Monday, October 27, 2014
Friday, October 24, 2014
Proposition 46 on California’s November ballot takes three steps to improve patient safety. While the doctors, hospitals and medical malpractice insurance companies that have spent tens of millions of dollars to oppose this initiative love to say it’s about making more money for trial lawyers, what it’s really about is the safety of all of us who live here. Because any of us could be killed, maimed or disfigured by medical negligence. Any of us could be harmed by a doctor impaired by drugs or alcohol. Any of us could have our lives turned upside down by the actions of a doctor-shopping prescription drug addict who received too many pills from too many doctors.
Of course no one thinks it will happen to them. I didn’t think it would happen to me. Until it did.
Both my elderly mother and my mentally retarded sister died from medical negligence at the same prestigious Los Angeles hospital where actor John Ritter died and his family sued/settled for millions of dollars. Actress Alicia Cole also went to this hospital for a routine surgery and ended up contracting “Flesh Eating Disease” there and almost died. After my sister’s horribly painful death, I turned to the legal system to hold those who treated her accountable and try to prevent other families from going through the same nightmare. You can see a bit about my sister’s story at http://goo.gl/sni513.
But attorney after attorney I approached told me they wouldn’t take the case, despite its merits. That’s because my sister, who was unable to work because of her disability, had no income. She never married and had no children. (I was her full-time caregiver.) And because she was dead, there were no ongoing medical bills to pay.
It wasn’t until I started trying to pursue justice in this case that I learned California has a law, enacted in 1975 and never changed since, that limits compensation for medical malpractice cases like hers to $250,000. And while that amount has been frozen for almost 40 years, the cost of taking a case to trial hasn’t – a good chunk of that cost being the enormous hourly fees paid to doctors as expert witnesses. So after the trial costs have been deducted from the $250,000, the victim’s attorney gets a percentage of the balance, a percentage that’s also limited on a sliding scale by state law. That amount is their compensation for what is often years of work on the case (these lawyers don’t receive hourly fees and don’t get a penny until their client wins an award).
Keep in mind the doctors and hospitals face no limits on what they can spend on their legal defense. In the face of that, most lawyers will look at the potential return on a case like mine where the damage award is capped and say it’s simply not worth it.
I don’t blame them. I blame the law that put them in that position in the first place.
Thursday, October 23, 2014
One of the biggest events in tort law this fall is Prop 46, the California ballot initiative over whether to raise the MICRA cap on non-economic damages in med mal cases (set in 1975 at $250,000 and not raised since). I have contacted both pro- and anti-Prop 46 spokespeople and asked them to write a post supporting their respective positions. Eric Andrist is a leading voice in the pro-Prop 46 movement. His post will appear tomorrow. I have reached out several times to the California Medical Association, and I am still hoping to receive a post from them.
Wednesday, October 22, 2014
The AALS Torts & Compensation Systems Section Newsletter is available here: Download Torts_Newsletter_2014. Section Secretary Leslie Kendrick drafted it, with the help of Kristin Glover, Research Librarian at UVa Law.
Tuesday, October 21, 2014
GA: Parents May Be Liable for Negligent Supervision in Failure to Have Child Take Down Fake Facebook Page
On October 10, the Court of Appeals of Georgia allowed a claim to go forward against the parents of a middle-school-aged child who created a fake Facebook page for a classmate and posted defamatory statements. In Georgia, parents have a duty to supervise their children with regard to conduct that poses an unreasonable risk of harming others. The court's decision was based on the fact that the parents did not compel their child to take down the fake Facebook page after they became aware of it. The page remained up for approximately 11 months after the parents learned of its existence. The case is Boston v. Athearn.
Thanks to Mark Weber for the tip.
Monday, October 20, 2014
Francesco Parisi, Daniel Pi, Barbara Luppi, and Iole Fargnoli have posted to SSRN Deterrence of Wrongdoing in Ancient Law. The abstract provides:
Ancient laws addressed all types of wrongdoing with a single set of remedies that over time pursued a changing mix of retaliatory, punitive and compensatory objectives. In this paper, we consider the historical transition from retaliatory to punitive justice, and the subsequent transition from punitive to compensatory justice. This paper shows how the optimal level of enforcement varies under the three corrective regimes. Crimes that create a larger net social loss require lower levels of enforcement under retaliatory regimes. The optimal level of enforcement is instead independent of the degree of inefficiency of the crime when punitive and compensatory remedies are utilized. The paper provides several historical illustrations and sheds light on some of the legal paradoxes of ancient law.
Friday, October 17, 2014
A new study by the RAND Corporation has failed to find evidence of widespread defensive medicine. The study covers three states that raised the malpractice standard in ER cases: Texas, South Carolina, and Georgia. Reforms in Texas and South Carolina had no effect on the use of expensive imaging and a reform in Georgia generated only a small reduction in ER charges. Coverage is here: Forbes; WaPo.
Thursday, October 16, 2014
Yesterday, a federal court in Charleston awarded the family of the former mayor of Cottageville, SC $97M for his shooting death at the hands of a police officer. The award includes $7.5M in compensatory damages, $60M in punies against the town, and $30M in punies against the officer. The State has the story.
Thanks to Susan Raeker-Jordan for the tip.
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.