Illinois court of appeals reaffirms state's (unfair) approach to legal malpractice

In the past, I have criticized the fact that Illinois has adopted a statute of repose for legal malpractice cases.  But that is just the beginning of the problem.  Not only is there a statute of repose, it is very short and it can't be tolled.

Now, about two weeks ago, in a case called Lamet v Levine, available here, the Illinois court of appeals has reaffirmed the unfairness of the use of this type of statute.  The court explained that the statute of repose begins to run not when the negligent act is discovered by the client but when the negligent act occurred.  In other words, the statute of repose in a legal malpractice case begins to run as soon as an event giving rise to the malpractice claim occurs, regardless of whether plaintiff knows of the attorney's conduct or whether the plaintiff's injury has been realized.  Also, the court followed the consistently held view in the state that the statute of repose is not tolled merely by the continuation of the attorney-client relationship.

NY Times article on medical malpractice law

About a week ago, the NY Times published a short article on medical malpractice that is worth noting, even though, in the end it does not say anything that anyone paying attention to the subject didn't know already.  For much more on medical malpractice theory and practice go to the medical malpractice section of this blog (scroll the topics on the right hand side and click on it).  Here are some key sections of the article (you can read the full article here):

Only in Albany can a bill pass the Assembly with overwhelming bipartisan support, be sponsored by a majority of the State Senate, be endorsed by Gov. Andrew M. Cuomo, and yet never come up for a final vote. That happened to Lavern’s Law, a bill that would have helped grievously injured victims of medical malpractice have their day in court. This summer, the Senate majority leader, John J. Flanagan, a Republican, wouldn’t allow the bill to be voted on, effectively killing it.

....  Hospitals are dangerous places. In 1999 the Institute of Medicine at the National Academy of Sciences published a study, “To Err is Human,” which concluded that at least 44,000 patients were killed (and many more injured) in hospitals each year because of medical errors. By 2011, a study in the journal HealthAffairs estimated that the number of avoidable deaths was probably 10 times higher. Hundreds of thousands more patients are seriously injured through negligence. Doctors and hospitals are doing a poor job of policing themselves, yet they have been successful at keeping anyone else from doing it.

The opposition to Lavern’s Law came from the hospital and health care lobby, apparently concerned that the bill might result in more medical malpractice lawsuits. It very well might, but the actual number would probably be minuscule: Of the hundreds of possible cases we evaluate every year, only a handful are outside the statute of limitations. ...

Surprisingly, despite the frequency of avoidable errors, very few wind up as medical malpractice lawsuits. A 2013 study concluded that about 1 percent of medical errors resulted in a claim.

And even if a victim wins a medical malpractice lawsuit, awards are generally modest. Thirty-three states restrict the amount of compensation for the pain and suffering victims have endured. According to the Department of Justice, the median award by juries is $400,000; in bench trials, where the judge also serves as the jury, the median award is $631,000.

Battery during football game or consent?

After just one day into the high school and college football season, we now have several examples of cheap shots and concussions to write about.  However, the most disturbing is the play in the video below which shows two players in a high school team attack a referee. The incident took place during a game at Marble Falls High School, northwest of Austin. The attacking players are from John Jay High, in San Antonio's large Northside Independent School District. Their team was losing and the referee had called at least one penalty on the team before the two players apparently decided to take matters into their own hands.



As any first semester law student knows, there are some cases that discuss the fine line between battery and contact within the customs of a sport.  In negligence language, it is often said that players assume the inherent risks of the sport.  For the same reason, so do the umpires and refs.  I don't think anyone would dispute that baseball umpires assume the risk of getting hit by balls, having runners run into them and getting yelled at or criticized by players.  These are known risks.  In football, some of the refs have to be positioned close to the plays and it is not uncommon to be pushed or run over.

However, I don't think that refs assume the risk of being intentionally attacked from behind by players.  The conduct of the players involved in this video is inexcusable.  They should be expelled from the team and if their conduct was suggested or even condoned by their coaches, they (the coaches) should be fired.  There is no place for this in sports.  Knowing what we know about concussions in football, this vicious attack on the ref could have caused him serious injury.

The Marble Falls Police Department is conducting an investigation and I will try to update this post when I hear more.

UPDATE (Sept. 7, 2015):  ESPN is reporting that the two players who attacked the ref have been suspended from the team and from school pending the investigation.  It also reported that the Austin Football Officials Association wants to make sure the two players are not allowed to play football again.  I would support that decision. Slate also has the story here.  NPR has an update here.

UPDATE (Sept. 8):  Slate is now reporting two new pieces of information:  the students are claiming the ref used a racial slur toward them and the  school district it is treating the incident as an assault on a school official, an offense that could lead to expulsion. 

Court dismisses complaint for wrongful birth against sperm bank in case in which mother claimed damages because her child was not white

Just about a year ago, I wrote about a complaint for the "wrongful birth" of a mixed race child filed in Chicago by a white mother against a sperm bank because the defendant mistakenly provided her with sperm from an African-American donor.  I wrote my comments on the case here, here and here and more recently published an article on the subject (available here). I won't repeat all my arguments now - please read the previous comments if you are interested.  Suffice it to say I argued strongly that the case should be dismissed.

Given my position, I am pleased to report today that the trial judge has, in fact, dismissed the complaint.  There is no question in my mind that this was the correct decision.  However, I have not had a chance to see the actual order, and every report I have seen repeats something very odd that caught my eye, something along the lines of  "the judge rejected both claims but said that the plaintiff (the mother) could refile the suit as a “negligence claim...”

This makes absolutely no sense to me.  The complaint included two claims, one for breach of warranty under the Illinois Blood and Organ Transaction Liability Act and one for wrongful birth.  The purpose of the Act is to prevent plaintiffs from filing strict liability actions against certain defendants.  Thus, the actions that can be filed under the act, if any, would be based on negligence.

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," or, in other words, that the defendant was not negligent.  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 than a normal negligence claim. The claim "for breach of warranty" under the statute would only be valid, and survive a motion to dismiss, to the extent the plaintiff can support a claim for negligence.

For this reason, re-filing the claim as a negligence claim would be essentially the same thing as filing the original complaint, which the judge already dismissed!  And if it is re-filed, what damages would be claimed?  It would have to be the out of pocket economic damages (which have been reimbursed already, and therefore for which there is no claim) and the emotional distress due to the birth of the child, which is another way of arguing the same thing as the wrongful birth claim.

The wrongful birth claim, in turn, is, by definition, a negligence claim.  The label "wrongful birth" refers to the type of injury used as a basis for the claim, not as a reference to the theory of liability upon which the claim is based.  The theory of liability is negligence.  Clearly it is not intent nor strict liability, so what else could it be?

Thus, again, re-filing as a negligence claim would mean refiling the same case!

Why would the judge allow the plaintiff to re-file a claim that the judge has decided has no merit, when re-filing it would only mean the plaintiff will re-argue the same claim again?   It makes no sense. 

Like I said, I have not seen the actual court order, and maybe the newspapers are wrong in their reporting, but I have seen the same report in the Washington Post and the Chicago Tribune. 

FDA cannot prohibit the promotion of truthful, off-label uses

A federal judge has issued a preliminary injunction preventing the FDA from enforcing key regulations designed to prevent drug companies from promoting their products “off-label” uses, which have not been established as safe and effective by the agency. AboutLawsuits has more on the story here. Trial News adds that "Plaintiff attorneys are concerned about what this ruling means for consumer safety." Go here to read the full story.

New report on food safety

The American Association for Justice has just published a new report on issues related to food safety including a discussion of instances in which food companies knowingly let Americans eat food contaminated with deadly pathogens. For more on the story go here.  To get copies of the reports by the AAJ (including reports on auto safety, products liability, the drug industry and tort reform) go here.

Trial set to begin against DuPont for injuries caused by water pollution in a huge case you probably have never heard of

Back in 2008, the PopTort reported on a case brought by 80,000 people against DuPont USA alleging that it had knowingly “polluted water supplies of two West Virginia and four Ohio water districts with a chemical used to manufacture Teflon, called C-8,” and tried to cover it up. That case was settled but it did not include a settlement for individual personal injuries caused by the chemical in the water.  Since then, thanks to an epidemiological study that showed that a “probable link exists” between the chemical and at least 6 diseases suffered at unusually high rates by the residents in the affected areas, a claim for personal injuries was filed by 3,500 individual plaintiffs. The trial on the first of these, starts later this week. Go here for more information and links on the story.

GM ignition switch defects tied to 124 deaths, 275 injuries

Attorney Kenneth Feinberg’s office has completed its review of all 4,000-plus compensation claims related to General Motors’ faulty ignition switches which prompted the recall of more than 2.6 million vehicles last year and the conclusion is that the defects have been linked to 124 deaths and 275 injuries.  Go here for the full story.

Thanks to Torts Today for the update.

Tony Stewart Sued For Wrongful Death By Family Of Kevin Ward, Jr.

You may remember a race car accident last year in which a driver got out of his car and started walking on the racetrack yelling at the driver that hit him. That driver, Tony Stewart, then hit the first driver, Kevin Ward, who later died from his injuries. ESPN is now reporting that Kevin Ward's family has filed a wrongful death lawsuit against Tony Stewart.

It will be interesting to see how the court addresses the claim because it raises several issues.  First of all, drivers who engage in race car driving assume the inherent risks of the sport, one of which is death.  However, the plaintiffs will argue that the plaintiff does not assume the risk of having a car driven into him the way Stewart did in this instance.  In reply, Stewart will probably argue that Ward was contributorily negligent in walking on the race track as the race was ongoing.  Depending on the rule in the jurisdiction, this argument may be enough to win the case for the defendant.

According to the lawsuit, Stewart gunned the throttle of his car to kick the tail end out as he drove by Ward, unlike the other cars that had passed through that section.  “Stewart could have easily acted reasonably and with prudence to avoid striking Ward, just as all other drivers had done as they passed Ward during the yellow caution flag,” reads the lawsuit. “Stewart acted with disregard for Ward’s life and safety by driving his vehicle in a manner that would terrorize Ward ...”  In other words, the plaintiffs seem to be arguing that Stewart purposely tried to scare Ward.  If that is the case, I wonder if they also included a count for battery in the complaint.

Here is a video of the accident itself:

GM Settlement Fund Offers $1 Million Each in 124 Ingition Switch Death Claims

Details here.