Wednesday, November 24, 2010

Patient Safety Is Not Improving in Hospitals, Study Finds -

This 1999 study by the Institute of Medicine broke the taboo on  systematic study of medical error

"Efforts to make hospitals safer for patients are falling short, researchers report in the first large study in a decade to analyze harm from medical care and to track it over time.
The study, conducted from 2002 to 2007 in 10 North Carolina hospitals, found that harm to patients was common and that number of incidents did not decrease over time. The most common problems were complications from procedures or drugs and hospital-acquired infections."
Patient Safety Is Not Improving in Hospitals, Study Finds -

The report of the study published in the New England Journal of Medicine is HERE

In BP Oil Spill, Final Settlement Phase Begins -

In BP Oil Spill, Final Settlement Phase Begins -

Friday, November 19, 2010

Ground Zero Workers Agree to Settle Health Lawsuits -

Ground Zero Workers Agree to Settle Health Lawsuits -

The  buzz is about the big settlement and how the plaintiffs' lawyers' fees were cut, and how the lawyers had to eat the cost of borrowing the money (contrary to their contracts with their clients).  

Nobody thinks it was illegal to borrow the money and charge the costs against the recovery - Judge Hellerstein just felt he had the authority to exercise unprecedented control.  And did.  I am sympathetic to the "quasi class action" rationale that Judge Weinstein developed in the Zyprexa cases. 467 F. Supp. 2d 256 (December 5, 2006) which Judge Hellerstein adopted to force concessions - mainly by plaintiffs lawyers.

But little ink is spilled by that huge driver of litigation costs: the all-out defense which included 1,200 depositions, and a quarter of the $1 billion fund the U.S. put up.   See my Will the Post 9/11 World be a Post-Tort World?, Penn State Law Review (2007)

Another story that is missed is how low these cases settled.   As the New York Post! pointed out:

At stake is a $1 billion taxpayer fund and as much as $3 billion in liability-insurance coverage, which includes the Port Authority's $600 million and policies held by WTC contractors.
The WTC Captive Insurance Co., a nonprofit governed by Mayor Bloomberg, has managed a $1 billion fund. The money was awarded by Congress to pay claims stemming from the Ground Zero cleanup.
The fund spent $275 million between 2004 and Dec. 31, 2009, on defense lawyers and administrative costs, records obtained by The Post show.
 So contrary to the tale so many tell - the defense lawyers drove up costs - and took no cut.  the plaintiffs' lawyers took risk - and got cut.  And if it was a billion dollar fund and the plaintiffs split $615 million, the defense took $275 million - where is the other $110 million?  Did it go to Medicare and Medicaid liens?  That I need to investigate.

Wednesday, November 10, 2010

Fosamax Lawsuits Question Wide Use of Osteoporosis Drugs -

Fosamax Lawsuits Question Wide Use of Osteoporosis Drugs -

Graphic warnings: the FDA's proposed new labels on cigarette packs

HERE are the new graphic warnings.  Ey-catching.  But are they effective?  Adequate?  Compared ot other countries?  Look HERE.
Until 2009 when President Obama signed the Family Smoking Prevention and Tobacco Control Act of 2009 that enabled some FDA regulation the only permitted warnings on cigarettes and in cigarette advertising were those prescribed by statute.  The original warning  was set in the Public Health Cigarette Smoking Act of 1969,  15 U. S. C. §§ 1331-134 which provided: 


The 1969 Act of Congress also provided
"No requirement or prohibition based on smoking and health shall be imposed under State law with respect  to the advertising or promotion of any cigarettes the packages of which are [lawfully] labeled."

In 1992 in Cippollone v. Liggett The Supreme Court held that  state product liability could not permit a jury to find that warning inadequate because such a verdict would be a  "requirement" beyond what Congress specified.  Thus all tobacco claims - except for those based on fraud - were preempted by federal law.  No "failure to warn" claims were permitted.

If state tort suits had been permitted for "failure to warn" what obstacles would plaintiffs have faced?

Tuesday, November 2, 2010

"Tort Law and the New Economics of Insurance" by Jay Feinman

Jay Feinman, a Rutgers-Camden law professor is one of the clearest thinkers on the law of torts.  Here he opines on the changes in the insurance business that threaten its role in providing economic security.                                                                                                                    "The economics of insurance creates this potential for opportunism. Every dollar a company does not pay out in claims is a dollar it keeps in profit. Outright denials, reduction of the amounts paid, and using litigation to diminish and deter claims potentially provides a greater benefit to a company than it loses in disappointed customers and a negative reputational effect....
TortsProf Blog: Guest Blogger Jay Feinman: "Tort Law and the New Economics of Insurance"