Tuesday, December 4, 2012
Psychology Today has an article by John C. Goodman, Ph.D., on "Reforming the Tort System: Freeing the Patient." The article examines medical malpractice liability by contract, rather than the tort system. Goodman is a Research Fellow at the Independent Institute and President and Kellye Wright Fellow in Healthcare at the National Center for Policy Analysis.
Thursday, November 29, 2012
A number of authors have been engaging in a lively debate about congressional power to enact tort reform. Starting it off, Paul Clement authored Federalism, the Framers, and Federal Legal Reform - Setting the Record Straight, released by the Chamber of Commerce in October. Essentially, Clement defends federal tort reform as permissibe under the Commerce Clause. Last week, Rob Natelson of the Independence Institute offered a response: Did the Founders Constitution Permit Federal Tort Reform? And now, Randy Barnett over at Volokh Conspiracy has weighed in.
Thursday, November 1, 2012
The Taipei Times is running an article today about medical malpractice reform in Taiwan. Here is a sample:
The Taiwan Health Reform Foundation (THRF) yesterday said there were four major problems that patients often meet in medical malpractice disputes, and urged that the mechanism for dealing with medical disputes be codified to solve the problems.
The four major problems are “difficult to obtain critical evidence, many traps within negotiations, no access to consultation and investigation and asymmetric professional information,” the foundation said, saying that the problems were revealed by patients or their family members through their complaints to the foundation over the past year.
Among other data provided in the article, a THRF survey found that many people only demand an apology and the truth, and up to 98 percent of respondents said what they needed most was professional consultation and investigation to clarify the problem.
Thursday, October 25, 2012
Rudy Giuliani, former mayor of New York City, was the keynote speaker at the U.S. Chamber of Commerce's annual Legal Reform Summit held yesterday in Washington, D.C.. Using his experience as mayor, Giuliani discussed his views on why tort reform was necessary. C-SPAN has video of the speech. BLT also has the story.
Friday, October 5, 2012
The Kansas Supreme Court has just released an opinion upholding a $250,000 cap on pain-and-suffering damages in personal injury cases. Missouri invalidated a similar cap in August.
The (lengthy) opinion (pdf) is here: Download DC-#413210-v1-Kansas_Cap_Constitutional_Cap_Decision
Friday, September 21, 2012
Thanks to comments from Tony Francis and TPM, I know that George W. Bush discussed medical liability reform in his 2005 State of the Union address. Also, in 2011, Barack Obama called for medical liability reform to cut down on frivolous lawsuits and save the government money. It makes sense that tort law and reform would appear more in SoU addresses, which are policy-oriented, than in inaugural addresses, which focus on very broad principles.
Monday, September 10, 2012
The Chamber's Institute for Legal Reform has released the 2012 Lawsuit Climate Report. The report surveys in-house general counsel, and senior attorneys at companies with at least $100 million in annual revenues about their perceptions of the states' tort systems. According to the report, "[t]he worst jurisdiction was Chicago/Cook County, Illinois (17%), followed by Los Angeles, California (16%), the state of California in general (9%), San Francisco, California (9%), and Philadelphia, Pennsylvania (8%)."
A pdf of the report is also available.
Monday, September 3, 2012
The Associated Press reports that a woman has pled guilty for submitting false claims to the state tort fund created to compenstate the victims of the Indiana State Fair stage collapse in 2011. This example raises the interesting question about how to prevent fraudulent claims when administering a compensation fund.
Monday, August 6, 2012
In a decision issued July 31st, the Missouri Supreme Court struck down the state's statutory cap on non-economic damages as violating the Missouri state constitution. Specifically, the court found that the cap violated the right to a trial by jury. A copy of the decision is available here (pdf).
Friday, August 3, 2012
Michael Frakes (Cornell) has posted a new article to SSRN, Does Medical Malpractice Deter? The Impact of Tort Reforms and Malpractice Standard Reforms on Healthcare Quality. The abstract provides:
Despite the fundamental role of deterrence in the theoretical justification for medical malpractice law, surprisingly little evidence has been put forth to date bearing on its existence and scope. Using data from the 1979 to 2005 National Hospital Discharge Surveys and drawing on an extensive set of variations in various tort measures (e.g., damage caps) and malpractice standard-of-care rules (Frakes 2012a), I estimate a small and statistically insignificant relationship between malpractice forces and two metrics of healthcare quality emphasized by the Agency for Healthcare Research and Quality: avoidable hospitalization rates (reflective of outpatient quality) and inpatient mortality rates for selected medical conditions. At most, the evidence implies an arguably modest degree of malpractice-induced deterrence. For instance, at one end of the 95% confidence interval, the lack of a non-economic damages cap (indicative of higher malpractice pressure) is associated with only a 4% decrease in avoidable hospitalizations.
Tuesday, July 31, 2012
The Tulsa World reports that medical malpractice judgments in Oklahoma are at a ten-year low. Both tort reform proponents and opponents attribute the stats to the impact of OK's 2009 tort reform law, but disagree on whether the result is a good thing.
Thursday, July 19, 2012
Back in late February, Widener screened the documentary "Hot Coffee" in honor of Scott Cooper's status as incoming President of PA Justice. As part of the event, Susan Saladoff, the director, appeared via Skype to discuss the movie and answer questions. Victor Schwartz, General Counsel for the American Tort Reform Association, also appeared to discuss the movie and answer questions. As far as I know, this is the first time the two "appeared" together, even if it was via Skype. Ms. Saladoff had already started talking when the recording began; the video is about 45 minutes long. Enjoy!
Monday, July 16, 2012
Representative J. Brandon Giuda has an op-ed in the Union Leader that explains New Hampshire's early offer law. Rep. Giuda was one of the legislators heavily involved in its negotiation and drafting. The most significant point he makes is a confirmation of a suspicion I have had for some time. If the claimant requests an early offer, rejects that offer, and then fails to receive at least 125% of that offer from the tort system, the claimant will pay the health care provider's attorney's fee for the early offer process only. That will likely be quite cheap. This obviously ameliorates the fear of those who have been arguing that the scheme was too draconian. My hope is that it is a strong enough disincentive to prevent claimants from gaming the system. If claimants believe there is no downside to requesting an early offer, almost all of them will. If many claimants consistently refuse the offers, the health care provider will decide it is a waste of time and will stop making offers, meaning this needed alternative will no longer be available to claimants. There is reason to hope that those who request the offer have already decided they prefer the certainty of economic loss delivered quickly and the offers that are made will be accepted at a substantial rate, but only time will tell.
Monday, July 9, 2012
Monday, July 2, 2012
I realize we have readers not terribly interested in early offers. I hope to take a break from them after this.
Max Kennerly, of the Beasley firm in Philadelphia, posted some comments on my previous early offers posts and, instead of answering them piecemeal, I want to address them comprehensively. The crux of Kennerly’s opposition to early offers is actually the same as my support for them: the desire that claimants receive compensation.
As I understand Kennerly’s comments, he has two principal objections. First, the penalty for turning down the offer will exacerbate the amount of claimants who do not recover because it will prevent lawyers from taking their cases. Second, the amount of and process to obtain the early offer would be insufficient for a variety of reasons.
The Penalty for Turning Down the Early Offer Will Lead Attorneys to Turn Down Cases.
Kennerly notes a 2006 New England Journal of Medicine article finding that approximately one in six claimants with valid claims did not recover. He believes the addition of the bond and fee-shifting will mean more claimants will not be able to obtain a lawyer (because of the risk involved).
There are two responses to this concern. First, New Hampshire’s law has safeguards in place that encourage claimants to have an attorney involved in the initial decision of whether to seek an early offer. Unrepresented claimants are assigned a neutral advisor whose job is to encourage the claimant to seek an attorney and explain the difference between early offers and traditional tort law. Thus, many claimants will likely have attorneys before the offer is requested, reducing (but not eliminating) the scenario Kennerly fears. In this vein, I’m actually more concerned that claimants who would benefit from early offers will fail to request them on the advice of counsel than I am that claimants will request an offer when it is ill-advised.
Second, and more significantly, the only way a claimant will have the burden of fee-shifting attached to the claim is if the claimant requested an offer and the offer has been made. In other words, the claimant has already been assured economic loss (on this issue, see Kennerly’s next objection), a modest amount for pain and suffering, and the payment of her attorney’s fees. If the concern is that one in six claimants with valid claims recovers nothing, surely this is an improvement. Especially when one considers the fact that the most egregiously injured claimants often recover only a portion of economic loss pursuant to tort law.
Saturday, June 30, 2012
Over at Litigation & Trial, Max Kennerly has found a problem with the early offer law, but it is not as serious as he first believed.
Kennerly argues that early offers do not cover future lost wages. He arrives at this conclusion by noting that the definition of "economic loss" includes wages, but does not include "earning capacity." His conclusion is that "wages" only means wages that would have been earned at the time the claim is filed. He then provides an example of someone who lost $50,000 in past lost wages and Kennerly is concerned that he will only receive the $50,000 in lost wages.
The statute makes it clear that future lost wages are included. Section 5:19-C:5 provides that future lost wages will be paid. That section divides payments by the health care provider into section I, covering economic losses previously incurred, and Section II, covering future economic losses. Subpart b to Section II covers lost wages, and states: "Payment of lost wages shall be made weekly." Moreover, the payments are adjusted annually to keep up with inflation.
What then does "earning capacity" mean? Kennerly is right that it should have been defined in the statute. However, I think he arrived at the answer in his updated post that responded to my comment. Moreover, in so doing, I think he sheds light on the nature of early offers. He says that "earning capacity" includes "estimates of increased wages due either to individual career advancement or advancement of wages as a whole in a particular sector." Early offers does include increased wages due to inflation. What it doesn't include, what it can't include, based on its very nature, is the individualized treatment that Kennerly wants.
This is the tradeoff. Tort law generally provides individualized justice. If you want to push your case far enough, a jury will decide whether the health care provider was liable and how much pain and suffering that the claimant, this particular claimant, suffered. As a result, it can be slow, averaging about 5 years per med mal case, and expensive, chewing up a lot of transaction costs. Early offers is based more on an insurance premise. The claimant gives up the possibility of having a jury take all of her particular circumstances into account for recovery that is certain and much swifter. Especially when one considers that the most seriously injured claimants often recover only a fraction of their economic loss and claimants lose a large portion (around 80%) of tried med mal cases, the tort route can be daunting for claimants who understand it.
As I have said before, early offers is not for everyone. Kennerly proffers a college student client who had no lost wages, but the potential to earn $3 to $5 million. Absent more information, I would say this client should not request an early offer if one were possible. But there are claimants for whom it makes sense. I was a plaintiffs' lawyer, and I can recall any number of clients for whom it would have made sense. I hope plaintiffs' attorneys in New Hampshire will give it fair consideration as an alternative for those types of clients.
Thursday, June 28, 2012
On Wednesday, the legislature in New Hampshire voted to override Governor Lynch’s veto of the early offers bill. Despite some imperfections in the bill, it was a good decision. Because all of the criticism is coming from the claimants’ perspective, I specifically state that the early offers law is good for claimants. I defended an earlier version of the bill from the claimants’ perspective here.
In a post on Wednesday, The Pop Tort pronounced early offers “horrendous.” Unlike the editors of many torts-related blogs, I don’t know the people who write for The Pop Tort. I don’t always agree with their positions, but I admire their dedication to victims of tortious conduct. This is a major reason why I want to respond to their early offers post. I would like those typically supportive of claimants to seriously consider endorsing early offers.
Because the bill has changed since I last defended it, I will start by briefly explaining the version that is now the law of New Hampshire. Pursuant to the bill, a patient who believes she is the victim of malpractice may send a notice of injury to the heath care provider requesting an early offer. The provider has 90 days to decide to extend an early offer and can ask the patient to undergo a physical exam. If extended, the offer must cover all economic loss—medical bills and lost wages. There are modest amounts of pain and suffering damages included based on classification of the injury as determined using the National Practitioner Data Bank severity scale. Moreover, the offer includes payment of the claimant’s attorney. The patient then has 60 days to accept or reject the early offer. If she accepts the offer, the case is over. However, if she rejects the offer and pursues a tort claim, she must be awarded at least 125 percent of the early offer or have to pay the defendant’s attorney’s fees. To ensure these fees can be paid, a bond must be posted.
I begin by examining the specific points of opposition in the post.
Wednesday, June 27, 2012
It is not yet being confirmed by the media, but it appears that the legislature has overridden Governor Lynch's veto, making New Hampshire the first state to adopt an early offers law.
Updated: The veto override is confimed by the New Hampshire Union Leader.
Friday, June 22, 2012
A new study conducted by a group of researchers including Charles Silver (Texas) concludes that Texas's 2003 tort reforms did not lower health care costs. The Austin American-Statesman has the details.
Wednesday, June 20, 2012