More on the article that debunks the argument that tort reform is needed to prevent doctor migration

A few days ago I wrote about a new article that debunks the argument by tort reformers that medical malpractice liability has a direct effect on physician migration. Today, the New York Personal Injury Law Blog offers a more detailed comment on it here.  

Court of Appeals for the First Circuit issues controversial opinion in generic drug case

Last week, the Court of Appeals for the First Circuit issued an opinion in a case called Bartlett v. v. Mutual Pharmaceutical Co. recognizing a design defect claim in a case involving a generic drug.  The defendants argued the claim was preempted.  You can read the full opinion here.

What makes the case controversial is the question of whether the decision is contrary to the holding in PLIVA v Mensing, the US Supreme Court decision holding that inadequate warnings cases against generic drug manufacturers are preempted because federal law requires the warnings for generic drugs to be identical to those of branded drugs.  Not surprisingly, the Drug and Device blog has taken the position that the opinion is simply wrong (although they use stronger language).  You can read their comments here and here.

For previous posts on Mensing and related issues go here, here, here, here, here, here, here, here, here, and here.

Judge gives preliminary approval to settlement in BP oil spill case

The TortsProf blog is reporting that the judge in the BP oil spill case has given preliminary approval to a settlement.  Go here for the full story.

Article debunks the myth that tort reform is needed to prevent doctors from leaving

A new article by David Hyman (Illinois), Charles Silver (Texas), and Bernard Black (Northwestern) written an article that challenges the common argument by tort reformers that medical malpractice liability has a direct effect on physician migration.  In their article, the authors examine the evidence available in the state of Texas and conclude that

"[b]efore Texas adopted tort reform in 2003, proponents claimed that physicians were deserting Texas in droves. After tort reform was enacted, proponents claimed there had been a dramatic increase in physicians moving to Texas due to the improved liability climate. We find no evidence to support either claim. Physician supply was not measurably stunted prior to reform, and did not measurably improve after reform. This is true whether one looks at all patient care physicians in Texas or at high-malpractice-risk specialties"

 You can read the article here.

Thanks to TortsProf blog for the link.

Comment on whether the FDA is doing enough to protect the public

The PopTort is reporting on a number of studies that support the conclusion that the FDA isn’t protecting the public from safety problems that arise once a drug is on the market.  This really should not be surprising to anyone, though, given how under-resourced the FDA is, how lax our regulatory laws are, and how conflicts of interest routinely interfere with this agency’s safety role. Go here to read the comment, which cites and links to studies by the Institute of Medicine, the Journal of the American Medical Association and an article in the New York Times.

Maryland Court holds that pitbulls have inherent propensity to attack; changes the elements of cause of action

A couple of weeks ago, the Court of Appeals of Maryland issued an interesting opinion on the elements of a strict liability claim in a case for damages caused by a pit bull.

As you probably know, according to traditional principles of strict liability, the owner of a domesticated animal can be strictly liable for the damages it causes if the plaintiff shows that the owner had knowledge of the dangerous propensities of the animal.  Typically, that evidence would be that the defendant knew the dog acted overly aggressively toward people, that it tried to attack people or, obviously, that it had bitten people in the past.  Lacking that evidence, the defendant would only be liable if the plaintiff could show negligence.

In this new case, the Maryland Court of Appeals held that if the dog is a pit bull or a pit bull mix, the plaintiff only needed to show that the defendant knew the animal was a pit bull or a pit bull mix.  In a way, thus, the court found that by their very nature all pit bulls and pit bull mix dogs have dangerous propensities.

For this reason, the owner of a pit bull that causes an injury can be strictly liable even if the dog has never before shown any aggressive behavior of any kind.  Three judges dissented, arguing, among other things, that the majority opinion should not have ruled as it did when the parties had not offered expert evidence on the question of the inherent dangerous propensities of pit bulls. 

The case is called Tracey v. Solesky and you can read the full opinion here.

UPDATE (August 2012): On a motion to reconsider the court has amended the opinion to eliminate the references to "pit bull mixes."  The ruling now applies only to pure pit bulls.

UPDATE (December 2012):  The Solesky family has released the tape of the 911 call in this case.  Go here for more on the story and to listen to the tape.

UPDATE (Summer 2013):  After a long process, the attempt by the Maryland legislature to enact a statute to override the holding in Tracey has failed. Both the House and the Senate approved statutes but they did not agree on the approach to use to deal with the issue.  A committee was formed to reconcile the bills, but the resulting compromise bill did not have the votes to pass.

UPDATE (April 2014):  Governor signs new bill into law.  Bill abrogates holding in Tracey v. Solesky.  Now there are three different approaches to the issues of injuries caused by dogs.  If the injury is caused by a dog while "at large," the plaintiff can bring a claim under strict liability principles without having to show knowledge of dangerous propensities.  In cases that do not involve a dog "at large," if the claim is against the owner, the attack creates a rebuttable presumption of knowledge of dangerous propensities. If the case is against the landlord of the owner of the dog, the plaintiff has to show knowledge of the dog's dangerous propensities, as well as knowledge that the dog was on the leased property and that the landlord had the authority to remove the dog or to have the dog removed from the property.

Dentist drops tool, patient swallows it, patient sues... why doesn't dentist settle?

Professor Jonathan Turley wonders (here) why a dentist whose negligent conduct obviously caused an injury would not settle the case quickly...

Update on HR 5, the federal malpractice reform bill

The PopTort has an update on the status of HR 5, the federal malpractice reform bill here. 

My first impressions of the bill, which has been around for over a year now, can be found here.  Since then, I have posted comments and updates on the bill here, here, here, here, here, here, here, here, here, here and here.

Comment on Padilla v. Yoo

Yesterday I reported (here) that the Court of Appeals for the 9th Circuit issued an opinion in which it held that John Yoo, one of the legal architects of the Bush administration policy on torture, is entitled to qualified immunity because - according the the opinion - "it was not clearly established in 2001-03 that the treatment to which Padilla says he was subjected amounted to torture.”

Today, over at PrawfsBlog, the author of an amicus brief in the case on behalf of legal ethics scholars in support of Padilla has posted a brief comment on the case arguing that the court's analysis missed the mark. He also explains that "[a]mong Yoo's objections to Padilla's suit was his view that the suit amounted to a complaint that he gave “incorrect” or “erroneous” legal advice as a government attorney.   The amicus brief responded directly to this contention by arguing that “Yoo did not merely give ‘wrong’ advice in performing customary legal duties," rather "he acted outside of his legal role altogether by participating directly in the formulation of policy that gave rise to the deprivation of [Padilla’s] constitutional rights and by creating legal cover for unlawful detention and interrogation policies.”

You can read the full comment here.

Court of Appeals holds John Yoo is immune from liability for his role in justifying torture

The Court of Appeals for the Ninth Circuit has just issued an opinion holding that John Yoo is immune from a lawsuit by a U.S. citizen who said he was tortured while detained in a military brig.  Yoo, as I am sure you remember, was one of the lawyers who designed the arguments used by the Bush administration to support the legality of its use of torture.  The opinion of the court is available here.

 For more on the story go to the blog of the Supreme Court, The Wall Street Journal law blog, Legal Ethics Forum and the New York Times.

A more interesting question that is not addressed by this case, though, is whether Yoo's conduct was unethical.  There has been a lot of discussion (and there is a lot of literature about it out there) already.

For a great discussion of the story on the role of the attorneys in the Bush administration you should watch the show "Cheney's Law" which is available here, particularly starting with chapter 4, which starts about 25 minutes into the show.  Here are chapters 4, 5, 6 and 7 :

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.