Tuesday, September 9, 2014
On September 24, the Mississippi Supreme Court will hear oral arguments in a case to determine whether the 2004 non-economic damages cap of $1M is unconstitutional. Circuit Judge Charles Webster so held in a 2011 case seeking damages for the death of a child in an apartment complex fire. The jury awarded the child's parents $6M in non-economic damages. Webster upheld the award and struck down the cap, stating the Mississippi Constitution guarantees every citizen a remedy for an injury done to his lands, goods, person and reputation with that remedy to be determined by a jury. The Miami Herald has the story.
Friday, September 5, 2014
I confess I haven't kept up with Georgia's plan to replace med mal with a system similar to workers' compensation. Because both physicians' and trial lawyers' groups opposed SB 141, I assumed it was dead. This September 3rd editorial from the Columbia County News-Times indicates that some supporters have not given up.
Monday, September 1, 2014
There are a lot of stories on the med mal front. First, two from the MICRA fight:
An analysis from the The Fresno Bee finds that the anti-cap increase ads are misleading. Here's a taste:
But the ad goes too far by unequivocally claiming that raising the cap will increase malpractice insurance costs and that the result would certainly be higher costs for consumers. Five health economists contacted by The Bee had mixed opinions on those questions.
An editorial in the The Sacramento Bee urges rejection of the initiative, stating that the cynicism of attaching the drug-testing measure is reason enough to vote against it.
In other news, Law Firm Newswire is reporting that misdiagnosis is the most common form of med mal, surpassing surgical errors and medication mixups. This is described as surprising, but it is consistent with my memory of med mal cases in the period I practiced law.
Finally, in August, HHS ruled that all malpractice payments under state liability laws must be reported to the National Practitioner Data Base. The ruling was meant to address issues raised by recent "early offer"-type programs enacted in Massachusetts and Oregon.
Friday, August 29, 2014
Prop 46, a California ballot initiative to raise the 1975 non-economic damages cap from $250,000 to $1.1M, includes a rider: physician drug-testing. The two are joined in the "Troy and Alana Pack Patient Safety Act of 2014." Download pdf here: Download Troyandalanapackpatientsafetyactof201400202344. I'm not a fan of non-economic damages caps (though I acknowledge problems with non-economic damages). Moreover, the cap increase strikes me as an easy call. The cap hasn't been raised in 39 years and the increase is just an inflation adjustment; I ran a quick inflation calculation and $250,000 in 1975 is approximately $1.1M. I do, however, object to the compound question nature of the initiative. These are very different issues and should be considered separately. The Sacramento Bee has details.
Thursday, August 21, 2014
Opponents of raising California's med mal cap in a fall ballot (Prop 46) are on the air with a 30-second television ad and a 60-second radio ad. Opponents of the measure have raised more than $36M as of June 30; supporters have raised $2.3M in the same period. The LA Times has the story.
Wednesday, June 25, 2014
There is new med mal data from my home state of Pennsylvania. Since the base years of 2000-2002, med mal cases in PA have declined 43%, with the biggest drop occuring in Philly (68%). In 2003, a certificate of merit requirement and venue restrictions went into effect. In 2013, 77% of jury verdicts were for the defense; 2 of 5 non-jury verdicts were for the defense.
Thursday, June 19, 2014
New York is expanding a program that uses specially trained judges to negotiate early settlements in med mal cases. The uncertainty, delay, and transaction costs that undermine tort law are especially bad in med mal, so this program deserves attention. The Daily News has details.
Wednesday, May 7, 2014
The Clarion-Ledger reviews the 2004 tort reform package passed in Mississippi:
• Caps on damages: The law limited noneconomic, or pain-and-suffering damages to $500,000 on medical liability cases and $1 million in other civil cases. It also reduced caps on punitive damages for defendants, based on their net worth.
• Joint and several liability: The law did away with joint and several liability, limiting damages defendants could face to the fraction for which they were at fault.
• Venue: Created stricter rules for establishing venue, or where a case can be brought and tried. For instance, doctors can only be sued in their home county.
• Product and premise liability: Added protection to “innocent sellers” of products and protects property owners from liability.
Friday, April 18, 2014
The Alaska legislature has passed an apology immunity bill. As is typical with many of these bills, it distinguishes between admissions, which remain admissible, and expressions of sympathy, which would become inadmissible. The bill cleared the House last week and was passed unanimously in the Senate on Wednesday. The Fairbanks Daily News-Miner has a brief story.
Thursday, April 17, 2014
In 2002, then-Governor Jeb Bush appointed 5 members to a panel to advise about an alleged med mal crisis. The panel recommended med mal caps on non-economic damages. In 2003, the legislature passed a cap; the Florida Supreme Court invalidated that cap earlier this year. In the wake of that decision, the 5 members of the panel are urging a constitutional amendment to put the cap on firm legal ground. It is unlikely the legislature will take up such an amendment in this session. The Miami Herald has details.
Wednesday, April 16, 2014
Two weeks ago, I reported that a bill to remove the $50K minimum to request a jury trial had passed a key committee vote in the House. Today the full House voted the bill down 51-49, with 5 members not voting. Some members of the business committee blame high insurance rates on the high threshold, arguing that plaintiffs would claim, and businesses would pay, lower amounts if not aiming at a $50K minimum. Opponents reply that no evidence regarding lower insurance rates has been produced and lowering the threshold would potentially strain judicial resources.
Thursday, April 10, 2014
Late last month, I reported that the Kansas legislature was going to conference committee to raise the med mal cap. Both the House and Senate adopted a gradual increase of the med mal cap on non-economic damages from $250K to $350K. The difference between the two was over the collateral source rule. The Senate version would have allowed jurors to hear testimony about whether a plaintiff's damages were covered by insurance; the House version did not alter the collateral source rule. The final version sent to Governor Brownback for his signature does not include collateral source reform. The history of SB 311 is here.
Wednesday, April 2, 2014
Tuesday, April 1, 2014
U.S. Senator Barbara Boxer endorses a proposed ballot initiative to raise the MICRA cap. (Reuters)
Meanwhile, Iowa Governor Terry Branstad endorses "tort reform" broadly. (The Des Moines Register)
Thursday, March 27, 2014
The Kansas Senate and House have passed similar bills to gradually raise the non-economic damages cap in personal injury cases from $250K to $350K. The major difference between the bills concerns the collateral source rule. The Senate version would allow jurors to hear testimony about whether a plaintiff's damages were covered by insurance; the House struck that provision. A conference committee has been selected. The Kansas Health Institute has coverage.
Tuesday, March 18, 2014
The Lousiana Legsilative session began last Monday, and a bunch of tort reform bills have been introduced:
- HB 799 - prohibiting contingency fees in outside counsel contracts
- HB 482 & 483 - venue in latent disease cases
- HB 917 - lowering the monetary threshold required for a jury trial to $0
- HB 925 & SB 414 - regulation of the lawsuit lending industry
Coalition for Common Sense has links to the bills and a summary of the bills' status.
Thursday, March 13, 2014
Today the Florida Supreme Court ruled that Florida's med mal caps violate the state constitution's equal protection clause, at least as applied to wrongful death cases. The Miami Herald has the story.
Friday, March 7, 2014
The full Missouri House approved a $350K cap in med mal cases yesterday in front of an audience of doctors packing the galleries. The bill now moves on to the Senate. The Saint Louis Post-Dispatch has the story.
Friday, February 28, 2014
Earlier this month, I reported that a $350K med mal cap on non-economic damages was voted out of committee in the Missouri House. The full House has now given the bill preliminary approval; one more positive vote will send it to the Senate. OzarksFirst.com has the story.
Meanwhile, in Kansas, legislation advanced in the Senate that would raise that state's cap on non-economic damages in personal injury cases from $250K to $300K in July, $325K in July 2018, and $350K in July 2022. As part of a compromise, other changes would be implemented, including giving judges discretion to limit testimony from purported experts and allowing juries to consider whether people suing over their injuries have insurance or other forms of compensation. The cap change proposals were spurred by statements from the Kansas Supreme Court that it was troubling the cap had not been adjusted for inflation since its passage in 1988. The San Francisco Chronicle has the story.
Friday, February 21, 2014
The Kentucky Senate, on a 23-13 party-line vote, approved a bill requiring med mal complaints to be taken to a panel of experts to determine whether there was a violation of the standard of care prior to being litigated in court. The panel's finding would be admissible in the trial unless new substantial evidence were discovered after the report. Previous iterations of this proposal have failed in the Kentucky House. Many jurisdictions have similar laws. The Courier-Journal has the details.