Debate on Iqbal continues

As the debate over whether Congress should act to overrule the pleading standard articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) continues in Congress, the University of Pennsylvania Law Review's online supplement PENNumbra is sponsoring an online debate between Professor Stephen Burbank (Univeristy of Pennsylvania) and the Jim Beck and Mark Hermann (better known as the guys who run the Drug and Device Law Blog). Prof. Burbank argues Congress should act while Beck/Hermann argue Congress should leave the cases alone. Go here for the debate. I have blogged before on the controversy created by the Supreme Court's decision in Ashcroft v. Iqbal related to the level of proof needed to support a plaintiff's claim. See my posts from August 9, August 14, September 8, September 19, September 21 and October 22. Also, adding to this reading list, the Drug and Device Law Blog has posted a list of recent scholarship on the subject here.

China recognizes new torts law

On December 26th, the People's Republic of China enacted a Tort Liability Law which regulates liability and compensation for some injuries, including injuries caused by defective products. Fore more information, comments and links go to TortProfs Blog and ThePopTort blog.

Tort reform reduces number of cases filed. Ok, but is it a good thing?

The TortsProf blog is reporting today on a Nashville Public Radio story (available here) that states that medical malpractice filings declined 60% in 2009. It suggests that this result may be due to the fact that, in 2008, the Tennessee legislature passed a law requiring a third-party certification from a doctor or nurse that a claim has some merit and notice 60 days prior to filing suit. Given the law, the result is not suprising. However, without more it is impossible to determine if the result is a good thing. I have argued before (see here and here for example) that the fact that filings go down after a tort reform measure is approved is not surprising. That is precisely the purpose for which the measure was approved in the first place. The goal of tort reform is to make it more difficult for victims to recover for their injuries (by making it more difficult for them to get to court) or, if they can get compensation, to reduce how much they can recover. Caps on damages are examples of the latter approach to reform; requiring a certificate of merit is an example of the former. However, lowering the number of cases filed is not necessarily is a good thing. It is important to determine why torts cases are down. Tort reformers typically argue that reforms are needed to reduce the numbers of frivolous cases. The problem is that tort reform initiatives don't necessarily work to distinguish the frivolous cases from the valid ones. They simply make it more difficult for everyone. The fact that the number of cases filed has gone down could mean that there are fewer frivolous cases filed (which would be a good thing), or it could mean that there are fewer meritorious cases filed (which is a bad thing). We just don't know; but I suspect it is a combination of both. I prefer a system that allows all meritorious cases a fair chance to go forward even if it means that some frivolous claim might get through too. There are mechanisms in place that work pretty well at reducing frivolous litigation including procedural rules that call for sanctions on the attorneys, professional conduct rules and the basic reality that attorneys are not going to invest time and money in a contingency fee case that has little chance of success. Now, back to the beginning. The Tennessee statute requires certification from a doctor or nurse that a claim has some merit and notice 60 days prior to filing suit. As I said above, this is an example of the approach to tort reform that seeks to make it more difficult for victims to file claims by making it more difficult for them to find representation and to find expert witnesses willing to certify their claims. Here is a link to an article about how although the number of medical malpractice lawsuits is going down, it is not necesssarily for the right reasons. Tort reform statutes are effective in reducing the number of cases, but not necessarily because those cases are frivolous, but because victims with valid claims have a hard time finding representation. The Nashville Public Radio story has another interesting point. The State Senator who sponsored the bill, an attorney who represents doctors and hospitals, admitted that the decline in medical malpractice claims hasn’t resulted in lower malpractice insurance premiums. This is consistent with the data in all other states that I know of where tort reform has been approved. The senator is quoted as saying “Now we’re waiting to see if the medical malpractice insurance premiums, in turn, come down. We’ve only had about a year to watch this, but with 60% fewer cases filed, I’m hopeful.” Given the history in other states, I wouldn't hold my breath.... The story then concludes saying that the senator "says simple laws to weed out what he calls “frivolous lawsuits” could potentially lower costs throughout the healthcare system." For recent articles that debunk this myth go here, here and here, and for more on the subject in general click on the sections on Tort Reform or Medical Malpractice of this blog.

Podcast on tort reform and health reform

Here is a link to a 30 minute podcast on health reform and tort reform. You can listen to it online or download it and listen to it later. One of the panelists is Philip Corboy of the Chicago firm Corboy and Demetrio. Also check out a different podcast called "The Great Debate over Medical Liability Reform" available here.

Lawsuits for deaths in hospital waiting rooms

A few weeks ago, a right wing group opposing health reform organized a protest in Congress during which protestors were to go in and pretend to die while waiting for health services. (Go here for a report on this.) This notion is based on the argument that health care would result in waiting lines so long that people would die because they would not get treatment in time.... as if that was not happening now! About Lawsuits.com is reporting today that in the last few weeks three new hospital malpractice lawsuits have been filed against facilities that allegedly failed to treat patients in a timely manner, contributing to the deaths of one adult woman and two newborns. Two of the lawsuits were filed against University Medical Center (UMC) in Las Vegas by women who claim that the hospital failed to treat them while they were in labor, resulting in the deaths of their newborn children. A third emergency room lawsuit was filed in late November against San Mateo County, California by the daughter of a woman who says her mother was left to die in a county-run hospital waiting room. Go here for the full story. A study published last November in the Archives of Internal Medicine indicates that problems with delays in emergency room treatment are worsening across the country and these kinds of problems, including waiting room deaths, are examples of why we need more health care reform, not less.

More on the ruling regarding tasers

A couple of days ago I reported that the 9th Circuit Court of Appeals ruled that an officer from the Coronado, Calif. Police Department wasn’t immune to a damages lawsuit cased by a taser. I pointed out that Professor Jonathan Turley has chronicled many reported cases of questionable use of tasers. Yesterday, he published his own comment to the ruling (available here.) For another comment, go to the blog Simple Justice, here.

Trying to catch up!

For the past few weeks I was pretty busy preparing exams, grading exams and enjoying the holidays, so I was not very good at keeping the blog up to date. I am now back in business and I will try to catch up over the next few days....

Georgia Legislators Ready to Revise Tort Reform Provisions if Needed

The TortsProf Blog is reporting that there are two challenges to Georgia tort reform (originally approved in 2005) pending before the state supreme court. In September, the Court heard arguments in a challenge to the cap on pain and suffering in med mal cases and in October it considered a challenge to a provision that created an enhanced burden of proof in emergency room cases. Apparently, Republican legislators have made it clear that if the court finds either provision unconstitutional, they will move to rewrite it and keep it intact. The Atlanta Business Chronicle has the story here. Thanks to Chris Robinette of the TortsProf Blog for the information and the link to the story.

New reports conclude FDA is inefficient... again

On several occasions I have posted that recent reports have found the FDA is not an efficient or reliable agency. See here, here and here. Now there are two new studies that are highly critical of the way the FDA approves medical devices for human use, saying that the agency requires too few clinical trials, and that often the data in those trials is suspect. Go here for more on the story and links to more information.

"Vicarious liability" for conduct of a dog?

If you live in Wisconsin and allow someone with a dog to live with you, you may well be liable for the dog's bite. The Wisconsin Supreme Court held recently that the homeowner was the "harborer" or "keeper" of the dog (as those terms are used in a specific statute) and for that reason reversed a summary judgment that had been entered in his favor by the lower court. The opinion is available here. This sounds a little bit like vicarious liability because it looks like the possible liability is based on the relationship between the defendant (homeowner) and the owner of the dog, rather than on the ownership of the dog. Thanks to the Legal Profession Blog for the information.