Trends In Litigation Research Articles

Access to Environmental Justice in Oil Pollution and Gas Flaring Cases as a Human Right Issue in Nigeria

Nigeria, the most populous nation in black Africa, rich in oil and gas reserves but underdeveloped has her own share of environmental problems which justify local and international attention. In terms of Nigeria’s environmental problems, the four broad issues being accorded highest priority are the following:1. Ensuring sustainable industrial production: With the exception of the petroleum industry, most industries do not have waste treatment systems. The few treatment plants that do exist either are not functioning as a result of over use or lack of proper servicing or are unable to cope with the vast amounts and types of industrial effluents passing through them. The real challenges of industrial pollution can be identified thus: (a) air pollution (gas or particle emissions), especially from the cement, steel and asbestos industries; (b) land and water pollution -- effluent discharged onto land and into water has become a great concern, particularly in view of the epidemic tendencies of such pollution. The pharmaceutical, chemical, textile, food processing and oil industries are the major polluters; and (c) noise pollution.2. Preventing and reversing desertification: Nigeria has lost about 351000 square kilometres of its land to the desert, and the desert is advancing at a yearly rate of 0.6 kilometres. Desertification is the most important problem for northern Nigeria. Entire settlements, and in some cases major access roads, were buried by sand dunes in some parts of the north quite recently.3. Managing forest, wildlife and natural resources: Deforestation and loss of wildlife resources are problems throughout the nation. Deforestation affects timber production and the production of non-wood products (such as medicines, food and paper) that are obtained from the wood. There has been a ban on the export of wood obtained from natural forest since 1976, but much of the deforestation that occurs is the result of using wood for domestic purposes.Hunting is a major cause of loss of wildlife. There is a need to protect wildlife and biodiversity by specifically providing for the protection of certain species and areas that are of scientific, recreational or aesthetic value.4. Combating floods and inland and coastal erosion: Nigeria’s coastal resources have been greatly damaged by erosion and this has had severe financial consequences. Research into methods of controlling floods and erosion is being promoted. The need to use law as a vehicle in the regulation, management and protection of the environment has thus become paramount. The importance of the environment to humankind, the consumer of the environment cannot be over emphasized. In view of the fact that the environment is a major source of national and international development, it must be protected from pollution, degradation or damage. Since a pollution of the environment could result in its decay, which will ultimately affect meaningful social and economic development as well as the quality of life of humankind and other species of biodiversity, environmental law prescribes litigation to protect and preserve the environment from any misuse, abuse or destruction. And this is made possible by the law in the light of the violatory provisions of the municipal jurisprudence, coupled with the array of multilateral environmental treaties and rules of international law. Aggrieved parties therefore resort to environmental litigation in accordance with the procedure laid down by law. It is through litigation that courts enjoy their unique role in upholding the environmental rule of law.It is against this background that this paper seeks to realize the following objectives: 1. To examine the nature and scope of access to environmental Justice; 2. To analyze the liability regime in oil pollution and the role of the Judiciary in promoting the rule of law in regard to principle;3. To determine the nature of environmental litigation;4. To examine judicial approach to some of the common problems that arise in the different types of environmental litigation, including issues of locus standing, representative suit, jurisdiction, burden of proof and judicial remedies;5. To highlight the trend in public interest litigation in other jurisdictions;6. To conclude with some recommendations.

Time trends of assessments for medical dispute cases in Taiwan: a 20‐year nationwide study

In Taiwan, nearly all medical dispute cases were reviewed by an official Medical Review Committee (MRC). The aim of this study was to investigate the time trends of assessment reports by the MRC to estimate the changing trends of medical malpractice litigation. All assessment reports of the MRC from a nationwide database were reviewed. The assessment reports were analysed according to the year of completion. We further analysed the time trends by adjusting numbers for the size of the general population and numbers of physicians. Stratified analyses were also conducted by region and commission authority. Between 1987 and 2006, the MRC completed a total of 5324 assessment reports, with 4949 reports involving a medical dispute and the remaining 375 reports not involving a medical dispute. The numbers of assessment reports increased from 139 in 1987 to 221 in 1996 and 361 in 2006. The assessment increased from 0.70 per 100 000 people in 1987 to 1.03 and 1.58 per 100 000 people in 1996 and 2006 respectively. There was a stable trend of 8.5-10.0 assessments per 1000 physicians annually during the study period. Rising trends were consistent for all regions of Taiwan and for all criminal cases, but increases were more significant for civil cases. The numbers of medical dispute cases have increased significantly over the past 20 years. More studies to investigate the reasons of the rising trends and to find resolving methods to decrease the numbers of medical dispute will be helpful in the future.

Lessons Learned in Otologic Surgery

To analyze malpractice litigation trends to better understand the causes and outcomes of suits involving otologic surgeries to prevent future litigation and improve physician awareness. Court records of legal trials from 1983 to 2012 were obtained from 2 major computerized databases-WESTLAW and LexisNexis. Data were compiled on the demographics of the defendant, plaintiff, use of otolaryngologists/otologists as expert witnesses, nature of injury, type of surgery, legal allegations, verdicts, and judgments. Fifty-eight unique cases met inclusion criteria and were selected for review. The most common surgeries that went to trial were mastoidectomy (48%), ossiculoplasty (21%), and tympanoplasty (16%). Eleven (19%) of the cases were resolved through a settlement before a verdict was reached. Verdicts in favor of the plaintiffs (31%) were awarded an average of $1,131,189. The most common alleged injuries were hearing loss (45%) and facial nerve injury (38%). Of the cases found in favor of the plaintiff, the most common reasons cited were improper performance of the surgery (50%), failure to properly diagnose and treat (33%), and inadequate informed consent and delay in diagnosis (22% each). Case outcomes involving pediatric patients were not significantly different than those of adults (p = 0.34); however, adults received higher financial awards on average ($1 million versus $232,000; p < 0.0003). Obtaining an appropriate diagnosis, thoroughly discussing all options and potential risks, presenting realistic expectations, and executing the surgery correctly are crucial to patient care. Understanding the reasons surgeons go to trial may assist in mitigating risk for potential lawsuits.

Medication Associated with Hearing Loss: 25 Years of Medical Malpractice Cases in the United States

Objectives: Many medications used today continue to have the potential for ototoxicity. To potentiate management of this risk, this study examines malpractice litigation trends of lawsuits involving hearing loss associated with medication use. Methods: Court records of legal trials from 1987 to 2012 were obtained from two major computerized databases: WESTLAW and LexisNexis. Data were compiled on the demographics of the defendant and plaintiff, use of otolaryngologists as expert witnesses, medication used, legal allegations, verdicts, and judgments. Results: Forty-six unique cases met inclusion criteria and were selected for review. Antibiotics (72%), specifically aminoglycosides (47%), were the most common medications cited as causing hearing loss. Eleven (22%) cases were resolved through a settlement before a verdict was reached. Verdicts in favor of the plaintiffs (37%) were awarded an average of $1,134,242. Pediatric patients were more likely to win their lawsuits ( P = 0.03) compared to adults. However, no statistical difference existed between average awards. Of the cases found in favor of the plaintiff, the most common reasons cited were inappropriate medication, dose or duration (39%), failure to properly monitor (36%), failure to choose a less toxic medication (18%), and an error in diagnosis or failure to diagnose or treat (18% each). Conclusions: Physicians must be aware of the potential effects of the medications they prescribe. An understanding of potential drug interactions, proper monitoring, and appropriate use of less toxic medications is important to improve patient care. Analyzing litigation trends may be used to prevent future lawsuits and improve physician awareness.

Medical Malpractice and the Liability of the Loss of Airway: The Otolaryngology Perspective

Objectives: Analyze malpractice litigation trends to better understand the causes and outcomes of suits involving loss of airway to prevent future litigation and improve physician education. Methods: Jury verdict reviews involving otolaryngologists and loss of airway were obtained from a computerized legal database, WESTLAW from 2001-2011. Data were compiled on the demographics of the defendant, plaintiff, nature of injury, legal allegations, verdicts, and judgments. Results: Fourteen cases were identified and selected for review. Ten cases resulted in mortality, three cases in anoxic brain injury, and one case involved subglottic stenosis. Four cases were found in favor of the defendant, while ten cases resulted in plaintiff verdicts or settlements with an average award of $1,580,172. Seven cases involved loss of airway due to failed intubations. The most common procedures involved in the loss of airway were oropharyngeal procedures (29%). There were no cases involving a planned surgical airway. The most common legal allegation was delay in procedures (64%). No cases involved failure of informed consent. Conclusions: In cases of loss of airway, there is significant liability consigned to otolaryngologists. They are held accountable for recognizing an emergent airway, promptly and successfully securing the airway, and ensuring a protected airway throughout the patient’s disposition. Thus, close oversight, prompt action, and unequivocal communication in emergent airways is imperative.

Trends in malpractice litigation in relation to the delivery of breast care in the National Health Service

Malpractice litigation involving the delivery of breast care has been evaluated in the United States of America (USA) but is a relatively new area of study in the United Kingdom (UK). We sought to study and evaluate the emerging trends in litigation claims in relation to breast disease with the National Health Service Litigation Authority (NHSLA) over the last 15 years, up to December 2010.

Lean laboratories: laboratory medicine needs to learn from other industries how to deliver more for less

Laboratory medicine faces unprecedented challenges worldwide. Demand continues to grow year on year both in volume and complexity as populations age and healthcare becomes ever more sophisticated. Crude test numbers...

Special Education Complaints Filed by Parents of Students With Autism Spectrum Disorders in the Midwestern United States

The number of students with autism spectrum disorders (ASD) receiving services in public schools is increasing steadily. However, the findings of previous research and recent litigation trends suggest that a notable disconnect persists between school-based services and parental satisfaction. As a means to better understand parental dissatisfaction with educational services, I analyzed presenting issues and outcomes of complaint investigations filed by parents of children with ASD in a midwestern U.S. state. A total of 97 electronic summaries of complaint investigations filed from January 2004 to January 2009 were examined using content analysis to identify the most frequently cited complaint issues, as well as the findings of fact leading to decisions in favor of schools. Common complaint issues included problems with Individualized Education Program content and implementation, parental participation, evaluation and case conference committee procedures, staff qualifications, and behavior/disciplinary procedures. Implications of the findings for educators, parents, and future research are discussed.

Salivary Gland Surgery and Medical Malpractice

To better understand the causes and outcomes of lawsuits involving salivary gland surgery by analyzing malpractice litigation trends to prevent future litigation and improve physician education. Analysis of a national database. All US civil trials. The WESTLAW database was reviewed from January 1987 to March 2011. Data were compiled on the demographics of the defendant, anatomic site of injury, initial pathology, nature of injury, legal allegations, verdicts, and indemnities. Twenty-six cases met inclusion criteria and were selected for review. Verdicts/settlements for the plaintiffs predominated (58%), and the average sum of the plaintiff's monetary award was $933,235. Sixteen cases (62%) involved injury to the parotid gland/duct, with 10 cases involving injury to the facial nerve. No cases were filed on the grounds of failure to use facial nerve monitoring. Nine cases (35%) involved injury to the submandibular gland/duct. The most common legal allegations listed were improper performance followed by unnecessary procedures. If failure or inadequate consent was a component of the legal allegations, the verdict outcome significantly favored the defendants. Our study reveals that the plaintiffs in litigations involving salivary gland surgery have a slight advantage in outcomes with a fairly substantial award. Our litigation review reiterates the importance of detailed anatomic knowledge of the lingual and facial nerve to avoid the pitfalls of surgical error and consequent litigation. In addition, thorough preoperative evaluation of salivary gland pathology, including radiographic studies and needle biopsy, may help avoid errors in diagnosis and subsequent litigations.

Determining legal responsibility in otolaryngology: A review of 44 trials since 2008

PurposeMedicolegal factors contribute to increasing healthcare costs through the direct costs of malpractice litigation, malpractice insurance premiums, and defensive medicine. Malpractice litigation trends are constantly changing as a result of technological innovations and changes in laws. In this study, we examine the most recent legal decisions related to Otolaryngology and characterize the factors responsible for determining legal responsibility. MethodsThe Westlaw legal database (Thomson Reuters, New York, NY) was used to search for jury verdicts since 2008 in Otolaryngology malpractice cases. The 44 cases included in this analysis were studied to determine the procedures most commonly litigated and progressing to trial, as well as the year, location, alleged cause of malpractice, specialty of co-defendants, and case outcomes. ResultsOut of the 44 cases included in this analysis, physicians were not found liable in 36 (81.8%) cases. Rhinologic procedures comprised 38.6% of cases litigated, and rulings were in physicians’ favor in 66.7% of endoscopic sinus surgery (ESS) cases and all non-ESS rhinologic cases. A perceived lack of informed consent was noted in 34.1% of cases. The 8 jury awards averaged $940,000 (range, $148,000–$3,600,000). ConclusionOtolaryngologists were not found liable in the majority of cases reviewed. Rhinologic surgeries were the most common procedures resulting in litigation. Adenotonsillectomies, thyroidectomies, and airway management are also well-represented. Perceived deficits in informed consent and misdiagnosis were noted in a considerable proportion of otolaryngologic malpractice cases resulting in jury decisions.

Drilling Into Hydraulic Fracturing and Shale Gas Development: A Texas and Federal Environmental Perspective

This Article will first discuss the existing federal laws and regulations and proposed federal laws that apply to hydraulic fracturing activities as well as current studies and enforcement actions concerning the same. This Article will then discuss Texas statutes and regulations and various activities that are currently being pursued by the regulatory agencies that govern shale gas exploration in Texas. With respect to local matters, this Article will also briefly consider municipal regulation of the industry. With the rapid growth of shale gas exploration as a result of hydraulic fracturing, increased litigation has likewise grown. Finally, this Article will also review recent litigation trends that relate to hydraulic fracturing, including an analysis of the typical claims asserted as well as the key applicable defenses under Texas law.

Emerging Policy and Practice Issues

This paper, presented at the West Government Contracts Year in Review Conference (covering 2004), attempts to identify the key trends and issues for 2005. The paper suggests that two rather unique items merit particular attention: the Darleen Druyun saga and the plight of contractors working in Iraq. Both frame compliance issues in stark relief. At the same time, we address what we perceive as the far more vexing issue that permeates federal procurement today: the excessive reliance upon, and corresponding misuse of, task-order contracting. We also discuss procurement spending trends (and the inevitable belt-tightening that must follow); contract-related litigation trends; rewarding excellence in public procurement; and lessons learned from the European Union's procurement reform efforts.

Medical Malpractice and Salivary Gland Surgery

Objective: To analyze malpractice litigation trends and to better understand the causes and outcomes of suits involving salivary gland surgeries to prevent future litigation and improve physician education. Method: Jury verdict reviews from January 1987 to March 2011 were obtained from a computerized legal database, WESTLAW. Data were compiled on the demographics of the defendant and plaintiff, medical specialty of the defendant, use of otolaryngologists as expert witnesses, nature of injury, legal allegations, verdicts, and judgments. Results: Twenty-six cases met inclusion criteria and were selected for review. Specialties that were listed as defendants were otolaryngologists (66%), general surgeons (25%), and oral surgeons (13%). Verdicts for the plaintiffs predominated (54%) and the average sum of plaintiff’s monetary award was $978,466. Sixteen cases (62%) directly involved initial pathology or surgical complication of parotid gland etiology. Six cases (23%) involved injury to the lingual nerve. Five cases (19%) involved complications following surgical intervention for sialolithiasis or sialadenitis. Two of the more common complaints were failure to adequately diagnose and treat (31%) and lack of informed consent (15%). Conclusion: In salivary gland surgeries, risk management goals should include a thorough preoperative assessment of salivary gland masses with appropriate and adequate radiologic and pathologic studies. Additionally, thorough and detailed written informed consent with discussion of alternative treatment options and surgical plans may assist in mitigating risk for potential lawsuits.

Understanding Current Trends and Outcomes in Generic Drug Patent Litigation: An Empirical Investigation

This thesis examines the role of patent litigation in the generic drug approval process. Generic drug companies wishing to enter a brand-name drug market early may challenge a brand-name’s patents by filing for an Abbreviated New Drug Application (ANDA) with a paragraph IV certification. While anecdotal evidence on the characteristics of paragraph IV lawsuits abound, there has yet to be a comprehensive study on these unique cases. Leveraging a new dataset of district court cases, this thesis presents an empirical investigation into some of the current trends in generic drug litigation from January 1, 2006 to August 1, 2011. Using several basic econometric specifications, I study the determinants of settlement and other outcomes in these cases, observing that factors such as declaratory judgment, the size of a pioneer company, the level of patent protection, and remaining exclusivity may be significant factors.

Ohio

Over the past year, minimal changes occurred in Ohio oil and gas law. The Ohio General Assembly passed one piece of legislation that alters the leasing process of state-owned lands for oil and gas development. Ohio case law has also remained largely unchanged, but several recent cases may be an indication of future trends in oil and gas litigation.

Judicial Limitation of the EPA's Oversight Authority in Clean Water Act Permitting of Mountaintop Mining Valley Fills

Mountaintop removal mining operations in the Appalachian region have expanded significantly in recent decades. The practice decimates the mountain ecosystems by leveling forests, filling headwater streams, and producing significant runoff of heavy metals, sediment, and other pollutants that impair the aquatic environment of entire watersheds. Yet environmental permitting of the practice is relatively limited. A recent trend in litigation aimed at halting mining operations has involved challenging permits that authorize the discharge of mining overburden into headwater streams pursuant to the Clean Water Act (CWA). The Army Corps of Engineers has assumed jurisdiction over such discharges under section 404 of the CWA, asserting that overburden is “fill material.” Initial litigation on the matter challenged the Corps’ assumption of jurisdiction, asserting instead that overburden is a “pollutant,” the discharge of which is regulated by the Environmental Protection Agency (EPA) under section 402 of the CWA. After the courts upheld the Corps’ interpretation that overburden is fill, the issue became the degree to which section 404 allows or requires the EPA to exercise environmental oversight of the Corps’ permitting process. The EPA has recently attempted to increase its oversight role by establishing procedures to review permit applications before the Corps issues the permits and by retroactively “vetoing” existing permits that it has found result in irreparable environmental damage. Those actions have been subjected to challenges by the mining industry, which have produced court rulings constraining the EPA’s oversight authority. In this Note, I argue that Congress did not intend for mining overburden to fall within the purview of the Corps’ section 404 jurisdiction, and that the cases affirming the Corps’ assumption of such jurisdiction were wrongly decided. Assuming, however, that those cases will not be overturned, I argue that the EPA must be afforded the ability to exercise the oversight authority inherent in section 404 to ensure that the Corps’ permits for mountaintop removal mining valley fills do not result in undue environmental damage. I assert that the recent decisions in National Mining Association v. Jackson and Mingo Logan Coal Co. v. EPA improperly read limits into the EPA’s oversight authority, and that the courts of appeals should overturn those decisions. Absent the EPA’s second layer of environmental review of section 404 permitting, the fragile Appalachian landscape may be permanently destroyed as a consequence of mountaintop removal mining.

Small Claims Litigation in Italy

Despite accounting for a significant fraction of total litigation in Italy, small claims litigation has so far received little attention. Using a Ministry of Justice database that contains information disaggregated by subject matter, the paper provides a thorough description of the time trend and geographical distribution of small claims litigation in Italy in the period 2001-2008. Further, it empirically evaluates the impact of different socio-economic variables on litigation. We find evidence of a strong increase in appeals against administrative sanctions, while the number of civil proceedings remained stable. Litigation rates are higher in the Centre and Southern regions. More interestingly, for claims on movables and claims for damages caused by circulation of vehicles, they are strongly concentrated in some provinces. Our results provide support to existing anecdotal evidence about opportunistic behavior in the use of courts.

International Litigation Trends in Environmental Liability: A European Union–United States Comparative Perspective

In times where environmental concerns take a predominant role and corporate social responsibility is at the forefront of various legal debates, the fact that the laws and/or the judicial proceedings -to establish it and to order remedies- in the country of damage could be inadequate or even non-existent, makes it appropriate to reflect on the opportunities provided by the international litigation system of the European Union (EU) as compared to the system of the United States (US). Responding to the recent case law, this paper reflects on the international environmental litigation trends from a private international law perspective, analysing the jurisdiction and conflict of laws issues that, within this field, interact with a number of international civil liability conventions. In this regard, the complex determination of the applicable law and the liability limitations in the EU do not prevent the conclusion that, due to recent jurisdiction and applicable law trends in the US, international environmental litigation may be turning to the eastern side of the Atlantic.

International Litigation Trends in Environmental Liability: A European Union–united States Comparative Perspective

International Litigation Trends in Environmental Liability: A European Union–united States Comparative Perspective

Trends in joint arthroplasty litigation over five years: the British experience

Increasing numbers of joint arthroplasty are performed in Britain. While associated complications are well documented, it is not known which of those initiate malpractice claims. A five-year period was assessed for trends to highlight areas for further improvement in patient information and surgical management. The National Health Service paid out almost £14 million for 598 claims. Forty per cent of this was for legal costs. The number of claims increased over time while the rate of successful claims decreased. A failure to consent adequately and to adhere to policies and standard practice can result in a successful malpractice claim. Protecting patients intraoperatively and maintaining high technical expertise while implementing policies and obtaining informed consent decreases the litigation burden.