Tuesday, July 28, 2009
The New York Times has published an article on different attempts by legislators to enact laws to regulate the use of direct to consumer advertising by pharmaceutical companies. For example, the article mentions that Representative James P. Moran, Democrat of Virginia, is sponsoring a House bill that would ban ads for prescription sexual aids like Viagra and Levitra from prime-time television, on decency grounds. Obviously, on those grounds, the bill has no chance. Representative Henry Waxman, Democrat of California, on the other hand favors a more reasoned approach. He is said to favor empowering the F.D.A. to bar consumer ads for new drugs for an initial period after the F.D.A. approves them — until there has been more real-world experience with the medications. Thanks to the TortsProf Blog for the information.
Monday, July 27, 2009
A week ago, I posted a story about a recent medical malpractice claim negated by the Feres Doctrine. See here. Today the PopTort Blog published a report/update on the Feres Doctrine, here.
Thursday, July 23, 2009
The Center for Justice & Democracy has just released a new study that concludes what many others have been arguing for years: that limiting injured patients’ access to the courthouse does not have any real effect on overall health costs. The full report is available here. Thanks to the PopTort Blog for the information. Their story on the report is available here.
Wednesday, July 22, 2009
In response to Rep. Michael Burgess's bill to enact Texas-style damage caps for the entire country, Ronen Avraham and Charles Silver (professors at theat the University of Texas Law School and David A. Hyman (professor at the Colleges of Law and Medicine at the University of Illinois) have published a short article titled "Texas-style caps on noneconomic damages isn’t smart tort reform" -- available here. In part, they connclude: "In our judgment, the Texas approach is too simple-minded. Texans got nothing in return when they gave all healthcare providers the benefit of caps on noneconomic damages in 2003. They received no guarantee that the supply or the quality of healthcare available to Texans would improve, or that costs would go down. . . .Any restrictions the federal government imposes should be "smart" ones. They should insulate only providers who deliver cost-effective healthcare that protects patients from harm." Thanks to Christopher Robinette of the TortsProf blog for the information.
Monday, July 20, 2009
Prof. Jonathan Turley is reporting today on another military medical malpractice case and what he called (and I agree) "another reason for Congress to legislatively negate the infamous Feres doctrine." In this case, Airman Colton Read, 20, went into the David grant Medical Center at Travis Air Force Base near Sacramento for a simple gallbladder operation — only to end up a double amputee due to malpractice. For the full story, go here.
Saturday, July 18, 2009
Wednesday, July 15, 2009
The Supreme Court of Wisconsin has affirmed the dismissal of several product liability claims against paint manufacturers for injuries cased by the lead content of their paint products. This is not a surprising result since the lead paint manufacturers had won most, if not all, other similar claims so far. Among other things, the Court held that given that removing the lead from the type of paint at issue "would transform it into a different product," the design of white lead carbonate pigment is not defective. Although definitely a victory for the defendants, there is a very important element of the decision that is helpful to plaintiffs in products liability cases. The Court reaffirms its rejection of the Restatement (Third) and makes absolutely clear that "Wisconsin strict products liability law does not require a plaintiff to prove the feasibility of an alternative design.” For more on this story go to Jonathan Turley's Blog, Law.com and the Drug and Device Law Blog.
Monday, July 13, 2009
Here is a link to a short Op-Ed on Medical Malpractice reform published in the New York Times by Tom Baker, who is the author of a very good little book on the subject called The Medical Malpractice Myth. Its conclusion: "When it comes to rising medical costs, liability is a symptom, not the disease. Getting rid of liability might save money for hospitals and some high-risk specialists, but it would cost society more by taking away one of the few hard-wired patient safety incentives." Go here for the Op-Ed; go here for an excerpt of the book. Thanks to Chris Robinette of the TortsProf Blog for the cite to the article.
Saturday, July 11, 2009
Women who stay at home full time do work full time, they just don't get paid a salary for it. Does the fact that they don't get paid mean that when they lose the ability to do the job their damages are not "economic" in nature? My guess is that most jurisdictions would not consider this "injury" an economic injury. This is why a common argument against caps on non-economic damages is that they affect women, the unemployed and the elderly disproportionately. Thanks to a report on a new case I just read in the TortsProf Blog, I now know this is no longer true in Michigan. It turns out that the Michigan Court of Appeals ruled last year that household services such as raising children aren't subject to caps on medical malpractice damages related to pain and suffering and this principle was just reaffirmed (sort of) by the state's Supreme Court. I say "sort of" because the news is just that the Supreme Court of Michigan has rejected an appeal from a decision by a court of appeals. The appeals court had held that a mother's family can sue a hospital and doctors for $1.4 million in damages for loss of household services like caring for her children. The defendants (Mercy Memorial Hospital and several physicians) argued that the loss of household services is a "noneconomic" type of injury which should be subject to the cap on non-economic damages. The Court of Appeals held otherwise and the Supreme Court voted 4-3 to reject the appeal.
Tort reform proposals usually have one of three purposes: to make it more difficult for plaintiffs to bring claims, to make it more difficult to recover or to limit what can be recovered. Chris Robinette of TortsProf Blog reports of a recent tort reform victory in Arizona that falls in the first or the second category: Gov. Jan Brewer has signed a bill into law requiring plaintiffs to prove malpractice against ER physicians by clear-and-convincing evidence.
Wednesday, July 8, 2009
Friday, July 3, 2009
Thursday, July 2, 2009
The Products Liability Profs blog reports the most recent developments in a story titled "GM Product Liability Plaintiffs Better Off Than Secured Creditors" (available here): "General Motors Corporation has agreed to assume responsibility for all future liability claims filed after the automaker emerges from bankruptcy, regardless of when the vehicle was made." In a post available here, the PopTort blog argues the agreement does not go far enough: "...if you’re hurt due to a defect in a GM car, and the accident happens AFTER the bankruptcy is over (probably sometime in mid-July) the company will still be responsible for your injuries. But if you have already been injured and/or have already filed your claim – you are completely out of luck." Finally, here is a video on the subject from CBS News:
Roche Holding AG, the world’s biggest maker of cancer drugs, is pulling its Accutane acne medicine from the U.S. market. Although, as the story in the Associated Press states, "the drug has a rocky safety history, having been linked to birth defects if taken during pregnancy, along with depression and suicidal thoughts", the company claimed the decision was made for economic reasons, not safety reasons. Not surprisingly, there are different reactions to the story. The PopTort celebrates it in a post titled "Accutane Finally Removed From the Market Proving Again That Lawsuits Are the Last Line of Defense Against Unsafe Drugs" (available here), while The Drug and Device Law Blog laments it arguing "If you ever need another example of the cost of litigation driving a beneficial drug off the market, add Accutane to your list." (available here.) The PopTort's post has links to information related to the FDA's possible removal of the drug many years ago, its controversial warnings, the drug's links to suicides and to the fact that the drug has been removed from the market in eleven other countries. The Drug & Device Law Blog focuses only on the lack of evidence to support the claim that Accutane caused inflammatory bowel disease and provides links to sources that supports their position.
Although this is not a torts related item, it will be of interest to my students and all Illinois attorneys. For my extended comments go to my Professional Responsibility blog here. (And if you are interested in more PR news, you can follow my blog here.)