In California, consumer advocates have filed over 800,000 signatures to place a voter initiative on the ballot in November 2014 to, among other things, raise the cap on damages in medical malpractice actions, at least allowing it to keep up with inflation. The PopTort has more information and links.
Meanwhile, the TortsProf blog is reporting that in Kansas the state Senate and House have passed similar bills to gradually raise the non-economic damages cap in personal injury cases from $250,000 to $350,000. The major difference between the bills concerns the collateral source rule. The Senate version would allow jurors to hear testimony about whether a plaintiff's damages were covered by insurance; the House struck that provision.
Hopefully, the House version will prevail. One important goal of tort law is to shift the cost of accidents onto the persons who are responsible for the harm. The collateral source rule helps preserve this goal because, without it, it’s likely that costs would be shifted away from the wrongdoer to the injured party and his or her insurance provider. Exonerating the tortfeasor because the plaintiff can "afford" the cost of the accident also does nothing to advance another goal of tort law: deterrence.
Sunday, March 30, 2014
Thursday, March 27, 2014
Illinois Appellate Court decides parents can recover extraordinary expenses in wrongful pregnancy action
Last month, the Illinois Court of Appeals, First District, issued an opinion in an interesting case on the character of the compensation that can be recovered in a wrongful pregnancy case. I think the case reaches the correct result, and I am sure it will eventually reach the state supreme court. The case is called Williams v. Rosner and you can read the opinion here.
The facts of the case are relatively simple. Knowing there was a good chance that her children could be born with sickle cell disease, a woman had a doctor perform a procedure to prevent her from getting pregnant. Eventually, however, she did get pregnant and gave birth to a daughter who suffers from sickle cell disease. Arguing the doctor was negligent, the woman and her husband sued seeking compensation for their injuries including compensation for the extraordinary expenses that they would incur in raising their daughter. The defendants filed a motion to dismiss arguing the plaintiffs could not recover for extraordinary expenses.
In Illinois, unlike in some other states, parents who seek to recover compensation for a pregnancy that they had sought to avoid (typically referred to as a "wrongful pregnancy" or "wrongful conception" case) have been limited to recover costs associated with the unsuccessful operation, the pain and suffering involved, any medical complications caused by the pregnancy, the costs of delivery, lost wages,and loss of consortium. In part, this view is based on the notion that the birth of a normal healthy child should not be judged to be an injury to the parents.
On the other hand, Illinois has recognized the right to recover for extraordinary expenses in "wrongful birth" cases. In these cases, the parents allege that they would not have conceived a child or carried their child to term but for the negligence of the doctor who administered neonatal testing or genetic testing and failed to counsel them of the likelihood of giving birth to a physically or mentally impaired child. In such cases, parents can recover extraordinary damages, including the medical, institutional and educational expenses that are necessary to properly manage and treat their child's congenital or genetic disorder up to the age of majority.
In Williams, the plaintiffs argued, correctly in my view, that if we apply basic torts principles, they should be allowed to recover extraordinary expenses. A defendant in a negligence action should be liable for those injuries which are foreseeable consequences of the negligent conduct. For this reason, if the pleadings establish that the birth of the sick child is a foreseeable consequence of a negligently performed sterilization procedure, then wrongful pregnancy plaintiffs should be able to obtain an award of extraordinary damages. And this is precisely what the court of appeals held.
If we are going to recognize the right to recover for extraordinary damages in wrongful birth cases, it would not make sense not to recognize them in wrongful pregnancy cases. Stay tuned.
Now, having said all that, the case creates an anomaly that should be corrected. Assume Mom and Dad Parents decide not to have any more children because of financial reasons. They simply can't afford another child. They go to the doctor and inform the doctor of the reason for wanting a sterilization procedure. The doctor is negligent and the parents have another child. The child is healthy but the parents (and the child) suffer hardship because they don't have enough financial means. According to the current state of the law, those parents can't recover for that hardship. They can't recover the cost of raising that child, which is precisely the value of the foreseeable consequence of the negligent conduct of the doctor. In contrast, according to the court in Williams, the parents of a child with an inherited condition can recover because that is the foreseeable consequence of the negligent conduct.
I think the issue in both cases is the same and the cases should lead to the same result. Thus, eventually, when Williams gets to the Illinois supreme court, I hope the court takes the opportunity to overrule the old case in which it limited recovery in wrongful pregnancy cases.
The facts of the case are relatively simple. Knowing there was a good chance that her children could be born with sickle cell disease, a woman had a doctor perform a procedure to prevent her from getting pregnant. Eventually, however, she did get pregnant and gave birth to a daughter who suffers from sickle cell disease. Arguing the doctor was negligent, the woman and her husband sued seeking compensation for their injuries including compensation for the extraordinary expenses that they would incur in raising their daughter. The defendants filed a motion to dismiss arguing the plaintiffs could not recover for extraordinary expenses.
In Illinois, unlike in some other states, parents who seek to recover compensation for a pregnancy that they had sought to avoid (typically referred to as a "wrongful pregnancy" or "wrongful conception" case) have been limited to recover costs associated with the unsuccessful operation, the pain and suffering involved, any medical complications caused by the pregnancy, the costs of delivery, lost wages,and loss of consortium. In part, this view is based on the notion that the birth of a normal healthy child should not be judged to be an injury to the parents.
On the other hand, Illinois has recognized the right to recover for extraordinary expenses in "wrongful birth" cases. In these cases, the parents allege that they would not have conceived a child or carried their child to term but for the negligence of the doctor who administered neonatal testing or genetic testing and failed to counsel them of the likelihood of giving birth to a physically or mentally impaired child. In such cases, parents can recover extraordinary damages, including the medical, institutional and educational expenses that are necessary to properly manage and treat their child's congenital or genetic disorder up to the age of majority.
In Williams, the plaintiffs argued, correctly in my view, that if we apply basic torts principles, they should be allowed to recover extraordinary expenses. A defendant in a negligence action should be liable for those injuries which are foreseeable consequences of the negligent conduct. For this reason, if the pleadings establish that the birth of the sick child is a foreseeable consequence of a negligently performed sterilization procedure, then wrongful pregnancy plaintiffs should be able to obtain an award of extraordinary damages. And this is precisely what the court of appeals held.
If we are going to recognize the right to recover for extraordinary damages in wrongful birth cases, it would not make sense not to recognize them in wrongful pregnancy cases. Stay tuned.
Now, having said all that, the case creates an anomaly that should be corrected. Assume Mom and Dad Parents decide not to have any more children because of financial reasons. They simply can't afford another child. They go to the doctor and inform the doctor of the reason for wanting a sterilization procedure. The doctor is negligent and the parents have another child. The child is healthy but the parents (and the child) suffer hardship because they don't have enough financial means. According to the current state of the law, those parents can't recover for that hardship. They can't recover the cost of raising that child, which is precisely the value of the foreseeable consequence of the negligent conduct of the doctor. In contrast, according to the court in Williams, the parents of a child with an inherited condition can recover because that is the foreseeable consequence of the negligent conduct.
I think the issue in both cases is the same and the cases should lead to the same result. Thus, eventually, when Williams gets to the Illinois supreme court, I hope the court takes the opportunity to overrule the old case in which it limited recovery in wrongful pregnancy cases.
Connecticut does not find horses are inherently dangerous
While Maryland is still discussing whether dogs are inherently dangerous (see here), the Connecticut supreme court has issued a decision on the possible liability for injuries caused by horses. The court affirmed a lower court decision that had ruled that horses are, by nature, vicious animals. However, while it affirmed the lower court's decision, the court did not find that horses are, by nature, vicious animals.
The question for the court was whether a defendant has a duty to take reasonable steps to prevent animals from causing foreseeable injuries. Thus, the case involved a negligence claim, not a strict liability issue. In ruling that a defendant does have a duty to prevent foreseeable injuries, the court simply applied the traditional rule that applies in all negligence cases. The case is called Vendrella v. Astriab Family Limited Partnership. You can read the opinion here. Go here for more on the story.
The question for the court was whether a defendant has a duty to take reasonable steps to prevent animals from causing foreseeable injuries. Thus, the case involved a negligence claim, not a strict liability issue. In ruling that a defendant does have a duty to prevent foreseeable injuries, the court simply applied the traditional rule that applies in all negligence cases. The case is called Vendrella v. Astriab Family Limited Partnership. You can read the opinion here. Go here for more on the story.
Maryland legislature again considers bill regarding liability for dog attacks
Soon thereafter pit bull owners and their advocates persuaded state legislators to convene a task force aimed at overriding the decision of the Court of Appeals. See here.
However, after a very long process, the attempt by the legislature to enact a statute to override the holding in Tracey appeared to have failed. Both the House and the Senate approved statutes but they did not agree on the approach to use to deal with the issue. A committee was formed to reconcile the bills, but the resulting compromise bill did not have the votes to pass.
A few days ago, however, the ABA Law Journal.com reported that the legislature is still considering the issue. The State and House will have to pass a single bill. Reportedly, the legislation would create a presumption that all dog owners are liable for bites by their pets, no matter what breed. The presumption could be overcome with proof the pet had been docile before the attack. The Washington Post has more here.
This proposal makes no sense to me. The law has never been that there is a presumption of liability. The law is that a plaintiff has the burden of proof of either negligence or that the defendant knew or should have known of the dog's dangerous propensities. What Tracey held was that a plaintiff only had to prove the animal was a pit bull to meet the requirement of proving that knowledge.
Instead of scaling back the reach of the Tracey ruling, this proposal actually appears to expand it. Now all dog owners are presumed to have knowledge and the burden would shift to them to prove the negative. After Tracey, pitbulls were thought to be inherently dangerous; now all dogs are presumed inherently dangerous. I can't believe animal rights people would be in favor of this approach.
Tuesday, March 25, 2014
Is a cause of action for breach of fiduciary duty a torts claim?
As you probably know, a cause of action against a lawyer for "breach of fiduciary duty" is different than a cause of action for malpractice. The latter is clearly a cause of action in tort which requires the plaintiff to meet the elements of a negligence claim. The former, however, is different and, in fact, sometimes allows a plaintiff to state a claim under circumstances where a claim for malpractice will not be recognized. See Tante v. Herring 453 S.E.2d 686 (Ga. 1994) for an example of this.
Having said this, then is a cause of action for breach of fiduciary duty not a torts claim? If not, what type of claim is it? A claim for breach of contract, perhaps? I imagine there are cases out there that have addressed this question, but I have not done the research to determine what seems to be the majority view on this.
What I can tell you today is that there is a new case on the subject and that it holds the claim is a torts claim. Interestingly, the holding worked in favor of the defendant because the statute of limitations just happened to be shorter for torts claims.
As reported in the Legal Profession Blog, the Connecticut Supreme Court concluded that "the plaintiff’s allegations sound in tort rather than in breach of contract, and, as a consequence, the plaintiff’s claim is barred by the three year statute of limitations applicable to tort claims."
The case is called Meyers v. Livingston and you care read it here.
Having said this, then is a cause of action for breach of fiduciary duty not a torts claim? If not, what type of claim is it? A claim for breach of contract, perhaps? I imagine there are cases out there that have addressed this question, but I have not done the research to determine what seems to be the majority view on this.
What I can tell you today is that there is a new case on the subject and that it holds the claim is a torts claim. Interestingly, the holding worked in favor of the defendant because the statute of limitations just happened to be shorter for torts claims.
As reported in the Legal Profession Blog, the Connecticut Supreme Court concluded that "the plaintiff’s allegations sound in tort rather than in breach of contract, and, as a consequence, the plaintiff’s claim is barred by the three year statute of limitations applicable to tort claims."
The case is called Meyers v. Livingston and you care read it here.
Sunday, March 23, 2014
New study questions whether surgical checklist procedures reduce risks
The use of surgical checklists has become a growing practice in many hospitals, and many have suggested their adoption as a way to reduce the risk of complications and medical mistakes. Unfortunately, according to AboutLawsuits.com a new study is questioning the effectiveness of the procedure, finding that the use of surgical checklists failed to improve outcomes. Go here for the full story.
It seems to me that if you are looking for the use of checklists to eliminate the risks or to completely prevent mistakes, you are going to be disappointed. Obviously, there will always be risks and possible mistakes. The question is whether the procedure reduces the risks.
Studies like this new one are important, not to discourage the use of checklist procedures but to discourage legislatures from listening to proposals to immunize tortfeasors if they comply with the checklists.
It seems to me that if you are looking for the use of checklists to eliminate the risks or to completely prevent mistakes, you are going to be disappointed. Obviously, there will always be risks and possible mistakes. The question is whether the procedure reduces the risks.
Studies like this new one are important, not to discourage the use of checklist procedures but to discourage legislatures from listening to proposals to immunize tortfeasors if they comply with the checklists.
Thursday, March 20, 2014
Illinois Supreme Court interprets Good Samaritan Statute
The Illinois Supreme Court announced today an interesting decision interpreting the state’s Good Samaritan Statute. The question for the court was essentially whether the statute provides immunity to a physician who provides emergency services while working in a hospital when the physician had no doctor-patient relationship with the plaintiff and was not an employee of the hospital. The injury occurred when an emergency room physician responded to a Code Blue outside the emergency room area of the hospital. The physician claimed immunity under the Good Samaritan Act. The trial court agreed and dismissed the claim, but the appellate court reversed and the Illinois Supreme Court affirmed.
Interpreting the policy behind of the statute and its text, the supreme court said that the purpose of the statute is to encourage physicians to volunteer to help under circumstances where they don’t have a duty to do so. Because the physician in this case, although employed in the emergency room, was expected to respond to Code Blues at the hospital as part of his job, the court decided the statute did not apply to him.
To resolve the issue, the court discussed two different lines of authority that had interpreted the statute in the past. The statute states, in part, that physicians will be immune from lawsuits if the services are not provided “for a fee” and in emergency circumstances. Based on that language and some cases, the defendant argued that the statute grants immunity as long as the physician does not bill the patient. In response, the plaintiffs argued that the notion of the “fee” can refer either to a patient being billed or a physician being paid in general.
The supreme court agreed with the plaintiff’s interpretation. Agreeing with a case previously decided by the Federal District Court applying Illinois law, the court explained that the statute was originally designed to “encourage physicians fearful of malpractice suits to stop and render aid to those injured in automobile accidents” and to encourage people to volunteer their time and talents to help others. For this reason, the court concluded that the cases cited by the defendants had been wrongly decided because they thwarted the “unmistakably obvious legislative intent.”
In the end, the court agreed with the appellate court’s conclusion that the defendant did not provide his services to the plaintiff “without fee.” He was fully compensated for his time that day, and it is clear that he responded to the emergency not because he was volunteering to help but because it was his job to do so. Thus, the statute did not apply to him.
You can read the opinion here and you can go here and here for commentary on the issues written before the opinion was issued.
UPDATE (3/23/14): The Appellate Strategist just published a review of the opinion here.
Interpreting the policy behind of the statute and its text, the supreme court said that the purpose of the statute is to encourage physicians to volunteer to help under circumstances where they don’t have a duty to do so. Because the physician in this case, although employed in the emergency room, was expected to respond to Code Blues at the hospital as part of his job, the court decided the statute did not apply to him.
To resolve the issue, the court discussed two different lines of authority that had interpreted the statute in the past. The statute states, in part, that physicians will be immune from lawsuits if the services are not provided “for a fee” and in emergency circumstances. Based on that language and some cases, the defendant argued that the statute grants immunity as long as the physician does not bill the patient. In response, the plaintiffs argued that the notion of the “fee” can refer either to a patient being billed or a physician being paid in general.
The supreme court agreed with the plaintiff’s interpretation. Agreeing with a case previously decided by the Federal District Court applying Illinois law, the court explained that the statute was originally designed to “encourage physicians fearful of malpractice suits to stop and render aid to those injured in automobile accidents” and to encourage people to volunteer their time and talents to help others. For this reason, the court concluded that the cases cited by the defendants had been wrongly decided because they thwarted the “unmistakably obvious legislative intent.”
In the end, the court agreed with the appellate court’s conclusion that the defendant did not provide his services to the plaintiff “without fee.” He was fully compensated for his time that day, and it is clear that he responded to the emergency not because he was volunteering to help but because it was his job to do so. Thus, the statute did not apply to him.
You can read the opinion here and you can go here and here for commentary on the issues written before the opinion was issued.
UPDATE (3/23/14): The Appellate Strategist just published a review of the opinion here.
Comments on recent studies on the dangers of Tylenol
The Five Thirty Eight blog has an interesting article criticizing recent studies on the possible dangers of taking Tylenol during pregnancy.
Auto industry problems: GM recalls over 3 million cars and admits to quality control failures while Toyota agrees to pay 1.2 billion dollars to avoid criminal prosecution
This has been a bad week for the auto industry. In a video message to GM employees, CEO Mary Barra admitted that the company’s quality control process have failed, resulting in “terrible things,” a reference to problems with more than 3 million cars that GM has recalled recently. The first recall related to ignition problems that resulted in a recall of 1.6 million cars. More recently, the company announced three new recalls, bringing the total number of recalled vehicles to over 3 million. AboutLawsuits has more details here.
Meanwhile, yesterday it was reported that Toyota has agreed to pay $1.2 billion to avoid criminal prosecution for hiding information in a recall case. It was also announced that the federal government has filed a criminal charge alleging the company defrauded consumers by issuing misleading statements about safety issues in Toyota and Lexus vehicles. The Chicago Daily Law Bulletin has more information here. Reportedly, shortly after the announcement, Attorney General Eric Holder issued an apparent warning to GM and other automakers, saying the Toyota deal was “not necessarily the only time we will use this approach.”
If that's the case, GM should be worried. It is facing a federal criminal probe over delays in recalling small cars with a deadly ignition switch problem. Even though the company has admitted knowing about the ignition-switch problem for more than a decade, it failed to recall the affected cars (1.6 million of them) until last month. During the wait, at least a dozen people died in crashes.
Meanwhile, yesterday it was reported that Toyota has agreed to pay $1.2 billion to avoid criminal prosecution for hiding information in a recall case. It was also announced that the federal government has filed a criminal charge alleging the company defrauded consumers by issuing misleading statements about safety issues in Toyota and Lexus vehicles. The Chicago Daily Law Bulletin has more information here. Reportedly, shortly after the announcement, Attorney General Eric Holder issued an apparent warning to GM and other automakers, saying the Toyota deal was “not necessarily the only time we will use this approach.”
If that's the case, GM should be worried. It is facing a federal criminal probe over delays in recalling small cars with a deadly ignition switch problem. Even though the company has admitted knowing about the ignition-switch problem for more than a decade, it failed to recall the affected cars (1.6 million of them) until last month. During the wait, at least a dozen people died in crashes.
Saturday, March 15, 2014
Florida Supreme Court finds that damages caps in medical malpractice cases are unconstitutional
In an opinion that refutes many of the myths usually cited by tort reformers in favor of imposing caps on damages, the Florida Supreme Court has found that the caps are unconstitutional. The caps were part of reforms approved last year reportedly "in an effort to lower the cost of malpractice insurance rates and to keep doctors from moving out of state."
The fact that both these arguments (and other similar ones) have been debunked over and over again by many different studies hasn't stopped tort reformers from advancing legislation the real purpose of which is to make it more difficult for victims of medical malpractice to get access to adequate compensation. (Go here and scroll down for links to many such studies.)
Fortunately, every now and then courts make things right again. Last week, the Florida Supreme Court held that caps on non-economic damages "serve[] no purpose other than to arbitrarily punish the most grievously injured or their surviving family members." Or, in other words, that the real purpose of the statute is to make it more difficult for victims to get access to adequate compensation, but, er, I repeat myself.
Some of the court's statements also address the other typical tort reformer claims. For example, the court finds that the claim that increases in medical malpractice liability insurance rates are forcing physicians to practice medicine without professional liability insurance, to leave Florida, or to retire early from the practice of medicine is unsupported. The court also found that "available data indicates ...the finding that non economic damage awards by juries are a primary cause of the purported medical malpractice crisis in Florida is most questionable."
Finally, the court also questioned whether imposing caps on damages would lower malpractice insurance rates holding that "the record and available data fail to establish a legitimate relationship between the cap on wrongful death non economic damages and the lowering of medical malpractice insurance premiums."
You can read the court's opinion here.
The PopTort has a comment on the opinion here.
UPDATE 3/20/14: About Lawsuits has more coverage here.
The fact that both these arguments (and other similar ones) have been debunked over and over again by many different studies hasn't stopped tort reformers from advancing legislation the real purpose of which is to make it more difficult for victims of medical malpractice to get access to adequate compensation. (Go here and scroll down for links to many such studies.)
Fortunately, every now and then courts make things right again. Last week, the Florida Supreme Court held that caps on non-economic damages "serve[] no purpose other than to arbitrarily punish the most grievously injured or their surviving family members." Or, in other words, that the real purpose of the statute is to make it more difficult for victims to get access to adequate compensation, but, er, I repeat myself.
Some of the court's statements also address the other typical tort reformer claims. For example, the court finds that the claim that increases in medical malpractice liability insurance rates are forcing physicians to practice medicine without professional liability insurance, to leave Florida, or to retire early from the practice of medicine is unsupported. The court also found that "available data indicates ...the finding that non economic damage awards by juries are a primary cause of the purported medical malpractice crisis in Florida is most questionable."
Finally, the court also questioned whether imposing caps on damages would lower malpractice insurance rates holding that "the record and available data fail to establish a legitimate relationship between the cap on wrongful death non economic damages and the lowering of medical malpractice insurance premiums."
You can read the court's opinion here.
The PopTort has a comment on the opinion here.
UPDATE 3/20/14: About Lawsuits has more coverage here.
Subscribe to:
Posts (Atom)