TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Wednesday, October 7, 2015

NV: Med Mal Non-Economic Damages Cap Upheld

Last week, the Nevada Supreme Court unanimously upheld the state's $350,000 med mal cap on non-economic damages.  A lower court had ruled the cap violated the constitutional right to trial by jury.  The court also overturned the lower court's holding that the cap applies separately to each plaintiff and each defendant.  The Las Vegas Review-Journal has the story.

October 7, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, October 5, 2015

Culhane on the Opening of the AMTL

John Culhane attended the opening of the American Museum of Tort Law and reported about it for this column in Politico.

October 5, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, September 21, 2015

ABA Opposes Lawsuit Abuse Reduction Act

ABA governmental affairs director Thomas Susman sent a letter to Congress urging the defeat of HR 758.  He argues that the act will have the perverse effect of increasing litigation.  ABA Journal has the story.

September 21, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, September 17, 2015

Ontario: Call for Accountability for Malpractice Insurer

In Ontario, both major political parties, Provincial New Democrats and Conservatives, are calling for increased accountability from the Canadian Medical Protective Association (CMPA).  The CMPA acts as an insurer for doctors accused of medical malpractice.  Significantly, the CMPA receives massive public subsidies; approximately 81% of physician fees to CMPA are reimbursed out of tax funds.  The Toronto Star has the story.

September 17, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, August 31, 2015

The Innocent Sellers Fairness Act

Twelve U.S. House members are sponsoring the Innocent Sellers Fairness Act (H.R. 1199), designed to remove liability for product injuries from sellers and keep it on manufacturers.

The bill would make it so that no seller of any product would be liable for damages, except in the following cases:

  • The seller was the manufacturer of the product;
  • The seller participated in the design of the product;
  • The seller participated in the installation of the product;
  • The seller altered, modified or expressly warranted the product in a manner not authorized by the manufacturer;
  • The seller had actual knowledge of the defect in the product as a result of a recall from the manufacturer or governmental entity authorized to make such recall or actual inspection at the time the seller sold the product to the claimant;
  • The seller had actual knowledge of the defect in the product at the time the seller supplied the product;
  • The seller intentionally altered or modified a product warranty, warning or instruction from the manufacturer in a way not authorized by the manufacturer; and
  • The seller knowingly made a false representation about an aspect of the product not authorized by the manufacturer.

A version of the bill has been in the House since 2007, but the number of sponsors has risen recently.  U.S.Glass News Network has details.

August 31, 2015 in Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0)

Thursday, August 27, 2015

Reducing Med Mal Through Cameras in ORs?

Earlier this month, I reported on a bill in Wisconsin to allow patients to have surgeries recorded.  On Tuesday, The Washington Post (Tom Jackman) covered the idea in an article.  A sample:

Currently, re-creating what went wrong in an operating room involves a mixture of memories and whatever notes were taken at the time or shortly afterward, a vague combination that vexes families trying to get to the truth about a failed procedure or a fatal complication. Recording surgeries “offers transparency, truth and accuracy,” Ayer said, “in collecting data for the medical record and testimony. It offers data and insight for medical boards and even prosecutors. It offers oversight and policing.”

The medical industry is treading cautiously. The American Hospital Association, the American Medical Association and the American College of Surgeons all declined to comment for this article. In 2005, the AMA adopted a policy on filming patients in health-care settings — it encouraged the practice for educational purposes — but focused on patient privacy and on filming only those who give their consent.

August 27, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, August 4, 2015

WI: Bill to Allow Patients to Have Surgeries Recorded

A lawmaker in Wisconsin has introduced a bill that would allow patients to have their surgeries videotaped.  The purpose is to preserve data that could later shed light if a patient had a poor outcome.  The application to med mal is obvious.  The National Law Review has the story.

August 4, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, July 28, 2015

IA: Med Mal Early Resolution Program

In Iowa, the reform I reported on here has become law.  It has similarities to a program at the University of Michigan, which has also inspired laws in Massachusetts and Oregon.  Readers of the blog know I am a big fan of programs that aim to more swiftly and certainly resolve disputes without litigation, especially in med mal cases. 

The CANDOR law is reviewed at JD Supra.

July 28, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, July 22, 2015

FL: Intermediate Appellate Court Upholds Ex Parte Communications Med Mal Reform

In 2013, the Florida legislature passed a med mal reform requiring claimants filing lawsuits to sign forms authorizing ex parte communications:

In ex parte communications, for example, defense attorneys representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information could come from other doctors who treated the patient, and disclosure could occur without the patient's attorney being present.

In October of 2014, the Eleventh Circuit held that the reform did not violate HIPAA. 

Now the 1st District Court of Appeal has upheld the constitutionality of the reform from challenges that it violates the right to privacy and separation of powers. CBS Miami has the story

July 22, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, July 13, 2015

WI: Lowest Med Mal Claim Payments in the U.S.

...according to this story in the Milwaukee Journal Sentinel.

July 13, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, July 9, 2015

FL: Intermediate Appellate Court Rules Med Mal Cap Unconstitutional

Relying on the Florida Supreme Court's ruling that a cap on emotional distress damages in wrongful death cases is unconstitutional, an intermediate appellate court (the Fourth District Court of Appeal) ruled the state's med mal cap on noneconomic damages violates the equal protection clause of the Florida Constitution.  Courthouse News Service has the story.

July 9, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, June 30, 2015

Engstrom on Health Courts

Nora Freeman Engstrom has posted to SSRN A Dose of Reality for Specialized Courts:  Lessons from the VICP.  The abstact provides:

The latest in a long line of reform proposals, health courts have been called “the best option for fixing our broken system of medical justice.” And, if health courts’ supporters are to be believed, these specialized courts are poised to revolutionize medical malpractice litigation: They would offer faster compensation to far more people, while restoring faith in the reliability of legal decisionmaking. But these benefits are, as some leading supporters have acknowledged, “hoped for, but untested.” The question remains: Will health courts actually operate as effectively as
proponents now predict?

The best evidence to answer that question comes, I suggest, from the Vaccine Injury Compensation Program (VICP) — a Program that employs very similar procedures to handle very similar claims and that had, at its birth, a very similar ambition. Mining nearly three decades of previously untapped material concerning the VICP’s operation, this Article analyzes how an American compensation program that wrests jurisdiction from traditional courts has, in practice, fared. Findings are discouraging. Though the VICP and health courts share many of the same procedural innovations, those innovations, in the VICP context, have largely failed to expedite adjudications and rationalize compensation decisions. This fact carries significant implications for health courts, suggesting that they won’t operate nearly as effectively as their proponents now predict. More broadly, this study of an American no-fault regime, in action and over time, enriches — and at times complicates — current understanding of the prospects, promise, and “perceived virtues” of other specialized courts and alternative compensation mechanisms.

June 30, 2015 in Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0)

Tuesday, May 26, 2015

FL: Med Mal Cap Not Retroactive

The Florida Supreme Court ruled last week that Florida's 2003 medical malpractice cap is not retroactive to damage done prior to the law's passage.  WCTV has details.

May 26, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, May 8, 2015

MO: Governor Signs Med Mal Caps Bill

Missouri Governor Jay Nixon signed the med mal caps bill passed by the legislature (earlier coverage here):

The limits apply only to noneconomic damages, not medical costs or lost wages.

Most noneconomic damages would be capped at $400,000. For catastrophic cases, including paralysis or brain injury, the cap would be $700,000.

The bill also doubles the limit in wrongful death cases to $700,000.

WGEM.com has details.

May 8, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 29, 2015

CT: Bill to Extend SoL

In Connecticut, Senate Bill 1028 would allow people who turn 18 to sue for personal injuries they suffered when they were minors and unable to sue in their own name.  It would allow recovery for negligence, including med mal, and reckless misconduct.  Trial lawyers and doctors are squaring off over the bill.  The Hartford Courant has the story.

April 29, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, April 24, 2015

MO: Legislature Passes Med Mal Cap

In 2012, the Missouri Supreme Court struck down that state's med mal damage cap.  The legislature has passed a replacement, and it is now awaiting Governor Jay Nixon's decision whether to sign it.  In sum:

The bill, if signed into law, would place a $400,000 cap on noneconomic damage awards in medical malpractice cases. The cap would be raised to $700,000 for catastrophic and wrongful death cases. Both caps would then increase by 1.7 percent each year.

There is a catch to the law. A jury would still be able to award an amount greater than the allowed caps. If a motion is then made contesting the award, the trial court will determine whether the limitations apply in that case.

The St. Louis Business Journal has the story.

April 24, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, April 20, 2015

MD: Municipal Liability Cap Compromise Passed by Legislature

The current cap in place for Maryland's municipalities is $200,000 per claim/$500,000 per incident.  The House passed an increase to $300,000/$600,000 and the Senate passed an increase to $500,000/$1,000,000.  Perhaps not surprisingly, a conference committee approved $400,000/$800,000 and that passed 89-45 in the House and 33-14 in the Senate.  The bill also extends the filing period from 6 months to 1 year.  HB 113 awaits the governor's signature.  MarylandReporter.com has the story.

April 20, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 15, 2015

MD: Legislature Debates Raising Cap for Claims Against Local Governments

Late last month, the Maryland Court of Appeals upheld the cap on damages for claims against local governments.  The current cap is $200,000 per claim, with a maximum of $500,000 for any number of claims stemming from a single incident.  The House passed a bill raising those limits to $300,000 and $600,000.  Last week a Senate committee proposed raising the limits to $500,000 and $1,000,000.  The full Senate will vote on Friday.  Cecil Whig has the story.

April 15, 2015 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, April 13, 2015

Mini-Asbestos Roundup

On Thursday, Arizona Governor Ducey signed into law a bill requiring plaintiffs to disclose asbestos claims they have filed or intend to file.  The legislation, referred to as a transparency law, is justified as necessary to keep plaintiffs from double-dipping from asbestos trusts.  Today's News-Herald has the story.

In other asbestos news, the California Supreme Court will hear an appeal regarding the status of "take home" asbestos claims.  The lower appellate court denied the claim.  The Pacific Legal Foundation provides information on the case and argues against such claims here.

April 13, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, April 2, 2015

MD: Cap on Damages Against Local Governments Upheld

On Monday, the Maryland Court of Appeals upheld a cap on damages against local governments.  A jury awarded $11.5M to the family of a man shot to death by police, and the family argued the cap was unconstitutional.  The court rejected the challenge; the family will receive $400,000.  The Baltimore Sun has the story.

April 2, 2015 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)