Wednesday, October 29, 2014
Tuesday, October 28, 2014
On October 6th in Buffalo, Ken Feinberg was the keynote speaker at a conference on cutting-edge tort issues. He both praises and damns tort law in his remarks to the Buffalo Law Journal.
Friday, October 24, 2014
Proposition 46 on California’s November ballot takes three steps to improve patient safety. While the doctors, hospitals and medical malpractice insurance companies that have spent tens of millions of dollars to oppose this initiative love to say it’s about making more money for trial lawyers, what it’s really about is the safety of all of us who live here. Because any of us could be killed, maimed or disfigured by medical negligence. Any of us could be harmed by a doctor impaired by drugs or alcohol. Any of us could have our lives turned upside down by the actions of a doctor-shopping prescription drug addict who received too many pills from too many doctors.
Of course no one thinks it will happen to them. I didn’t think it would happen to me. Until it did.
Both my elderly mother and my mentally retarded sister died from medical negligence at the same prestigious Los Angeles hospital where actor John Ritter died and his family sued/settled for millions of dollars. Actress Alicia Cole also went to this hospital for a routine surgery and ended up contracting “Flesh Eating Disease” there and almost died. After my sister’s horribly painful death, I turned to the legal system to hold those who treated her accountable and try to prevent other families from going through the same nightmare. You can see a bit about my sister’s story at http://goo.gl/sni513.
But attorney after attorney I approached told me they wouldn’t take the case, despite its merits. That’s because my sister, who was unable to work because of her disability, had no income. She never married and had no children. (I was her full-time caregiver.) And because she was dead, there were no ongoing medical bills to pay.
It wasn’t until I started trying to pursue justice in this case that I learned California has a law, enacted in 1975 and never changed since, that limits compensation for medical malpractice cases like hers to $250,000. And while that amount has been frozen for almost 40 years, the cost of taking a case to trial hasn’t – a good chunk of that cost being the enormous hourly fees paid to doctors as expert witnesses. So after the trial costs have been deducted from the $250,000, the victim’s attorney gets a percentage of the balance, a percentage that’s also limited on a sliding scale by state law. That amount is their compensation for what is often years of work on the case (these lawyers don’t receive hourly fees and don’t get a penny until their client wins an award).
Keep in mind the doctors and hospitals face no limits on what they can spend on their legal defense. In the face of that, most lawyers will look at the potential return on a case like mine where the damage award is capped and say it’s simply not worth it.
I don’t blame them. I blame the law that put them in that position in the first place.
Thursday, October 23, 2014
One of the biggest events in tort law this fall is Prop 46, the California ballot initiative over whether to raise the MICRA cap on non-economic damages in med mal cases (set in 1975 at $250,000 and not raised since). I have contacted both pro- and anti-Prop 46 spokespeople and asked them to write a post supporting their respective positions. Eric Andrist is a leading voice in the pro-Prop 46 movement. His post will appear tomorrow. I have reached out several times to the California Medical Association, and I am still hoping to receive a post from them.
Friday, October 17, 2014
A new study by the RAND Corporation has failed to find evidence of widespread defensive medicine. The study covers three states that raised the malpractice standard in ER cases: Texas, South Carolina, and Georgia. Reforms in Texas and South Carolina had no effect on the use of expensive imaging and a reform in Georgia generated only a small reduction in ER charges. Coverage is here: Forbes; WaPo.
Thursday, October 16, 2014
In its "Shots" section, NPR has covered Prop 46, including the tragic story of Troy and Alana Pack. The article explains all 3 sections of the proposition: (1) requiring doctors to check a prescription database to detect prescription drug abusers; (2) lifting the $250,000 cap on non-economic damages in med mal cases, and (3) mandatory drug and alcohol testing for doctors.
Monday, October 13, 2014
In 2013, the Florida legislature passed a 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.
Last year, a federal judge held the law violated HIPAA, which sets limits on disclosure of personal medical information. On Friday, the Eleventh Circuit upheld the law, stating patients have a choice whether to file suit and, thus, HIPAA is not violated. TheLedger.com has the story.
Friday, October 10, 2014
Thomas Eric Duncan died of Ebola in Texas on Wednesday. Several news stories have discussed the possibility of success of a hypothetical med mal suit in the case. Experts consider it unlikely. Texas has a "willful and wanton" standard for liability in emergency medicine cases; it also has a cap on non-economic damages. As a result, a case is not likely attractive to plaintiffs' lawyers. This would be especially true given the difficulty of proving causation: Ebola has no known cure. Stories are here: NBC News (quoting Charles Silver and Seth Chandler); EaglefordTexas.com (quoting Joanne Doroshow, Silver and Dallas plaintiffs' lawyer, Les Weisbrod).
Thursday, October 9, 2014
A Milwaukee County circuit judge held the state's $750,000 cap on pain and suffering did not apply to a $25.3M verdict, including $15M of pain and suffering to her and $1.5M to her husband, for a woman who lost all 4 limbs due to septic infection. The court did not find the cap unconstitutional, but held there was no rational basis to apply it to this case. An appeal is expected. A Journal Times editorial in support of the judge's ruling is here.
Thursday, September 25, 2014
As I reported here, yesterday the Mississippi Supreme Court was supposed to hear oral arguments on the constitutionality of the state's $1M non-economic damages cap. Instead the parties filed a joint motion on September 17th representing they have settled the case. The court canceled oral arguments and gave the parties 90 days to finalize the settlement. The Jackson Free Press has the story.
Thursday, September 18, 2014
Monday, September 15, 2014
A new USC Dorsife/LA Times poll found support for Prop 46 " a mile wide and an inch deep." When likely voters were polled on Prop 46, 61% supported it, 29% opposed it, and 10% were undecided/refused to answer. When those surveyed heard both sides' main arguments, the numbers shifted to 37% in support, 50% opposed, and 12% undecided/refused to answer. The LA Times has the story.
Tuesday, September 9, 2014
On September 24, the Mississippi Supreme Court will hear oral arguments in a case to determine whether the 2004 non-economic damages cap of $1M is unconstitutional. Circuit Judge Charles Webster so held in a 2011 case seeking damages for the death of a child in an apartment complex fire. The jury awarded the child's parents $6M in non-economic damages. Webster upheld the award and struck down the cap, stating the Mississippi Constitution guarantees every citizen a remedy for an injury done to his lands, goods, person and reputation with that remedy to be determined by a jury. The Miami Herald has the story.
Friday, September 5, 2014
I confess I haven't kept up with Georgia's plan to replace med mal with a system similar to workers' compensation. Because both physicians' and trial lawyers' groups opposed SB 141, I assumed it was dead. This September 3rd editorial from the Columbia County News-Times indicates that some supporters have not given up.
Monday, September 1, 2014
There are a lot of stories on the med mal front. First, two from the MICRA fight:
An analysis from the The Fresno Bee finds that the anti-cap increase ads are misleading. Here's a taste:
But the ad goes too far by unequivocally claiming that raising the cap will increase malpractice insurance costs and that the result would certainly be higher costs for consumers. Five health economists contacted by The Bee had mixed opinions on those questions.
An editorial in the The Sacramento Bee urges rejection of the initiative, stating that the cynicism of attaching the drug-testing measure is reason enough to vote against it.
In other news, Law Firm Newswire is reporting that misdiagnosis is the most common form of med mal, surpassing surgical errors and medication mixups. This is described as surprising, but it is consistent with my memory of med mal cases in the period I practiced law.
Finally, in August, HHS ruled that all malpractice payments under state liability laws must be reported to the National Practitioner Data Base. The ruling was meant to address issues raised by recent "early offer"-type programs enacted in Massachusetts and Oregon.
Friday, August 29, 2014
Prop 46, a California ballot initiative to raise the 1975 non-economic damages cap from $250,000 to $1.1M, includes a rider: physician drug-testing. The two are joined in the "Troy and Alana Pack Patient Safety Act of 2014." Download pdf here: Download Troyandalanapackpatientsafetyactof201400202344. I'm not a fan of non-economic damages caps (though I acknowledge problems with non-economic damages). Moreover, the cap increase strikes me as an easy call. The cap hasn't been raised in 39 years and the increase is just an inflation adjustment; I ran a quick inflation calculation and $250,000 in 1975 is approximately $1.1M. I do, however, object to the compound question nature of the initiative. These are very different issues and should be considered separately. The Sacramento Bee has details.
Thursday, August 21, 2014
Opponents of raising California's med mal cap in a fall ballot (Prop 46) are on the air with a 30-second television ad and a 60-second radio ad. Opponents of the measure have raised more than $36M as of June 30; supporters have raised $2.3M in the same period. The LA Times has the story.
Wednesday, June 25, 2014
There is new med mal data from my home state of Pennsylvania. Since the base years of 2000-2002, med mal cases in PA have declined 43%, with the biggest drop occuring in Philly (68%). In 2003, a certificate of merit requirement and venue restrictions went into effect. In 2013, 77% of jury verdicts were for the defense; 2 of 5 non-jury verdicts were for the defense.
Thursday, June 19, 2014
New York is expanding a program that uses specially trained judges to negotiate early settlements in med mal cases. The uncertainty, delay, and transaction costs that undermine tort law are especially bad in med mal, so this program deserves attention. The Daily News has details.
Wednesday, May 7, 2014
The Clarion-Ledger reviews the 2004 tort reform package passed in Mississippi:
• Caps on damages: The law limited noneconomic, or pain-and-suffering damages to $500,000 on medical liability cases and $1 million in other civil cases. It also reduced caps on punitive damages for defendants, based on their net worth.
• Joint and several liability: The law did away with joint and several liability, limiting damages defendants could face to the fraction for which they were at fault.
• Venue: Created stricter rules for establishing venue, or where a case can be brought and tried. For instance, doctors can only be sued in their home county.
• Product and premise liability: Added protection to “innocent sellers” of products and protects property owners from liability.