Puerto Rico Senate adopts bill to eliminate joint and several liability

 About two weeks ago, the Puerto Rico Senate approved a bill to undo over 120 years worth of precedents and eliminate joint and several liability in Torts cases.  

If you have followed this blog for some time, or are familiar with my work, you won’t be surprised to know that I think this is a bad result.  I have, in fact, authored several law review and law journal articles in defense of joint and several liability.

Interestingly, even though some people think that law review articles are irrelevant and that no one reads them, the preamble to this new bill cites two of those articles of mine and includes a long quote from one of them.  In both articles I explained why it is a bad idea to do what the bill does, but I guess the authors of the bill thought their project would not be convincing unless they explicitly tried to refute my work. 

This is not the first time that lawmakers have tried to eliminate joint and several liability in Puerto Rico.  Most recently, it had been part of the proposal for a new Civil Code in the early 2000s and then again in 2019-2020.  For good reasons, though, both times, the propoal was quickly defeated and did not make it to the new code.

Yet, now, with the backing of the insurance industry, and to the detriment of future injured plaintiffs, they got the bill through the Senate and it now awaits the Governor’s signature.  I heard there is a group of law professors trying to convince the Governor not to sign it, but I don’t know what to expect.  

If you can read Spanish you can take a look at the bill here.

Nevada Supreme Court abandons "suicide rule" and adopts proximate cause analysis for all suicide cases

 Long time readers of this blog may remember I have often posted about cases involving claims for wrongful death arising out of someone’s suicide.  (See here.)  These are always difficult cases, not only because of the underlying circumstances surrounding the death but also because, as you probably know, the prevailing approach to the issue is that suicide is a superseding cause as a matter of law.

Yet, I have noticed in recent years more courts are coming around to the view that this so-called “suicide rule” should be abandoned – a position I happen to agree with.  See my comments on cases from Tennessee, Arizona, Alabama and Illinois, for example.

So, today I am writing about this topic again, because the Supreme Court of Nevada just issued an opinion doing away with the suicide rule in a very well written opinion in a case called Bourne v. Valdes,  569 P.3d 971 (Nev. 2025).  As the court explained:

We conclude that a patient’s suicide does not preclude liability for medical malpractice as a matter of law.  Rather, like any other action alleging that a medical provider’s negligence caused injury or death to a patient, the ordinary principles of medical malpractice apply.  Consistent with existing Nevada medical malpractice law, a medical provider who is alleged to have provided negligent care to a patient owes a duty of care to that patient, regardless of whether the medical provider has control over, or custody of, the patient.  If the medical provider’s conduct is proven to fall below the standard of care, then “the crucial inquiry is whether the defendant’s negligent conduct led to or made it reasonably foreseeable that the deceased would commit suicide.” White v.  Lawrence, 975 S.W.2d 525, 530 (Tenn.  1998).  If the patient’s suicide is a foreseeable consequence of the medical provider’s negligence, then the medical provider may be held liable.  See Patricia C.  Kussmann, Annotation, Liability of Doctor, Psychiatrist, or Psychologist for Failure to Take Steps to Prevent Patient’s Suicide, 81 ALR 5th 167, § 4 (2000) . . .  However, where the patient’s suicide is not foreseeable, then the suicide is a superseding intervening cause, severing the causal chain and relieving the medical provider of liability for their negligence.  White, 975 S.W.2d at 530.  

I agree that this is the correct analysis that should be applied. Suicide is sometimes unforeseeable, but often it is foreseeable and plaintiffs should have the chance to prove it.  The notion that suicide should be considred to be unforeseeable as a matter of law is based on the notion that committing suicide goes so against human nature that it is inconceivable that someone would decide to do so.  The problem with this is that this view is not realistic.  Suicide is common.  In fact, it is one of the top leading causes of death among juveniles in the US.  And, if you take into account mental health issues, and known medication side effects, it is unrealistic to say that suicide is necessarily unforeseeable.  In many cases, it can fairly be argued (and proven) that it was totally foreseeable.

US Supreme Court opens term considering case under the Federal Torts Claims Act

 This week, the US Supreme Court heard oral arguments in a case involving the Federal Torts Claims Act.

In this case the plaintiff sued the federal government and the US Postal Service alleging damages because postal workers refused to deliver mail to the plaintiff’s property.  The lower court dismissed the claim, the Torts Claims Act recognizes immunity for the federal government in matters involving the handling of postal matters, which includes lost and delayed mail.  But the 5th Circuit Court of Appeals reversed, holding that intentional non-delivery is not a “loss,” “miscarriage,” or “negligent transmission” of mail, because those terms don’t cover intentional acts.

Here an article on the background of the case:  "How a mail delivery dispute made it to the Supreme Court."

Here is an article reviewing the oral argument: "Court debates lost catalogs and delayed Christmas cards while hearing case on intentionally undelivered mail."  

US Supreme Court to decide whether state limits on malpractice actions apply in federal court

The SCOTUS blog reports on an upcoming case:

Berk v. Choy, to be argued on Oct. 6, surely will be the Supreme Court case of the year for medical professionals. At issue in the case is the extent to which a set of common state statutes designed to stem medical malpractice litigation apply in federal court. If they don’t apply in federal court, victims who have a way to get into federal court will have a much easier time pursuing litigation against doctors than those who cannot.

The case involves Delaware’s “affidavit of merit” statute, something that dozens of states have passed in recent years. Although the details vary, the key concept is that for a medical malpractice action to proceed, the case either has to involve medical negligence that is pretty obvious – the doctor left a foreign object in the patient’s body, the doctor operated on the wrong person, the doctor operated on the wrong organ – or the plaintiff has to file with the complaint an affidavit from a medical professional attesting to the negligence of the doctor who is being sued. Because those affidavits are somewhat hard to come by – how many doctors want to help someone sue another doctor for malpractice? – they pose a serious obstacle to the pursuit of many medical malpractice claims.

.... To continue reading the story go to the SCOTUS blog here.