- Radiologist Saurabh Jha had me on his popular podcast a while back to discuss the history of malpractice law. Now he’s written a substantial piece (link to article, gated) on my book The Litigation Explosion (1991) for the Journal of the American College of Radiology which has in turn touched off a discussion on professional Twitter;
- Certificate-of-need (CON) laws in 35 states allow incumbent firms to raise legal objections to entry by new competitors. Bad idea generally, and especially when the service involved is ambulances [John Stossel; Cato Daily Podcast with Caleb Brown and Larry Salzman of the Pacific Legal Foundation, which is suing to challenge Kentucky law]
- Cato’s Robert A. Levy discusses some of the common law background of tort and contract, including medical misadventure [The Bob Harden Show, radio]
- Trial lawyers trying yet again to lift California MICRA limits on medical malpractice recoveries [AP/KTLA via TortsProf] “Pennsylvania high court tosses seven-year medical malpractice limit” [Harris Meyer, Modern HealthCare via TortsProf]
- Politicized social justice curriculum reaches med school [AnneMarie Schieber, Martin Center]
- No repeal of Feres doctrine, but administrative claim fund could bypass: “Military medical malpractice victims could see payouts from Defense Department under new compromise” [Leo Shane III, Military Times]
- Wild scandal of Malibu rehab-center guru charged with alleged $176 million insurance fraud has roots in the artificial conditions imposed by federal law [Chris Edwards, Cato]
- “A new Trump executive order on kidneys could save thousands of lives” [Dylan Matthews/Vox via Alex Tabarrok]
- Advocates have long campaigned to change the law so as to allow medical malpractice suits by service members against the U.S. military. Are they getting close? [Roxana Tiron and Travis J. Tritten, Bloomberg Law; James Clark/Task & Purpose] New study of defensive medicine, extrapolated from data reflecting military immunity, finds “suggestive evidence that liability immunity reduces inpatient spending by 5 percent with no measurable negative effect on patient outcomes.” [Michael Frakes and Jonathan Gruber, American Economic Journal via Scott Sumner]
- Meanwhile, said to be new record: Baltimore jury awards $229 million in claim of obstetric brain injury that Johns Hopkins says is “not supported by the evidence” [Tim Prudente, Baltimore Sun via Saurabh Jha (“My guess is that this verdict won’t reduce the frequency of C-sections in the US”)] “Best & Worst States for Doctors” [John S. Kiernan, WalletHub]
- It might not always improve outcomes in a hard science like medicine to rethink every issue through an “equity lens.” Case in point: differing male and female rates of heart disease [Anish Koka, Quillette]
- “Medical Malpractice Reform: What Works and What Doesn’t” [W. Kip Viscusi, forthcoming Denver Law Review]
- Feds arrest almost the entire elected leadership of Crystal City, Texas, population 7,000, in corruption probe [New York Daily News] In 2005 we noted, emerging from that little town where everyone seemed to know everyone else, a highly curious $31 million verdict against Ford Motor;
- Crane collapse chasing in NYC: Eric Turkewitz shines a spotlight on the ethical debris;
- “The Eight Weirdest People, Places and Things Donald Trump Has Sued” [Daily Caller slideshow, I get a mention]
- A trademark tale: departing Yosemite concessionaire can take historic place names when it goes [David Post, Coyote with a somewhat different view]
- “Legal action against soldiers ‘could undermine Britain on the battlefield’ warns chief of general staff” [Con Coughlin, Telegraph]
- Human subjects research/Institutional Review Boards: “The Obama administration is quietly trying to make it harder to study public officials” [Michelle Hackman, Vox]
- Comedians, start your engines: lawyer who sued over intimate male enhancement promotion now sues over dating service promotion [New Jersey Civil Justice Institute]
Two regional directors at the Veterans Administration are being demoted, but have thus far not been dismissed, after being “accused of receiving tens of thousands of dollars in questionable relocation bonuses.” And with the reassigned executives still on its payroll, the VA may have to — you guessed it — pay relocation fees for the two. [Military Times]
Of the vast edifice of federal laws that now control the terms of private employment, one of the less discussed is a 1994 enactment called the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), under which employees who participate in the military are made a protected class in private employment. Writes Jon Hyman: “An individual claiming discrimination under USERRA need only prove that military service was a ‘motivating factor’ in the adverse action — which may rely on circumstantial evidence (including suspicious timing, statements, or behavior) that creates a ‘convincing mosaic’ from which a reasonable jury could infer discriminatory motive.”
Hyman discusses the recent case of Arroyo v. Volvo Group North America, in which managers expressed admiration but also “frustration” at an employee’s resort to “frequent military leave” in situations where, they believed, her army reserve obligations would have been consistent with taking less time off the job. Eventually it dismissed her on attendance grounds.
Last month the Seventh Circuit overturned a lower court’s dismissal of the case, citing, as “anti-military animus,” managers’ concerns about what they perceived as her overuse of the leave, and its disruptive effects on work. “Animus” as a word here, of course, hardly carries the connotation of prejudice, spite, or hostility that frequently attach to that word. It is more like an confusing leftover from the days when federal employment law made it its chief business to prohibit invidious discrimination, rather than, as now, to enforce affirmative accommodation.
I’ve seen a hundred wacky and extreme papers out of legal academia, and wrote about more than one in Schools for Misrule, but this one, published by the National Security Law Journal at George Mason (whose editor-in-chief has already repudiated it) stands out. You can read the whole story at The Guardian, including links to some of the controversies that have followed author William Bradford, but it might make more sense to hand the gavel over to distinguished legal scholar and Prof. Jeremy Rabkin in his four-page rebuttal:
When an article proposes to arrest law professors and bomb law schools and nearby TV studios, it’s not engaging in “controversy,” but slipping into an alternate universe. It’s not “discomforting.” It is bonkers. The journal could not reasonably have expected readers to “respond” – unless to ask, “Are you out of your minds?”
Monday update: Bradford resigns.
I joined host Ray Dunaway yesterday on Hartford’s WTIC 1080 to discuss the OPM hack (earlier on which) and schemes to extend federal regulatory control over private data security. You can listen here.
And from yesterday’s House hearing on the subject: “OPM chief ducks blame for data breach, pins it on ‘whole of government'” [Washington Examiner]
“…Still Say We Should Give Them Cybersecurity Powers” The spectacular breach of Office of Personnel Management records, which exposed to China-based hackers information on every federal employee as well as the obviously sensitive contents of security clearance applications, was revealed when a vendor of security services was allowed to do a sales presentation on the federal network in question and discovered the already-exploited vulnerability. But of course the feds will be totally competent in prescribing practice to the private sector, right? [Mike Masnick, TechDirt] Earlier on regulation of private-sector electronic security here, here, etc. Related: W$J (DHS couldn’t move to secure networks without engaging in collective bargaining first). Related: pending bills “authorize government to impose data retention mandate on private businesses”
“So why is Petraeus getting off with a misdemeanor and a probable probationary sentence? Two reasons: money and power.” [Popehat]
Last year I wrote a piece for Jurist on the Wartime Suspension of Limitations Act (WSLA). Now the False Claims Act case of Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter is before the Supreme Court, which heard oral argument on Tuesday. [transcript; Ronald Mann/SCOTUSBlog; WSJ editorial; Courthouse News; earlier here and here]