Sunday, July 9, 2017

Chemerinsky on Supreme Court cases that affect the rights of injured victims to seek compensation in court

Erwin Chemerinsky has published a short comment on two recent Supreme Court opinions that have the effect of closing the courthouse doors to those who have suffered serious injuries. You can read the comment here.

Wednesday, July 5, 2017

Appeals Court in Wisconsin finds med mal cap unconstitutional

The intermediate appeals court in Wisconsin has ruled that the state's $750,000 cap for non-economic damages in medical malpractice cases is unconstitutional.  The TortsProf blog has a summary of the court's conclusion here.

Thursday, June 29, 2017

While the country is distracted by tweets, investigations, and failed Senate bills, the House votes to federalize medical malpractice

In my most recent post I reported that the ABA opposed a bill currently under consideration by the House of Representatives which would impose a cap on state medial malpractice claims.  Today, I unfortunately have to report that the House voted in favor of the bill.  If enacted into law, it will impose a $250,000 limit on non-economic damages in med mal suits that involve coverage provided through a federal program such as Medicare or Medicaid or to coverage that is partly paid by a government subsidy or tax benefit.  In addition, the bill would curb attorneys' fees and impose a three-year statute of limitations (with some exceptions).  More on the story here.

In response to the vote, the Alliance for Justice President released the following statement: “While Senate Republicans are busy trying to destroy our health care system, their counterparts in the House are hard at work trying to undermine patients’ access to justice if they are harmed by a health care provider. The mean-spirited bill rammed through today would establish a nationwide cap of $250,000 on so-called non-economic damages suffered by patients. That cap would apply even in cases of deliberate harm to patients, including such nightmare scenarios as an assault in a nursing home. This bill is nothing more than a giveaway to the pharmaceutical and health care industry, at the expense of the most vulnerable Americans.”

For a short comment on how hypocritical it was for Republicans to support the bill, because it goes against "conservative principles" that Republicans like to say they support go here.

Sunday, June 18, 2017

ABA opposes federal bill that would impose caps in med-mal cases

The ABA Journal is reporting that the ABA recently sent a letter to House lawmakers urging them to reject a bill that would impose a  cap of $250,000 on non-economic damages in medical malpractice cases.  You can read the letter here.

The bill, ironically known as the Protecting Access to Care Act of 2017, also would eliminate joint and several liability and would authorize courts to reduce contingent fees. The ABA opposes those provisions as well.

Were it to become law, this bill would be terrible for victims of medical malpractice which is now the third most common cause of death in the US (also here, here and here).  As all other tort reform efforts its purpose is to make it difficult, if not impossible, for victims to be able to recover for their injuries.  There is no support for the proposition that bills like this one will reduce costs of medical care, or result in better care and their implementation impact those who need protection the most:  the elderly, the poor, children, etc.

Hopefully, legislators will do the right thing and follow the ABA's advice.  Otherwise, give it some time and we will see medical malpractice move up from the third spot in the list of causes of death. 

Saturday, June 10, 2017

Florida Supreme Court strikes down statute imposing caps on medical malpractice cases -- UPDATED

The TortsProf blog is reporting that a sharply divided Florida Supreme Court recently struck down a 2003 statute that imposed a cap on non-economic damages in medical malpractice cases.  The court concluded that "the caps on noneconomic damages … arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries” and that "because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps … and alleviating this purported crisis. Therefore, we hold that the caps on personal injury noneconomic damages … violate the Equal Protection Clause of the Florida Constitution.”

I agree this is the correct decision which is, of course, good news for victims of medical malpractice in Florida.  Unfortunately, as reported here over the last few weeks, many other jurisdictions are heading in the opposite direction, looking for ways to make it more difficult for victims to be able to recover for their injuries.

UPDATE 6/18/17:  AboutLawsuits has a story here.

Sunday, June 4, 2017

Article on the Trump administration and tort reform

Over at HuffPost, Joanne Doroshow, executive director of the Center for Justice and Democracy at NYU Law School, has posted a short article on the Trump administration's policies as they relate to tort reform and medical malpractice issues.  You can read the article here.

Monday, May 29, 2017

Nearly a third of drugs approved by the FDA between 2001 and 2010 had major safety issues

A prevalent argument used by the pharmaceutical industries in product liability cases is that the courts (and the judicial system) are not the proper venue to determine whether prescription drugs are dangerous. According to the argument, that type of decision should be left to the "experts" - in this case, to the FDA.  Plaintiffs and consumer advocates counter that the FDA is not efficient in its work and that, if anything, the best plan is to have a combination of mechanisms to improve the safety of the products in the market.

A new study by the Yale School of Medicine now provides support for those who argue that the FDA procedures are not particularly adequate when it comes to determining the safety of prescription drugs.  It found that nearly a third of those approved from 2001 through 2010 had major safety issues.  This information is particularly important now that the Trump administration has made it clear it prefers to eliminate regulation rather than strengthen it.

For more information on the recent study go here.