Comment on new book on tort reform and health care costs

The PopTort has a good comment on Steven Brill's new book on health care, called “America's Bitter Pill: Money, Politics, Backroom Deals, and the Fight to Fix Our Broken Healthcare System,” in which he concludes, apparently without attempting to support that conclusison, that “Democrats resistance to ‘sensible Tort reform’” is a major reason why we have out of control health care costs.  As anyone who has been paying attention to the topic of tort reform and health care over the last few years know, this claim is not supported by the evidence.  And so it was pointed out in a recent Sunday New York Times book review of “America’s Bitter Pill.”   The PopTort has a comment on the book and the book review here.

For more on the issue of tort reform and medical costs go to my section on med mal (here) and scroll down.  Be patient and take your time.  There are more than 200 posts in that section including many with links to studies and reports clearly debunking the mythical relationship between tort reform and health care costs.

Missouri adopts new caps on damages

The TortsProf blog is reporting on another cap on damages legisltation, with an interesting "twist" -- it sounds like the cap is essentially optional, something I had never seen before:

In 2012, the Missouri Supreme Court struck down that state's med mal damage cap.  The legislature has passed a replacement, and it is now awaiting Governor Jay Nixon's decision whether to sign it.  In sum:  The bill, if signed into law, would place a $400,000 cap on noneconomic damage awards in medical malpractice cases. The cap would be raised to $700,000 for catastrophic and wrongful death cases. Both caps would then increase by 1.7 percent each year.

There is a catch to the law. A jury would still be able to award an amount greater than the allowed caps. If a motion is then made contesting the award, the trial court will determine whether the limitations apply in that case.

The reason I say this sounds like an "optional" cap is that the jury apparently will not be told of the cap and it will only be applied if the affected party requests it AND the court decides to apply it.  I assume that a decision not to apply it will be reviewable (and I also assume under an abuse of discretion standard, but I don't know).

UPDATE 5/12/15:  The bill has been signed into law.  Details here.

Parental immunity for "free range parents"?

Maybe it was just a coincidence, but just as I was due to teach the issues related to parental immunity in class, I have seen a number of stories related to torts involving parents and children.  I recently posted stories on a possible duty to vaccinate (here and here), possible liability for parents who expose a child to an exorcism (here), and issues related to pre natal torts (here).

Now, here is a story about "free range parents" from Above the Law (with lots of links including one to a recent article in the Washington Post).  It discusses "examples of clashes between parents who believe their kids deserve some autonomy and child protective services workers who are charged with taking every potential threat to a child’s safety seriously."

When we talk about parental immunity, we invariably discuss the policy behind the immunity as being that parents should have the right to make decisions on how to raise their children without undue interference from the state.  Parents also have the right to make mistakes and not have to be liable in all cases.  Obviously, the question then becomes when does the interference of the state ceases to be "undue" and becomes justified.

This is precisely the policy question behind the debate on free range parenting.

In addition, another by product of the debate is the possibility of using criminal or child welfare statutes as expressions of a duty in tort law (by applying the so called "negligence per se" doctrine). 

Update on the issue of vaccines

I recently commented on whether there should a cause of action against the parents of a child who do not vaccinate their children.  See here.  In that comment I wrote that "In California, . . . a bill is making its way through the system that would allow children to opt out of mandatory school vaccinations only if they have a medical condition that justifies an exemption. (NPR has the story here.) "

As an update to the issue, here is a link to an article in the New York Times on the bill in California.  

Maryland legislature approves increasing cap on damages in cases vs municipalities

As reported in the TortsProf blog, "[t]he current cap in place for Maryland's municipalities is $200,000 per claim/$500,000 per incident.  The House passed an increase to $300,000/$600,000 and the Senate passed an increase to $500,000/$1,000,000.  Perhaps not surprisingly, a conference committee approved $400,000/$800,000 and that passed 89-45 in the House and 33-14 in the Senate.  The bill also extends the filing period from 6 months to 1 year.  HB 113 awaits the governor's signature."

On fetal homicide and pre natal torts

As has been reported elsewhere, "[i]n the wake of a savage attack on a pregnant woman and the removal of her fetus, Colorado lawmakers are planning to introduce a bill that would criminalize fetal homicide. If the bill passes, the state would join nearly 40 others that make fetuses a distinct class of victims."  

The question of whether an unborn fetus should be considered a person is very interesting and can have important implications for tort law also.  Many jurisdictions have addressed the question of whether we should recognize a cause of action for the wrongful death of a stillborn fetus either by common law or statute.  And, as you probably remember also, there are three approaches to the question:  there is no cause of action because the fetus is not a person since it was never alive, there is a cause of action if it can be shown the fetus was viable and there is a cause of action because the fetus is a person from the moment of conception.

The question becomes even more interesting when the person who causes the death of the fetus is the mother.  In Illinois, for example, even though the state recognizes the right of the next of kin to claim for the wrongful death of a fetus, the Supreme Court has found that this right could not be claimed against the mother.  This holding was reaffirmed last year by the state's Appellate Court.  I wrote about that case, and the law in Illinois, here.

I am writing today about this topic again because a few days ago, the New York Times published a piece criticizing the proposed Colorado statute based on the same arguments the courts in Illinois have used to reject the right to recover against a mother who negligently causes an injury to her unborn child.  The article is called "How not to protect pregnant women" and it is available here.  You should read the full article, but here is the gist of the argument:

Opposition to the creation of fetal victimhood has focused largely on the threat to abortion rights. This is a legitimate concern, but affording victim status to a fetus has implications beyond the erosion of abortion rights. Legally severing a fetus from the pregnant woman has the effect of pitting her interests against the fetus’s.

Over time, this move has increased the state’s power to interfere in the lives of pregnant women. . . .

Granting personhood to fetuses makes women criminally responsible, not only for the life of the fetus, but also for its well-being. This is a particularly high burden. Pregnancy in our society tends to be idealized and women counted on to provide a perfect uterine environment.

Fetal rights can be employed to justify punishing any deviation from this standard. This is not hypothetical: Pregnant women have already been prosecuted for using drugs, refusing a cesarean section, having sex against a doctor’s recommendation and attempting suicide.

Prosecutors could, in theory, use the notion of “prenatal abuse” to pursue pregnant women who consumed too little folic acid; neglected exercise; gained too much or too little weight; continued on a course of anti-depressants; or had a stressful job. Under the mantle of fetal protection, pregnancy could become subject not only to criminal sanction but to pervasive state regulation.

These are essentially the same reasons why Illinois has rejected a possible cause of action in tort against a mother for fetal injury. 

Cause of action against parents and church for injuries caused by exorcism?

A couple of days ago I posted a comment that touched, tangentially, on the possibility of imposing liability on parents when they cause an injury to a child because of their religious beliefs.  See here.  In older posts I have discussed cases in which parents cause injuries by relying on prayer rather than medical services (see here and here, for example).

As if these cases were not disturbing enough, today comes news that "police are pursuing those responsible for the death of a 2-year-old boy at a church in Texas where the parents and pastors starved the boy to rid him of his possession by a demon."  Take a look at the story here.  Should we recognize a cause of action in tort for the wrongful death of the child?

Malpractice claim based on dissatisfaction with a settlement?

A few years ago, I commented on a few cases on whether a plaintiff should have a cause of action for legal malpractice based on the allegation that his or her attorney was negligent in advising the client to settle a case.  Some jurisdictions have recognized such an action - and I don't see a problem with it - as long as the plaintiff can meet the elements of the prima facie case.  Most importantly, the plaintiff will have to argue and prove that the attorney was, in fact, negligent.  See here and here for some cases on this.

I have not done a survey of all jurisdictions so I don't know what is the, if there even is a, "majority view" on this, and now comes a new decision from Pennsylvania that shows yet another approach to the issue.  The case is Silvagni v. Shorr. 

As reported in the Chicago Legal Malpractice Lawyer blog, Pennsylvania has taken the general dislike of this type of case even further, with a legal doctrine that bars such lawsuits unless the plaintiff can show that he was fraudulently induced to sign the agreement.

This seems unwarranted to me.  I don't understand why a plaintiff would have to meet more elements (and one as high as proving fraud) to support a claim.  Arguing, and proving, a legal malpractice claim is not easy to begin with.  If the plaintiff can meet the elements of the cause of action, why not allow the cause of action? 

The concern is that the cause of action could be abused by clients who change their minds after accepting a settlement.  This is true but I don't think that there is a need to increase the burden on plaintiffs to prevent the possible problem.  The plaintiff will still have to argue and prove negligence on the part of the attorney (now defendant) and that won't be easy. 

By making it more difficult for a plaintiff to have a cause of action to prevent the rare case of an undeserving plaintiff to go through, the Pennsylvania approach hurts a deserving plaintiff from having a negligence claim.  This is a bad policy.

Cause of action against parents who don't vaccinate their children?

As I am sure you know, not too long ago there was an outbreak of measles in the US. Measles, as you probably also know, is one of the most contagious diseases in the world (if not the most).  Due to the outbreak, there has been a lot of discussion on whether the state could (or should) mandate that children be vaccinated.  In California, for example, a bill is making its way through the system that would allow children to opt out of mandatory school vaccinations only if they have a medical condition that justifies an exemption. (NPR has the story here.)  Meanwhile, on the other side of the world, Australia has announced plans to halt welfare payments and childcare rebates to families who refuse to have their children vaccinated. (NPR has that story here.)

Some have argued that parents should be forced to vaccinate children, not only to protect the children from the risk of getting the disease, but also from the risk that they could spread it to others.  In response, others argue that parents should have the freedom to decide whether to vaccinate their children. 

Within this debate, however, I have not heard any discussion on whether parents who decide not to vaccinate should be held liable to anyone who gets injured because of their decision.  Should there be a cause of action against parents who decide not to vaccinate their children?  It is an interesting question that raises many issues and the answer to which depends on many factors.

The first factor to consider is the identity of the plaintiff.  Assume, for example, that the plaintiff is the son or daughter of a parent who decides not to vaccinate.  This raises the issue of parental immunity.  If the jurisdiction considers decisions about a child's health care within the types of parental decisions for which we should recognize immunity, the child would not have cause of action.

If the plaintiff is another child who gets the disease from exposure to the non vaccinated child, the issue is different.  (And, if you are wondering why the plaintiff in such a case was not vaccinated too, remember that there are many groups of children (and adults too) who can't get vaccinated or for whom vaccinations do not make a difference.  These include children that are too young, adults who are too old, and people of any age who have immune system deficiencies.)

In these types of cases, the question may revolve around the reason claimed by the parents for not vaccinating.  If that reason is based on religious practices, an interesting older case to review is Lundman v McKwon (Minn 1995).  In that case the father of an 11 year old boy sued the child's mother (who had custody of the child after their divorce) after the child died because the mother refused to provide medical care for the child based on her religious beliefs.  Finding that parents have a "special relationship" with their children, the court concluded the mother had a duty to help the child by providing medical help notwithstanding her religion.  However, to protect parental freedom of religion and to prevent results like this one,  many states have enacted statutes that provide "religious exemptions" for medical care.  (For a discussion on whether these exemptions should be eliminated you can read the five person debate in a recent NY Times "Room for Debate" piece here.) 

But my sense is that most claims for the "freedom to decide whether to vaccinate" are not based on religion but on other personal reasons, most famously the misguided and thoroughly discredited position that vaccines can cause Autism.

Given that this is not a religious claim, and, more importantly, that it is not based on credible scientific evidence, can't it be argued that parents who act upon it are being negligent because their conduct is creating an unreasonable risk of harm to others?  And, if so, can't it be argued that we should recognize a claim against them if their conduct does in fact cause an injury to another?

PA Supreme Court holds evidence of consent forms to surgery is irrelevant in medical malpractice cases (except in cases in which claim is based on lack of informed consent)

On March 25, the Supreme Court of Pennsylvania issued an opinion in a case called Brady v. Urbas holding that evidence of consent to a surgery could be used in a prejudicial way to insinuate that consent to the procedure amounted to consent to risks of negligence. 

As Max Kennerly explains in his comment about the case, defendant doctors often try "to make a big fuss about the “risks of the procedure” that were disclosed to the patient. The argument is irrelevant and prejudicial: obviously, the patient didn’t consent to the risk of negligent treatment; rather, the patient consented to the risks of the procedure if it was done properly. But the defendants always raise it anyway, mostly to confuse the jury into thinking that the patient accepted this “risk” when they went in."

In Brady, the court agreed and, for that reason, decided that the evidence related to the consent to the procedure is irrelevant in cases of medical malpractice, other that those cases in which the claim is based on lack of informed consent.  Obviously, in those cases, the evidence of consent is not only relevant but critical. 

The TortsProf has more on the story here.  Professional Liability Matters has more here.