TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Monday, September 30, 2019

CA: Proposed Ballot Initiative Would Raise Med Mal Cap

In 1975, California enacted MICRA.  Among other things, the law capped pain and suffering damages in med mal cases at $250,000.  The cap has not been raised since.  Back in 2014, California attempted a ballot initiative to raise the cap; it failed by a large margin.  Now a couple whose infant daughter received a large med mal award that was significantly reduced by the cap has filed an initiative to update the cap by the amount of inflation, raising it to over $1.2M.  The sponsors need to obtain the signatures of at least 5% of voters who cast ballots in the previous election for governor (623,000 signatures).  In 2014, a coalition of medical groups spent nearly $60M to defeat the initiative.  The leader of a consumer advocacy group stated he is counting on a progressive electorate in 2020, intent on defeating President Trump, to boost the initiative's chances.  KTLA has details.

September 30, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (2)

Monday, July 29, 2019

Movement on Federal Legislation for Autonomous Vehicles

Last year, the House passed legislation on autonomous vehicles, but a complementary bill died in the Senate.  Given the lack of progress since then, industry leaders did not expect much to happen this year.  In the past few weeks, however, a bipartisan group in both houses of Congress has held five meetings in an attempt to reach a deal.  A new bill is reportedly being written.  The Verge has the story.

July 29, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, July 26, 2019

UT: Supreme Court Rules Agency Pre-Approval of Med Mal Claims Unconstitutional

Earlier this week, the Utah Supreme Court ruled that a law requiring medical malpractice plaintiffs to obtain a certificate of compliance from a state agency is unconstitutional because it violates separation of powers.  Jurist has the story.

July 26, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, June 19, 2019

Ohio Medical Malpractice Improvement Act

On March 20th of this year, the Ohio Medical Malpractice Improvement Act became law.  Its sponsor spoke of its provisions as "gap-filling."  JD Supra put together a list of those provisions:

  1. Correcting language related to a nursing home plan of care in the statutory definition of a “medical claim,” to ensure that certain claims apply to nursing homes, but not to hospitals or other medical providers;
  2. Establishing an alternative standard of liability when a natural or man-made disaster or an epidemic overwhelms emergency care providers: specifically, medical providers will only be held liable in these circumstances if their actions constitute a reckless disregard for the consequences to the life and health of the patient;
  3. Providing immunity to health care providers who elect to keep as inpatients those whose medical condition allows for discharge, but whose mental health condition may threaten the safety of the patient or others;
  4. Adding the terms “error” and “fault” to the list of communications in the Apology Statute – which bars the admission of evidence of healthcare providers’ statements apology, sympathy, or benevolence made to patients and their representatives following an unanticipated outcome of medical care – thereby allowing for more open conversations between patients and physicians when an unanticipated outcome in medical care occurs;
  5. Making inadmissible at trial medical records that contain reference to any communications by a medical provider that are protected by the Apology Statute;
  6. Making inadmissible at trial evidence of communications by a healthcare provider and/or by a victim that are made during a health care provider’s review of the cause of an unanticipated outcome, unless the communications are recorded in the victim’s medical records;
  7. Prohibiting at trial the use of guidelines, regulations and standards in the Patient Protection and Affordable Care Act, and in the Social Security Act, as evidence of the standard of care;
  8. Prohibiting at trial the use of insurer reimbursement policies and reimbursement determinations, and of Medicare and/or Medicaid regulations as evidence of the standard of care or a breach in the standard of care; and
  9. Reducing the need for a plaintiff to “sweep” unnecessary defendants into a lawsuit due to the expiration of the statute of limitations, by providing a plaintiff an additional 180 days after the filing of a medical claim to conduct discovery for the purpose of identifying any other potential claims or defendants not named in the complaint, and allowing such claims and individuals to be added to the lawsuit (even though the statute of limitations has run) at any point during the 180-day period.

June 19, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, June 17, 2019

KS: Supreme Court Strikes Down Non-economic Damages Cap

On Friday, the Kansas Supreme Court declared that state's cap on non-economic damages in personal injury cases unconstitutional as violating a person's right to a jury trial.  The 4-2 decision affected a cap put in place in the 1980s.  At the time of the appeal, the cap was $250,000, but it has since risen to $325,000.  The Washington Post has the story.

June 17, 2019 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, June 6, 2019

OR: Senate Narrowly Defeats Bill to Eliminate Non-Economic Damages Cap

On Tuesday, the Oregon Senate, in a close vote, defeated a bill that would have eliminated the state's $500,000 cap on non-economic damages in personal injury cases.  An alternative proposal would have raised the cap, established in 1987, to $1.5M, with increases over time.  That bill was also voted down, with the support of lawmakers who want to completely eliminate the cap. has the story.

June 6, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, May 10, 2019

LA: Auto Tort Reform Stalls in the Senate

On Tuesday, I reported that an auto tort reform bill in Louisiana was going up for a vote in the state Senate Judiciary Committee:

[The] measure would increase the time that victims of crashes have to file a lawsuit from one year to two; reduce the jury trial threshold from $50,000 to $5,000; take away the ability to sue the insurance company directly; plus allow judges and juries to review claimed medical costs.  The bill also includes a provision that if costs go down, the Department of Insurance would push insurance companies to lower their rates.

The committee referred the bill to a fiscal office to determine how much it would cost, likely ending its viability in this session which ends on June 6.  The committee also rejected a bill that would allow a judge, outside the presence of the jury, to decide whether to allow evidence of whether the plaintiff was wearing a seat belt at the time of the injury.

The Advocate has the story.

May 10, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, May 7, 2019

LA: Tort Reform Aimed at Auto Insurance Rates

Louisiana has the second-highest auto insurance rates in the nation, and the legislature is considering legislation supporters claim will reduce those rates.  A measure to put a moratorium on highway billboards, where trial lawyers often advertise, was defeated overwhelmingly.  A measure designed to expedite jury trials also failed.  The major piece of legislation goes up for a vote today:

[The] measure would increase the time that victims of crashes have to file a lawsuit from one year to two; reduce the jury trial threshold from $50,000 to $5,000; take away the ability to sue the insurance company directly; plus allow judges and juries to review claimed medical costs.  The bill also includes a provision that if costs go down, the Department of Insurance would push insurance companies to lower their rates.

Even the chief lobbyist for the auto insurance industry is dubious the bill would reduce premiums:

“It’s a misnomer to ever really believe that your rates are going to go down,” testified Kevin Cunningham. “There are so many pressures for it to go up: medical costs continue to go up, the cost of the vehicle continues to go up, the amount of wages that you have to compensate for continues to go up. So maybe what you do is slow the rate of rise.”

KPVI has the story.

May 7, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, May 6, 2019

MO: Tort Reform Bills Advance

Last week tort reform bill advanced in both houses of the Missouri legislature.  The state House passed a bill limiting punitive damages to cases in which a plaintiff proves "by clear and convincing evidence that the defendant intentionally harmed the plaintiff without just cause."  The state Senate passed a bill limiting discovery.  In the words of its sponsor: "My legislation places limits on the frequency and extent of discovery requests and requires those requests are proportional to the needs of the case."  The House bill has been sent to the Senate.  The Senate bill needs one more roll-call vote before it can be sent to the House.  Though only 2 weeks remain in this session, leaders in both houses say it is not too late to pass the bills and send them to the governor.  The Jefferson City News Tribune has the story.

May 6, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, May 2, 2019

Congress: Bill Would Allow Troops to Sue for Med Mal

A bipartisan bill that would overrule the Feres Doctrine has been introduced in the House of Representatives:

The bill would create an exemption to the Federal Tort Claims Act — a law which allows citizens to sue the government for negligence or wrongdoing — and allow them to file medical malpractice lawsuits. However, it would only cover cases that are still pending on, or occur after the bill's passage, as a way to limit costs, according to a press release provided by  (Rep. Jackie) Speier's (D-CA) office.

Additionally, the bill would have no impact on those instances of medical malpractice that occur during combat operations, aboard ships, or at battalion aid stations.

Under the proposed bill, service members would be able to sue for malpractice that occurs at major military clinics and hospitals, where both civilians and military personnel are already treated.

Task & Purpose has the story.

May 2, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, April 9, 2019

UPDATED: FL: Bill Would NOT Cap Non-Economic Damages at $1M in All Personal Injury Cases

A bill that would cap non-economic damages in all Florida personal injury cases at $1 million is headed to the House Judiciary Committee.  Decisions in 2014 and 2017 by the Florida Supreme Court struck down caps in wrongful death and medical malpractice cases.  The Florida Record has the story

UPDATED:  In the comments, someone sent me evidence the $1M cap was removed from the bill on March 29.  The bill now focuses on requiring the jury in some tort cases to consider an estimated value of the medical services rendered, based on a database containing amounts patients paid for similar care, in addition to the amounts actually billed by the provider to the claimant.

April 9, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, April 5, 2019

Lindsey Graham Appears to Support Class Action Reform

Lindsey Graham, who chairs the Senate Judiciary Committee, recently stated that "litigation abuse is real" and further stated that class action reform should be considered.  Graham's comments are interesting not only because of his position, but also because he receives donations from, and has sided with, plaintiffs in the past on some reform issues.  Legal Newsline has the story.

April 5, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, April 2, 2019

NJ: State Bans Non-Disclosure Provisions in Settlement Agreements for Discrimination, Retaliation, and Harassment

Last month, New Jersey adopted a law banning certain waivers of rights in employment contracts, as well as non-disclosure provisions in employment contracts and settlement agreements. 

Specifically, the Law declares as against public policy and unenforceable:

    • any provision in an employment contract that waives an employee’s substantive or procedural right or remedy relating to a discrimination, retaliation, or harassment claim under the LAD (law against discrimination) or any other statute or case law (a so-called “waiver of rights” provision), and

    • nondisclosure provisions in employment contracts and settlement agreements that conceal the details relating to a claim of discrimination, retaliation, or harassment (so-called “NDA” provisions).

The National Law Review has the story.  In 2017, a bill that would have prohibited non-disclosure agreements in similar circumstances was introduced, but not passed, in Pennsylvania.

April 2, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, March 18, 2019

FL: Prospects for Tort Reform Increase

A newly reconfigured Florida Supreme Court and 6 tort reform bills mean the likelihood of tort reform in Florida has increased.  Newly elected Governor DeSantis made 3 appointments to the high court, turning a 4-3 conservative minority into a 6-1 majority.  There are 4 House bills and two in the Senate proposing tort reform.  Among other provisions, the bills would cap pain-and-suffering damages at $1M, without the jury being informed, and reform "bad faith" suits.  Florida Watchdog has details.

March 18, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, February 28, 2019

MO: Joinder and J&J

     Earlier this month, I reported that tort reform bills had been filed again in Missouri to alter liberal joinder rules in that state.  In the meantime, the Missouri Supreme Court ruled that allowing a non-resident to participate in joined cases was a violation of state law prohibiting the use of joinder to allow courts to hear cases they otherwise would not be able to.  The ruling may eliminate or reduce the pressure to pass legislation.  One company that may be particularly affected is J&J, a New Jersey-based company defending cases that talc included in its baby powder causes cancer.  In a December report, Reuters stated that J&J knew that talc in its baby powder tested positive for asbestos from the 1970s to the early 2000s.  J&J is facing about 13,000 cases over the issue, most of which have been consolidated in federal court in New Jersey.  The Missouri Supreme Court's ruling is potentially good news for J&J:

The St. Louis court has been a venue for more talc trials and has seen larger verdicts than any other jurisdiction. Outside of St. Louis, the only other significant talc verdicts against J&J to date have come in lawsuits filed by individual plaintiffs in New Jersey and California, where the company is currently facing jury verdicts totalling $142 million.

Tina Bellon at the Insurance Journal has the story.

February 28, 2019 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, February 20, 2019

PA: Med Mal Venue Decision Delayed

Two weeks ago, I reported that the Pennsylvania Supreme Court was considering an alteration of venue rules for medical malpractice cases.  In the early 2000's, the court restricted venue to the place of the wrong to prevent plaintiffs from venue-shopping.  The court is considering a removal of this restriction, which is not in place for other types of cases.  The court has now agreed to delay action until the issue can be studied by the Legislative Budget and Finance Committee; the report is due by January 1, 2020.  Pennlive has details.

February 20, 2019 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, February 15, 2019

AR: Proposed Constitutional Amendment to Allow Damages Limits

After a multi-year saga in which ballot initiatives to amend the state constitution were struck down, new bills have been filed in Arkansas.  These bills, like prior ones, would amend the state constitution to allow caps on non-economic and punitive damages.  Unlike prior bills, control over procedure in state courts is not shifted to the legislature.  KAIT8 has details.

February 15, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, February 13, 2019

Silver, Hyman & Black on the 2003 Texas Med Mal Reforms

Charles Silver, David Hyman, and Bernard Black have posted to SSRN Fictions and Facts:  Medical Malpractice Litigation, Physician Supply, and Health Care Spending in Texas Before and After HB 4The abstract provides:

This article, written for a symposium issue of the Texas Tech Law Review, summarizes our research on the impact of Texas’ 2003 medical malpractice (“med mal”) reform. Our central findings include:

(1) there were no major changes in the frequency of med mal claims, payout per claim, total payouts, defense costs, or jury verdicts that can explain the spike in premiums for med mal liability insurance that occurred in Texas in the years before the 2003 reforms;

(2) Texas’ supply of direct patient care physicians grew steadily, at similar rates, in both the pre- and post-reform periods, despite politician’s claims that physicians fled Texas before reform and flocked back thereafter;

(3) although the damage caps adopted in Texas and other states greatly reduced the volume of malpractice litigation and payouts to patients, neither in Texas nor in other states have damage caps moderated the growth of health care spending;

(4) the savings in liability costs generated by the Texas reforms were shared between physicians and their insurers, with the former paying lower premiums and the latter collecting more premium dollars relative to dollars paid out on claims; and

(5) there is evidence that when liability rules are relaxed, hospital safety records gradually deteriorate.

February 13, 2019 in Conferences, Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0)

Monday, February 11, 2019

MS: Premises Liability Reform Bills

Premises liability reform bills have been introduced in the Mississippi House and Senate.  In Mississippi, if a plaintiff sues for the attack of a third party on defendant's premises, the jury cannot assign a portion of fault to the third-party attacker.  These bills would allow such apportionment.  The bills would make additional changes:

Most importantly, the bills say a property owner is exempt from a lawsuit unless someone can prove they “affirmatively, with a degree of conscious decision-making, impelled the conduct of said third party.” A woman who sues after being attacked in a dark parking lot without security would have to prove that the business knew about the potential harm and let it happen.

They also exempt property owners from liability even if they knew about the violent nature of the third party, and doesn’t allow a plaintiff to establish that there was an atmosphere of violence at a location unless there was similar violent conduct that resulted in three felony convictions on the property within the three prior years. So a nightclub where the police are called to break up fights but people aren’t charged and convicted of felonies could be exempt, for example, if someone was hurt there later.

The Mississippi Business Journal has the story.

February 11, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, February 8, 2019

MO: Joinder Tort Reform Bill Filed Again

For the past several years, tort reform advocates in Missouri have filed bills to restrict mass tort filings.  One of those bills has been filed again.  The Houston Herald explains:

Now a Senate bill, sponsored by Sen. Ed Emery, R-Lamar, once again seeks to change what are known as “joinder” rules in Missouri.

Currently, someone can join someone else’s lawsuit over a tort — or harm — as long as they are suing over the same facts, about the same product or service and out of the same series of transactions. Joint cases can be tried in any Missouri court as long as one of the plaintiffs has standing to sue in that court — meaning that they live there, that the incident occurred there or that the company is located there.

If Senate Bill 7 were to pass, chances for plaintiffs to join cases would shrink. Most cases could only be joined and tried in a court where all plaintiffs are allowed to sue.

Courts in St. Louis are especially exploited due to plaintiff-friendly juries.  This dispute has shades of the medical malpractice venue controversy in Pennsylvania, in which tort reform advocates attempt to keep med mal cases out of Philadelphia.

The full story is here.

February 8, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)