Wisconsin Supreme Court to decide whether the state's cap on non-economic damages in med mal cases is unconstitutional

The TortsProf blog is reporting that the Wisconsin Supreme Court will hear oral arguments in a case on appeal from a decision of the state's appellate court which declared the state's cap on non-economic damages unconstitutional.  The case involves a medical malpractice claim which resulted in a jury verdict for the plaintiff.  The jury determined that the health care providers were responsible and awarded $25.3 million. The non-economic damages portion of the award was approximately $16.5 million.  Wisconsin has a cap on non-economic damages in medical malpractice cases of $750,000. The trial judge ruled the cap was unconstitutional as applied to the plaintiff's case. The intermediate appellate court affirmed and went further because it ruled that the the cap was unconstitutional per se (not just "as applied.")  The Milwaukee Journal Sentinel has the story.

Iowa Supreme Court finds that proof of exoneration is not necessarily required for a convicted defendant to sue for legal malpractice

In a many jurisdictions, a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. This view has been criticized but still appears to be the majority view. Yet, a number of jurisdictions have recently decided otherwise.

Back in 2016, I reported that the Iowa Supreme Court decided actual innocence is no longer required as an element of the cause of action; and I just saw that it recently reaffirmed this new approach in a case decided this year.  Here is the story which includes a link to the opinion.

Other jurisdictions that have held innocence is not a requirement include Washington, Kansas (also here) and Idaho.

UPDATE (4/15/2018):  Thanks to Patrick J. Olmstead, Jr. who wrote to me to let me know that the Indiana Court of Appeals also abandoned the actual innocence requirement in a case called Beal v. Blinn, 9 N.E.3d 694 (2014).

Ky. Lawmakers Didn't Consult Federal Experts About Limiting Black Lung Claims

A few days ago I reported that the Legislature in Kentucky had approved a measure to prevent federally-certified radiologists from judging X-rays in state black lung compensation claims, leaving diagnoses of the disease mostly to physicians who typically work for coal companies.

NPR is now reporting that the federal agency that trains, tests and certifies the physicians who read X-rays and diagnose black lung disease not consulted by Kentucky lawmakers in the 14 months they considered the new law.

This is a terrible law enacted to please the coal companies because black lung claims in Kentucky have risen about 40 percent since 2014. It should be repealed.

NPR has the story and more information on the reactions to the law by different groups including radiologists, the College of Occupational and Environmental Medicine and the Kentucky Workers Association, among others.

Comment on issues and unanswered questions related to autonomous cars

I am sure you have heard by now about an Uber autonomous car killed a pedestrian in Arizona.  The accident was called the first fatality caused by such a vehicle.  At the time Uber was experimenting with autonomous cars in Arizona.  Soon after the accident, the company announced it was terminating the experiment - at least for now.

I have blogged about issues related to autonomous cars before and about some of the possible questions that we will inevitably have to deal with in the near future as accidents begin to happen.  Go here, here and here.

Now comes news that Uber confidentially compensated the family of the pedestrian killed by its robot car.  That was quick and it evidently prevented the publicity that would have resulted from discovery if a lawsuit had been filed. 

But the issues and unanswered questions remain.  This might have been the first pedestrian death caused by an autonomous car, but unfortunately, it is not likely to be be the last.

Which brings me to the comment posted at The Pop Tort addressing some of the issues and questions related to this new topic in Tort law.  You should go and read it here.

Court holds coffee manufacturers must add a cancer warning label in California

Smithsonian magazine is reporting that coffee companies in California may soon be required to display a warning label alerting customers to a possible carcinogen in their brews.  Coffee contains acrylamide, which is on California’s list of chemicals that require a warning.  The ABA Journal also has the story (and more links) here. 

On the other hand, it has been reported that drinking coffee helps decrease the risk of many cancers.  I have a feeling this is not the last we will hear of this controversy.

Kentucky enacts law to make it more difficult for plaintiffs to recover for black lung disease

A measure signed into law in Kentucky this past week would prevent federally-certified radiologists from judging X-rays in state black lung compensation claims, leaving diagnoses of the disease mostly to physicians who typically work for coal companies.

This is outrageous.  Whether a person should be allowed to appear as an expert in a case should be left to the application of the rules of procedure and evidence.  What the legislature has done here is simply interfere with the process in order to favor defendants. 

You can read the full story here.

Injured Spectator vs The Chicago Cubs; Will This Be the Case That Establishes a New Rule? -- UPDATED

October 17, 2017
Readers of this blog probably saw the news that a baseball fan has sued the Chicago Cubs seeking compensation for the loss of sight in his left eye after he was hit by a foul ball during a Cubs game earlier this year.  This question has been litigated many times in many jurisdictions and, as it stands right now, the law favors baseball stadium owners.

In most cases, the discussion of the courts has focused on either whether the defendants have a duty to the spectator or whether the spectator assumed the risk of injury by choosing to sit close to the field.  Often, whether the issue is defined as the former or the latter, court and commentary refer to the analysis as one involving "the baseball rule," which is really a reference to the result of the application of the analysis. The case against the Cubs is different, however, because in Illinois, there is a specific statute that limits the possible liability of baseball stadium owners.

I wrote a short comment on this a few days ago in The John Marshall Law School Law Review blog.  You can read it here.

UPDATE (3-21-18):  Earlier this month, the court dismissed the claim against the Cubs but allowed the case to proceed against Major League Baseball.  The Chicago Daily Bulletin has the story.

On the difficult to understand distinction between negligence and recklessness

I have often argued that the distinction between negligence and recklessness is difficult to understand.  True, on paper we can express a definition that supports and distinction between the two concepts.  For example, in New Jersey, “recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others.”   Yet, as is often the case, in practice this type of definition (and attempt to distinguish from negligence) is difficult to apply, as a recent case from New Jersey illustrates.

As reported in Golf Dispute Resolution, in this case the plaintiff asked the defendant to show him how to properly hit a golf ball. The plaintiff then said ‘All right, get back.’ He then set up a golf ball on a tee and explained how to set up properly to the ball, how to hold the club and how to start the swing. The plaintiff testified that he thought the defendant had moved back enough that he would not be in harms way, but did not confirm this visually before swinging the club.  Unfortunately, the plaintiff was not out of harms way, and when the defendant swung the club, he struck the plaintiff in the face causing severe injuries.

On these facts, the trial court determined that the defendant’s actions, at most, constituted negligence, requiring that the case against him be dismissed, which in my opinion, was the correct decision.  Often, states require a showing of recklessness in cases involving sports injuries and the conduct in this case does not sound to me to fit the definition of recklessness cited above.

The appellate court disagreed holding that the judge erroneously usurped the role of the factfinder by making findings of fact and liability in matters in dispute between the parties.

I disagree, on these facts, a judge could easily have concluded (in response to a motion to dismiss) that reasonable people would not disagree that the evidence presented did not support a finding of recklessness.

Instead, the court of appeals held that there exists a material fact in dispute concerning whether the defendant "made appropriate observations prior to swinging the golf club consonant with the attendant risk of significant injury to a bystander."

And there is the problem:  saying that we have to decide whether someone "made appropriate observations prior to swinging the golf club consonant with the attendant risk of significant injury to a bystander" is a long way of saying whether the actor acted unlike a reasonable person would have under the circumstances, which is, of course, the standard of negligence.

In other words, the court decided that holding the case was a negligence claim was wrong, but then remanded so the jury could decide the case based on applying a negligence standard.

The case is called Spataro v The Stakemaster and you can read it here.

GM sued for accident caused by "self driving" vehicle

GM has been testing autonomous vehicle technology on the streets of San Francisco since August 2017, putting the cars in purposefully challenging conditions to ensure that their safety features work. Unfortunately, the vehicles have been involved in a number of accidents (at least six in September alone).  One of those accidents (which happened in December) involved a motorcyclist, who has now filed a lawsuit claiming that he suffered personal injuries in an accident with one of the company’s self-driving cars, when a self-driving Chevrolet Bolt vehicle veered suddenly into his lane, knocking him to the ground.  You can read the complaint here.

As reported by AboutLawsuits here, the lawsuit comes amid a push for the deployment of self-driving vehicle regulations. New federal guidance, A Vision for Safety 2.0, was released by the U.S. Department of Transportation (DOT) and the NHTSA in September, providing recommendations for the automotive industry and States to follow while developing the evolving technologies used in self-driving vehicles.

For my most recent posts on issues related to driverless cars, go to "Update on the debate regarding possible liability for injuries caused by autonomous cars"  and "Podcast: Challenges of self driving cars."

Miami Doctors Allow Man To Die Because Of “Do Not Resuscitate” Tattoo On Chest -- UPDATED

Jonathan Turley recently wrote about an interesting case in which doctors at a Miami Hospital decided to stop providing help to a patient because of a "do not resuscitate tattoo."   The story is interesting because, according to the report, Florida only recognizes DNRs if they are provided in a specific form.  If this is true, the doctors did not act according to the state's law.  Here is part of the story:

"Doctors at the Jackson Memorial Hospital faced a novel issue when a 70-year-old man was brought into the emergency room after being found intoxicated and unconscious on the street. . . . The doctors were working to assist the man when someone noticed a large chest tattoo reading “DO NOT RESUSCITATE.” It even had a tattoo signature. After consulting an “ethics expert,” the hospital treated the tattoo as a viable DNR form and allowed the man to die. In my view, the expert was wrong on the law if his decision was based solely on the tattoo. 

Florida agencies have a specific form and states: Do Not Resuscitate Order—Form 1896 (Multilingual) Important! In order to be legally valid this form MUST be printed on yellow paper prior to being completed. EMS and medical personnel are only required to honor the form if it is printed on yellow paper.  

The form has a place for a physician’s signature and required showings of informed consent. Florida does not recognize a metal DNR bracelet or necklace. A patient may carry a “patient identification device”, a smaller version of DH Form 1896 for their wallet or even a chain. 

The problem is that “Do Not Resuscitate” teeshirts and tattoos are common jokes. There was no way that the staff could determine if this was a joke or waiver.  

A similar case was discussed in a 2012 article in the Journal of General Internal Medicine, involving a 59-year-old patient. He had “D.N.R.” tattoo across his chest but he said the tattoo was a joke and the result of losing a bet in poker."

The doctors involved wrote the following Letter to the Editor of the New England Journal of Medicine:

We present the case of a person whose presumed code-status preference led him to tattoo “Do Not Resuscitate” on his chest. Paramedics brought an unconscious 70-year-old man with a history of chronic obstructive pulmonary disease, diabetes mellitus, and atrial fibrillation to the emergency department, where he was found to have an elevated blood alcohol level. The staff of the medical intensive care unit evaluated him several hours later when hypotension and an anion-gap metabolic acidosis with a pH of 6.81 developed. His anterior chest had a tattoo that read “Do Not Resuscitate,” accompanied by his presumed signature. Because he presented without identification or family, the social work department was called to assist in contacting next of kin. All efforts at treating reversible causes of his decreased level of consciousness failed to produce a mental status adequate for discussing goals of care. 

We initially decided not to honor the tattoo, invoking the principle of not choosing an irreversible path when faced with uncertainty. This decision left us conflicted owing to the patient’s extraordinary effort to make his presumed advance directive known; therefore, an ethics consultation was requested. He was placed on empirical antibiotics, received intravenous fluid resuscitation and vasopressors, and was treated with bilevel positive airway pressure. 

After reviewing the patient’s case, the ethics consultants advised us to honor the patient’s do not resuscitate (DNR) tattoo. They suggested that it was most reasonable to infer that the tattoo expressed an authentic preference, that what might be seen as caution could also be seen as standing on ceremony, and that the law is sometimes not nimble enough to support patient-centered care and respect for patients’ best interests. A DNR order was written. Subsequently, the social work department obtained a copy of his Florida Department of Health “out-of-hospital” DNR order, which was consistent with the tattoo. The patient’s clinical status deteriorated throughout the night, and he died without undergoing cardiopulmonary respiration or advanced airway management. 

This patient’s tattooed DNR request produced more confusion than clarity, given concerns about its legality and likely unfounded beliefs that tattoos might represent permanent reminders of regretted decisions made while the person was intoxicated. We were relieved to find his written DNR request, especially because a review of the literature identified a case report of a person whose DNR tattoo did not reflect his current wishes. Despite the well-known difficulties that patients have in making their end-of-life wishes known, this case report neither supports nor opposes the use of tattoos to express end-of-life wishes when the person is incapacitated.

UPDATE 1/21/18: NPR recently picked up the story here.