Saturday, April 15, 2017

More bad news for victims of medical malpratice; more tort reform bills, this time in Iowa -- UPDATED

For almost two months now all my posts have been about medical malpractice reform bills.  Today's update comes from Iowa where the state Senate has passed a tort reform bill (Senate File 465) which  includes provisions capping awards for non-economic damages at $250,000, requiring a "certificate of merit" to screen out litigation and establishing standards for expert witnesses.  There is more on the story here.

Apparently, the reforms were based on the discredited argument that they are needed to either keep doctors from leaving the jurisdiction or to attract doctors to the jurisdiction, an argument that is not supported by available empirical evidence.   Also, the provision regarding "certificates of merit," as usual, was supported by the argument that it is a good way to screen out frivolous litigation.  And, again, this argument is misleading because even though it may have that effect, the real goal of the provision is to make it more difficult for plaintiffs to be able to bring non-frivolous litigation.  There are plenty of other mechanisms in place already that prevent frivolous litigation.

UPDATE (4-15-17):  The TortsProf blog is reporting that the Iowa House has now passed the med mal reform bill, but fortunately, it was amended so it is not as bad as originally proposed.  The amendment eliminated the "hard cap" and created an exception that would allow juries to make awards of more than $250,000 in cases of “substantial or permanent loss or impairment of bodily functions and substantial disfigurement.”  Because of the this amendment, the House bill and the Senate bill will have to be reconciled.

Tuesday, April 4, 2017

US Supreme Court agrees to hear case on the Alien Tort Statute to decide whether Corporations can be liable

It has been more than two years since I have posted anything related to the Alien Tort Statute because, well, with the 2013 US Supreme Court decision in Kiobel v Royal Dutch Petroleum the court pretty much made the statute irrelevant.  That case raised the issue of whether the statute could be used to support claims against corporations. However, in a surprising move, the Court asked the parties to brief a different issue (extraterritoriality), and eventually decided the case based only on that issue.  For all the background stories, go to the Alien Tort Statute section of the blog here.

In 2014, the Court of Appeals for the 9th Circuit decided one case on the ATS holding that  holding that corporations, and not just state actors, can face liability for violations of universal norms under the Alien Tort Statute.  At the time, I thought that case would open the door for a renewed discussion of the issue, but the case did not reach the Supreme Court.

But now the wait is apparently over.  Just a few days ago, the U.S. Supreme Court agreed to hear a case in which the issue is precisely whether corporations can be liable under the Alien Tort Statute.  Stay tuned!

For more information and some links on the case (Jesner v. Arab Bank) go here.  For up to date coverage and access to all the documents related to the case go to the SCotUS blog here.

Thursday, March 23, 2017

Update on Congress' work on med mal tort reform

Earlier this month, I wrote a note about efforts in Congress to pass tort reform bills that could have seriously negative/damaging effects on the ability of victims of medical malpractice to recover for injuries.  Today, the PopTort has an update here. The article is called "Congress Moving to Protect Doctors Who Abuse and Assault Children."  It sounds like an exaggeration, but if you read the article you'll see why it is not. 

Saturday, March 11, 2017

Accreditation Council for Graduate Medical Education will allow interns to work up to 28 hours without a break

At a time when it is being reported that medical errors is now the third leading cause of deaths in the US, the maximum workday for first-year medical residents just got substantially longer. The group that sets rules for training doctors announced Friday it will be scrapping the 16-hour cap on shifts worked by doctors who have just graduated from medical school.  As of July 1, the Accreditation Council for Graduate Medical Education will allow these first-year residents, also known as interns, to work 24 hours without a break — and sometimes as long as 28, if a particular transition between doctors demands it.  NPR has more on the story here.

The Associated Press notes the American Medical Student Association and the Committee of Interns and Residents oppose the change.  Also, Dr. Michael Carome, director of Public Citizen's Health Research Group has stated that "[s]tudy after study shows that sleep-deprived resident physicians are a danger to themselves, their patients and the public," and that "[i]t's disheartening to see the ACGME cave to pressure from organized medicine and let their misguided wishes trump public health."

Sunday, March 5, 2017

Tort reform efforts under way in Congress

Now that Republicans control the Senate, the House and the White House, it is not surprising to hear about new efforts to interfere with the rights of injured plaintiffs in the name of tort reform.  Recently, the House Judiciary Committee approved legislation capping damages in medical malpractice cases.  The vote was 18-17.  The federal legislation would cover individuals who are insured under Medicare, Medicaid, veterans or military health plans, and the Affordable Care Act, and could also impact people covered under COBRA or health savings plans.

Given that medical errors is now the third leading cause of deaths in the US, this is very important stuff.

The bill is based on the false premises and allegations that have been proven wrong time and time again, but that continue to be used in support of attempts to make it more difficult for injured victims to be able to recover for their injuries.  Some of these myths include the allegation that litigation costs result in more expensive services and higher insurance costs.  For a lot of information on these types of allegations and the studies that refute them you can go to the medical malpractice and tort reform sections of this blog and scroll down.  For a short critique of the house bill go here.

For more information about this and other attempts to push “tort reform” bills through the Republican-led Congress which seek to limit the rights of victims  while protecting large corporations and insurance companies go to  AboutLawsuits.

Update on tort reform in Arkansas -- UPDATED

Feb. 20, 2017:   About 10 days ago, I reported on the tort reform efforts in Arkansas (see below).  Here is an update, as reported in the TortsProf blog: The Arkansas Senate voted 21-10 to send a proposed constitutional amendment involving damage caps to the House for further consideration.  Given that 53 of the 100 members of the House are co-sponsors, it has a good chance of passing.  If the House approves the proposal, it will be on the ballot in the 2018 general election.  Arkansas Online has the story; more coverage here.

UPDATE (3/5/17):  The TortsProf blog has updates here and here.  The house bill doubled the amount of the proposed cap on non economic damages to $500,000.  That's the good news.  The bad news is that a cap is still a cap.  The new bill must now pass both houses.

Friday, February 10, 2017

Tort Reform efforts in Arkansas; bad news for victims

As reported in the TortsProf blog:

You may recall that last fall the Arkansas Supreme Court struck down a tort reform ballot initiative.  It's back.  The Arkansas Times reports:
A proposed amendment to the Arkansas Constitution filed last week in the Senate seeks to limit the amounts that can be awarded to claimants in civil actions, such as medical malpractice lawsuits. If Senate Joint Resolution 8 is approved by the General Assembly — and with a long list of co-sponsors, it seems likely to pass — it would appear before voters on the 2018 ballot. Sen. Missy Irvin (R-Mountain View) is the lead sponsor.
Like the so-called "tort reform" measure on the 2016 ballot (which was disqualified by the state Supreme Court not long before the election), SJR 8 would place a cap of $250,000 on noneconomic damages, meaning compensation for hard-to-quantify personal losses such as pain and suffering. The proposed amendment also places a cap on punitive damages, though that ceiling is more flexible. But SJR 8 also would give the legislature control over the rules of pleading, practice and procedure in the judicial branch, thus taking power away from Arkansas courts and giving it to the General Assembly.

Thursday, February 9, 2017

Med Mal quiz


True or False:

Medical malpractice cases represent less than 5 percent of all state tort cases.

Medical malpractice insurance claims have dropped by half since 2003, and doctors are paying less for malpractice insurance today than they did in 2001, even without adjusting for inflation.

Medical malpractice insurance industry profits must be suffering!

Medical malpractice lawsuits put physicians at a significant risk of insolvency or personal bankruptcy.

When a state caps damages, health care costs related to physician spending (Medicare Part B) drops.

Doctors in high-risk specialties like neurosurgical spine surgery, who practice in states that have limited patients’ rights to sue, order significantly fewer tests and procedures because they are less likely to be sued (i.e., less “defensive medicine).

For the answers to these and other important and interesting questions go to The PopTort.

Wednesday, February 1, 2017

New article on the effect of artificial intelligence on tort law; should we change the standard of care to what a reasonable computer (programmer) would have done under the circumstances?

Ryan Abbott, professor of law and medicine, has written an article in which he discusses changes in technology and how they might affect tort law. Abbott appears to be the first to suggest that tort law should treat artificial intelligence (AI) machines like people when it comes to liability issues. Also, he suggests that the standard of care used to evaluate human conduct should be based on the competency of a computer (AI) (assuming, of course, that the AI proves to be consistently safer than a human being). This means that defendants' conduct would no longer be compared to what a hypothetical, reasonable person would have done under the circumstances, but to what a computer would have done, which, according to the author, "would benefit the general welfare.” The full article is here.

The proposition raises some very interesting issues, starting with whether it is valid to assume that a computer can always make better choices than a human, and whether a human has the capacity to make the choices a computer would make.  And by the way, let's not forget that computers don't think.  They are programmed to think; by a human programmer.  How should that factor into the equation?

Spoiler alert:  If you have not watched the movie Sully, stop reading right now.  Watch the movie, then come back. Otherwise, go on...
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This was an issue in the movie Sully.  If you recall, the movie tells the story of the investigation regarding the decision by Captain Sully to "land" an airplane in the Hudson river rather than to do what a computer plan would have suggested - to turn around and try to get back to one of two nearby airports.  Sully, as he put it, "eye-balled" it and decided he would not have enough time.  He used his human intuition and experience to determine what was "reasonable" under the circumstances.  The computer, with the benefit of no real time pressure, fear and human emotion concluded that was the wrong course of action and that it would have been not only possible but safer to fly to an airport.  In the movie, and I assume that's what happened in real life, Sully convinced the FAA to alter the test to include some of the human aspects of the decision making process.  Once that was done, the result of the test was different.

Watch the movie.  Think about it.  Get back to me.    


Thanks to the TortsProf blog for the link to the article.

Tuesday, January 31, 2017

Do you remember Katko v Briney (the spring gun case)? Here is the lawyer who represented the defendant!

Way back when you took Torts, your probably read a case discussing whether a property owner can "defend" property from trespassers by using a spring gun.  The case is in every Torts casebook I have reviewed, and Prosser's even has a photo of the defendant.

In any case, the defendant's lawyer was interviewed recently and you can read the interview  here.  The 93-year-old just retired after 66 years of practice.  His reaction when Katko came to him with the case:  "Damn, this will be fun."

Thanks to the TortsProf blog for the link.

Sunday, January 29, 2017

Idaho Supreme Court holds criminal defendant does not have to show actual innocence in malpractice claim against former defense attorney

Just about a year ago I reported (here) that the two most recent decisions on whether a convicted criminal defendant had to prove actual innocence in order to recover for malpractice against his or her former lawyer had broken away from the majority view on the issue.  A few months later, however, the Washington State Supreme Court reversed the trend by adhering to the majority view and holding that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.

Now comes news that last week the Idaho Supreme Court has abandoned the actual innocence rule in a case called Molen v. Christian.  In part, the court concluded:
We hold that actual innocence is not an element of a criminal malpractice cause of action. Requiring a criminal malpractice plaintiff to prove actual innocence is contrary to the fundamental principle that a person is presumed innocent until proven guilty beyond a reasonable doubt. Further, a criminal defendant can be harmed separately from the harm he or she incurs as a result of being guilty of a crime. . . .  Additionally, as a practical matter, requiring actual innocence would essentially eliminate a defense attorney’s duty to provide competent counsel to a client he or she knows to be guilty. For the foregoing reasons, we hold that actual innocence is not an element of a criminal malpractice cause of action.
This means that three of the last four jurisdictions to consider the issue have rejected the majority approach, which makes me wonder if what is the majority has now shifted.  I have not done a state by state survey recently, so I don't know for sure.  However, I have not read anyone make that claim yet, so I assume the majority approach is still to require a showing of actual innocence.  If someone has information about the actual count of how many states follow each approach, please let me know. 

Saturday, January 28, 2017

IL Supreme Court to decide whether fraternity should be liable for injuries to student sufferes injuries after becoming intoxicated at fraternity event

Should the officers, pledge board members of a fraternity or the fraternity itself be liable for the death of a student who becomes intoxicated, loses consciousness, and ultimately dies while participating in a social event at a college fraternity? 

The Illinois Supreme Court has agreed to decide the question as presented in a case called Bogenberger v. Pi Kappa Alpha Corporation.

Like most states, Illinois does not recognize "social host liability" in most cases, but it does recognize possible liability under a statute called the Anti-Hazing Act which recognizes possible liability when the victim is required to drink to intoxication to become a member of a club or organization.

For more details on the case and the issues presented, go to The Appellate Strategist.

Monday, January 23, 2017

New study concludes what we knew already: "stronger" med mal laws do not result in better care

A new study from Northwestern's Feinberg School of Medicine has concluded that stronger medical malpractice laws do not translate to better care.  The TortsProf blog has a link here. This, of course, is not news to anyone who has followed the issues related to med mal law and the attempts to "reform" it.  There are multiple articles and books that discuss the evidence that debunks the myth of a med mal crisis and the need to eliminate the rights of injured victims to recover for their injuries.  For more on the subject you can go the section on medical malpractice on this blog and scroll down.  You will find many stories, links and information on the subject.

Tuesday, January 17, 2017

Alabama Supreme Court reaffirms ruling that recognized a cause of action for the wrongful death of a fetus before viability, adopting view that fetus is a "person" from moment of conception

The Alabama Supreme Court recently unanimously reaffirmed its 2011 ruling that recognized a cause of action for the wrongful death of an embryo even before it was a viable fetus.  In this case, the mother lost her pregnancy during the first trimester, which means the embryo would not classify as "viable," the most common classification used by jurisdiction to determine whether a cause of action for pre natal wrongful death should be recognized.  The case is called Stinnett v Kennedy and you can find a copy here.

The issue of whether to recognize a wrongful death cause of action is not new and many jurisdiction have addressed it.  Yet there are three different approaches to it.  Some recognize a cause of action for wrongful death regardless of the level of development of the fetus at the time of the accident. Typically, it is said these jurisdictions recognize the cause of action from the moment of conception.  Illinois, for example, follows this approach in its wrongful death statute.  Other jurisdictions do not recognize a wrongful death claim for pre natal death at all, finding that for there to be death there has to be life and life begins when the fetus actually survives (however briefly) independently of the mother.  But, the most common approach is to hold that a cause of action should be recognized from the moment when it can be argued the fetus is "viable," meaning from the moment the fetus could survive independently of the mother.

Back in 2011, the Alabama Supreme Court recognized the cause of action in in part by making reference to a state criminal statute law that recognizes homicide of a person to apply to a fetus, regardless of viability.  (This reminds of a scene in an old episode of the popular TV show Law & Order, which addressed whether the law could be interpreted to say that very thing in a state that did not have such a statute.)  The reference seems relevant since wrongful death statutes usually refer to the death of a "person" so courts have to define at what point someone "becomes" a person.  In Alabama, the statute states it applies to the death of a "minor child" but does not define "minor child."

But back to the new case...  So, since 2011, Alabama recognizes wrongful death claims for the death of a fetus since conception.  The issue in the new case, however, challenged the Court's reliance on the criminal statute which is a different question.

The criminal statute recognizes an exception for unintentional "mistakes" by doctors.  This means that doctors can not be prosecuted criminally for unintentional conduct that results in the death of a fetus.  In other words, the legislature decided not to recognize the criminal prosecution of negligent conduct.

Based on this exception to the criminal statute, the defendant in the case argued that since the statute upon which the civil case seems to be based does not recognize criminal liability for negligence, it would be inconsistent to recognize a civil cause of action for the same conduct.

The Court, however, rejected the argument.  The argument would make sense if the Court had recognized the cause of action based on the criminal statute using a "negligence per se" type analysis.  In such a case, it would be inconsistent to impose what could be "ruinous liability" for conduct that legislature did not consider bad enough to impose criminal liability for it.  But that is not the type of analysis upon which the court based its conclusion.  The Court looked to the statute, not as an expression of a duty in tort law, but merely for guidance to define the word "person."

Monday, January 16, 2017

Connecticut rejects Restatement 3d- Products Liability

In what some are calling the most important Connecticut tort-law decision in decades, last month the Connecticut Supreme Court declined to adopt the Restatement (Third)'s approach to product liability design-defect claims and “reaffirm[ed] its allegiance” to a “true strict liability” standard under §402A of the Restatement (Second).  The case is called Bifolck v. Philip Morris, Inc. (Deb 29, 2016).  The TortsProf Blog has more on the story here. Connecticut is thus the most recent of a number of states to have rejected the Restatement 3d's approach. 

Article on the proposed repeal of the ACA and the rights of injured patients to recover for injuries

Joanne Doroshow. Executive Director or the Center for Justice & Democracy at New York Law School, has published a short article on the connection between the proposed repeal of the Affordable Care Act and tort reform efforts to deprived injured patients of their rights to recover for their injuries.

Ralph Nader on Tort Reform

Here is a recent 10 minute interview with Ralph Nader on "tort reform."