Podcast on whether there can (or should) be liability for texting someone who is driving

The New Jersey State Appeals Court recently ruled that texting someone while that person is driving may cause the sender to be liable if an accident occurs. The Legal Talk Network has a podcast discussing the issue here.

Report on medical malpractice at the VA

The Dayton Daily News has a story on malpractice at the Department of Veterans Affairs.  The article notes that VA health care providers are  immune from lawsuits and details instances of bonuses given to providers who had made medical errors or administrators despite poor records at their facilities.  The article also quotes attorneys arguing that an early disclosure requirement and limits on attorneys' fees (20% on settlements and 25% on awards) reduce the amount of claims brought against the VA.   VA med mal claims are paid from a federal treasury fund set aside for federal claims, not the VA budget.  The article includes poignant stories by individual victims of malpractice.

Thanks to the TortsProf blog for the link.

Tort reform country music song

Go here to listen to Tort Reform - The Song.    It turns out it is not the only tort reform song.  Here is another one.

And while you are at it... here is a song about vicariously liability.



Thanks to Day on Torts for the link to the first song.

Parental immunity?

National Sandwich Day; who knew?

Apparently, November 3 was "national sandwich day" and I didn't know.  But, better late than never, in celebration, I will link to a story I posted way back in November of 2009 on the correct way to eat a sandwich.  

And as a bonus, I will link to the famous "is a burrito a sandwich?" controversy, here and here.

New case filed in NY alleges death was caused by Red Bull caffeinated drink

As you probably know by now, there has been a good deal of discussion about whether it is possible for caffeinated drinks to contribute to, or cause, someone's death.  (For my posts - and more links - on the issue go here, here, here, here, here, here, here and here.)  Several cases have been filed over the issue, all of them involving young victims.  Until now.  The family of a 33 year old New York man has filed a wrongful death lawsuit against the makers of Red Bull, claiming that side effects of the energy drink caused him to suffer a fatal heart attack. AboutLawsuits has a summary of the complaint and some background information here.

For a better and more insightful comment you can read Max Kennerly's post here.   He provides a detailed review of the complaint and the issues it raises.   He concludes the design defect claim is weak but the warning one is a bit stronger.

One 250 ml can of Red Bull Energy Drink contains 80mg of caffeine, about the same amount of caffeine as in a cup of coffee. The defendant, no doubt, will use this fact to argue the product is not any more dangerous than coffee.  The problem is that Red Bull is marketed differently than coffee.  Kennerly's post discusses some of the marketing in Red Bull's own website and links to at least one scientific study that explores he consequences of the consumption of Red Bull.

As if that wasn't enough, though, there is another interesting aspect to the complaint.  The complaint asked for $85 million in damages, when the law in New York bans requesting for specific amounts of money in complaints.  As Eric Turkewitz argues when a lawyer asks for a specific amount in a complaint "[e]ither the lawyer is ignorant of the law or the lawyer is deliberately violating it in the hunt for headlines. It’s your call as to which is worse, ignorance or a potential ethics issue."

Eric's post is worth reading here.  He goes one to argue, correctly in my view, that the emphasis on the amount of the claim detracts from the seriousness of the issue.  The story now becomes one about how much money the plaintiff's lawyer wants instead of one about whether a product is in fact dangerous or whether the defendant should change the way it markets the product.

Forbes article on medical malpractice

Here is a link to a new article in Forbes on medical malpractice. It mentions many issues that anyone who has been paying attention to the issues knows already but that it doesn't hurt to repeat.  (For more on those, click on the medical malpractice section of this blog and scroll down for the many posts on reports, studies and other sources that disprove the myths advanced by tort reformers).  The article is long; the section on medical malpractice reform starts on page 3.

For example, the article points out that the cost of defending malpractice claims and compensating victims is a minimal part of overall healthcare costs, something every report on the subject has confirmed.  The article also reminds us that only a small percentage of the possible legitimate claims result in filed complaints, that so-called “defensive medicine” is one big myth, that state tort laws have no impact on where doctors decide to practice and very little, if any, impact on doctors’ insurance rates.

There are two other points that merit mentioning.  The first one is also a point of constant contention in medical malpractice reform discussions: whether there is a problem with "frivolous lawsuits."  The answer, depends, of course, on how you define frivolous.  Tort reformers tend to define as frivolous any case that is won by the defendants or dropped by the plaintiffs.  According to some reports doctors and hospitals win approximately 11% of all med-mal lawsuits filed and about 46% of the cases are dropped by the plaintiffs before trial. Does this suggest an abundance of frivolous cases?

The other interesting point in the article is something I had not heard before.  The author argues that the shortening of the statute of limitations in some states (at urging of tort reform proponents) has resulted in more doctors getting sued. His reasoning is this: "as a way to stop the clock and preserve their rights, plaintiffs often include every conceivably liable doctor in the initial suit. But after more thorough investigation and discovery, plaintiffs recognize that many named parties did nothing wrong — and they drop the suit. In the meantime, the named doctors suffer the indignity and anxiety of having been included as defendants."  According to this reasoning, allowing plaintiffs lawyers more time to prepare the cases would result in a more accurate determination of who should be included as defendants in the case.

I guess, the argument makes sense, but it is not necessarily true in every case.  In many cases, it is not until discovery (after the case has been filed) that it can really be determined that a certain defendant should not be considered a possible tortfeasor.

The article also strongly criticizes the American College of Obstetrics and Gynecology, which it alleges, is an obstacle to patient safety.

The PopTort offers its own view of the article here.

Verdict in Topamax case

A Philadelphia jury has ordered Johnson & Johnson to pay more than $4 million in damages for birth defects from Topamax, an anti-seizure medication that allegedly caused a child to develop cleft lip and other malformations as a result exposure before birth. Go here for more on the story.

Medical malpractice insurer opposes med mal reform proposal in Tennessee

Day on Torts is reporting that a group of healthcare administrators in Georgia is pushing for a new law which would move medical malpractice claims out of the courts and into an administrative no-fault system for awarding limited compensation for victims of medical malpractice. Those supporting the legislation say that the new system, which would be similar to a worker's compensation system, would reduce healthcare costs.  Aside from the fact that reports have always shown a minimal (if any) correlation between litigation costs and health care costs (see here for more on that issue), Day on Torts reports that medical malpractice insurer MAG Mutual opposes the proposal because it claims that the bill would result in more claims, higher costs, more reporting, higher taxes and more bureaucracy.  Day on Torts makes a good argument in support of that view here.

Another comment on the NFL settlement

I previously posted some news and comments on the NFL settlement on the lawsuit filed by former football players and their families related to concussion injuries.  See here and here, for example.  Here is a link to a more recent comment which is very critical of the league and which laments the negative consequences of the settlement.  Here is an example of what the authors want to say:

NFL Commissioner Roger Goodell ... disingenuous portrayal of the league's concern about the health and safety of the players is incredible at best. His assertion that the league has been forthcoming with medical information as it has become available, defies credulity. Goodell's unbelievable contention that the league has acted in good faith and has not misled the players, flies in the face of reality. 

Further, they argue that the NFL promulgated reports deliberately designed to mislead the players and the public and that the settlement "was indeed a major victory for the league, but a travesty for the players."  You can read the full comment here.