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. 

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."

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.

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.

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.

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.

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.

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. 

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.