TortsProf Blog

Stein & Fox on Military Medical Malpractice

I referenced the Feres Doctrine yesterday.  Over at Bill of Health, there is a post about an amicus brief filed by Alex Stein and Dov Fox urging the Supreme Court to grant cert in a Tenth Circuit case, Ortiz v. U.S.:

When a civilian spouse of a serviceman receives negligent prenatal care from military doctors and delivers an injured baby as a result of that malpractice, there is no question that Feres immunity does not apply and that the baby can sue the United States under the FTCA. When military medical malpractice injures the baby of a servicewoman, this baby should be equally able to obtain redress under the FTCA.  A system that would single out the civilian children of servicewomen for adverse treatment discriminates against women who serve in the armed forces. . . To interpret the FTCA as the Tenth Circuit did permits discrimination between these two classes of similarly situated victims of military malpractice and violates fundamental principles of equal protection.

The brief is here:  Download OrtizAmicusSteinFox

DoD Expands Medical Injury Transparency Program

The Department of Defense is expanding a program, already underway at eight facilities, in which conversations are encouraged between medical practitioners and patients about medical injuries.  The program allows patients and providers an avenue to discuss injuries and apologize.  Alternative dispute resolution is also provided.  The program does not require a waiver of malpractice actions, though the Feres Doctrine already prevents active-duty troops from suing for med mal.  Pursuant to the program, no determinations about negligence are made.  Military Times has the story.

PA: $10.1M Med Mal Award Against CHOP

A Philadelphia jury has awarded $10.1M to a mother and son for the failure of Children's Hospital of Philadelphia to diagnose bacterial meningitis in the boy despite several trips to the emergency room.  The child, now 6, suffers from hearing loss, language disorder, developmental and learning delays, and a loss of balance.  The trial lasted 4 weeks, but the jury made its decision in 3 hours.  Philly.com has the story.

Shmueli on Pluralism

Benjamin Shmueli has posted to SSRN Legal Pluralism in Tort Theory:  Balancing Instrumental Theories and Corrective Justice.  The abstract provides:

Unified-monistic theories of tort law focus on a single goal of tort law, usually corrective justice, distributive justice, or optimal deterrence. Unlike these approaches, mixed-pluralistic theories attempt to produce a balance between various goals of tort law by integrating several of the considerations underlying the different goals. These theories of legal pluralism reflect ideological diversity, in this case between different theories of the same legal system. The present article discusses the challenge of legal pluralism to settle the possible collision between different goals of tort law, that is, within the framework of tort law theory.

Starting from a position of support for the mixed-pluralistic thesis, the advantages offered by current mixed-pluralistic approaches are identified, and a new mixed-pluralistic approach is proposed which is adapted to the multitude of significant changes that have affected contemporary common tort law in recent years. This new approach divides (mostly negligence) issues into two principal categories on the basis of the profile of the defendant and the nature of his tortious act, concurrently striking a balance between the various goals of tort law, as the situation warrants. Thus the suggested mixed-pluralistic approach offers a new and actual balance between corrective justice and instrumental theories — that is, distributive justice and optimal deterrence. Hence, it actually offers a balance between deontological theories, that are interest in the moral aspect, and utilitarian theories, that are more interested in the consequentialist outcome of the tort action. The proposed approach will be implemented through the presentation of a number of tort issues, some traditional and classic and others modern and novel.

The suggested approach challenges the study of both law and economics and corrective justice by trying to delimit their dominance as sole goals. It also corresponds with other pluralistic approaches to the study of torts.

Med Mal Protections Do Not Apply to Sexual Assault Incidental to Medical Treatment

On Monday, I posted about defendants attempting to use med mal tort reform protections to make it harder to recover for falls in hospitals.  In a similar vein is a recent Alabama case in which a doctor attempted to invoke a prohibition against discovering and introducing at trial evidence of other malpractice to avoid the admission of the evidence as modus operandi (FRE 404(b)(2) or state equivalent).  The claim, however, was that the doctor had sexually assaulted the plaintiff during the course of medical treatment.  In Ex parte Vanderwall, — So.3d —- 2015 WL 5725153 (Ala. 2015), the Alabama Supreme Court held the prohibition only applies in med mal cases, which do not include cases of sexual assault.  The plaintiff was, therefore, able to use past instances of sexual misconduct incidental to medical treatment as proof that the doctor responsible for that misconduct assaulted her as well.  Alex Stein has more blogging at Harvard's Bill of Health. 

Sugarman on Duty

Stephen Sugarman has posted to SSRN Misusing the "No Duty" Doctrine in Torts Decisions:  Following the Restatement (Third) of Torts Would Yield Better Decisions.  The abstract provides:

Courts misuse the “no duty” doctrine in torts cases when they really mean there has been “no breach” of the duty of care. "No duty” should be reserved for cases where a defendant can escape tort liability even if the defendant caused harm through unreasonable conduct. Whether the risk was foreseen or not does not go to “duty.” It is relevant to “breach.” Relying on the “duty” doctrine takes cases away from juries, sometimes inappropriately. The Restatement (Third) of Torts gets this right.

JOTWELL Torts: Scheuerman on Perry on Pluralism

At JOTWELL, Sheila Scheuerman reviews Ronen Perry's Pluralistic Legal Theories:  In Search of a Common Denominator.

When Are Falls Medical Malpractice?

Because of the hurdles many states place on med mal cases, it is beneficial for defendants to classify falls in hospitals as malpractice.  The Texas Supreme Court recently attempted to clarify the distinction between med mal and a premises liability slip-and-fall:

 In Reddic v. East Texas Medical Center, decided on October 30, 2015, the Court stated that there must be “a substantive relationship between the safety standards the visitor alleged the hospital breached and the provision of health care” for the case to be considered medical malpractice.

Michael Ksiazek has more at The National Law Review.

Open-Heart Surgery Infection Cases Spread

Last week, I reported that open-heart surgery patients at York Hospital may have been exposed to bacteria that could lead to infections.  This week, Penn State Hershey Medical Center announced that its open-heart surgery patients may have also been exposed to bacteria.  This appears to be developing into potential products liability cases, perhaps all over the world:

The infections have been linked to heater-cooler devices that are part of the process of controlling patients' body temperature during open heart surgery. A department of health spokeswoman said heater-coolers are used in all open heart surgeries.

Pennlive has the story, including pictures of the device in question.

New Private Law: Goldberg & Zipursky on Universities' Duty to Protect Students

At New Private Law, John Goldberg & Ben Zipursky take issue with a recent California opinion reiterating the position that universities have no duty to protect adult students from violent acts by other students.

UVa Fraternity Files $25M Defamation Suit Against Rolling Stone

Phi Kappa Psi, the fraternity where an alleged gang rape occurred, has sued Rolling Stone and the author of a sensational article for publishing the account.  Rolling Stone relied on the allegations of the alleged victim, but  subsequent investigations found no evidence to substantiate the claims.  Three individual members of the fraternity are suing for at least $225,000 each and an associate dean is suing for $7.5 million dollars.  Virginia Lawyers Weekly has the story.

Updated:  Because I practiced in Charlottesville, I have been looking for the name of the attorney representing the plaintiffs.  It turns out that Tom Albro, for whom I worked for seven years, is that attorney.  Rolling Stone had better be prepared.

FL: Supreme Court Chooses Consumer Expectations Over Risk Utility

The case is Aubin v. Union Carbide Corp., No. SC12-2075, 2015 WL 6513924, at *1 (Fla. Oct. 29, 2015), and JD Supra has the story.

The El Faro Tragedy and Litigation

Craig Allen (University of Washington) has posted to SSRN Investigations and Litigation Follow S.S. El Faro Tragedy.  The abstract provides:

On October 1, 2015, the U.S. flag cargo ship El Faro sank with all hands in the Atlantic Ocean east of The Bahamas, during Hurricane Joaquin.  The casualty is under investigation by the U.S. Coast Guard and the National Transportation Safety Board. In response to claims by families of some of the 33 crew member, the vessel owner invoked the U.S. Shipowner Limitation of Liability Act.  Events leading up to the tragedy will be given strict scrutiny in the coming months.

Pribetic & Randazza on Internet Defamation in the U.S. and Canada

Antonin I. Pribetic (Himelfarb Proszanski) and Marc J. Randazza (Randazza Legal Group) have posted to SSRN 'War of the Words':  Differing Canadian and American Approaches to Internet Defamation.  The abstract provides:

This article provides a comparative analysis of differing approaches to Canadian and American internet defamation law. It begins with a discussion of the elements of a cause of action and available defences. It then canvasses jurisdiction and choice of law issues. Following a review of notice requirements and limitation periods, it provides the mechanics for unmasking anonymous defendants – John Doe applications, Norwich Pharmacal orders, injunctive relief. Finally, the paper outlines the key legal issues in the recognition and enforcement of Canadian and American cyberlibel judgments abroad, within the context of the libel tourism debate.

York Hospital Open-Heart Surgery Infection Cases Loom

In a local case that made national news, York Hospital announced that as many as 1,300 patients who had open-heart surgery over several years could have been exposed to bacteria.  The York Daily Record is reporting that attorneys throughout the region are receiving phone calls and setting appointments.

A Modern Byrne v. Boadle

A man in London was seriously injured by a sofa that fell from a building.  It is not known exactly what happened, but the sofa may have fallen from scaffolding more than 100 feet above the ground.  BBC has the story.

Thanks to David Raeker-Jordan for the tip.