Thursday, December 6, 2018
Puerto Rico's governor signed a law creating 13 panels composed of 3 people--including a health expert, a public advocate, and a lawyer or former judge--to review medical malpractice claims. Claimants, with an exclusion for the indigent, will be required to post a bond-like payment with the panel. If the panel finds evidence of malpractice, the money will be returned. The governor hopes it will stem the exodus of doctors from Puerto Rico; of the approximately 1,000 claims each year, 900 are dismissed.
The exodus from Puerto Rico is widespread, and is largely caused by a weak economy and damage from recent hurricanes. There are better ways to handle a number of weak claims than adding another layer of delay for all claims, including the good ones. (It is important to remember that studies also suggest a large number of valid claims are never filed.) For example, a certificate of merit requirement is more relevant handling the precise problem.
The Province has details.
Monday, November 19, 2018
On Thursday, the Kentucky Supreme Court ruled that the medical malpractice panel law, passed in 2017, was unconstitutional. The law required medical malpractice claimants to go through a panel procedure (review by health care professionals) prior to obtaining a jury trial. The process consumes nine months and the outcome is admissible, but not binding, at the subsequent trial. In reporting on the reason the court held the law unconstitutional, J.D. Supra stated:
In holding the Act unconstitutional, the Kentucky Supreme Court focused its analysis on Section 14 of the Kentucky Constitution. Section 14 is entitled the “Right of judicial remedy for injury -- Speedy trial”. Section 14 states that “All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” The Court found that Section 14 not only applied to the Judicial branch but also to the Legislative branch, holding that the Legislative branch cannot enact legislation contrary to the rights guaranteed in Section 14, including a right to have justice without delay. The Court reasoned that, even though there are natural delays in judicial proceedings, the Act was unconstitutional because it created a mandatory delay. The Court found that due to the Act’s provisions, claimants were now unable to seek immediate redress through the Judiciary, which was unconstitutional.
The entire J.D. Supra article is here.
I won't opine on the constitutionality of the law, but I will say that as a matter of policy the delay is a bad idea. Med mal cases are too slow already. This was my reaction in 2015 when Kentucky was considering an earlier version of the law:
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.
Monday, October 29, 2018
I'm a bit late covering this; it happened while I was away. The Arkansas Supreme Court, for procedural reasons, threw tort reform (Issue 1) off of the November ballot. The opinion is here. Proponents could certainly try again (they have in the past). But, to me, the bigger issue is the emergence of a traditionally conservative advocacy group (family-oriented Christians) opposing reform instead of supporting it or remaining neutral. If this portends a national movement, the politics (and success) of tort reform may change dramatically. As I understand it, Issue 1 was not doing well. The only poll I saw had it losing about 2-1. As proof of the unusual combination of interests, here is a link to an opinion piece written by (in their description) a liberal law professor and a conservative public interest advocate. Joshua Silverstein and Jerry Cox cover some of the empirical data on tort reform and argue this ballot measure would have hurt Arkansas.
Friday, October 26, 2018
In the U.S. Senate, a bill called AV START (American Vision for Safer Transportation Through Advancement of Revolutionary Technologies) has been proposed. The bill would require the National Highway Traffic Safety Administration to regulate design, construction, and performance of self-driving cars — preempting state laws already in place. State and local governments would continue to handle registration, licensing, insurance, and safety and emissions inspections. The bill is similar to the SELF DRIVE (Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution) measure already passed by the House of Representatives. Some safety advocates object to the bill primarily on the grounds it would increase the number of exemptions from safety standards applicable to human drivers. Automated vehicles are expected to save numerous lives by replacing human drivers, whose errors cause the vast majority of traffic accidents, with artificial intelligence. The Washington Examiner has the story.
Tuesday, September 11, 2018
KATV in Little Rock is reporting about a Talk Business & Politics-Hendrix College poll on the issue of whether the state constitution should be amended to cap attorney fees, limit damages in personal injury, property damage, or wrongful death lawsuits, and give the legislature the authority to control the rules of court procedure. The results? 25% of voters are in favor and 47% are opposed. More details are available here. It would be interesting to know if the advocacy of a Christian group against tort reform has had an effect.
Monday, August 20, 2018
Religious and business conservatives can make for uneasy allies on a number of issues. Tort reform, advocated by business conservatives, has not usually been such an issue. In Arkansas, however, the Family Council Action Committee, a conservative Christian group, is actively opposing the ballot measure to impose new limits on tort damages:
A Christian group has begun rallying churches and abortion opponents against the measure, saying that limiting damage awards in lawsuits sets an arbitrary value on human life, contrary to anti-abortion beliefs, and conflicts with biblical principles of justice and helping the poor.
It will be interesting to see if this spills over to other states. The News Tribune has the story.
Monday, August 13, 2018
Last year, Kentucky enacted a law requiring medical malpractice claimants to go through a panel procedure (review by health care professionals) prior to obtaining a jury trial. The process consumes nine months and the outcome is admissible, but not binding, at the subsequent trial. Last week, the Kentucky Supreme Court heard arguments over the constitutionality of the law. Plaintiffs claim the law obstructs the right to a jury trial, in violation of the state constitution. The Courier Journal has the story.
Friday, August 3, 2018
For several years, there has been a saga in Arkansas to get a tort reform measure on the ballot. The measure would cap non-economic damages, punitive damages, and attorneys' fees. Last month, I reported on the most-recent event, a former judge sued to block the measure on the basis that it unconstitutionally combines several proposals and also violates separation of powers. On Tuesday, a judge refused to grant a preliminary injunction because the plaintiff-former judge could not demonstrate irreparable injury if the ballot went forward. The case remains to be decided on the merits. The Times Record has the story.
Thursday, July 19, 2018
Judge Christopher Conner has issued a preliminary injunction stopping the Commonwealth of Pennsylvania from absorbing the JUA (and its money) into its Insurance Department. In May, Judge Conner ruled Pennsylvania could not take $200M from the JUA in an attempt to balance its budget because the money was private property and such a seizure violated the Takings Clause of the United States Constitution. The current ruling indicates those principles apply equally to an absorption. The May ruling is on appeal to the Third Circuit. PennLive has the story. Thanks to Dan Noon for the tip.
Wednesday, July 18, 2018
AMP (Arkansas Money & Politics) has the story. The gist:
Former Pulaski County Circuit Court Judge Marion Humphrey is challenging the ballot measure that would cap damages awarded in lawsuits and give legislative control over court rules in Arkansas.
Humphry filed the lawsuit last week, challenging the proposed constitutional amendment, also known as Issue 1, that Arkansas legislators voted in 2017 to put on the November ballot. The measure limits damages that can be awarded in civil lawsuits and contingency fees attorneys can receive in those suits. The measure also would give the Legislature power to change, repeal or adopt rules for the state’s courts.
In the lawsuit, Humphry claims the measure unconstitutionally combines four separate proposals. He also suggests it violates the separation of powers by giving the legislative branch power over the judicial branch. Humphry asks that a Pulaski County judge disqualify the measure and prevent election officials from counting any votes for it.
The proposed amendment caps noneconomic damages awarded in lawsuits to $500,000 and would restrict punitive damages to $500,000 or three times the amount of compensatory damages awarded, whichever is higher. The Legislature would be able to increase these limits with a two-thirds vote of the House and Senate. It also caps attorneys’ contingency fees at 33 1/3 percent of the net amount recovered in the suit.
Thursday, July 5, 2018
Back in May, Judge Christopher Conner of the Middle District of Pennsylvania ruled that the Commonwealth could not take $200M from the state-created joint underwriting association (JUA) for medical malpractice insurance to balance the budget. The judge ruled it was a seizure of property without compensation and was unconstitutional. (Coverage here) Having been thwarted, the Commonwealth passed a budget that simply absorbs the JUA's operations into the Insurance Department. The JUA has sued again and has filed a motion for a temporary restraining order and preliminary injunction. WITF has the story.
Thursday, June 28, 2018
Yesterday, the Wisconsin Supreme Court ruled 5-2 that the $750,000 non-economic damages cap in med mal cases is constitutional. The trial court had ruled the cap unconstitutional as applied to this plaintiff, and the intermediate appellate court went further and held it was unconstitutional on its face. The majority acknowledged the sympathetic facts, but held the legislature was acting within its authority to make policy decisions. The Milwaukee Journal Sentinel, which covers tort and tort reform issues in depth, has the story.
Friday, June 22, 2018
On July 1, the compulsory auto insurance minimum limits in Nevada increase from 15/30/10 to 25/50/20. To translate, the new requirements in Nevada are $25,000 per person for bodily injury/$50,000 per accident for bodily injury/$20,000 per accident for property damage. The increase leaves Pennsylvania even more isolated on the low end of the spectrum with 15/30/5.
Monday, June 18, 2018
After having been struck down by the Arkansas Supreme Court right before it was scheduled for a vote, tort reform is back on the ballot this November:
The proposed constitutional amendment would set caps on attorneys' fees and certain lawsuit damages, plus -- in what lawyers say is the biggest affront to their business -- give lawmakers the final rule-making authority over the courts. Its backers in business and the Legislature pitch the amendment as tort reform that they say will reduce the costs of doing business in Arkansas by making companies less exposed to frivolous or costly litigation.
The bar generally opposes the measure, and business groups favor it. The Northwest Arkansas Democrat Gazette has a story from the Arkansas Bar Association convention.
Wednesday, June 6, 2018
In California, the "tort wars" have been quiet recently. That may change due to wildfires and a court decision finding lead paint manufacturers liable for a public nuisance. The state's utilities, potentially on the hook for billions of dollars in damage caused by wildfires, and lead paint manufacturers have sought legislation to protect themselves from damages. The Mercury News has details.
Tuesday, May 22, 2018
Pennsylvania, facing a large budget deficit, attempted to take $200M from a state-created joint underwriting association for medical malpractice insurance. The state passed a law requiring the JUA to give up $200M of its $268M surplus by December 1, 2017 or be dissolved. Judge Christopher Conner of the Middle District of Pennsylvania issued a preliminary injunction to halt the dissolution. Stating the money was private property, Judge Conner has held that the transfer is a seizure of property without compensation and is unconstitutional.
Wednesday, May 9, 2018
A mother and son who together experienced a failed liver transplant argued to the Pennsylvania Supreme Court on Monday that the seven-year med mal statute of repose should be struck down as violating the state constitution's "open courts" provision. The statute of repose was one of many provisions included in the MCARE statute, passed in 2003 to deal with an alleged med mal crisis in Pennsylvania. Law 360 has the story.
Wednesday, April 18, 2018
In 2011, a Wisconsin woman had all four limbs amputated. A jury determined health care providers were responsible by negligently failing to diagnose an infection and awarded her $25.3M. The non-economic damages portion of the award was approximately $16.5M. WI has a med mal cap on non-economic damages of $750,000. The trial judge ruled the cap was unconstitutional as applied to the plaintiff's case. The intermediate appellate court went further and ruled the cap was unconstitutional. Tomorrow the Wisconsin Supreme Court hears arguments in the case. The Milwaukee Journal Sentinel has the story.
Monday, March 5, 2018
The Kentucky Senate passed a comprehensive med mal reform bill on Thursday, and now it heads to the state House. The bill would do a number of things:
Among its many provisions, Senate Bill 20 would require medical malpractice lawsuits to contain an affidavit of merit. That’s a document stating that at least one doctor agrees the claim has merit.
A medical review panel opinion in favor of a patient would fulfill the affidavit of merit requirement. Senate Bill 4 from 2017 created panels of experts to review claims of medical error or neglect. If the medical review panel finds in favor of the medical provider, however, the patient would still have to get an affidavit of merit to advance to court.
A second provision would impose contingency caps on attorney fees in medical malpractice cases. An amendment would set those caps at no more than 33 percent of any awarded damages.
A third provision is known as the “I’m sorry” clause. It would allow health care workers to express condolences or apologies to patients or families without fear of having those words used against them in a lawsuit.
A fourth would regulate fees for copying medical records. An amendment included an exemption from medical record copying fees for pro bono and Social Security disability cases.
The Ohio County Monitor has the story.
Saturday, March 3, 2018
In the early 1990s, Louisiana adopted a med mal cap of $500,000, which has never been adjusted for inflation. The cap does not apply to "future medical expenses." State senators are debating whether the cap should be raised. Bossier Press-Tribune Online has the story.