Saturday, February 3, 2018

GM sued for accident caused by "self driving" vehicle

GM has been testing autonomous vehicle technology on the streets of San Francisco since August 2017, putting the cars in purposefully challenging conditions to ensure that their safety features work. Unfortunately, the vehicles have been involved in a number of accidents (at least six in September alone).  One of those accidents (which happened in December) involved a motorcyclist, who has now filed a lawsuit claiming that he suffered personal injuries in an accident with one of the company’s self-driving cars, when a self-driving Chevrolet Bolt vehicle veered suddenly into his lane, knocking him to the ground.  You can read the complaint here.

As reported by AboutLawsuits here, the lawsuit comes amid a push for the deployment of self-driving vehicle regulations. New federal guidance, A Vision for Safety 2.0, was released by the U.S. Department of Transportation (DOT) and the NHTSA in September, providing recommendations for the automotive industry and States to follow while developing the evolving technologies used in self-driving vehicles.

For my most recent posts on issues related to driverless cars, go to "Update on the debate regarding possible liability for injuries caused by autonomous cars"  and "Podcast: Challenges of self driving cars."

Sunday, January 21, 2018

Miami Doctors Allow Man To Die Because Of “Do Not Resuscitate” Tattoo On Chest -- UPDATED

Jonathan Turley recently wrote about an interesting case in which doctors at a Miami Hospital decided to stop providing help to a patient because of a "do not resuscitate tattoo."   The story is interesting because, according to the report, Florida only recognizes DNRs if they are provided in a specific form.  If this is true, the doctors did not act according to the state's law.  Here is part of the story:
"Doctors at the Jackson Memorial Hospital faced a novel issue when a 70-year-old man was brought into the emergency room after being found intoxicated and unconscious on the street. . . . The doctors were working to assist the man when someone noticed a large chest tattoo reading “DO NOT RESUSCITATE.” It even had a tattoo signature. After consulting an “ethics expert,” the hospital treated the tattoo as a viable DNR form and allowed the man to die. In my view, the expert was wrong on the law if his decision was based solely on the tattoo. 
Florida agencies have a specific form and states: Do Not Resuscitate Order—Form 1896 (Multilingual) Important! In order to be legally valid this form MUST be printed on yellow paper prior to being completed. EMS and medical personnel are only required to honor the form if it is printed on yellow paper.  
The form has a place for a physician’s signature and required showings of informed consent. Florida does not recognize a metal DNR bracelet or necklace. A patient may carry a “patient identification device”, a smaller version of DH Form 1896 for their wallet or even a chain. 
The problem is that “Do Not Resuscitate” teeshirts and tattoos are common jokes. There was no way that the staff could determine if this was a joke or waiver.  
A similar case was discussed in a 2012 article in the Journal of General Internal Medicine, involving a 59-year-old patient. He had “D.N.R.” tattoo across his chest but he said the tattoo was a joke and the result of losing a bet in poker."
The doctors involved wrote the following Letter to the Editor of the New England Journal of Medicine:
We present the case of a person whose presumed code-status preference led him to tattoo “Do Not Resuscitate” on his chest. Paramedics brought an unconscious 70-year-old man with a history of chronic obstructive pulmonary disease, diabetes mellitus, and atrial fibrillation to the emergency department, where he was found to have an elevated blood alcohol level. The staff of the medical intensive care unit evaluated him several hours later when hypotension and an anion-gap metabolic acidosis with a pH of 6.81 developed. His anterior chest had a tattoo that read “Do Not Resuscitate,” accompanied by his presumed signature. Because he presented without identification or family, the social work department was called to assist in contacting next of kin. All efforts at treating reversible causes of his decreased level of consciousness failed to produce a mental status adequate for discussing goals of care. 
We initially decided not to honor the tattoo, invoking the principle of not choosing an irreversible path when faced with uncertainty. This decision left us conflicted owing to the patient’s extraordinary effort to make his presumed advance directive known; therefore, an ethics consultation was requested. He was placed on empirical antibiotics, received intravenous fluid resuscitation and vasopressors, and was treated with bilevel positive airway pressure. 
After reviewing the patient’s case, the ethics consultants advised us to honor the patient’s do not resuscitate (DNR) tattoo. They suggested that it was most reasonable to infer that the tattoo expressed an authentic preference, that what might be seen as caution could also be seen as standing on ceremony, and that the law is sometimes not nimble enough to support patient-centered care and respect for patients’ best interests. A DNR order was written. Subsequently, the social work department obtained a copy of his Florida Department of Health “out-of-hospital” DNR order, which was consistent with the tattoo. The patient’s clinical status deteriorated throughout the night, and he died without undergoing cardiopulmonary respiration or advanced airway management. 
This patient’s tattooed DNR request produced more confusion than clarity, given concerns about its legality and likely unfounded beliefs that tattoos might represent permanent reminders of regretted decisions made while the person was intoxicated. We were relieved to find his written DNR request, especially because a review of the literature identified a case report of a person whose DNR tattoo did not reflect his current wishes. Despite the well-known difficulties that patients have in making their end-of-life wishes known, this case report neither supports nor opposes the use of tattoos to express end-of-life wishes when the person is incapacitated.

UPDATE 1/21/18: NPR recently picked up the story here.

Friday, January 12, 2018

Illinois state rep proposes "good samaritan" law to protect people who cause damages when trying to rescue dogs or cats

Have you ever seen a dog locked inside a hot car and felt like breaking a window?

An Illinois state legislator is proposing legal immunity for people who rescue pets from hot vehicles. Rep. David Olsen has filed a bill that would alter the Humane Care for Animals Act, allowing civil and criminal liability exemptions for people who break into cars to save dogs or cats — as long as they attempt to tell police about it first. The Illinois News Network has a summary, and the bill itself can be found here.

I only have one question, why limit it to dogs or cats? Don't other pets deserve rescuing too?

North Dakota: Court refuses to apply damages cap in med mal case, declares it unconstitutional -- UPDATED

In 1995, North Dakota passed a $500,000 cap on non-economic damages in medical malpractice cases.  I assume has been invoked and applied since.  Until now.  The TortsProf blog is reporting today that a state judge recently refused to apply the cap and ruled the statute violates equal protection guaranteed by the state constitution by arbitrarily reducing damages for people who suffer the most severe injuries.

Go here for more (although not much) on the story.  As you know, I am against caps, but an interesting element of this story is that at $500,000, the North Dakota cap is one of the more generous out there.

UPDATE (1/12/18):  The PopTort has more information, excerpts from the decision and a nice comment on the case here.

Court finds Amazon can't be responsible as "seller" in a product liability claim

About is reporting that a federal judge has ruled that cannot be held liable for injuries caused by third party products the company sells on its website because, according to the court's memorandum opinion Amazon did not meet the state’s definition of a “seller.”  The court held that Amazon is merely a marketing place for third-party vendors, and not the seller or manufacturer, stating, among other things, that
“[l]ike an auctioneer, Amazon is merely a third-party vendor’s ‘means of marketing,’ since third-party vendors—not Amazon—’cho[o]se the products and expose[] them for sale by means of’ the Marketplace,” Judge Brann stated. “Because of the enormous number of third party vendors (and, presumably, the correspondingly enormous number of goods sold by those vendors) Amazon is similarly ‘not equipped to pass upon the quality of the myriad of products’ available on its Marketplace.” 
This is interesting because, as Amazon users probably have noticed, Amazon seems to sell products in a number of different ways.  As far as I can tell, these are some of the categories:

1.  Amazon products sold by Amazon.

2.  Products that are sold by Amazon but are not Amazon products.

3.  Products are that not Amazon products that are sold "through" Amazon.  If I understand it correctly, products in this category are ordered through Amazon, sold by someone else, but the order is "fulfilled" by Amazon.

4.  Products that are ordered through Amazon, sold by someone else, and the order is fulfilled by that someone else.

I understand saying that Amazon is not a seller of a product in the last category.  But I think Amazon is a seller in the first three.

Friday, January 5, 2018

Why hasn't Gov. Cuomo signed the bill adopting the "discovery rule" for the statute of limitations in certain medical malpractice claims?

The New York Personal Injury Law Blog has a good (and short) discussion of a bill waiting to be signed that would adopt the so-called discovery rule for certain medical malpractice cases.  Before we go any further, let me confess that I am surprised there is a need to pass a bill for this to begin with!  I would have thought that by now all states have adopted the discovery rule; but evidently, I am wrong.  And what is worse is that the bill does not proposed adopting the rule for all cases. 

As explained in the article, the law "mimics the law in 44 other states, extending the statute of limitations in certain medical malpractice cases [to] the time the discovery of malpractice was made, or could reasonably have been made, instead of when it occurred.  In the final hours dickering over the bill last June, it was watered down to apply only to cancer cases, leaving all other “failure to diagnose” cases, where the patient didn’t even know s/he was victimized, hanging out in the cold. But still, even in its watered down state, it is something for those that have not only been victimized by malpractice, but didn’t even find out until the time to bring suit had expired."

You should read the full article here.  Among other things, it discusses how the current state of medical insurance business does not explain the hesitation to sign the bill.

Thursday, December 28, 2017

Should a school be liable if a student commits suicide?

A student’s suicide at MIT has sparked a contentious legal battle before the Massachusetts’ supreme court over whether a university can be held responsible when students take their own lives. The case is important to colleges and universities because a decision against the university could place an unreasonable burden on untrained employees to stop suicides.

The case involves a student who was allegedly suffering from depression and struggling with his schoolwork.  Then one day, moments after a professor confronted him about something the student wrote in an e-mail, the 25-year-old took his own life.

The student’s family sued, claiming his death was preventable and that the school had a legal duty to use reasonable care to protect him from harm.  MIT has replied that the school wasn’t aware of the severity of the student’s condition and that he was treated by outside professionals, none of whom thought the student was a risk to himself.

The case involves two issues typically covered in a first year Torts class: whether a school has a duty to help students, and whether the decision to commit suicide operates as a superseding cause that defeats the plaintiff’s argument of proximate cause.

There are many cases out there that hold that a university does not have a duty to help adult students protect themselves from harm, or to monitor their daily lives; but this can change if the school has acted in a way that shows it has assumed a duty.  It also may be affected by the state’s law regarding the definition of a “special relationship” which may give rise to a duty to help.

On this issue, there is also the question of whether it would be a good idea to apply a standard designed for health professionals based on the famous Tarasoff case to faculty members (who are typically not trained as medical professionals, much less as psychologists or psychiatrists).

This is an interesting question, but the answer should be that it is not a good idea.  First, let’s not forget that, contrary to popular belief, Tarasoff has not been adopted in all jurisdictions.  (The jurisdiction I live in has rejected it several times.  Go here for one such case.)  So, it can be argued that even applied to health professionals, it is not a good policy to follow.  Second, applying a policy that is based on the specific training of those to whom it applies does not make much sense when you try to extend it to apply to people who do not have that training.  Also, imposing a duty on people who are not trained could have unintended negative consequences.  Fear of liability may cause professors and others without mental health expertise to overreact, which in turn could discourage students from coming forward with their problems to those who could offer help.

As to the second issue, many jurisdictions hold that the decision to commit suicide is a superseding cause as a matter of law, perhaps based on the notion that it is unforeseeable that someone would choose to end their life on purpose.  Yet, an argument can be made that this is not always the case.  In fact, it is not difficult to come up with examples of cases where you can argue it is foreseeable that someone would commit (or try to commit) suicide.  For this reason, the cases on this question can be inconsistent.  (For an example of one such case, go here.)

Reportedly, a group of 18 colleges and universities — including Harvard University and Boston College — urged the state supreme court to reject the plaintiffs’ claim, saying a decision in favor of the family could have devastating consequences. Stay tuned.

Saturday, December 9, 2017

US Supreme Court denies review in case challenging the constitutionality of the damages cap in Nebraska

Nebraska has one of the few caps in the nation that is applied to total, as opposed to non-economic, damages in med mal cases.  In August 2015, a jury awarded the family of a brain-damaged infant $17M in damages, but pursuant to the cap, the trial judge reduced the award to $1.75M.  Last June, the Eighth Circuit unanimously affirmed the trial judge.  The plaintiffs argued the cap is unconstitutional and appealed to the US Supreme Court. 

The argument is based on the notion that the Constitution recognized a right to a trial by jury and it is the jury (not the legislature) who should be allowed to determine the value of the claim.  Other jurisdictions have so held.

Yet, last Monday, the United States Supreme Court declined to hear the case.

The TortsProf blog has more on the story here.

Monday, December 4, 2017

Short article on fraternity houses and hazing

Almost a year ago I reported that the Illinois Supreme Court had granted review on a case that asked whether the officers, pledge board members of a fraternity or the fraternity itself should be liable for the death of a student who died while participating in a social event at a college fraternity.  Since then other similar incidents have been reported in other states.  

I am coming back to this topic today because I just saw that Prof. Gregory Parks (Wake Forest) has a short article in The Huffington Post about the tort duties of fraternities and sororities with regard to hazing.

Thanks to the TortsProf blog for the link.