Saturday, June 30, 2012

Response to criticism regarding the New Hampshire new law on early offers in med mal cases

A few days ago I reported (here) that the New Hampshire legislature voted to override the Governor's veto of a new law instituting an early offer program for medical malpractice cases.  I also provided a link to an article in the PopTort blog that is very critical of the proposal.

Professor Chris Robinette, of Widener University School of Law, a supporter of early proposal programs - or at least of this one in particular - has now published a reply to the PopTort's criticism. You can read his article here.

Wednesday, June 27, 2012

Verdict against Virginia Tech is upheld

Back in March I reported (here) that Virginia Tech University had been found liable to the families of two students in a wrongful death claim for the University's negligent response to the 2007 campus shootings. The Jurist is reporting now that the verdict has been upheld on appeal.  This is not the likely to be the end of the story, though since the defendant will likely appeal to the state supreme court.  Go here for a full report which includes lots of links to more information.

New Hampshire overrides governor's veto on "early settlement proposal" bill -- UPDATED

Back in April I reported that New Hampshire was considering a bill to create an alternative to the way litigation is conducted by establishing a voluntary process that involved early settlement proposals.  Go here for the background on the story.  I also commented on the pros and cons of such an approach. Go here and here for comments by me and others on the proposal.

The proposal was adopted but then  vetoed by the governor.  But that was not the end of it.  The PopTort is now reporting that the state legislature has voted to override the veto and adopted the measure.  Go here for a comment by the PopTort very critical of the bill.

UPDATE (6/30):  You can read a reply to the PopTort's article by Professor Chris Robinette at the TortsProf blog here.

Tuesday, June 26, 2012

New report concludes what we already knew: tort reform does not result in lowering costs of health care -- UPDATED

The TortsProf blog is reporting (here) on a new study that concludes something we already knew, or at least would expect, that Texas's 2003 tort reforms did not lower health care costs. Go here for more details.

The reason no one should be surprised by this finding is that it is consistent with every other study on the subject.  I have yet to see any credible evidence that supports the claim that tort reform helps lower the costs of health care. 

Public Citizen published a report that reached the same conclusion in 2011.  Go here for a summary and a link to the report.  Other previous reports have reached the same conclusion.  For some examples go here and here (where you will find links to 15 articles on this subject).

UPDATE (6/26/12):  The PopTort has a comment on the more recent study here.

Wednesday, June 20, 2012

New Hampshire "early proposal" bill has been vetoed

Back in April I reported that New Hampshire was considering a bill to create an alternative to the way litigation is conducted by establishing a voluntary process that involved early settlement proposals.  Go here for the background on the story.  I also commented on the pros and cons of such an approach. Go here and here for comments by me and others on the proposal. 

I thought the bill would become law (here is the more recent update before today's news), but surprisingly the TortsProf blog is reporting today (without any more details) that the governor has vetoed it. 

Tuesday, June 19, 2012

Analysis of England's new defamation bill

In response to arguments against the  plaintiff-friendly approach to defamation in England, which has led to some calling London the "libel capital of the world", the British government has unveiled a new new defamation bill which, among other things attempts to limit the practice of "libel tourism" - the practice of bringing libel lawsuits in Britain even in situations where the case has limited connection to the jurisdiction. 

The Citizen Media Law Project has published a short analysis of the proposed new law here.  It concludes that although the bill does make noteworthy progress on the problem of libel tourism, it takes at least one, if not several, steps backward when it comes to anonymous online speech.  Go here for the full report.

Podcast on medical apology programs

Here is a link to a podcast with a very interesting title: "How Medical Apology Programs Harm Patients."  The podcast discusses a paper which is available for download here.

Texas case may affect future of defamation law in the state

The is reporting that the Texas Supreme Court has agreed to review a libel case that could substantially affect the way news media report on controversies.  At issue is whether Texas courts recognize the "third-party allegation rule," which can shield reporters and media companies from defamation lawsuits if an allegation is accurately reported, even if the claim itself is untrue or mistaken.  The case is called Neely v. Wilson.  Go here for more details.

This "third-party allegation rule" sounds like a combination of the widely accepted "fair report privilege" and the not so widely accepted "neutral report privilege."  The fair report privilege may protect a reporter from liability if the report relied accurately upon official public documents or statements by a public official. This privilege enables someone to escape liability for a story about what people say during a council meeting or from the witness stand during a trial or to quote from public records even if the information turns out to be false and defamatory.  The "neutral report privilege," on the other hand, protects the press from liability for reports on matters of public interest when the report accurately repeats an accusation made by one public figure about another.  Without these privileges, if you publish what another person has said or written and that statement turns out to be false and defamatory, you may be liable for defamation too. 

The "third party allegation rule" discussed in the case in Texas seems to be broader than these two privileges in that it is not limited to reports that originate in official documents or statements or limited to public figures. The plaintiff has argued that recognizing such a broad privilege would give the media immunity in too many cases, an argument I think is valid. 

The question is what limits are there to the defense the defendant is claiming protects its right to report on a story of public concern. Saying that there can be no immunity because the press is simply repeating what someone else is saying, would be a radical departure from standard defamation theory and practice.  It would eliminate an incentive for the press to investigate a story or allegations fully before publishing them.  On the other hand, the press can't be forced to be 100% accurate when relying on other sources as it must do most of the time.  Thus, the better public policy will be achieved by reaching some compromise between the two interests that need to be protected.

Wednesday, June 13, 2012

NY Court finds that wrongfully imprisoned client cannot collect noneconomic damages in malpractice action

About a month ago, the New York Appellate Division, Fourth Department, issued a very short opinion reaffirming the view that a plaintiff cannot recover non-pecuniary damages in a legal malpractice action.  According to the court, New York courts have generally rejected the claim that a plaintiff in a legal malpractice action is entitled to non-pecuniary damages arising out of representation in civil proceedings.  Here, the plaintiff argued the case was different because his claim involved a malpractice on the part of a criminal defense lawyer.  The plaintiff argued that, based upon the type of egregious harm most likely to be suffered by a defendant who is the victim of malpractice in a criminal action -- the loss of liberty attendant to a period of incarceration -- harm that is non-pecuniary in nature.

Thus, assuming the statement about the state of the law in legal malpractice in civil cases is correct, a decision in favor of the plaintiff in this case would have meant that plaintiffs suing criminal defense lawyers for malpractice would have the right to recover for a certain category of damages that plaintiffs suing for malpractice in civil cases wouldn't. 

The court did not agree with the plaintiff and held that plaintiffs in malpractice actions are not entitled to anything but pecuniary damages. 

The court concluded that "[a]llowing this type of recovery would have, at best, negative and, at worst, devastating consequences for the criminal justice system. Most significantly, such a ruling could have a chilling effect on the willingness of the already strapped defense bar to represent indigent accused. Further, it would put attorneys in the position of having an incentive not to participate in post-conviction efforts to overturn wrongful convictions."

I have not researched the question to see what is the prevailing view on this in other jurisdictions, but I do not find this reasoning convincing. I understand the concern about a chilling effect, and the desire to provide incentives for attorneys to help indigent defendants.  But I don't understand the need to limit the possible recovery of a plaintiff that has the right to recovery.

The burden of proof in any malpractice case is high and in criminal cases it is even higher since the former criminal defendant has to show actual innocence (in most jurisdictions including NY - something the court gets wrong in the opinion, by the way).  This means the likelihood that a plaintiff would be successful in a malpractice case of this sort is low, and if the case is such that this is possible it probably involves clear negligence on the part of the lawyer.  Why deny recovery to a deserving plaintiff who has clearly suffered an injury caused by a negligent lawyer? 

The case is called Dombrowski v. Bulson and the court's opinion can be found here.

Circuit split on the standard needed to apply the discretionary function exception to the FTCA

One of the most important exceptions to the Federal Torts Claims Act is the so-called "discretionary function" exception.  According to this exception, the Federal government is immune from liability for the damages caused by discretionary conduct of one of its employees.  As you would imagine, of course, much of the litigation in this area revolves around the question of whether the particular conduct in question should be considered to be discretionary.  As a general rule, courts have developed a two step analysis for dealing with the question:  first the court must determine if the conduct is in fact discretionary, which is usually done by examining whether it was mandatory or whether there were options available for the actor. Second, it has to be determined if the discretionary conduct is the type of conduct for which the government should be given immunity, which usually requires the court to determine if the decision to engage in the conduct was based on public policy grounds. 

However, different courts have interpreted, or applied, the analysis differently.  The blog Circuit Splits (which is devoted to providing references to splits on issues among circuit courts) just published a summary of the split on this topic.  If you are interested in this topic, you may want to take a look at it here.

Tuesday, June 12, 2012

New report on insurance companies practices in personal injury cases

Public Citizen is reporting on a new report by the Consumer Federation of America that finds that "[o]ver the past ten to fifteen years, the payment of bodily injury claims covered by automobile or home and property insurance has evolved from a system based primarily upon the experience and knowledge of claims’ adjusters to a computer-based assessment that has the potential to be easily and broadly manipulated by insurers. This technology has enabled many insurers to increase profits by reducing the amount paid to consumers who file bodily injury liability claims, including uninsured and underinsured motorist claims."  Go here for an executive summary of the report.

Monday, June 11, 2012

BP Oil Spill Settlement Update

Here is a link to a podcast on the BP Oil settlement.

Update on Johnson & Johnson

Not too long ago, it seemed that a day did not go by without news of a recall of Johnson & Johnson product, but eventually things started to calm down.  Or did they?  Today, the PopTort has published an update on some of the problems faced by the company, which include recalls, thousands of pending cases, fines and penalties, and settlements for lots of injuries caused or allegedly caused by J&J products in recent years.  Go here for more details.

Sunday, June 10, 2012

Update on New Hampshire's early offer proposal

The TortsProf blog has the most recent news on the "early proposal" bill in New Hampshire here and links to an article in the The Union Leader here.  (For the background on this story go here.)