Thursday, October 22, 2015
A recent NPR/ProPublica series on workers' compensation caused 10 Democratic Senators to urge action on the part of the Labor Department:
Ten ranking Democrats on key Senate and House committees are urging the Labor Department to respond to a "pattern of detrimental changes in state workers' compensation laws" that have reduced protections and benefits for injured workers over the past decade.
In a letter to Labor Secretary Thomas Perez, the lawmakers cited an investigation by NPR and ProPublica, which found that 33 states have cut workers' comp benefits, made it more difficult to qualify for benefits or given employers more control over medical care decisions.
The letter also referred to NPR/ProPublica stories last week that detailed an emerging trend of permitting employers to drop out of state-regulated workers' comp programs, write their own injury plans and limit benefits on their own.
NPR has the story.
Tuesday, October 13, 2015
Wisconsin law does not allow the parents of adult children to sue on their behalf for medical malpractice. For years, bills have been introduced to change the law (here is a post from last session), and Senator Harris Dodd is trying again. This bill would allow parents to sue for their children up to age 27 if they die as the result of medical error. This year's bill is scaled back:
Earlier versions would have allowed adult children to sue if a parent died because of malpractice and also called for allowing parents of children of any age to sue for malpractice in death cases.
The Milwaukee Wisconsin J0urnal Sentinel has the story.
Monday, October 12, 2015
Thursday, October 8, 2015
The Saskatchewan government has approved changes to tort and no-fault programs recommended after a review of the auto system.
Among others, the changes include:
• When an impaired driver causes a collision and is killed, allowing an innocent party or the family impacted to sue for pain and suffering or bereavement damages (No Fault and Tort coverage);
• Expanding the list of offences that trigger the ability for an innocent party to sue for pain and suffering or bereavement damages to include: criminal negligence causing death or bodily harm, criminal negligence causing bodily injury, flight from a peace officer and dangerous operation while street racing (No Fault and Tort coverage);
• Updating amounts paid for living expenses to reflect current market rates, increasing the overall amount available for assistance to those with cognitive impairment and implementing a process to regularly review the amounts for alignment with market rates (No Fault coverage);
• Ending the practice of reducing income benefits by the amount a customer receives through Canada Pension Plan (CPP) disability (No Fault coverage); and
• Ensuring Tort income benefits maintain pace with minimum wage (Tort coverage).
Canadian Underwriter has the story.
Wednesday, October 7, 2015
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.
Monday, October 5, 2015
Monday, September 21, 2015
Thursday, September 17, 2015
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.
Monday, August 31, 2015
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.
Thursday, August 27, 2015
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.
Tuesday, August 4, 2015
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.
Tuesday, July 28, 2015
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.
Wednesday, July 22, 2015
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.
Monday, July 13, 2015
Thursday, July 9, 2015
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.
Tuesday, June 30, 2015
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.
Tuesday, May 26, 2015
Friday, May 8, 2015
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.
Wednesday, April 29, 2015
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.
Friday, April 24, 2015
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.