Sunday, July 31, 2011

NC Lawmakers Override Governor’s Veto of Medical Liability Reform

The North Carolina House and Senate have voted to override Gov. Bev Perdue’s veto of a medical liability reform statute.  The statute imposes $500,000 limit on noneconomic damages which is subject to adjustments every three years, starting in 2014, based on the Consumer Price Index.  The statute also provides for exceptions to the cap if: (1) the plaintiff suffered disfigurement, loss of use of part of the body, permanent injury or death; and (2) the defendant’s acts or failures, which are the proximate cause of the plaintiff’s injuries, were committed in reckless disregard of the rights of others, grossly negligent, fraudulent, intentional or with malice.

Although I am not a big fan of tort reform statutes, I have to say this one is different than most.  The amount of the cap is higher and it includes exceptions that will benefit the victims with more severe injuries.  Both are good policies.  I do not know, however, if the exceptions are automatically applied to the types of cases listed or whether they are discretionary.  They should be automatic.  I can't imagine that tort reform supporters would have agreed to that, though, so I suspect that they are discretionary.  Making the exceptions discretionary is bad policy and it just opens the door to more litigation as the parties would have to get into a fight over whether the case is worthy of consideration for the exceptions.  Again, however, I don't know for sure what the language of the statute is so I am simply considering the possible scenarios here.

A report in the North Carolina News Network cites Republican House Speaker Thom Tillis as saying that the bill will make health care more accessible and affordable.  I am willing to bet it will do neither since it has been proven time after time that tort litigation costs contribute very little to health care costs....  but that is a different issue.

What it will do - probably - is reduce the amount of med mal litigation or reduce the amount of damages paid in med mal litigation, which is what it is intended to do, of course.  But, whether that is a good thing in itself is another question and the answer depends on whether the measure results in preventing injured patients with valid claims from bringing their claims or from getting fair compensation for their injuries.  

Med mal cases based on patient's suicide

Popular blogger Eric Turkewitz has posted a short comment on a recent medical malpractice case that originated in a patient's suicide.  The case illustrates the importance of determining whether a physician acted below the standard of car or whether he or she simply made an error of judgment in treating the patient.  Go here for more.

Update on med mal bill before Congress

I have commented on the med mal reform bill before Congress here, here, here, hereherehere and here.  Now the PopTort is reporting two interesting developments: First, when the bill went to mark-up, some Republicans surprisingly argued the bill was unconstitutional.  The bill was eventually marked up and reported out of committee but it’s stalled in the House.  Secondly, however, the "spirit" of the bill has been revived in the “Gang of Six” budget proposal through a vague referene to a recommendation to save an unspecified amount through medical malpractice reform.  Go here for the PopTort's full comment on the issue.

West Virginia Supreme Court upholds constitutionality of cap on damages in medical malpractice cases

In a case decided a little over a month ago called MacDonald v. City Hospital Inc., (available here), the Supreme Court of West Virginia has upheld the constitutionality of a statute that imposes a cap on non-economic damages in medical malpractice cases of $250,000 in most cases.  The statute increases the limit to $500,000 in cases where the damages are for: (1) wrongful death; (2) permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or (3) permanent physical or mental functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life sustaining activities.  Interestingly, originally, the statute set the limit at $1 million, but was later amended to lower the amount.

Saturday, July 30, 2011

Recent decision in train crash case generates debate about tort reform

In 1997, Congress passed the Amtrak Reform and Accountability Act, which caps the amount of damages awards to rail passengers, against all defendants, for all claims, including claims for punitive damages, arising from a single accident or incident at $200,000,000. This provision is different from other typical tort reform statutes in that it imposes a limit per accident, as oppsed to per victim.  Evidently, the provision won't have much of an effect in an accident that involves a small number of victims or mild injuries.  But, for the same reason, in a case where there are a lot of victims or in which the injuries are more severe, the effect of the statute can be that of all other tort reform measures: to limit or eliminate access by victims to full compensation.

Now comes news that this possible effect has taken place.  Back in 2008 there was a train crash in Southern California in which 24 people died and over 100 others were injured because the train engineer was texting while driving and missed a signal.  The claims that were filed on behalf of the victims were finally decided recently and the judge who decided that total damages were $264 million, which meant that $64 million won't be paid.

The judge issued a 33-page ruling in which he reportedly struggles with fact some victims will not be compensated fully.  The Pop Tort has a story on the decision here with links to stories in the LA Times and other sources which cite the judge as saying "There is not enough money to compensate the victims for future medical care and past pain and suffering," and added that "Impossible decisions had to be made … What was given to one victim had to be taken from another." 

In response to the news, The Atlantic published an article (here) by Andrew Cohen arguing that
The Amtrak Reform Act indeed unfairly "limits the ability of American judges and juries to perform their traditional roles in determing award amounts in civil cases where liability has been proven"  and that "for saving Amtrak, the American people (who own Amtrak, remember) were given the gift of so-called "tort reform." The new law meant that the average citizen could no longer use the justice system to determine the fair amount of damages in mass casualty cases. The statute told judges, juries and victims alike that federal lawmakers had determined, in advance, the amount of pain corporate America would be allowed to suffer at the hands of legitimate plaintiffs who had proven gross negligence cases in court. The railway industry cheered the arbitrary cap. So did the insurance companies. Certainty is a good thing in the world of the law and universe of business."

Not everyone agrees with this point of view, however.  In response to the article in The Atlantic, the blog Point of Law published a comment (here) in which it describes Cohen's article as an "intellectually disingenuous piece" and argues that the statute "has very little to do with tort reform."  In support of this last point, the author argues that "no reformer I know proposes per-accident caps or economics damages caps" and that the statute was not passed because of the tort reform movement but as a pure subsidy.  He then concludes that "the "per-accident" and "per-incident" language of ARAA is "meant to permit rail operators to have certainty about how much insurance they need to purchase and reduce their costs." 

Yet, this is totally consistent with tort reform efforts, isn't it?  The idea is to have statutes enacted that allow a predetermined limit to possible liability.  Call it tort reform, subsudy, tomatos or tomatoes, the idea is the same.

Point of Law's better argument is that a $200 million cap is adequate - although whether the amount of the cap is adequate in any particular case depends on the facts of each particular case.  Maybe it is adequate in this case, but maybe it won't be in another.  The question is whether it is a good idea to impose a cap knowing it may not be adequate in some cases.  The answer to that question depends, in large part, on the answer to another question: what benefits are we - the travelers/consumers - getting in return?

Thursday, July 14, 2011

Important new case on the Alien Tort Statute

About a week ago, the Washington, D.C. Circuit Court of Appeals issued a ruling that recognizes the right of Indonesian villagers to sue Exxon Mobil for alleged killings and torture committed by Indonesian soldiers guarding the company’s natural-gas operations in the country’s Aceh province.  The decision deepens a circuit split about whether companies can be sued under the Alien Tort Statute.

For more on the recent decision go to the Wall Street Journal law blog, which also provides links to more information on the issue.

For more on the issue of whether the ATS should allow claims against private entities go to my section on the Alient Tort Statute and scroll down. 

This is a very interesting issue that I think will inevitably make its way to the US Supreme Court some time soon.

Tuesday, July 12, 2011

Movie Review

On Sunday, I let you know of a new film called InJustice and promised I would post my thoughts on it.  Unfortunately, Mother Nature intervened and I was not able to see the movie!  Because of a storm that left my house (along with more than 300,000 others) without power for more than a day I missed the first showing of the movie last night.  However, the Abnormal Use blog has posted a very good comment on it here.  Make sure you go and read the full review (and the comment left by one of the blog's readers), which suggests my suspicion about InJustice might be correct.  Here are a few highlights:
Those who watch the documentary will likely be disgusted with the way the kings of tort are portrayed as manipulating the legal system for their own pecuniary gain. . . . However, . . ., InJustice is crippled by one major problem – films funded and promoted by special interests groups can never paint the whole picture or be relied upon as an objective account of a societal problem.
. . . InJustice, like Hot Coffee, is an opinion piece, using stories of a few to draw categorical inferences on the system as a whole.

Not only does Kelly [the director of InJustice] exhibit a potential bias against the legal system . . ., so too does the film’s principal sponsor, the U.S. Chamber of Commerce and its Institute for Legal Reform. . . .[which] is never specifically acknowledged as a producer or funding source in the film’s credits (although it is promoting the film and noting its support on its websites here and here). Accordingly, it will be very difficult for InJustice to maintain its sense of independence and credibility, particularly in light of recent criticism by people like Saladoff [the director of Hot Coffee] who contend that the U.S. Chamber of Commerce is mounting a secret campaign to influence public opinion on the judicial system. In fact, InJustice may play right into their hands.

Sunday, July 10, 2011

Documentary on tort reform to air this week

In light of all the attemtion the anti-tort reform documentary Hot Coffee has generated, it is interesting that another documentary, financed by the pro-tort reform Chamber of Commerce, called InJustice will begin to air on the ReelzChannel tomorrow night.  I have not seen Hot Coffee because I don't have HBO, but I will try to watch InJustice and post my views here.

The Blog of the Legal Times offers the following preview
InJustice recounts the stories of several nationally prominent members of the plaintiffs’ bar who made millions in litigation before falling from success in criminal cases. The movie, with financing help from the legal arm of the business-backed U.S. Chamber of Commerce, goes so far as to label the tactics of some plaintiffs’ lawyers a “cancer” on the nation.
I will reserve my comments until I see the movie, but although the Chamber of Commerce claims the movie will expose what it calls "America's lawsuit crisis", it does not sound from this preview like it will.  It sounds more like it the movie is about crooked lawyers who have abused the systerm for their own personal purposes.  I will be interested to see if the documentary tries use the conduct of these few lawyers to claim most plaintiffs lawyers are crooked or that their conduct supports a need to deny people their rights to recover for injuries.  Stay tuned.

Quick tought on the learned intermediary doctrine

The Drug and Device law blog has a comment on the recent case Legard v. Ortho-McNeil Pharmaceutical, Inc., 2011 U.S. Dist. LEXIS 67997 (N.D. Ohio June 24, 2011) in which the court dismissed a claim based on the learned intermediary doctrine.  As you would expect, they use the case to support the continued use of the doctrine. I have an entirely different take on it.  In my opinion, the case actually illustrates why we don't need the doctrine. 

I will start by confessing that I have not read the case myself.  I am, thus, commenting based on the information provided in the D&D blog.  So read their full comment here.  To make a long story short, the case involves a plaintiff who sued the manufacturer of a birth control patch claiming inadequate warnings about the risks of blood clots.  The facts show, however, that the defendant did warn the doctor, that the doctor warned the patient and that the patient admitted to understanding the warnings from the doctor and the package insert.  The case was dismissed. 

Given those facts, I agree the case should have been dismissed.  But, here is the thing, we do not need the learned intermediary doctrine to reach that result.  Even if we get rid of the LID entirely, the case should have been dismissed. 

This was a case where the plaintiff's own evidence defeated her claim that there were no warnings.  She simply did not have a claim.  The manufacturer would have won regardless of whether the jurisdiction did away with the LID. 

Thus, the case raises the question...  if the cases that should be dismissed can be dismissed without using the LID, and if there are cases that should not be dismissed that are getting dismissed because of the LID, why do we need the LID to begin with?

Comment on the the claims that tort reform is needed to protect jobs

While the U.S. Chamber of Commerce continues to claim that there is a correlation between litigation by consumers against corporations and job loss a survey on “Small Business Problems & Priorities” by the National Federation of Independent Businesses (NFIB), a “small business” lobby group that is one of the Chamber’s allies ranks consumer litigation as number 65 out of a possible 75 matters that small businesses care about.  The Center for Justice and Democracy has a comment here.

The Boston Personal Injury blog also has a comment on the issue here.