Monday, February 28, 2011

Comment on why we should not be so quick to believe that fear of malpractice litigation results in "defensive medicine"

The Boston Personal Injury Blog has posted a short comment on a recent essay in Time co-authored by Drs. Jesse Pines and Zachary Meisel which explains, contrary to tort reform rhetoric, that there are lots of reasons why doctors order unnecessary tests and procedures, quite apart from any fears of being sued. Go here for more. I have posted a lot recently on medical malpractice issues, particularly since the President's misguided comments on the subject during his state of the union address last month, including my comments on a bill currently under review by Congress. For more on the subject go here and scroll down (then you can read in chronological order scrolling up.) For my comments on the bill go here.

Public Citizen on Last-Minute Effort to Derail Consumer Product Safety Commission

A few days ago, I reported on a last-minute effort to derail the Consumer Product Safety Commission's attempt to launch a web-based public database containing consumer complaints about products. Public Citizen has picked up, and updated, the story here.

More comments on the Supreme Court cases from last week

Here are a couple of links to articles analyzing the two decisions by the Supreme Court on preemption from last week. The Abnormal Use Guide to Last Week's SCOTUS Preemption Opinions (from the Abnormal Use blog) Automaker Product Liability Lawsuit Over Seat Belts Can Proceed: Court (from Last week at the Court: In Plain English (from SCOTUS blog) For previous posts go here and scroll down.

Saturday, February 26, 2011

Pfizer settles case over medical experiments on Nigerian children

Back in January 2009 I reported that the Court of Appeals for the Second Circuit revived a claim filed under the Alien Torts Statute by Nigerian citizens against Pfizer claiming the company subjected their children to medical experimentation without their consent during a 1996 meningitis outbreak. The opinion is available here. In November 2009 I noted that case was appealed to the the US Supreme Court and that the Court asked the Justice Department’s Office of the Solicitor General to file a brief in the case. Then in June 2010, the Supreme Court rejected Pfizer's appeal after the US Solicitor General filed a brief arguing the Supreme Court should not bother to hear the case. Go here for the full story. Now the final chapter of this sad story seems to have been written. After 15 years of battling with Pfizer, the plaintiffs have settled with the company. The Wall Street Journal law blog has the story here. Reportedly, the plaintiffs were worried about the 2nd Circuit Court of Appeals decision barring claims against a corporation under the Alien Tort Statute. For more on that case go here, here and here.

Comments on Williamson v Mazda

As expected the comments on the recent Supreme Court decisions keep coming. Here is an update: Amanda Rice, of the ScotUS blog, writes: Yesterday’s decision in Williamson v. Mazda Motor of America dominated coverage of the Court. In Williamson, the Court held that federal auto safety standards do not preempt state tort suits alleging that car manufacturers should have installed lap-and-shoulder belts on rear inner seats. The decision was unanimous. Justice Breyer wrote for the Court, Justice Sotomayor filed a concurring opinion, and Justice Thomas filed an opinion concurring in the judgment. (Justice Kagan was recused.) The opinion is available here. David Savage of the Los Angeles Times describes the the decision as “a surprise outcome,” but he also notes that “[i]t is not clear whether [it] will open a door to many more successful suits against automakers.” Citing Tuesday’s decision in Bruesewitz v. Wyeth (which Adam covered in yesterday’s round-up, and which is discussed further below), the Washington Post’s Robert Barnes points out that the decision in Williamson was “the Court’s second [preemption] case in two days,” and he suggests that “[t]he contrasting decisions show the difficulty in predicting the Court’s jurisprudence in this area and underscore the importance of the specifics of each case. The New York Times, the Wall Street Journal, the Christian Science Monitor, USA Today, SCOTUSblog, the Associated Press, the ABA Journal, Bloomberg, Courthouse News Service, Reuters, JURIST,and The Note blog for ABC News also have coverage of the decision. In addition here is a link to an article in the Wall Street Journal law blog. Kali Borkoski, of the ScotUS law blog, again, adds the latest: At the close of a busy week, the decision in Williamson v. Mazda Motors of America, which Amanda covered yesterday, is still generating discussion. Writing for the Wall Street Journal Law Blog, Ashby Jones has coverage of the decision, while Annie Decker – writing for ACSblog – considers how the decision in Williamson is distinguishable from the Court’s 2000 decision in another automobile preemption case, Geier v. American Honda Motor Co. Debra Cassens Weiss at the ABA Journal and Elizabeth Wydra at the Constitutional Accountability Center have also written about Williamson, with a focus in particular on Justice Thomas’s concurring opinion. UPDATE (2/28): Automaker Product Liability Lawsuit Over Seat Belts Can Proceed: Court (from

This week's top stories

This week's top story is easy to select: the Supreme Court's two decisions related to the concept of preemption. In Bruesewitz v. Wyeth, the Court held that the National Childhood Vaccine Injury Act preempts all design-defect claims brought in state court, while in Williamson v Mazda the Court held that a design defect claim brought in state court against a car manufacturer was not preempted by a federal regulation. For more on these cases, go here and scroll down. For other top stories go here for The Boston Personal Injury Blog's list of top stories this week.

Thursday, February 24, 2011

Comment on the Supreme Court's decision on preemption in vaccine cases

Here is a link to an article analyzing the Supreme Court's opinion in Bruesewitz v. Wyeth, in which the Supreme Court held that the National Childhood Vaccine Injury Act preempts all design-defect claims against vaccine manufacturers brought by plaintiffs who seek compensation for injury or death caused by vaccine side effects. For more on the case go here and here.

Wednesday, February 23, 2011

Supreme Court evens the score on preemption; decides claims are not preempted in Williamson v Mazda

We have been following Williamson v Mazda since it was argued before the Supreme Court last year (here, here, here and here. You can listen to the oral argument here). In this case, the Court was asked to decide whether a state claim for damages caused by a car manufacturer's failure to install a three point seat belt in a 1993 car is preempted by federal regulations that allow vehicle manufacturers to install either lap-only or lap/shoulder seatbelts in certain seating positions. Today, the Court announced its decision in the case holding unanimously that the claim brought in state court was not preempted by the federal regulation. Justice Breyer wrote the opinion of the Court. Justice Sotomayor wrote a concurring opinion and Justice Thomas concurred only in the judgment. Justice Kagan had recused herself. The text of the opinion is available here. I think Williamson is the most interesting of the torts preemption cases before the Court this term and the result is surprising in a couple of ways. First, there's the holding itself. The last time the Court addressed this issue, in Geier v Honda, it decided the claims were preempted. Second, there's the fact that the decision was unanimous. In Geier, the Court was sharply divided. And, third, the Court did not overrule Geier. I'll have to read the opinion to figure out how they managed that. For more comments on this decision go to SCotUS blog, Public Citizen, and the Drug and Device law blog. UPDATE: go here for links to more comments on the case.

Comments on the vaccine preemption case

As expected, there are a lot of reports and comments today on yesterday's Supreme Court opinion holding that defective design claims are preempted by the Vaccine Act. The court's opinion is available here. For more go to the following: TortsProf blog, Christian Science Monitor, Drug and Device Law Blog, Washington Legal Foundation, CNN, Washington Post, New York Times, Pittsburgh Post-Gazette, USA Today, WSJ Health Blog, NPR, CBS News, Bloomberg, Reuters, Washington Times, and Courthouse News Service, UPDATE: For more go to The Jurist, ScoutUS blog and AboutLawsuits. Go here for more updates. Thanks to the SCOTUS blog for most of these links.

Tuesday, February 22, 2011

Supreme Court decides design defect claims are preempted by vaccine act

In a very closely watched case, the US Supreme Court ruled today that federal law shields vaccine makers from product-liability lawsuits that are filed in state courts for injuries attributed to a vaccine. Writing for the court, Justice Antonin Scalia, said the vaccine law “pre-empts all design-defect claims against vaccine manufacturers brought by plaintiffs who seek compensation for injury or death caused by vaccine side effects.” Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented, saying the ruling “leaves a regulatory vacuum in which no one ensures that vaccine manufacturers adequately take account of scientific and technological advancements when designing or distributing their products.” For more on this very important case go here, here and here. For previous posts and more background information go here, here, here, here and here. I am assuming there will more comments on this case in the next few days so I will continue to update this post with more links as they come in. Check back for the latest.... UPDATE (2/23) go here and here for the latest.

Joanne Doroshow: Rich New York Hospital Execs To Use Brain-Damaged Babies As Political Bargaining Chip

Joanne Doroshow, of the Center for Justice and Democracy has written an article about the connection between Medicaid and tort reform in New York. Here are the first couple of paragraphs: "Whatever has been going on behind the closed doors of Governor Andrew Cuomo's Medicaid Redesign Team, loaded with self-dealing lobbyists and hospital executives who make Wall Street level salaries, it's time for New Yorkers to say - enough. Many have already complained about how this Team has been dominated by hospital and industry lobbyists, with consumer or patient advocates essentially excluded. Now we find out that these lobbyists are using this process not to save Medicaid money, but to execute a backroom deal that will create a financial windfall for negligent hospitals, incompetent health care providers and their insurance companies. Essentially, their proposal (known a Proposal #131), which they intend to push through the budget process with no public airing, would severely limit hospitals' liability for killing or injuring patients. Yet we know that many New York hospitals have notoriously bad safety records, especially in low-income communities, and too many babies suffer brain damage at birth as the result of poor medical care. These children, who are often on Medicaid, are able to get off Medicaid because settlements or verdicts pay for their needs. However, this Team is proposing a Draconian "cap" on non-economic damages in all medical malpractice cases, an industry-crafted measure that arbitrarily limits compensation and promotes a kind of caste system by branding entire classes of low- or non-earners in our society (seniors, children, women who do not work outside the home, and the poor), as worth less than their wealthier counterparts, and make it difficult for these cases to even make it to court. But here is what's even more horrific: ...." ....Go here to continue reading this article.

Monday, February 21, 2011

Should victims of malpractice be allowed to sue medical students or residents?

Popular law blogger Eric Turkewitz has posted a very interesting comment on whether plaintiffs should be allowed to sue medical students and residents in malpractice cases. His comment is a reply to a post by Dr. Kevin Pho, a medical blogger, who has argued that Medical Students Should Not Be Liable for Malpractice. becasuse, there is little to gain by suing them when a supervising physician will answer the charges. Turkewitz replies by providing several good arguments as to why sometimes plaintiffs have no alternative but to include the students or interns as part of the lawsuit. His full comment is available here.

Last-Minute Effort to Derail Consumer Product Safety Commission

Last month, Public Citizen reported (here) that the Consumer Product Safety Commission is set to launch a web-based public database containing consumer complaints about products. That is good news. Unfortunately, business interests are working behind the scenes to ditch the program. Now, the New York Times is reporting that "emboldened by a Republican majority in the House of Representatives, manufacturers of toys and other children’s products are making a last-ditch effort to quash new safety regulations," particularly the new public database. The NYT story (by Andrew Martin) appeared in print on February 22, 2011, on page B1 of the New York edition. You can find it online here or by searching the phrase "Child-Product Makers Seek to Soften New Rules" on Google.

Press Conference Announcing House Civil Justice Caucus

Here is a video of the press conference introducing the new House of Representatives "Civil Justice Caucus," a group whose mission apparently is to reform our civil justice system to make sure civil liability does not interfere with companies' "productivity" and profitability. Using all the familiar tort reform rhetoric, they emphasize the need to eliminate "frivolous lawsuits." I do not know of anyone who would disagree with this goal. There is not one single person out there advocating for a right to bring frivolous lawsuits. Unfortunately, as usual, the problem is that many of the proposals that are being presented by tort reform groups are really not intended to eliminate frivolous lawsuits but to limit access to representation or recovery by people who have a right to bring valid ones. If this group is really serious and honest about achieving fair reform, the key is to find ways to allow the system to continue to provide access to representation and compensation to those who deserve it, and letting the torts system work to improve safety. That is not an easy task, and, unfortunately, not one that I think they are interested in. I could be wrong, but judging from the med mal bill currently under discussion in Congress, I am not optimistic. For more on that bill go here, here, here and here.

Press Conference Announcing House Civil Justice Caucus from Civil Justice Caucus Academy on Vimeo.

Sunday, February 20, 2011

NJ Appellate Court Finds Innocence is Not a Prerequisite to Malpractice Suits by Criminal Defendants

In a decision that breaks away from the majority view throughout the states, an appellate court in New Jersey has found that a convicted criminal defendant does not have to prove actual innocence as part of his prima facie case of negligence against his former criminal defense lawyer. The case is called Marrero v. Feintuch.

Survey shows most doctors don't trust drug.... and that I am so naive sometimes...

Not too long ago, the FDA rescinded the breast cancer indication for the drug Avastin, which is approved to treat bowel, lung, brain and kidney cancers. Now Pharmot is reporting (here) that a new survey has found 58 percent of doctors surveyed support the FDA restriction. In response, Roche CEO Severin Schwan complained that “People talk as if Avastin is a problem, but it is a product with over six billion Swiss francs (in sales) and it still has growth potential." Does anything strike you as odd in this response? I don't know, I guess I would have liked to have heard the complaint be something along the lines of "this drug has proven effective in treating cancer" or "it helps patients" or something along those lines. Instead, the complaint is that that pesky FDA is cutting in on profits. The drug makes billions! How can someone not think it is a good product!? I guess, that tells you something about the comapany's priorities. I am so naive sometimes....

More comments on the med mal reform proposal before Congress

Given that the proposed med mal reform bill before Congress limits recovery to $250,000, Alan Crede and others are asking "Why Are Lives Lost To Medical Malpractice Not As Valuable As Other Lives?" Go here for the full story. For more on this horrible piece of legislation go here, here, here and here.

Saturday, February 19, 2011

Most recalled medical devices had been approved by FDA's "fast track"

For years, and to no surprise to anyone paying attention, the FDA has been criticized as being extremely inefficient and unreliable. Go here and here for information on a reports by the Government Accounting Office on this. Now, according to new research published this week in the Archives of Internal Medicine, 70% of all medical devices recalled since 2005 were approved by the FDA through a controversial “fast-track” process, which only requires the manufacturer to provide minimal data on safety and effectiveness. For more information go to, the Boston Personal Injury Blog and The New York Times.

AstraZenca settles more cases related to diabetes drug Seroquel; settlements adding up to $350 million

AstraZeneca has reportedly agreed to pay another $150 million to settle Seroquel diabetes lawsuits, bringing the total amount of reported Seroquel settlements to about $350 million. According to Bloomberg News, the drug maker has settled about 6,000 more lawsuits that allege inadequate warnings were provided about the risk of diabetes and other side effects of Seroquel. The average payout will be about $25,000 per plaintiff. For more information go to

Podcast on Legal Issues Surrounding Pharmacy Errors

The Legal Talk Network has a half an hour podcast on issues related to negligence by pharmacists here (or here.) The show features Chad Cook, an attorney with experience in litigation related to pharmaceutical products and pharmacist Dr. Shannon J. Johnson. They talk about the legal issues pharmacies can face due to prescription errors and pharmacy misfills and discuss how these errors can be prevented.

Friday, February 18, 2011

This week's top stories

Go here for the TortsProf Blog's list of this week's top stories and here for today's installment at the Abnormal Use blog. In addition, go here and scroll down for my own selection of top news stories.

Wednesday, February 16, 2011

Cyberbullying as intentional infliction of emotional distress

Here is a link to a short article arguing that courts should recognize a cause of action for "cyberbullying" as intentional infliction of emotional distress. Thanks to the TortsProf blog for the link.

Monday, February 14, 2011

Another editorial on med mal reform

Joanne Doroshow (of the Center for Justice and Democracy) has published an editorial on medical malpractice reform that is worth reading (here). Among other things, she reminds us about something I have argued in this blog repeatedly: that the attempt to federalize state medical malpractice laws has really nothing to do with "frivolous" medical malpractice lawsuits. We keep hearing that there is a need to stop "frivolous lawsuits." But here is the thing: that is something we all agree on. I have never heard of anyone out there saying "we should keep the right to file frivolous lawsuits." You know why? Because there is no such right and because there are plenty of protections in place to prevent such lawsuits - not the least important of which is that lawyers are sanctioned personally (monetary sanctions to be paid out of the lawyers' own pockets) when they do file frivolous lawsuits. Make no mistake about it, measures like the med-mal statute under review in Congress (and many states) are not designed to stop frivolous lawsuits. They are designed to stop, or at least limit, valid lawsuits. Those are the ones that insurance companies want to eliminate. Those are the ones that cost them money! As Ms. Doroshow argues, "bills like H.R. 5, which propose "caps" on non-economic (i.e. quality of life) compensation, have nothing to do with "frivolous" lawsuits. They hurt only the most seriously injured patients, who have already proven a hospital or doctor's negligence. There is nothing frivolous about those cases." For my comments on the House bill go here.

Sunday, February 13, 2011

Pfizer agrees to pay $330 million to settle cases over drug alleged to cause breat cancer

About a week ago, the Pennsylvania Superior Court issued its decision in a case called Daniel v. Wyeth Pharms., (available here). The Superior Court reversed the trial court’s decision granting Wyeth’s motion for a new trial and reinstated the compensatory and punitive damages verdicts. In response it is now being reported that Pfizer has agreed to pay about $330 million to settle more than 2,200 lawsuits charging its Prempro hormone replacement therapy caused women to develop breast cancer. For more on this story go to Pharmalot. For criticism of the decision go here.

Editorial on medical malpractice reform

Here is the link to an editorial on medical malpractice reform by the Des Moines Register called "Malpractice reform rests on thin evidence" -- something I have been saying for a long time. For my previous posts with links to lots of sources showing that lack of evidence go here, here, here, here and here or go here and scroll down for more. Go here for my comments on the bill recently discussed in Congress.

$7.3 million verdict for emotional distress in legal malpractice case

The Associated Press is reporting today that a Maine judge has upheld a jury verdict that awarded $7.3 million in damages for emotional distress to a businessman who contended a law firm he hired worked against his interests. In a 37-page ruling, Superior Court Justice Thomas Humphrey denied the law firm's motion seeking a new trial.

Saturday, February 12, 2011

Court of appeals in Michigan allows cause of action for legal malpractice even though client agreed to settlement in the underlying action

Last month, a Court of Appeals in Michigan allowed a legal malpractice suit to go forward clarifying the circumstances in which clients who become disenchanted with settlements can sue their attorneys for negligence. The case is called Laethem Equipment Co. v. Currie Kendall, P.L.C.. The court held that the mere fact that the client agreed to the settlement did not eliminate the right of the client to later complain his attorney had been negligent in obtaining the settlement. For a summary of the case, go here. This is not the first time we have seen cases against lawyers who settle cases even though the clients agree to the settlements. For examples from courts in New Jersey and Illinois go here and here.

Saturday, February 5, 2011

CPSC May Mandate Flesh Detection Technology In Table Saws

A few days ago, I posted a video on flesh detection technology that could be used to make power saws safer. See here. Today, Alan Crede, of the Boston Personal Injury lawyer blog, posted a very good follow-up to that story reporting that the head of the Consumer Products Safety Commission is questioning why power tool manufacturers have not done more to prevent finger amputations caused by power saws. According to data obtained by the CPSC, finger amputations from power saws continue to occur at about the rate of ten a day and the CPSC estimates that these saw accidents cost the economy $2 billion annually. For these reasons, it is being reported that if the industry fails to voluntarily develop better safety standards, the CPSC may mandate the use of new safety technology, including the use of "flesh detection" technology as the one depicted in the video I posted. Mr. Crede's very good comment is available here. He also cites an article in USA Today on the subject which is available here.

Stage now set for US Supreme Court to review important case on the Alien Tort Statute

Last September, I reported on a decision by the Court of Appeals for the Second Circuit holding for the first time that plaintiffs could not bring claims against corporations under the Alien Tort Statute. This view departs from decades of case law under the ATS. (See here and here.) The opinion is available here. The stage is now set for the case to move on to the Supreme Court. Yesterday, a divided panel denied rehearing and the en banc Court — splitting 5-5 — refused to rehear the case. An opinion in this case will be tremendously important. Go here for a full report by the Supreme Court Blog.

Friday, February 4, 2011

More on the finding that Feinberg is not "neutral"

Yesterday I reported (here) that a federal judge ruled that it was misleading for Ken Feinberg, the administrator of the Gulf Coast Claims Fund call himself "neutral" or "independent" in administering BP's $20 billion oil spill victim compensation fund. In his comment in the Legal Ethics Forum, Monroe Freedman concludes that the opinion "confirms that Feinberg has been engaging in unethical conduct that has been misleading claimants and posing a serious threat to the administration of justice.” Here is a link to a short comment and discussion on the wide-ranging implications of the BP and Feinberg arrangement. The PopTort blog also picks it up here.

More on the case about whether there is a duty to provide warnings in foreign languages

A couple of weeks ago, I posted a comment on a recent case in which the Federal District Court for Southern District of Florida held that a manufacturer has no duty to provide bilingual warnings. (Go here for my original comment.) I totally understand why the court decided the case the way it did and I think the result is justified. But, given the specific facts of the case, I think the exact opposite result would have been justified too. I don't think you see that often! The Abnormal Use Blog, which reported the case first, has now posted a follow-up to my comment here. We have the same reservations about imposing a broad duty to provide warnings in foreign languages.

This week's top stories

In my opinion, this week's top story was the surge of tort reform initiatives. It started last week when the President commented on medical malpractice during his State of the Union Address (see here and here) and continued with news of a new tort reform law in Wisconsin (here and here), a speech in New York (here) and a bill before Congress (here, and here). For more on the most important tort law stories of the week, go here for the list at the TortsProf Blog and here for today's installment at the Abnormal Use blog. In addition, go here and scroll down for my own selection of top news stories.

Thursday, February 3, 2011

Judge finds Ken Feinberg is not "neutral"

About three weeks ago I reported (here) on an on-going debate related to Ken Feinberg, the administrator of the Gulf Coast Claims Fund. Several blogs, organizations and articles have argued that Feinberg is acting under a conflict of interest because he was not really simply managing the fund, he was getting paid $850,000 a month by BP to settle claims against BP and obtain releases of liabity for BP. Now a federal judge has agreed with these allegations and ruled yesterday that it was misleading for Feinberg to call himself "neutral" or "independent" in administering BP's $20 billion oil spill victim compensation fund. The judge has ordered Feinberg to clearly disclose his role as acting for and on behalf of BP. Moreover, Feinberg must "[a]dvise claimants that the 'pro bono' attorneys and 'community representatives' retained to assist GCCF claimants are being compensated directly or indirectly by BP." In the end, the judge has ordered BP, through its agents Ken Feinberg and any of their representatives, in any of their oral or written communications with claimants (including but not limited to websites, telephone scripts, personal contacts, release documents and correspondence) to (1) Refrain from contacting directly any claimant that they know or reasonably should knowis represented by counsel, whether or not said claimant has filed a lawsuit or formal claim; (2) Refrain from referring to the GCCF, Ken Feinberg, or Feinberg Rozen, LLP (or theirrepresentatives), as “neutral” or completely “independent” from BP. . . . (3) Begin any communication with a putative class member with the statement that theindividual has a right to consult with an attorney of his/her own choosing prior to accepting anysettlement or signing a release of legal rights. (4) Refrain from giving or purporting to give legal advice to unrepresented claimants,including advising that claimants should not hire a lawyer. (5) Fully disclose to claimants their options under OPA if they do not accept a final payment, including filing a claim in the pending MDL 2179 litigation.and, (6) Advise claimants that the “pro bono” attorneys and “community representatives”retained to assist GCCF claimants are being compensated directly or indirectly by BP. The judge's opinion is available here. For a brief discussion of the opinion go to the PopTort blog, Legal Ethics Forum and the Wall Street Journal Law Blog.

Opposition to the tort reform bill before Congress is now reporting that a number of consumer watchdog groups and patient safety organizations are speaking out against the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011 currently before Congress. A letter (available here) on behalf of 24 different organizations, representing about 50 million people, was sent to U.S. House Judiciary Committee Chairman Lamar Smith asking him to reject a tort reform bill that would make it more difficult for citizens to bring lawsuits in cases of medical malpractice and defective medical devices and drugs cases. Go here for the full story. I just posted my review of the the bill here.

House of Representatives considers medical malpractice reform

A few days ago, I reported that the general counsel for the American Tort Reform Association has suggested that one of the premises upon which a bill currently before Congress is based is false. (See here.) This lack of support for a bill that supposedly stands for everything the ATRA defends is quite telling. You can take a look at the bill, which is relatively short, by going here.

In many ways, the bill is predictable. It attempts to limit the right of victims of medical malpractice to recover for their injuries by making it difficult for them to find representation and by limiting their possible recovery. Given the level of medical malpractice errors reported, it is scary to think what would happen if the bill were adopted.

 Let me, then, summarize some of the bills more interesting aspects. The bill starts by stating that its purpose is "to improve patient access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system." Note how there are several premises to this statement: (1) that the liability system places an excessive burden on the health care delivery system, (2) that this burden results in less access to health care services, (3) that this burden results in poor quality services and (4) that adopting the bill will result in more access to services and in better services.

Then the bill continues to assert that "Congress finds that our current civil justice system is adversely affecting patient access to health care services, better patient care, and cost-efficient health care, in that the health care liability system is a costly and ineffective mechanism for resolving claims of health care liability and compensating injured patients, and is a deterrent to the sharing of information among health care professionals which impedes efforts to improve patient safety and quality of care."

Maybe Congress has "found" this, but I wonder where it did so. I can't say that I have seen every study out there, or read every article on the subject, so I am perfectly willing to be convinced. But I don't think I have seen anything that would support these conclusions. And I have seen plenty of studies that would prove the opposite.

 During the height of the debate over the health care bill, there were a number of studies and reports published that documented how tort reform efforts would not lower health costs. For links to those articles go here, here, here, here and here. For more recent reports on the issue go here and here. For links to articles criticizing the usual tort reform attempts to limit the rights of medical malpractice victims go here, here, here, here, here, here, here, here, here, here, here, here and here OR just click on the "medical malpractice" tab on the right side under the heading "search for posts by topic."

 But I digress. Let's get back to the bill itself. Here are the highlights. 

The proposed bill adopts a cap for non-economic damages of $250,000 and states that the jury will not be informed of the cap. Such a measure would disproportionately hurt seniors, the unemployed, the poor, children and women who don't have independent sources of income. Go here for more on this.

The bill also eliminates the use of "joint and several liability" as a way to apportion liability among tortfeasors thus allowing culpable parties to escape part of their responsibility to pay for damages. This is important in cases where one culpable party is not available to pay his or her share of the bill. When it comes to the apportionment of this liability, the choice is whether to favor the injured party, the tortfeasor or to divide the burden among them. Making everyone share the burden is the most fair approach. This bill, not surprisingly, however, favors those who cause the injury leaving the victims to suffer the consequences.

Next, the bill increases the burden of proof to recover punitive damages in two ways. It increases the level of evidence to "clear and convincing" (from the typical "preponderance of the evidence"). More importantly, however, the bill would recognize punitives only if the plaintiff can show intentional conduct on the part of the defendant. No longer will a plaintiff be able to recover punitives by showing an irresponsible level of disregard for safety or an unacceptable level of incompetence. Only by showing "malicious intent" or "deliberate" conduct will a plaintiff be able to recover punitives.

This essentially eliminates the possibility of recovering punitives entirely. But that is not all. In those very rare cases where punitives might be available, the amount of punitive damages would be limited to $250,000 or as much as two times the amount of economic damages awarded, which ever is greater. And, the jury shall not be informed of this limitation.

These proposals are bad enough, but hardly surprising. They have been around for a long time and, in fact, are the law in some states -without evidence that there is more access to health services or that services are better in those states, by the way. There are, however, a couple of unprecedented proposals in this bill.

First, in an attempt to prevent victims from finding legal representation to file claims to begin with, the bill states that courts will have the authority to prevent plaintiffs lawyers from recovering fees from their clients. I have heard of attempts to limit the percentage a lawyer could charge for a contingency fee before (which the bill also includes), but I had never heard of a statute that gave the court the authority to modify the agreement entered into by a lawyer and her client.

The other unprecendented proposal is that the bill attempts to take the decision regarding punitives away from the jury. The bill states that plaintiffs are precluded from asking for punitives in the complaint. They can only do so by motion which will be granted by the judge only after the judge is convinced that the plaintiff has the right to recover punitives. In other words, the plaintiff would have to convince the judge that the plaintiff should get punitives for the judge to allow the plaintiff to try to convince the jury of the same thing.

 I certainly hope this bill is defeated.

Wednesday, February 2, 2011

More on the tort reform bill in Wisconsin

A few days ago I posted a note about the new tort reform bill adopted in Wisconsin (here). Today, the Drug and Device law blog has published a summary of the bill's highlights.