Sunday, June 12, 2022

California Governor Signs Bill Raising Medical Negligence Caps

A few weeks ago, Governor Gavin Newsom signed Assembly Bill No. 35 into law, which received unanimous support for raising the California medical malpractice pain and suffering cap to reflect inflation, and provides better support for those who have been tragically hurt or killed by a medical mistake. has the story here; the TortProf blog has a comment here.

Tuesday, May 24, 2022

New study in California concludes what we knew already: placing caps on damages in malpractice cases does not reduce malpractice

 As California seeks to pass new legislation that would increase the amount victims can recover for pain and suffering in medical malpractice lawsuits, a new study shows that setting damage caps for pain and suffering reduces the incentive to avoid malpractice, and results in an increased rate of malpractice lawsuits.  And, an increased rate of malpractice claims ultimately raises the potential cost to patients and insurers, along with noneconomic losses suffered by victims.

In other words, caps in malpractice lawsuits do not have any of the effects proponents of caps always argue they will have.  They do not result in deterrence, may result in higher costs, and do not prevent higher insurance premiums.

You can read more about the study here.

Friday, April 8, 2022

Book Review: "Tort Law and the Construction of Change: Studies in the Inevitability of History"

Over at Jotwell, Chris Robinette (Southwestern Law School) has published a book review of Tort Law and the Construction of Change: Studies in the Inevitability of History by Kenneth S. Abraham & G. Edward White.  You can read it here.  

Here is the conclusion:  The tension between stability and progress is an inherent feature of the common law. Stability in the law provides guidance to people in living their lives and reassurance that there is more to law than the personal preferences of those administering it. If, however, the law never changes with society, it will become ill suited to meet people’s needs. We know law changes over time, but how does it do so without being destabilizing?  Professors Kenneth Abraham and G. Edward White attempt to answer that question with regard to tort law in their latest book. They present an illuminating study of legal change grounded in compelling tort history. 

Thursday, February 17, 2022

Big news of the week: Sandy Hook families reach $73M settlement in suit targeting gun marketing

 The big news this week was the announcement of a settlement in the case of the Sandy Hook families against gun manufacturers.  This is the first time a firearms manufacturer has settled a lawsuit brought by gun violence victims since Congress granted the industry sweeping immunity from civil liability in 2005.  The $73 million settlement is covered by The ABA Journal (where you can find more links), NPR (print) and NPR (audio).

The plaintiffs (Sandy Hook families) hope the settlement will lead to changes in the gun industry.  Yet, here is an article arguing why it probably won't.

Sunday, February 13, 2022

Bill to allow parents of adult children to recover in malpractice cases fails in Florida

A couple of weeks ago I wrote that the Florida House has voted to pass a bill to allow parents to pursue pain and suffering damages when their adult children die due to medical malpractice negligence.  See here.

Today I am writing to report that the attempt to pass the bill has failed.  See here. Medical interests and the Florida Chamber of Commerce had opposed the bill, arguing that current state of the law helps keep malpractice insurance premiums affordable, an old claim that has been proven to be wrong many times. 

Thanks to the TortsProf blog for the update. 

Sunday, January 30, 2022

Legislators in Florida try to pass bill to recognize wrongful death cause of action for parents of adult children

For the second time in two years, the Florida House has voted to pass a bill to allow parents to pursue pain and suffering damages when their adult children die due to medical malpractice negligence. However, the bill has yet to pass through the Florida Senate, where it is facing opposition from the medical community and insurance carriers.  You can read the story here.

Monday, January 10, 2022

Strangely worded opinion in Indiana recognizes cause of action for emotional distress resulting from sexual abuse of a child, ... maybe?

A few days ago, the TortProf Blog reported that "[t]he Indiana Supreme Court has extended negligent infliction of emotional distress."  In K.G. v. Smith, 2021 WL 6063878, at **1, 8, 2021 Ind. LEXIS 775, at *2, 23-24 (Ind. 2021), the court apparently recognizes a cause of action for the parents of a child who claim emotional distress from learning that a caretaker for their child sexually abused the child.  However, the opinion is very awkwardly worded.  It states that 

"[W]hen a caretaker assumes responsibility for a child, and when that caretaker owes a duty of care to the child's parent or guardian, a claim against the caretaker for the negligent infliction of emotional distress may proceed when the parent or guardian later discovers, with irrefutable certainty, that the caretaker sexually abused that child and when that abuse severely impacted the parent or guardian's emotional health.”; “To satisfy this rule, the parent or guardian must show (A) that the tortfeasor had a duty of care to the parent or guardian; (B) that there is irrefutable certainty of the act's commission; (C) that the tortious act is one rarely, if ever, witnessed by the parent or guardian; and (D) that the abuse severely impacted the parent or guardian's emotional health."

Here is my problem with this.  Notice how the court does not say that the caretaker owes a duty to the parents.  It says that IF the caretaker owes a duty to the parent.  This means that to support a prima facie case, the parents will have to convince the court that the caretaker owes them a duty.  And, the parents will have to do this in addition to meeting all the other elements of the cause of action.  

In other words, the key here is that the parents have to show that the caretaker owed them a duty, but the court does not say how a parent can satisfy the element of duty in such a case.   Unless I am missing something, this adds nothing to what we already knew.  To have a cause of action, the plaintiff always has to show the element of duty.

My guess is that the parents will have to find a way to convince the courts to adopt the view of the Restatement 3d §47(b) which recognizes a possible claim for negligent infliction of emotional distress based on the relationship between the parties.  

Sunday, January 9, 2022

Article on changes to the law in Tennessee on whether the law recognizes a wrongful death action for the death of an unborn fetus

 Over the years, I have posted comments and updates on whether the law recognizes (or should recognize) a wrongful death claim for the death of a stillborn fetus, or even for the loss of a pregnancy at any point in the pregnancy.  Go here for all the stories on "pre-natal torts."  

I am writing about this today because a few days ago I saw a short article on the state of the law in Tennessee which changed recently.  You can read the article here.

Sunday, December 19, 2021

Family members of student victim in the Michigan school shooting sue school district

The family of Riley Franz, a student who was shot in the neck at Oxford High School last week, is suing the school district and school officials in Oxford, Mich., for $100 million, saying they failed to prevent the mass shooting that killed four students and injured seven people, despite multiple warnings and signs for concern. More on the story here.

The case will hinge on whether the court recognizes that the school had a duty to each student and whether the duty extends to protecting against intentional and criminal conduct.  

The general common law does not recognize a duty to help or to control the conduct of others.  However, over time, courts and the Restatement of Torts have recognized limited duties in certain circumstances.  Some of the most commonly accepted exceptions to the general rule are based on the existence of a special relationship between the person alleged to have a duty to help and the person in need of help.  Traditionally, a special relationship exists when one party depends on the other for protection and the other party has the ability to provide the needed protection.  For this reason, whether a relationship constitutes a special relationship which creates a duty to help or protect has usually been interpreted narrowly.  In fact, for a long time the concept was limited to the relationship between common carriers and their passengers, and between innkeepers and their guests.  However, for a variety of reasons, the notion of special relationships has been extended to include other types of relationships such as those between landlords and tenants, and commercial establishments and their customers.

Likewise, over the years, jurisdictions have shifted their approach on whether schools have a special relationship with their students.  The Restatement (Third) now includes the relationship between a school and its students as one that gives rise to a duty to help.  However, because there are many different types of schools, whose students also vary in terms of age and maturity, the Restatement recognizes that there must be differences in analysis depending on whether the case involves elementary schools or high schools, as opposed to colleges and universities.  As it explains in a comment to the section that recognizes duties based on special relationships, "because of the wide range of students to which it is applicable, what constitutes reasonable care is contextual–the extent and type of supervision required of young elementary–school pupils is substantially different from reasonable care for college students."

Thus, according to this approach, while a school does not have an automatic, broad duty to protect students, certain duties may be triggered under unique circumstances if there is a special relationship between the institution and an individual based on the foreseeability of harm.  

This apparent shift toward imposing a limited duty toward students is not necessarily new, but it seems to be broadening, and given the rising tide of gun violence in schools, it is an important issue for schools of all levels.

I once wrote an article on the possible duty of a college or university to its students.  You can read it here.

Monday, November 29, 2021

Jury awards millions in damages against white nationalists for injuries caused during "Unite the Right" rally in Charlottesville

After a monthlong trial, a jury in U.S. District Court in Charlottesville found the white nationalists liable on four counts in a lawsuit filed by nine people who suffered physical or emotional injuries during two days of demonstrations.  The jury awarded more than $25 million in damages for the injuries suffered after violence that erupted during the 2017 Unite the Right rally.

Lawyers for the plaintiffs invoked a 150-year-old law passed after the civil war to shield freed slaves from violence and protect their civil rights. Commonly known as the Ku Klux Klan Act, the law contains a rarely used provision that allows private citizens to sue other citizens for civil rights violations.

For more coverage you can check:  Politico. Jurist, NPR, ABA Journal, The Guardian, Above the Law, and Democracy Now.