TortsProf Blog

KY: Med Mal Panels Forming

Back in March, I reported that a med mal review panel bill had passed the legislature in Kentucky.  The bill was signed by the governor and goes into effect on June 29.  The Kentucky Cabinet for Health and Family Services is accepting applications from attorneys interested in participating in those panels; fifty attorneys have already expressed interest.  

Panels will have nine months to review cases and render an opinion, with the results admissible in court, but not binding. They can render one of three opinions:

 A medical provider violated standard of care and that action was the proximate cause of injury.

 The provider violated standard of care, but it was not the proximate cause of injury.

 Standard of care was not violated.

Kentucky New Era has the story.  The panels will add further delay to the resolution of med mal cases, which are already too slow (averaging 4-5 years from event to resolution).

Safrin on Tort Reform and C-Sections

Sabrina Safrin has posted to SSRN The C-Section Epidemic:  What's Tort Reform Got to Do with It?.  The abstract provides:

Today one in three babies in the United States comes into the world by cesarean section. The cesarean section has become the most commonly performed operating room procedure in the United States. Conventional wisdom holds that malpractice liability bears primary responsibility for the cesarean section epidemic and that tort reform, which caps physician liability, holds the key to its reduction. This article presents new aggregate empirical data that debunks this view. For the first time, it provides a national cesarean rate for births subject to damage caps and a national cesarean rate for births without damage caps. This data shows that a woman is not less likely to give birth by cesarean section in a state with damage caps than in one without. Thus, either damage caps are insufficient to address physicians’ concerns or other explanations better account for the overuse of the procedure. The empirical analysis will assist policy makers and advocates seeking to reduce the cesarean rate as well as contribute to consideration of the efficacy of medical malpractice reform as a means to reduce the broader problem of medical overtreatment.

The article then outlines three policy initiatives to reduce the cesarean section rate. First, it suggests upending the current payment practice for deliveries. Contrary to the present norm, it proposes that obstetricians receive more rather than less to deliver vaginally to compensate them for the extra time that vaginal delivery takes compared to cesarean delivery. Second, rather than looking to tort reform to reduce cesarean section rates, the article explores whether malpractice insurance providers themselves are contributing to the cesarean section epidemic and advocates two novel medical malpractice insurance reforms to address this problem. Third, it advocates public disclosure of hospital and physician cesarean section rates so that women can make informed decisions when selecting their health care providers and when determining whether to have a cesarean section.

Jerry Canterbury, the Plaintiff Who Helped Establish Informed Consent, Dies Aged 78

Jerry Canterbury, the plaintiff in Canterbury v. Spence, died aged 78 in March.  From the NYT obituary:

The ruling, by a federal appeals court in Washington in 1972, declared that before a patient provided informed consent to surgery or other proposed treatment, a doctor must disclose the risks, benefits and alternatives that a reasonable person would consider relevant.

Previously, the onus of soliciting that information had rested with the patient, and any description of risks was provided at the doctor’s discretion. A doctor had been considered negligent only when treatment was administered against the patient’s wishes.

“It would not be an exaggeration to say that the opinion is the cornerstone of the law of informed consent” to medical treatment, “not only in the United States, but in other English-speaking countries, too,” said Prof. Alan Meisel, who teaches law and psychiatry at the University of Pittsburgh School of Law.

(Via Chris Nace at The Legal Examiner)

ALI Update: Intentional Torts, Liability Insurance

In the past week, I have had posts about the ALI's votes on two Restatement projects.  On Monday, the membership reviewed the Restatement of the Law Third, Torts:  Intentional Torts to Persons (Reporters Ken Simons and Jonathan Cardi).  The entire discussion consisted of motions on section 3(b), which provides liability for offensive battery for unusually sensitive plaintiffs.  Guy Struve filed two motions to eliminate liability.  The membership split on the motions, eliminating liability for cases of substantial certainty but retaining it in cases where the defendant had purpose to offend the plaintiff.  The Reporters accepted Richard Wright's motion to amend requiring it be the defendant's principal purpose.  Due to a lack of time, Wright's other motions were not debated.

Yesterday the membership reviewed the Restatement of the Law, Liability Insurance (Reporters Tom Baker and Kyle Logue).  A number of motions to alter the draft were defeated, but a final draft was not approved as scheduled.  The Reporters agreed that another year of work on the project would be beneficial.

Thomas on the Duty to Settle and Bad Faith in the Restatement of the Law, Liability Insurance

Today the ALI's membership will be asked to review the proposed final draft of the Restatement of the Law, Liability Insurance for approval.  Jeffrey Thomas has a piece examining a portion of the Restatement entitled Extra-Contractual Liability in the Restatement of the Law, Liability Insurance:  Breach of the Duty to Settle or Bad Faith?.  The abstract provides:

This paper focuses on the Restatement’s treatment of an insurer’s duty to settle and the duty of an insurer to act in good faith in handling liability claims. The duty to settle is framed as an objective “duty to the insured to make reasonable settlement decisions.” At the same time, however, a separate claim is retained for an insurer’s “bad faith” breach of its duties (including the duty to settle). Further, a subjective element is adopted for the bad faith standard. To be liable for “bad faith,” an insurer must act “without a reasonable basis for its conduct” and must also act with “knowledge of its obligation to perform or in reckless disregard of whether it had an obligation to perform.” This use of the objective and subjective standards creates a new paradigm, one that distinguishes between the duty to settle and “bad faith” conduct and applies different standards for liability. This paper begins with a general description of the standards and the case law in support of them. It then turns to some implications of the new paradigm, both in terms of the damages available to insureds and the application of the standards to insurer conduct at the margins of reasonableness.

Sharkey on Preemption

Cathy Sharkey has posted to SSRN The Anti-Deference Pro-Preemption Paradox at the U.S. Supreme Court:  The Business Community Weighs In.  The abstract provides:

Two indicia of the Roberts Court’s alleged pro-business leanings are, first, its readiness to find state tort law preempted by federal law and, second, its skepticism toward Auer deference to federal agencies. But it is difficult to reconcile individual Justices’ — particularly those identified as part of the “conservative core” — pro-preemption positions and anti-Auer positions, and this tension suggests that the oft-advanced pro-business narrative warrants a closer look. The tension is on clearest display in drug preemption cases, where even the most anti-agency deference Justices readily defer to the Food and Drug Administration (FDA), particularly when the agency’s interpretation of its own regulations under Auer is at issue.

This Article examines the extent to which the business community is involved in, and is perhaps even playing a role in perpetuating, this paradox. It also remains to be seen how, if at all, this will affect the Court going forward.

Shapo's Treatise on Products Liability

The latest edition of Marshall Shapo's products liability treatise is available from Elgar.  The blurb provides:

An authoritative, in-depth study of issues in products liability litigation, this comprehensive treatise traces the law of products liability from its roots in contract and tort to its development into the challenging, complex modern law of the subject.

Restatement of Intentional Torts: Should Offensive Battery Include Unusual Sensitivities of Plaintiffs if Known by Defendants?

The latest version of Section 3 of the Restatement of Intentional Torts provides:

§ 3. Battery: Definition of Offensive Contact

A contact is offensive within the meaning of § 1(c)(ii) if:

(a) the contact is offensive to a reasonable sense of personal dignity; or

(b) the contact is highly offensive to the other’s unusually sensitive sense of personal dignity, and

(i) the actor knows to a substantial certainty that the contact will be highly offensive to the other;

or (ii) the actor contacts the other with the purpose that the contact will be highly offensive.

Liability under Subsection (b) shall not be imposed if the court determines that avoiding the contact would be unduly burdensome or that imposing liability would be against public policy. 

Section 3(b) includes liability for contact that is not offensive to a reasonable sense of personal dignity if the defendant knew that such contact would be highly offensive to the particular plaintiff in question.   It was adopted two years ago, at the 2015 annual meeting, by a tie vote broken by the Reporters.  Subsequently, it was decided to reconsider the issue this year, due to the relatively low number of persons present in 2015 and the closeness of the vote.  The issue is whether to allow liability for offensive battery (or assault) if the defendant knowingly or purposefully ignores or exploits, as the case may be, the plaintiff's unusually sensitive condition, when it would not be unduly burdensome or contrary to public policy to avoid doing so.  Just as in 2015, motions have been filed to eliminate 3(b) in its entirety or at least eliminate 3(b)(i) regarding substantial certainty.  Guy Struve filed these motions which are here:   Download R3d Intentional Torts TD2 s.3b Struve motion 1 (2) and here:   Download R3d Intentional Torts TD2 s.3b Struve motion 2 (1)

On the other hand, Richard Wright has filed motions that seek to have the ALI support such liability, but without requiring a highly offensive contact or an intent to cause a highly offensive contact.  Wright's arguments in support of his motions criticize the Struve motions for their assertions regarding the existing state of the case law and the prior Restatement provisions.  Wright's motions are here:   Download R3d Intentional Torts TD2 s.3b RWW motions

Very few Torts professors were at the meeting in 2015.  If you are an ALI member in the area, please come and participate.  

JOTWELL Torts: Geistfeld on Stein on Tort Theory

At JOTWELL, Mark Geistfeld reviews Alex Stein's The Domain of Torts.

Yale Study: One-Third of New Drugs Had Safety Issues After FDA Approval

Underscoring the importance of tort warnings.  From NPR:

The Food and Drug Administration is under pressure from the Trump administration to approve drugs faster, but researchers at the Yale School of Medicine found that nearly a third of those approved from 2001 through 2010 had major safety issues years after the medications were made widely available to patients.

Seventy-one of the 222 drugs approved in the first decade of the millennium were withdrawn, required a "black box" warning on side effects or warranted a safety announcement about new risks, Dr. Joseph Ross, an associate professor of medicine at Yale School of Medicine, and colleagues reported in JAMA on Tuesday. The study included safety actions through Feb. 28.

The full NPR story is here.  Thanks to David Logan and Mike Green for the tip.

Civil Jury Project Fellowship at NYU Law

Summary:

The Civil Jury Project at NYU School of Law (Project) invites applications for a Research Fellow for 1 year beginning September 1, 2017. The position is ideally suited for a soon-to-be or recent graduate with excellent academic credentials. Applicants should have completed a federal appellate clerkship by the start date or obtained such a clerkship scheduled to start in the fall of 2018. The Fellow will work with the Faculty and Executive Directors of the Project as well as other Fellow(s) on the academic inquiry into the role of the civil jury – past, present, and future.

In addition to independent academic work, the Fellow will be responsible for:

• Coordinating and monitoring research on academic endeavors related to objectives

of Project.

• Planning and executing public events and workshops organized by Project.

• Coordinating research studies by empiricists or outside researchers.

He/she will be detail-oriented, have strong communication, relationship building, research and analytical skills and have an ardent interest in legal issues relating to the role of the civil jury.

Qualifications:

Required Education: Juris Doctor degree, excellent academic credentials, and preferably a federal appellate clerkship or anticipated clerkship.

Required Experience: Research and event planning/logistics experience.

Required Knowledge, Skills, and Abilities: Strong analytical, writing, organizational and interpersonal skills.

Salary and Benefits:

Salary: $70,000 per year

The University offers a competitive salary and an array of benefits, which include medical, dental and vision. Further information regarding benefits can be found here:

https://www.nyu.edu/employees/benefit/full-time/Professional-Research-Staff-Code-103.html.

How to Apply:

Submit applications to Kaitlin Villanueva at email: [email protected] and should include a cover letter and resume. Please write Research Fellow for The Civil Jury Project at NYU School of Law in the subject line.

NYU is an Equal Opportunity/Affirmative Action Employer

Gilead & Green on the Economics of Proximate Cause

Israel Gilead and Mike Green have posted to SSRN Positive Externalities and the Economics of Proximate Cause.  The abstract provides:

Should drug manufacturers be liable to consumers who overall benefited substantially from a drug for unavoidable and reasonable negative side-effects, just because the drug is defective with regard to other side-effects or other consumers? Should a surgeon be liable for a typical and reasonable risk that materialized during the surgery just because another risk, an unreasonable one, that did not materialize, rendered the treatment problematic?

Common sense and fairness point to a negative answer: actors should be liable for the unreasonable risks created not for reasonable risks. The Third Restatement of Torts embraced this traditional view of proximate cause (scope of liability) by excluding foreseeable reasonable risks from the scope of negligence liability, imposing liability only for unreasonable tortious risks. This is the harm within the tortious risk standard -- HWTRS.

But is there also economic justification for the HWTRS? Is it also welfare enhancing? Leading scholars in the field, like Robert Cooter and Ariel Porat, have argued that the HWTRS is inefficient. Efficiency, they argue, requires that liability should be imposed on all foreseeable harms that were considered by the court, without excluding reasonable harms, and therefore the Third Restatement’s HWTRS, which provides otherwise, is inefficient.

In response, this article provides the missing economic explanation for the desirability of HWTRS with respect to reasonable risks. The exclusion of reasonable risks from the scope negligence liability by the HWTRS is welfare-enhancing because these reasonable risks often involve “externalized benefits” -- social benefits that actors disregard because they do not benefit from them. As the economic aim of tort law is to internalize externalities, it should also internalize the benefits of reasonable risks, to avoid over-deterrence. The HWTRS, this article shows, does exactly that -- it internalizes the externalized benefits of reasonable risks. Moreover, this "internalized-benefits analysis" provides additional economic support for the exclusion, by the HWTRS, of other kinds of risks from the scope of liability, including unforeseeable and background risks.

The proposed "internalized-benefits analysis," though, also draws the lines and limits of the efficiency of the HWTRS in excluding different kinds of risks from the scope of liability. Another insight of this analysis is that the iconic Hand Formula, the cornerstone of economic analysis of tort law, should be limited to determining whether the actor was negligent and should not be employed to determine the scope of liability.

Goldberg & Smith on Equity and Tort

John Goldberg & Henry Smith have posted to SSRN Wrongful Fusion:  Equity and Tort.  The abstract provides:

Equity and Tort appear to be strangers. Beyond historically making equitable relief available in some cases, equity did not intervene in tort law to the extent it did in contract and some aspects of property. And yet substantive equity focuses on wrongful conduct and affords persons the opportunity to seek remedies for such conduct through the courts. Are there ‘equitable wrongs’, and, if so, how if at all do they differ from torts? We focus on a particular function loosely associated with historic equity jurisdiction: equity supplements the law where it fails to address problems that are difficult to handle on the same ‘level’ on which they arise. In situations of conflicting rights, party opportunism, and interacting behavior, it is difficult to formulate solutions that do not make reference to the ordinary (primary level) set of rights and rules. Thus, it is often more effective to frame ‘abuse of rights’ in terms of what one can do with rights rather than formulate the right to make it resistant to abuse.

We distinguish three scenarios at the intersection of equity and tort:

(i) tort law itself contains a second-order element to deal with problems such as coming to the nuisance;

(ii) equity solves an inadequacy of tort law, such as by reformulating privity, which is then incorporated into tort law going forward; and

(iii) equity maintains a limited but open-ended capacity to counteract inadequacies of tort law, especially involving hard-to-foresee manipulation of rules and conflicts of rights.

With the increasing fusion of law and equity, it has been difficult to maintain this second-order equitable function, but nowhere more so than at the equity-tort interface. Many of the interventions of equity, especially into areas of wrongful interference, invite redescription as torts, and have in fact induced courts to recognize new torts, for better and worse. On our account, this reformulation into tort is appropriate only where a problem is amenable to delineation in terms of general rights and fails where a degree of open-endedness is necessary to deal with party opportunism and new types of conflict. We also consider the diffusion of ‘flattened’ equitable notions into primary-level tort law, often in the form of balancing tests, which have in many ways rendered tort less coherent, stable, and law-like than is desirable.

IA: Governor Signs Med Mal Reform Bill

On Friday, Iowa Governor Terry Branstad signed into law a bill for med mal cases requiring a certificate of merit and capping non-economic damages at $250,000 except in cases involving permanent impairment, disfigurement, or death.  The Des Moines Register has the story.

Zacharias on Brandeis and Railroad Accidents

Lawrence Zacharias has posted to SSRN Justice Brandeis and Railroad Accidents:  Fairness, Uniformity and Consistency.  The abstract provides:

The aim of this essay is not to revisit Erie, but rather to show how Brandeis’s underlying concerns in Erie evolved over 20 years in the realm of deciding railroad accident cases, particularly under the Federal Employers’ Liability Act of 1908 (“FELA”). Brandeis’s characteristic style in introducing so many of these opinions seems to indicate that he had the intertwined problems of uniformity and consistency in mind long before he arrived at Erie. His first three opinions, including his dissent in Winfield, showed him concretely what was wrong with relying on the courts to smooth interstate regulation under the rubric of “uniformity.” Over the next two decades FELA provided him with a useful laboratory in which he tweaked the judicial processes of the states to render their litigation “consistent.” Once he perceived consistency, he gained confidence that a system of coordinated state-centric reforms could produce the kinds of regulatory uniformity that the national economy required and that the administration of law by state courts, and not some unifying federal common law, could best serve the nation.

Bloomberg BNA Article on Lawsuit Abuse Reduction Act

Bruce Kaufman at Bloomberg has a lengthy piece on LARA, the federal act that makes Rule 11 sanctions mandatory under certain conditions.  The gist: