About a month ago I reported (here) that democrats in the Senate and House introduced companion bills
that would permit generic drug companies to update warning information
about the drugs they manufacture, a change that could allow patients to
sue the companies for failing to warn about the risks of taking their
drugs.
Today, About Lawsuits is reporting (here) that 41 state attorneys general have signed
onto the legislation, known as the “Patient Safety and Generic Labeling
Improvement Act” (S.2295). The National Association of Attorneys Genera
(NAAG) sent a letter of support (pdf) to Senator Leahy and Senator Al Franken, a co-sponsor, on May 11.
Thursday, May 24, 2012
Tuesday, May 22, 2012
Proposed new law would extend the statute of limitations in wrongful death cases in Washington DC
The Blog of the Legal Times is reporting that the
District of Columbia Council's Committee on the Judiciary is considering a proposed bill that would extend the statute of limitations to
file civil wrongful death lawsuits in Washington. It would change the time limit to file cases from one year to two years.
District Court finds Syria and Iran liable under Foreign Sovereign Immunities Act
In an
opinion
published Monday, a federal district court judge found that Syria and Iran were liable to pay $332 million under the state-sponsored terrorism exception to the Foreign
Sovereign Immunities Act for their role in a 2006 suicide attack in Israel that killed eleven people.
This is not that unusual - there are other cases that have imposed such liability before. But, unfortunately for the victims, the problem is that the judgements are usually impossible to collect. For more on that interesting topic, you can read Estate of Heiser v. Islamic Republic of Iran, 2011 WL 3489109 (D. D.C. 2011).
This is not that unusual - there are other cases that have imposed such liability before. But, unfortunately for the victims, the problem is that the judgements are usually impossible to collect. For more on that interesting topic, you can read Estate of Heiser v. Islamic Republic of Iran, 2011 WL 3489109 (D. D.C. 2011).
Update on New Hampshire's early offer proposal
I have been following (and commenting on) a proposed measure in New Hampshire to create an alternative to litigation based on "early offers." As I argued here and here, there are some good aspects to the proposal and some negative ones.
Now the TortsProf blog is reporting that the House version of the proposal has been amended. Under the Senate bill, if the claimant requested an early offer and then declined it, the claimant would have to prove gross negligence to a clear and convincing standard. In the House version, if the claimant requested an offer and then declined it, the claimant would have to pay the health care provider's attorney's fees if the claimant lost or recovered approximately the same amount of money that was in the early offer.
One problem I have with these proposals is that there is a lot incentive for the (and pressure on the) plaintiff to accept the offers, but little incentive for the defendant to make sure the offer is fair.
Or, am I missing something?
Now the TortsProf blog is reporting that the House version of the proposal has been amended. Under the Senate bill, if the claimant requested an early offer and then declined it, the claimant would have to prove gross negligence to a clear and convincing standard. In the House version, if the claimant requested an offer and then declined it, the claimant would have to pay the health care provider's attorney's fees if the claimant lost or recovered approximately the same amount of money that was in the early offer.
One problem I have with these proposals is that there is a lot incentive for the (and pressure on the) plaintiff to accept the offers, but little incentive for the defendant to make sure the offer is fair.
Or, am I missing something?
Medical malpractice reform bill in Michigan would completely alter generally accepted notions of med mal law
The Pop-Tort published a short report recently on attempts in Michigan to radically alter the law of medical malpractice. See here, and make sure to click on the links they provide for more background information.
According to one source, Senate Bill 1116 states that a defendant would not be liable in “an action alleging medical malpractice if the person’s conduct at issue constituted the exercise of professional judgment." As stated there is nothing new here. That statement is a generally accepted principle. But what it means, is distorted in the bill when it continues to say that "[a] person exercises professional judgment if the person acts with a reasonable and good-faith belief that the person’s conduct is both well founded in medicine and in the best interests of the patient.”
This statement is contrary to generally accepted principles of tort law. It makes the standard of care subjective. According to this proposed standard, the doctor is not negligent if the doctor can convince others that he really thought he was not being negligent. How self serving is that?!
The proper standard is that the plaintiff has the burden to show what the standard in the profession is and that the doctor acted below that standard. If the accepted standard in the profession allows for discretion, the doctor will not be found negligent as long as the doctor exercised that discretion using reasonable care. The fact that the result of that exercise of discretion was an injury to the plaintiff does not mean the plaintiff has a right to recover nor that the doctor was negligent.
This current standard places the burden on the plaintiff (where it should be) and it is not an easy burden to meet (the way it should be). There is no reason to change it.
And in case you think that the drafters of the bill maybe just did not know the law, think again. After creating this new way out for a defendant, the Bill states that "[i]f the court determines … that the [defendant] … did not meet the burden of proving that the act or omission was an exercise of professional judgment, the question of whether the person failed to provide the recognized standard of acceptable professional practice or care is a question for the trier of fact to decide."
In other words, the Bill creates a way for the defendant to excuse their conduct, but if they can't do it, then the "old" rules of law would apply.
I hope for the sake of injured patients in Michigan that this bill is defeated.
According to one source, Senate Bill 1116 states that a defendant would not be liable in “an action alleging medical malpractice if the person’s conduct at issue constituted the exercise of professional judgment." As stated there is nothing new here. That statement is a generally accepted principle. But what it means, is distorted in the bill when it continues to say that "[a] person exercises professional judgment if the person acts with a reasonable and good-faith belief that the person’s conduct is both well founded in medicine and in the best interests of the patient.”
This statement is contrary to generally accepted principles of tort law. It makes the standard of care subjective. According to this proposed standard, the doctor is not negligent if the doctor can convince others that he really thought he was not being negligent. How self serving is that?!
The proper standard is that the plaintiff has the burden to show what the standard in the profession is and that the doctor acted below that standard. If the accepted standard in the profession allows for discretion, the doctor will not be found negligent as long as the doctor exercised that discretion using reasonable care. The fact that the result of that exercise of discretion was an injury to the plaintiff does not mean the plaintiff has a right to recover nor that the doctor was negligent.
This current standard places the burden on the plaintiff (where it should be) and it is not an easy burden to meet (the way it should be). There is no reason to change it.
And in case you think that the drafters of the bill maybe just did not know the law, think again. After creating this new way out for a defendant, the Bill states that "[i]f the court determines … that the [defendant] … did not meet the burden of proving that the act or omission was an exercise of professional judgment, the question of whether the person failed to provide the recognized standard of acceptable professional practice or care is a question for the trier of fact to decide."
In other words, the Bill creates a way for the defendant to excuse their conduct, but if they can't do it, then the "old" rules of law would apply.
I hope for the sake of injured patients in Michigan that this bill is defeated.
Report on medical malpractice reform in Pennsylvania states the obvious while failing to address the real issue
The Post-Gazette reports that the number of medical malpractice cases in Pennsylvania has dropped 47% in the ten years since two reform measures took effect. This should not be surprising. In fact, it is obvious: I have said this before, if you enact measures to make it more difficult for people to exercise their right to sue, then fewer people will get to sue. Duh!
The question that should be asked is whether this is a good result for society, for injured patients, for people who want more affordable and safer health care. Unfortunately for tort reformers, the evidence shows that the only people who benefit from this are doctors - particularly negligent ones -and their insurance companies. The cost of health care does not go down, in many (although not all) cases the cost of malpractice insurance does not go down, and there is no evidence that the quality of care improves. Meanwhile the risk of injury remains the same, or may be higher.
Does tort reform reduce the number of medical malpractice claims? Yes, absolutely. Is that necessarily a good thing? I don't think so. The key is in the details of the reform; what it seeks to achieve and how it tries to do it. Simply saying that fewer cases is good, is useless as a point of analysis and a really bad start for defining social policy.
The question that should be asked is whether this is a good result for society, for injured patients, for people who want more affordable and safer health care. Unfortunately for tort reformers, the evidence shows that the only people who benefit from this are doctors - particularly negligent ones -and their insurance companies. The cost of health care does not go down, in many (although not all) cases the cost of malpractice insurance does not go down, and there is no evidence that the quality of care improves. Meanwhile the risk of injury remains the same, or may be higher.
Does tort reform reduce the number of medical malpractice claims? Yes, absolutely. Is that necessarily a good thing? I don't think so. The key is in the details of the reform; what it seeks to achieve and how it tries to do it. Simply saying that fewer cases is good, is useless as a point of analysis and a really bad start for defining social policy.
Medical malpractice news from Pennsylvania
Max Kennerly of the Trial and Litigation blog reports several interesting medical malpractice cases from Pennsylvania in which defendant lawyers or their clients have been sanctioned for improper conduct.
First, there is a comment on the difficulty plaintiffs face in finding doctors to testify as expert witnesses against other doctors and an account of the sanctions imposed on the attorney for a physician for an attempt to intimidate a witness (here).
Third, here is another account of sanctions against doctors and hospitals for improper conduct.
First, there is a comment on the difficulty plaintiffs face in finding doctors to testify as expert witnesses against other doctors and an account of the sanctions imposed on the attorney for a physician for an attempt to intimidate a witness (here).
Third, here is another account of sanctions against doctors and hospitals for improper conduct.
Wednesday, May 9, 2012
More on the article that debunks the argument that tort reform is needed to prevent doctor migration
A few days ago I wrote about a new article that debunks the argument by tort reformers that medical malpractice liability has a direct effect on physician migration. Today, the New York Personal Injury Law Blog offers a more detailed comment on it here.
Monday, May 7, 2012
Court of Appeals for the First Circuit issues controversial opinion in generic drug case
Last week, the Court of Appeals for the First Circuit issued an opinion in a case called Bartlett v. v. Mutual Pharmaceutical Co. recognizing a design defect claim in a case involving a generic drug. The defendants argued the claim was preempted. You can read the full opinion here.
What makes the case controversial is the question of whether the decision is contrary to the holding in PLIVA v Mensing, the US Supreme Court decision holding that inadequate warnings cases against generic drug manufacturers are preempted because federal law requires the warnings for generic drugs to be identical to those of branded drugs. Not surprisingly, the Drug and Device blog has taken the position that the opinion is simply wrong (although they use stronger language). You can read their comments here and here.
For previous posts on Mensing and related issues go here, here, here, here, here, here, here, here, here, and here.
What makes the case controversial is the question of whether the decision is contrary to the holding in PLIVA v Mensing, the US Supreme Court decision holding that inadequate warnings cases against generic drug manufacturers are preempted because federal law requires the warnings for generic drugs to be identical to those of branded drugs. Not surprisingly, the Drug and Device blog has taken the position that the opinion is simply wrong (although they use stronger language). You can read their comments here and here.
For previous posts on Mensing and related issues go here, here, here, here, here, here, here, here, here, and here.
Judge gives preliminary approval to settlement in BP oil spill case
The TortsProf blog is reporting that the judge in the BP oil spill case has given preliminary approval to a settlement. Go here for the full story.
Saturday, May 5, 2012
Article debunks the myth that tort reform is needed to prevent doctors from leaving
A new article by David Hyman (Illinois), Charles Silver (Texas), and Bernard Black (Northwestern) written an article that challenges the common argument by tort reformers that medical malpractice liability has a direct effect on physician migration. In their article, the authors examine the evidence available in the state of Texas and conclude that
Thanks to TortsProf blog for the link.
"[b]efore Texas adopted tort reform in 2003, proponents claimed that physicians were deserting Texas in droves. After tort reform was enacted, proponents claimed there had been a dramatic increase in physicians moving to Texas due to the improved liability climate. We find no evidence to support either claim. Physician supply was not measurably stunted prior to reform, and did not measurably improve after reform. This is true whether one looks at all patient care physicians in Texas or at high-malpractice-risk specialties"You can read the article here.
Thanks to TortsProf blog for the link.
Comment on whether the FDA is doing enough to protect the public
The PopTort is reporting on a number of studies that support the conclusion that the FDA isn’t protecting the public from safety problems that arise once a drug is on the market. This really should not be surprising to anyone, though, given how
under-resourced the FDA is, how lax our regulatory laws are, and how
conflicts of interest routinely interfere with this agency’s safety
role. Go here to read the comment, which cites and links to studies by the Institute of Medicine, the Journal of the American Medical Association and an article in the New York Times.
Maryland Court holds that pitbulls have inherent propensity to attack; changes the elements of cause of action
As you probably know, according to traditional principles of strict liability, the owner of a domesticated animal can be strictly liable for the damages it causes if the plaintiff shows that the owner had knowledge of the dangerous propensities of the animal. Typically, that evidence would be that the defendant knew the dog acted overly aggressively toward people, that it tried to attack people or, obviously, that it had bitten people in the past. Lacking that evidence, the defendant would only be liable if the plaintiff could show negligence.
In this new case, the Maryland Court of Appeals held that if the dog is a pit bull or a pit bull mix, the plaintiff only needed to show that the defendant knew the animal was a pit bull or a pit bull mix. In a way, thus, the court found that by their very nature all pit bulls and pit bull mix dogs have dangerous propensities.
For this reason, the owner of a pit bull that causes an injury can be strictly liable even if the dog has never before shown any aggressive behavior of any kind. Three judges dissented, arguing, among other things, that the majority opinion should not have ruled as it did when the parties had not offered expert evidence on the question of the inherent dangerous propensities of pit bulls.
The case is called Tracey v. Solesky and you can read the full opinion here.
UPDATE (August 2012): On a motion to reconsider the court has amended the opinion to eliminate the references to "pit bull mixes." The ruling now applies only to pure pit bulls.
UPDATE (December 2012): The Solesky family has released the tape of the 911 call in this case. Go here for more on the story and to listen to the tape.
UPDATE (Summer 2013): After a long process, the attempt by the Maryland legislature to enact a statute to override the holding in Tracey has failed. Both the House and the Senate approved statutes but they did not agree on the approach to use to deal with the issue. A committee was formed to reconcile the bills, but the resulting compromise bill did not have the votes to pass.
UPDATE (April 2014): Governor signs new bill into law. Bill abrogates holding in Tracey v. Solesky. Now there are three different approaches to the issues of injuries caused by dogs. If the injury is caused by a dog while "at large," the plaintiff can bring a claim under strict liability principles without having to show knowledge of dangerous propensities. In cases that do not involve a dog "at large," if the claim is against the owner, the attack creates a rebuttable presumption of knowledge of dangerous propensities. If the case is against the landlord of the owner of the dog, the plaintiff has to show knowledge of the dog's dangerous propensities, as well as knowledge that the dog was on the leased property and that the landlord had the authority to remove the dog or to have the dog removed from the property.
Thursday, May 3, 2012
Dentist drops tool, patient swallows it, patient sues... why doesn't dentist settle?
Professor Jonathan Turley wonders (here) why a dentist whose negligent conduct obviously caused an injury would not settle the case quickly...
Update on HR 5, the federal malpractice reform bill
The PopTort has an update on the status of HR 5, the federal malpractice reform bill here.
My first impressions of the bill, which has been around for over a year now, can be found here. Since then, I have posted comments and updates on the bill here, here, here, here, here, here, here, here, here, here and here.
My first impressions of the bill, which has been around for over a year now, can be found here. Since then, I have posted comments and updates on the bill here, here, here, here, here, here, here, here, here, here and here.
Comment on Padilla v. Yoo
Yesterday I reported (here) that the Court of Appeals for the 9th Circuit issued an opinion in which it held that John Yoo, one of the legal architects of the Bush administration policy on torture, is entitled to qualified
immunity because - according the the opinion - "it was not clearly established in 2001-03 that the
treatment to which Padilla says he was subjected amounted to torture.”
Today, over at PrawfsBlog, the author of an amicus brief in the case on behalf of legal ethics scholars in support of Padilla has posted a brief comment on the case arguing that the court's analysis missed the mark. He also explains that "[a]mong Yoo's objections to Padilla's suit was his view that the suit amounted to a complaint that he gave “incorrect” or “erroneous” legal advice as a government attorney. The amicus brief responded directly to this contention by arguing that “Yoo did not merely give ‘wrong’ advice in performing customary legal duties," rather "he acted outside of his legal role altogether by participating directly in the formulation of policy that gave rise to the deprivation of [Padilla’s] constitutional rights and by creating legal cover for unlawful detention and interrogation policies.”
You can read the full comment here.
Today, over at PrawfsBlog, the author of an amicus brief in the case on behalf of legal ethics scholars in support of Padilla has posted a brief comment on the case arguing that the court's analysis missed the mark. He also explains that "[a]mong Yoo's objections to Padilla's suit was his view that the suit amounted to a complaint that he gave “incorrect” or “erroneous” legal advice as a government attorney. The amicus brief responded directly to this contention by arguing that “Yoo did not merely give ‘wrong’ advice in performing customary legal duties," rather "he acted outside of his legal role altogether by participating directly in the formulation of policy that gave rise to the deprivation of [Padilla’s] constitutional rights and by creating legal cover for unlawful detention and interrogation policies.”
You can read the full comment here.
Wednesday, May 2, 2012
Court of Appeals holds John Yoo is immune from liability for his role in justifying torture
The Court of Appeals for the Ninth Circuit has just issued an opinion holding that John Yoo is immune from a
lawsuit by a U.S. citizen who said he was tortured while detained in a
military brig. Yoo, as I am sure you remember, was one of the lawyers who designed the arguments used by the Bush administration to support the legality of its use of torture. The opinion of the court is available here.
For more on the story go to the blog of the Supreme Court, The Wall Street Journal law blog, Legal Ethics Forum and the New York Times.
A more interesting question that is not addressed by this case, though, is whether Yoo's conduct was unethical. There has been a lot of discussion (and there is a lot of literature about it out there) already.
For a great discussion of the story on the role of the attorneys in the Bush administration you should watch the show "Cheney's Law" which is available here, particularly starting with chapter 4, which starts about 25 minutes into the show. Here are chapters 4, 5, 6 and 7 :
For more on the story go to the blog of the Supreme Court, The Wall Street Journal law blog, Legal Ethics Forum and the New York Times.
A more interesting question that is not addressed by this case, though, is whether Yoo's conduct was unethical. There has been a lot of discussion (and there is a lot of literature about it out there) already.
For a great discussion of the story on the role of the attorneys in the Bush administration you should watch the show "Cheney's Law" which is available here, particularly starting with chapter 4, which starts about 25 minutes into the show. Here are chapters 4, 5, 6 and 7 :
Watch Cheney's Law on PBS. See more from FRONTLINE.
Watch Cheney's Law on PBS. See more from FRONTLINE.
Watch Cheney's Law on PBS. See more from FRONTLINE.
Watch Cheney's Law on PBS. See more from FRONTLINE.