Happy New Year

I have been gone for weeks for our winter break, but I wanted to take a moment away from all the vacation family fun to wish everyone a great new year!

Thank you for reading and supporting the blog. I will continue to do my best to keep up and bring you news and commentary in the new year.

Happy New Year!!

What would it be like if ATRA's tort reforms were actually implemented?

The PopTort wonders what would the world look like if the American Tort Reform Association could get its tort reform proposal approved here.  Hint:  it would not be a pretty picture.

New report on regulation (or lack thereof) of generic drug manufacturers

The Center for Justice & Democracy has published a new "white paper" called America’s Unaccountable Generic Drug Industry; How Legal Immunity Could Be Making You Sick. You can read a short comment on it here.

One of the last remaining claims arising out of the September 11 attacks to settle

More than a dozen years after the Sept. 11 attacks, a last major piece of litigation against the airline industry and other defendants moved toward an end on Tuesday, as the Wall Street firm Cantor Fitzgerald revealed that it would settle its lawsuit for $135 million.  Go to Torts Today for more on the story.  For my coverage of other aspects of the litigation go here, here, here and here.

Case against Kansas City Royals for injury caused by mascot is now before the Missouri Supreme Court

Long time readers of this blog might remember my posts on a case filed back in 2010 by a spectator at a Kansas City Royals baseball game who was struck in the eye by a hot dog thrown by the team's mascot.  As I said in my original post on the case, it is often stated that spectators at a baseball game assume the risk of getting hit by foul balls.  Technically speaking, this is not necessarily correct since the issue in those cases is not really a question of assumption of the risk, but rather one of whether the defendant owes a duty to the plaintiff... but that is another story.  The case generated much commentary (see here for links).

Eventually, the case went to trial and the jury found for the defendant.  I commented on the verdict here, where I also posted a video of the mascot throwing hot dogs.  You can judge the conduct for yourself.

The jury's verdict, however, was recently reversed and, as I said in my post on the opinion, that was the correct decision.  (In that post, I have a link to the opinion itself, if you want to take a look at it.)  As opposed to many of the other cases on the subject of sports injuries, the court in this case does a better job of explaining the issue.

What is interesting is that the question in the hot dog tossing case is whether there should be a duty to protect spectators from risks involved in watching baseball games other than the risks inherent to the game of baseball.  As the court suggests, the answer at this point is "maybe" if the risk is inherent to the game but probably no, if the risk is not inherent and, more so, if it is created by the negligence of the defendant himself.

Do the risks created by a mascot throwing promotional items arise from the inherent nature of a baseball game?  The question is now before the Missouri Supreme Court, which heard oral arguments last month.  Here is a comment on the argument.

New study on possible effects of "energy drinks"

If you have been following the controversy over whether so-called "energy drinks" are dangerous (particularly to minors), you will be interested in this story on a new study that suggests that popular drinks like Monster, Red Bull and Rockstar may affect the way the heart beats, causing it to have more forceful heart contractions, which increases potential heart risks.

I have posted a number of stories on this topic.  See here, here, here, here, here, here, here, here, here, here, here, here and here.

How much do you know about medical malpractice?

The PopTort has a quiz here.  The lessons are not new to those who follow this topic:  malpractice happens more often than people think, there are fewer lawsuits than people think, and so on.

Thanksgiving torts

In celebration of Thanksgiving, here is a link to Prof. Jonathan Turley's annual compilation of Thanksgiving themed torts and crimes.

 

Happy Thanksgiving, everyone!

 

FDA Proposes Rule To Allow Generic Drugmakers To Change Labeling

Back in August I posted that the FDA was considering adopting new regulations that would allow (and presumably encourage) generic drug manufacturers to add or update the safety warnings on their products.  At the time, they were required to have exactly the same warnings as the name brand products.  A new rule would allow manufacturers of generics to decide whether to use a different warning on their products.  At the time of the proposal, some liked the idea (here), others did not (here).

Earlier this month, Pharmalot reported that the FDA has in fact proposed a new rule. The proposed rule will allow generic drugmakers to update labeling with new safety information before an FDA review of the change. The agency would then evaluate whether the proposed change is justified and make an approval decision on the generic drug labeling change and the corresponding brand drug labeling change at the same time.

As expected, the rule is controversial.  Some agree that the new approach is a good idea (here, for example); others argue it is a bad idea (here and here, for example).  For more comments see here.

One thing that bothers me about the discussion is that it seems to concentrate on whether the new rule will lead to more litigation, when I think the guiding concern should be whether it leads to more safety to consumers.  The arguments based on the issue of litigation are based on the notion that litigation is per se a bad thing, forgetting that (a) not all litigation is unjustified and (b) sometimes the result of litigation is a safer product.

Virginia Supreme Court Reverses Award Against Virginia Tech From 2007 Shootings

Back in March, 2012 I reported (here) that Virginia Tech University had been found liable to the families of two students in a wrongful death claim for the University's negligent response to the 2007 campus shootings.  In June 2012, that verdict was upheld on appeal. Go here for more links.

Unfortunately for the plaintiffs in that case, however, the verdict was reduced to $100,000 for each family because of the state's damages cap, an amount called by one commentator "an insulting amount of reduced damages that eliminated the deterrent impact of such legal judgments."

And now, the Virginia Supreme Court has completely overturned the jury verdict on the ground that Virginia Tech had no duty to warn the students.  You can read the opinion here.  For a critical comment on it go here.

Podcast on dog bite cases and litigation

The Legal Talk Network has a podcast (here) on issues related to dog bite litigation including a discussion of the use of a structured settlement in these specific cases and how these incidents can be prevented.

Podcast on whether there can (or should) be liability for texting someone who is driving

The New Jersey State Appeals Court recently ruled that texting someone while that person is driving may cause the sender to be liable if an accident occurs. The Legal Talk Network has a podcast discussing the issue here.

Report on medical malpractice at the VA

The Dayton Daily News has a story on malpractice at the Department of Veterans Affairs.  The article notes that VA health care providers are  immune from lawsuits and details instances of bonuses given to providers who had made medical errors or administrators despite poor records at their facilities.  The article also quotes attorneys arguing that an early disclosure requirement and limits on attorneys' fees (20% on settlements and 25% on awards) reduce the amount of claims brought against the VA.   VA med mal claims are paid from a federal treasury fund set aside for federal claims, not the VA budget.  The article includes poignant stories by individual victims of malpractice.

Thanks to the TortsProf blog for the link.

Tort reform country music song

Go here to listen to Tort Reform - The Song.    It turns out it is not the only tort reform song.  Here is another one.

And while you are at it... here is a song about vicariously liability.



Thanks to Day on Torts for the link to the first song.

Parental immunity?

National Sandwich Day; who knew?

Apparently, November 3 was "national sandwich day" and I didn't know.  But, better late than never, in celebration, I will link to a story I posted way back in November of 2009 on the correct way to eat a sandwich.  

And as a bonus, I will link to the famous "is a burrito a sandwich?" controversy, here and here.

New case filed in NY alleges death was caused by Red Bull caffeinated drink

As you probably know by now, there has been a good deal of discussion about whether it is possible for caffeinated drinks to contribute to, or cause, someone's death.  (For my posts - and more links - on the issue go here, here, here, here, here, here, here and here.)  Several cases have been filed over the issue, all of them involving young victims.  Until now.  The family of a 33 year old New York man has filed a wrongful death lawsuit against the makers of Red Bull, claiming that side effects of the energy drink caused him to suffer a fatal heart attack. AboutLawsuits has a summary of the complaint and some background information here.

For a better and more insightful comment you can read Max Kennerly's post here.   He provides a detailed review of the complaint and the issues it raises.   He concludes the design defect claim is weak but the warning one is a bit stronger.

One 250 ml can of Red Bull Energy Drink contains 80mg of caffeine, about the same amount of caffeine as in a cup of coffee. The defendant, no doubt, will use this fact to argue the product is not any more dangerous than coffee.  The problem is that Red Bull is marketed differently than coffee.  Kennerly's post discusses some of the marketing in Red Bull's own website and links to at least one scientific study that explores he consequences of the consumption of Red Bull.

As if that wasn't enough, though, there is another interesting aspect to the complaint.  The complaint asked for $85 million in damages, when the law in New York bans requesting for specific amounts of money in complaints.  As Eric Turkewitz argues when a lawyer asks for a specific amount in a complaint "[e]ither the lawyer is ignorant of the law or the lawyer is deliberately violating it in the hunt for headlines. It’s your call as to which is worse, ignorance or a potential ethics issue."

Eric's post is worth reading here.  He goes one to argue, correctly in my view, that the emphasis on the amount of the claim detracts from the seriousness of the issue.  The story now becomes one about how much money the plaintiff's lawyer wants instead of one about whether a product is in fact dangerous or whether the defendant should change the way it markets the product.

Forbes article on medical malpractice

Here is a link to a new article in Forbes on medical malpractice. It mentions many issues that anyone who has been paying attention to the issues knows already but that it doesn't hurt to repeat.  (For more on those, click on the medical malpractice section of this blog and scroll down for the many posts on reports, studies and other sources that disprove the myths advanced by tort reformers).  The article is long; the section on medical malpractice reform starts on page 3.

For example, the article points out that the cost of defending malpractice claims and compensating victims is a minimal part of overall healthcare costs, something every report on the subject has confirmed.  The article also reminds us that only a small percentage of the possible legitimate claims result in filed complaints, that so-called “defensive medicine” is one big myth, that state tort laws have no impact on where doctors decide to practice and very little, if any, impact on doctors’ insurance rates.

There are two other points that merit mentioning.  The first one is also a point of constant contention in medical malpractice reform discussions: whether there is a problem with "frivolous lawsuits."  The answer, depends, of course, on how you define frivolous.  Tort reformers tend to define as frivolous any case that is won by the defendants or dropped by the plaintiffs.  According to some reports doctors and hospitals win approximately 11% of all med-mal lawsuits filed and about 46% of the cases are dropped by the plaintiffs before trial. Does this suggest an abundance of frivolous cases?

The other interesting point in the article is something I had not heard before.  The author argues that the shortening of the statute of limitations in some states (at urging of tort reform proponents) has resulted in more doctors getting sued. His reasoning is this: "as a way to stop the clock and preserve their rights, plaintiffs often include every conceivably liable doctor in the initial suit. But after more thorough investigation and discovery, plaintiffs recognize that many named parties did nothing wrong — and they drop the suit. In the meantime, the named doctors suffer the indignity and anxiety of having been included as defendants."  According to this reasoning, allowing plaintiffs lawyers more time to prepare the cases would result in a more accurate determination of who should be included as defendants in the case.

I guess, the argument makes sense, but it is not necessarily true in every case.  In many cases, it is not until discovery (after the case has been filed) that it can really be determined that a certain defendant should not be considered a possible tortfeasor.

The article also strongly criticizes the American College of Obstetrics and Gynecology, which it alleges, is an obstacle to patient safety.

The PopTort offers its own view of the article here.

Verdict in Topamax case

A Philadelphia jury has ordered Johnson & Johnson to pay more than $4 million in damages for birth defects from Topamax, an anti-seizure medication that allegedly caused a child to develop cleft lip and other malformations as a result exposure before birth. Go here for more on the story.

Medical malpractice insurer opposes med mal reform proposal in Tennessee

Day on Torts is reporting that a group of healthcare administrators in Georgia is pushing for a new law which would move medical malpractice claims out of the courts and into an administrative no-fault system for awarding limited compensation for victims of medical malpractice. Those supporting the legislation say that the new system, which would be similar to a worker's compensation system, would reduce healthcare costs.  Aside from the fact that reports have always shown a minimal (if any) correlation between litigation costs and health care costs (see here for more on that issue), Day on Torts reports that medical malpractice insurer MAG Mutual opposes the proposal because it claims that the bill would result in more claims, higher costs, more reporting, higher taxes and more bureaucracy.  Day on Torts makes a good argument in support of that view here.

Another comment on the NFL settlement

I previously posted some news and comments on the NFL settlement on the lawsuit filed by former football players and their families related to concussion injuries.  See here and here, for example.  Here is a link to a more recent comment which is very critical of the league and which laments the negative consequences of the settlement.  Here is an example of what the authors want to say:

NFL Commissioner Roger Goodell ... disingenuous portrayal of the league's concern about the health and safety of the players is incredible at best. His assertion that the league has been forthcoming with medical information as it has become available, defies credulity. Goodell's unbelievable contention that the league has acted in good faith and has not misled the players, flies in the face of reality. 

Further, they argue that the NFL promulgated reports deliberately designed to mislead the players and the public and that the settlement "was indeed a major victory for the league, but a travesty for the players."  You can read the full comment here.

On the risks created by "self-driving cars"

First we heard about cars that could park themselves.  Now there are a cars that brake for you.  And the next big thing are cars that drive themselves.  Sort of.  And, as you would expect, there is a lot of discussion out there about whether these "improvements" might actually create more risks.  Here is a link to a recent article on the subject.  Its main point is the most dangerous moment in a self driving car is the moment when it has to turn over the controls to the human driver:  "Thrust back into control while going full-speed on the freeway, the driver might be unable to take stock of all the obstacles on the road, or she might still be expecting her computer to do something it can't. Her reaction speed might be slower than if she'd been driving all along, she might be distracted by the email she was writing or she might choose not to take over at all, leaving a confused car in command. There's also the worry that people's driving skills will rapidly deteriorate as they come to rely on their robo-chauffeurs."

Report: surgeons leave medical devices inside patients after surgery more often than is generally believed

A new report suggests that surgeons and other health care professionals leave medical devices inside of patients after surgery more often than is generally believed, particularly sponges and broken tool parts. Go here for more information and a link to the report.

Hot Coffee

The website "RetroReport" updates or revisits old stories.  Today's retro report is about the famous (or infamous, depending on your point of view) McDonald's Hot Coffee case.  For more links on alternative interpretations of the importance of the case, continue reading below the video:



The point of the report is that there is more to the story.  Which is true.  But there is more than that too.  For a lot more information and a view of the case from different perspectives watch the documentary Hot Coffee and then go to the Abnormal Use blog (here) and scroll down. 

------
PS:   I originally stated that the website Retro Report is affiliated with the New York Times.  It isn't.  You can read more about RetroReports here.

Another chapter in the story about doctors who testify for insurance companies

Here is an entertaining transcript of the cross examination of a doctor who testified as to the standard of the profession in a case, only that he admitted the standard he was using was not set by the profession but based on what the insurance company that was paying his fees told him.  The transcript of the cross examination gives you a very good example of how to handle a witness like that.

Supreme Court rejects case in which the drugmaker argued that state courts don't have authority to recognize punitive damages because of preemption

A few days ago I reported that Novartis had asked the US Supreme Court to decide that state courts are preempted from imposing punitive damages against pharmaceutical companies based on the notion of preemption.  See the post directly below this one.  Well, it didn't take long for the Court to decide.  Pharmalot is reporting today that the Court decided to deny review of the case.  This means that, for now at least, product liability claims for punitive damages related to injuries caused by prescription drugs are not preempted in state courts.  Pharmalot has the details here.

Supreme Court asked to decide whether state courts are preempted from imposing punitive damages against pharmaceutical companies

Pharmaceutical company Novartis has filed a petition before the Supreme Court asking the Court to rule that state courts are precluded from imposing punitive damages based on preemption. Novartis has acknowledged that the Supreme Court has held that a cause of action against a pharmaceutical company is not preempted but Novartis maintains the decision does not apply to punitive damages.  Pharmalot has more information about the case here.

Podcast on whether there can be liability for texting a driver

I recently reported that the Appellate Division of New Jersey Superior Court decided that a person who sends a text to a driver can be liable for damages caused by the driver if the driver is distracted by the text if the texter knew that the recipient was driving and reading texts while driving.  Here is a link to a 30 minute podcast discussing the case.

$1.7 Million dollar verdict set aside because of contributory negligence

Back in August, I criticized the decision in Maryland to retain the archaic and unfair notion of contributory negligence (see here and here).  Now comes news that the doctrine has been used to set aside a $1.7 million verdict. 

Following three weeks of trial and two days of deliberations, in the second trial out of more than 3,000 Actos lawsuits pending nationwide, a Maryland jury found that Takeda Pharmaceutical’s failed to adequately warn physicians about the risk of bladder cancer from their popular diabetes drug and awarded nearly $1.77 million in damages. However, the court entered a verdict for the defendant because the jury also found that the plaintiff failed to exercise reasonable care for his own health.

Go here for the full story.

New study finds many direct to consumer advertising of prescription drugs are misleading. Is anyone surprised?

A new study published in the Journal of General Internal Medicine prepared by researchers from the Dartmouth Institute for Health Policy found that six out of every ten direct-to-consumer drug advertisements shown on television provide false or misleading information.  The ads omitted or exaggerated important information, provided opinions or made meaningless associations with lifestyles.  Go here and here for more details.  In my opinion, this is hardly surprising.  Ever since the beginning of DTC advertising it was clear the intent was the same as with all other advertising: to get people to buy something, not to provide public service announcements.

Some senators call on manufacturers of caffeinated "energy" drinks to stop marketing their products to children

Since last year there has been a lot of discussion on whether highly caffeinated drinks are dangerous - particularly to children.  AboutLawsuits is now reporting that four Democratic Senators are calling on manufacturers of popular energy drinks to stop marketing their products to children, following increasing concerns about health risks. The letters were sent out to the makers of several different energy drinks, including Red Bull, 5-hour Energy, Monster Energy and Pepsi Co. Inc. The letters ask the energy drink companies to stop advertising to children under the age of 18, to provide information on the label about the total amount of caffeine in the products and to change their policies so that they are not selling energy drinks in schools or at school events. For more information go here.

For my previous posts on this topic go here, here, here, here, here, here, here, here, here and here.

Significant drop in motor vehicle product liability claims filed

According to a new report, the number of motor vehicle product liability lawsuits filed in federal courts has dropped nearly 40 percent over the past five years.  The full report is available here.

Thanks to Victor Salas for the link!

New study estimates about 400,000 people die because of hospital mistakes every year

As many as 400,000 Americans die every year because of hospital mistakes that could have been prevented, according to the findings of a new study.  Previous reports placed the death toll from preventable hospital errors at around 98,000.  Go to AboutLawsuits for more information.

NFL litigation

The most recent Coverage Opinions newsletter just came out and to celebrate the start of the football season it features an interview with Football Hall of Fame and Minnesota Supreme Court Justice Alan Page as well as a list of interesting football related cases.  You can access the newsletter here or download it directly in pdf here.

Oklahoma legislature tries again to pass tort reform bills

After the Oklahoma Supreme Court declared the Oklahoma attempt to reform tort law last year, the legislature was back at it again this week in a special session - the first one since 2006.  In the last day of the five day session, the Oklahoma Legislature passed about two dozen bills to address legal procedures in areas such as medical malpractice, class-action lawsuits and product liability.  Some appear to be similar to the ones already declared unconstitutional, which caused some debate.  Most others, apparently did not generate much controversy.  According to one account, the Senate took less than two hours to pass its dozen bills with little discussion or Democratic opposition. Go here and here for more details.  The bills will now go to the governor.  Eventually, they will be challenged in court and, likely, declared unconstitutional again.  But we'll have to wait and see...

Comment on the NFL settlement in the case related to concussions

Prawfblog has a short comment on the NFL settlement.  It addresses the fact that some have criticized the settlement as inadequate and the NFL for settling the claim.  The author, however, argues that the critics misunderstand the nature of the civil tort law system.  Take a look at the comment here.

Thanks to Torts Today for the link.

Texting while riding

Check out this photo of a policeman allegedly texting while riding.  Is this "negligence per se"?  Thanks to Jonathan Turley for the photo, who also comments on it here.

Magistrate reprimanded for kissing clerk

Here is a quiz for my students, from the pages of today's Legal Profession blog:

At the conclusion of a session of bond court, respondent kissed the clerk who had been working with him on the forehead. Respondent contends that the kiss was a gesture of appreciation for the clerk's hard work and that he in no way intended it to be an amorous gesture. However, respondent recognizes the clerk was offended by the gesture. The magistrate resigned when the clerk complained to the Chief Magistrate and was reprimanded by the South Carolina Supreme Court.

Is he subject to liability for battery?

Erwin Chemerinski on preemption and generic drugs

Erwin Chemerinski has published a short comment on the state of the law related to preemption related to claims against manufacturers of generic drugs.  You can read it here.

NFL settles lawsuit related to concussion injuries

As you probably know by now, a few days ago the NFL agreed to settle the lawsuit filed by former football players and their families related to concussion injuries. (Go here for a comment on the case.  For more, click on the "sports" label and scroll down.) The League agreed to pay $765 million dollars to fund medical exams, concussion-related compensation, medical research for retired NFL players and their families, and litigation expenses.   While the number sounds huge, there is a serious debate whether it is adequate compensation.  I am sure you will find lots of stories and comments just by searching (or "googling") the story.  For two comments by law professors go here and here.

New Jersey Appellate Court recognizes cause of action against someone who sends a text to someone who is driving at the time

Back in May, I wrote about a case pending in New Jersey that involved a plaintiff who had been injured by a driver who was distracted by a text message. (See here.) The plaintiff argued that "the court should impose a duty of care on those who know the recipient is both behind the wheel and likely to be reading texts while driving."

As I wrote back then, both plaintiff and defendant had good arguments and the issue depended on the circumstances:  "If the plaintiff can prove that the texter knew the driver was driving at the time and would pay attention to the text immediately, I have no problem recognizing a possible cause of action. Why? Because I think reasonable people would disagree as to whether a reasonable prudent person would have sent the text under those circumstances."

Now comes news that the Appellate Division of New Jersey Superior Court has decided the case holding that the person who sent the text can be liable but only if the texter knew that the recipient was driving and reading texts while driving.  Given the facts of the particular case, though, the court held that no liability could be imposed against the text sender in the case because there was no evidence that the sender was aware the driver would read her text as he was driving or that he would respond immediately.

The court summarized its conclusion this way:

"To summarize our conclusions, we do not hold that someone who texts to a person driving is liable for that person's negligent actions ... We hold that, when a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text at that time."

Given what I wrote back in May, you can guess I think that is the correct decision.  The case is called Kubert v. Best and it is available here.

Having said all that, one important question that needs to be asked is whether the reasoning of the case can, will or should be extended to cover phone calls (as opposed to "texts.") 

It should be noted that the court is not imposing vicarious liability on the texter for the negligence of the driver (as has been reported elsewhere).  The court is clear that the liability imposed on the defendant is based on the defendant's own negligence (and that is why it is limited to those cases where the defendant knew the driver was driving and would likely be distracted).  This is similar to the accepted notion that a passenger could be liable for negligently distracting a driver. 

Police officer sues woman who called 911 alleging she had a duty to warn the cop would be facing a dangerous situation

Here is a story about the most ridiculous lawsuit of the year so far, although not as ridiculous as the case filed a couple of years ago alleging damages caused by bad mothering (see here).

In this new case, a police officer in Texas was injured when he responded to a 911 call.  He then filed a lawsuit against the caller claiming she failed to adequately warn the 911 operator of the dangerous situation the cop was walking into.  Read the story here.

In the newspaper account, the defendant's lawyer calls the lawsuit frivolous.  I agree.  The generally accepted rule for cases like these is that those who take on the responsibilities of jobs that require putting oneself in danger when called to action assume the risk inherent to the job.  Typically, this is referred to as the "fireman's rule" because it was originally developed to explain why firefighters should not be allowed to sue those who negligently caused fires.

The same policy reasons apply to police officers.  First of all, there is the notion of assumption of the risk.  People who opt to work in dangerous jobs know or should know of the risks involved and assume those risks.  Second, the fact that the job carries risks is reflected in the compensation the officers and firefighters receive for taking those risks.  (If they are underpaid, that is another problem, but not one that ought to be solved by spreading the costs of the accident to the victim who has to call 911 for help).  Third, if the people who need help can be sued, there is going to be a disincentive for them to ask for help, thus defeating the purpose of creating a 911 service to begin with. 

The one argument that can be made in support of a claim like the one used in this case is that assumption of the risk is an outdated doctrine that should be abandoned in favor of comparative negligence.  I have no problem with that argument, but even if we take that position, the case here is frivolous.  In order to support the claim, the plaintiff has to support the argument that the defendant was negligent and arguing that the victim of a crime or someone who calls 911 is negligent for not warning the police that the situation is dangerous is absurd.  Reasonable people would not disagree on this.  The case should be dismissed immediately.

New report on medical malpractice disputes tort reformers arguments

AboutLawsuits is reporting on a new report that confirms what we already knew.  While the cost of medical care in the United States continues to climb, the amount paid out for medical malpractice continues to fall, contradicting claims by tort reform advocates who argue that lawsuits are driving up healthcare costs. I say we already knew that because, as I have reported many times over the last few years, pretty much every single study done on this subject has concluded the same thing.  If you click on the "medical malpractice" label and scroll down, you will find a number of old posts with links to a lot of those studies.  For more on the new one, go to AboutLawsuits.

Article in New England Journal of Medicine supports view that new warnings and lower dosages are needed for sleeping pills such as Ambien

Back in January I wrote about the FDA's attempt to convince drug makers that sell sleeping pills that contain the zolpidem active ingredient – a list that includes Ambien – to lower current recommended doses by half.  See here.  Today, AboutLawsuits is reporting that a group of doctors is backing the FDA’s view that new warnings and lower dosages for Ambien and other sleep drugs are needed in a perspective article published last week in the New England Journal of Medicine.  Go to AboutLawsuits for the details and links.  The article is available here.

More that 1500 claims have been filed seeking compensation for injuries allegedly caused by NuvaRing birth control device

Merck reports that the there are now about 1,500 women who are pursuing product liability lawsuits over injuries from NuvaRing, alleging that side effects of the birth control ring increased the risk of blood clots and other injuries.  For more details go to AboutLawsuits.com,

Should the FDA change the rules that apply to generic drug manufacturers?

The FDA recently announced its intention to adopt new regulations that would allow (and presumably encourage) generic drug manufacturers to add or update the safety warnings on their products.  Currently, they are required to have exactly the same warnings as the name brand products. The new rule would allow the generics to decide what to include in their own warnings, which may result in disparities in the warning content and language among manufacturers.  It will also open the door to debates arguments as to which warnings are "better".  Should the FDA change the rules and allow generic drug manufacturers more freedom in deciding matters related to warnings?    Some say yes (here), others say no (here).

Recent Texas defamation case clarifies some aspects of the law in the state

Over a year ago, I wrote about a case making its way through the courts in Texas that I thought would have important consequences on how the media reported the news.  Go here for my original post.  

The case is called Neely v. Wilson and the most recent opinion is the Texas supreme court's review of a motion for summary judgment granted in favor of the defendants.  The defendants had based their argument on the notion of "substantial truth" and the plaintiff argued that his evidence raised a question of material fact as to whether the statements made by the defendants were in fact substantially true.  The supreme court agreed and remanded the case.

However, the court also touched upon some of the other defenses and issues I discussed in my original post. It discusses the fair comment privilege and the official/judicial proceedings privilege.  You can read the opinion here.

Thanks to Jamie Baskin for the link!

Article on Maryland's decision to retain contributory negligence

A couple of weeks ago I criticized the recent decision of the Court of Appeals of Maryland in which it decided to retain the antiquated, inadequate, unfair and, for those reasons, almost universally rejected doctrine of contributory negligence.  I asserted that the majority opinion is weak and unconvincing and that it takes the wrong position on the policy in question.  You can read my post (and get a link to the opinion) here.

Professor Edward Robertson has now published a short but very good article in which he expands on many of the points I made.  I highly recommend the article which is available here.  In it, Prof.  Robertson shows that the court abdicated its judicial duty, and, as I asserted in my original post, the basis for the opinion is weak and unconvincing.  As he explains better than I did, there is simply no legislative or public policy declared by the legislature to which the court has any reason to defer.  He also explains that the opinion creates a perverse incentive for special interests lobbyists and that, again as I suggested, the court ignores the reality of the legislative process which is operates on the basis of an "asymmetrical balance of lobbying interests."

The article makes a number of other great points.  You should read it.  But let me mention just one more.

The court admits that courts are justified in changing the common law when the conditions that resulted in the policy in question have changed.  So, how is it that conditions have not changed in the state of Maryland to the point where a change in the common law is justified?  Forty six other states have decided the change has been justified for a long time.  What makes Maryland different?


Thanks to the TortsProf blog for the link to the article.

Max Kennerly on the BP oil spill litigation process

Not too long ago, the New York Times published an article criticizing the BP oil spill litigation process and the role of the lawyers who represented the plaintiffs trying to get compensation for their injuries.  Max Kennerly replies in his latest column here.  As usual, I agree with Max. 

Iowa Supreme Court recognizes claim for emotional distress caused by attorney's malpractice

I have never understood why it is so difficult for courts to recognize claims for emotional distress in cases where the plaintiff does not suffer physical injuries. Is it really that difficult to believe that someone can suffer emotional distress due to someone's conduct absent a physical injury?   Assume an attorney's malpractice causes a client to lose his house, or custody of his children or to be separated from his children for years.  Is it really that difficult to believe that the attorney's negligence can cause emotional distress?

I don't think so.  As long as we recognize that emotional distress is a distinct type of injury that can result from negligent conduct, it is difficult to argue that a plaintiff should not have the right to bring a claim as long as he or she can support the elements of the cause of action.

Following this type of reasoning, the Iowa Supreme Court recently held that a couple from Ecuador may sue their attorney for emotional distress because his advice caused them to be separated from their children and grandchildren for a decade.  It’s the first time the state’s high court has allowed an attorney to be sued for emotional distress and punitive damages in a malpractice case.  Go here for more on the story.

There is a chance California will vote on increasing the cap on pain and suffering damages

In 1975, California enacted a bill capping pain and suffering damages at $250,000.  That was a generous amount then, but it is one of the, if not the lowest of caps around the country today.  If it were to be adjusted for inflation, the $250,000 value of the cap in 1975, should be $1.1 million today.  For this reason, a new ballot initiative has been proposed to raise the limit of the cap.  If it gathers enough support, it could qualify for the November 2014 ballot.  Unless, the legislature finds a way to compromise and amends the bill before then.

Not surprisingly, the opposing sides of the debate are the predictable ones.  For increasing the limit of the cap are consumer advocates, victims' advocates, plaintiffs' lawyers, medical malpractice victims, among others.  Against it are large corporations, supporters of tort reform, the insurance industry, the medical establishment and organizations that defend them, etc.  Interestingly, those opposing the measure have not been able to find any new arguments other than those that have been proven false so many times.  You would think that, with all their resources, they could come up with something better, or new, or true.

My prediction is that the Legislature will eventually come up with an amendment that will raise the cap to somewhere around $500,000 which is a common amount in other states.

Those advocating for the ballot initiative should be prepared to negotiate for that compromise.  But the most important part of that negotiation has to be to make sure the new law includes a formula to continue to increase the amount periodically, either based on the rate of inflation or in some other way.  That way, once you determine what is a fair amount based on the current value of the dollar, you can make sure the value continues to be the same in the future.  Otherwise, down the road, the measure becomes unfair to victims and a windfall for tortfeasors. 

I don't favor creating caps on damages at all, but if you have to have a cap, increasing the amount and creating a formula to continue to increase it in the future is not a bad compromise.

Unfortunately, like I said, I can see the first part happening but past history suggests a measure to adjust the cap automatically is not likely to be adopted.  But you can always hope...

Here is a link to a recent article on the subject.


Thanks to the TortsProf blog for the link.

Maryland decides to remain in the dark ages; retains contributory negligence

The Maryland Supreme Court has issued an opinion showing its lack of vision about tort law in the twenty first century.  Or the twentieth.  Maryland is one of only five jurisdictions that still adhere to the antiquated, inadequate, unfair and, for those reasons, almost universally rejected doctrine of contributory negligence.  Other than those handful of jurisdictions, every single other jurisdiction in the US has abandoned it in favor of some version of the much better approach based on comparative negligence.

Yet, in a case that gave the court the chance to make the change and join the modern world, the Court decided to keep its 19th century approach to torts.  Even though the court admitted that the court had the authority to change the principle because contributory negligence is a court created principle, it decided not to do it because the legislature had not done it.  Yes; that's it.  There is no other reasoning behind the decision.  The opinion comes down to the conclusion that "The General Assembly’s repeated failure to pass legislation abrogating the defense of contributory negligence is very strong evidence that the legislative policy in Maryland is to retain the principle of contributory negligence."

In other words, the court decided not to exercise the authority it admitted it had because the Legislature has been unable to get its act together to do the right thing.  Given what we all know about legislative work, this view is shortsighted, to say the least.  

The case is called Coleman v. Soccer Association of Columbia.  The opinion is weak and unconvincing and, bottom line, takes the wrong position on the policy in question. Much better reading is the dissenting opinion by Judge Harrell:

Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the force of a modern asteroid strike, this Court should render, in the present case, this dinosaur extinct. It chooses not to do so. Accordingly, I dissent.

As you would expect, the backward thinking right wing/pro defendant thinktanks like the American Tort Reform Association are happy with the decision of the court (here).

My Professional Responsibility blog

Here is an important announcement for those of you that also follow my Professional Responsibility Blog.  Please note this applies to that blog only.  The Torts Blog was not affected. 

Something happened to the Professional Responsibility blog yesterday and the e-mail subscriptions function stopped working. I fixed the problem, but unfortunately, if you had an e-mail subscription and prefer to continue to get updates by e-mail, you will need to subscribe again. Please do so by going to the PR blog (click here) and entering your e-mail address in the box on the right hand side panel.  You will have to then follow the prompts to complete the process (typing some random letters and replying to a confirmation email).  It is a three step process but should not take you more than a minute to complete.  I just went through it myself.  I apologize for the inconvenience! If you have any questions or concerns please email me directly.

Judge orders NFL concussion case to mediation

The New York Times has a report here.

 

Thanks to Torts Today for the update.

 

Comment on dismissal of Fosamax case

A few days ago I posted that the court dismissed one of the many claims against pharmaceutical Merck for inadequate warnings related to its drug Fosamax on preemption grounds.  See here.  Today, Pharmalot has a comment on the case here.

FDA proposes new rule to allow generic drug manufacturers to change warnings

According to FDA regulations, generic manufacturers must use the exact same warnings in their products as the makers of the brand name versions of the drugs.  For this reason, the US Supreme Court has decided that claims against generic drug manufacturers for inadequate warnings are preempted.

However, back in February I reported that the FDA was considering a regulatory change that would allow generic manufacturers to change the warnings on their products in appropriate circumstances - perhaps in part because, at least according to one study, that was the practice already. See here.

The FDA has, in fact, now made its proposal official.  Last Wednesday, the FDA proposed a new rule, which would allow generic drug manufacturers to update their labels with new warnings, even when the brand name is no longer on the market.  Pharmalot and AboutLawsuits have more on the story here and here.

Two more comments on Mutual Pharmaceutical v Bartlett

I missed these links before when I posted on the Supreme Court's decision in Bartlett so I am posting it now separately.  Pharmalot has a comment here.  Reuters has a report here.

Here is an interesting point in the Reuters report:  Consumer watchdog group Public Citizen said the Supreme Court decision on Monday undermines patient safety at a time when about 80 percent of U.S. prescriptions are filled with generic medicines.  "Today's court decision provides a disincentive for generic makers of drugs to monitor safety of their products and to make sure that they have a surveillance system in place to detect adverse events that pose a threat to patients," Michael Carome, director of Public Citizen's Health Research Group, said in an interview.

Comment on the relationship between the interests of the insurance industry, medical services and costs in the United States

The PopTort has a short comment on a recent article in the New York Times here discussing the fact that the United States has one of the highest rates of both infant and maternal death among industrialized nations.

New study challenges med mal reformers' "talking point" that fear of lawsuits results in "defensive medicine" and higher costs

A study published earlier this month by the medical journal JAMA Internal Medicine, researchers working with Veterans Affairs hospitals indicate that doctors at the government-run medical centers, who are generally shielded from the effects of most malpractice lawsuits, request just as many unnecessary medical tests as their peers in the private sector, who are far more vulnerable to lawsuits.  For more on the story go to AboutLawsuits.com.

Supreme Court decides Mutual Pharmaceutical v Bartlett, reaffirms protections for generic pharmaceutical manufacturers

For about a year and a half, I have been following the developments in Mutual Pharmaceutical v. Bartlett, the third case on preemption in the context of a claim for damages caused by a prescription drug.  (See my posts and links here, here, here, here, here, here, and here.  The difference in this case was that the claim was not based on the warning on the product but on a claim of defective design.

Last Monday, the Court finally decided the case and, in  a 5-4 decision, the majority saw the case as essentially a replay of last year’s decision in PLIVA, Inc. v. Mensing: All five of the Justices in the PLIVA majority held for the manufacturer here, and the four PLIVA dissenters would have held for the plaintiff.

For a copy of the opinion go here.  For a good summary of the ruling, go here. For more information, including links to the lower court opinion and the documents filed in the case, go here.

Federal Judge dismisses lawsuit against manufacturer of Fosamax on pre-emption grounds

In recent years, increasing evidence has linked the popular drug Fosamax (manufactured by Merck) to spontaneous breaks of the thigh bone after little or no trauma.  As lawsuits began to mount, more than 1,000 Fosamax femur fracture cases have been consolidated in the federal court system as part of a multidistrict litigation.  Many of those cases may now be threatened by a recent ruling by the federal judge presiding over the litigation granting summary judgement in favor of the defendant.

About Lawsuits is reporting (here) that the judge has ruled that one of the many claims that allege that Merck failed to adequately warn about the risk of sudden femur fractures is preempted by federal law because the FDA rejected a request to update the warning label.  

In his order, the judge (available here), the failure to warn claim is pre-empted by federal law because the FDA decided not to strengthen the Fosamax label in 2009, the year Glynn’s femur fractured. 

I am not sure, however, that this ruling is consistent with the US Supreme Court decision n Wyeth v. Levine, in which the Court held that a failure-to-warn claim related to a branded pharmaceutical was not preempted because the manufacturer was free to update the warning label at its discretion.

As I understand it, the state of the law is that if the manufacturer is not required to get FDA approval to update the label and can, therefore, decide to update the warning, then the claim would not be preempted.  If the manufacturer can't do that - if it needs to get FDA approval to update - then the claim would be preempted.  This was the holding in last year's PLIVA, Inc. v. Mensing (followedd last Monday in Mutual Pharmaceutical Co. v. Bartlett).

It is not clear to me that Merck was required to seek permission from the FDA in this case and, thus, that the clam must be preempted. 

What is different in this case is that regardless of whether Merck was required to seek permission from the FDA, it did ask the FDA and the FDA replied that there was not enough evidence to warrant a change in the warning.

So, the question for me is, what happens if a manufacturer decides it has enough evidence to change a warning and it wants to change the warning, but relies on the FDA's decision?  Should the court allow a claim against the manufacturer because it was not careful enough in reaching its own conclusions, or should it be excused from liability because it relied on the FDA?

Personally, I think that if the evidence shows the manufacturer had enough evidence to justify the change in the warning and that it had decided it should change it, the cause of action should be allowed. 

Insurance payments on motorcycle accidents up after changes to helmet law in Michigan

The Chicago Daily Law Bulletin is reporting (here) that the average medical claim from a motorcycle crash rose by more than one-fifth last year in Michigan after the state stopped requiring all riders to wear helmets, according to an insurance industry study.  According to the report, crash deaths are also on the rise

This should not be surprising.  The risk of injury is greater when people ride without helmets and, if there is an injury, it is likely to be worse. 

For more than 40 years, Michigan required all motorcycle riders to wear helmets. State legislators changed the law last year so that only riders younger than 21 must wear helmets.  The average insurance payment on a motorcycle injury claim was $5,410 in the two years before the law was changed and $7,257 after it was changed — an increase of 34 percent, the study by the Highway Loss Data Institute found. After adjusting for the age and type of motorcycle, rider age, gender, marital status, weather and other factors, the actual increase was about 22 percent relative to a group of four comparative states, Illinois, Indiana, Ohio and Wisconsin, the study found.

California jury awards $27.3 million in damages for second hand exposure to asbestos

AboutLawsuits is reporting (here) that a jury in California recently awarded $27.3 million in damages to a woman who developed mesothelioma as a result of "second hand exposure" to asbestos. As you probably know, mesothelioma is a rare form of cancer, which is only known to be caused by exposure to, and breathing of, asbestos fibers.

 

Most asbestos cases involve plaintiffs who were exposed to asbestos at work, but the plaintiff in this case was exposed to asbestos due to her contact with her husband who was the one exposed to the fibers at work. As a result of his work, the plaintiff's husband carried asbestos fibers home on his work clothes, which caused the plaintiff to develop mesothelioma years later.

 

These cases present the issue of whether the possible liability of the defendant should be limited to the person exposed to asbestos directly at work. In the end, the issue is one of proximate cause or duty. Should the duty of the defendant extend to include the injuries suffered by anyone exposed to the fibers, or just to the injuries of those exposed at work?

 

If we apply the traditional proximate cause analysis, the question is whether the injury is a foreseeable consequence of the risk created by the negligent conduct. If the answer is that reasonable people can disagree, then the case survives a motion to dismiss and goes to the jury.

 

Since asbestos fibers cling to clothes, it can easily be argued that exposure to others who come in contact with the contaminated clothes is a foreseeable consequence of the risk created. The problem with this, defendants argue, is that this subjects them to unlimited liability. What if a worker had the custom of going to a public establishment - a diner, restaurant, bar, etc - after work to meet with friends before changing? Should the defendant be liable to anyone who participated in those gatherings (as long as they can prove cause in fact)?

 

The concept of proximate cause was created precisely to achieve a level of fairness when it comes to possible unlimited liability. At some point we must draw a line - as Cardozo and Andrews agreed in Palsgraf v LIRR - and the key for the courts if figuring out how and where to do so.

 

In an asbestos second hand exposure case, the plaintiff will argue we should extend the possible liability to include the members of the exposed worker's household. The defendant will argue that there is no reason to extend the possible liability beyond the duty owed to the worker and that extending it to anyone else would be going too far.

 

The California case is similar to a case decided by the Illinois Supreme Court last year called Simpkins v. CSX. The allegations in Simpkins were essentially the same: a wife who was exposed to asbestos due to contact with her husband's clothes. The Court's opinion concluded that the complaint had not alleged sufficient evidence to support the claim that defendant owed a duty of care to the plaintiff but remanded to give the plaintiff the chance to do so. The court explained that in order for the claim to survive a motion to dismiss it would have to show specific facts relating to defendant's knowledge of the potential harms of asbestos. Only then would the court be able to answer the question on whether the injury was a foreseeable consequence of the risk created by the defendant. You can read the opinion here. For more on the case go here.

 

In other words, the case was remanded and allowed to continue, but I do not know what has happened since. If it is still being litigated, I am sure the recent verdict in California will provide the plaintiff with some support for her claims and approach. It may also influence the defendant to consider settling the matter before taking chances with a jury.

 

Short comment on alternative approaches to medical malpractice reform

If you are interested in medical malpractice reform, take a look at the latest post at The Pop Tort in which they ask "[i]f you wanted to reduce deaths, injuries, claims and lawsuits, how would you do it?  Implement proven safety measures [to prevent medical mistakes]?  Or provide immunity to doctors ...?    Go here to read the full comment...

Reminder: Google Reader will not be available but you have alternatives

If you follow blogs as much as I do, you probably know by now that Google Reader will be shut down at the end of the month. If you are looking for a new way to keep up with your favorite blogs I recommend you take a look at Feedly which is very similar to Reader and, so far, has been working very well for me.  I hope it will continue to work well after Reader goes away.  For those of you who want to keep up with this blog in particular (and I hope that's all of you), the other alternative, of course, is to subscribe by e-mail, which you can do here by signing up on the lower right hand side of the blog.  Doing this will not inundate your inbox.  You will get one message a day and only if there is new content added to the blog. 

Oklahoma Supreme Court rejects med mal reform legislation

The Oklahoma Supreme Court recently invalidated a tort reform package related to medical malpractice claims. The PopTort praises the court for watching out for the interests of malpractice victims, the Legal Profession blog also celebrates the decision, while The American Tort Reform Association offers its typical unconvincing rhetoric in response. The case is called Wall v. Marouk and it is available here.

 

Vermont Supreme Court holds no recovery for emotional distress in legal malpractice cases, although maybe there could be

The TortsProf blog is reporting on a recent case from the Vermont Supreme Court reversing an award of damages for emotional distress in a legal malpractice case. However, the court did not hold categorically that emotional distress can't be recovered in a legal malpractice claim, but its conclusion is quite confusing:

 

"...Assuming without deciding that Vermont law follows the modern trend of allowing damages under certain circumstances for serious emotional distress in legal malpractice claims and that the evidence in this case could support a finding of sufficiently serious emotional anguish to support such a claim, we conclude that the subject of defendant’s representation of plaintiff was not of such a personal and emotional nature that it would support an exception to the general rule disallowing recovery of emotional distress damages in the absence of either physical impact or substantial bodily injury or sickness. In many ways, this case is less compelling than the loss-of-home cases cited above; plaintiff here did not lose his home but, rather, faced a threatened loss of his home which he ultimately avoided by settling the case. We do not mean to suggest that the anxiety associated with the threatened loss of one’s home cannot be profound. But in contrast to the loss of liberty or one’s child—very significant losses for which there may be no adequate measure of pecuniary damages, and in connection with which serious emotional distress can be readily expected—what plaintiff ultimately lost in this case was money. We consider plaintiff’s losses in this case to be economic, and reverse the trial court’s award of emotional distress damages to plaintiff."

So, explain this to me. The court seems to be saying a number of different things and it is not clear which is more important. For example, the court seems to say that there should be no recovery here because the emotional distress was not severe. If that is the case, that is all it needed to say, period... But it then goes on to talk about whether the representation was about a "personal" or "emotional" matter. Why would that be important? The question should be whether the plaintiff suffered the emotional distress he claims to have suffered and whether he can meet the elements of the cause of action. Then, as if that was not enough, the court seems to say that an emotional distress claim can't be based on a monetary injury.

 

None of this makes much sense to me. If the jurisdiction recognizes recovery of pain and suffering in cases of personal injury, then why not allow the recovery for emotional distress as long as the plaintiff can prove the elements of the cause of action?

 

As it is, however, it does not seem to me the plaintiff would be able to show the elements of the cause of action: there is no evidence that the distress was severe, and there was no "impact" nor a "near miss".

 

Liability for Boston marathon bombings?

Could someone other than those who conspired to bomb the Boston marathon be liable for the injuries caused? Probably not, and here is why.

Should there be a cause of action against someone who sends a text to someone who is driving at the time?

The TortsProf blog is reporting on an interesting case before the New Jersey appellate court. In the case, the plaintiffs were injured by a driver who was distracted by a text message. The interesting part is that the plaintiffs sued both the driver and the sender of the text message. The plaintiffs argued that "the court should impose a duty of care on those who know the recipient is both behind the wheel and likely to be reading texts while driving."

 

The argument sounds reasonable to me, and it is consistent with tort law principles. However, the argument of the defendant is also valid. A text message (like an e-mail message) is sent so that the recipient can read it whenever he or she can, not necessarily immediately. The defendant-texter apparently argued that she could not control when the message was going to be read.

 

Now, here is the thing. Both arguments are right. The question is what are the circumstances. You can't generalize here. If the plaintiff can prove that the texter knew the driver was driving at the time and would pay attention to the text immediately, I have no problem recognizing a possible cause of action. Why? Because I think reasonable people would disagree as to whether a reasonable prudent person would have sent the text under those circumstances.

 

New study concludes something we already knew: medical malpractice litigation does not increase health care costs

The TortsProf blog is reporting (here) on a new study that concludes something we already knew: medical malpractice litigation does not increase health care costs.  AboutLawsuits has more on this story here.  The reason no one should be surprised by this finding is that it is consistent with every other study on the subject.  You can go here for more links to similar studies. 

San Francisco files claim related to Monster Energy drink

With all the negative publicity so-called "energy drinks" have been getting lately (see here for recent stories and links), it is perhaps not surprising that the City of San Francisco has filed a lawsuit against the makers of Monster energy drink, alleging that the company is endangering youth by marketing the highly caffeinated energy drink to children despite the potential health risks of energy drinks.  AboutLawsuits has more on the claims here.

Wisconsin considers bill to change definition of "material risk" in lack of informed consent cases

Last week, the Wisconsin legislature passed a bill to nullify the effect of a decision of the state's supreme court on the standards that apply in informed consent cases. 

As you know, a cause of action for lack of informed consent is based on the argument that the defendant breached a duty to disclose information about material risks to the patient which deprived the patient of the opportunity to opt not to undergo a medical procedure.  Jurisdictions differ, however, on how they determine what a material risk is, which in turn determines when there is a duty to disclose the information.

Some jurisdictions hold that a risk is material if the plaintiff would have liked to have known of it in order to make a decision.  Others hold the risk is material if a reasonably prudent patient would have liked to have known.  Finally, other jurisdictions hold the risk is material if the standard in the medical profession is to provide information about it.  The second of these approaches is usually referred to as the "reasonable patient" standard, while the last one is referred to as the "reasonable physician" standard.

The reasonable physician standard is consistent the general tort law doctrine in that it is an objective standard based on the practice in the profession.  However the reasonable patient standard is more consistent with the policy behind the cause of action for lack of informed consent which is to respect the right to autonomy of the patient.  Obviously, plaintiffs prefer the reasonable patient standard while defendants prefer the reasonable physician standard. 

Last year, in Jandre v. Wisconsin Injured Patients and Families Compensation Fund, Wisconsin's supreme court ruled that the standard that should be applied was the reasonable patient standard.  But the bill approved last week (Assembly Bill 139) would change the law from a “reasonable patient” standard to a “reasonable physician” standard.  

Specifically, the bill states that a physician need not provide a patient with information about alternate modes of treatment for conditions he or she already has ruled out, thus empowering the physician to make decisions for the patient.

The bill now heads to the GOP-controlled Senate.

Med Mal payouts statistics and other recent news

Diederich Healthcare has released the 2013 statistics for med mal payouts.  Among some interesting statistics: Payouts were 3.4% lower than 2011 (continuing a downward trend since 2003) and 93% of the payouts were by settlement (rather than judgment at trial).  Thanks to TortsProf for the link.

Meanwhile, on the same topic, over at The PopTort there is a comment on the "crisis" tort reformers often claim calls for reforming the judicial system.  There is nothing new in this comment - it is well known the crises were caused by the insurance industry and that the reforms do little or nothing to fix them - but it doesn't hurt to refresh our memory from time to time.

As the PopTort reports Missouri has no cap on damages because the state supreme court declared them unconstitutional, but apparently the state Senate is discussing whether to reinstall them. See here.  Why reinstall a measure whose main result will be to hurt the victims of medical malpractice?  Because, as I have argued many times, the goal of medical malpractice reform has never been to eliminate frivolous lawsuits, but to minimize the filing of valid ones (in order to preserver profit margins)!

Texas fertilizer plant has only about $1 million in insurance to pay for $100 million in damages it caused

Read the full story here.   If there was a case for punitive damages, this was it.  Yet, thanks to the type of de-regulation, lack of regulation Republicans like Rick Perry favor, victims are not likely to recover much if anything at all.

Comment on the dismisal of the consolidated NuvaRing claims

Two posts below this one, you will find a link to an article by Max Kennerly lamenting how recent changes in civil procedure law often lead judges to decide complex cases improperly in advance of a jury trial, and sometimes on nothing but the initial complaint.  Now, here is a link to his more recent article in which he discusses the most recent example of this trend: the recent order in the NuvaRing litigation consolidated in New Jersey state court dismissing all of the bellwether cases, primarily on causation grounds.

Monster energy drink fights back

As you probably remember there has been a lot of discussion on the dangers of caffeinated drinks like Monster, Red Bull and others recently. See here for some links to my previous posts.  Reportedly, Illinois and a New York county were considering restricting the sale of energy drinks to minors.  See here and here.  The FDA is looking into designing regulations. See here.

Now, at least one energy drink manufacturer has decided to fight back.  AboutLawsuits is reporting that the makers of Monster Energy drink have filed a lawsuit against the San Francisco City Attorney, challenging attempts to regulate the company's marketing strategies in order to protect children from potentially dangerous side effects.  The manufacturer is arguing that the city is violating Monster’s free speech rights.  And they may very well be correct.  By challenging the marketing strategy rather than the product itself, the government has opened the door to this attack. You can read the full story (and a copy of the complaint) here.

Max Kennerly on procedural changes that affect access to the courts

It is Friday which means the TortsProf blog's guest blogger series is back.  Today's guest blogger is Max Kennerly, host of Ligitation and Trial, which is one of my favorites.  For his guest post at TortsProf, he has chosen the topic of access to the courts and how civil procedure law often is determinative of the outcome of tort disputes. 

Given changes in procedural rules and practices, he writes, in part, that "the real question in tort law that determines cases today is decreasingly a question of when one party will be liable to another and increasingly a question of when we allow an injured party to access the judicial system at all" and that many court decisions "reflect, at bottom, a policy choice made by our courts, particularly the Supreme Court, to give preferential treatment to defendants in complicated disputes..."

You should read his full comment here.

Texas Supreme Court holds there is no cause of action for emotional distress based on death of pet

As you may remember, I had been following a case before the Texas Supreme Court on whether the owners of a dog accidentally euthanized can sue for the sentimental value of the family pet or merely for the replacement value of their pet.  (See, most recently, here.)  I have argued before that I really don't see why pet owners should not have the right to try to claim emotional distress due to the deaths or injuries to their pets (see here, here and here) and there are a few cases out there that have recognized these types of claims, (See here for example.)

Texas had conflicting decisions within the jurisdiction so the opinion of the Supreme Court was needed to resolve the conflict.  The opinion was issued a few days ago.  I saved it to comment on it later, but then got distracted with other things so I am now trying to catch up.

In any case, the court decided the case against the plaintiffs.  It did not recognize the claim and, instead, adopted the traditional view that animals are property and, as such, are valued based on the market value alone. The case is called Strickland v. Medlen and it is available here.

For news and comments on the case, you can go to Jonathan Turley's blog. the Star-Telegram, and this Op Ed piece in the Star Telegram in which the author mocks part of the reasoning behind the opinion saying,

Heavens, if monetary damages were available when the pet store paralyzed your dog during grooming, a whole cottage industry of lawyers would spring up to file frivolous suits. If veterinarians had to worry about not killing your pet during neutering, they'd start practicing defensive medicine, which would make costs skyrocket, so people would stop bringing in their pets, they'd get sick and die, or ferals and strays would proliferate, or owners would choose euthanasia instead of treatment, or low-income families would just abandon their beloved companions.

. . . .   Could the real problem be, though, that Texas law needs expanding regarding family members and best friends, not narrowing regarding animal friends?

 Similarly, Jonathan Turley summarizes the decision this way:

This issue resulted in a significant decision in Texas Supreme Court last week when it found that damages for the loss of [the family dog] could not include his sentimental value to the owner. In other words, [the dog] was a toaster. More friendly, more loyal, but a toaster when it comes to torts.

Read more here: http://www.star-telegram.com/2013/04/10/4765779/no-monetary-award-for-a-texas.html#storylink=cpy

Parents arrested again for allowing child to die for religious reasons; should they be liable in tort?

Back in 2009 I wrote a series of comments on whether we should recognize a cause of action against parents who allow their children to die due to their refusal to seek medical attention for religious reasons. See here and follow the links. At the time I was following all the publicity surrounding criminal trials in Wisconsin and Pennsylvania against the parents of children who had died under those circumstances.

The parents in the Pennsylvania case were found guilty of involuntary manslaughter and child endangerment but were only placed on probation conditioned on maintaining medical treatment for their children.

Today it is being reported that the parents have been arrested again after they allowed another child to die after refusing basic medical care. See here, here and here.

So let me repeat part of my comment from October 2009: If states have the authority to impose criminal sanctions for conduct that the actors claim is based on religious faith, couldn't states recognize a cause of action in tort against the parents, or the church they belong to, in a case like this?

I have not updated my research on this subject recently, but as far as I remember, the last time I taught the subject, there were very few cases that imposed civil liability in similar cases. Two cases cited often on this issue are Lundman v McKown, 530 NW2d 807 (Minn App 1995) and Quigley v First Church of Christ Scientist (Calif App 1998). In both cases, the courts rejected the cause of action against the church itself, but in Lundman the court recognized a claim against some members of the church who, according to the court, owed a duty to the child.

Colorado Supreme Court refuses to decide case on whether to recognize a wrongful death case for the death of a fetus

The Colorado Supreme Court has rejected a petition to review a case on whether to recognize a cause of action for the wrongful death of a fetus.  The case was originally filed by the widower of a pregnant woman who allegedly died because of the defendant's medical negligence.  The woman was pregnant with twins at the time.  The husband sued for the wrongful death of his wife and the two stillborn fetuses.  The lower court, however, dismissed the claims for the fetuses holding that "under Colorado law a fetus is not a 'person.' "  The case was appealed to the Colorado Supreme Court which just denied review.  You can read more about the story here.

I wonder why the Court denied review.  This is not only not an uncommon issue which has been addressed in many other jurisdictions, it is also very interesting and important.  Some jurisdictions have adopted the view that the state of gestation is irrelevant, and thus that there can be a wrongful death claim.  Others say that for there to be a death there has to be life first and that life begins at birth.  Most, however, compromise somewhere in the middle holding that there can be a claim as long as the plaintiff can show the fetus was viable at the time of the incident.