Wednesday, September 26, 2012

Is a doctor negligent for advocating that people should be hungry all the time?

I will start covering medical malpractice in my torts class in a couple of days so I thought it would be relevant to post this story today.  It is a story about a physician - a cardiologist - who advocates patients to live on a diet based on how much their food weighs.  The story was reported back in June, but I just read about it for the first time today in a fellow law professor's blog.

The doctor's theories on managing weight became news when he was connected to the investigation of the death of a child.  According to news accounts, the child's mom, who was charged with murder for allegedly starving her teen daughter to death, was following the advice of the doctor who encourages people to eat just 32 ounces of food a day. The child, who was 15 or 16, weighed about 40 pounds.

In a video available in YouTube (and here and here), the doctor explains the "scientific" principles behind his theories saying that "being hungry is wonderful. The opposite of hungry, which is not hungry, is the opposite of wonderful, which is terrible."  He also claims to mathematically "prove" that being hungry is wonderful by explaining that "when we're 10 times hungrier, doesn't food tastes 10 times better? And when food tastes 10 times better, that's wonderful, isn't it?... It's a mathematical principle."

Well, there you have it! Who can argue against such scientific evidence, right?!

According to some accounts, the doctor has been called everything from "crazy" to a "caring" and "very educated" man whose findings are rooted in science and scripture.  Crazy? Nooo; really?  Who would think that?...  although I do find the suggestion of scientific findings rooted in science and scripture rather puzzling, to say the least.

OK; so here is the torts angle I would want my students to consider.  Let's assume the doctor actually suggests to a patient to go on a diet based on how much the food weighs, which, by the way, is what this doctor suggests.  His idea is not based on calories, but on actual weight.  Put your plate on a scale, fill it up until it weighs 2 pounds and that is all you get to eat all day.  Sure it is an easy diet to follow - if you have an accurate scale at home, I guess - but is it healthy?  Does this "medical advice" follow the standard of care of the profession?    And if it doesn't and a patient following the advice suffers an injury, could they bring a cause of action?

To complicate matters, what if the person is not an actual patient of the doctor but someone who read his book or his website and followed the advice published there (in print or online).  Can that person bring a claim?

Your thoughts?

For more details on this bizarre story go to ABC news.com, The Daily Mail and The New York Daily News.

Monday, September 24, 2012

NFL refs, illegal hits and torts

If you are a football fan you know that the NFL referees have been locked out and the league is using substitutes and that there is a huge controversy over the quality of the work they are doing.  Also, there is a lot of talk about the fact that some players are playing much more violently because they think they can get away with it.  I did not watch much football yesterday, so I missed this bit of news when it happened but just heard of a hit on the Texans' quarterback by a Denver Broncos' defender which resulted in a serious injury to the QB.  According to the story, he will lose a little part of his left ear.

The refs did impose a penalty for the play, but the discussion now is whether the conduct was so far outside the lines that the injured player should have a claim for the injury.  Torts students who used the Prosser textbook may remember Hackbart v. The Cincinnati Bengals in which the court discusses the concept of consent to intentional torts in the context of organized sports.  According to the generally accepted view discussed in that case, players who voluntarily engage in organized sports agree to the inherent risks of the sport which includes conduct that violates the rules.

At some point, though, it could be argued that the conduct is so far outside the rules and customs of the game that it should be actionable.  If the player had purposely taken the QB's helmet off and then bit into his ear, a la Mike Tyson, I'd say you can argue for possible liability.  Or if the hit was obviously late, after the play had blown dead and the other player had let down his guard.

But the case is much closer when the play is fast, before the whistle blows, even though the player goes for a hit to the head, or shoulderpad to head etc.  Yes, the hit is illegal according to the rules but it is still a known risk of the game.  The video I saw of the play in question here, in my opinion, does not show a blatantly late hit.  It is not the lateness of the hit that was the problem.   It was the fact that it was clearly -in my opinion at least- to the head of the QB. 

Clearly, the fact the play is against the rules is not going to be enough to justify allowing possible liability.  What would be enough, is not all that clear, though. Professor Jonathan Turley has a good discussion of the question in his blog which you can read here

Second set of lawsuits filed out of attack at Batman movie in Colorado

Last July I reported on the first lawsuit filed arising out of the shooting at the opening of the Batman movie in Colorado.  See here and here.  That claim was filed by a man who did not suffer a physical injury.  His claim is based on the fact that his best friend was shot in the chest and died. In other words, the claim is for the fear the plaintiff suffered himself and for the emotional distress at witnessing someone else suffer a physical injury.  I have not followed up on what has happened with that claim since, but now comes news that a new set of claims have been filed.  CNN.com is reporting that three people wounded in the shooting have filed claims against the theater owner claiming that the theater lacked adequate security or sufficient alarm systems.  Go here for more on the story.

For a related story on the possible liability of the shooter's doctors go here.

Thanks to the TortsProf blog for the new link.

Saturday, September 22, 2012

New system for reporting medical malpractice?

I have always liked the expression that the best way to reduce the amount of medical malpractice litigation is to reduce the incidence of medical malpractice.  This is not necessarily easy to do for many reasons, but the New York Times is reporting on a new government initiative that may help. According to the article, the Obama administration is working on instituting a system for consumers to report medical mistakes and unsafe practices by doctors, hospitals, pharmacists and others who provide medical services.  At least some hospitals have declared they are receptive to the idea, despite concerns about malpractice liability and possible financial penalties for poor performance.  Go here to read the full article.

Thursday, September 20, 2012

New interview with the director of the movie Hot Coffee

Remember the movie "Hot Coffee"?  It was released at the Sundance Film Festival about two years ago and then had a run on HBO.  Along the way it became an instant source of debate on tort reform.  It was praised by those who oppose tort reform and criticized by those who support it.  I, on the other hand - although I generally oppose tort reform - think the movie is weak.  But you have to see it for yourself.  I think it is weak because it is just not a particularly good documentary mostly because it tries to do too much.  It attacks several different issues and does not do a particularly good job of connecting them.  I still think you should see it, but I don't think it is one of the great law related documentaries.  For a list of my favorites, go here.

In any case, I am bringing this up again today because the director of Hot Coffee recently recorded a new interview for the folks at the Legal Talk Network.  You can access the audio here

For those of you who don't know the background about the movie, or who want more information and links to many of the articles and opinion pieces (both for and against the movie) you can take a look at my previous posts on the movie:

Hot Coffee at the Sundance Film Festival 
Hot Coffee on HBO 
Interview with the director of the documentary "Hot Coffee" 
Two articles on hot coffee and tort reform
Not everyone likes hot coffee
More hot coffee for you 
Two comments in one
Debate on the movie Hot Coffee

Monday, September 17, 2012

New case on the possible liability of an aluminum bat manufacturer

My blog friends over at Abnormal Use are reporting on yet another little league baseball bat case today.  For a change, though, this one was decided in favor of the manufacturer.  I posted a comment on their website so you can go there and read their post and my comment.  Let me just add one point here.  According to the story, the judge who decided the case wrote that "the experts who testify about the supposedly dangerous characteristics of aluminum bats are talking about a relative scale. Fewer players would be injured if Little Leaguers used foam-rubber bats, but it doesn’t reasonably follow that manufacturers of wooden bats would then be liable for imparting “increased exit speed” to the ball."

It seems to me this view misses the point.  One basic underlying theory of tort law is that we can't make our society entirely safe.  Risk, danger and injuries are a part of life.  Tort law is one of many mechanisms we can use to regulate the level of risk we are willing to accept in our lives, not to eliminate it.  We can't eliminate all risk, and even if we could, we would not want to because that would mean abandoning many of the convenient things we use and enjoy - like cars, for example.  And baseball.  Yes, it is true that fewer players would get injured if we played baseball with rubber bats and whiffle balls, but then that would not be baseball.  The point is that we have accepted the risks of baseball when played with hardballs and solid wood bats.  But as we start our kids playing the game earlier and earlier we want them to be as safe as possible while still playing the game.  That is why we now require better helmets and protection and other things.  That is why Little League baseball (the official organization) has banned the use of dangerous aluminum bats and regulates those that are permitted for competition. 

The fact that we have used the solid wood bat as a benchmark for one of the risks involved in baseball makes it easier - not more difficult, as the judge suggests - to explain the level of risk involved and to justify recognizing a cause of action the result of which - at least in theory - may work to help regulate that risk in the future.

For my most recent posts on baseball bat safety go here and here.

Friday, September 14, 2012

Center for Justice and Democracy new book on medical malpractice

The Center for Justice and Democracy has published a new booklet on medical malpractice statistics called Briefing Book, Medical Malpractice: By the Numbers. (You can download it by clicking on the title).  According to the Center's own blog, "this no-frills, 70-page document – nothing but statistics and key quotes, all fully sourced and footnoted - is a must read for anyone seeking information about these and many other medical malpractice and health care issues today."  For more information on the book go here.

Wednesday, September 12, 2012

Standard of care that applies to children?

This re-post does not really have anything to do with torts but because in two days we will cover the standard of care that applies to children, I am going to post it here.  It comes from the very funny blog "Say What?" which collects true funny stories from real life cases.  In this particular case, a teenager apparently got some citations (for speeding, I guess) but did not tell his parents (both attorneys).  As a result a warrant was issued.  The parents then filed a motion to withdraw the warrant in which they stated:
2. Defendant is a teenage boy and therefore, as a matter of law, doesn’t have a lick of good sense. Despite the fact that his parents are licensed attorneys, Defendant felt it was the better course to not tell them about the citations. Therefore, upon information and belief, the dog ate the citations.
When submitting the story to "Say What?", the judge added  “After wiping the tears from my eyes, I signed the order as Municipal Court Judge/Mother of a Teenage Son.” 

Thursday, September 6, 2012

Last chance to nominate your favorite blogs for the ABA law blog's list

Today is the last day to nominate your favorite blogs for the ABA Journal 's annual 100 best legal blogs ("Blawg 100") list. If you have enjoyed reading my blog, please consider voting for it by going here.

Wednesday, September 5, 2012

World Trade Center case against airlines for negligence leading to Sept. 11 attacks set for trial

 The New York Times is reporting (without much detail) that a federal judge has denied a motion filed by American Airlines and United Continental Holdings in one of the remaining cases arising out of the Sept. 11, 2001 terrorist attacks which means the case will be set to go to trial.  This is the case filed against the airlines in 2008 by World Trade Center Properties, which owned the twin towers destroyed in the attacks.  

UPDATE 9/5/12:   The Jurist provides a little more information:  The airline's motion had argued that they should not be required to go to trial because the plaintiff had already recovered compensation in a settlement with insurance companies.  The judge's opinion denying the motion is available here.

Monday, September 3, 2012

California Supreme Court changes rules on apportionment of liability

The Wall Street Journal is reporting (here) that the California Supreme Court has changed a long-standing rule on liability among multiple defendants.  In a case called Leung v. Verdugo Hills Hospital (available here), the court ruled that a plaintiff who settles with one defendant among several does not release the rest from liability.  Although apparently this is a break from a long standing rule, it is not surprising to me since this is the generally accepted rule.

The new rule is fair and attempts to advance the public policy of encouraging settlements. The court explained that the recovery from defendants other than the one who settles will be adjusted by the amount of the settlement, not the percentage of fault of the party that settled, thus preserving the use of the doctrine of joint and several liability and creating an incentive for the non settling defendants to settle.

The incentive to settle is also preserved because once a party settles, the non settling party is not allowed to go after the settling party for contribution.  This is the rule in Illinois and it makes a lot of sense.  Once a party settles, that party should be considered to be out of the picture entirely.   Otherwise, there would be no incentive to settle. 

However, in Leung, the California Supreme Court explained that this should not be the case if the settling party and the plaintiff were found to have settled the case in bad faith.  In such a case, defendants who don’t settle and find themselves with an excess share of liability can sue for contribution against the defendant who did settle.  In combination with the previous rule, this encourages parties to settle and to do it in good faith.

Sunday, September 2, 2012

Update on the debate on whether pit bull owners should be held strictly liable for injuries caused by their dogs

Back in May I reported (here) that the Court of Appeals of Maryland issued an opinion holding that the owner of a pit bull could be held strictly liable for the injuries caused by the dog. (The decision in the case, called Tracey v. Solesky, has been stayed until the court hears a motion to reconsider.)

Then last month, the ABA adopted a resolution urging legislative bodies not to adopt breed specific dog regulations. See here

Now, the September issue of the ABA Journal has an update on the debate in Maryland.  It reports that pit bull owners and their advocates have persuaded state legislators to convene a task force aimed at overriding the decision of the Court of Appeals.  Go here to read the article.

UPDATE 12/17/12:  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.

Chicago White Sox pitcher sued for failure to act; did he have a duty?

A former student of mine sent me this link to a bizarre story about a recently filed lawsuit against a Chicago White Sox pitcher.  According to the report, Sox pitcher John Danks "was hit with a lawsuit earlier this month alleging he failed to call 911 after his high school classmate was injured when he fell about 10 feet onto the rooftop deck of Danks’ Chicago condo."

I have not seen the complaint itself, but, again, according to the newspaper story, the plaintiff's brother pushed the plaintiff off a structure causing him to fall.  Danks had nothing to do with that.  It is not reported that he helped push the plaintiff or encouraged anyone else to do so.  Thus, the only basis for a claim against him is the fact he did not help the plaintiff after the fall.  This is a classic example of the issues raised by the old generally accepted rule that says there is no duty to help.

Unless there is a specific statute or other specific common law that creates a duty to help, it seems to me there is no basis for this claim.  Unseemly as it may seem, the rule has always been that a person has no duty (as it relates to torts) to help someone in need.

Now, it is possible that the plaintiff is arguing that the fact the accident happened in the defendant's home somehow should make a difference or that other facts not mentioned in the newspaper story impose a duty on the defendant. Or, it is also possible that the plaintiff is arguing that it is time we abandon that old view and adopt a new position on the subject. 

But, if the argument is simply that there should be liability because the defendant failed to act, without more, it seems to me the case is weak.

Thanks to Robert Foltman for the link to the story.