Friday, September 26, 2014

Case challenging the constitutionality of the non economic damages in Mississippi has settled

Last week, the Mississippi Supreme Court was supposed to hear oral arguments on the constitutionality of the state's non-economic damages cap. Instead the parties informed the Court that they have settled the case. The TortsProf blog has the story.

Monday, September 22, 2014

LA Times: "New study shows that the savings from 'tort reform' are mythical"

Yet another study shows what we already knew:  medical malpractice tort reform has little to do with health costs.  The LA Times explains in this story.

Anyone paying attention to this topic knows study after study shows the same thing (go to the medical malpractice or the tort reform sections of this blog and scroll down for stories on this), but tort reformers keep making the same unsupported tired arguments over and over again.  Most recently, this has been the gist of the campaign in California against a ballot initiative to raise the cap on compensation for med mal cases.  As I said in my original post on that subject, it is ironic that the slogan of the campaign is "check the facts" when it does not provide any to support its allegations.

Among other things, the new study suggests that "[a]ny "tort reform" stringent enough to make [the costs of so-called defensive medicine] go away would likely create other costs, such as a rise in medical mistakes generated by the elimination of the oversight exercised by the court system" and then concludes that "[s]ince it doesn't appear that "tort reform" would have any effect on this spending, there seems little reason to pursue it as a means to dramatically reduce health care spending in the United States."

These conclusions are also supported by the new edition of the book Medical Malpractice by the Numbers that I wrote about here and here.

h/t TortsProf Blog

Short documentary on the history of auto safety regulation and litigation

Courtesy of the Retro Report, here is a 15 minute documentary on the history of the fight for auto safety and some of the issues it has raised over the years.  Towards the end, it also opens the door to future issues that may arise out of modern technology and the promise of cars that can drive themselves.  If, for some reason, you can't see the video below, you can watch it here.

Sunday, September 21, 2014

GM recalls more than 220,000 more cars

GM's nightmares continue with the announcement of a recall of more than 220,000 cars, this time for a parking brake defect.  The New York Times has the story here.

New York Times article on medical care costs

Yesterday I posted a link to the new edition of Medical Malpractice by the Numbers which has a lot of information on medical malpractice, tort reform and medical insurance costs and practices.  Today, the New York Times has a long article on another aspect of medical practice that contributes to the rising costs of medical care but is rarely discussed:  hidden fees.  Check out the article here.

Saturday, September 20, 2014

Number of deaths associated with GM cars' defect continues to rise; GM CEO says it is no surprise

As you probably know by now, GM initially admitted to knowing of 13 deaths related to the faulty ignition switch in many of its cars.  At some point, that number rose to 16, and more recently it was reported that the GM compensation fund has already paid compensation for 19 death claims.  At least 125 death claims have been filed, according to AboutLawsuits.   GM's CEO recently admitted it is no surprise the number is higher than initially expected and that it is likely the number will continue to rise.

Take a quiz on medical malpractice

In my previous post, just a few minutes ago, I provided a link to a recent book on medical malpractice.  You can use the book to study for the PopTort's most recent medical malpractice quiz which is now available here (or you can take the quiz and then go to the book to find the facts you need to support the answers....)

New edition of the Medical Malpractice by the Numbers book now available

Two years ago, I posted a link to a report by the Center for Justice and Democracy on medical malpractice called Medical Malpractice by the Numbers.  It was a great resource of information and now there is a new expanded edition available here.  Or you can downloaded directly to your computer as a pdf file by going here.

In this book you will find a great amount of information on medical malpractice, insurance, litigation,  and tort reform that debunks the typical arguments advanced by tort reformers and the medical associations and insurance industry lobbyists.  Here are some highlights:

* Medical malpractice insurance companies are making twice the profit of the entire property/casualty insurance industry. In fact, the med mal insurance industry has had seven years of underwriting profit - something completely unheard of in the property/casualty sector. (Page 53.)

* After Texas enacted severe limits on medical malpractice lawsuits, including "caps" on damages, rates of preventable errors rose, "consistent with hospitals gradually relaxing (or doing less to reinforce) patient safety standards." (Page 83.)

* Medical malpractice premiums are not rising; other factors are contributing to the plight of physicians, specifically "health insurers that clamp down on the size of physician fees and deny payment for services that they deem unnecessary." (Page 56.)

* When asked their main reason for leaving New York state, newly trained physicians cited the "Cost of Malpractice Insurance" practically dead last on a list of many factors, the most important of which was "Proximity to Family." Even the general category "Other" outranked "Cost of Malpractice Insurance." Moreover, New York's liability laws were not even mentioned as a factor. (Page 52.)

The TortsProf blog has more highlights.

Tuesday, September 16, 2014

Friday, September 12, 2014

Missouri Supreme Court holds punitive damages cap is unconstitutional

This week, the Missouri Supreme Court issued a unanimous decision striking down that state’s $500,000 punitive damages cap as it applies to any common law claim.  Here is a comment praising the decision and here is one criticizing it.  The case is called Lewellen v. Franklin.

Court of Appeals for the 9th Circuit reopens Alien Tort Statute case

It has been more than a year since I have posted anything related to the Alien Tort Statute because, well, with the US Supreme Court decision in Kiobel v Royal Dutch Petroleum the court pretty much made the statute irrelevant.  Back then, in a long series of posts, I wrote that I was surprised the court decided the case on the issue of extraterritoriality, when the real issue was whether the statute could be used against corporations.  For all the background stories, go to the Alien Tort Statute section of the blog here.

Now it appears that, just to keep things interesting, the Court of Appeals for the 9th Circuit has opened the door for another round of debates over the use of the statute against corporations.

As reported by the ABA Journal online, the court of appeals issued an opinion last Thursday holding that corporations, and not just state actors, can face liability for violations of universal norms under the Alien Tort Statute.  You can find the opinion here.

The case involves a complaint filed against Nestle, Archer Daniels Midland and Cargill by former child slaves who claim the three corporations aided Ivory Coast cocoa farmers who kept children in captivity.

It is not clear why the case should not be dismissed given the Supreme Court's opinion in Kiobel.  The Court of Appeals simply said it would give the plaintiffs the opportunity to amend their complaint in light of Kiobel.

Thursday, September 11, 2014

Teenager charged with battery for kissing girl's hand without consent

For those of you who think that law professors' hypos have no basis in reality, here is a story from yesterday's headlines.  As reported by NBC Chicago and the Chicago Tribune
An 18-year-old Mundelein man has reportedly been charged after he allegedly kissed a girl’s hand without her consent. The man was sitting on a bus next to a juvenile girl on Aug. 27 when he asked her to give him a high-five, according to the Chicago Tribune. The girl gave the man a high-five and as she did so he allegedly grabbed her hand and kissed it. The man reportedly exited the bus in the 100 block of Hawthorn Center at Hawthorn Mall and was later arrested. The girl was not injured, the Tribune reported. Police said the man was charged with an ordinance offense for battery and is scheduled to appear in Mundelein Branch Court Thursday.
These facts combine the facts of at least two hypos I use in class and raise questions related to battery, intent, implied consent, and the scope of consent.  Discuss.

Tuesday, September 9, 2014

Mississippi to consider (again) whether cap on non economic damages is constitutional

The Mississippi Supreme Court has considered whether the state's cap on non economic damages several times since 2011.  See here, here and here.

In one of those cases, the federal Court of Appeals for the Fifth Circuit asked the state supreme court to address the issue and later held the cap was constitutional.

Now it is getting ready for another round of arguments on the issue on September 24 in an appeal from a lower state court decision holding the cap is unconstitutional.  The cap is currently set at $1 million.

As long time readers of this blog know, I am generally against caps on damages, but, as I have said before, a cap of $1 million is certainly much better than the more common ones that typically cap recovery at amounts much lower than that. So, as caps go, the Mississippi one is quite generous.

Go here for more information.

h/t TortsProf blog

Monday, September 8, 2014

Illinois court of appeals reaffirms its policy to reject Tarasoff, ... or does it?

Just a few days ago the Illinois Court of Appeals issued an opinion in a case called Sherer v. Sarma in which it once again followed the state's policy that rejects the imposition of a duty to warn on a psychotherapist made famous by the Surpeme Court of California in Tarasoff v Regents of the University of California.  You can read the opinion here.

As you probably remember from your days in law school, in Tarasoff the court was asked to decide whether a therapist has a duty to warn an unsuspecting possible victim of the expressed intent of a patient to cause her harm.  The court found that even though the therapist did not have a relationship with the victim, he did owe her a duty to warn.  The court opined that the benefit of having the therapist help prevent an injury to someone who did not know was in danger is more important that the duty of confidentiality owed to the patient and than the possible negative effects on the process of therapy itself.

Meanwhile, in Illinois, the courts have considered the same questions and have decided to take the opposite approach, finding that not recognizing a duty to warn advances the goals of protecting the confidentiality of the medical treatment, which itself promotes better opportunities for treatment.

One can disagree whether it is better to adopt or to reject Tarasoff, but the fact of the matter is that courts in Illinois have rejected it, ... for the most part.

Now, I have to say "for the most part" because in an unnecessary attempt to qualify the ruling the opinions would recognize a duty to warn if:  (1) the patient made specific threats of violence, (2) the threats of violence were directed against a specific and readily identifiable victim, and (3) there is a direct physician-patient relationship between the defendant and the victim or a special relationship between the patient and the victim.

But wait!  If there is a duty to warn under these circumstances, including circumstances in which there is no relationship between the doctor and the victim as long as there is a relationship between the patient and the victim, how can we say that the state does not follow Tarasoff?   The three elements that would support a finding of a duty to warn are pretty much what supports the duty to warn in Tarasoff, are they not?

But wait; there's more!!  In Sherer v Sarma, the actor and the victim were both patients of the defendant and they were husband and wife.  Yet the court did not find those relationships to be special relationships for purposes of the doctrine.  If the circumstances in this case did not meet the three elements listed above, under what circumstances would Illinois recognize a duty to warn?  

Wednesday, September 3, 2014

More than 100 Wrongful Death Claims Filed Involving GM Ignition Switch Recall

As you know I have been posting stories on the GM debacle for months.  (Go here and scroll down to access them.)   Here is the latest. AboutLawsuits is reporting that more than 100 death claims have already been filed with a victim compensation fund established by GM.  Interestingly, however, GM has maintained that only 16 deaths and about 60 other serious injuries may have been caused by defective ignition switches in millions of Chevy, Saturn and Pontiac vehicles.  This could mean one of several things:  there are a lot more injuries that GM is aware of, GM is not disclosing everything it knows or there are a lot of questionable claims.  Experience tells me it is probably a little bit of all three...  Stay tuned...

BP seeks to remove administrator of damage claims from its 2010 oil spill.

BP has asked a federal judge to remove Patrick Juneau as administrator of damage claims from its 2010 oil spill, saying he failed to disclose a major conflict of interest.  AP has the full story here.  This is interesting since the original administrator (Ken Feinberg) at one point found himself in the middle of a controversy over whether he had a conflict (favoring BP).  See here, here, here and here.

NY Times reports that Halliburton settles Gulf Oil Spill claims for $1.1 billion

Halliburton, the company contracted by BP to cement the ill-fated Macondo oil well in the Gulf of Mexico, has reached a $1.1 billion settlement with thousands of businesses, individuals and local governments that suffered losses from the 2010 Deepwater Horizon oil rig explosion, the company and plaintiffs announced on Tuesday.  The New York Times has the full story here.

Thanks to Torts Today for the update.