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
Wednesday, September 17, 2014
Steve Hedley (University College Cork) has posted to SSRN Obligations: (Local) Politics or (Universal) Reason?. The abstract provides:
Obligations is both a local institution, influenced by politics, and a universal institution, influenced by reason. It is a distraction to ask which vision should be allowed to predominate: neither truth should be allowed to obscure the other. The real question is how best to accommodate both. This paper approaches the question by comparing two very different descriptions of private law: Ernest Weinrib’s "The Idea of Private Law" (a universal description not expressly tied to any legal system, beyond that it is based on the common law) and Merkin and Steele’s "Insurance and the Law of Obligations" (which is explicitly tied to the legal system of England/Wales). While there are considerable differences between the two (and I imagine that neither approach seems to value the other very much) there are also some surprising similarities between them, raising questions as to the proper perspective from which to describe private law.
Tuesday, September 16, 2014
John Oberdiek (Rutgers-Camden) has posted to SSRN Introduction: Philosophical Foundations of the Law of Torts. The abstract provides:
This Introduction to Philosophical Foundations of the Law of Torts (John Oberdiek, ed., Oxford University Press, 2014) provides a brief history of the discipline of tort theory, maps out current debates in the field, and introduces the volume's nineteen chapters. Along the way, this Introduction addresses many of the core problems in the philosophy of tort law, draws connections between them.
The First District Appellate Court of Illinois determined the City of Chicago owed no duty to a pedestrian who broke his foot in a pothole that was a few inches outside of a crosswalk. The pedestrian was apparently straddling the line, partially in and partially out of the crosswalk. The court applied settled law that municipalities have a duty to keep streets reasonably safe for pedestrians only in those areas in which pedestrians are permitted to walk. The National Law Review has the story.
Monday, September 15, 2014
In April 2012, a woman was taken to an ER and voluntarily admitted based on a suicide attempt. She later slipped out of the hospital, walked through the woods, and rolled into traffic on a nearby bridge. She was struck and killed by a car; a father was driving and his (then-juvenile) daughter was a passenger. The father and daughter filed suit against the hospital for emotional distress. The trial judge held the hospital had no duty to the plaintiffs based on a lack of foreseeability. The Superior Court affirmed the judge's decision. Now the Pennsylvania Supreme Court has refused to consider the appeal. Pennlive has the story.
A new USC Dorsife/LA Times poll found support for Prop 46 " a mile wide and an inch deep." When likely voters were polled on Prop 46, 61% supported it, 29% opposed it, and 10% were undecided/refused to answer. When those surveyed heard both sides' main arguments, the numbers shifted to 37% in support, 50% opposed, and 12% undecided/refused to answer. The LA Times has the story.
Thursday, September 11, 2014
The AALS Torts & Compensation Systems Section has announced that Mike Green (Wake Forest) will receive the 2015 Prosser Award. From the announcement:
The first of about 6,000 Pinnacle metal hip poisoning trials is underway, and plaintiff's lawyer Mark Lanier is producing e-mail evidence designed to show Johnson & Johnson knew of the concern as early as 2001. Plaintiff claims that the Pinnacle hip's design is flawed: the metal-on-metal version of the artificial hip produces debris in the body that can cause metal poisoning. Johnson & Johnson reached a $2.5B settlement last year on another line of its artificial hips known as ASRs. Bloomberg has the story (via Conk/Torts Today).
Wednesday, September 10, 2014
Last week, the Third Circuit revived a fraud claim alleging BASF Catalysts, Inc. took part in systematic fraud with the help of its attorneys Cahill Gordon & Reindel to hide the existence of asbestos in its products. The case has been remanded for further proceedings. The Washington Examiner has the story.
Tuesday, September 9, 2014
On September 24, the Mississippi Supreme Court will hear oral arguments in a case to determine whether the 2004 non-economic damages cap of $1M is unconstitutional. Circuit Judge Charles Webster so held in a 2011 case seeking damages for the death of a child in an apartment complex fire. The jury awarded the child's parents $6M in non-economic damages. Webster upheld the award and struck down the cap, stating the Mississippi Constitution guarantees every citizen a remedy for an injury done to his lands, goods, person and reputation with that remedy to be determined by a jury. The Miami Herald has the story.
Monday, September 8, 2014
The Texas Supreme Court has ruled that a court can order an author to delete a defamatory post, but cannot prohibit the author from reposting the statements because that would be an unlawful prior restraint of free speech. The deletion remedy is novel. The Texas Lawyer has the story.
Friday, September 5, 2014
I confess I haven't kept up with Georgia's plan to replace med mal with a system similar to workers' compensation. Because both physicians' and trial lawyers' groups opposed SB 141, I assumed it was dead. This September 3rd editorial from the Columbia County News-Times indicates that some supporters have not given up.
Thursday, September 4, 2014
Marc Rodwin (Suffolk) & Justin Silverman have posted to SSRN Why the Medical Malpractice Crisis Persists Even When Malpractice Insurance Premiums Fall. The abstract provides:
Concerns that medical malpractice premiums continue to grow unabated has led to numerous proposals to change liability rules and reform tort laws. Not only would proposed legislation make lawsuits more difficult for plaintiffs, but the bills do not address the real source of the problems they intend to solve. Premiums are not rising as claimed and even if they were, other factors are contributing to the plight of physicians. But in fact, the claim that malpractice premiums are an unbearable burden for most physicians is myth, not fact.
The first section of this article will examine how this myth began and the proposed legislative remedies it spawned. It will show that junk data has been used to support legislation and it will then introduce more reliable data bearing on these issues. Next, this article will describe other factors that are rarely mentioned but that have important effects on the cost of medical practice and physician income. If doctors are truly closing up shop, it’s not because of malpractice insurance premiums. This article will then examine one AMA-declared “crisis state” to see if there are indeed crises in some selected states, even if there is no crisis nationally. As will be explained, there are not. The study of individual states reveals that there are premium cycles, that recent premium increases reflect these cycles, and that rates will probably fall as they have in the past following an increase. Finally, this article will offer insight into why physicians continue to perceive a crisis despite the data presented and what the future may hold for reform.