Wednesday, April 18, 2018

Wisconsin Supreme Court to decide whether the state's cap on non-economic damages in med mal cases is unconstitutional

The TortsProf blog is reporting that the Wisconsin Supreme Court will hear oral arguments in a case on appeal from a decision of the state's appellate court which declared the state's cap on non-economic damages unconstitutional.  The case involves a medical malpractice claim which resulted in a jury verdict for the plaintiff.  The jury determined that the health care providers were responsible and awarded $25.3 million. The non-economic damages portion of the award was approximately $16.5 million.  Wisconsin has a cap on non-economic damages in medical malpractice cases of $750,000. The trial judge ruled the cap was unconstitutional as applied to the plaintiff's case. The intermediate appellate court affirmed and went further because it ruled that the the cap was unconstitutional per se (not just "as applied.")  The Milwaukee Journal Sentinel has the story.

Sunday, April 15, 2018

Iowa Supreme Court finds that proof of exoneration is not necessarily required for a convicted defendant to sue for legal malpractice

In a many jurisdictions, a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. This view has been criticized but still appears to be the majority view. Yet, a number of jurisdictions have recently decided otherwise.

Back in 2016, I reported that the Iowa Supreme Court decided actual innocence is no longer required as an element of the cause of action; and I just saw that it recently reaffirmed this new approach in a case decided this year.  Here is the story which includes a link to the opinion.

Other jurisdictions that have held innocence is not a requirement include Washington, Kansas (also here) and Idaho.

UPDATE (4/15/2018):  Thanks to Patrick J. Olmstead, Jr. who wrote to me to let me know that the Indiana Court of Appeals also abandoned the actual innocence requirement in a case called Beal v. Blinn, 9 N.E.3d 694 (2014).

Wednesday, April 11, 2018

Ky. Lawmakers Didn't Consult Federal Experts About Limiting Black Lung Claims

A few days ago I reported that the Legislature in Kentucky had approved a measure to prevent federally-certified radiologists from judging X-rays in state black lung compensation claims, leaving diagnoses of the disease mostly to physicians who typically work for coal companies.

NPR is now reporting that the federal agency that trains, tests and certifies the physicians who read X-rays and diagnose black lung disease not consulted by Kentucky lawmakers in the 14 months they considered the new law.

This is a terrible law enacted to please the coal companies because black lung claims in Kentucky have risen about 40 percent since 2014. It should be repealed.

NPR has the story and more information on the reactions to the law by different groups including radiologists, the College of Occupational and Environmental Medicine and the Kentucky Workers Association, among others.