Wednesday, October 29, 2014

Another article on medical malpractice reform

Two days ago, I poste a link to an article by Joanne Doroshow, of the Center for Justice and Democracy at New York Law School, on medial malpractice tort reform.   Here is another one called Malpractice 'Caps' Treat Women, Children and Seniors as Second-Class Citizens.

Max Kennerly on study on defensive medicine

A few days ago, I wrote about a recent study that debunks the myth that we need tort reform because otherwise "defensive medicine" forces health care costs to rise.  Today Max Kennerly of the Litigation and Trial blog has published a short comment on the issue.

Kenneth Feinberg discusses compensating for tragedy and loss

Kenneth Feinberg, the current administrator of the compensation fund for those injured by defective GM cars and former administrator of the fund created to compensate the victims of the BP Deep Water Horizon oil spill, comments on the issues related to compensation in mass tort cases here.  Feinberg has proven to be a controversial figure.  While working in the BP litigation, he found himself in the middle of a controversy over whether he had a conflict (favoring BP).  See hereherehere and here.  However, he has also been praised for his approach to compensation. If nothing else, his work will be influential on how courts handle mass disaster cases in the future.  For more on the issues related to both the BP and GM settlement funds go here and scroll down.

Thanks to the TortsProf blog for the link.

Monday, October 27, 2014

Comment on the effects of "tort reform" on medical care

Joanne Doroshow, of the Center for Justice and Democracy at New York Law School, has published a short comment called How Tort 'Reform' Ruins Health Care for Everyone in which she discusses recent research on the effect of tort reform.  The article is short but has plenty of links to more information and it is well worth reading.  You can find it here.    Among other interesting findings, the new studies conclude that patient safety generally deteriorates after caps are enacted and that caps on damages actually increase health care costs.

60 minutes segment on genetic testing

Last night the TV show 60 minutes had a segment on issues related to genetic testing.  It did not discuss torts, but it did touch a little bit on some of the bio-ethics issues I mentioned in my comments on the sperm donor case.  If you can't see the video below, you can go to here to watch it, to watch other videos or to read a transcript of the show.

UPDATE:  I tried embedding the video several times and it is not working properly, but if you click on the little square icon on the lower right hand side, the video will switch to full screen and you can see it there, or, like I said, you can go to the 60 minutes website.  Sorry about that!  Also, the video includes at least one commercial.  If I could edit it out, I would but I can't.. so sorry about that too...

Saturday, October 25, 2014

Comment on California Proposition 46

In a few weeks, California voters will vote on "Proposition 46" an initiative to, among other things, raise the cap on pain and suffering damages, which has not been increased since it was adopted in 1975.  Go here and here for previous posts on the issue and here for my comment on the information (or misinformation) campaigns for and against the proposal.

Meanwhile, the TortsProf blog contacted both pro- and anti-Prop 46 spokespeople and asked them to write posts supporting their respective positions. Eric Andrist, a leading voice in the pro-Prop 46 movement, posted his comment here. The California Medical Association has not replied to the invitation to prepare a post.

Wednesday, October 22, 2014

Recent developments in three states may challenge the notion that there is "no duty to help"

As you probably know, as a general rule, the Common Law does not recognize a duty to go help someone in need. There are a few exceptions to this rule, and the general rule may be affected by statutes, but it remains the general rule.

Interestingly, this month I saw a few stories that in one way or another raise concerns regarding the duty to help issue.

For example, the "a public defender" blog had a couple of comments (here and here) on a recently adopted statute in Connecticut mandating disclosure of possible child abuse. By creating such a duty, which applies to members of the clergy and appears to apply to some lawyers, I wonder if the legislature has opened the door to possible civil liability in cases where people do not disclose. This is an issue discussed in Perry v. SN and SN, 973 SW2d 301 (Tex 1998), which you may have read in law school.

Given that the statute apparently applies to some lawyers, it also raises the issue of a conflict between the lawyer's duty of confidentiality and the duty imposed by the statute. Assume a client tells the lawyer about the abuse as part of the representation. Does the statute create a duty to disclose (akin to the duty recognized in Tarasoff v. Regents of the Univ of California) regardless of the professional duty to maintain the information confidential? I only know of one case that discusses the issue in the context of the practice of law (Hawkins v. King Cty. Dept. of Rehabilitative Services, 602 P.2d 361 (Wash. Ct. App. 1979)) and it only holds that given the facts of the case the duty did not apply.

Meanwhile, in response to the slayings at the University of California at Santa Barbara in May, California Gov. Jerry Brown signed a new law to allow family members to petition for the temporary seizure of guns from relatives who are a threat to themselves or others. Supporters say the measure could help prevent suicides as well as mass shootings. More on the story here.

The law does not impose a duty on anyone to take action, but I wonder if, again, the law will open the door to more possible arguments that there should be a duty to act. What if a person does not take the chance to ask a court to take someone's guns away and that person then uses the guns to attack a group of students at a school. Will the victims be able to sue everyone to whom the new law applies for not taking action?

Finally, in Illinois voters will have a chance to vote on a proposed amendment to the state constitution that seems to raise similar issues although, in the end, the amendment also makes it irrelevant.

The amendment recognizes a "victims bill of rights" which states, among other things that crime victims have the right "to be reasonably protected from the accused throughout the criminal justice process." Although it does not state who shall do the protecting, it seems obvious the right is one that can be raised against the state, thus making the state responsible. In other words, if approved, the state seems to be adopting a duty to protect crime victims from criminal defendants during the criminal proceedings. That means the state now would have a duty to help.

The problem is that in another section, the amendment states that "nothing in the section or any law enacted under this section creates a cause of action ... for compensation ... or damages against the State, a political subdivision of the State, an officer, employee, or agent of the State or of any political subdivision of the State, or an officer or employee of the court."

In other words, the proposal states that the State has a duty to help and that the victim has a right to demand that help, but the victim has no right to sue for compensation if he or she suffers an injury for the violation of that right.

Wall Street Journal mistakenly reports that Georgia Court held parents can be liable for conduct of their children

Last week, the Wall Street Journal law blog published a story titled "Parents May Be Liable for What Their Kids Post on Facebook, Court Rules" in which it stated "Parents can be held liable for what their kids post on Facebook, a Georgia appellate court ruled in a decision that lawyers said marked a legal precedent on the issue of parental responsibility over their children’s online activity."  The story was then picked up and repeated by Smithsonian, and The Legal Satyricon (which criticizes the decision as incorrect because it failed to consider a certain federal statute).

The case is interesting but the problem is that the headline of the reported story is wrong.  The court did not hold that parents can be held liable for their children's conduct; the court held the parents can only be held liable for their own conduct.  That is a big difference.

As the court explains in its opinion, "liability for the tort of a minor child is not imputed to the child’s parents merely on the basis of the parent-child relationship." In other words, there is no vicarious liability for the tort of a minor. However, as the court continues, "[p]arents may be held directly liable . . . for their own negligence in failing to supervise or control their child with regard to conduct which poses an unreasonable risk of harming others," a duty which extends to those plaintiffs whose harm is foreseeable.

In the case, called Boston v. Athearn which is available here. a boy (Dustin, age 13) and a girl agreed to have some fun at the plaintiff's expense.  Using some information obtained by the girl, Dustin created a fake Facebook page in the plaintiff's name where they posted racist, sexually graphic, offensive and false information including posts that suggested the plaintiff was a homosexual and a racist, that she took illegal drugs and that she was on medication for mental health disorders.

About six days after the Facebook page was created, the principal of the school had determined who had done it and imposed discipline.  As a result, the culprit's parents were informed in detail of the children's conduct.  Dustin's parents claimed they disciplined him, but made no effort to access the Facebook page or to delete it.  The page remained available for almost a year.

In response to a motion for summary judgment filed by Dustin's parents, the plaintiffs argued that there were questions of material fact regarding whether the defendants were negligent in failing to compel Dustin to remove the Facebook page once they were notified of its existence and the court agreed.

Again, let's reiterate that the issue here is not whether a parent should be held liable for the conduct of a child.  The issue is whether the court should impose liability for the parent's own conduct.  More to the point, whether the court should impose a duty on the parents to do something more than what they did.

Because this is not a case where the court is trying to impose a particular parenting style nor passing value judgment on parental decisions on how to raise a child, the case is simple.  The parents have a duty to act like a reasonable prudent person under the circumstances and, given the facts, reasonable people can disagree as to whether they did.  I am not even sure we need more facts to decide the question.   Let it go to the jury and let them decide.

Monday, October 20, 2014

BP's cert petition to undo settlement agreement has been denied

BP's petition for cert was denied today. You can find the order here You can find the cert filings at SCOTUSBLOG The Mass Tort litigation blog has more details here.

Saturday, October 18, 2014

Update on the BP Deep Water Horizon litigation

About a month and a half ago I reported that BP 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.  Juneau has now responded, accusing BP, among other things, of not being candid and of trying to mislead the court.  Here is the story and a video.  In addition, here is a comment on BP's appeal challenging the settlement it originally agreed to.

Thanks to Torts Today for the links and information.

Wednesday, October 15, 2014

Video quiz: Battery on the football field?

Players in a contact sport consent to, or assume the risks of, the inherent risks of the game and its customs.  Intentional conduct outside the rules and customs of the game, on the other hand, may give rise to a valid claim.  Here is a clip from a recent NFL game.  The play has ended; the whistles have blown it "dead."  Watch what the St. Louis defender (Ogletree) does with the ball.  Battery? 

Study published in the New England Journal of Medicine shows tort reform had no effect on "defensive medicine"

As I am sure you have heard, "defensive medicine" is a term used to describe unnecessary or wasteful medical procedures that according to legend are performed because of fear of possible liability.  Eliminating this type of wasteful practices, which, as the argument goes, increases the cost of health care, is often used as a reason to support med-mal/tort reform.

A new study published in the New England Journal of Medicine, however, concludes introducing med-mal reform had little effect on the practice of medicine or the cost of the services in emergency rooms.

UPDATE 10/17/14:  More on the story at Forbes and The Washington Post.

FDA: Chantix warnings about suicide thoughts and other side effects should stay

Earlier this month, I reported that Pfizer was seeking to have the warnings on possible suicidal thoughts removed from its drug Chantix even though the drug has been reported to be linked to more suicidal thoughts cases than any other drug.

Now, as the debate over the need for psychiatric warnings for Chantix continues, FDA staff reviewers  have indicated that the drug should continue to carry a black box warning to alert users about the risk of suicidal thoughts, violent behavior and other unusual actions while taking the medications.  Go to AboutLawsuits for the full story.

UPDATE 10/17/14:  AboutLawsuits has a follow up here.

Tuesday, October 14, 2014

Final thoughts on the sperm bank case

About two weeks ago, Jennifer Cramblett filed a complaint against a sperm bank alleging that the defendant mistakenly gave her vials of sperm from an African-American donor even though she had specifically requested the sperm of a white donor with blond hair and blue eyes. Ms. Cramblett was four or five months pregnant when she was informed about the mistake and decided to take the pregnancy to term. Eventually, she gave birth to a healthy child of mixed races. Now, two years after the birth of the child, Ms. Cramblett has sued the sperm bank arguing she should be compensated for the wrongful birth of the child. Since the child in question does not suffer from any medical condition, disability or birth defect, the plaintiff is, in essence, asking the court to recognize a claim to compensate for her emotional distress at having to care for a child she would have rather avoided because she is not the child she wanted. And she is not the child she wanted solely because of her mixed race.
If you haven't read my previous comments on the case you should go here for the first one and here for the second one.
In my first post, I argued that the court should not extend the concept of wrongful birth to apply to a claim where the injury is not based on a medical condition of the baby. Otherwise, the court would be forced to pass value judgment on the relative value of a person's race. In my second comment, I discussed the possibility of arguing the case using a different cause of action, but concluded the claim should fail for essentially the same reason. Race is not a disability for which the law should recognize a remedy in tort law.
In other words, in those posts I argued that the cause of action should not be recognized under the currently applicable state of the law. Having discussed that, though, now I will turn to a different and broader question: to what extent should modern reproductive technologies change the way we think about "injuries" for purposes of tort law?
The history of the notion of wrongful birth itself is a good illustration of how societal attitudes toward reproductive rights and practices affects the way we think about torts remedies. The first wave of wrongful birth claims were universally rejected because the defendant physicians did not cause the birth defects or disabilities suffered by the children born to the plaintiffs. However, after it was recognized that women had a legally protected right to terminate a pregnancy, the courts changed the approach. Given the change in attitudes toward women's rights, the approach to the claim changed to whether the conduct of the defendant deprived the mother of the right to terminate the pregnancy. Based on that new approach, courts began to recognize the availability of a remedy in tort for the wrongful birth of a child with medical conditions that could have been avoided by preventing the birth in the first place.
The technology available to facilitate reproduction has also changed over the years. Intrauterine insemination is now commonly used by people seeking to have children but who, for any number of reasons, would prefer not to, or can't, achieve a pregnancy "the old fashioned way."Thus, just like after the recognition of the right to terminate a pregnancy, through the use of modern technology, women or parents can exercise a degree of control over the process of reproduction that was not possible a few decades ago. They can search for and select specific donors to avoid certain genetic mutations or possible health risks, for example. But this also means they can select specific donors to increase the chances their children meet other specifications.
How comfortable are we as a society with the idea that parents who choose sperm donors have the right to select specific traits or components to increase the chances that the child would turn out to look a certain way?
The question is important in the context of the Cramblett complaint because what makes the Cramblett case different, again, is that the reason for the complaint was not the child's hair color but her race. Some find it offensive that the basis of the mother's complaint is the child's race. I, myself, am the father of two ethnically mixed children and find it difficult to hear someone say that my children's ethnicity should be considered to be the equivalent of a disability or birth defect or that their existence should somehow be considered to be an injury to me.
However, there is an important difference between my children and Ms. Cramblett's daughter. My wife and I knew our children would be mixed. There was no way around it: my wife's ancestry is Irish-Norwegian-American, mine is Latin American. We wanted children and knew what to expect.
Jennifer Cramblett and her partner, on the other hand, had the opportunity to plan a child through a very different process. They had the chance to choose from an array of possible donors, each with different characteristics in order to pick the ones they wanted. They, in fact, had the chance to shop around for the specific genetic material they wanted. They wanted a specific type of child, of a specific race, with specific hair and eye colors. And they had a right to expect that the defendant sperm bank would deliver the right components. There is no guarantee that the child born to the process would be exactly what they wanted, but by using the desired components they could certainly improve the chances of getting the desired result.
It is the possibility of managing the process of reproduction that way that allows the plaintiff to have the chance to blame someone for the fact that the child did not turn out to be what she wanted. If we as a society are ready to accept that the reproductive process can be controlled by the parents in a way that allows them to essentially manufacture children to meet certain specifications, shouldn’t parents have the right to recover compensation when the result is not what they expected? Does that difference in the reproductive process justify recognizing a cause of action in tort for what they claim is an injury because of the child's race?
I don't think so because I just can't get around the fact that the claim is asking the court to pass value judgment over the value of living life as a member of a certain race, which is, in turn based on the notion that the child should not have been born. Maybe the plaintiff can support a claim for breach of contract, but that is a different matter.
As usual, however, I am open minded and willing to listen to the arguments. I am willing to be convinced. But right now, I have not heard any argument that would change my mind. If you have one, please send it my way.

Monday, October 13, 2014

Judge decides state's cap on damages does not apply to case before him because apparently he just does not like it

The Journal Times is reporting that "[a] Milwaukee County circuit judge struck a blow for compassion and common sense last week when he . . .  affirmed a $25.3 million jury award in the case of a Milwaukee woman who lost all four of her limbs."  The story goes on to say that the judge said he was not striking down the 2006 state law that created a $750,000 cap on noneconomic awards for pain and suffering in malpractice cases, but held it shouldn’t apply in the case:
Although the cap may be constitutional as applied to medical malpractice victims as a whole, there is no rational justification for depriving Mrs. Mayo, who is in her mid-fifties, limbless and largely immobile, and Mr. Mayo” of the entire award, according to news reports. . . .   “This is not a runaway verdict. It is certainly not outrageous, and no one could seriously argue that it is not in proportion to Mrs. Mayo’s injuries,” 
If you follow this blog, you know I do not support caps on damages.  However, what the judge did here sounds wrong to me.  Judges can't pick and choose which laws apply to which cases before them.  If the law provides for exceptions, the judge can apply them.  If the law should be invalidated or declared unconstitutional, the judge should do that.  But a judge can't simply say a law does not apply to a plaintiff because the judge does not like the result.

I would understand the decision if the law in question stated that judges have discretion to apply the cap, or if it says that it should only apply to cases where the judgment is not in proportion to the value of the injuries, etc.  That would allow the judge to support his conclusion; but I don't know if the law says that.  If it doesn't it seems to me the judge acted outside his authority and the ruling could be reversed.

h/t The TortsProf blog

Washington State Supreme Court decides "uncollectability" is not an element of a legal malpractice cause of action

As you probably know, if a legal malpractice claim is based on alleged negligent conduct in handling a litigation, the plaintiff has to argue that he/she would have won the original case had it not been for the negligent conduct of the defendant.  But what if the plaintiff does not show that he or she would have been able to actually recover compensation from the original defendant?

Addressing this issue for the first time in the jurisdiction, four days ago, the Washington State Supreme Court issued an opinion in a case called Schmidt v. Coogan, holding that the uncollectibility of the judgment in the underlying action is an affirmative defense that the defendant attorney must plead and prove.

In other words, in the malpractice case against the attorney, the plaintiff only has to argue that he or she would have won the original case.  The plaintiff will not have to show he or she would have been able to recover the compensation.  The defendant lawyer can, however, bring up the issue as a defense.

You can read the opinion here.

UPDATE (10/22/14):  As reported in the BNA/ABA Lawyer's Manual on Professional Conduct:

The Schmidt court acknowledged that it was departing from the majority view in holding that the uncollectibility of an underlying judgment is an affirmative defense that a malpractice defendant must prove, rather than holding that collectibility is an element the plaintiff must established as part of her prima facie case The lead opinion identifies Georgia, Iowa, Massachusetts and Nebraska as adhering to the traditional rule. See McDow v. Dixon, 226 S.E.2d 145 (Ga. 1976); Whiteaker v. State, 382 N.W.2d 112 (Iowa 1986); Jernigan v. Giard, 500 N.E.2d 806 (Mass. 1986); Eno v. Watkins, 429 N.W.2d 371 (Neb. 1988). California and Ohio courts also take that view. See Garretson v. Miller, 121 Cal. Rptr.2d 317, 18 Law. Man. Prof. Conduct 421 (Cal. Ct. App. 2002); Paterek v. Petersen & Ibold, 890 N.E.2d 316, 24 Law. Man. Prof. Conduct 315 (Ohio 2008).

States that depart from the traditional view include Alaska, Indiana, Maine, Michigan, New Jersey, New Hampshire, New York and Pennsylvania. See Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20 (Alaska 1998); Clary v. Lite Machines Corp., 850 N.E.2d 423 (Ind. Ct. App. 2006); Jourdain v. Dineen, 527 A.2d 1304 (Me. 1987); Teodorescu v. Bushnell, Gage, Reizen & Byington, 506 N.W.2d 275 (Mich. 1993); Hoppe v. Ranzini, 385 A.2d 913 (N.J. 1978); Carbone v. Tierney, 864 A.2d 308, 20 Law. Man. Prof. Conduct 442 (N.H. 2004); Kituskie v. Corbman, 714 A.2d 1027 (Pa. 1998); Lindenman v. Kreitzer, 775 N.Y.S.2d 4, 20 Law. Man. Prof. Conduct 192 (N.Y. App. Div. 2004). See also Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 25 Law. Man. Prof. Conduct 617 (Tex. 2010) (evidence that underlying damages “probably would have been paid” despite debtor's insolvency would be enough); Visvardis v. Eric P. Ferleger P.C., 873 N.E.2d 436, 23 Law. Man. Prof. Conduct 427 (Ill. App. Ct. 2007) (plaintiff must plead facts supporting inference that opponent in underlying case would have been able to pay some part of damages).

Auto accident victim sues the person who called driver on a cellphone

Last year I wrote about a case in New Jersey that involved a plaintiff who had been injured by a driver who was distracted by a text message. (See here and here.) In that case, the Appellate Division of New Jersey Superior Court decided that a person who sends a text to a driver can be liable but only if the texter knew that the recipient was driving and likely to read the text message while driving. The case is called Kubert v. Best.

After discussing the case, I wrote 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.")"

The opportunity to answer that question has arrived.  The Chicago Daily Law Bulletin is reporting today that the estate of a woman who died in a car accident has filed a wrongful-death lawsuit against a man who called the cellphone of the driver involved in the accident. The case is named Hope Farney v. Matthew Geerdes, et al.

Not surprisingly, the plaintiff has alleged that the caller knew the call’s recipient was driving and that it would provide a distraction from the road.

Also not surprisingly, the defendant has moved to dismiss the case, arguing the complaint failed to allege a recognizable duty against him and failed to allege the negligent conduct was a proximate cause of the accident. 

Friday, October 10, 2014

Article on Medical Malpractice

Professor Marc A. Rodwin (Suffolk University Law School) sent me the abstract of his new article “Why the Medical Malpractice Crisis Persists Even When Malpractice Insurance Premiums Fall.” It sounds very interesting.  You can download a copy here.  Here's the abstract: 
Concerns that medical malpractice premiums continue to grow unabated has led to numerous proposals to change liability rules and reform tort laws. Not only would proposed legislation make lawsuits more difficult for plaintiffs, but the bills do not address the real source of the problems they intend to solve. Premiums are not rising as claimed and even if they were, other factors are contributing to the plight of physicians. But in fact, the claim that malpractice premiums are an unbearable burden for most physicians is myth, not fact. The first section of this article will examine how this myth began and the proposed legislative remedies it spawned. It will show that junk data has been used to support legislation and it will then introduce more reliable data bearing on these issues. Next, this article will describe other factors that are rarely mentioned but that have important effects on the cost of medical practice and physician income. If doctors are truly closing up shop, it’s not because of malpractice insurance premiums. This article will then examine one AMA-declared “crisis state” to see if there are indeed crises in some selected states, even if there is no crisis nationally. As will be explained, there are not. The study of individual states reveals that there are premium cycles, that recent premium increases reflect these cycles, and that rates will probably fall as they have in the past following an increase. Finally, this article will offer insight into why physicians continue to perceive a crisis despite the data presented and what the future may hold for reform.

Thursday, October 9, 2014

More thoughts on the complaint against the sperm bank

In my previous post, I argued that a cause of action for "wrongful birth," if it should be recognized at all, should not be extended to provide compensation for the alleged emotional distress suffered due to the birth of a healthy but unwanted child.  I used the term "unwanted child" on purpose although the plaintiff in the case did not because my analysis of the claim leads logically to the fact that that is really the underlying argument upon which the plaintiff's claim is based.

Now I am wondering if the plaintiff has created an argument that is difficult to defend mostly because of her attempt to categorize her claim as a wrongful birth claim.  If the real cause for the injury is the fact that the mother has suffered an injury she would rather have avoided, her claim may be more akin to a preconception tort.  I think the claim would fail too, but it worth exploring the possibility.

A "wrongful conception" or "wrongful pregnancy" claim is a term usually used to refer to a claim by parents for the costs of raising a healthy but unwanted child.   Typically, the claim arises when parents who had decided they could not afford more children find out they will have another child due to a negligently performed procedure to prevent future pregnancies.

Although the factual scenario is different, it could be argued that the allegations in Cramblett are more analogous to this type of case than to the typical wrongful birth claim.

Granted, in Cramblett the mother was trying the have a child, while in a wrongful pregnancy case the parents had been trying to avoid having a child, but in both cases what's important is what happens after the parents find out they are going to have a child.  In a typical wrongful pregnancy case, the parents decide to take the pregnancy to term and keep the child.  Likewise, in Cramblett after the initial shock at the news related to the wrong sperm, the mother decided to do the same.

In both cases, the child is then born healthy and the parents welcome the child into a loving (if not necessarily ready for it) family.  In the typical wrongful pregnancy case, the lack of readiness is due to the financial stress on the family, which is precisely what the family had tried to avoid by seeking the pregnancy prevention procedure in the first place.  In Cramblett, the mother claims emotional distress due to not being ready (or capable) to deal with the stress of caring for a child of mixed races.

In both cases, therefore, the baby is not actually "unwanted" once he or she is born, but presents a burden on the parents.  It is for the value of that burden that the plaintiffs are now seeking compensation.  In a typical wrongful pregnancy case, the burden is purely financial.  In Cramblett, however, it is emotional.

Given these similarities, should the mother in Cramblett have argued the case by analogizing her situation to a wrongful pregnancy case?

I think the argument is better than the one based on the "wrongful birth" label, but, unfortunately, the law is not on the plaintiff side - or at least not in Illinois.

First of all, it should be noted that jurisdictions are split over the type of recovery that should be allowed in wrongful pregnancy cases.  In some jurisdictions, parents are allowed to recover for the ordinary expenses needed to raise the child to the age of majority.  After all, those were the expenses the parents were trying to avoid by seeking the defendant's services in the first place, and the expenses that are reasonably foreseeable if the services are negligently performed.  But the majority view seems to be that the recovery should be limited to the expenses related to the negligently performed procedure, the pregnancy and the delivery/birth of the baby itself.  Courts are also split on the issue of whether parents should be allowed to recover for emotional distress due to the birth of the child.  Finally, even in some jurisdictions that would allow some recovery, the recovery can be reduced (some say "offset") by an amount equivalent to the inherent benefits of having a child.

Illinois follows the majority view.  Parents seeking to recover compensation for a pregnancy that they had sought to avoid have been limited to recover costs associated with the unsuccessful operation, the pain and suffering related to the operation, any medical complications caused by the pregnancy, the costs of delivery, lost wages, and loss of consortium.  The most recent case in Illinois discussing this issue was decided earlier this year.  In that case, the court for the first time recognized a claim for extraordinary expenses but only because the parents had sought to avoid pregnancy due to a clear risk that their children would have a genetic birth defect.  You can read my comments on that case here and the court's opinion here.

More importantly, the position that the available remedy in wrongful pregnancy cases should be limited is based on the notion that the birth of a normal healthy child should not be judged to be an injury to the parents.  Having a baby, regardless of how stressful it can be, is to be considered "a blessing," so to speak; not an injury.

Having said that, I actually think that courts can easily justify recognizing a cause of action for the ordinary expenses of raising a child in wrongful pregnancy cases.  Arguing that having a child is a joy (which it definitely is - I have two), has little to do with the fact that raising children is expensive.  In other words, it has always seemed strange to me to say that you can "offset" a financial expense with an emotional gain.  If the parents sought the defendant's help precisely to avoid the expense, then the expense is the foreseeable consequence of the risk created by the negligent conduct of the defendant.

However, the approach to avoiding recognizing claims that could create a negative message on the value of parenting (or to limit the type of recovery available) is consistent with my previous argument regarding the possible negative message on the value of one's race.  And it is particularly relevant in a case like Cramblett where the claimed injury related to the birth of the child is almost exclusively emotional rather than financial as in a typical wrongful pregnancy case.  Since the injury claimed in Cramblett is emotional, you can say it is offset by the emotional grain.  As I argued in my previous post, if the child is a dream come true, her birth should not be considered to be an injury because parenting turns out to be stressful because of her race.

For these reasons, even though I see similarities between wrongful pregnancy cases and the allegations in Cramblett, I still think the claim should be rejected. The claim is not that the child presents a financial burden, but an emotional one. The argument is not that the unexpected race of the child will create financial difficulties but that the mixed race of the child will make life more stressful, difficult or inconvenient for the mother.

In the end, it seems to me that the result of the allegation and the consequences of recognizing a claim are the same in that it would require the court to pass some sort of value judgment on the value of race and the value parenting a child of a different race.

Go here for my final thoughts on this case.

Sunday, October 5, 2014

Complaint vs sperm bank: Should the court expand the notion of wrongful birth to cover and injury based on a child's race?

By now, you are probably familiar with a complaint filed a few days ago in Chicago by a white mother against a sperm bank alleging that the defendant mistakenly gave her vials of sperm from an African-American donor even though she had specifically requested the sperm of a white donor with blond hair and blue eyes.  (Story here, herehere and here).  After being artificially inseminated with the sperm, the plaintiff found out about the mistake but took the pregnancy to term.  A few months later, she gave birth to a mixed race girl.  Now, two years later, the mother is claiming that having to raise a child of mixed races has caused her emotional distress.  (The case is called Cramblett v. Midwest Sperm Bank and the complaint is available here.)

The complaint includes two counts of negligence, one for "wrongful birth" and one for "breach of warranty" under a specific Illinois statute.  I have been thinking about these claims for a few days and will probably write something longer about them eventually, but here are my first thoughts.  Actually, just one thought: even though the defendant may have been negligent, the claim for wrongful birth should be rejected.  I would allow the plaintiff to recover for some of the economic expenses she incurred, but most of those have been refunded to her already.

The typical "textbook definition" of a tort includes the notion of "a wrong for which the law recognizes a remedy."  Along those lines, one of the first important lessons we learn when studying Torts is that the law, in fact, sometimes does not recognize a remedy for certain wrongs.  Moreover, sometimes the law should not recognize a remedy.  Simply stated, sometimes unexpected, even bad, things happen to good people, and yet there is no remedy, or there should not be a remedy, in tort available to them.  The reasons for this seemingly unfair result vary, but in the end they relate to the fact that sometimes there are other competing values that are more important than providing an avenue for redress.

The issues raised by the recently filed complaint arguing the mother should be compensated for the so-called "wrongful birth" of a child with features different than those she would have preferred is one of those cases.  The court should dismiss the claim and refuse to recognize the cause of action.  Even though many jurisdictions recognize the concept of "wrongful birth," it would be wrong to extend it to apply to the alleged "distress" suffered because of the birth of a healthy child simply because of the child's race.

Let's begin by talking about the warranty claim because when it comes down to it, the claim is essentially irrelevant.  Usually, the term "warranty" is used to refer to a cause of action for strict liability because of an injury caused by a product.  However, in this case, it means exactly the opposite.  The claim is based on the Illinois Blood and Organ Transaction Liability Act, the purpose of which is to prevent plaintiffs from filing claims under a strict liability theory against defendants in the business of providing blood, plasma, organs and other types of products related to human tissue. According to the statue, the imposition of legal liability without fault against such defendants could inhibit the availability of important scientific knowledge, skills and materials.  Given this public policy, the statute specifically precludes strict tort liability claims and limits the possible liability of the defendants to causes of action based on negligence or willful misconduct.  The notion of a "warranty" in such a claim comes from the text of the statue in that it states that those involved in the rendition of any of the services described in the statute "warrants . . . that he has exercised due care and followed professional standards of care."

This statement means nothing other than what the common law already requires.  The plaintiff still has the burden of proof to argue and prove the standard of care and that the defendant breached it.  Thus, the statute changes nothing and provides no additional, or different, avenue of relief to a plaintiff.  The claim "for breach of warranty" under the statute will only be valid, and survive a motion to dismiss, to the extent the plaintiff can support a claim for negligence.  The claim for breach of warranty is, thus, at best, redundant.

For this reason, the key to the case is the so called "wrongful birth" claim.  This type of claim usually refers to a claim filed by the parents of a child born alive but with a medical condition, birth defect or genetic problem that could have been detected had the defendant not been negligent during the mother's pregnancy.  The claim has been recognized to vindicate the protected right of the mother to terminate the pregnancy had she been told that the expected child was probably going to be afflicted with a serious medical condition.  For this reason, in order to support the claim, the plaintiff would have to assert that had she been given the proper treatment and information she would have, at least, seriously considered terminating, if not that she would have in fact terminated, the pregnancy.  Thus, due to the negligence of the defendant the child was "wrongfully born."  Had the defendant not been negligent, the child would not have been born at all.

Because the basis of the claim is, at least in part, that the parents would have probably acted to prevent the birth of the child, the cause of action is controversial.  However, many courts have attempted to defuse the controversy by limiting the type of recovery available depending on the nature of the injury.  In Ohio, for example, the jurisdiction where the plaintiff in Cramblett actually lives, the Supreme Court has held that only pregnancy and child birth costs are recoverable in a wrongful birth claim.  In contrast, in Illinois, where the plaintiff filed the claim, the courts have decided to allow the recovery of pain and suffering in addition to the types of costs allowed in Ohio and to extraordinary economic costs needed to address the child's medical condition or needs.

In those jurisdictions that allow for some recovery in wrongful birth cases, recovery for extraordinary expenses related to the child's medical condition is common, but recovery for emotional distress is rare.  One issue courts seem to be in agreement, however, is that an award for ordinary expenses related to raising the child is not justified.

The claim filed in Cramblett v. Midwest Sperm Bank is fundamentally different than the typical wrongful birth claim.  The first essential difference is that the child born to the plaintiff in this case does not suffer from any medical condition at all which requires extraordinary expenses.  There is nothing "wrong" with her.  The only thing the plaintiff is claiming is "wrong" is her race.  She is, therefore, implying that the child's race is like the type of disability that would typically justify a wrongful birth claim, and that, for the mother, having a mixed race child is an injury.  However, since filing the complaint, the mother has contradicted herself numerous times in interviews by asserting that the claim "is not about race," an assertion that is clearly nonsense since everything about this case is about race.

Also, although the mother is suing for wrongful birth, the basis of which is the deprivation of her right to terminate the pregnancy and the undesirability of having a child with a serious medical condition or disability, the plaintiff has publicly declared about her daughter that “we love her — she’s dream come true,” and that “[f]or people to think I don’t want this child because of her skin tone is just not the case. It angers me that people would even think I don’t want my child.”  In an interview with NBC News, she also stated that "I don't find any problems with having a mixed-race child."

The problem is you can't have it both ways.  If the child is a dream come true, you can't possible convincingly say that having her has become "an injury" or that she is a disability or that you would rather not have had her.  If you want to recover for the "injury" you claim you have suffered, on the other hand, you can't say she is a dream come true because if she is, you have not suffered the injury you are claiming for.

I believe the mother when she says she loves her child.  The problem is I don't think she understands the implications of the legal claim she is making.  So here is a way to explain the problem.   Let's assume for the moment, as we do in torts cases to argue causation, that the defendant had not been negligent.  What would have been the result?  Since sperm contains the genetic material that makes a child who she is, what the use of the sperm sent by the defendant caused was the birth of that particular child who is now the plaintiff's daughter. If the defendant had not been negligent, the plaintiff would have been provided different sperm – sperm that would have had a different genetic code – and the child that would have been born would have been a different child than the one who was, in fact, born. The child who was born, the one whom the plaintiff now loves and considers a dream come true, would not have been born at all.  That's why the plaintiff's claim, in the end, is based on the assertion that she would have preferred not to have given birth to the child she did give birth to, but rather to a different one – one with blond hair and blue eyes.

Since the child in question does not suffer from any medical condition or birth defect, the plaintiff is, in essence, asking the court to recognize a claim to compensate for her emotional distress at having to care for a child who is not the child she wanted.

As if that was not enough, the complaint is very vague as to the injuries claimed.  It does not explain what is the basis for the requested compensation, so let's try to figure it out.  Here are the allegations:
On August 21, 2012, [the plaintiff] gave birth to . . . a beautiful, obviously mixed race, baby girl. [The plaintiff] bonded with [the daughter] easily, and she and [the plaintiff's same sex partner] love her very much. Even so, [the plaintiff] lives each day with fears, anxieties and uncertainty about her future and [her daughter's] future. [The plaintiff] admits that she was raised around stereotypical attitudes about people other than those in her all-white environment. Family members, one uncle in particular, speaks openly and derisively about persons of color. She did not know African Americans until her college days at the University of Akron.
Because of this background and upbringing, [the plaintiff] acknowledges her limited cultural competency relative to African Americans, and steep learning curve, particularly in [the] small, homogeneous [town she lives in] which she regards as too racially intolerant.
As just one example, getting a young daughter's hair cut is not particularly stressful for most mothers, but to [the plaintiff] it is not a routine matter, because [her daughter] has hair typical of an African American girl. To get a decent cut, [the plaintiff] must travel to a black neighborhood, far from where she lives, where she is obviously different in appearance, and not overtly welcome.
Based on the facts of the case and these allegations, the plaintiff claims that she has suffered "personal injuries, medical expense, pain, suffering, emotional distress, and other economic and non-economic losses, and will do so in the future."  However, there is no explanation as to the nature of the personal injuries, which presumably refers to physical injuries, nor of any of the non-economic damages including the claimed pain, suffering and emotional distress.  Without that information, it is not possible to accurately evaluate the validity of the claim, but let's consider some possibilities:

1.  Emotional distress because of an unwanted birth?  As stated above, the plaintiff has publicly denied that is the case.

2.  Emotional distress due to the fact that the child is African American or of mixed race?  Again, the plaintiff has denied that is the case.

3.  Emotional distress due to the realization that her child is not what she expected her to be?  I am sorry, but that's silly.  Children are rarely what you expect them to be and tort law is certainly not an adequate mechanism to provide a remedy for parental disappointment.

4.  Emotional distress due to the realization that the child's life might be tough due to her race?  Welcome to reality.  If you are not prepared for that because of your ignorance about race relations in this country you should look in the mirror or to your own family to find someone to blame.  And in this case, the plaintiff has done a good job of that.  Part of her complain is based on the allegation that she was brought up in an intolerant culture and was not prepared to parent a mixed race child.  She even implies some of her relatives, including a particular uncle, are racists.

5.  Expenses to help raise the child in a better environment?  The plaintiff has claimed that she wants to be compensated so she can move to a better location to raise her child.  I understand the sentiment, but, again, the claim is based on the notion that having a mixed race child is somehow an injury for which the law should recognize a remedy.  And since the law does not recognize a remedy for ordinary expenses in wrongful birth cases involving children with birth defects and medical conditions, it seems incongruent to recognize such a claim for a child whose only claimed "defect" is that she is of the wrong race.

In addition, in yet another attempt to defuse the controversial nature of a wrongful birth claim, many jurisdictions consider how the benefits of having a child in and of itself offsets the possible difficulties created by the fact that the child has health problems.  In those jurisdictions, the final award granted to the parents would be reduced by an amount equivalent to the emotional benefits of having a child.  In the Cramblett scenario, it can easily be argued that the benefits are high enough to outweigh the value of the claim altogether.  After all, the plaintiff already has declared publicly that both her and her same sex partner love their child, that they did not have much of a chance to get pregnant without the use of artificial insemination, that they wanted to have a child, that they do not have a problem having a mixed race child and that they think the child is a dream come true.  More importantly, the awakening to a different reality and the exposure to cultural differences are likely to (or hopefully should) help the plaintiff and her partner grow as people and become more understanding and tolerant themselves.  Again, if having the daughter is a dream come true, how can she represent a source of compensable pain and suffering at the same time?

6.  Emotional distress over parenting in general?  In the complaint, the plaintiff alleges she suffers from fear and anxiety about her own future, as opposed to that of the daughter.  Should the plaintiff be compensated because the situation has caused her mental anguish in general?  The problem with that claim, which seems to be what the plaintiff is claiming because the complaint has no explanation of the basis for the distress, is precisely that there needs to be an explanation.  The complaint claims that "[r]aising a mixed-race daughter has been stressful."  I am sure this is true, but the fact of the matter is that life is stressful.  Parenting is stressful.  Living life vicariously through our children, seeing them struggle, make mistakes, get picked on, grow up, try and fail, try and triumph, you name it ... all of it is stressful.  And, in the plaintiff's case, the reason for that stress as alleged is the daughter's race and the only way to argue that the defendant caused that stress is to argue, again, that she should have been white which is another way of arguing that she should not have been born.  Try explaining that to the daughter.

7.  Emotional distress because the plaintiff is not well equipped to be a parent to a mixed race child?  The plaintiff argues that she has had trouble dealing with a steep learning curve on how to care for her daughter.  After all, her hair is so different it requires an inconvenient drive to a an all-black neighborhood!  (By the way, I can relate to that argument.  For a number of years, my wife complained about having a hard time finding a place to get my daughter's hair done too.)  That is an interesting argument, but it is not new and it has been rejected when argued in a different context.

In a famous case in which the plaintiff was the child, the argument was made from the child's perspective.  The New Jersey Supreme Court referred to it as a claim for an "impaired childhood," the gist of it being that given the defendant's negligence, the parents were not prepared to handle the difficulties involved in raising a child with disabilities.  As a result, the plaintiff argued that the parents had not been able to provide adequate parenting which constituted a compensable injury to the child.  The court rejected the argument concluding the notion was just as objectionable as a claim based on the notion that the child should not have been born at all.

Are there any other possible claims, or other ways to justify the claims?  Please let me know if you think I am missing something.

Finally, one aspect of the complaint very few people seem to be paying attention to is the effect that recognizing the cause of action would have on the daughter.  (Here is one article that does address the issue.)  She is obviously too young to understand what is happening right now, but if the case drags on for years, and even if it doesn't, at some point she will be mature enough to know and understand.  The mother has stated she will explain the case to her in the future.

How can we explain to the daughter that we should we recognize a cause of action based on the fact that her mother thought she was the equivalent of a genetically defective or disabled child because of her race?  Is that a value we want to advance through the use of tort law?

The causes of action for wrongful life and wrongful birth have been criticized for creating a demoralizing and demeaning image of life with disabilities as a life that is worth less or that is not worth living at all.  What message would it send to recognize a claim based on the notion that a child is a disability because of his or her race?  Exactly what does recognizing the claim indicate regarding the value of life as an African American or any other minority in American culture?  Who wants to explain that to the child?

Sadly, it seems very ironic to me that by filing the complaint in this case, the plaintiff-mother is embracing the same bias or prejudice she claims she wants to prevent her child to be exposed to.  As has been argued elsewhere, "[d]ealing with [the daughter's] blackness has become burdensome and inconvenient for the[ ] two white mothers — because the biracial baby completely upended their decades of enjoying the spoils of white privilege," and I am not sure that it is a good idea to use tort law to create a remedy for that.

The court should not extend the notion of wrongful birth to apply to a claim where the injury is not based on a physical condition but only on the race of the baby.  Otherwise, the court would be forced to pass value judgment of the relative value of a person's race.

Continue reading my thoughts on this case here.

Thursday, October 2, 2014

Pfizer wants the FDA to eliminate warning related to suicide thoughts on drug Chantix even though it has been linked to more reports of suicidal thoughts than any other drug

Even though according to a report submitted to the FDA, the smoking cessation drug Chantix is linked to more reports involving suicidal thoughts and behaviors than any other medication sold in the U.S., its manufacturer (Pfizer) is urging the federal drug regulators to remove a “black box” warning added to their product in 2009 about the risk of psychiatric side effects.  Go here for more on the story.

Toyota under investigation for sudden acceleration problems is reporting that the National Highway Transportation Safety Administration (NHTSA) has launched a new investigation into problems with Toyota Corolla vehicles that include issues with braking and the potential risk of unintended acceleration.  The investigation was initiated after at least 163 reports of problems, and could result in a Toyota recall affecting nearly 1.7 million vehicles.  Go here for the full story.

Wednesday, October 1, 2014

Scientific study on banana peels wins Ig Nobel Prize

Torts professors and students who cover classic cases like Goddard and Anjou to discuss how to use direct and circumstantial evidence to prove the elements of a cause of action, might be interested in this story on the Ig Nobel prizes published by Smithsonian magazine a few days ago.  The Ig Nobel prizes are awarded to researchers whose work highlights the surprisingly practical implications of ridiculous sounding scientific research.

The 2014 awards were handed out at Harvard University about a week ago and the prize for physics was awarded to a study on the frictional coefficient of banana peels.  In other words, a study on how slippery banana peels really are. And, according to the study, it turns out that banana peels are especially slippery, even when compared to other fruits' peels, because of polysaccharide molecules in the peel.  More importantly, the study will help with the design of better prosthetics.