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.
Wednesday, January 27, 2016
Monday, January 25, 2016
Today an Indiana Senate committee is debating an increase in the med mal cap from $1.25M to $1.65M, the first increase in 17 years. The potential increase is driven by a desire to protect the cap from constitutional challenges:
The Illinois Supreme Court struck down a similar law in 2010 that capped jury payouts, ruling they were unconstitutional under the Illinois Constitution's "separation of powers" clause because juries were not able to determine fair damages. Caps have also been ruled unconstitutional in Alabama, Georgia, Oregon, New Hampshire and Washington.
nwitimes.com has the story.
Friday, January 22, 2016
The NYT is reporting that Ted Cruz worked as both a defender of tort reform (including caps) and a defender of large verdicts. It's not unusual for lawyers to take cases on different sides of an issue, but as he is touting one side of his work to voters, this is information some of them may find troubling.
Wednesday, December 16, 2015
On Monday, the Court refused to take up the 9th Circuit's dismissal of an Alien Tort Statute and Torture Victim Protection Act case:
The U.S. Supreme Court on Monday declined to revive a human rights lawsuit against Occidental Petroleum Corp and a security contractor that had accused them of complicity in a deadly 1998 bombing by Colombia's military of a village in the South American country.
The court left intact a November 2014 ruling by the 9th U.S. Circuit Court of Appeals stating that victims' families could not pursue claims against Occidental and Florida-based AirScan Inc under two U.S. human rights laws, the Alien Tort Statute and Torture Victims Protection Act.
These cases have been dismissed on a regular basis since the 2013 Kiobel ruling. Reuters has the story.
Thursday, November 19, 2015
On Monday, I posted about defendants attempting to use med mal tort reform protections to make it harder to recover for falls in hospitals. In a similar vein is a recent Alabama case in which a doctor attempted to invoke a prohibition against discovering and introducing at trial evidence of other malpractice to avoid the admission of the evidence as modus operandi (FRE 404(b)(2) or state equivalent). The claim, however, was that the doctor had sexually assaulted the plaintiff during the course of medical treatment. In Ex parte Vanderwall, — So.3d —- 2015 WL 5725153 (Ala. 2015), the Alabama Supreme Court held the prohibition only applies in med mal cases, which do not include cases of sexual assault. The plaintiff was, therefore, able to use past instances of sexual misconduct incidental to medical treatment as proof that the doctor responsible for that misconduct assaulted her as well. Alex Stein has more blogging at Harvard's Bill of Health.
Tuesday, October 27, 2015
According to a study published this week in Aon's annual benchmark analysis of hospital and professional liability, the average cost of closed claims with indemnity at U.S hospitals ($459,000) is near an all-time high. The effects of tort reform are an issue:
However, the experience of so-called tort reform states – where non-economic damages have been capped by statute – is particularly concerning. The severity of average claims in these states has been increasing faster than elsewhere. In 2008, only 2.2% of claims from tort reform states exceeded $2,000,000. By 2013, this proportion had risen to 4.1% and last year it jumped further, to 5%.
"Tort reform, though still valuable in restraining the cost of claims, provides less effective insulation to hospitals than was originally the case," said Steve Chang, healthcare claims team leader at Beazley. "The plaintiffs' bar has become very adept in maximizing the economic damages which remain uncapped. Moreover, we are finding that the distinction between tort reform and non-tort reform states is becoming increasing blurred with states such as California, Maryland and Florida, all of which are tort reform states, beginning to rival their non-tort reform counterparts."
CNN Money has the story.