TortsProf Blog

J&J Loses Daubert Motion in Talc Powder Cases

J&J is facing thousands of suits alleging the talc in its baby powder causes cancer.  A district judge in New Jersey, overseeing the MDL, just handed down a Daubert ruling allowing plaintiffs' experts to testify.  George Conk has details at Otherwise.

Grey & Marchant on Concussions and the Duty of Care

Betsy Grey & Gary Marchant have posted to SSRN Biomarkers, Concussions, and the Duty of Care.  The abstract provides:

The United States is currently facing a “concussion epidemic.”  Concussions, also known as mild traumatic brain injuries, have increased in numerous settings, including transportation accidents, military combat, workplace injuries, domestic abuse, falls, and sports.    The epidemic imposes huge costs on society.   At the same time, our understanding of the injury remains limited. Currently, no proven way exists to physiologically detect concussion risk or damage.   Determining whether a concussion has occurred and been resolved remains largely a clinical diagnosis, relying mostly on self-reported symptoms.   Our knowledge of long term implications of repetitive concussions is also limited.  Science is racing to develop objective measures, or biomarkers, of concussive injury that will tell us who is more likely than not to be susceptible to harm and the extent of harm they may have already suffered. The availability of biomarkers will lead to a deeper understanding of changes to the brain that occur in a concussion and enable us to trace back earlier into what we think of as a diseased state. 

These scientific developments will have enormous implications for questions of risk and loss distribution in society.  In particular, they portend a major reexamination of fundamental tort issues of duty, breach, causation, and fault allocation.  Applying the developing research to the legal landscape will shed light on duties, as well as causal issues,  and may help substantiate latent injury claims.  This article examines those questions in the context of youth sports.  The development of biomarkers will modify responsibilities for mitigating risks, screening and monitoring players, and the ability of the player to assume risks, as well as implicate privacy interests.  In general, the development of these biomarkers will shift responsibilities in the diagnosis and management of concussions, as well as long term injuries, to those most directly involved in the player’s participation.

CCR Interview with Valerie Hans

Corporate Crime Reporter has an interview with Cornell tortsprof Valerie Hans, who discusses the book she and Jennifer Robbennolt are writing, The Psychology of Tort Law.  A sample:

How does looking at tort law from a psychology lens differ from looking at it through an economic lens?

“We look at human beings as they actually are, not as hypothetical economic humans,” Hans told Corporate Crime Reporter in an interview last week. “We are human. We have foibles. We take short cuts in our decision making. We rely on heuristics. We pay more attention to the here and now as opposed to what might happen in the future. We commingle things that should be separate. We are decent decision makers but we are fallible decision makers. Psychology brings to tort law the ways in which actual real world decision making affects the operation of tort law.”

Design of Electronic Health Records and Med Mal

On March 6th, Sharon McQuown addressed the ABA's Health Law Section on emerging issues in health care law and discussed the impact of EHR (electronic health records) on med mal litigation.  Specifically, she discussed how the design of EHR could have helped avoid the misdiagnosis of Ebola in a Texas hospital.  Shortly after the patient died, the hospital instituted EHR changes, including:   

• Adding a new tool in the EHR requiring a "hard stop confirmation" by the physician that he/she had been told that the patient had recently been to a country of concern
• Creating a more robust screen that draws attention to travel with a red box on top and specific identification of countries traveled
• Adding a banner alert screen if a patient is flagged for infectious disease with an alert of steps to be immediately taken
• Changing the discharge process so that discharge papers could no longer be printed early or if anything was unresolved in the document.

Fierce EMR has the story.

Fox & Stein on the Physical/Emotional Harm Distinction

Dov Fox (San Diego) & Alex Stein (Cardozo) have posted to SSRN Dualism and Doctrine.  The abstract provides:

What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are "mental" or "physical." The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.

A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising from his mind, by contrast to his bodily injuries over which he exercises no control. The Fifth Amendment forbids the government from forcing a suspect to reveal self-incriminating thoughts as a purportedly more egregious form of compulsion than is compelling no less incriminating evidence that comes from his body. Criminal law treats intentionality as a function of a defendant’s thoughts altogether separate from the bodily movements that they drive into action.

This Essay critically examines the entrenchment of mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality. It uses novel insights from neuroscience, psychology, and psychiatry to expose dualism as empirically flawed and conceptually bankrupt. We demonstrate how the fiction of dualism distorts the law and why the most plausible reasons for dualism’s persistence cannot save it. We introduce an integrationist model of human action and experience that spells out the conditions under which to uproot dualism’s pernicious influence within our legal system.

--CJR

Recovery from Injuries

Huff Post has a piece on the recovery of Chef Eduardo Garcia from injuries he received in a 2011 hunting accident.  Garcia's left arm was amputated below the elbow and he now has a bionic hand.  John Hochfelder, who blogs at NewYorkInjuryCasesBlog.com, represented Garcia in the tort case.

--CJR

Catastrophic Payments and Medical Malpractice

Terry Baynes of Reuters has written an article about the recent study by a group of physicians at John Hopkins finding that large med mal awards do not contribute significantly to healthcare costs.  The article quotes the lead author of the study, Dr. Marty Makary, and me on the issue.  My comments appear somewhat more skeptical of the med mal tort system than I actually am (through no fault of Ms. Baynes), and that caused me to reflect further on the significance of the study. 

The study (pdf) finds that catastrophic judgments (of over $1M) constitute approximately .05% of national healthcare costs (as measured in 2010).  I believe the inferences and recommendations that Dr. Makary and his colleagues draw from this are generally correct.  First, they determine that catastrophic payouts are not a major driver of health care costs.  Second, at least in interviews, Dr. Makary argues that defensive medicine due to the vague standard of care is a bigger expense than catastrophic payouts.  Third, acknowledging the study does not include costs of defensive medicine, the authors conclude that the financial savings due to malpractice reform may be minimal compared to other drivers of health care costs.  Fourth, at least in interviews, Dr. Makary argues that malpractice reform should not be focused on caps, but on the standard of care. 

First, the study does support, at least modestly, a policy decision against caps.  The argument is that "lopping off" the top of large med mal judgments does not save a lot of money because the amount of large judgments is small.  There are, however, confounding variables.  The study uses $1M or more as the definition of catastrophic payouts.  Most caps are set well below $1M and are caps not on total awards, but on noneconomic loss alone.  I don't see that the study differentiates between economic and noneconomic damages.  This is not a criticism; I don't believe the National Practitioner Data Bank from which the data are drawn makes this distinction.  It does, however, prevent a direct comparison between catastrophic payments and how caps would operate on them.

There are certainly other arguments against caps.  They have a disparate impact on those who are most seriously injured.  The most seriously injured in tort law are already under compensated, receiving a portion of economic loss, while those whose injuries are minor tend to receive several times economic loss.  Moreover, to the extent that caps are aimed not at the top awards but at generally reducing suits, particularly frivolous suits, there is a much more direct and fair tool available:  certificates of merit.  Suits filed without merit is a problem; a 2006 study found that 37% of med mal claims in random samples of closed-claim files at 5 med mal insurance companies were non-meritorious.  (David M. Studdert et al., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 354 New Eng. J. Med. 2024 (2006)).  Pennsylvania has used certificates of merit (and no cap) to positive results.   

Second, I agree that malpractice reform would not dramatically reduce costs in the vast health care system.  Steven Brill's Time piece in March discussed numerous non-malpractice-related problems driving up costs.  That doesn't mean malpractice law should not be reformed, just that it should be reformed for other reasons.

Third, and most significantly, I agree with the conclusion that the standard of care is a big part of the problem with med mal litigation.  What is reasonable under the circumstances can be difficult to determine under banal circumstances.  When applied to the practice of medicine, those complications multiply.  Dr. Makary focuses on this as the cause of defensive medicine, and I'm sure it happens (though measuring it seems challenging).  Moreover, the uncertainty created by the standard leads to delay and transaction costs as the parties genuinely dispute whether a health care provider acted reasonably under the circumstances.  As to delay, the Studdert study referenced earlier found the average med mal claim spanned 5 years from occurrence to closing.  As to transaction costs, the study found only 46 cents of every dollar went to claimants.  Both these figures are consistent with prior studies. 

Thus, the uncertain standard creates 3 problems.  First, not all results are accurate.  The Studdert study found an accuracy rate of determining medical errors (not quite the same as med mal, but close) at between 70 and 75 per cent.  That is a better than random, but not great, particularly in light of the other 2 problems:  delay (5 years on average) and transaction costs (running the system costs 54 cents of every dollar).  This obviously creates potential problems for health care providers:  the possibility of an erroneous adverse judgment, time spent worrying and not focused on health care, and high attorneys' fees/insurance premiums.  To me, it is even worse for claimants.  The Studdert study found 1 in 6 victims of medical error did not recover.  In fact, the study found  nonpayment of claims with merit occurred more frequently than did payment of claims that were not associated with errors or injuries.  Moreover, a 5-year wait can be devastating to a claimant, particularly if there are large medical bills and lost wages involved.

Instead of simply raising the standard to make it more difficult for claimants to recover (recall 1 in 6 already doesn't recover when s/he should), it makes sense to me to provide claimants and health care providers a voluntary way to opt out of the tort system and handle the claim more along insurance lines, paying economic loss and a modest amount for pain and suffering.  New Hampshire's early offers law passed last June was a step in the right direction.  It may not be perfect, but it is an improvement over the current system.  I won't make a long post any longer, but those who are interested in New Hampshire's early offer law can go here, here, and here.   

--CJR 

There is one other facet of the study that is interesting.  The authors find a physician's years in practice and, most significantly, previous paid claim history had no effect on the odds of a catastrophic payout.  Ted Frank mentioned this at Point of Law.  I would not have expected a strong correlation, but the lack of any correlation is surprising to me.

McGarity & Shapiro on Scientific Evidence in Courts and Agencies

Thomas McGarity (Texas) & Sidney Shapiro (Wake Forest) have posted to SSRN Regulatory Science in Rulemaking and Tort:  Unifying the Weight of the Evidence Approach.  The abstract provides:

This article explores how a regulatory agency decides whether scientific evidence is sufficient to meet a risk trigger – the evidentiary burden that is a prerequisite to regulating a toxic substance, and how a court decides whether there is sufficient evidence to allow a jury to consider the issue of general causation in a toxic tort case. We argue both agencies and courts should apply a weight of the evidence approach because there is no meaningful distinction between the regulatory and tort contexts concerning these issues. The courts, however, have tended to use a corpuscular approach in which scientific evidence is evaluated study by study, rather than evaluating the totality of the evidence, which is the methodology of regulatory agencies. Given the nature of available scientific evidence, a corpuscular approach turns Daubert into a policy decision against compensating people who become ill from exposure to toxic chemicals.

--CJR 

The Oxford Introductions to U.S. Law: Torts

John C.P. Goldberg (Harvard) and Ben Zipursky (Fordham) are co-authors of The Oxford Introductions to U.S. Law: Torts:

Torts--personal injury law--is a fundamental yet controversial part of our legal system. The Oxford Introductions to U.S. Law: Torts provides a clear and comprehensive account of what tort law is, how it works, what it stands to accomplish, and why it is now much-disputed. Goldberg and Zipursky--two of the world's most prominent tort scholars--carefully analyze leading judicial decisions and prominent tort-related legislation, and place each event into its proper context. Topics covered include products liability, negligence, medical malpractice, intentional torts, defamation and privacy torts, punitive damages, and tort reform.

Harvard Law School has a video discussion with Professor Goldberg about the book.

- SBS