Saturday, October 10, 2015

Louisiana Supreme Court finds medical provider write off does not fall within the collateral source rule, which means it can be taken into account when determining value of compensation

In a recent decision, the Louisiana Supreme Court has held that a writeoff from a medical provider, negotiated by the plaintiff‟s attorney, may not be considered a collateral source from which the tortfeasor receives no set-off. Applying Louisiana law and the principles set forth in our Civil Code, the court found that such a write-off does not fall within the scope of the collateral source rule. The TortsProf blog has more information.  You can read the opinion here.

North Charleston SC agrees to pay $6.5 million in settlement for shooting of unarmed black man by Scott by police

North Charleston, S.C., has agreed to pay $6.5 million as a settlement with the family of Walter Scott, an unarmed black man shot in the back and killed by a white police officer in April.  The incident captured national attention because it was captured on a cellphone camera by a passerby. The officer, Michael Slager, was fired and eventually charged with murder.  NPR and Slate have more information.

Nevada upholds compensation cap

Jurisdictions continue to rule differently when it comes to the constitutionality of legislative caps on compensation for non-economic injuries.  Some, including Illinois, have found them unconstitutional.  Others, most recently Nevada, have rejected that position.

As reported in the TortsProf blog, a few days ago, the Nevada Supreme Court unanimously upheld the state's $350,000 med mal cap on non-economic damages.  A lower court had ruled the cap violated the constitutional right to trial by jury.  The court also overturned the lower court's holding that the cap applies separately to each plaintiff and each defendant.  The Las Vegas Review-Journal has the story.

Tuesday, September 15, 2015

Yet another disturbing video of football violence

Watch the defensive end of the team in the black uniform rip an opponent's helmet's off and then use it as a weapon against him.

According to, this happened last weekend during a game between New Jersey high schools Immaculata and Linden. According to the story, the player who was hit with the helmet received 10 stitches after the game. Local police is looking into the incident.

Monday, September 14, 2015

Pac Man Jones will not be suspended for violence on the football field

Sunday I commented on the conduct of Bengals corner Adam “Pacman” Jones on the football field to illustrate the recurring issue of whether conduct while participating in sports could give rise to a claim for battery.  As an update, it is now being reported that Jones will be fined but not suspended.

South Carolina redefines when the clock starts for purposes of the statute of limitations in a claim for legal malpractice

Last week, the South Carolina Supreme Court overruled prior precedent and held that the statute of limitations in a legal malpractice claim starts to run after the underlying case that gives rise to the malpractice action is resolved on appeal.

In this case, everyone agreed that the statute starts to run when the affected party knew or should have known that it had a legal malpractice claim against its trial counsel.  The question was whether the party 'knows or should have known' at the time they lose the case at the trial level, or at the time the higher court affirmed the decision of the trial level.

Overruling prior precedent on the issue, the court held as follows:  "We overrule Epstein and now hold that the statute of limitations for a legal malpractice action may be tolled until resolution on appeal of the underlying case if the client has not become aware of the injury prior to the decision on appeal. We find this rule comports with the discovery rule and effectuates the purpose of the statute of limitations."

The case is called  Stokes-Craven Holding Corp., v. Scott L. Robinson and Johns on McKenzie & Robinson, LLC, and it is available here. The Legal Profession Blog has more information here.

Sunday, September 13, 2015

More violence in football

By now I am sure you are familiar with the story about the high school football players who attacked an official in the middle of a game last week.  Well...  here is another incident.  For the second week in a row, a San Antonio-area high school is dealing with a player who hit an official in the middle of the game. Here is the video.

Not to be outdone, the pros began their season today and here is a video of Bengals player PacMan Jones ripping an opponent's helmet off and pushing the opponent's head into it after the play was over.

As in the story from last week, the torts issue is the same.  Are these incidents within the scope of the consent to the "inherent risks" of the game?  Is the conduct within the "customs" of the game?

UPDATE (9-14-15):  It sounds like PacMan Jones will not be suspended for his conduct.

Wednesday, September 9, 2015

Baltimore Fraternal Order of Police calls suggestion of a settlement with family of Freddie Gray "ridiculous" and "obscene"

According to a report by CNN, available here, Gene Ryan, president of the Baltimore Fraternal Order of Police, reacted to the announcement of the settlement by the city of Baltimore with the family of Freddie Gray (see here), stating that the settlement was a "ridiculous reaction" and that "[t]o suggest that there is any reason to settle prior to the adjudication of the pending criminal cases is obscene..."

Baltimore agrees to settle claim Freddie Gray's family for $6.4 million

The city of Baltimore has agreed to pay a $6.4 million settlement to the family of Freddie Gray, who died at age 25 in police custody last April after suffering a serious spinal injury in the back of a police van.  (Six city police officers are facing criminal charges in the matter also.)   Slate, NPR and Gawker have more information.

New information on breed specific regulations

The website, a very good source of information related to regulation of dogs and cases involving dogs, has released a new FAQ section on breed specific regulation.  Go here for links to a lot of information including the effectiveness of these ordinances, which breeds are involved and the three most common types of ordinances.

Tuesday, September 8, 2015

Public defender sues for arrest while trying to represent her clients

Back in January several outlets reported on an incident in San Francisco involving an arrest of a public defender which was caught on video.  Today, the is reporting that she has filed a complaint against the city and the police department.

Given that the incident was caught on video, the facts are easy to observe.  The plaintiff's clients were in court that day for a hearing related to a misdemeanor robbery charge.  While hanging out with their lawyer (the plaintiff) in the hallway, a police officer approached them to talk about another case and said he needed to take photos of the clients.  The lawyer objected and the police officer then told her she would be arrested "for resisting arrest."  That is a curious charge, since the police had not said they were going to arrest anyone.  In other words, the lawyer was not interfering with the police's attempt to arrest her clients.  She was also not resisting her own arrest since the police was not trying to arrest her.  Bottom line, the cop essentially said "let me do what I want to do here or you will be arrested."  And that is exactly what happened.

From what I can see, there is basis for a claim of false imprisonment here, but it is not clear what is the level of damages.  The claim, however, is apparently not for common law false imprisonment but for violation of civil rights.

Here are two videos.  The first one is the original video capturing the incident.  The second one is a report from a local TV station.

Monday, September 7, 2015

Kansas Supreme Court rules a criminal defendant does not have to show actual innocence to support legal malpractice claim

In most jurisdictions, a plaintiff suing an attorney for malpractice arising out of the attorney's representation in a criminal matter has to meet not only the elements of the cause of action but also has to show actual innocence.  This approach has been criticized by many in the literature but it continues to be the majority view.

However, a few days ago, the Kansas Supreme Court joined the minority of jurisdictions where this is no longer the case.  In a case called Mashaney v. Board of Indigents' Defense Services, the Court held that a convicted defendant may be able to pursue a legal malpractice claim against his former attorneys without proof of actual innocence.

The Legal Profession Blog and the Chicago Legal Malpractice Lawyer Blog have more on the story here and here.

Illinois court of appeals reaffirms state's (unfair) approach to legal malpractice

In the past, I have criticized the fact that Illinois has adopted a statute of repose for legal malpractice cases.  But that is just the beginning of the problem.  Not only is there a statute of repose, it is very short and it can't be tolled.

Now, about two weeks ago, in a case called Lamet v Levine, available here, the Illinois court of appeals has reaffirmed the unfairness of the use of this type of statute.  The court explained that the statute of repose begins to run not when the negligent act is discovered by the client but when the negligent act occurred.  In other words, the statute of repose in a legal malpractice case begins to run as soon as an event giving rise to the malpractice claim occurs, regardless of whether plaintiff knows of the attorney's conduct or whether the plaintiff's injury has been realized.  Also, the court followed the consistently held view in the state that the statute of repose is not tolled merely by the continuation of the attorney-client relationship.

NY Times article on medical malpractice law

About a week ago, the NY Times published a short article on medical malpractice that is worth noting, even though, in the end it does not say anything that anyone paying attention to the subject didn't know already.  For much more on medical malpractice theory and practice go to the medical malpractice section of this blog (scroll the topics on the right hand side and click on it).  Here are some key sections of the article (you can read the full article here):

Only in Albany can a bill pass the Assembly with overwhelming bipartisan support, be sponsored by a majority of the State Senate, be endorsed by Gov. Andrew M. Cuomo, and yet never come up for a final vote. That happened to Lavern’s Law, a bill that would have helped grievously injured victims of medical malpractice have their day in court. This summer, the Senate majority leader, John J. Flanagan, a Republican, wouldn’t allow the bill to be voted on, effectively killing it.

....  Hospitals are dangerous places. In 1999 the Institute of Medicine at the National Academy of Sciences published a study, “To Err is Human,” which concluded that at least 44,000 patients were killed (and many more injured) in hospitals each year because of medical errors. By 2011, a study in the journal HealthAffairs estimated that the number of avoidable deaths was probably 10 times higher. Hundreds of thousands more patients are seriously injured through negligence. Doctors and hospitals are doing a poor job of policing themselves, yet they have been successful at keeping anyone else from doing it.
The opposition to Lavern’s Law came from the hospital and health care lobby, apparently concerned that the bill might result in more medical malpractice lawsuits. It very well might, but the actual number would probably be minuscule: Of the hundreds of possible cases we evaluate every year, only a handful are outside the statute of limitations. ...
Surprisingly, despite the frequency of avoidable errors, very few wind up as medical malpractice lawsuits. A 2013 study concluded that about 1 percent of medical errors resulted in a claim.
And even if a victim wins a medical malpractice lawsuit, awards are generally modest. Thirty-three states restrict the amount of compensation for the pain and suffering victims have endured. According to the Department of Justice, the median award by juries is $400,000; in bench trials, where the judge also serves as the jury, the median award is $631,000.