Wednesday, March 21, 2018

Injured Spectator vs The Chicago Cubs; Will This Be the Case That Establishes a New Rule? -- UPDATED

October 17, 2017
Readers of this blog probably saw the news that a baseball fan has sued the Chicago Cubs seeking compensation for the loss of sight in his left eye after he was hit by a foul ball during a Cubs game earlier this year.  This question has been litigated many times in many jurisdictions and, as it stands right now, the law favors baseball stadium owners.

In most cases, the discussion of the courts has focused on either whether the defendants have a duty to the spectator or whether the spectator assumed the risk of injury by choosing to sit close to the field.  Often, whether the issue is defined as the former or the latter, court and commentary refer to the analysis as one involving "the baseball rule," which is really a reference to the result of the application of the analysis. The case against the Cubs is different, however, because in Illinois, there is a specific statute that limits the possible liability of baseball stadium owners.

I wrote a short comment on this a few days ago in The John Marshall Law School Law Review blog.  You can read it here.

UPDATE (3-21-18):  Earlier this month, the court dismissed the claim against the Cubs but allowed the case to proceed against Major League Baseball.  The Chicago Daily Bulletin has the story.

Sunday, March 4, 2018

On the difficult to understand distinction between negligence and recklessness

I have often argued that the distinction between negligence and recklessness is difficult to understand.  True, on paper we can express a definition that supports and distinction between the two concepts.  For example, in New Jersey, “recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others.”   Yet, as is often the case, in practice this type of definition (and attempt to distinguish from negligence) is difficult to apply, as a recent case from New Jersey illustrates.

As reported in Golf Dispute Resolution, in this case the plaintiff asked the defendant to show him how to properly hit a golf ball. The plaintiff then said ‘All right, get back.’ He then set up a golf ball on a tee and explained how to set up properly to the ball, how to hold the club and how to start the swing. The plaintiff testified that he thought the defendant had moved back enough that he would not be in harms way, but did not confirm this visually before swinging the club.  Unfortunately, the plaintiff was not out of harms way, and when the defendant swung the club, he struck the plaintiff in the face causing severe injuries.

On these facts, the trial court determined that the defendant’s actions, at most, constituted negligence, requiring that the case against him be dismissed, which in my opinion, was the correct decision.  Often, states require a showing of recklessness in cases involving sports injuries and the conduct in this case does not sound to me to fit the definition of recklessness cited above.

The appellate court disagreed holding that the judge erroneously usurped the role of the factfinder by making findings of fact and liability in matters in dispute between the parties.

I disagree, on these facts, a judge could easily have concluded (in response to a motion to dismiss) that reasonable people would not disagree that the evidence presented did not support a finding of recklessness.

Instead, the court of appeals held that there exists a material fact in dispute concerning whether the defendant "made appropriate observations prior to swinging the golf club consonant with the attendant risk of significant injury to a bystander."

And there is the problem:  saying that we have to decide whether someone "made appropriate observations prior to swinging the golf club consonant with the attendant risk of significant injury to a bystander" is a long way of saying whether the actor acted unlike a reasonable person would have under the circumstances, which is, of course, the standard of negligence.

In other words, the court decided that holding the case was a negligence claim was wrong, but then remanded so the jury could decide the case based on applying a negligence standard.

The case is called Spataro v The Stakemaster and you can read it here.

Saturday, February 3, 2018

GM sued for accident caused by "self driving" vehicle

GM has been testing autonomous vehicle technology on the streets of San Francisco since August 2017, putting the cars in purposefully challenging conditions to ensure that their safety features work. Unfortunately, the vehicles have been involved in a number of accidents (at least six in September alone).  One of those accidents (which happened in December) involved a motorcyclist, who has now filed a lawsuit claiming that he suffered personal injuries in an accident with one of the company’s self-driving cars, when a self-driving Chevrolet Bolt vehicle veered suddenly into his lane, knocking him to the ground.  You can read the complaint here.

As reported by AboutLawsuits here, the lawsuit comes amid a push for the deployment of self-driving vehicle regulations. New federal guidance, A Vision for Safety 2.0, was released by the U.S. Department of Transportation (DOT) and the NHTSA in September, providing recommendations for the automotive industry and States to follow while developing the evolving technologies used in self-driving vehicles.

For my most recent posts on issues related to driverless cars, go to "Update on the debate regarding possible liability for injuries caused by autonomous cars"  and "Podcast: Challenges of self driving cars."

Sunday, January 21, 2018

Miami Doctors Allow Man To Die Because Of “Do Not Resuscitate” Tattoo On Chest -- UPDATED

Jonathan Turley recently wrote about an interesting case in which doctors at a Miami Hospital decided to stop providing help to a patient because of a "do not resuscitate tattoo."   The story is interesting because, according to the report, Florida only recognizes DNRs if they are provided in a specific form.  If this is true, the doctors did not act according to the state's law.  Here is part of the story:
"Doctors at the Jackson Memorial Hospital faced a novel issue when a 70-year-old man was brought into the emergency room after being found intoxicated and unconscious on the street. . . . The doctors were working to assist the man when someone noticed a large chest tattoo reading “DO NOT RESUSCITATE.” It even had a tattoo signature. After consulting an “ethics expert,” the hospital treated the tattoo as a viable DNR form and allowed the man to die. In my view, the expert was wrong on the law if his decision was based solely on the tattoo. 
Florida agencies have a specific form and states: Do Not Resuscitate Order—Form 1896 (Multilingual) Important! In order to be legally valid this form MUST be printed on yellow paper prior to being completed. EMS and medical personnel are only required to honor the form if it is printed on yellow paper.  
The form has a place for a physician’s signature and required showings of informed consent. Florida does not recognize a metal DNR bracelet or necklace. A patient may carry a “patient identification device”, a smaller version of DH Form 1896 for their wallet or even a chain. 
The problem is that “Do Not Resuscitate” teeshirts and tattoos are common jokes. There was no way that the staff could determine if this was a joke or waiver.  
A similar case was discussed in a 2012 article in the Journal of General Internal Medicine, involving a 59-year-old patient. He had “D.N.R.” tattoo across his chest but he said the tattoo was a joke and the result of losing a bet in poker."
The doctors involved wrote the following Letter to the Editor of the New England Journal of Medicine:
We present the case of a person whose presumed code-status preference led him to tattoo “Do Not Resuscitate” on his chest. Paramedics brought an unconscious 70-year-old man with a history of chronic obstructive pulmonary disease, diabetes mellitus, and atrial fibrillation to the emergency department, where he was found to have an elevated blood alcohol level. The staff of the medical intensive care unit evaluated him several hours later when hypotension and an anion-gap metabolic acidosis with a pH of 6.81 developed. His anterior chest had a tattoo that read “Do Not Resuscitate,” accompanied by his presumed signature. Because he presented without identification or family, the social work department was called to assist in contacting next of kin. All efforts at treating reversible causes of his decreased level of consciousness failed to produce a mental status adequate for discussing goals of care. 
We initially decided not to honor the tattoo, invoking the principle of not choosing an irreversible path when faced with uncertainty. This decision left us conflicted owing to the patient’s extraordinary effort to make his presumed advance directive known; therefore, an ethics consultation was requested. He was placed on empirical antibiotics, received intravenous fluid resuscitation and vasopressors, and was treated with bilevel positive airway pressure. 
After reviewing the patient’s case, the ethics consultants advised us to honor the patient’s do not resuscitate (DNR) tattoo. They suggested that it was most reasonable to infer that the tattoo expressed an authentic preference, that what might be seen as caution could also be seen as standing on ceremony, and that the law is sometimes not nimble enough to support patient-centered care and respect for patients’ best interests. A DNR order was written. Subsequently, the social work department obtained a copy of his Florida Department of Health “out-of-hospital” DNR order, which was consistent with the tattoo. The patient’s clinical status deteriorated throughout the night, and he died without undergoing cardiopulmonary respiration or advanced airway management. 
This patient’s tattooed DNR request produced more confusion than clarity, given concerns about its legality and likely unfounded beliefs that tattoos might represent permanent reminders of regretted decisions made while the person was intoxicated. We were relieved to find his written DNR request, especially because a review of the literature identified a case report of a person whose DNR tattoo did not reflect his current wishes. Despite the well-known difficulties that patients have in making their end-of-life wishes known, this case report neither supports nor opposes the use of tattoos to express end-of-life wishes when the person is incapacitated.

UPDATE 1/21/18: NPR recently picked up the story here.

Friday, January 12, 2018

Illinois state rep proposes "good samaritan" law to protect people who cause damages when trying to rescue dogs or cats

Have you ever seen a dog locked inside a hot car and felt like breaking a window?

An Illinois state legislator is proposing legal immunity for people who rescue pets from hot vehicles. Rep. David Olsen has filed a bill that would alter the Humane Care for Animals Act, allowing civil and criminal liability exemptions for people who break into cars to save dogs or cats — as long as they attempt to tell police about it first. The Illinois News Network has a summary, and the bill itself can be found here.

I only have one question, why limit it to dogs or cats? Don't other pets deserve rescuing too?

North Dakota: Court refuses to apply damages cap in med mal case, declares it unconstitutional -- UPDATED

In 1995, North Dakota passed a $500,000 cap on non-economic damages in medical malpractice cases.  I assume has been invoked and applied since.  Until now.  The TortsProf blog is reporting today that a state judge recently refused to apply the cap and ruled the statute violates equal protection guaranteed by the state constitution by arbitrarily reducing damages for people who suffer the most severe injuries.

Go here for more (although not much) on the story.  As you know, I am against caps, but an interesting element of this story is that at $500,000, the North Dakota cap is one of the more generous out there.

UPDATE (1/12/18):  The PopTort has more information, excerpts from the decision and a nice comment on the case here.

Court finds Amazon can't be responsible as "seller" in a product liability claim

About is reporting that a federal judge has ruled that cannot be held liable for injuries caused by third party products the company sells on its website because, according to the court's memorandum opinion Amazon did not meet the state’s definition of a “seller.”  The court held that Amazon is merely a marketing place for third-party vendors, and not the seller or manufacturer, stating, among other things, that
“[l]ike an auctioneer, Amazon is merely a third-party vendor’s ‘means of marketing,’ since third-party vendors—not Amazon—’cho[o]se the products and expose[] them for sale by means of’ the Marketplace,” Judge Brann stated. “Because of the enormous number of third party vendors (and, presumably, the correspondingly enormous number of goods sold by those vendors) Amazon is similarly ‘not equipped to pass upon the quality of the myriad of products’ available on its Marketplace.” 
This is interesting because, as Amazon users probably have noticed, Amazon seems to sell products in a number of different ways.  As far as I can tell, these are some of the categories:

1.  Amazon products sold by Amazon.

2.  Products that are sold by Amazon but are not Amazon products.

3.  Products are that not Amazon products that are sold "through" Amazon.  If I understand it correctly, products in this category are ordered through Amazon, sold by someone else, but the order is "fulfilled" by Amazon.

4.  Products that are ordered through Amazon, sold by someone else, and the order is fulfilled by that someone else.

I understand saying that Amazon is not a seller of a product in the last category.  But I think Amazon is a seller in the first three.

Friday, January 5, 2018

Why hasn't Gov. Cuomo signed the bill adopting the "discovery rule" for the statute of limitations in certain medical malpractice claims?

The New York Personal Injury Law Blog has a good (and short) discussion of a bill waiting to be signed that would adopt the so-called discovery rule for certain medical malpractice cases.  Before we go any further, let me confess that I am surprised there is a need to pass a bill for this to begin with!  I would have thought that by now all states have adopted the discovery rule; but evidently, I am wrong.  And what is worse is that the bill does not proposed adopting the rule for all cases. 

As explained in the article, the law "mimics the law in 44 other states, extending the statute of limitations in certain medical malpractice cases [to] the time the discovery of malpractice was made, or could reasonably have been made, instead of when it occurred.  In the final hours dickering over the bill last June, it was watered down to apply only to cancer cases, leaving all other “failure to diagnose” cases, where the patient didn’t even know s/he was victimized, hanging out in the cold. But still, even in its watered down state, it is something for those that have not only been victimized by malpractice, but didn’t even find out until the time to bring suit had expired."

You should read the full article here.  Among other things, it discusses how the current state of medical insurance business does not explain the hesitation to sign the bill.