Wednesday, October 29, 2014

Another article on medical malpractice reform

Two days ago, I poste a link to an article by Joanne Doroshow, of the Center for Justice and Democracy at New York Law School, on medial malpractice tort reform.   Here is another one called Malpractice 'Caps' Treat Women, Children and Seniors as Second-Class Citizens.

Max Kennerly on study on defensive medicine

A few days ago, I wrote about a recent study that debunks the myth that we need tort reform because otherwise "defensive medicine" forces health care costs to rise.  Today Max Kennerly of the Litigation and Trial blog has published a short comment on the issue.

Kenneth Feinberg discusses compensating for tragedy and loss

Kenneth Feinberg, the current administrator of the compensation fund for those injured by defective GM cars and former administrator of the fund created to compensate the victims of the BP Deep Water Horizon oil spill, comments on the issues related to compensation in mass tort cases here.  Feinberg has proven to be a controversial figure.  While working in the BP litigation, he found himself in the middle of a controversy over whether he had a conflict (favoring BP).  See hereherehere and here.  However, he has also been praised for his approach to compensation. If nothing else, his work will be influential on how courts handle mass disaster cases in the future.  For more on the issues related to both the BP and GM settlement funds go here and scroll down.

Thanks to the TortsProf blog for the link.

Monday, October 27, 2014

Comment on the effects of "tort reform" on medical care

Joanne Doroshow, of the Center for Justice and Democracy at New York Law School, has published a short comment called How Tort 'Reform' Ruins Health Care for Everyone in which she discusses recent research on the effect of tort reform.  The article is short but has plenty of links to more information and it is well worth reading.  You can find it here.    Among other interesting findings, the new studies conclude that patient safety generally deteriorates after caps are enacted and that caps on damages actually increase health care costs.

Number of wrongful death claims caused by defective GM cars is likely to continue to rise

The number of confirmed wrongful death claims associated with accidents that may have been caused by recalled ignition switches used in General Motors (GM) vehicles has risen to 30, but officials indicate that the number is expected to continue to rise as the manufacturer processes claims over the next year. Reuters has a story here.  AboutLawsuits has a story here.

60 minutes segment on genetic testing

Last night the TV show 60 minutes had a segment on issues related to genetic testing.  It did not discuss torts, but it did touch a little bit on some of the bio-ethics issues I mentioned in my comments on the sperm donor case.  If you can't see the video below, you can go to here to watch it, to watch other videos or to read a transcript of the show.

UPDATE:  I tried embedding the video several times and it is not working properly, but if you click on the little square icon on the lower right hand side, the video will switch to full screen and you can see it there, or, like I said, you can go to the 60 minutes website.  Sorry about that!  Also, the video includes at least one commercial.  If I could edit it out, I would but I can't.. so sorry about that too...

Saturday, October 25, 2014

Comment on California Proposition 46

In a few weeks, California voters will vote on "Proposition 46" an initiative to, among other things, raise the cap on pain and suffering damages, which has not been increased since it was adopted in 1975.  Go here and here for previous posts on the issue and here for my comment on the information (or misinformation) campaigns for and against the proposal.

Meanwhile, the TortsProf blog contacted both pro- and anti-Prop 46 spokespeople and asked them to write posts supporting their respective positions. Eric Andrist, a leading voice in the pro-Prop 46 movement, posted his comment here. The California Medical Association has not replied to the invitation to prepare a post.

Wednesday, October 22, 2014

Recent developments in three states may challenge the notion that there is "no duty to help"

As you probably know, as a general rule, the Common Law does not recognize a duty to go help someone in need. There are a few exceptions to this rule, and the general rule may be affected by statutes, but it remains the general rule.

Interestingly, this month I saw a few stories that in one way or another raise concerns regarding the duty to help issue.

For example, the "a public defender" blog had a couple of comments (here and here) on a recently adopted statute in Connecticut mandating disclosure of possible child abuse. By creating such a duty, which applies to members of the clergy and appears to apply to some lawyers, I wonder if the legislature has opened the door to possible civil liability in cases where people do not disclose. This is an issue discussed in Perry v. SN and SN, 973 SW2d 301 (Tex 1998), which you may have read in law school.

Given that the statute apparently applies to some lawyers, it also raises the issue of a conflict between the lawyer's duty of confidentiality and the duty imposed by the statute. Assume a client tells the lawyer about the abuse as part of the representation. Does the statute create a duty to disclose (akin to the duty recognized in Tarasoff v. Regents of the Univ of California) regardless of the professional duty to maintain the information confidential? I only know of one case that discusses the issue in the context of the practice of law (Hawkins v. King Cty. Dept. of Rehabilitative Services, 602 P.2d 361 (Wash. Ct. App. 1979)) and it only holds that given the facts of the case the duty did not apply.

Meanwhile, in response to the slayings at the University of California at Santa Barbara in May, California Gov. Jerry Brown signed a new law to allow family members to petition for the temporary seizure of guns from relatives who are a threat to themselves or others. Supporters say the measure could help prevent suicides as well as mass shootings. More on the story here.

The law does not impose a duty on anyone to take action, but I wonder if, again, the law will open the door to more possible arguments that there should be a duty to act. What if a person does not take the chance to ask a court to take someone's guns away and that person then uses the guns to attack a group of students at a school. Will the victims be able to sue everyone to whom the new law applies for not taking action?

Finally, in Illinois voters will have a chance to vote on a proposed amendment to the state constitution that seems to raise similar issues although, in the end, the amendment also makes it irrelevant.

The amendment recognizes a "victims bill of rights" which states, among other things that crime victims have the right "to be reasonably protected from the accused throughout the criminal justice process." Although it does not state who shall do the protecting, it seems obvious the right is one that can be raised against the state, thus making the state responsible. In other words, if approved, the state seems to be adopting a duty to protect crime victims from criminal defendants during the criminal proceedings. That means the state now would have a duty to help.

The problem is that in another section, the amendment states that "nothing in the section or any law enacted under this section creates a cause of action ... for compensation ... or damages against the State, a political subdivision of the State, an officer, employee, or agent of the State or of any political subdivision of the State, or an officer or employee of the court."

In other words, the proposal states that the State has a duty to help and that the victim has a right to demand that help, but the victim has no right to sue for compensation if he or she suffers an injury for the violation of that right.

Wall Street Journal mistakenly reports that Georgia Court held parents can be liable for conduct of their children

Last week, the Wall Street Journal law blog published a story titled "Parents May Be Liable for What Their Kids Post on Facebook, Court Rules" in which it stated "Parents can be held liable for what their kids post on Facebook, a Georgia appellate court ruled in a decision that lawyers said marked a legal precedent on the issue of parental responsibility over their children’s online activity."  The story was then picked up and repeated by Smithsonian, and The Legal Satyricon (which criticizes the decision as incorrect because it failed to consider a certain federal statute).

The case is interesting but the problem is that the headline of the reported story is wrong.  The court did not hold that parents can be held liable for their children's conduct; the court held the parents can only be held liable for their own conduct.  That is a big difference.

As the court explains in its opinion, "liability for the tort of a minor child is not imputed to the child’s parents merely on the basis of the parent-child relationship." In other words, there is no vicarious liability for the tort of a minor. However, as the court continues, "[p]arents may be held directly liable . . . for their own negligence in failing to supervise or control their child with regard to conduct which poses an unreasonable risk of harming others," a duty which extends to those plaintiffs whose harm is foreseeable.

In the case, called Boston v. Athearn which is available here. a boy (Dustin, age 13) and a girl agreed to have some fun at the plaintiff's expense.  Using some information obtained by the girl, Dustin created a fake Facebook page in the plaintiff's name where they posted racist, sexually graphic, offensive and false information including posts that suggested the plaintiff was a homosexual and a racist, that she took illegal drugs and that she was on medication for mental health disorders.

About six days after the Facebook page was created, the principal of the school had determined who had done it and imposed discipline.  As a result, the culprit's parents were informed in detail of the children's conduct.  Dustin's parents claimed they disciplined him, but made no effort to access the Facebook page or to delete it.  The page remained available for almost a year.

In response to a motion for summary judgment filed by Dustin's parents, the plaintiffs argued that there were questions of material fact regarding whether the defendants were negligent in failing to compel Dustin to remove the Facebook page once they were notified of its existence and the court agreed.

Again, let's reiterate that the issue here is not whether a parent should be held liable for the conduct of a child.  The issue is whether the court should impose liability for the parent's own conduct.  More to the point, whether the court should impose a duty on the parents to do something more than what they did.

Because this is not a case where the court is trying to impose a particular parenting style nor passing value judgment on parental decisions on how to raise a child, the case is simple.  The parents have a duty to act like a reasonable prudent person under the circumstances and, given the facts, reasonable people can disagree as to whether they did.  I am not even sure we need more facts to decide the question.   Let it go to the jury and let them decide.

Monday, October 20, 2014

BP's cert petition to undo settlement agreement has been denied

BP's petition for cert was denied today. You can find the order here You can find the cert filings at SCOTUSBLOG The Mass Tort litigation blog has more details here.

Saturday, October 18, 2014

Update on the BP Deep Water Horizon litigation

About a month and a half ago I reported that BP asked a federal judge to remove Patrick Juneau as administrator of damage claims from its 2010 oil spill, saying he failed to disclose a major conflict of interest.  Juneau has now responded, accusing BP, among other things, of not being candid and of trying to mislead the court.  Here is the story and a video.  In addition, here is a comment on BP's appeal challenging the settlement it originally agreed to.

Thanks to Torts Today for the links and information.

Wednesday, October 15, 2014

Video quiz: Battery on the football field?

Players in a contact sport consent to, or assume the risks of, the inherent risks of the game and its customs.  Intentional conduct outside the rules and customs of the game, on the other hand, may give rise to a valid claim.  Here is a clip from a recent NFL game.  The play has ended; the whistles have blown it "dead."  Watch what the St. Louis defender (Ogletree) does with the ball.  Battery?  (If you can't see the video below go here.)

Study published in the New England Journal of Medicine shows tort reform had no effect on "defensive medicine"

As I am sure you have heard, "defensive medicine" is a term used to describe unnecessary or wasteful medical procedures that according to legend are performed because of fear of possible liability.  Eliminating this type of wasteful practices, which, as the argument goes, increases the cost of health care, is often used as a reason to support med-mal/tort reform.

A new study published in the New England Journal of Medicine, however, concludes introducing med-mal reform had little effect on the practice of medicine or the cost of the services in emergency rooms.

UPDATE 10/17/14:  More on the story at Forbes and The Washington Post.

FDA: Chantix warnings about suicide thoughts and other side effects should stay

Earlier this month, I reported that Pfizer was seeking to have the warnings on possible suicidal thoughts removed from its drug Chantix even though the drug has been reported to be linked to more suicidal thoughts cases than any other drug.

Now, as the debate over the need for psychiatric warnings for Chantix continues, FDA staff reviewers  have indicated that the drug should continue to carry a black box warning to alert users about the risk of suicidal thoughts, violent behavior and other unusual actions while taking the medications.  Go to AboutLawsuits for the full story.

UPDATE 10/17/14:  AboutLawsuits has a follow up here.