Tuesday, July 2, 2019
Monday, July 1, 2019
Nadia Sawicki has posted to SSRN Defining the Known Risk: Context-Sensitivity in Tort Law Defenses. The abstract provides:
The law of negligence is designed to apply uniformly across contexts. Whether dealing with a car accident, medical malpractice, or a slip-and-fall case, tort law consistently asks whether a defendant owed a duty of care to the plaintiff and whether he exercised reasonable care in fulfilling that duty. Tort law defenses, too, are generally understood to be context-neutral. The doctrines of comparative negligence and assumption of risk should not vary depending on the precise circumstances surrounding an injury.
And yet, there is a peculiar inconsistency in how some defenses are applied in cases of medical malpractice as compared to cases outside the health care context. Specifically, reliance on secondary implied assumption of risk seems to require greater knowledge on the part of the plaintiff in malpractice cases than in other contexts. In recreational sport cases, for example, a plaintiff will be denied recovery if he voluntarily encountered a known risk of physical injury – regardless of whether he understood that the risk was the result of a defendant’s negligence. In contrast, in medical malpractice cases, most people’s intuition is that the plaintiff’s recovery should be denied or limited only if he had knowledge of the risk of physical injury as well as the fact that this risk was created by a negligent defendant. There is no clear doctrinal explanation for this distinction.
This article describes this conundrum and poses the question of whether and when such context-specific adjustments might be doctrinally justified. Ultimately, the most likely explanation is grounded in medical exceptionalist claims that the unique nature of health care justifies a more flexible and nuanced application of legal doctrine. While this conclusion may be unsatisfying to some, it presents a valuable opportunity to revisit debates about the supposed context-neutrality of tort law.
Friday, June 28, 2019
Doan v. Banner Health, Inc.,2019 WL 2312537
Holding: A bystander claim for negligent infliction of emotional distress (NIED) does not depend on the plaintiff’s contemporaneous realization that the injuries she observed were negligently caused.
A mother, who was in a hospital waiting room when her daughter died, brought a NIED claim against medical providers for the distress she suffered upon seeing her daughter’s body. The trial court granted summary judgment in favor of the medical providers, finding the NIED claim failed because the mother offered no evidence that she contemporaneously understood that her daughter’s death was due to alleged negligence on the part of caregivers. The Alaska Supreme Court reversed this decision, holding as a matter of law that a viable bystander NIED claim does not require a plaintiff to contemporaneously comprehend her injuries were negligently caused. The court reasoned that there is no requirement in other negligence cases that a plaintiff must contemporaneously comprehend whether an injury is negligently caused, and that NIED claims should not be treated differently. The court added that to “require that an emotionally distressed plaintiff also recognize negligence as it is occurring is asking too much.”
(From Shook, Hardy & Bacon's State Supreme Court Watch)
Thursday, June 27, 2019
KY: Pre-Injury Waivers by For-Profit Companies Signed by a Parent Are Not Enforceable Against a Minor Child
The Kentucky Supreme Court has unanimously ruled that for-profit companies can be liable for injuries to minor children even if their parents signed a pre-injury waiver. The ruling came in a case in which an 11-year-old girl broke her ankle jumping on a trampoline at the House of Boom in Louisville, KY in 2015. The mother had checked a box saying that she, on behalf of her daughter, would "forever discharge and agree not to sue" the trampoline park. The court noted that for the most part, under Kentucky law, "a parent has no authority to enter into contracts on a child's behalf." The court also stated that in 11 of 12 jurisdictions in the U.S., waivers between parents and for-profit entities have been found unenforceable. WDRB.com has the story.
I found this story by reading State Supreme Court Watch, a bi-weekly email available from Shook, Hardy & Bacon. Written by Phil Goldberg & Chris Appel, the email includes sections on Cases Granted Review and Cases Decided. I highly recommend signing up. To do so, email Phil Goldberg at email@example.com.
Wednesday, June 26, 2019
Grace Giesel has posted to SSRN A New Look at Contract Mistake Doctrine and Personal Injury Releases. The abstract provides:
One might expect a court to look very skeptically when a party to a personal injury release asks a court to set aside the release. But many courts have reacted atypically when injured parties who have settled their claims have sought to have those releases set aside on the basis of a lack of understanding or knowledge about the injury. Absent facts supporting a claim of fraud or duress, injured parties have turned to the mistake doctrine for relief.
Tuesday, June 25, 2019
Today's The Patriot News (Harrisburg, PA) has a story by Bennett Leckrone about the safety of carnival rides. Regulation of fixed sites (amusement parks) and mobile rides (carnivals) is divided. The CPSC has authority to regulate the latter, but not the former. If there is to be regulation of fixed rides, it must come from the states. Most states have adopted regulations for fixed rides. The quality of regulation, however, varies significantly. Pennsylvania's regulations, the responsibility of the Department of Agriculture, are relatively strong. The nightmare for carnival rides is something like the fireball disaster at the Ohio State Fair in 2017.
Thursday, June 20, 2019
Two days ago, the Pennsylvania Supreme Court ruled that evidence of risks and complications associated with surgical procedures can be admissible in medical malpractice cases. The concern was that jurors would mistake such evidence for informed consent, evidence of which has been held inadmissible in cases in which plaintiffs are not alleging an informed consent violation. Whether evidence of risks and complications is relevant is a case-by-case inquiry:
[Justice Debra] Todd said, “risks and complications evidence may assist the jury in determining whether the harm suffered was more or less likely to be the result of negligence. Therefore, it may aid the jury in determining both the standard of care and whether the physician’s conduct deviated from the standard of care. We recognized as much in Brady.”
The Legal Intelligencer has the story.
Wednesday, June 19, 2019
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:
- 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;
- 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;
- 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;
- 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;
- Making inadmissible at trial medical records that contain reference to any communications by a medical provider that are protected by the Apology Statute;
- 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;
- 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;
- 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
- 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.
Monday, June 17, 2019
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.
Friday, June 14, 2019
Alan Calnan has posted to SSRN The Nature of Reasonableness. The abstract provides:
Though the notion of reasonableness dominates Anglo-American law, its meaning has been clouded by traditional conceptual analysis. This Essay argues that greater clarity can be gained by taking a scientific approach to the subject, exposing the natural foundations beneath the concept’s varied interpretations.
Wednesday, June 12, 2019
Vaclav Janecek has posted to SSRN Vicarious Liability of Juristic Persons: A Historical, Comparative and Philosophical Study. The abstract provides:
This chapter advances two claims regarding vicarious liability. First, that every legal system must be capable of theoretically devising the idea of vicarious liability (as opposed to direct liability and responsibility). Second, that juristic persons and other artificial legal entities may be liable only vicariously for wrongs committed by other persons, who ultimately must be human beings. To cast new light on the concept of vicarious liability, this chapter analyses the changing relationship of the terms liability (in Czech: “ručení”) and responsibility (in Czech: “odpovědnost”) in the historical development of Czech law from the beginning of the 19th century until mid-20th century. This development was marked not only by radical changes in the posited law and by the problematic connections of the Czech legal terminology with the German one (especially with the terms Haftung and Verantwortung), but especially by the normative theory of law, internationally known especially thanks to Hans Kelsen’s writings. A peculiarity of the Czech tradition in the normative theory of law (analysed in this chapter primarily through the pioneering work of František Weyr, whose publications are mostly unknown in English-speaking countries) is that it has arrived at the concept of vicarious liability by analysing the abstract nature of legal duties, i.e. regardless of any positive legal system. This happened already in the 1930s, although the Czech normative theory of law did not take into account any developments in the common law systems with which the concept of “vicarious liability” is typically associated. This chapter presents and develops the “normativist” theory of vicarious liability to arrive at the two main claims as set out above.
Tuesday, June 11, 2019
Monday, June 10, 2019
George Maliha has posted to SSRN The Distortive Effect of the National Practitioner Data Bank on Medical Malpractice Litigation and Settlement. The abstract provides:
Congress created the National Practitioner Data Bank ("NPDB") in 1986 to address a concern that medical liability cases were increasing throughout the nation. In order to prevent physicians from moving from state to state in order to escape a poor outcome, the NPDB was supposed to provide a central clearinghouse of information for every physician in the country-regardless of where they practiced. However, the NPDB distorts medical malpractice litigation and settlement-harming defendant-physicians, plaintiff-patients, and insurers. The NPDB's brooding shadow over medical malpractice has led many litigants and commentators to term it a "blacklist." Part II explores whether this term is appropriate by describing the NPDB in the context of insurer-physician relations. This discussion will connect the well-described model of insurer-insured relations to the prescient concerns raised about the NPDB's potential distortive effect on litigation and settlement as the data bank was being enacted in the late 1980s. Part III will explore mechanisms to alter reports-and place a physician's "side" into the record kept by the NPDB. Attempts to alter reports have triggered litigation against reporting entities and the NPDB itself, and although they have largely failed, these suits illustrate the unique problems that the NPDB causes physicians. In Part IV, these unsuccessful suits will be contrasted against a body of law surrounding the accuracy of another putative "blacklist"-credit scores. Part V will begin to sketch out some basic policy recommendations.
Friday, June 7, 2019
Nathan Cortez has posted to SSRN A Black Box for Patient Safety?. The abstract provides:
Technology now makes it possible to record surgical procedures with striking granularity. And new methods of artificial intelligence (A.I.) and machine learning allow data from surgeries to be used to identify and predict errors. These technologies are now being deployed, on a research basis, in hospitals around the world, including in U.S. hospitals. This Article evaluates whether such recordings – and whether subsequent software analyses of such recordings – are discoverable and admissible in U.S. courts in medical malpractice actions. I then argue for reformulating traditional "information policy" to accommodate the use of these new technologies without losing sight of patient safety concerns and patient legal rights.
Thursday, June 6, 2019
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.
Wednesday, June 5, 2019
Citing media coverage, Ethicon, a subsidiary of Johnson & Johnson, filed a motion to move consolidated pelvic mesh cases outside of Philadelphia and the five counties surrounding it. In the past few months, several large verdicts have been returned against Ethicon in Philly. Court of Common Pleas Judge Arnold New denied the motion in a one-page order that did not provide reasoning. The Legal Intelligencer has the story.
Tuesday, June 4, 2019
Francesco Paolo Patti has posted to SSRN The European Road to Autonomous Vehicles. The abstract provides:
The present contribution intends to outline a “European regulatory strategy” in order to address technological and legal challenges posed by autonomous vehicles. Starting with a recent communication of the EU Commission, the paper provides a critical analysis of the EU policies on the legal issues of liability related to autonomous vehicles. The ongoing discussions within national jurisdictions demonstrate that a comprehensive plan to tackle the aforementioned problems is missing. The efforts made by national legislators and scholars reveal a patchwork of solutions, whereby everyone tries to find their own way to balance innovation with the need to protect the interested persons. It is however clear that the possible evolutions in the automotive sector will mainly affect three branches of private law: traffic accident liability, product liability and insurance law. It is thus necessary to understand whether private law needs to adapt its paradigms to the technological developments under examination. In this respect, the contribution tries to examine the main problematic aspects of the actual legal framework at the national and European level. It goes then further in presenting, through a two-steps approach, how traffic liability might look like in the future, both in the short and in the longer term. The main findings of the article are that in the near future no dramatic changes are required, but just some minor amendments to adapt the product liability regime to the technological changes; in the more distant future, when users will demand autonomous vehicles through their devices, there will be the need to fashion a new system of traffic liability with compulsory insurance on manufactures, which will become a prerequisite for the vehicle being in motion. Finally, the paper advances some conclusions about the need to foster comparative research on the examined issues.
Friday, May 31, 2019
Aditi Bagchi has posted to SSRN Production Liability. The abstract provides:
It is well known that many consumer goods are produced under dangerous working conditions. Employers that directly supervise the production of these goods evade enforcement. Activists and scholars have argued that we must hold the manufacturers and retailers that purchase goods made in sweatshops accountable. However, there has been little movement toward such accountability.
Responsibility for the conditions under which goods are made — what I call “production liability” — entails assigning responsibility for workers to firms that do not directly employ them. Production liability, therefore, conflicts with deep intuitions about the boundaries of individual responsibility.
This Article offers a moral and economic defense of production liability that is responsive to that challenge. The Article identifies the particular moral responsibility that manufacturers bear as a public form of complicity. It further considers the economic logic of assigning legal liability to such firms and the optimal form that liability should take. This Article makes the case that production liability can update our legal regime for employment in the way that products liability did for consumer law.
Thursday, May 30, 2019
Michael Faure has posted to SSRN An Economic Analysis of Product Liability. The abstract provides:
This chapter in a book on European product liability provides a summary of the economic approach to product liability. The economic theory of product liability based on the Coase Theorem is explained. Next, product liability when damage is suffered by third parties is analyzed. Specific attention is paid to the EU Product Liability Directive and to more recent literature.
Wednesday, May 29, 2019