Sunday, May 29, 2011

Technical problems with the blog

For the second time in just a few weeks, I have been experiencing serious technical problems with the system that hosts my blogs (ie, "Blogger").  I have enjoyed using Blogger and I like many of its features but I am becoming increasingly frustrated with the problems I am experiencing.  The last time I had problems, Blogger was updating some features and the problems resolved themselves after a few days.  I am hoping this is the case again.  Otherwise, I may not be able to post new information for a few days and I may soon be looking to move the blogs to a new system or stop blogging altogether.  If you have any comments or suggestions please send them to me by email.

Saturday, May 28, 2011

Auto industry bailout's effects on victim's claims

The Wall Street Journal reported yesterday that the government’s bailouts of car-makers Chrysler and General Motors "dashed the legal recoveries of many who stood to recover from the companies for injuries sustained when Chrysler and GM cars malfunctioned."  (See here.)

This is an important story, but it is hardly news.  I am not sure why the WSJ is picking it up now.  I and many others discussed this issue at length way back in the summer of 2009.  For a lot more information on this topic go to my posts (in chronological order) here (June 22, 2009), later that same day, June 23, June 26June 28, June 30, July 2, July 8 and August 28.

Here is a video ad I posted back in June 2009:

And here is another one:

Yet another new report on medical malpractice that does not support tort reformers' arguments

A few days ago, I posted a link to a new report on medical malpractice (here).  Here is another one: Public Citizen recently released a new study examining National Practitioner Data Bank data on medical malpractice the, once again, refutes many - if not all - of the typical arguments advanced by tort reformers.  Among many other things, the report concludes that for the seventh straight year, the number of medical malpractice payments made on behalf of doctors fell, hitting the lowest point on record and that the cumulative value of malpractice payments in 2010, when adjusted for inflation, was the lowest since the 1990 inception of the databank. In actual dollars, payments last year were the lowest since 1998.  The full report is available here.

Where is the litigation "explosion" that tort reformers claim is making the costs of health care rise?  Where are the runaway juries handing out outrageous verdicts in frivolous cases?  I am still waiting to see the evidence that supports those arguments...  If you know of any, please send it to me.  

This Week's Top Stories

Go here for the TortsProf Blog's list of this week's top stories and here for the Abnormal Use blog's "Friday links." Finally, go here and scroll down for my own selection of top news stories.

Thursday, May 26, 2011

Thoughts on issue of preemption of claims by generic drug manufacturers

A couple of months ago, the Supreme Court heard oral arguments on PLIVA v. Mensing (09-993), Actavis v. Mensing (09-1039), and Actavis v. Demahy (09-1501) on the right to sue in state court when a generic drug maker fails to change its label to warn consumers of new harmful side-effects. Go here for some background information on the cases and here for a comment on the oral argument (both links will lead you to even more links for lots of information.)

Now that the Supreme Court should be getting ready to publish its opinion, the Drug and Device Law Blog has now published another comment on the case here.

More on the possible unconstitutionality of the federal medical malpractice bill

A few days ago I posted (here) a link to a paper by a tort reform group arguing that the federal medical malpractice bill is not unconstitutional.  Go here for a response by Walter Olson published by the Cato Institute in which he argues that most proposals in the U.S. Congress to address medical malpractice law run into serious federalism problems.  Also go here and here for two articles by Randy Barnett - a supporter of med-mal reform - in which he argues that the "so-called HEALTH Act now pending in the House violates the GOP’s Pledge to America to justify all of its legislation by identifying its constitutional authority in the enumerated powers of Congress."

Thanks to the TortsProf blog for the links.

New report on Medical Malpractice

Here is a link to a new report by the American Association for Justice called Medical Negligence:  The Role of America’s Civil Justice System in Protecting Patients’ Rights which discusses many of the claims advanced by tort reformers in suport of measures to limit the rights of victims of malpractice.

Here are some highlights of the report:

-- A large body of research now indicates that many of the common perceptions about medical negligence are little more than myths.

-- According to the Institute of Medicine, preventable medical errors kill as many as 98,000 Americans everyyear, and injure countless more. If the Centers for Disease Control (CDC) were to include preventable medical errors as a category, it would be the sixth leading cause of death in America.

-- Despite the shocking number of medical errors, few injured patients ever file a medical negligence lawsuit, and fewer still file frivolous claims.

-- The savings from preventing medical errors run into billions of dollars. The savings from restricting patients’ access to justice, however, are negligible.

-- Medical negligence costs amount to less than two percent of health care spending, and government economists estimate restricting all patients’ compensation would only lower health care costs by less than one-half of one percent or less. 

-- Limiting patients’ rights does nothing but fill the coffers of malpractice insurance companies.

-- Anecdotal accounts of doctors fleeing states in response to increased insurance premiums have proved to be either unrepresentative isolated events, or flat out false. In fact, data from the American Medical Association (AMA) show that physician numbers have been increasing across the board for many years.

-- The number of physicians per 100,000 population is significantly higher in states without [damages] caps.

Friday, May 20, 2011

This week's top stories

Go here for the TortsProf Blog's list of this week's top stories.  Among their stories this week you will find links to a new case filed by a lawyer against some bloggers (and others) that has attracted a lot of attention.  I wrote about it in my Professional Responsibility blog here.  Follow the links there for a lot more on that story.

Also, in addition to the links the TortsProf blog provides for the story on "Dept of Justice taps Sheila Birnbaum to administer the fund for ground zero workers" go to the PopTort for a critical comment on her selection.

In addition, go here for the Abnormal Use blog's "Friday links."  

Finally, go here and scroll down for my own selection of top news stories.

Monday, May 16, 2011

ATRA Paper Defends Constitutionality of Federal Medical Liability Reform

The American Tort Reform Association has issued a 7 page paper that its president says “makes a clear case that the legislation passes constitutional muster.”  You can access the text of the paper here

I have commented on the med mal reform bill before Congress here, here, here, here and here and it should be clear that the real question regarding the bill is not its constitutionality. 

The problem with the bill is not whether it is constitutional.  The problem with the bill is that it is unnecessary, unfair and that it advances bad public policy which does nothing to promote better quality or less expensive health care. 

For ample discussion of the real issues related to medical malpractice reform go to my section on medical malpractice (here), scroll down and read the many comments, papers and studies discussed there.  Among others, you will find articles that argue that med mal reform will increase the deficit, articles that describe the results of similar reforms at the state level and articles that show that med mal reforms have not proved to provide many improvements as it relates to liability costs.

Sunday, May 15, 2011

Illinois Ranks No. 2 In Dog Bite Claims, Says State Farm - UPDATED

Illinois, the country's fifth most populous state, is ranked as the second state next to California with the highest total payouts and the largest number of dog bite insurance claims made nationally, based on recent report released by Bloomington-based insurer, State Farm. Go to the Chicago Personal Injury Blog and the Chicago Tribune for the full story.

UPDATE (5/15/11):  Here is a link to a list released by the US Postal Service listing the numbers of dog attacks on mail carriers around the country.  The top city listed is Houston.  Chicago came in at number 13. (Thanks to Victor Salas for this link).

Saturday, May 14, 2011

$212 million verdict in case about Botox side effects - Update

Allergan was ordered by a federal court jury in Virginia to pay $212 million to a 67-year-old man who claimed he developed permanent brain damage after being injected with Botox to treat cramps and tremors in his hand in 2007. The plaintiff was awarded $12 million in compensatory damages and $200 million in punitive damages, after convincing the jury Allergan failed to warn that injections could trigger an autoimmune reaction leading to brain damage. Go here for the full story.

UPDATE (Monday May 2): AboutLawsuits has more on the story here.

UPDATE (5/13/11): Abnormal Use has more on the story here.

Friday, May 13, 2011

This week's top stories

Go here for the TortsProf Blog's list of this week's top stories and here for the Abnormal Use blog's "Friday links."  Finally, go here and scroll down for my own selection of top news stories.

Tuesday, May 10, 2011

New lawsuit alleges medication resulted in murder/suicide is reporting today that a product liability lawsuit filed against Pfizer alleges that side effects of Chantix, a medication designed to help people stop smoking, caused a Pennsylvania man to experience psychotic rage, kill his wife and then commit suicide in May 2009, leaving behind four minor children.  Go here for the full story.

Monday, May 9, 2011

Record breaking verdict in asbestos exposure case

A Mississippi jury has awarded $322 million in damages for pain and suffering, future medical expenses and punitive damages to a former oil worker diagnosed with asbestosis, in what is believed to be the largest verdict for an asbestos suit in U.S. history.

According to the story in, one of the major issues during the trial was Brown’s literacy and whether the companies were responsible for workers who were unable to read understanding warning labels and signs. Brown was 16 when he began working in the oil fields and was illiterate.  Go here for the full story.

When should the statute of limitations begin to run on a legal malpractice claim?

The legal malpractice law review blog is reporting on two cases that illustrate two very different approaches to the issue of the application of a statute of limitation in a legal malpractice action.

In  Laclette v. Galindo, 184 Cal. App. 4th 919 (2010), the court held that the continuous representation doctrine will toll the statute of limitations in a malpractice action for the period of time the attorney is listed as counsel of record-- even where no active representation is undertaken.  (See here.) 

Meanwhile, in Bennett v. Hill-Boren, P.C., 52 So. 3d 364 (Miss. 2011), the court held that the statute of limitations begins to run on the date the client reasonably should have known that the lawyer was negligent.  (See here.)

Friday, May 6, 2011

New article on medical malpractice reform and how it will increase the deficit

In a new short article, Joanne Doroshow, of the Center for Justice and Democracy, argues that medical malpractice reform will likely increase the deficit.  The article starts as follows:

"When people talk about medical malpractice "reform," they are usually not talking about reducing the epidemic of medical errors in hospitals or instituting proven measures to actually reduce injuries, deaths, claims and lawsuits. No, they're usually talking about making it more difficult for patients injured by medical negligence, including catastrophically-injured children, to be compensated.

Despite the enormous hardships on innocent patients caused by these measures, or the fact that they shift compensation burdens onto others, there is an argument circulating that these measures are worth enacting because they will reduce the deficit."

Well, no they won't. In fact, they will likely increase it.
Read the full article here.  Here is its conclusion:

"I have testified in Congress on this topic twice since January, and both times, I have tried to make clear that taking away the rights of the most seriously injured in our society has been and continues to be a failed public policy. This is the wrong way to respond to the important economic problems that face this country. Tort restrictions will add to the deficit and will reduce the financial incentive of institutions like hospitals and HMOs to operate safely, when our objectives should be deterring unsafe and substandard medical practices while safeguarding patients' rights. And effective insurance reforms are the only way to stop the insurance industry from abusing its enormous economic influence, which it uses to promote a legislative agenda that bilks taxpayers and severely hurts the American public."

The effects of medical negligence tort reform in Florida

Go here for a short comment on the effect of tort reform in Florida.  

IL Supreme Court rules parents are not entitled to recovery in wrongful birth case for costs of taking care of child past age of majority

The Supreme Court of Illinois announced its decision in Clark v Children's Memorial Hospital today.  This was the case in which the plaintiffs of a child born with birth defects that should have been detected before birth argued they had a right to recover for the costs of taking care of the child past the age of majority.  I wrote about the lower court's decision here

I have not had a chance to read the actual opinion (which is available here), so my comments are based on a summary provided by the Illinois State Bar (here).

In deciding that the parents should not be allowed to recover for extraordinary expenses associated with the genetic disorder past the age of majority, the court relied on the general common law rule that parents have no obligation to support their adult children. The court reasoned that if the parents voluntarily accepted the burden of supporting their child after he reaches the age of majority, their willingness to do so in the absence of a legal obligation was not caused by the defendants.

If we are going to recognize a cause of action for wrongful birth, as the Court does, then the result in Clark is bad.  Having concluded that the defendant caused the need for the expenses the question should be how much are the expenses going to be.  The child will need to meet those expenses for the rest of his life, not just until the age of majority.  Who will take care of him after the age of majority? 

One problem I am having is based on the fact that the child should have been the plaintiff here.  If the child had been the plaintiff, he could recover for the expenses for life, but because the parents were the plaintiffs the recovery is limited to the age of 18.  But I am not sure that the child could have been the plaintiff, because then the Court might have said that a child can't recover for wrongful life.  I'll have to read the opinion to see if the Court makes this distinction.

Bottom line, there won't be enough money to take care of this severely disabled child past the age of 18.

The second issue in the case is just as interesting.  It asks whether the parents should be allowed to recover for emotional distress due to the birth of the child.  The lower courts analyzed the issue as if the claim had been argued as a bystander's claim, requiring that the plaintiffs be present within the "zone of danger."  The Supreme Court, however, decided under the facts of the case this claim was not based on witnessing what happens to someone else, but essentially a type of pain and suffering associated with what happened to the palintiffs themselves.  Conceptually, this makes sense to me, but I will have to read the opinion itself to see how the court explains it to make sure the analysis is convincing.

No compensation for deaths in clinical trials in India

An investigation by India’s health ministry has found that drugmakers running clinical trials in the country have not compensated survivors of most volunteers who died during their studies. Of 671 deaths that were reported last year, there is evidence that compensation was given in just three cases. Go here for the full story.

This week's top stories

It is Friday, which means it is time for our links to top stories of the week. I apologize for not updating the blog as much this week... I have been having computer problems at home and I have been busy preparing my final exams, which I am sure my students will appreciate...

In any case, here is the link for the Abnormal Use blog's "Friday links." Note that I posted a comment to their post there.  Also, go here for the Friday Link Roundup at the Boston Personal Injury blog - and note that they actually mention me! 

Finally, go here and scroll down for my own selection of top news stories.