Wednesday, March 4, 2015
In Iowa, the medical community and trial lawyers have agreed to a voluntary early resolution program for medical malpractice cases; a Senate subcommittee has recommended passage. The bill's "Explanation" section provides:
This bill allows a physician, or a physician jointly with a health facility, to engage in an open, confidential discussion with a patient related to an adverse health care incident.
If an adverse health care incident occurs, the bill allows a physician, or a physician jointly with a health facility, to offer to engage in an open discussion with the patient. The notice of an offer to engage in an open discussion must be sent to the patient within 180 days after the adverse health care incident. If the patient agrees to proceed with an open discussion, the physician or health facility may investigate the adverse health care incident, disclose the results to the patient, and discuss steps the physician or health facility will take to prevent similar adverse health care incidents. The physician or health facility may also communicate to the patient that either the physician or health facility has determined that an offer of compensation is not warranted or that an offer of compensation is warranted. An offer of compensation may be conditioned upon the patient executing a release of future liability as to the adverse health care incident. All communications made under the Code chapter are privileged and confidential, are not subject to discovery, subpoena, or other means of legal compulsion for release, and are not admissible in evidence in a judicial, administrative, or arbitration proceeding.
The Gazette has the story.
Tuesday, March 3, 2015
Last year, Georgia debated becoming the first state in the country to reform med mal along the lines of workers comp. The bill failed. Sen. Brandon Beach is introducing a similar bill, Senate Bill 86:
Under the proposal, the new system will be governed by an 11-person panel consisting of physicians, attorneys, accountants and patient advocates. The board will set maximum injury compensation rates and approve medical review panelists.
Complaints will be handled by independent panels, comprised of representatives from practices or specialty areas similar to the provider. If a claim is found to have merit, the plaintiff will receive a monetary award to be determined by a compensation committee.
NeighborNewspapers.com has the story.
Tuesday, February 24, 2015
The West Virginia Senate recently passed a bill reinstating the "open and obvious" doctrine in premises liability. In Illinois, a bill introduced in the House would go in the opposite direction, restricting consideration of open and obvious conditions to the trier of fact on the issue of comparative fault. Thus, a judge would not be able to consider open and obvious on the duty issue. The National Law Review has the story.
Monday, February 23, 2015
Current law in Indiana restricts medical providers from volunteering their services unless they have malpractice insurance. Similar to laws in several other states, House Bill 1145:
would establish a licensing procedure for both volunteers and locations at which medical services can be offered. Volunteers must sign a waiver and be working without compensation at a licensed facility in order for civil immunity to be applicable.
Exceptions to the malpractice immunity will be made in instances where gross negligence or willful misconduct has taken place or if a nonapproved procedure is performed by a volunteer.
Indiana Daily Student has the story.
Sunday, February 22, 2015
On Wednesday, on an 18-16 vote, the Senate defeated a punitive damages cap. On Thursday, on a 26-8 vote, the Senate passed a bill that capped damages at $500,000 or four times compensatory damages (up from 3x in the bill defeated a day earlier), whichever is greater. WV MetroNews has the story.
Thursday, February 19, 2015
West Virginia has been an extremely busy place for tort law this month. Yesterday the Senate declined to enact a punies cap of $500,000 or three times compensatory damages, whichever is greater. The vote was 18-16, with two Republicans joining the Democrats in opposition. WV MetroNews has the story.
Friday, February 13, 2015
The House Judiciary Committee approved a bill to extend West Virginia's $500,000 non-economic damages cap in med mal cases to nursing homes. The Senate has already passed the bill. WV Metro News has the story.
Tuesday, February 10, 2015
In West Virginia, the Senate and House have passed different reforms regarding liability by multiple tortfeasors. Currently in West Virginia , if a defendant adjudged at fault can't pay its share of damages and another party was adjudged more than 30% responsible, the second party may be required to pay all the remaining damages. The Senate bill would still require other parties to pay for damages the insolvent entity can't cover, but the amount of damages required to be covered would depend on the amount the solvent party was adjudged at fault. The House bill moves to pure several liability in most cases. It will be interesting to see what comes out of conference committee. West Virginia Pubic Broadcasting has the story.
In 1976, the legislature in South Dakota enacted a $500,000 non-economic damages cap in medical malpractice cases; the cap was not indexed to inflation. The Tribune covers the cap with familiar arguments about access and fairness on one side and retaining physicians on the other. Nora Freeman Engstrom is quoted.
Friday, February 6, 2015
The Senate Health and Welfare Committee sent to the full Senate a bill creating three-member panels to review claims before they can go to court. The panel's findings would not be binding, but would be admissible in court. The Senate has passed this bill before, but it has not passed in the House. The Glasgow Daily Times has the story.
Update: The Senate passed the bill 24-12.
The bill is a bad idea because it adds more delay and transaction costs to an already lengthy and expensive process, without resolving anything. Studies conclude the average med mal claim lasts about 5 years from event to resolution, with more money being used to run the system than to compensate victims. Review panels increase the time to resolution by adding another layer of procedure. They also increase transaction costs as lawyers and experts for both sides try to convince an additional decision maker of the merits of their case.
To the extent reducing frivolous claims is the goal, a certificate of merit requirement would be preferable: it is quicker and less expensive. Moreover, reducing the length and adversarialism of the process should be the focus. Review panels were in place in Virginia when I practiced. Most plaintiff's lawyers simply didn't participate. The result was admissible at trial, but so was the information that the plaintiff was not involved in the panel's decision. The claim was delayed, but at least it was not also more expensive.
Wednesday, January 21, 2015
In 2012, Massachusetts enacted a disclosure and early offer law for medical injuries. NPR covers the law here. There's not much empirical data (it's fairly early), but the story describes a particular case:
The law mandates that people give health care providers six months' notice if they intend to sue. The woman's lawyer notified the hospital of the mistake. Hospital officials, who had 150 days to respond, determined that their actions hadn't met the standard of care. The hospital arranged a meeting between the woman and one of their physicians to talk about why the error occurred and the measures being taken to make sure it won't happen again. The physician apologized, and soon after the woman accepted a financial settlement from the hospital.
Tuesday, January 20, 2015
On Friday, I reported that Indiana's intermediate appellate court upheld its governmental damages cap from a constitutional challenge. The Pennsylvania Supreme Court reached a similar conclusion in November. Maryland is the latest state to consider the issue; last Monday, the Maryland Court of Appeals heard arguments over the state's $400,000 cap. If the court joins Indiana and Pennsylvania in affirming the constitutionality of the cap, the legislature should consider an insurance waiver to the governmental immunity cap, similar to the one in place in Delaware. The Baltimore Sun has the story.
Friday, January 16, 2015
Last month, I reported that the Indiana Court of Appeals (the intermediate appellate court) heard arguments on whether Indiana's tort claims damages cap for governmental defendants was constitutional. On Wednesday, the court upheld the damages cap as constitutional, mirroring a similar ruling from Pennsylvania in November.
Thursday, January 15, 2015
Dubuque, Iowa is moving ahead with an ordinance banning sledding in all but 2 of its 50 parks based on liability concerns and demands from the city's insurer. In the past decade, there have been sled injury verdicts of $2M or more in Omaha, Nebraska and Sioux City, Iowa. Several cities have started banning sledding, while other post signs warning of the risks. ABC News has the story.
Monday, January 5, 2015
Wisconsin law allows only spouses, minor children, or the parents of minor children to sue for wrongful death in med mal cases. The restriction prohibits adult children who lose their parents or parents who lose college-age children from suing for medical negligence. Bills to eliminate the restriction have been repeatedly introduced and defeated. This year State Senator Harris Dodd plans to introduce a narrower bill that would allow parents of children younger than 27 to file suit for medical malpractice. The Milwaukee Wisconsin Journal Sentinel has the story.
Monday, December 29, 2014
A panel created by the General Assembly has recommended a compensation fund for babies suffering neurological injuries at birth. Virginia and Florida set up similar funds years ago. The Baltimore Sun has the story.
Tuesday, December 23, 2014
Many jurisdictions have fewer civil than criminal jurors. On Friday, Illinois Governor Pat Quinn signed legislation to reduce civil juries from 12 to 6, effective June 1, 2015. In cases filed prior to June 1, the parties are entitled to a jury of 12. Public Act 098-132 is here. (Via The National Law Review)
Wednesday, December 17, 2014
Like many jurisdictions, Indiana has a tort claims act. Pursuant to Indiana's version, the maximum total payout to victims for any single event is $5M. In 2011, a stage at the Indiana State Fair collapsed; 62 victims have been paid damages from the incident. One of the injured, 10-years-old at the time, opted to sue the state. On Monday, an appellate court heard arguments that the cap is unconstitutional. In a filing, plaintiff's lawyers stated:
“The $5 million cap, both on its face and as applied, violates Plaintiff’s constitutional rights, which provides in relevant part [that] all courts shall be open, and every person for injury done to him and his person, property or reputation, shall have remedy by due course of law."
WISHTV.com has the story.
Thursday, December 4, 2014
The Ohio General Assembly is considering a bill to expand the state's apology immunity statute in med mal cases to include admissions of fault. The bill passed the state House last week and is expected to get hearings in the Senate prior to the end of the lame-duck session this month. The Akron Beacon Journal has the story.