Wednesday, May 29, 2013

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.

Monday, May 20, 2013

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. 

Sunday, May 12, 2013

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.

Tuesday, May 7, 2013

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.