TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Monday, January 20, 2020

Conk on the Cato Institute and Qualified Immunity

At Otherwise, George Conk details the Cato Institute's recent battle against qualified immunity.

January 20, 2020 in Legislation, Reforms, & Political News, Weblogs | Permalink | Comments (0)

Friday, December 20, 2019

FL: Appellate Court Upholds Constitutionality of Med Mal Cap if Arbitration Offer Had Been Rejected by Plaintiff

On Wednesday, a south Florida appellate court upheld as constitutional a $350,000 cap on pain and suffering in med mal cases in which a healthcare provider's offer to arbitrate was rejected and the plaintiff filed suit.  The distinction is important because the Florida Supreme Court held in 2017 that caps on pain and suffering in med mal cases generally are unconstitutional.  WUSF has the story.

December 20, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, December 19, 2019

Congress Passes Administrative Compensation Procedure for Military Medical Malpractice

On Tuesday, the Senate voted, 86-8, to pass the National Defense Authorization Act.  The Act included $400M for the Defense Department to investigate and pay out military med mal claims internally, bypassing the Feres Doctrine.  President Trump is expected to sign the legislation shortly.  I reported about this possibility last week.  Fox 46 has details.

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

Wednesday, December 11, 2019

Bypassing the Feres Doctrine?

Under a provision inserted into the annual defense authorization bill, Defense Department officials could offer payouts to victims of military medical malpractice.  In what is essentially a compromise, the Feres doctrine, prohibiting victims of military medical malpractice from recovering in court, would not be overturned.  Instead, an administrative compensation program would be created:

In the legislation, lawmakers noted that although the move “does not change or repeal the Feres doctrine, it authorizes the Secretary of Defense to allow, settle, and pay an administrative claim against the United States for personal injury or death … that was the result of medical malpractice caused by a Department of Defense health care provider.”

Most claims would be limited to under $100,000, although the secretary could authorize larger payouts in some circumstances.

The House should vote on the bill today, with the Senate following early next week.  The legislation has passed Congress in each of the last 58 years.  Military Times has the story.

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

Tuesday, December 3, 2019

NJ: Sisters Abused by Priest File Suit Against Archdioceses

New Jersey's two-year window to sue for victims of child sexual abuse has just opened.  One of the first lawsuits filed is by a few of the five sisters in one Harrisburg, Pennsylvania family who were abused by a priest in both New Jersey and Pennsylvania.  The priest was moved from New Jersey to Harrisburg, where he met the family.  Some of the assaults occurred when the priest took the sisters to a home in New Jersey. 

Pennsylvania just expanded its statute of limitations for child sexual abuse; separately it started a constitutional amendment process to open a two-year window for those victims barred by the old statute of limitations.  For the amendment to pass, the legislature, which has passed a bill on the amendment once, must pass it again next year.  Then the issue will be on the ballot and voters must approve of it.  The process will take at least two years, but was necessary to break a stalemate in the legislature over the issue.

Pennlive has the story.  

December 3, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, December 2, 2019

PA: Commonwealth Alters Statute of Limitations on Child Sexual Abuse

Last week I reported a breakthrough in a dispute over extending the statute of limitations for child sexual abuse in Pennsylvania.  As expected, bills were passed by the full Senate and signed by Governor Wolf.  Under new law:

Victims would have until they turn 55 to sue, compared to age 30 in current law. Young adults ages 18-23 would have until age 30 to sue, where existing law gives them just two years.

A separate law started a constitutional amendment process to open a two-year window for child sexual abuse victims whose claims are currently time-barred:

The multi-year amendment process has begun, but the bill must again pass both the House and Senate in the 2021-22 legislative session before voters will decide its fate in a statewide referendum.

Pennlive has the story.

December 2, 2019 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, November 20, 2019

PA: Breakthrough on the Stalemate Over Statute of Limitations for Child Sexual Abuse

For three years, the Pennsylvania legislature has been at odds over extending the statute of limitations for child sexual abuse.  The House has repeatedly passed reform bills; the Senate has not.  Currently victims of child sexual abuse have until age 30 to file civil suits and age 50 for the filing of criminal charges.  There has been widespread agreement about extending those time periods, but there has been conflict over a retroactive window to allow victims to bring claims that are time-barred under current law. 

This year, the House has again passed bills, and Governor Wolf has indicated he would sign them.  Yesterday, the Senate Judiciary Committee unanimously passed the bills, clearing the way for a floor vote this week.  The bills, now expected to pass in the full Senate, would:

  • Leave a person who commits serious sexual abuse against a child forever exposed to potential criminal prosecution, giving that crime the lifetime tail that now applies to only the most serious of crimes like criminal homicide. It also expands the window for childhood victims to file civil suits against their abusers to their 55th birthday.
  • Amend the state constitution in a way that would allow victims of past childhood sexual abuse a two-year window to file civil suits against those that they say abused them, as well as any employers or institutions that might have attempted to sweep those abuses under the rug.

Pennlive has the story.

November 20, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, November 14, 2019

Engstrom & Rabin on CA Barring the Use of Race, Gender, and Ethnicity in Calculating Tort Damages

Recently, I reported that California has banned the use of race, gender, and ethnicity in the calculation of tort damages.  Now Nora Engstrom and Bob Rabin have written this piece for Law.com.

November 14, 2019 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, November 13, 2019

USSC Denies Cert In Sandy Hook Shooting Case Against Remington

     In March, the Connecticut Supreme Court ruled, 4-3, that plaintiff families from the 2012 Sandy Hook school shooting could proceed to trial against Remington, the manufacturer of the Bushmaster AR-15 used in the attack.  The cause of action was based on the Connecticut Unfair Trade Practices Act for "personal injuries that result directly from wrongful advertising practices."  Significantly, the Connecticut high court rejected Remington's defense based on the Protection of Lawful Commerce in Arms Act.  The court ruled the suit fell into a “predicate exception  [that] permits civil actions alleging that ‘a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or market of the [firearm], and the violation was a proximate cause of the harm for which relief is sought …’ 15 U.S.C. § 7903 (5) (A) (iii) (2012).

     Yesterday the United State Supreme Court declined to hear Remington's appealCoverage from The Litchfield County Times at the time of the Connecticut Supreme Court opinion noted the case:

puts the victims’ families in a position where they may be able to try to prove a connection between Remington’s marketing for its Bushmaster AR-15 rifle and the horrific act of violence by a disturbed 20-year-old. The state Supreme Court said they can try; making the connection, lawyers and experts say, is a steep challenge.

“It is a Herculean task,” said Victor E. Schwartz, co-chairman of the public policy practice in the Washington, D.C. office of the law firm Shook, Hardy & Bacon.

November 13, 2019 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, November 4, 2019

PA: Med Mal Statute of Repose Is Unconstitutional

In a 4-3 ruling, the Supreme Court of Pennsylvania held that a 7-year statute of repose for medical malpractice, passed as part of a 2002 law designed to ease an alleged health care crisis, was unconstitutional.  The majority found the statute of repose violated the right of access to the courts and had no substantial relationship to the legislative goal of controlling malpractice insurance costs and premiums.  Courts in at least 6 other states--Alabama, Indiana, Kentucky, New Hampshire, Rhode Island, and Utah--have also held med mal statutes of repose to be unconstitutional.  Modern Healthcare has the story.

November 4, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, October 31, 2019

Palmer on the Woodhouse Report

Sir Geoffrey Palmer has posted to SSRN A Retrospective on the Woodhouse Report:  The Vision, the Performance, and the Future.  The abstract provides:

The following is a revised version of the second Woodhouse Memorial Lecture given at both the Victoria University of Wellington and the University of Auckland in September 2018. It traces the history and policy iterations of New Zealand's accident compensation scheme that flowed from the 1967 Woodhouse Report (the Report), a Royal Commission report chaired by Sir Owen Woodhouse. It discusses the features of the Report and the determination it showed to get rid of the common law action for damages for personal injury. It analyses the degree to which the Report was not followed in the journey it took through the political decision-making system. There is a critical analysis of the delivery of benefits, the administration of the scheme and its financing. The performance in accident prevention and rehabilitation is briefly covered. The method of settling disputes in the scheme has seen an unwelcome return to legalism. The lecture concludes with a strong plea to remove the anomalies created by the accident compensation scheme between the victims of accident who receive earnings related-benefit and those who are dealt with under the Social Security Act 2018 under which they receive flat rate benefits. The lecture concludes with some lessons for policymakers.

October 31, 2019 in Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0)

Monday, October 28, 2019

CA: Race, Gender, Ethnicity Not to Be Taken Into Account When Calculating Tort Damages

California has adopted a statute that prohibits the use of race, gender, and ethnicity in the calculation of lost earnings or impaired earning capacity in tort damages.  The crucial language of S.B. 41 is:

Estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death shall not be reduced based on race, ethnicity, or gender.

Thanks to Nora Engstrom for the tip.

October 28, 2019 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0)

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.  OregonLive.com 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)