legal system to hold those who treated her accountable and try to prevent other families from going through the same nightmare. You can see a bit about my sister’s story at http://goo.gl/sni513.
But attorney after attorney I approached told me they wouldn’t take the case, despite its merits. That’s because my sister, who was unable to work because of her disability, had no income. She never married and had no children. (I was her full-time caregiver.) And because she was dead, there were no ongoing medical bills to pay.
It wasn’t until I started trying to pursue justice in this case that I learned California has a law, enacted in 1975 and never changed since, that limits compensation for medical malpractice cases like hers to $250,000. And while that amount has been frozen for almost 40 years, the cost of taking a case to trial hasn’t – a good chunk of that cost being the enormous hourly fees paid to doctors as expert witnesses. So after the trial costs have been deducted from the $250,000, the victim’s attorney gets a percentage of the balance, a percentage that’s also limited on a sliding scale by state law. That amount is their compensation for what is often years of work on the case (these lawyers don’t receive hourly fees and don’t get a penny until their client wins an award).
Keep in mind the doctors and hospitals face no limits on what they can spend on their legal defense. In the face of that, most lawyers will look at the potential return on a case like mine where the damage award is capped and say it’s simply not worth it.
I don’t blame them. I blame the law that put them in that position in the first place.
Thursday, October 23, 2014
One of the biggest events in tort law this fall is Prop 46, the California ballot initiative over whether to raise the MICRA cap on non-economic damages in med mal cases (set in 1975 at $250,000 and not raised since). I have contacted both pro- and anti-Prop 46 spokespeople and asked them to write a post supporting their respective positions. Eric Andrist is a leading voice in the pro-Prop 46 movement. His post will appear tomorrow. I have reached out several times to the California Medical Association, and I am still hoping to receive a post from them.
Friday, October 17, 2014
A new study by the RAND Corporation has failed to find evidence of widespread defensive medicine. The study covers three states that raised the malpractice standard in ER cases: Texas, South Carolina, and Georgia. Reforms in Texas and South Carolina had no effect on the use of expensive imaging and a reform in Georgia generated only a small reduction in ER charges. Coverage is here: Forbes; WaPo.
Thursday, October 16, 2014
In its "Shots" section, NPR has covered Prop 46, including the tragic story of Troy and Alana Pack. The article explains all 3 sections of the proposition: (1) requiring doctors to check a prescription database to detect prescription drug abusers; (2) lifting the $250,000 cap on non-economic damages in med mal cases, and (3) mandatory drug and alcohol testing for doctors.