TortsProf Blog

Editor: Christopher J. Robinette
Widener Univ. School of Law

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Thursday, February 19, 2015

WV: Senate Passes Bill Reinstating "Open and Obvious" Doctrine in Premises Cases

On Tuesday, the state Senate passed a bill reinstating the "open and obvious" doctrine in premises liability cases on a 29-3-3 vote.  The Beckley Register-Herald has a short piece here.

February 19, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, February 13, 2015

WV: Bill to Extend Med Mal Caps to Nursing Homes Sent to House Floor

The House Judiciary Committee approved a bill to extend West Virginia's $500,000 non-economic damages cap in med mal cases to nursing homes.  The Senate has already passed the bill.  WV Metro News has the story

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

Tuesday, February 10, 2015

WV: Conflicting Bills on Several Liability

In West Virginia, the Senate and House have passed different reforms regarding liability by multiple tortfeasors.  Currently in West Virginia , if a defendant adjudged at fault can't pay its share of damages and another party was adjudged more than 30% responsible, the second party may be required to pay all the remaining damages.  The Senate bill would still require other parties to pay for damages the insolvent entity can't cover, but the amount of damages required to be covered would depend on the amount the solvent party was adjudged at fault.  The House bill moves to pure several liability in most cases.  It will be interesting to see what comes out of conference committee.  West Virginia Pubic Broadcasting has the story

February 10, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Arguments Over SD's Med Mal Cap

In 1976, the legislature in South Dakota enacted a $500,000 non-economic damages cap in medical malpractice cases; the cap was not indexed to inflation.  The Tribune covers the cap with familiar arguments about access and fairness on one side and retaining physicians on the other.  Nora Freeman Engstrom is quoted.

February 10, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, February 6, 2015

KY: Medical Review Panels Bill Goes to Full Senate

The Senate Health and Welfare Committee sent to the full Senate a bill creating three-member panels to review claims before they can go to court.  The panel's findings would not be binding, but would be admissible in court.  The Senate has passed this bill before, but it has not passed in the House.   The Glasgow Daily Times has the story.  

Update:  The Senate passed the bill 24-12.

The bill is a bad idea because it adds more delay and transaction costs to an already lengthy and expensive process, without resolving anything.  Studies conclude the average med mal claim lasts about 5 years from event to resolution, with more money being used to run the system than to compensate victims.  Review panels increase the time to resolution by adding another layer of procedure.  They also increase transaction costs as lawyers and experts for both sides try to convince an additional decision maker of the merits of their case. 

To the extent reducing frivolous claims is the goal, a certificate of merit requirement would be preferable:  it is quicker and less expensive.  Moreover, reducing the length and adversarialism of the process should be the focus.  Review panels were in place in Virginia when I practiced.  Most plaintiff's lawyers simply didn't participate.  The result was admissible at trial, but so was the information that the plaintiff was not involved in the panel's decision.  The claim was delayed, but at least it was not also more expensive.

February 6, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (1) | TrackBack (0)

Wednesday, January 21, 2015

NPR Covers MA Disclosure and Early Offer Law

In 2012, Massachusetts enacted a disclosure and early offer law for medical injuries.  NPR covers the law here.  There's not much empirical data (it's fairly early), but the story describes a particular case:

The law mandates that people give health care providers six months' notice if they intend to sue. The woman's lawyer notified the hospital of the mistake. Hospital officials, who had 150 days to respond, determined that their actions hadn't met the standard of care. The hospital arranged a meeting between the woman and one of their physicians to talk about why the error occurred and the measures being taken to make sure it won't happen again. The physician apologized, and soon after the woman accepted a financial settlement from the hospital.

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

Tuesday, January 20, 2015

MD: Latest State to Consider Constitutionality of Governmental Damages Cap

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.  

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

Friday, January 16, 2015

IN: Governmental Damages Cap Upheld

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.

January 16, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, January 15, 2015

Some Cities Limit Sledding Due to Liability Concerns

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.

January 15, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, January 5, 2015

WI: Bill Would Allow Parents of Children Younger Than 27 to Sue for Med Mal

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

January 5, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, December 29, 2014

MD: Panel Recommends No-Fault Birth Injury Fund

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.

December 29, 2014 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 23, 2014

IL: Number of Civil Jurors to Decline from 12 to 6

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)

December 23, 2014 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 17, 2014

IN: Constitutional Challenge to Damages Cap

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.

December 17, 2014 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, December 4, 2014

OH: Bill to Expand Med Mal Apology Immunity to Include Admissions of Fault

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.

December 4, 2014 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, December 1, 2014

Veterans Affairs & Med Mal

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.

December 1, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, November 27, 2014

CA: Supreme Court to Review Constitutionality of Med Mal Damages Cap

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.

November 27, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 26, 2014

Auto Insurance in Ontario

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.

November 26, 2014 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, November 17, 2014

Postmortem on Prop 46

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. 

November 17, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 5, 2014

Prop 46 Rejected

Thursday, October 30, 2014

Engstrom, Rabin & Mello on Prop 46

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. 

October 30, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)