Tuesday, October 1, 2013
Friday, September 27, 2013
Don Gifford & Bill Reynolds (Maryland) have published in the North Carolina Law Review Addendum The Supreme Court, CAFA, and Parens Patriae Actions: Will it Be Principles or Biases?. The abstract provides:
The Supreme Court will hear a case during its 2013-2014 term that will test the principles of both its conservative and the liberal wings. In Mississippi ex rel. Hood v. AU Optronics Corp., Justices from each wing of the Court will be forced to choose between the modes of statutory interpretation they usually have favored in the past and their previously displayed pro-business or anti-business predispositions. The issue is whether the defendant-manufacturers can remove an action brought by a state attorney general suing as parens patriae to federal court. Beginning with their actions against tobacco manufacturers in the mid-1990s, state attorneys general often sued as parens patriae in litigation of nationwide significance. In Hood, the Supreme Court considers whether mass plaintiffs’ attorneys, by partnering with state attorneys general in parens patriae actions, will be able to circumvent the requirements of the Class Action Fairness Act that allow defendants to remove class actions and other forms of mass actions to the typically more defendant-friendly confines of federal courts. Resolution will turn on the Court’s interpretation of the statutory term “mass action.” A textualist interpretation, usually favored by Justice Scalia and his conservative colleagues, would not allow such removal—a decidedly anti-business result. At the same time, a purposive approach to interpreting the statutory provision, promoted by Justice Breyer, possibly would allow such removal. For each group of Justices, the conflict is clear: Will they follow their previously articulated principles of statutory interpretation or their ideological biases?
Friday, September 20, 2013
In Missouri, 3 of the 10 veto overrides were on issues of tort reform. Missouri now limits punies in some lead-contamination cases, bars uninsured motorists injured in auto accidents from recovering non-economic damages from insured drivers who were at fault, and shields volunteer health care workers from liability for all but the most egregious conduct. The Bellingham Herald has the story. The article discusses a trend I have noticed lately. The reforms being proposed and adopted tend to be much more discrete and limited than in the past.
Wednesday, September 11, 2013
Oklahoma legislators concluded a five-day special session on Monday. Called by Governor Mary Fallin, the session addressed tort reform in the wake of a June ruling by the state's supreme court that a 2009 tort reform law was unconstitutional. Legislators passed about two dozen bills addressing, among other things, med mal, class actions, and products liability. There were disputes about the certificate of merit requirement and an exemption from liability for manufacturers of "inherently unsafe" products. The San Francisco Chronicle has the story.
Friday, September 6, 2013
Georgia's Senate is considering SB 141, a bill that would replace medical malpractice litigation with a compensation system. The study committee vetting the bill will likely hold 4 or 5 hearings on it. Organizations representing both trial lawyers and physicians are opposed, so enactment seems unlikely. Tom Crawford's Georgia Report has the details.
Wednesday, August 21, 2013
The Oklahoman Speaker of the House has reportedly stated that "it will take 26 to 28 separate bills to reenact the lawsuit reform legislation of 2009." The OK Supreme Court struck down the tort reform bill back in June. More from the Oklahoma Watchdog.
Tuesday, August 13, 2013
Monday, July 29, 2013
Joseph Nixon and the Texas Policy Foundation have posted "Ten Years of Tort Reform in Texas: A Review." The abstract provides:
Ten years of tort reform have provided greater access to health care and helped make Texas the nation’s leading job producer. Indeed, by recognizing the causal connection between economic prosperity and efficient, fair courts, the Texas legislature passed and Governor Rick Perry signed House Bill 4 (HB4)—powerful tort reform legislation that is the foundation of the Texas economic miracle. Yet, despite the awesome economic growth and increased access to health care triggered by HB4, members of the trial bar are still working to overturn this reform. While Texans should stand their ground and rebuff efforts to undo HB4’s successful tort reforms, all Americans should take notice of Texas’s remarkable transformation and look to enact similar reforms in their own states.
Friday, July 26, 2013
In Wednesday's LA Times: "Big-bucks battle shaping up over bid to raise malpractice award limit"
Thursday, July 25, 2013
In 1975, California enacted one of the most influential tort reforms (MICRA), and it included a $250,000 cap on noneconomic damages in med mal cases. The cap was not indexed to inflation and has remained in place for nearly 40 years. There is a movement to get a measure on the 2014 ballot to raise the cap. Starting in September, proponents will attempt to collect the 400,000 signatures of registered voters needed to get the measure on the ballot. KPBS has details.
Friday, July 19, 2013
Oklahoma Governor Mary Fallin is deciding whether to call the legislature into special session in response to the Oklahoma Supreme Court's decision that a 2009 tort reform law was unconstitutional on the grounds it contained more than one subject. OklahomaWatchdog.org has an overview. The Enid News and Eagle has an opinion piece opposing a special session because of its costs to the taxpayers.
Tuesday, July 2, 2013
One of the medical malpractice reforms recently adopted in Florida allows lawyers for health care providers in med mal claims to collect information on private conversations between patients and other health care providers without the patient's consent. Five lawsuits filed yesterday challenge the reform on the grounds that it violates both the state constitution and federal law (HIPAA). The Miami Herald blog has details.
Monday, June 10, 2013
The Oklahoman reports that the Oklahoma Supreme Court ruled that the state's Comprehensive Lawsuit Reform Act of 2009 was unconstitutional under the state constitution. The court found that the statute violated the single-subject rule of the OK state constitution, which requires that each bill only deal with a single subject. Forbes also has a report.
The Times Union reports that the Oklahoma legislature is trying to figure out how to re-enact the provisions of the 2009 act in a manner that comports with the court's ruling.
Friday, May 17, 2013
Terry Baynes of Reuters has written an article about the recent study by a group of physicians at John Hopkins finding that large med mal awards do not contribute significantly to healthcare costs. The article quotes the lead author of the study, Dr. Marty Makary, and me on the issue. My comments appear somewhat more skeptical of the med mal tort system than I actually am (through no fault of Ms. Baynes), and that caused me to reflect further on the significance of the study.
The study (pdf) finds that catastrophic judgments (of over $1M) constitute approximately .05% of national healthcare costs (as measured in 2010). I believe the inferences and recommendations that Dr. Makary and his colleagues draw from this are generally correct. First, they determine that catastrophic payouts are not a major driver of health care costs. Second, at least in interviews, Dr. Makary argues that defensive medicine due to the vague standard of care is a bigger expense than catastrophic payouts. Third, acknowledging the study does not include costs of defensive medicine, the authors conclude that the financial savings due to malpractice reform may be minimal compared to other drivers of health care costs. Fourth, at least in interviews, Dr. Makary argues that malpractice reform should not be focused on caps, but on the standard of care.
First, the study does support, at least modestly, a policy decision against caps. The argument is that "lopping off" the top of large med mal judgments does not save a lot of money because the amount of large judgments is small. There are, however, confounding variables. The study uses $1M or more as the definition of catastrophic payouts. Most caps are set well below $1M and are caps not on total awards, but on noneconomic loss alone. I don't see that the study differentiates between economic and noneconomic damages. This is not a criticism; I don't believe the National Practitioner Data Bank from which the data are drawn makes this distinction. It does, however, prevent a direct comparison between catastrophic payments and how caps would operate on them.
There are certainly other arguments against caps. They have a disparate impact on those who are most seriously injured. The most seriously injured in tort law are already under compensated, receiving a portion of economic loss, while those whose injuries are minor tend to receive several times economic loss. Moreover, to the extent that caps are aimed not at the top awards but at generally reducing suits, particularly frivolous suits, there is a much more direct and fair tool available: certificates of merit. Suits filed without merit is a problem; a 2006 study found that 37% of med mal claims in random samples of closed-claim files at 5 med mal insurance companies were non-meritorious. (David M. Studdert et al., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 354 New Eng. J. Med. 2024 (2006)). Pennsylvania has used certificates of merit (and no cap) to positive results.
Second, I agree that malpractice reform would not dramatically reduce costs in the vast health care system. Steven Brill's Time piece in March discussed numerous non-malpractice-related problems driving up costs. That doesn't mean malpractice law should not be reformed, just that it should be reformed for other reasons.
Third, and most significantly, I agree with the conclusion that the standard of care is a big part of the problem with med mal litigation. What is reasonable under the circumstances can be difficult to determine under banal circumstances. When applied to the practice of medicine, those complications multiply. Dr. Makary focuses on this as the cause of defensive medicine, and I'm sure it happens (though measuring it seems challenging). Moreover, the uncertainty created by the standard leads to delay and transaction costs as the parties genuinely dispute whether a health care provider acted reasonably under the circumstances. As to delay, the Studdert study referenced earlier found the average med mal claim spanned 5 years from occurrence to closing. As to transaction costs, the study found only 46 cents of every dollar went to claimants. Both these figures are consistent with prior studies.
Thus, the uncertain standard creates 3 problems. First, not all results are accurate. The Studdert study found an accuracy rate of determining medical errors (not quite the same as med mal, but close) at between 70 and 75 per cent. That is a better than random, but not great, particularly in light of the other 2 problems: delay (5 years on average) and transaction costs (running the system costs 54 cents of every dollar). This obviously creates potential problems for health care providers: the possibility of an erroneous adverse judgment, time spent worrying and not focused on health care, and high attorneys' fees/insurance premiums. To me, it is even worse for claimants. The Studdert study found 1 in 6 victims of medical error did not recover. In fact, the study found nonpayment of claims with merit occurred more frequently than did payment of claims that were not associated with errors or injuries. Moreover, a 5-year wait can be devastating to a claimant, particularly if there are large medical bills and lost wages involved.
Instead of simply raising the standard to make it more difficult for claimants to recover (recall 1 in 6 already doesn't recover when s/he should), it makes sense to me to provide claimants and health care providers a voluntary way to opt out of the tort system and handle the claim more along insurance lines, paying economic loss and a modest amount for pain and suffering. New Hampshire's early offers law passed last June was a step in the right direction. It may not be perfect, but it is an improvement over the current system. I won't make a long post any longer, but those who are interested in New Hampshire's early offer law can go here, here, and here.
There is one other facet of the study that is interesting. The authors find a physician's years in practice and, most significantly, previous paid claim history had no effect on the odds of a catastrophic payout. Ted Frank mentioned this at Point of Law. I would not have expected a strong correlation, but the lack of any correlation is surprising to me.
Thursday, May 2, 2013
Yesterday the Florida House passed a med mal reform bill that restricts experts testifying against a defendant doctor to the same specialty, not just the same field. Bloomberg Businessweek has the story.
Wednesday, May 1, 2013
In Missouri, the Senate is debating whether to reinstate a cap on med mal damages after the Missouri Supreme Court ruled last year that a prior cap was unconstitutional. At this point, negotiations are "in limbo," with no vote after 8 hours of discussion. St. Louis Public Radio has the story (see also the San Francisco Chronicle)
Meanwhile, in Florida, the House is set to vote on a bill that would restrict the type of experts eligible to testify against a defendant doctor. See earlier posts here and here. The Jacksonville Business Journal has the story.
Friday, April 12, 2013
By a 27-12 vote, the Florida Senate passed SB 1792, requiring an expert against a defendant doctor to be in the same specialty as the defendant, not just the same field. The bill now goes to the Florida House. The Jacksonville Business Journal has the story.
Thursday, April 11, 2013
The Florida Senate is set to vote today on a tort reform package (SB 1792) that would make med mal cases more difficult to pursue. The major provision requires expert witnesses called against a defendant doctor to practice the exact same kind of medicine as the defendant instead of only being in a similar field. An AP story is here.
Friday, February 22, 2013
House State Agencies and Governmental Affairs Chairwoman Andrea Lea says that consensus is forming for a proposed constitutional amendment on tort reform. The Arkansas Supreme Court recently struck down several provisions in a decade-old tort reform law. The proposed constitutional amendment would allow voters to replace those provisions. The precise content of the potential amendment is not yet available. The City Wire has details and a link to a podcast in which Lea discusses the issue.
Tuesday, February 12, 2013
The Pennsylvania Record reports that rules changes to the mass torts program at the Philadelphia Court of Common Pleas have resulted in a 70% drop in mass tort filings.