Friday, February 6, 2015
The Senate Health and Welfare Committee sent to the full Senate a bill creating three-member panels to review claims before they can go to court. The panel's findings would not be binding, but would be admissible in court. The Senate has passed this bill before, but it has not passed in the House. The Glasgow Daily Times has the story.
Update: The Senate passed the bill 24-12.
The bill is a bad idea because it adds more delay and transaction costs to an already lengthy and expensive process, without resolving anything. Studies conclude the average med mal claim lasts about 5 years from event to resolution, with more money being used to run the system than to compensate victims. Review panels increase the time to resolution by adding another layer of procedure. They also increase transaction costs as lawyers and experts for both sides try to convince an additional decision maker of the merits of their case.
To the extent reducing frivolous claims is the goal, a certificate of merit requirement would be preferable: it is quicker and less expensive. Moreover, reducing the length and adversarialism of the process should be the focus. Review panels were in place in Virginia when I practiced. Most plaintiff's lawyers simply didn't participate. The result was admissible at trial, but so was the information that the plaintiff was not involved in the panel's decision. The claim was delayed, but at least it was not also more expensive.
Thursday, February 5, 2015
Rutgers Camden in hosting a conference on the ALI's Restatement of the Law of Liability Insurance on Friday, February 27th. Reporters Tom Baker and Kyle Logue are speaking, along with numerous influential academics and practitioners.
Tuesday, February 3, 2015
Ronen Avraham (Texas) has posted two pieces to SSRN. First, Does the Theory of Insurance Support Awarding Pain and Suffering Damages in Tort?. The abstract provides:
This chapter asks whether THE THEORY OF INSURANCE SUPPORTS AWARDING PAIN AND SUFFERING DAMAGES IN TORTS. The answer is an unequivocal “Yes.” Many commentators have argued that individuals do not (and should not) demand insurance for losses that do not lower their marginal utility of wealth. From this perspective, tort laws that provide victims with compensation for pain and suffering harms effectively force them to purchase insurance that they don’t value. This chapter disputes this logic on several levels. First, it suggests that so-called “pure non-monetary losses” are exceedingly rare in practice, and are difficult to define even in theory. Moreover, non-monetary losses are likely to be correlated with monetary losses, and this correlation generates a demand for insurance covering both types of losses under the traditional model used by law and economics scholars. Coverage of non-monetary losses can also be demanded under many plausible alternatives to expected utility theory. The chapter also takes issue with the empirical evidence that some have interpreted as suggesting a lack of demand for coverage of non-monetary losses. Finally, the chapter suggest that future advances in neuroscience may make it possible to accurately measure mental states associated with pain and suffering, obviating the need for the subjective testimony that introduces so much noise into the assessment of these damages.
Second, Estimating Pain and Suffering Damages-Paths are Many, Loss is One. The abstract provides:
Opponents of pain and suffering damages argue that, unlike pecuniary damages, pain and suffering damages are hard to quantify accurately. They argue that victims exaggerate their losses to receive higher damage awards, so that awarding pain and suffering damages may frustrate the function of tort law by compensating the victims too highly and arbitrarily. Another argument against pain and suffering damages is that the difficulty in objective measurement leaves the potential for enormous variance in awards at the discretion of individual judges and juries. This individual discretion may create a lack of horizontal equity and thus impede consistency among awards for like victims.
In a recent paper I argued that from a law and economics perspective pain and suffering damages should be fully compensated and should receive the same “respect” that economic damages receive (Avraham, 2015). I provided several arguments for that view. In this chapter I survey a number of solutions discussed in the literature on how to simplify the estimation of pain and suffering damages to cut administrative costs. My goal is to demonstrate the feasibility of the task of estimating the loss more than to recommend any specific path to it.
Monday, February 2, 2015
Image from tripadvisor.com
This summer I will be teaching a course entitled "Tort Law in Global Perspective" in Venice from June 22 until July 3rd. The course will cover basic common law/civil law differences and then explore how particular injuries are covered in different countries. In addition to my course, Justice Randy Holland of the Delaware Supreme Court will teach a course on comparative corporate law and Professor Massimiliano Granieri (professor of comparative private law and economic analysis at the University of Foggia Law School) will teach a course on EU law. More information on the program, courses, and schedule is available here. The classes will take place at Venice International University on San Servolo Island, pictured below.
Image from sanservolo.provincia.venezia.it
Friday, January 30, 2015
Melissa Rivers, daughter of comedian Joan Rivers, has instituted a lawsuit claiming medical malpractice against the clinic where Joan Rivers was undergoing surgery at the time of her death, and the doctor who performed it. There are allegations that, during the procedure, the staff at the clinic were acting like "groupies," taking "selfies" with the comedian while she was under anesthesia. The main complaint, however, is the doctor's failure to perform a tracheotomy, which allegedly could have enabled Joan Rivers to begin to breathe again after her breathing stopped during the surgery. There are other allegations that the staff performed two unauthorized procedures on the comedian. It is alleged that Joan Rivers would be alive today had a tracheotomy been administered. The doctor was terminated by the clinic soon after the Joan Rivers' death. Due to the amount of projects the comedian was working on at the time of her death (fashion police television show, writing books, and performing stand-up), it is predicted that the Rivers' family could receive millions in damages. Rolling Stone has the story.
Thursday, January 29, 2015
Avi Dorfman (Tel Aviv) has posted to SSRN New Philosophical Foundations of Tort Law?. The abstract provides:
In this critical piece I take stock of current understandings of five basic distinctions in the theoretical study of tort law: First, a meta-theoretical distinction between the law’s self-presentation and a commitment to epiphenomenalism; second, between the formal and the substantive theory of the morality of tort law; third, between corrective and distributive justice; fourth, between ideal and non-ideal tort theory; and finally, between culpability and justice (or equality).
Wednesday, January 28, 2015
Tuesday, January 27, 2015
Patrick Hubbard (South Carolina) has just published Sophisticated Robots: Balancing Liability, Regulation, and Innovation in the Florida Law Review. The abstract provides:
Our lives are being transformed by large, mobile, “sophisticated robots” with increasingly higher levels of autonomy, intelligence, and interconnectivity among themselves. For example, driverless automobiles are likely to become commercially available within a decade. Many people who suffer physical injuries from these robots will seek legal redress for their injury, and regulatory schemes are likely to impose requirements on the field to reduce the number and severity of injuries.
This Article addresses the issue of whether the current liability and regulatory systems provide a fair, efficient method for balancing the concern for physical safety against the need to incentivize the innovation that is necessary to develop these robots. This Article provides context for analysis by reviewing innovation and robots’ increasing size, mobility, autonomy, intelligence, and interconnections in terms of safety—particularly in terms of physical interaction with humans—and by summarizing the current legal framework for addressing personal injuries in terms of doctrine, application, and underlying policies. This Article argues that the legal system’s method of addressing physical injury from robotic machines that interact closely with humans provides an appropriate balance of innovation and liability for personal injury. It critiques claims that the system is flawed and needs fundamental change and concludes that the legal system will continue to fairly and efficiently foster the innovation of reasonably safe sophisticated robots.
Monday, January 26, 2015
Kyle Graham (Santa Clara) has posted to SSRN The Diffusion of Doctrinal Innovations in Tort Law. The abstract provides:
This article examines the diffusion of “innovations” — new ideas — in tort law. Drawing from a larger body of research into the spread of new products and ideas, this study charts and evaluates the adoption patterns associated with “successful” common-law doctrinal innovations in the law of torts. This analysis reveals recurring influences upon and tendencies within the spread of novel tort doctrines across the states, and explores the interactive qualities of the diffusion process. Furthermore, these diffusion patterns document a trend toward common-law doctrinal “stabilization” over the past quarter-century. As detailed herein, this stabilization owes in part to altered diffusion dynamics associated with the ongoing diminution and fragmentation of the common-law tort dockets entertained by state supreme courts. The structural character of these influences will make it difficult, this article concludes, for even well-received common-law doctrinal innovations of the future to match the rapid diffusion rates associated with innovations in tort law that spread during the 1960s, 1970s, and 1980s.
Friday, January 23, 2015
Philadelphia Court of Common Pleas Administrative Judge Kevin Dougherty has created a mass tort docket for Xarelto, a blood thinner alleged to cause uncontrollable and sometimes fatal bleeding. Approximately 75 cases will be transferred to the court's Complex Litigation Center. The Legal Intelligencer has the story.
Wednesday, January 21, 2015
In 2012, Massachusetts enacted a disclosure and early offer law for medical injuries. NPR covers the law here. There's not much empirical data (it's fairly early), but the story describes a particular case:
The law mandates that people give health care providers six months' notice if they intend to sue. The woman's lawyer notified the hospital of the mistake. Hospital officials, who had 150 days to respond, determined that their actions hadn't met the standard of care. The hospital arranged a meeting between the woman and one of their physicians to talk about why the error occurred and the measures being taken to make sure it won't happen again. The physician apologized, and soon after the woman accepted a financial settlement from the hospital.
Tuesday, January 20, 2015
On Friday, I reported that Indiana's intermediate appellate court upheld its governmental damages cap from a constitutional challenge. The Pennsylvania Supreme Court reached a similar conclusion in November. Maryland is the latest state to consider the issue; last Monday, the Maryland Court of Appeals heard arguments over the state's $400,000 cap. If the court joins Indiana and Pennsylvania in affirming the constitutionality of the cap, the legislature should consider an insurance waiver to the governmental immunity cap, similar to the one in place in Delaware. The Baltimore Sun has the story.
Monday, January 19, 2015
Friday, January 16, 2015
Last month, I reported that the Indiana Court of Appeals (the intermediate appellate court) heard arguments on whether Indiana's tort claims damages cap for governmental defendants was constitutional. On Wednesday, the court upheld the damages cap as constitutional, mirroring a similar ruling from Pennsylvania in November.
Thursday, January 15, 2015
Dubuque, Iowa is moving ahead with an ordinance banning sledding in all but 2 of its 50 parks based on liability concerns and demands from the city's insurer. In the past decade, there have been sled injury verdicts of $2M or more in Omaha, Nebraska and Sioux City, Iowa. Several cities have started banning sledding, while other post signs warning of the risks. ABC News has the story.
Wednesday, January 14, 2015
The Institute for Law Teaching and Learning is sponsoring a symposium at the UCLA School of Law entitled "Engaging the Entire Class: Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning." Occurring on February 28, each session is presented by a teacher featured in What the Best Law Teachers Do. More information is here.
Tuesday, January 13, 2015
Avi Dorfman (Tel Aviv) has posted to SSRN Negligence and Accomodation: On Taking Others as They Really Are. The abstract provides:
Disagreements over the morality and the efficiency of the standard of reasonable care are at the root of the study of negligence law (and, perhaps, tort law as a whole). They typically proceed as though the most important question that needs to be addressed is that of the content of this standard, namely, the question of what reasonable care is. However, in these pages I shall argue that there exists another important question, which is to say the manner in which reasonable care is evaluated. This question, I show, is neither fixed by nor subservient to the content of the standard (whatever it is). Rather, the manner in which negligence is being assessed is partly constitutive of the morality of the reasonable care standard.
Whereas the leading economic and justice-based approaches to the explanation of the standard of reasonable care advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively-fixed amount of care, whereas plaintiffs are for the most part assessed by reference to a subjective measurement of reasonable care. I argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant’s negligence with a favorable assessment of plaintiff’s negligence, means that the victim gets to fix the terms of the interaction between them. This way of attending to the interests of others resonates well with a powerful notion of respectful accommodation of persons — that to attend to others respectfully is to engage them on their own terms (including, most importantly, their distinctive judgments and sensibilities). And to the extent that the standard of care captures the moral center of negligence law, the asymmetry in care assessment suggests that the notion of genuine respect, rather than social welfare or formal equality, is a basic virtue of the legal institution of negligence.
Monday, January 12, 2015
Kyle Logue (Michigan) has posted to SSRN Encouraging Insurers to Regulate: The Role (if Any) for Tort Law. The abstract provides:
Insurance companies are financially responsible for a substantial portion of the losses associated with risky activities in the economy. The more insurers can lower the risks posed by their insureds, the more competitively they can price their policies, and the more customers they can attract. Thus, competition forces insurers to be private regulators of risk. To that end, insurers deploy a range of techniques to encourage their insureds to reduce the risks of their insured activities, from charging experience-rated premiums to giving special premium discounts to insureds who make specific behavioral changes designed to reduce risk. Somewhat paradoxically, however, tort law discourages insurers from engaging in the direct regulation of their insureds’ behavior. Under longstanding tort principles, if an insurer “undertakes” to provide serious risk-reduction services to an insured, the insurer can be found to have a duty of reasonable care and, should that duty be breached, held liable for any harms caused to third parties. This application of tort principles to insurance companies could be contributing to the moral hazard problem often associated with insurance — the tendency of insurance to cause risk to increase rather than decrease. This Article explores this problem and analyzes a number of ways to encourage insurers to regulate — from insurer-specific Good Samaritan statutes (which we might call a “carrot”) to the expansion of tort principles to create an affirmative duty on the part of insurers to regulate (which would definitely be a “stick”). What combination of carrots and sticks produces the optimal insurer incentives to regulate their insureds’ behavior? That is the question the Article addresses.
Friday, January 9, 2015
Thursday, January 8, 2015
There are a number of terrific practitioner blogs all over the country. Some of my favorites:
Maryland: Maryland Injury Lawyer Blog (Ron Miller)
Pennsylvania: Tort Talk (Daniel Cummins)
Litigation and Trial (Max Kennerly)
Drug & Device Law (Jim Beck)
Tennessee: Day on Torts (John Day)
D.C.: Center for Class Action Fairness (Ted Frank)
Texas: Austin Personal Injury Blog (Perlmutter & Schuelke)
New York seems to have an especially healthy crop:
New York Personal Injury Law Blog (Eric Turkewitz)
New York Injury Cases Blog (John Hochfelder)
The New York Medical Malpractice Blog (Andy Barovick)
Now Rheingold, Valet, Rheingold, McCartney & Giuffra have launched a blog with squibs from all New York products cases (state and federal) from 2002 on. The link is here.