TortsProf Blog

Med Mal Suit Over Joan Rivers' Death

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. 

Dorfman on the Philosophical Foundation of Tort Law

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).

NE: "Total Idiot" Not Defamatory

The Nebraska Supreme Court has upheld the dismissal of a libel lawsuit based on an e-mail in which a home inspector was called a "total idiot."  Olson/Overlawyered

Hubbard on the Application of Tort and Regulation to Robots

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.

Graham on Doctrinal Innovations in Tort Law

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.

Xarelto Mass Tort Docket Established in Philly

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.

NPR Covers MA Disclosure and Early Offer Law

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.

MD: Latest State to Consider Constitutionality of Governmental Damages Cap

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.  

Chiropractor Liability

Cases against chiropractors are relatively rare.  Ron Miller (Maryland Injury Lawyer Blog)  analyzes such cases here.

IN: Governmental Damages Cap Upheld

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.

Some Cities Limit Sledding Due to Liability Concerns

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.

Institute for Law Teaching and Learning: Symposium on Engaging the Entire Class

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.

Dorfman on the Asymmetrical Reasonableness Standard

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.

Logue on Tort's Role in Encouraging Insurers to Regulate

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.

Simons to UC Irvine

Ken Simons, who is a crim law as well as torts scholar, is moving from Boston University to UC Irvine.  (Via Brian Leiter's Law School Reports)

Blogs

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.

JOTWELL Torts: Sebok on Herstein

At JOTWELL, Tony Sebok reviews Ori Herstein's How Tort Law Empowers.

WI: Bill Would Allow Parents of Children Younger Than 27 to Sue for Med Mal

Wisconsin law allows only spouses, minor children, or the parents of minor children to sue for wrongful death in med mal cases.  The restriction prohibits adult children who lose their parents or parents who lose college-age children from suing for medical negligence.  Bills to eliminate the restriction have been repeatedly introduced and defeated.  This year State Senator Harris Dodd plans to introduce a narrower bill that would allow parents of children younger than 27 to file suit for medical malpractice.  The Milwaukee Wisconsin Journal Sentinel  has the story. 

AALS Torts Section Meeting

The AALS Torts & Compensation Systems Section has its panel at the Annual Meeting tomorrow from 4:00 until 5:45 in Maryland Suite C, Lobby Level, at the Marriott Wardman Park Hotel.  Andy Klein led the Section this year and set up a great panel:

Tort Law and a Healthier Society

Moderator:

Andrew R. Klein, Indiana University Robert H. McKinney School of Law

Speakers:

Michelle Mello, Stanford Law School

Dorit Reiss, University of California, Hastings College of the Law

Diana Winters, Indiana University Robert H. McKinney School of Law

Section on Torts and Compensation Systems William L. Prosser Award Winner:

Michael Green, Wake Forest University School of Law

The section will present a program on leading issues at the intersection of tort and health law. Professor Mello will discuss medical malpractice alternatives for hospitals. Professor Reiss will discuss liability issues related to vaccine-preventable diseases. Professor Winters will discuss food safety impact litigation. The section will also honor the winner of its annual William L. Prosser Award for outstanding contribution in scholarship, teaching, and service related to tort law.

Business meeting at program conclusion.

I regret I can't attend, but I extend my warm congratulations to Mike Green.

Symeonides Annual Choice of Law Survey

Symeon Symeonides (Willamette) has posted to SSRN Choice of Law in the American Courts in 2014:  Twenty-Eighth Annual Survey.  The abstract provides:

This is the Twenty-Eighth Annual Survey of American choice-of-law cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws and it is intended as a service to fellow teachers of conflicts law, both in and outside the United States.

This Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2014, and posted on Westlaw by midnight, December 31, 2014.  Of the 1,204 cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law — and, particularly, choice of law. The following are some of the highlights of the year:

One U.S. Supreme Court decision dealing with general jurisdiction, the second in three years, after a thirty-year silence; Seven cases deciding whether the Alien Tort Statute applies to actions filed by foreign plaintiffs against American defendants alleged to have aided and abetted the commission of international law violations outside the United States; a case involving a cross-border shooting of a Mexican boy by a U.S. Border Patrol agent; and a case arising from the imprisonment of U.S. contractor Alan Gross in Cuba;

Fifty-six court rulings striking down as unconstitutional the prohibition of same-sex marriages in 26 states, one ruling upholding the prohibition in four states, and a Texas case recognizing a California judgment that declared both male partners in a same-sex marriage to be the parents of a child conceived through artificial insemination and carried to term by a surrogate mother;

One more xenophobic statute, the eighth in four years, banning the use of certain foreign laws;

Several tort cases involving conduct-regulation conflicts and applying the law of the state of the tort, rather than the parties’ common domicile;

One state supreme court case joining the minority of courts that have rejected the doctrine of severability of choice-of-forum clauses, and several cases involving the interplay of those clauses and choice-of-law clauses;

A California Supreme Court case holding that the Federal Arbitration Act (FAA) did not preempt a California statute that prohibited waivers of “representative actions” filed by employees against employers for violating the state’s labor laws, and two cases disagreeing on whether contracting parties may avoid FAA preemption by choosing the “non-federal” part of a state’s law;

A New York case recognizing a foreign judgment, even though New York had no jurisdiction over the debtor or his assets; a Pennsylvania case giving full faith and credit to the New York judgment; and a D.C. case refusing to do so — and not only because New York did not have jurisdiction; and

Many other interesting conflicts cases involving products liability, other torts, contracts with and without choice-of-law clauses, insurance contracts, statutes of limitation, marriages by proxy, divorce, marital property, and successions.