While the country is distracted by tweets, investigations, and failed Senate bills, the House votes to federalize medical malpractice

In my most recent post I reported that the ABA opposed a bill currently under consideration by the House of Representatives which would impose a cap on state medial malpractice claims.  Today, I unfortunately have to report that the House voted in favor of the bill.  If enacted into law, it will impose a $250,000 limit on non-economic damages in med mal suits that involve coverage provided through a federal program such as Medicare or Medicaid or to coverage that is partly paid by a government subsidy or tax benefit.  In addition, the bill would curb attorneys' fees and impose a three-year statute of limitations (with some exceptions).  More on the story here.

In response to the vote, the Alliance for Justice President released the following statement: “While Senate Republicans are busy trying to destroy our health care system, their counterparts in the House are hard at work trying to undermine patients’ access to justice if they are harmed by a health care provider. The mean-spirited bill rammed through today would establish a nationwide cap of $250,000 on so-called non-economic damages suffered by patients. That cap would apply even in cases of deliberate harm to patients, including such nightmare scenarios as an assault in a nursing home. This bill is nothing more than a giveaway to the pharmaceutical and health care industry, at the expense of the most vulnerable Americans.”

For a short comment on how hypocritical it was for Republicans to support the bill, because it goes against "conservative principles" that Republicans like to say they support go here.

ABA opposes federal bill that would impose caps in med-mal cases

The ABA Journal is reporting that the ABA recently sent a letter to House lawmakers urging them to reject a bill that would impose a  cap of $250,000 on non-economic damages in medical malpractice cases.  You can read the letter here.

The bill, ironically known as the Protecting Access to Care Act of 2017, also would eliminate joint and several liability and would authorize courts to reduce contingent fees. The ABA opposes those provisions as well.

Were it to become law, this bill would be terrible for victims of medical malpractice which is now the third most common cause of death in the US (also here, here and here).  As all other tort reform efforts its purpose is to make it difficult, if not impossible, for victims to be able to recover for their injuries.  There is no support for the proposition that bills like this one will reduce costs of medical care, or result in better care and their implementation impact those who need protection the most:  the elderly, the poor, children, etc.

Hopefully, legislators will do the right thing and follow the ABA's advice.  Otherwise, give it some time and we will see medical malpractice move up from the third spot in the list of causes of death. 

Florida Supreme Court strikes down statute imposing caps on medical malpractice cases -- UPDATED

The TortsProf blog is reporting that a sharply divided Florida Supreme Court recently struck down a 2003 statute that imposed a cap on non-economic damages in medical malpractice cases.  The court concluded that "the caps on noneconomic damages … arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries” and that "because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps … and alleviating this purported crisis. Therefore, we hold that the caps on personal injury noneconomic damages … violate the Equal Protection Clause of the Florida Constitution.”

I agree this is the correct decision which is, of course, good news for victims of medical malpractice in Florida.  Unfortunately, as reported here over the last few weeks, many other jurisdictions are heading in the opposite direction, looking for ways to make it more difficult for victims to be able to recover for their injuries.

UPDATE 6/18/17:  AboutLawsuits has a story here.

Article on the Trump administration and tort reform

Over at HuffPost, Joanne Doroshow, executive director of the Center for Justice and Democracy at NYU Law School, has posted a short article on the Trump administration's policies as they relate to tort reform and medical malpractice issues.  You can read the article here.

Nearly a third of drugs approved by the FDA between 2001 and 2010 had major safety issues

A prevalent argument used by the pharmaceutical industries in product liability cases is that the courts (and the judicial system) are not the proper venue to determine whether prescription drugs are dangerous. According to the argument, that type of decision should be left to the "experts" - in this case, to the FDA.  Plaintiffs and consumer advocates counter that the FDA is not efficient in its work and that, if anything, the best plan is to have a combination of mechanisms to improve the safety of the products in the market.

A new study by the Yale School of Medicine now provides support for those who argue that the FDA procedures are not particularly adequate when it comes to determining the safety of prescription drugs.  It found that nearly a third of those approved from 2001 through 2010 had major safety issues.  This information is particularly important now that the Trump administration has made it clear it prefers to eliminate regulation rather than strengthen it.

For more information on the recent study go here.

Oklahoma legislature enacts bill (possible without realizing it) that may make it the first state to impose a "loser pays" rule in civil litigation

Above the Law is reporting that the Oklahoma legislature recently enacted a bill, now on its way to the Governor's signature, that may make the state the first American jurisdiction to impose a "loser-pays" rule in litigation.

The key provision, hidden in a bill supposedly about the rights of child abuse victims, lists a number of different types of civil claims, including torts, and holds that "[i]n any action brought . . . the court shall award court costs and reasonable attorney fees to the prevailing party."

One reason American jurisdictions have rejected this approach is that it discourages possible claimants from pursuing their claims for fear that they may end up with more debt.  Instead, the use of contingency fees provides a way for claimants to get access to representation and if the claim does not work it is the lawyer, who is more likely in a better position to take the loss, who might be financially affected by it.

Yet, "tort reformers" have always advocated for a 'loser pays' approach arguing it would eliminate frivolous lawsuits, although, anyone who knows anything about tort reform knows that the goal is not to get rid of frivolous lawsuits but to discourage valid ones.

Maybe, now that someone realized what is really in the bill, the Governor can be convinced not to sign it.  Otherwise, litigation will be very different in Oklahoma than in the rest of the US in the near future.

More bad news for victims of medical malpratice; more tort reform bills, this time in Iowa -- UPDATED

For almost two months now all my posts have been about medical malpractice reform bills.  Today's update comes from Iowa where the state Senate has passed a tort reform bill (Senate File 465) which  includes provisions capping awards for non-economic damages at $250,000, requiring a "certificate of merit" to screen out litigation and establishing standards for expert witnesses.  There is more on the story here.

Apparently, the reforms were based on the discredited argument that they are needed to either keep doctors from leaving the jurisdiction or to attract doctors to the jurisdiction, an argument that is not supported by available empirical evidence.   Also, the provision regarding "certificates of merit," as usual, was supported by the argument that it is a good way to screen out frivolous litigation.  And, again, this argument is misleading because even though it may have that effect, the real goal of the provision is to make it more difficult for plaintiffs to be able to bring non-frivolous litigation.  There are plenty of other mechanisms in place already that prevent frivolous litigation.

UPDATE (4-15-17):  The TortsProf blog is reporting that the Iowa House has now passed the med mal reform bill, but fortunately, it was amended so it is not as bad as originally proposed.  The amendment eliminated the "hard cap" and created an exception that would allow juries to make awards of more than $250,000 in cases of “substantial or permanent loss or impairment of bodily functions and substantial disfigurement.”  Because of the this amendment, the House bill and the Senate bill will have to be reconciled.

UPDATE (4/28/17):  The Senate passed a new bill adopting the House's version.  The bill now goes to the governor who is expected to sign it.  More on the story here.

UPDATE (5/8/17):   Last Friday, Iowa Governor Terry Branstad signed into law a bill for med mal cases requiring a certificate of merit and capping non-economic damages at $250,000 except in cases involving permanent impairment, disfigurement, or death.  The Des Moines Register has the story.  (Thanks to the TortsProf blog for this update.)

New England Journal of Medicine warns that med mal reform efforts will not likely affect cost of healthcare

Those of you who follow the debate on medical malpractice reform already know this, but it is worth repeating.  The goal of med mal reform efforts is to make it difficult for victims to be able to recover for their injuries, and have very little to do with the cost of healthcare.  This has been the conclusion of multiple studies over the years, and today the New England Journal of Medicine is again adding its voice to the debate.  It is warning that proposed tort reform efforts introduced by Republican lawmakers would cut deeply into consumers’ rights to pursue medical malpractice lawsuits, and are unlikely do much to lower the cost of healthcare.

I have posted lots of links to numerous studies that reach similar conclusions in the med mal section of this blog.  You can go here and scroll down to find the stories.  For some of those stories go here, here, here, here, here, and here.

For more on the NE Journal of Medicine new article go here.

US Supreme Court denies cert in ignition switch defects case

Last year, the Court of Appeals for the Second Circuit ruled against General Motors' argument that it could not be liable for damages caused by ignition-switch defects because the products were made before it formed a new company following Chapter 11 bankruptcy.  For more information on the case go here and scroll down.  This decision was appealed to the Supreme Court and this week it was reported that the Court has refused to hear the appeal.  Now, the currently pending claims against GM will move forward. The claims have been estimated to be worth between $7 billion and $10 billion.

Is a dog a product?

The Abnormal Use blog is reporting on an interesting story about a lawsuit against a Humane Society pet shelter based on the fact that a dog adopted from the agency bit a 15-month old child. What is interesting is that the cause of action is based on product liability principles.  The case apparently argues that the agency failed to warn the Greenes of the risks of transitioning a dog from a shelter to a home and of a dog’s potential dangerous propensities. 

Although it might seem odd to think of a dog as a product at first - mostly because it is not "made" or "manufactured" - dogs are "things" when it comes to the law.  Most jurisdictions will not grant more than their market value in a claim against someone who kills a pet, for example.  Also, animals of all sorts are bought and sold in the market, and not all as pets.  For this reason, I would not be surprised if there are other cases that consider animals as products in the context of products liability, although I can't say I remember having seen any lately other than cases involving dead animals, aka food for humans.

Yet, I agree with Abnormal Use that there does not seem to be a need to use strict liability to support the claim.  A simple negligence claim for lack of proper warnings would be sufficient. 

If the claim were to be argued as a negligence claim for failure to warn, though, there is another interesting issue looming over the case:  whether the defendant should have warned the consumer that the dog was a pit bull mix.  This opens the door to the debate on whether knowledge that the dog was of a particular specific breed creates a duty to warn - something I have written about before many times.  The generally accepted view is against imposing such a duty, but there are cases that have recognized it and there is credible (at least to me) evidence that suggests the argument has some validity to it.

The case was just filed recently, and my guess is that like most cases it will be settled quietly.  But who knows, maybe it will work its way through the courts and bring up the issues to the forefront again.  We'll have to wait and see.