TortsProf Blog

PA: Bill to Require Dentists to Carry Malpractice Insurance

Sen. Pat Vance has introduced a bill requiring dentists to carry $3M in malpractice insurance (at a cost of about $2,400 a year).  The bill unanimously passed the state Senate.  It has not yet been taken up in the state House.  Pennlive has the story.

--CJR

South Carolina Punitive Damages Legislation Signed

Details here.  The law has a semi-flexible cap on punitive damages, with $500,000 or three times actual damages as the default, but with a safety valve provision to raise the cap to $2 million in certain situations.  Proponents argued that the legislation will increase businesses' desire to locate in the state.

--BC

Case Study on Impact of Tort Reform in Mississippi

Mark Behrens (Shook, Hardy) has just published Medical Liability Reform:  A Case Study of Mississippi, 118:2 Obstetrics & Gynecology 335 (Aug. 2011).  The article examines the impact of tort reform in Mississippi on physicians, particularly ob-gyns, insured by the Medical Assurance Company of Mississippi (MACM), the leading medical liability insurer in the state. The article compares the number of tort suits against these physicians by year from 1986 to 2010.  The article concludes that "Mississippi's tort reform laws were associated with a steep drop in lawsuits against MACM-insured physicians."

Download Behrens Medical_Liability_Reform__A_Case_Study

- SBS

A Rebuttal to the Atlantic Amtrak Piece

Yesterday Chris posted a link to an Atlantic piece, written by Andrew Cohen, critical of the cap on damages in railroad accident cases.  Ted Frank has some pointed criticisms that are worth reading as well.

--BC

Atlantic Article on Damage Caps in Amtrak Reform Act

The anti-cap article, written by Andrew Cohen, discusses the 2008 train crash in Chatsworth, CA caused by a texting engineer.  Cohen quotes portions of Superior Court Judge Peter Lichtman's opinion as he divides the $200M capped damages among the victims, including 24 fatalities.

--CJR

Tonight on HBO

That's right.   Torts - tonight on HBO.   From Meredith Miller at Contracts Prof Blog comes word of a new documentary premiering tonight on HBO:  "Hot Coffee."    As you can guess from the title, the show uses the ubiquitous "hot coffee" case of Stella Liebeck (previously discussed here and here by Mike Rustad) as a lens to view topics of tort reform, judicial elections, and mandatory arbitration.   Unlike the typical use of the Liebeck case, however, the film makers uses it to emphasize the plaintiffs' point of view.

- SBS

WV Reaffirms Constitutionality of Noneconomic Damages Cap in Med Mal Cases

The opinion is here:  Download 35543[1].

Thanks to Mark Behrens for the tip.

--CJR

Pew Center on the States Article on Tort Reform

Stateline, the online news service of the Pew Center on the States, has posted an article on tort reform by John Gramlich here.

--CJR

Tennessee Caps Non-Economic Damages

Nashville Public Radio reports that Tennessee Governor Bill Haslan signed a tort reform bill last week that will cap non-economic damages.    The details in the story are few, but it provides a link to the underlying bill.

- SBS

Alabama Passes Tort Reform Measures

According to the Sand Mountain Reporter, Alabama enacted several tort reform measures last week, though the substance of these reforms is very unclear from the article:

Gov. Robert Bentley signed a package on Thursday that included four bills on tort reform. The legislation is the first of its kind in 14 years.  Republican Rep. Wes Long of Guntersville sponsored one of the four bills in the package. Labeled the Alabama Small business Protection Act, Long’s bill will allow retailers and distributors of products to be dismissed from lawsuits dealing with design and manufacturing of the products.

For example, Long said a pharmacy selling a medication that comes under litigation could be excused from the case “if they prove they didn’t touch it.” Under the former law, the pharmacy would be required to stay in the case until it is resolved, he said.

The other reform bills in the package work to make sure lawsuits stay in the correct venue and keep frivolous lawsuits at bay.

- SBS

Are Congress's Med Mal Reform Efforts Unconstitutional?

That's Walter Olson's provocative question, echoing Georgetown's Randy Barnett's op-ed.  Much of tort law is, of course, fundamentally a state law issue, and -- the argument goes -- the powers granted to Congress just aren't broad enough to capture pretty big parts of tort law, including its applicability to medical malpractice litigation.

--BC

PA: Med Mal Filings Hit New Low

From the Public Information Unit of Pennsylvania Courts:

HARRISBURG, May 18, 2011 — Chief Justice of Pennsylvania Ronald D. Castille today announced the release of state court system data on medical malpractice case filings and verdicts for 2010 that show declines in the number of lawsuits filed statewide for a sixth consecutive year.

 In 2010, there were 1,491 filings, representing a 38.5 percent decline from the “base years” 2000-2002 (shown in Table 1, attached).  In Philadelphia, the state’s judicial district with the largest caseload, the decline has been by nearly 70 percent during the same period.

 The base years are the period just prior to two significant rule changes made by the Supreme Court. The first change required attorneys to obtain from a medical professional a certificate of merit that establishes that the medical procedures in a case fall outside acceptable standards. A second change required medical malpractice actions to be brought only in the county where the cause of action takes place — a move aimed at eliminating so-called “venue shopping.” 

 Tables 2 and 3 detail medical malpractice jury and non-jury verdict amounts for 2010.  In comparison to earlier years, Tables 2 and 3 show that 2010 had the fewest number of jury verdicts in comparison to earlier years. The tables also show more than 80% of the verdicts were for the defense.

 “Pennsylvania’s Judiciary collaboratively addressed a complex medical malpractice litigation crisis, and the latest figures show the progress made in the last seven years,” Chief Justice of Pennsylvania Ronald D. Castille said. “One of our fundamental priorities is to assure the Commonwealth’s citizens that the legal process will not be abused in malpractice cases. We’re very encouraged by these statistics. The crisis is over.”

 The AOPC began the systematic collection of data from each of Pennsylvania’s 67 counties four years ago as part of the Judiciary’s commitment to intergovernmental collaboration in addressing medical malpractice litigation issues. Counties also began to methodically track med mal case information to enhance the focus and accuracy of data collections. New statewide Rules of Civil Procedure were promulgated — Pa.R.C.P. 1018 and 1042.16 — to help identify med mal cases together with a new rule of Judicial Administration — Pa.R.J.A. 1904 — to codify the reporting requirements. An extensive collection of data, rules and other information may be viewed on the Medical Malpractice resource page of the Pennsylvania Judiciary’s Web site at: http://www.pacourts.us/Links/Media/MedicalMalpractice/default.htm

--CJR

4th Circuit Hears Arguments Today on Health Care Law

The United States Court of Appeals for the Fourth Circuit hears arguments this morning in two cases challenging the constitutionality of the federal health care reform law.   In Virginia v. Sebelius (E.D. Va.), Judge Henry Hudson struck down the individual mandate.  While in Liberty University v. Geitner (W.D. Va.), Judge Norman Moon upheld the health insurance requirement and granted the defendants' motion to dismiss. 

More from ABA Journal and the New York Times.

UPDATE:   The panel was comprised of Judges Motz, Davis and Wynn.  Here's the link to the oral arguments.

Thanks to William Gaskill for the update.

- SBS

Loser Pays Bill Passes Texas House

The Texas House passed a "loser pays" reform bill during a heated session last week.  

Coverage abounds:  Houston Chronicle, YNN, UPI.

- SBS

Philadelphia's Very Long Arms

The Drug & Device Law Blog has a good post about how very far Philadelphia courts are willing to reach to permit out-of-state discovery.  Given the expense of discovery, the pressure that can be brought to bear is significant, and worth considering.

--BC

PA House to Vote on Tort Reform Measure Today

WHYY reports that the Pennsylvania House is voting today on House Bill 1, a measure that replaces joint liability among tortfeasors with several liability with a few exceptions. 

- SBS

Government Launches Safety Complaint Database

Law Technology News reports that the federal government has launched SaferProducts.gov, as required under the Consumer Product Safety Improvement Act of 2008.  The website allows consumers to file reports about hazardous products, and then allows other consumers to search and review these filings.

According to the press release,

Following procedures set up by the law, CPSC will review all online Reports and have five business days to transmit qualifying Reports to the manufacturer, where practicable. Manufacturers then have 10 business days during which they may respond and provide comments and/or claims. At the end of the 10 day period, if all requirements are met, the Report and the manufacturer’s comments will be posted on SaferProducts.gov

Thanks to Lisa Smith-Butler for the info.

- SBS

 

Skiing in the U.S. and Switzerland

Forbes (via Overlawyered) has a post up exploring why there might be fewer tort suits in Switzerland than in the U.S., despite the former having some pretty intense ski and other winter sports facilities.

A query, though: Is it clearly true that there are more winter sports-related lawsuits in the U.S.?  I know that at least Colorado and some other major ski states have statutory no-duty rules as to many (statutorily-defined) inherent risks (a survey is here).  Those defined inherent risks would seem to include the tree trunks, exposed banks, and other hazards that are described as "whizzing by" in the Forbes piece.  With some exceptions, those rules should eliminate at least some cases from being filed at all, and get more dismissed at the 12(b)(6) stage. 

Certainly the differences between Swiss and U.S. systems are relevant and interesting, and seem likely to result in less litigation, but the whole piece, and the title of the Overlawyered piece, seem to assume a fact that isn't self-evident (or supported in the post) -- that there is materially more tort litigation against snow sport entities in the U.S. than in Switzerland.  State legislators appear cognizant of tort risks against ski areas and to have at least provided some protection.

--BC

New Congressional Civil Justice Caucus Pushes Legal Reform Issues

From the Blog of the Legal Times:

Conservative lawmakers are organizing in a more formal way to promote an array of changes to the civil justice system, including proposals related to medical malpractice reform, venue and federal pleading standards.

Six members of the U.S. House of Representatives said today they’re starting a Congressional Civil Justice Caucus. Like other alliances formed on specific issues, the caucus won’t have specific authority, but its members hope it will be a vehicle for organizing and debate.

George Mason also has formed the "Congressional Civil Justice Caucus Academy," which is "an independent, outside entity that shares the goals of the Caucus and is organized under the leadership of the Law & Economics Center at George Mason University School of Law."

Thanks to Lisa Smith-Butler for the story.

- SBS

Punitives Cap in South Carolina

The South Carolina House of Representatives overwhelmingly voted to cap punitive damages at three times compensatory damages, with a maximum award of $350,000.  The legislation also restricts the state attorney general's abillity to use outside counsel, and the fees allowed for such counsel.  Similar legislation is expected to be picked up by the Senate shortly.

The bill is available here, and includes various exceptions to the punitives cap.

--BC