Sunday, October 16, 2016

What are "non-economic damages" and why do tort reformers want to limit victims' ability to recover for them?

A few days ago I reported that the Supreme Court of Arkansas eliminated a ballot initiative that would have drastically capped compensation for “non-economic damages” to victims of medical malpractice and nursing home abuse.  (In fact, it has been reported that the initiative was the brainchild of the nursing home industry.)

In response to this news, the PopTort has posted a good short comment on the nature of non-economic damages and the effects of placing "caps" on them.  You should read it here.

Friday, October 14, 2016

Judge dismisses lawsuit against gun maker related to shooting at Sandy Hook Elementary

Almost two years ago, I reported that the families of nine of the 26 people killed two years ago at the Sandy Hook Elementary School in Connecticut filed a lawsuit against the manufacturer, distributor and seller of the Bushmaster AR-15 rifle used in the shooting. See here and here.

Today, however, several sources are reporting that the case has been dismissed.  NPR has more details on the story here.  Also, Politico has the story here.

Thursday, October 13, 2016

Movement afoot to prevent a vote on Arkansas referendum that would cap attorney fees and damages in medical cases -- UPDATED

September 3, 2016:   The ABA Journal online is reporting that two lawsuits have been filed this week to block an Arkansas ballot referendum that would cap non-economic damages and attorney fees in medical injury cases.  The state’s Bar Association also opposes the proposed measure which would require legislators to create a cap for non-economic damages in medical lawsuits against health-care providers of at least $250,000, and would limit contingency fees to one-third of any recovery after all costs of the litigation are deducted.

UPDATE (Oct. 13, 2016):  The TortsProf blog is reporting today that the Arkansas Supreme Court has just killed the ballot initiative.  TortsProf has a link to more information. 

Saturday, October 1, 2016

Update on the debate regarding possible liability for injuries caused by autonomous cars

I have been following the debate regarding the development of so called "self driving cars" or "autonomous cars and the debate on the legal issues that will arise regarding liability for injuries caused by them.  My previous posts (with lots of links to more information) are here, here, here and here.

One of the more interesting questions that is being debated is whether a car should be programmed to kill its occupants if it means saving the lives of other people or whether government regulations should focus on a utilitarian model where the vehicle is programmed to prioritize the good of the overall public above the individual.

This philosophical question - usually referred to as the trolley car problem - has been the subject of discussion in philosophy classes and books for a long time.  (You can watch such a class at Harvard here).

Interestingly, however, Techdirt is reporting that according to some engineers, the trolley problem should not be an issue when it comes to autonomous cars.  Or, at least, not yet.  For now, engineers are concerned with more basic problems.  As the article concludes:
[The trolley questions is] still a question that needs asking, but with no obvious solution on the horizon, engineers appear to be focused on notably more mundane problems. For example one study suggests that while self-driving cars do get into twice the number of accidents of manually controlled vehicles, those accidents usually occur because the automated car was too careful -- and didn't bend the rules a little like a normal driver would (rear ended for being too cautious at a right on red, for example). As such, the current problem du jour isn't some fantastical scenario involving an on-board AI killing you to save a busload of crying toddlers, but how to get self-driving cars to drive more like the inconsistent, sometimes downright goofy, and error-prone human beings they hope to someday replace. 
You can read the article (and the comments posted below it) here

Friday, September 16, 2016

Ohio Supreme Court clarifies the meaning of the state's Good Samaritan statute

About two weeks ago, the Ohio Supreme Court issued an important opinion interpreting the state’s “Good Samaritan statute,” a phrase that, as I am sure you know, refers to statutes to provide immunity to people who cause injuries while trying to help others under circumstances where there is no affirmative duty to do so.  The case is called Carter v. Reese and you can read the opinion here.

Although most, if not all, states have enacted Good Samaritan statutes, their terms vary considerably from state to state. In some, they apply only to certain members of the medical and other related professions. This is so because while the goal of the statute is to encourage people who don’t have a duty to help to try to help, the public policy is to encourage only those who know what they are doing when it comes to providing emergency medical help. In other states, on the other hand, the statutes are more general and apply to everyone. In those states it has been decided that it is better to encourage people to help even if they are not trained to do so. Two other issues about which states differ are the definition of an “emergency” and the definition of the type of “care” involve.

Asked to interpret the statute in Ohio, which states that “No person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency. . . , for acts performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct,” the Court explained,
This case presents our court with two separate questions involving the legislative intent behind Ohio’s Good Samaritan statute. First, what did the General Assembly intend by using the phrase “no person shall be liable in civil damages”—did it intend to include only health care professionals who administer emergency care or treatment at the scene of an emergency, or, more broadly, to include any person who administers emergency care or treatment at the scene of an emergency? 

Second, what did the General Assembly intend by using the phrase “administering emergency care”—did it intend to limit emergency care to only the administration of medical care, or, did it intend to include all forms of care administered at the scene of an emergency?
The Court’s conclusion:
Ohio’s  Good  Samaritan  statute  applies  to  any  person  who administers emergency care or treatment at the scene of an emergency including but not limited to health care professionals. Moreover, the phrase “administering emergency care” in the statute is not limited to medical acts and includes rendering medical and any other form of assistance to the safety and well-being of another when the result of an unforeseen combination of circumstances calls for immediate action.  
Two Justices (O’Connor and Lanzinger) agreed with the majority’s holding that the statute applies to any person, but dissented as to the definition of “emergency” as “an unforeseen combination of circumstances.” They argued that the definition of an “emergency” should be “sudden events or circumstances that require urgent or immediate attention or action,” regardless of whether the events were foreseeable.

Sunday, August 28, 2016

If you like this blog, consider voting for it...

If you like this blog, please consider voting for it in the 2016 Best Legal Blog Contest by going here.

Friday, August 12, 2016

Podcast: Legal issues related to Pokemon Go

Pokemon Go, the latest craze that has millions of people walking around using their phones to find and "capture" pocket monsters, has generated much attention this summer.  And, as it happens frequently, the use of the app has raised a number of legal issues.  Some of the issues are:  possible tort liability for injuries caused by, or to, people who are playing the game, issues related to trespass into private property, and issues related to nuisance.

So, to help you sort out some of these issues, Lawyer2Lawyer has posted a podcast on the legal issues related to Pokemon Go.  You can listen to it by clicking on the play button below, or if you can't see the button, by going here.