Monday, December 19, 2016
The Supreme Court of Ohio has ruled, again, that a cap on noneconomic damages is constitutional. The suit involved a 15-year-old girl who was raped by her senior pastor during a counseling session in his office. The girl and her father sued the pastor and several other defendants and obtained a $3.6M verdict. After the cap was applied, the judgment was trimmed to $500,000. Marianna Brown Bettman (Emeritus, Cincinnati) has a detailed post at her blog, "Legally Speaking Ohio".
Tuesday, December 13, 2016
Benjamin McMichael, Lawrence Van Horn, and Kip Viscusi (all Vanderbilt) have posted to SSRN Sorry is Never Enough: The Effect of State Apology Laws on Medical Malpractice Liability Risk. The abstract provides:
State apology laws offer a separate avenue from traditional damages-centric tort reforms to promote communication between physicians and patients and to address potential medical malpractice liability. These laws facilitate apologies from physicians by excluding statements of apology from malpractice trials. Using a unique dataset that includes all malpractice claims for 90% of physicians practicing in a single specialty across the country, this study examines whether apology laws limit malpractice risk. For physicians who do not regularly perform surgery, apology laws increase the probability of facing a lawsuit and increase the average payment made to resolve a claim. For surgeons, apology laws do not have a substantial effect on the probability of facing a claim or the average payment made to resolve a claim. Overall, the evidence suggests that apology laws do not effectively limit medical malpractice liability risk.
Friday, December 2, 2016
A bill was introduced in the Senate yesterday by Senators Booker and Gillibrand seeking to limit the consideration of race and gender in computing damage awards. The bill will have bipartisan sponsors in the House of Representatives. Ohio State's Martha Chamallas has been heavily involved in the legislation. The Washington Post has details.
Tuesday, November 15, 2016
Sunday, October 16, 2016
A Connecticut judge dismissed the case filed by parents of children killed at Sandy Hook Elementary School against gun manufacturers. The parents alleged negligent entrustment in an attempt to get around the Protection of Lawful Commerce in Arms Act. The judge ruled the plaintiffs did not meet the exception. WaPo has the story.
Friday, October 14, 2016
Alberto Galasso (Toronto-Strategic Management) & Hong Luo (Harvard Business School) have published Tort Reform and Innovation. The abstract provides:
Current academic and policy debates focus on the impact of tort reforms on physicians’ behavior and medical costs. This paper examines whether these reforms also affect incentives to develop new technologies. We find that, on average, laws that limit the liability exposure of healthcare providers are associated with a significant reduction in medical device patenting and that the effect is predominantly driven by innovators located in the states passing the reforms. Tort laws have the strongest impact in medical fields in which the probability of facing a malpractice claim is the largest, and they do not seem to affect the amount of new technologies of the highest and lowest quality. Our results underscore the importance of considering dynamic effects in the economic analysis of tort laws.
Download here: Download GalassoHong_27Sept16 (1)
Thursday, October 13, 2016
The Arkansas Supreme Court has just killed the ballot initiative to amend the state constitution to allow the legislature in medical lawsuits to set a cap on noneconomic damages of at least $250,000 and limit attorney's fees to one-third of the recovery. The court ruled the ballot title left critical elements, including "noneconomic damages", undefined. Arkansas Times has the story.
Monday, October 10, 2016
In November, the people of Arkansas are supposed to vote on a ballot measure amending the state constitution to allow the legislature in medical lawsuits to set a cap on noneconomic damages of at least $250,000 and limit attorney's fees to one-third of the recovery. A special judge has determined there are flaws in the petition process; nursing home employees allegedly solicited signatures from nursing home residents. Family members of the residents question whether the residents were able to understand what they were signing. The issue now goes to the state supreme court. A big issue, however, is whether some of the judges should recuse themselves. The only member of the court not to receive campaign contributions from the nursing home industry is the chief justice. Arkansasmatters.com has the story.
Tuesday, October 4, 2016
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