Saturday, April 15, 2017

More bad news for victims of medical malpratice; more tort reform bills, this time in Iowa -- UPDATED

For almost two months now all my posts have been about medical malpractice reform bills.  Today's update comes from Iowa where the state Senate has passed a tort reform bill (Senate File 465) which  includes provisions capping awards for non-economic damages at $250,000, requiring a "certificate of merit" to screen out litigation and establishing standards for expert witnesses.  There is more on the story here.

Apparently, the reforms were based on the discredited argument that they are needed to either keep doctors from leaving the jurisdiction or to attract doctors to the jurisdiction, an argument that is not supported by available empirical evidence.   Also, the provision regarding "certificates of merit," as usual, was supported by the argument that it is a good way to screen out frivolous litigation.  And, again, this argument is misleading because even though it may have that effect, the real goal of the provision is to make it more difficult for plaintiffs to be able to bring non-frivolous litigation.  There are plenty of other mechanisms in place already that prevent frivolous litigation.

UPDATE (4-15-17):  The TortsProf blog is reporting that the Iowa House has now passed the med mal reform bill, but fortunately, it was amended so it is not as bad as originally proposed.  The amendment eliminated the "hard cap" and created an exception that would allow juries to make awards of more than $250,000 in cases of “substantial or permanent loss or impairment of bodily functions and substantial disfigurement.”  Because of the this amendment, the House bill and the Senate bill will have to be reconciled.

Tuesday, April 4, 2017

US Supreme Court agrees to hear case on the Alien Tort Statute to decide whether Corporations can be liable

It has been more than two years since I have posted anything related to the Alien Tort Statute because, well, with the 2013 US Supreme Court decision in Kiobel v Royal Dutch Petroleum the court pretty much made the statute irrelevant.  That case raised the issue of whether the statute could be used to support claims against corporations. However, in a surprising move, the Court asked the parties to brief a different issue (extraterritoriality), and eventually decided the case based only on that issue.  For all the background stories, go to the Alien Tort Statute section of the blog here.

In 2014, the Court of Appeals for the 9th Circuit decided one case on the ATS holding that  holding that corporations, and not just state actors, can face liability for violations of universal norms under the Alien Tort Statute.  At the time, I thought that case would open the door for a renewed discussion of the issue, but the case did not reach the Supreme Court.

But now the wait is apparently over.  Just a few days ago, the U.S. Supreme Court agreed to hear a case in which the issue is precisely whether corporations can be liable under the Alien Tort Statute.  Stay tuned!

For more information and some links on the case (Jesner v. Arab Bank) go here.  For up to date coverage and access to all the documents related to the case go to the SCotUS blog here.

Thursday, March 23, 2017

Update on Congress' work on med mal tort reform

Earlier this month, I wrote a note about efforts in Congress to pass tort reform bills that could have seriously negative/damaging effects on the ability of victims of medical malpractice to recover for injuries.  Today, the PopTort has an update here. The article is called "Congress Moving to Protect Doctors Who Abuse and Assault Children."  It sounds like an exaggeration, but if you read the article you'll see why it is not. 

Saturday, March 11, 2017

Accreditation Council for Graduate Medical Education will allow interns to work up to 28 hours without a break

At a time when it is being reported that medical errors is now the third leading cause of deaths in the US, the maximum workday for first-year medical residents just got substantially longer. The group that sets rules for training doctors announced Friday it will be scrapping the 16-hour cap on shifts worked by doctors who have just graduated from medical school.  As of July 1, the Accreditation Council for Graduate Medical Education will allow these first-year residents, also known as interns, to work 24 hours without a break — and sometimes as long as 28, if a particular transition between doctors demands it.  NPR has more on the story here.

The Associated Press notes the American Medical Student Association and the Committee of Interns and Residents oppose the change.  Also, Dr. Michael Carome, director of Public Citizen's Health Research Group has stated that "[s]tudy after study shows that sleep-deprived resident physicians are a danger to themselves, their patients and the public," and that "[i]t's disheartening to see the ACGME cave to pressure from organized medicine and let their misguided wishes trump public health."

Sunday, March 5, 2017

Tort reform efforts under way in Congress

Now that Republicans control the Senate, the House and the White House, it is not surprising to hear about new efforts to interfere with the rights of injured plaintiffs in the name of tort reform.  Recently, the House Judiciary Committee approved legislation capping damages in medical malpractice cases.  The vote was 18-17.  The federal legislation would cover individuals who are insured under Medicare, Medicaid, veterans or military health plans, and the Affordable Care Act, and could also impact people covered under COBRA or health savings plans.

Given that medical errors is now the third leading cause of deaths in the US, this is very important stuff.

The bill is based on the false premises and allegations that have been proven wrong time and time again, but that continue to be used in support of attempts to make it more difficult for injured victims to be able to recover for their injuries.  Some of these myths include the allegation that litigation costs result in more expensive services and higher insurance costs.  For a lot of information on these types of allegations and the studies that refute them you can go to the medical malpractice and tort reform sections of this blog and scroll down.  For a short critique of the house bill go here.

For more information about this and other attempts to push “tort reform” bills through the Republican-led Congress which seek to limit the rights of victims  while protecting large corporations and insurance companies go to  AboutLawsuits.

Update on tort reform in Arkansas -- UPDATED

Feb. 20, 2017:   About 10 days ago, I reported on the tort reform efforts in Arkansas (see below).  Here is an update, as reported in the TortsProf blog: The Arkansas Senate voted 21-10 to send a proposed constitutional amendment involving damage caps to the House for further consideration.  Given that 53 of the 100 members of the House are co-sponsors, it has a good chance of passing.  If the House approves the proposal, it will be on the ballot in the 2018 general election.  Arkansas Online has the story; more coverage here.

UPDATE (3/5/17):  The TortsProf blog has updates here and here.  The house bill doubled the amount of the proposed cap on non economic damages to $500,000.  That's the good news.  The bad news is that a cap is still a cap.  The new bill must now pass both houses.

Friday, February 10, 2017

Tort Reform efforts in Arkansas; bad news for victims

As reported in the TortsProf blog:

You may recall that last fall the Arkansas Supreme Court struck down a tort reform ballot initiative.  It's back.  The Arkansas Times reports:
A proposed amendment to the Arkansas Constitution filed last week in the Senate seeks to limit the amounts that can be awarded to claimants in civil actions, such as medical malpractice lawsuits. If Senate Joint Resolution 8 is approved by the General Assembly — and with a long list of co-sponsors, it seems likely to pass — it would appear before voters on the 2018 ballot. Sen. Missy Irvin (R-Mountain View) is the lead sponsor.
Like the so-called "tort reform" measure on the 2016 ballot (which was disqualified by the state Supreme Court not long before the election), SJR 8 would place a cap of $250,000 on noneconomic damages, meaning compensation for hard-to-quantify personal losses such as pain and suffering. The proposed amendment also places a cap on punitive damages, though that ceiling is more flexible. But SJR 8 also would give the legislature control over the rules of pleading, practice and procedure in the judicial branch, thus taking power away from Arkansas courts and giving it to the General Assembly.

Thursday, February 9, 2017

Med Mal quiz


True or False:

Medical malpractice cases represent less than 5 percent of all state tort cases.

Medical malpractice insurance claims have dropped by half since 2003, and doctors are paying less for malpractice insurance today than they did in 2001, even without adjusting for inflation.

Medical malpractice insurance industry profits must be suffering!

Medical malpractice lawsuits put physicians at a significant risk of insolvency or personal bankruptcy.

When a state caps damages, health care costs related to physician spending (Medicare Part B) drops.

Doctors in high-risk specialties like neurosurgical spine surgery, who practice in states that have limited patients’ rights to sue, order significantly fewer tests and procedures because they are less likely to be sued (i.e., less “defensive medicine).

For the answers to these and other important and interesting questions go to The PopTort.