Tuesday, July 11, 2017
Monday, July 10, 2017
A Kentucky woman has filed a lawsuit alleging that the medical malpractice panels put in place earlier this year and effective June 29th are unconstitutional:
The 38-page suit claims the law “discriminates against a class of litigants who, based on nothing more than legislative whim, must delay any judicial remedy while other litigants can pursue their rights in court immediately.” It asks the court to “preliminarily and permanently” stop the state from enforcing the new law and to award the plaintiffs unspecified “reasonable costs.”
The lawsuit said at least seven states have removed medical review panels and five others have found them unconstitutional.
Jack Brammer of the Lexington Herald Leader has the story.
Friday, July 7, 2017
Agnieszka McPeak has posted to SSRN Regulating Ridesharing Through Tort Law. The abstract provides:
As the sharing economy digs its heels in to the American mainstream, it turns the existing regulatory structure on its head. But the law needs to both facilitate innovation while balancing countervailing concerns like safety and cost allocation. While finding the best way to regulate ridesharing platforms is important, tort law plays a crucial, complementary role as well. On the regulation side, regulators need to craft meaningful rules that promote fairness across the industry – to both sharing economy actors and traditional enterprises. But comprehensive federal regulation under the new Trump administration seems like an unlikely solution. And local regulators run the risk of unnecessarily burdening the sharing economy through barriers to entry or other anti-competitive or onerous regulatory schemes.
Tort law is thus a critical legal tool, and the main focus of this article. While regulations provide prospective limits that may stifle innovation, tort law, on the other hand, addresses retrospective harms and deters future bad conduct. Allowing tort law to provide solutions may be key to preventing over-regulation while still promoting fairness. Thus, while propositions to fix the regulatory piece of the puzzle certainly have merit, tort law is also an important aspect to consider.
This article builds off of longstanding cases dealing with taxi or other transportation services and concludes that tort law is already able to handle the seemingly unique liability concerns arising from ridesharing platforms. In particular, it focuses on vicarious liability doctrines, like joint enterprise liability, as the means for achieving important regulatory goals through the tort system. By using tort law to address some of the concerns surrounding the sharing economy, important objectives can be achieved without risking over-regulation.
Wednesday, July 5, 2017
In a decision sure to reach the state's highest court, Wisconsin's $750K med mal cap on non-economic damages was ruled unconstitutional by an appeals court today. The gist:
A Milwaukee County judge sided with the [plaintiffs], finding the cap was unconstitutional as applied in their case. The 1st District Court of Appeals went further Wednesday, ruling the cap is unconstitutional on its face. The court found the cap allows full awards for less severely injured patients but results in reduced awards for the catastrophically injured, amounting to an equal protection violation.
The court went on to say the cap doesn't achieve any of the Legislature's stated goals in adopting it.
Lawmakers included language with the cap that said it was designed to encourage doctors to practice in Wisconsin, contain health care costs by discouraging "defensive medicine" and providing certainty in damage awards as well as protect the solvency of the state compensation fund.
The number of doctors participating in the fund has grown every year and there's no data indicating a cap has any effect on physician retention anywhere, the court said. Doctors don't face any personal liability thanks to the state fund, which would appear to eliminate the need for defensive medicine. As for the fund's solvency, claims against it have decreased since 2005 and as of 2014 the fund's assets stood at about $1.2 billion, the court said.
"We are left with literally no rational factual basis in the record before us which supports the legislature's determination that the $750,000 limitation on noneconomic damages is necessary or appropriate to promote any of the stated legislative objectives," the court's opinion said.
Todd Richmond, of the AP, filed this story.
Monday, July 3, 2017
Chad McCoy, a Republican state House member and husband of a physician, explains in this article why med mal panels are a bad idea. Like me, he prefers a certificate of merit program. Here's a sample:
“If the panel tells me there’s no negligence, I’m still going to court,” McCoy said, if he has done his homework and thinks there’s a legitimate claim.
“All it does is delay it,” he said. “When you look at Indiana, which has almost the same law, the delays are horrible. It delays cases, on average, about three years.”
Kentucky’s constitution says there can be no “unreasonable delay” in a court case.
The statute also makes cases more expensive because the insurance companies have to hire attorneys to make their arguments before the review panels whether they go to court or not, he said.
The people on the panel don’t make any money. The lawyer who chairs it gets paid in a day about what he could bill for an hour if he were working other cases, and the doctors don’t get paid at all. They’re conscripted.
“The intention is great. Let’s get rid of frivolous lawsuits. Let’s make justice efficient. I’m for all of those things. It’s just unfortunate that this is not the best way to go about it,” McCoy said.
In fact, it may actually result in more, not fewer, frivolous lawsuits, he said.
Currently, there aren’t that many of them in Kentucky despite the all the TV ads for ambulance chasers. That’s because it costs so much to take those cases. The plaintiff’s attorney has to decide if he’ll earn enough to pay the tens of thousands of dollars it costs to get a doctor to testify as an expert witness. In most cases, it isn’t worth it.
“I turn away, on a daily basis, probably four or five medical malpractice cases, not because they didn’t show a mistake, but because the damages weren’t high enough to even get past our fixed costs,” he said.
Now that the new law is in place, however, he and his partner have a couple of cases they intend to file with the cabinet because it won’t cost them anything.
McCoy got out a 2015 edition of the “Kentucky Trial Court Review,” a compendium of court cases, to show that the number of medical malpractice cases has declined steadily since 1998, and most cases don’t result in awards.
“Look at how the number of cases has plummeted over the years,” he said. “It’s almost like this is a solution in search of a problem.”
Friday, June 30, 2017
House Republicans had just enough votes to pass a med mal reform bill on Wednesday. The bill would impose a $250,000 limit on non-economic damages in med mal suits that involve coverage provided through a federal program such as Medicare or Medicaid or to coverage that is partly paid by a government subsidy or tax benefit. In addition, the bill would curb attorneys' fees and impose a three-year statute of limitations (with some exceptions). WaPo has the story.
Thursday, June 29, 2017
A scaled-back version of Lavern's Law, adopting the discovery rule, has passed the legislature in New York. The approved bill is more modest than the proposed bill in two ways. First, it only applies to med mal cases involving cancer. Second, the change is prospective only; there is no one-year window to revive past cases. Thus, the family of the bill's namesake, Lavern Wilkinson, would not be able to sue pursuant to it. Governor Cuomo, who supported the original bill, will review the bill as approved. The Daily News has the story.
Tuesday, June 13, 2017
Monday, June 12, 2017
James Goudkamp has posted to SSRN the Introduction to his book Tort Law Defences. The abstract provides:
The law of torts recognises many defences to liability. While some of these defences have been explored in detail, scant attention has been given to the theoretical foundations of defences generally. In particular, no serious attempt has been made to explain how defences relate to each other or to the torts to which they pertain. The goal of this book is to reduce the size of this substantial gap in our understanding of tort law. The principal way in which it attempts to do so is by developing a taxonomy of defences. The book shows that much can be learned about a given defence from the way in which it is classified.
Friday, June 9, 2017
Yesterday, on equal protection grounds, a sharply divided Florida Supreme Court struck down a 2003 cap on non-economic damages in medical malpractice cases:
“We conclude that the caps on noneconomic damages … arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries,” said the majority opinion shared by Chief Justice Jorge Labarga and justices Barbara Pariente, R. Fred Lewis and Peggy Quince. “We further conclude that because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps … and alleviating this purported crisis. Therefore, we hold that the caps on personal injury noneconomic damages … violate the Equal Protection Clause of the Florida Constitution.”
News 4 Jax has the story.
Wednesday, June 7, 2017
Tuesday, June 6, 2017
New York is one of the few remaining jurisdictions that does not have a discovery rule for its medical malpractice statute of limitations. For the past several years, a bill has been introduced to join the majority of jurisdictions. The bills have been referred to as "Lavern's Law" after Lavern Wilkinson, who died in 2013 after a misdiagnosis of cancer that delayed her treatment by two years. The New York Daily News ran a pro-Lavern's Law editorial yesterday.
Friday, June 2, 2017
James Goudkamp has posted to SSRN The Birth of a Tort: A Practical Perspective on the Tort of Malicious Prosecution of Civil Proceedings. The abstract provides:
The law of torts periodically spawns a new cause of action. For example, Wilkinson v. Downton  2 QB 57 established the tort of wilful infringement of personal safety. The Protection from Harassment Act 1997 created the tort of harassment. Tort law sometimes also grows by absorbing a cause of action that was previously understood to pertain to another branch of the law. Thus, the action in breach of confidence, which was for centuries understood exclusively as a species of equitable wrongdoing, has been acknowledged, at least in cases that involve a breach of privacy as opposed to the divulgement of secret information, as a “tort” (see, e.g., Douglas v. Hello! Ltd  UKHL 21;  1 AC 1  (Lord Nicholls)). The newest addition to the stable is the tort of malicious prosecution of civil proceedings. The Supreme Court recognised that action in its landmark decision in Willers v. Joyce  UKSC 43;  3 WLR 477. In doing so, the Court thereby gave the ancient tort of malicious prosecution of criminal proceedings a sibling. This article addresses the decision in Willers.
Wednesday, May 31, 2017
Back in March, I reported that a med mal review panel bill had passed the legislature in Kentucky. The bill was signed by the governor and goes into effect on June 29. The Kentucky Cabinet for Health and Family Services is accepting applications from attorneys interested in participating in those panels; fifty attorneys have already expressed interest.
Panels will have nine months to review cases and render an opinion, with the results admissible in court, but not binding. They can render one of three opinions:
A medical provider violated standard of care and that action was the proximate cause of injury.
The provider violated standard of care, but it was not the proximate cause of injury.
Standard of care was not violated.
Kentucky New Era has the story. The panels will add further delay to the resolution of med mal cases, which are already too slow (averaging 4-5 years from event to resolution).
Friday, May 26, 2017
Sabrina Safrin has posted to SSRN The C-Section Epidemic: What's Tort Reform Got to Do with It?. The abstract provides:
Today one in three babies in the United States comes into the world by cesarean section. The cesarean section has become the most commonly performed operating room procedure in the United States. Conventional wisdom holds that malpractice liability bears primary responsibility for the cesarean section epidemic and that tort reform, which caps physician liability, holds the key to its reduction. This article presents new aggregate empirical data that debunks this view. For the first time, it provides a national cesarean rate for births subject to damage caps and a national cesarean rate for births without damage caps. This data shows that a woman is not less likely to give birth by cesarean section in a state with damage caps than in one without. Thus, either damage caps are insufficient to address physicians’ concerns or other explanations better account for the overuse of the procedure. The empirical analysis will assist policy makers and advocates seeking to reduce the cesarean rate as well as contribute to consideration of the efficacy of medical malpractice reform as a means to reduce the broader problem of medical overtreatment.
The article then outlines three policy initiatives to reduce the cesarean section rate. First, it suggests upending the current payment practice for deliveries. Contrary to the present norm, it proposes that obstetricians receive more rather than less to deliver vaginally to compensate them for the extra time that vaginal delivery takes compared to cesarean delivery. Second, rather than looking to tort reform to reduce cesarean section rates, the article explores whether malpractice insurance providers themselves are contributing to the cesarean section epidemic and advocates two novel medical malpractice insurance reforms to address this problem. Third, it advocates public disclosure of hospital and physician cesarean section rates so that women can make informed decisions when selecting their health care providers and when determining whether to have a cesarean section.
Thursday, May 25, 2017
Jerry Canterbury, the plaintiff in Canterbury v. Spence, died aged 78 in March. From the NYT obituary:
The ruling, by a federal appeals court in Washington in 1972, declared that before a patient provided informed consent to surgery or other proposed treatment, a doctor must disclose the risks, benefits and alternatives that a reasonable person would consider relevant.
Previously, the onus of soliciting that information had rested with the patient, and any description of risks was provided at the doctor’s discretion. A doctor had been considered negligent only when treatment was administered against the patient’s wishes.
“It would not be an exaggeration to say that the opinion is the cornerstone of the law of informed consent” to medical treatment, “not only in the United States, but in other English-speaking countries, too,” said Prof. Alan Meisel, who teaches law and psychiatry at the University of Pittsburgh School of Law.
(Via Chris Nace at The Legal Examiner)
Wednesday, May 24, 2017
In the past week, I have had posts about the ALI's votes on two Restatement projects. On Monday, the membership reviewed the Restatement of the Law Third, Torts: Intentional Torts to Persons (Reporters Ken Simons and Jonathan Cardi). The entire discussion consisted of motions on section 3(b), which provides liability for offensive battery for unusually sensitive plaintiffs. Guy Struve filed two motions to eliminate liability. The membership split on the motions, eliminating liability for cases of substantial certainty but retaining it in cases where the defendant had purpose to offend the plaintiff. The Reporters accepted Richard Wright's motion to amend requiring it be the defendant's principal purpose. Due to a lack of time, Wright's other motions were not debated.
Yesterday the membership reviewed the Restatement of the Law, Liability Insurance (Reporters Tom Baker and Kyle Logue). A number of motions to alter the draft were defeated, but a final draft was not approved as scheduled. The Reporters agreed that another year of work on the project would be beneficial.
Tuesday, May 23, 2017
Today the ALI's membership will be asked to review the proposed final draft of the Restatement of the Law, Liability Insurance for approval. Jeffrey Thomas has a piece examining a portion of the Restatement entitled Extra-Contractual Liability in the Restatement of the Law, Liability Insurance: Breach of the Duty to Settle or Bad Faith?. The abstract provides:
This paper focuses on the Restatement’s treatment of an insurer’s duty to settle and the duty of an insurer to act in good faith in handling liability claims. The duty to settle is framed as an objective “duty to the insured to make reasonable settlement decisions.” At the same time, however, a separate claim is retained for an insurer’s “bad faith” breach of its duties (including the duty to settle). Further, a subjective element is adopted for the bad faith standard. To be liable for “bad faith,” an insurer must act “without a reasonable basis for its conduct” and must also act with “knowledge of its obligation to perform or in reckless disregard of whether it had an obligation to perform.” This use of the objective and subjective standards creates a new paradigm, one that distinguishes between the duty to settle and “bad faith” conduct and applies different standards for liability. This paper begins with a general description of the standards and the case law in support of them. It then turns to some implications of the new paradigm, both in terms of the damages available to insureds and the application of the standards to insurer conduct at the margins of reasonableness.
Monday, May 22, 2017
Cathy Sharkey has posted to SSRN The Anti-Deference Pro-Preemption Paradox at the U.S. Supreme Court: The Business Community Weighs In. The abstract provides:
Two indicia of the Roberts Court’s alleged pro-business leanings are, first, its readiness to find state tort law preempted by federal law and, second, its skepticism toward Auer deference to federal agencies. But it is difficult to reconcile individual Justices’ — particularly those identified as part of the “conservative core” — pro-preemption positions and anti-Auer positions, and this tension suggests that the oft-advanced pro-business narrative warrants a closer look. The tension is on clearest display in drug preemption cases, where even the most anti-agency deference Justices readily defer to the Food and Drug Administration (FDA), particularly when the agency’s interpretation of its own regulations under Auer is at issue.
This Article examines the extent to which the business community is involved in, and is perhaps even playing a role in perpetuating, this paradox. It also remains to be seen how, if at all, this will affect the Court going forward.
Friday, May 19, 2017
The latest edition of Marshall Shapo's products liability treatise is available from Elgar. The blurb provides: