Wednesday, September 14, 2016
This November, Arkansawyers/Arkansans (not entering this debate!) are voting on a proposed amendment to the state constitution which would allow the legislature in medical lawsuits to set a cap on damages of at least $250,000 and to limit attorney's fees to one-third of the recovery. Governor Hutchinson has remained neutral on the issue. He says he will likely tell voters how he will vote on the measure, but not anytime soon. Arkansas Online has the story.
Thursday, June 30, 2016
Governor Jay Nixon vetoed a bill that would have essentially abrogated the collateral source rule, stating the bill was particularly unfair to those purchasing insurance. He also vetoed an expert witness qualification bill he stated was targeting the injured. The Missouri Times has a discussion of all of Nixon's actions on bills this week.
Wednesday, June 22, 2016
Back in March, I posted about a grand jury report detailing the sexual molestation of children in the Altoona-Johnstown Diocese. Now two women have filed lawsuits alleging that a priest from the parish abused them in the 1970s. The grand jury report led to a debate in the legislature about extending the statute of limitations and possibly including a window in which expired cases could be filed. The state House passed a bill that would retroactively extend the civil statute of limitations (from age 30 to age 50). The state Senate Judiciary Committee held a meeting last week and heard from five experts on the constitutionality of retroactively altering the statute of limitations. The Pennsylvania Constitution has arguably been interpreted as more restrictive than the United States Constitution on the issue. Four of the five experts opined that the bill was unconstitutional. The women's lawsuits appear to make a case for extending the statute based on the alleged concealment of the cover-up by the diocese extending through last year.
Monday, June 20, 2016
Last month, I reported on a bill to adopt the discovery rule for med mal cases in New York. The bill would toll the (2 1/2 year) statute of limitations until the plaintiff discovered the alleged malpractice. New York is one of only six states that does not follow the discovery rule in this context. The bill died over the weekend. New York Daily News has the story.
Tuesday, June 7, 2016
For several years, I have reported the decline in med mal claims in Pennsylvania from the base rate of 2000-2003. Once again, a new low has been set. In Allegheny County, of which Pittsburgh is the county seat, cases have fallen from 49 per year in 2000-2003 to 10 in 2015. The Pittsburgh Business Times has the story.
Monday, May 30, 2016
Thursday, May 26, 2016
Yesterday I posted about New York's sexual assault statute of limitations. Another bill in front of the legislature involves the med mal statute of limitations, specifically whether the discovery rule should be adopted. Currently, New York's 2 1/2-year statute begins to run when the negligence is committed. The bill, named Lavern's Law after a woman who died in 2013, would toll the statute until discovery, but leave the length at 2 1/2 years. New York is 1 of only 6 states without the discovery rule for med mal cases. The New York Daily News has the story, focusing on a tragic case.
Wednesday, May 25, 2016
Last month, I reported that Pennsylvania was debating bills to remove or extend the statute of limitations for sexual assault cases. The same is occurring in New York, where current law requires a lawsuit to be filed by the time an alleged victim reaches the age of 23. On Monday, the state senate voted down (30-29) an amendment that would have forced a vote on eliminating the statute of limitations for sexual assault cases going forward and creating a 1-year window in which to bring expired claims. It sounds as though other bills may be considered this session. Syracuse.com has the story.
Tuesday, May 10, 2016
Dr. Patrick McKenna, of the Wisconsin School of Medicine and Public Health, has published a study on the effect of apology immunity laws in med mal cases. He found:
that mean litigation length was 3.4 years in states with apology laws compared with 5.6 years in states without such laws. In the 38 states with apology laws, the mean litigation length was 4.4 years before apology laws were enacted and 4.1 years after the laws were enacted.
Renal & Urology News has the story.
Friday, May 6, 2016
Yesterday, the Oregon Supreme Court upheld a $3M cap on damages against the state and its employees. The ruling caps a $12M jury verdict for a 2009 botched liver surgery that nearly killed a then 8-year-old boy. The jury found there were $6M in future medicals, at least half of which must now be absorbed by the family. OregonLive has the story.
Wednesday, April 27, 2016
Friday, April 22, 2016
On Wednesday, Arkansas's attorney general approved the wording of a proposed ballot item to amend the constitution that would instruct the state's legislature to set a cap on punies in med mal cases at no less than $250,000. It would have to be adjusted for inflation every 2 years. Lawyers would also be prohibited from charging over one-third as a contingency fee. With the approval, the sponsor can begin gathering the 84,859 signatures needed to place the proposal on the November ballot. (Via Arkansas News) Punies in med mal cases are extremely rare, but, if awarded, tend to be in high amounts.
Tuesday, April 19, 2016
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. The 1st District Court of Appeal upheld the law's constitutionality last year. The Florida Supreme Court will now decide the issue. A date for oral argument has not been set. Health News Florida has details.
Monday, April 11, 2016
In the wake of the grand jury report on sexual abuse of minors in the Altoona-Johnstown Diocese, the House Judiciary Committee approved the removal of statutes of limitation in sex crimes and extending the statute of limitations until the victim turns 50 years old for civil cases. There was, however, no provision for a 2-year retroactive window to allow past victims to sue. Pennlive has details.
Friday, March 25, 2016
I missed this earlier, but on Tuesday, the federal med mal bill in the House was (at least temporarily) derailed by Republican opposition that the bill disrespected federalism and invaded the province of the states. The Hill has the story.
Wednesday, March 23, 2016
The ABA has sent a letter to House Judiciary Committee chairman Bob Goodlatte voicing opposition to: (1) a $250,000 cap on noneconomic damages, (2) several liability, and (3) a provision allowing judges to reduce contingent fees for plaintiffs' attorneys. The ABA Journal has the story, including a pdf of the letter.
Thursday, March 10, 2016
Monday, March 7, 2016
The Indiana House passed, 90-5, an increase in the med mal cap from $1.25M to $1.8M by 2019. Unlike the Judiciary Committee's proposal, there are no further increases. Indiana's is one of the few caps that is total (not solely on noneconomic damages).
Friday, March 4, 2016
PA: Grand Jury Report on Sexual Abuse of Children in the Altoona-Johnstown Diocese; Statute of Limitations Debate
On Tuesday, a grand jury report was issued regarding the sexual molestation of hundreds of children over a 40-year period in the Altoona-Johnstown Diocese. The allegations are disturbing to read. The report recommended abolishing the criminal statute of limitations for sex crimes against minors and opening a window to allow sexual abuse victims to bring civil claims. Several bills have been introduced in the legislature. Parallel bills by Rep. Mark Rozzi, himself a sex abuse survivor, and Sen. Rob Teplitz would give victims until the age of 50 to file suit (up from the current age of 30) and would open a brief window for those whose claims would be time-barred by the 50-year limit. Sam Marshall, the President and CEO of the Insurance Federation of Pennsylvania opposes the bills:
"We are allowed to reserve only for claims that are possible. Once a statute of limitations has passed, we can't hold or reserve money for that because claims are no longer possible," Marshall said. He questioned whether the grand jury in making its recommendations gave any consideration of the insurance regulation aspect of it.
"I realize that's not the driving concern in any of this but it is from an insurance perspective," he said. "It's a question of how can you be liable for something they claim for which by law you weren't allowed to reserve money for. That's the challenge here."
The debate reminds me of one of Jeffrey O'Connell's favorite statements about the difficulty of mixing morality and mathematics, something that happens constantly with tort law and insurance. Still the moral aspect of tort is very strong in this instance, not muted as it is in so many contexts. PennLive has the story. The Patriot News, in an editorial, supports the report's statute of limitations recommendations.
Tuesday, March 1, 2016
The House Judiciary Committee, 11-1, approved a $400,000 increase in the med mal cap, to a total of $1.65M. It would gradually increase every 4 years until 2031, with a final cap of $2.25M. The bill now goes to the full House, but may have trouble in the Senate. KSL.com has the story.