Tuesday, August 14, 2018

Kentucky Supreme Court hears oral arguments in case challenging med mal panel review procedure

As reported in the TortsProf blog: Last year, Kentucky enacted a law requiring medical malpractice claimants to go through a panel procedure (review by health care professionals) prior to obtaining a jury trial.  The process consumes nine months and the outcome is admissible, but not binding, at the subsequent trial.  Last week, the Kentucky Supreme Court heard arguments over the constitutionality of the law.  Plaintiffs claim the law obstructs the right to a jury trial, in violation of the state constitution.  The Courier Journal has the story.

Friday, August 3, 2018

Comment on documentary "Bleeding Edge" and the medical device industry

Netflix recently released a documentary called "The Bleeding Edge" which details many problems with medical devices today, with emphasis on the suffering of thousands of people due to Bayer’s Essure contraceptive, DePuy’s ASR hip implant, Johnson & Johnson’s transvaginal mesh, and the Da Vinci surgical robot.  Most medical devices aren’t tested with clinical trials. The medical devices which are tested can pass with a minimal showing, and Congress has adopted laws that shut the courthouse doors on injured victims. 

You can read a good comment on the documentary and the issues it raises by Max Kennerly at Litigation and Trial.

Sunday, July 15, 2018

Third Circuit: US is immune from liability for intentional conduct by TSA officers because they are not "law enforcement officers" under the FTCA

As you probably know, the Federal Torts Claims Act retains immunity in a number of very specific circumstances.  Thus, according to the Act, the United States generally enjoys sovereign immunity for intentional torts committed by federal employees.  However, this rule is subject to an exception which waives immunity for a number of intentional torts if they are committed by employees who qualify as “investigative or law enforcement officers.” 28 U.S.C. § 2680(h).  This means that a plaintiff does not have a right to recover from the US Government if a mail carrier commits battery; but may have a right to recover if an FBI agent does.

In a recent case decided by the Third Circuit Court of Appeals, the court decided that TSA agents do not qualify as "law enforcement officers" and, therefore, the Government is protected by immunity.

The case is Pellegrino v. The TSA (available here), and the facts are what you would expect given the topic:  a passenger alleged intentional torts related to the conduct of TSA officers during a "screening" at an airport.  The details of the event are described here.

Be careful when reading comments on the case because some of the discussion is a bit inaccurate.  For example, some of the stories state that the officers are immune.  This is not entirely accurate because the FTCA deals with the immunity of the Federal Government, not of the individuals. 

Simple Justice has a comment here.

Tech Dirt has a comment here.

Tuesday, July 10, 2018

Parents who allowed child to die for religious reasons plead guilty

A number of years ago, I posted a number of comments on the possibility of imposing civil liability on parents whose refusal to provide medical treatment to a child for religious reasons causes the child to suffer an injury (or death).  See here, here and here, for example.

I had not seen the issue in the news for a long time, but today I saw an item in the news that caught my eye:  As reported in the Daily Beast, "[t]wo members of an Oregon church that believes in faith healing pleaded guilty to negligent homicide this week in the death of their newborn daughter, who spent hours struggling to breath without ever receiving medical treatment."  You can read the full story here.

This is, of course, a criminal law matter; but it does raise the question I have asked before.  If the parents can be criminally liable for this conduct, should we recognize a civil cause of action against them for wrongful death also? 

Sunday, July 1, 2018

Wisconsin Supreme Court upholds validity of cap on non-economic damages

As the TortsProf blog recently reported, the Wisconsin Supreme Court recently held that the state's cap of $750,000 on non-economic damages in medical malpractice cases is constitutional. 

The plaintiff in the case lost her arms and legs as a result of a medical error and the jury determined that her pain, suffering, and disfigurement had a value of $16.5 million.  However, Wisconsin’s highest court deferred to legislation limiting such awards to a maximum of $750,000 in all cases, regardless of the severity of the injuries.

In a dissenting opinion, two justices argued that the cap had a perverse effect on plaintiffs because only those with the most catastrophic injuries will be denied a full and fair damages award and it "makes no sense that those who are injured most get the least.”

You can read the entire opinion here.

Wednesday, June 27, 2018

Med Mal statistics and other information

The Center for Justice and Democracy has just published its most recent update to the Medical Malpractice briefing book with all the latest statistics about medical malpractice litigation, cost, access to doctors, insurance, and patient safety.  Here is a summary. You can download the full report (free) here.

Friday, May 18, 2018

Supreme Court Holds Foreign Corporations Cannot Be Held Liable Under Alien Tort Statute

Long time readers of this blog know I have followed the cases on the Alien Tort Statute for some time.  For my posts on this topic, go here and scroll down.

But for those new to the subject, here is a very short update:  Back in 2012, the Supreme Court heard oral argument in a case called Kiobel v. Royal Dutch Petroleum which challenged the applicability of the Alien Tort Statute to corporate defendants. However, after that issue was argued before the Supreme Court, the Court asked the parties to brief and prepare for argument on a different issue: whether the ATS can be applied extraterritorially. This was surprising since the issue had not been raised by the parties because, before the Supreme Court brought it up, there probably was little disagreement about that question.  Yet, the Court expressed more interest in that question and eventually decided the case based on it.   Again, go to the link above and scroll down for a lot more information and links.

So the original issue presented by Kiobel was left undecided until the Court agreed to hear Jesner v. Arab Bank which asked the court to address it.  For a short explanation of the issues in the case go here.

And so, a few weeks ago, the Court finally issued its decision in which it holds that foreign corporations can not be held liable in American courts under the Alien Torts Statue.  NPR has the news here.

In a dissenting opinion joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan, Justice Sonia Sotomayor said the court’s decision absolves corporations for responsibility under the law for “conscience-shocking behavior” and that she disagreed “both with the court’s conclusion and its analytic approach.”

You can read the (very long) opinion here.

Needless to say, the opinion has generated quite a bit of commentary.  Here are links to articles from different perspectives:

The SCotUS blog has an analysis of the opinion here.

Politico has an article here there argues, among other things, that "[t]he ruling appears to be a part of a pro-corporate pattern when it comes to the court’s view of its global role..."

Conservative think tank Washington Legal Foundation has a comment here in which it implies that the case was a wasted opportunity to go even further. It sees the opinion as part of a good trend that attempts to rein in human rights activists’ efforts to police private businesses’ overseas conduct but laments that the Court "once again failed to shut the door entirely on human rights activists" because the ruling said nothing about the many ATS claims pending against American corporations.