Thursday, October 16, 2014
In its "Shots" section, NPR has covered Prop 46, including the tragic story of Troy and Alana Pack. The article explains all 3 sections of the proposition: (1) requiring doctors to check a prescription database to detect prescription drug abusers; (2) lifting the $250,000 cap on non-economic damages in med mal cases, and (3) mandatory drug and alcohol testing for doctors.
Wednesday, October 15, 2014
For the seventh straight year, med mal insurance premiums have dropped for 3 bellwether specialties: ob/gyn, internists, and general surgeons. Rates dropped by approximately 1.5% for the specialties combined. Since 2008, rates for the 3 specialties have fallen by approximately 13%. The survey found that internists in 8 states can obtain insurance for less than $5,000. On the other end of the spectrum, ob/gyns in Nassau and Suffolk Counties in New York must pay $214,999 for a policy. One reason for the premium decline is the decline in claims per physician, regardless of outcome. Moreover the amount of awards and settlements has remained flat. Medscape has the story.
Tuesday, October 14, 2014
Keith Hylton (Boston University) has posted to SSRN Nuisance. The abstract provides:
This essay sets out the law and the economic theory of nuisance. Nuisance law serves a regulatory function: it induces actors to choose the socially preferred level of an activity by imposing liability when the externalized costs of the activity are substantially greater than the externalized benefits or not reciprocal to other background external costs. Proximate cause doctrine plays a role in supplementing nuisance law.
Monday, October 13, 2014
In 2013, the Florida legislature passed a reform requiring claimants filing lawsuits to sign forms authorizing ex parte communications:
In ex parte communications, for example, defense attorneys representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information could come from other doctors who treated the patient, and disclosure could occur without the patient's attorney being present.
Last year, a federal judge held the law violated HIPAA, which sets limits on disclosure of personal medical information. On Friday, the Eleventh Circuit upheld the law, stating patients have a choice whether to file suit and, thus, HIPAA is not violated. TheLedger.com has the story.
Friday, October 10, 2014
Thomas Eric Duncan died of Ebola in Texas on Wednesday. Several news stories have discussed the possibility of success of a hypothetical med mal suit in the case. Experts consider it unlikely. Texas has a "willful and wanton" standard for liability in emergency medicine cases; it also has a cap on non-economic damages. As a result, a case is not likely attractive to plaintiffs' lawyers. This would be especially true given the difficulty of proving causation: Ebola has no known cure. Stories are here: NBC News (quoting Charles Silver and Seth Chandler); EaglefordTexas.com (quoting Joanne Doroshow, Silver and Dallas plaintiffs' lawyer, Les Weisbrod).
Thursday, October 9, 2014
A Milwaukee County circuit judge held the state's $750,000 cap on pain and suffering did not apply to a $25.3M verdict, including $15M of pain and suffering to her and $1.5M to her husband, for a woman who lost all 4 limbs due to septic infection. The court did not find the cap unconstitutional, but held there was no rational basis to apply it to this case. An appeal is expected. A Journal Times editorial in support of the judge's ruling is here.
Wednesday, October 8, 2014
In a matter of first impression, the New Jersey Supreme Court held that a non-customer of a bank can't bring a common law negligence claim for an improper money transfer made by over the Internet. The court held the legislature intended New Jersey's version of UCC 4A to create the exclusive remedy for an alleged breach of duty when a bank makes an electronic funds transfer.
Tuesday, October 7, 2014
Mark Geistfeld (NYU) has posted to SSRN Risk Distribution and the Law of Torts: Carrying Calabresi Further. The abstract provides:
In a seminal article written almost 50 years ago, Guido Calabresi explained that risk distribution is an ambiguous concept that can refer to the manner in which tort liability affects the allocation of scarce resources, the spreading of losses across society, or the attainment of normatively desirable distributive outcomes. The first two conceptions are combined in the (now) conventional economic analysis of tort law, a methodological approach that is routinely associated with Calabresi. In contrast, the remaining conception of risk distribution that Calabresi identified — the attainment of normatively desirable distributive outcomes — is not ordinarily associated with the economic analysis of tort law, and yet this conception is the one that Calabresi has repeatedly invoked as being of decisive importance. In doing so, Calabresi has described how economic analysis can inform distributive questions within tort law, although he never fully developed this approach.
In this article, I try to carry Calabresi further by more rigorously showing how distributive economic analysis can be relevant to the normative evaluation of tort law. In contrast to Calabresi’s conclusion about the “pointlessness of Pareto,” I first argue that the Pareto principle embodies an autonomy-based compensatory norm that tort law can rely on to implement corrective justice under nonideal conditions that foreclose fully consensual compensatory exchanges. Within the context of these forced exchanges, a compensatory payment satisfies a compensatory obligation, which in turn is defined by the correlative compensatory right. Consequently, I next identify the substantive properties of a compensatory tort right and show how the right holder’s compensatory demands can be fully satisfied by the duty holder’s exercise of reasonable care in a wide range of cases. A compensatory norm can be fully implemented by the distribution of risk without an entitlement to compensatory damages in the event of injury, a conclusion that sheds new light on Calabresi’s original insight about the varied meanings of risk distribution within tort law.
Finally, I employ distributive economic analysis to show how the tort system can be conceptualized as a compensatory mechanism. Tort compensation is not merely a form of accident insurance as assumed by the conventional economic analysis of tort law; it fits readily into Calabresi’s taxonomy of desirable legal innovations that shift the Pareto frontier outwards. By expanding the feasible set of fully compensatory outcomes that can be attained under existing social conditions, the tort system enables individuals to engage in new risky activities while adequately compensating those who are disadvantaged by the risky behavior. The tort system has a normative dimension that is brought into sharp relief by the type of distributive economic analysis that has been championed by Calabresi but neglected by the conventional economic analysis of tort law.
Monday, October 6, 2014
The Connecticut Supreme Court has clarified procedural requirements for the malfunction doctrine in products cases. If the plaintiff only pleads specific defects in a product, the malfunction doctrine can't be used as an alternative way to defeat a motion for summary judgment because there was no notice to the defendants and the court. The decision is White v. Mazda Motor of America, Inc., 2014 WL 4548058 (Conn. 2014).
Friday, October 3, 2014
An Ohio woman is suing an Illinois sperm bank for sending sperm from a black donor, when she asked for sperm from a white donor. She is seeking $50,000 in damages and insists that the suit is not about her disappointment with her daughter's race. Instead she wanted her daughter to resemble her partner and she plans to use the money to move to a less prejudiced area. Coverage: NBC News; Today Health.
Tuesday, September 30, 2014
A recent Volokh Conspiracy column analyzed the applicability of various existing laws to the increasing use of drones. Discussed are: intrusion upon seclusion, publication of private facts, battery, assault, negligence, trespass, and nuisance.
In Pennsylvania, a federal split is resolved: manufacturing defect and implied warranty claims are not viable against pharmaceutical and medical device companies. It was already clear that design and warning defect claims were not viable. Thus, under current Pennsylvania law, negligence is the only cause of action plaintiffs have against pharmaceutical and medical device companies. The Legal Intelligencer has the story.
Monday, September 29, 2014
...includes a paper presentation by Ben Zipursky ("Reasonableness in and out of Negligence Law") and Greg Keating as a panelist. The symposium is October 24th and 25th. The program is here and you can RSVP. Thanks to Karen Wong of the University of Pennsylvania Law Review for the tip.
Friday, September 26, 2014
A 24-year-old typist at a prison in Bellefonte, PA was brutally raped last year by one of the inmates. The inmate had been convicted three times previously of sex-related crimes and then transferred from a different prison for assaulting a female employee there. Despite this, the inmate had access to the typist's office, even after she states she complained to her bosses about the inmate's behavior toward her. The victim filed suit in federal court against the state Department of Corrections and several individual employees. The AG's office, charged with defending the lawsuit, included in the answer the allegation that the woman "acted in a manner which in whole or in part contributed to the events." In essence, the AG's office was pleading comparative fault, resulting in a political firestorm. The issue was covered on CNN and the Attorney General herself felt compelled to address the filing.
The best defense of the allegation is that it was necessary to preserve a defense of comparative fault for trial. A lawyer has to defend his or her client and FRCP 8 requires the pleading of, among other things, contributory negligence. It seems to me, however, that this should have been handled differently. Given: (1) the sensitive nature of the plaintiff's complaint; (2) the fact that Rule 15 allows liberal amendments; and (3) the fact that the DA in the county fully supported the typist and successfully prosecuted the inmate for rape, apparently without uncovering any evidence that the she contributed to the attack on herself, this allegation should not have been included in the answer.
Thursday, September 25, 2014
As I reported here, yesterday the Mississippi Supreme Court was supposed to hear oral arguments on the constitutionality of the state's $1M non-economic damages cap. Instead the parties filed a joint motion on September 17th representing they have settled the case. The court canceled oral arguments and gave the parties 90 days to finalize the settlement. The Jackson Free Press has the story.
Wednesday, September 24, 2014
Last week, the Pennsylvania Supreme Court refused to hear an appeal from a Superior Court ruling, leaving in place a holding that general liability coverage providers are required to defend products claims brought against their policyholders. In a series of cases filed against door and window manufacturers, the Superior Court held that because the company's allegedly defective products allegedly led to other damaged property as well as personal injuries, there were "occurrences" under the policy:
In issuing its opinion, the Superior Court specifically rejected the application of the “gist of action” theory to bar tort claims in insurance coverage disputes. In Pennsylvania law, the doctrine serves to prevent plaintiffs from reshaping breach of contract claims into tort claims.
“Ultimately, because the gist of the action doctrine has never been adopted by our Supreme Court in an insurance coverage context, we are convinced that, at this juncture of a duty to defend claim, applying the gist of the action doctrine is inappropriate,” Judge Shogan said.
Law 360 has the story.
Monday, September 22, 2014
Sunday, September 21, 2014
A study with a lead author from the Cleveland Clinic, published in JAMA Internal Medicine, concludes that purely defensive medicine accounts for 2.9% of U.S. healthcare costs. The study is available for purchase here. The L.A. Times's "The Economy Hub" discusses the study here.
Friday, September 19, 2014
* Medical malpractice insurance companies are making twice the profit of the entire property/casualty insurance industry. In fact, the med mal insurance industry has had seven years of underwriting profit - something completely unheard of in the property/casualty sector. (Page 53.)
* After Texas enacted severe limits on medical malpractice lawsuits, including "caps" on damages, rates of preventable errors rose, "consistent with hospitals gradually relaxing (or doing less to reinforce) patient safety standards." (Page 83.)
* Researchers have found, "a strong association between introduction of a comprehensive obstetric patient safety initiative and a dramatic reduction in liability claims and liability payments." (Page 24.)
* "On any given day, approximately one in 25 U.S. patients has at least one infection contracted during the course of their hospital care." (Page 65.)
* "Despite a slew of news accounts about patients being set on fire in operating rooms across the country, adoption of precautionary measures has been slow, often implemented only after a hospital experiences an accident." (Page 66.)
* "At least eight doctors whose medical licenses were suspended or revoked collectively billedMedicare more than $7 million in 2012." (Page 7.)
* "An average of 103,000 doctors, nurses, medical technicians and health care aides a year were abusing or dependent on illicit drugs." (Page 7.)
* As unsafe as are civilian hospitals, military hospitals are worse. (Page 87.)
* Medical malpractice premiums are not rising; other factors are contributing to the plight of physicians, specifically "health insurers that clamp down on the size of physician fees and deny payment for services that they deem unnecessary." (Page 56.)
* When asked their main reason for leavingNew York state, newly trained physicians cited the "Cost ofMalpractice Insurance" practically dead last on a list of many factors, the most important of which was "Proximity to Family." Even the general category "Other" outranked "Cost ofMalpractice Insurance." Moreover, New York's liability laws were not even mentioned as a factor. (Page 52.)
* Among the many ways doctors, dentists and other medical providers are cashing in on vulnerable patients is by selling them credit cards to pay for procedures using deceptive sales tactics; many patients have been hit with substantial debt from these credit cards while waiting for procedures. (Page 37.)
Thursday, September 18, 2014