Wednesday, January 30, 2013
For the 3rd time in 11 years, Sen. Stan Edelstein attempted to repeal South Dakota's alienation of affections law. This time he was aided by a high-profile trial against a state's attorney in which the jury ultimately rejected the plaintiff's claims. Media coverage was extensive and included specific and intimate details of the relationships involved. The trial changed some minds, but not enough. The Senate Judiciary Committee rejected the bill on a 4-3 vote. South Dakota will remain one of a handful of states retaining the heart balm tort. Argus.com has the story.
Wednesday, January 16, 2013
Indiana Governor-elect Mike Pence has included tort reform in his first year legislative agenda. Proposals include a loser pays bill. Details have not been released yet.
Friday, December 21, 2012
Friday, December 14, 2012
The American Tort Reform Association released its list of Judicial Hellholes for 2012-2013. California has replaced Philly at the top spot on the list. The rest of the top five include West Virginia, Madison County, IL, New York City and Albany, NY, and Baltimore, MD.
Tuesday, December 11, 2012
Virginia Lawyers Weekly is reporting that the Virginia Chamber of Commerce has published its legislative wish list on tort reform. Most of the hot-button issues are missing; for instance, there is no call for caps. This may be explained by Virginia's relatively business friendly environment. The Chamber would like summary judgment practice reform, nonsuit reform, and further limitations on venue.
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.