Friday, February 15, 2019
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.
Wednesday, February 13, 2019
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 4. The 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.
Monday, February 11, 2019
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.
Friday, February 8, 2019
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.
Wednesday, February 6, 2019
Ronen Avraham has posted to SSRN Database of State Tort Law Reforms (6.1). The abstract provides:
This manuscript of the DSTLR (6th) updates the DSTLR (5th) and contains the most detailed, complete and comprehensive legal dataset of the most prevalent tort reforms in the United States between 1980 and 2018. The DSTLR has been downloaded more than 2700 times and has become the standard tool in empirical research of tort reform. The dataset records state laws in all fifty states and the District of Columbia over the last several decades. For each reform we record the effective date, a short description of the reform, whether or not the jury is allowed to know about the reform, whether the reform was upheld or struck down by the states’ courts, as well as whether it was amended by the state legislator. Scholarship studying the empirical effects of tort reforms relies on various datasets, (tort reforms datasets and other legal compilations). Some of the datasets are created and published independently and some of them are created ad-hoc by the researchers. The usefulness of these datasets frequently suffers from various defects. They are often incompatible and do not accurately record judicial invalidation of laws. Additionally, they frequently lack reforms adopted before 1986, amendments adopted after 1986, court-based reforms, and effective dates of legislation. It is possible that some of the persisting variation across empirical studies about the effects of tort reforms might be due to the variations in legal datasets used by the studies. This dataset builds upon and improves existing data sources. It does so through a careful review of original legislation and case law to determine the exact text and effective dates. The fifth draft corrects errors that were found in the fourth draft, focuses only on the most prevalent reforms, and standardizes the descriptions of the reforms. A link to an Excel file which codes ten reforms found in DSTLR (6th) can be found here: http://www.utexas.edu/law/faculty/ravraham/dstlr.html.
It is hoped that creating one “canonized” dataset will increase our understanding of tort reform’s impacts on our lives..
Tuesday, February 5, 2019
Zenon Zabinski & Bernard Black have posted to SSRN The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform. The abstract provides:
We examine whether caps on non-economic damages in medical malpractice cases affect in-hospital patient safety. We use Patient Safety Indicators (PSIs) — measures of adverse events — as proxies for safety. In difference-in-differences (DiD) analyses of five states that adopt caps during 2003-2005, we find that patient safety gradually worsens after cap adoption, relative to control states. Standard DiD inference can be unreliable with a small number of treated units. We therefore develop a randomization inference-based test for DiD statistical inference with few treated units but multiple, potentially correlated outcomes, and confirm statistical strength with this nonparametric approach.
Monday, February 4, 2019
Yesterday's The Patriot-News (Harrisburg) featured a front-page article by David Wenner entitled "Is the deck stacked against patients?". In 2002, during the middle of an alleged crisis in malpractice, the legislature passed a law that, among other things, added a certificate of merit requirement and restricted venue to the place of the alleged malpractice. The latter was largely aimed at keeping cases out of Philadelphia, where juries tend to be more liberal on both liability and damages. The Pennsylvania Supreme Court adopted the venue restriction into the rules of civil procedure, fixing a constitutional problem with the legislation. Since the reforms, the number of cases filed in Pennsylvania has been cut nearly in half. A committee of the Supreme Court is now considering eliminating the rule against venue shopping. The article contains prominent voices on both sides of the issue debating the merits.
Wednesday, January 16, 2019
I have been fortunate to have a series of very talented research assistants over the years. One of my current RAs, Dani Wachtel, and I wrote a short piece for Insurance Journal on the Kentucky Supreme Court striking down med mal review panels as unconstitutional.
Friday, January 11, 2019
Sen. Ralph Alvarado has filed a bill to amend Kentucky's constitution to allow the General Assembly to create statutes of limitation for civil actions involving death, personal injury and property damage and to set limits on non-economic damages in civil cases. Last year a similar bill failed to get out of committee. Sen. Alvarado was the sponsor of the medical malpractice panels law that was enacted in 2017 and struck down by the Kentucky Supreme Court in November. Louisville Business First has the story.
Friday, December 28, 2018
The shutdown is getting the most attention right now, but one of the bills that died when the Senate adjourned last week was the SELF DRIVE Act, designed to regulate and create federal safety standards for self-driving cars. Politico had an article summarizing the fate of various bills, and it said this about the SELF DRIVE Act:
— Self-driving, but not self-passing: Senators conceded earlier this week that the SELF DRIVE Act, H.R. 3388 (115), would not be passed in 2018. House Energy and Commerce Chairman Greg Walden (R-Ore.) called it "extremely disappointing that the Senate will not be able to finish its work on self-driving car legislation this year.” The proposal would regulate and create federal safety standards for self-driving cars.
Wednesday, December 19, 2018
The Supreme Court's preemption cases shield generic pharmaceutical manufacturers from liability. In 2013, the FDA proposed a new federal rule that would have allowed liability against manufacturers of generic drugs. Last week, the FDA withdrew that proposal. The Wall Street Journal has details.
Tuesday, December 18, 2018
Earlier this month, the Supreme Court of Ohio ruled that the statutory cap on non-economic damages applies to compensatory damages awarded in defamation cases. At Legally Speaking Ohio, Marianna Bettman has analysis.
Monday, December 17, 2018
At mondaq, W. McDonald Plosser has a 50-state survey of damage caps and the collateral source rule.
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.