Personal Injury Litigation Research Articles

Disclosure: the hidden key to winning clinical negligence claims?

The process of obtaining and disclosing a Claimant's medical notes and records is a fundamental part of the clinical negligence (and personal injury) litigation process. It is routinely conducted in the very early stages of investigating and assessing a potential clinical negligence claim. This article argues for a case-focused, bespoke approach to disclosure which may yield information which can entirely alter the complexion of litigation, in the Claimant's favour. This article attempts to illustrate some approaches to disclosure which can be used to try to achieve this aim.

Expansion of Liability under Public Nuisance

1 * Executive Director, Searle Center on Law, Regulation, and Economic Growth, Northwestern University. Phone: (312) 503-0290; Email: hbutler@law.northwestern .edu. ** Foundation Professor of Law, George Mason University School of Law. 3301 N. Fairfax Dr. Arlington, VA 22201Phone: 703-993-9484; Fax: 703-993-8088; Email: Tzywick2@gmu .edu; Web: http:// mason.gmu .edu/ ~tzywick2/ . Searle Center Public Nuisance Roundtable

Market Share Liability in Personal Injury and Public Nuisance Litigation: An Economic Analysis

This paper analyzes the legal doctrine of market share liability from an economic perspective. It explains the underlying economic, or quasi-economic, basis for the doctrine: to obtain appropriate cost internalization of harm-causing behavior where it is not possible to identify which of many producers of identical harm-causing products harmed any single victim. The paper discusses the recent extension of the concept in the lead paint litigation in the U.S. in both products liability and public nuisance cases. The article discusses the very particular requirements necessary for the doctrine to appropriately internalize costs. It also discusses the implications of the passage of time as between manufacture and harm for the application of the doctrine and addresses the view that market share liability can effectively provide a form of insurance for loss. The article shows that application of the doctrine of market share liability serves in many contexts—including with respect to lead paint—chiefly as a form of taxation, which cannot generally be defended on social welfare grounds.

A Supplement to “Assessing Economic Damages in Personal Injury and Wrongful Death Litigation: The State of South Dakota”

Abstract In the Fall 2007 issue of the Journal of Forensic Economics Ralph J. Brown and Erik L. Olsen outline case law relevant for forensic economics in the areas of personal injury and wrongful death litigation in the State of South Dakota. This note supplements Brown's and Olsen's work by discussing three additional issues of which readers should be aware before practicing forensic economics in the State of South Dakota. These issues are: the statutory pre-judgment interest rate, the required discount rate in workmen's compensation cases, and the statutory increase in compensation in workmen's compensation cases.

Assessing Economic Damages in Personal Injury and Wrongful Death Litigation: The State of New Jersey

AbstractContributors to the Journal of Forensic Economics are compiling a state-by-state series of papers on how economic damages are assessed in personal injury and wrongful death cases. This paper discusses rules of the court, the court system, and case law for the State of New Jersey. Overall, New Jersey is both different and the same as many other states. The court requires experts to discount to present value, use gender-neutral life expectancy tables, and subtract personal income taxes when estimating earnings losses. New Jersey also accepts expert testimony regarding the value of lost companionship services and advice and counsel services in death cases. This paper discusses these issues and others, with a goal of familiarizing forensic economists with the relevant court rules and rulings and standard practices when performing economic damage appraisals in the State of New Jersey.

Assessing Economic Damages in Personal Injury and Wrongful Death Litigation: The State of Alaska

AbstractIn contribution to the series on economic damages in personal injury and wrongful death cases by state, this article presents the legal framework for calculating economic damages in civil litigation in the State of Alaska. Areas of discussion include the court system in Alaska, the requirements for an economic expert in the discovery process, earnings calculations and the related deductions in personal injury and wrongful death matters. In addition, non-economic damages are briefly addressed, as are subsistence activities and the Permanent Fund Dividend.

Work Impairment and Disability in Posttraumatic Stress Disorder: A Review and Recommendations for Psychological Injury Research and Practice

Work impairment and disability are common consequences of posttraumatic stress disorder (PTSD), as reflected by significant rates of sickness absence, failure to return to work, and reduced work performance. Within the psychological injury field, the issue of work impairment and disability in PTSD often arises in workers’ compensation and disability insurance claims and in personal injury litigation. In this context, clinical and forensic practitioners are faced with challenges in rendering expert opinions on diagnosis, causality, prognosis, and recommendations for treatment and rehabilitation. To promote understanding of this important, yet understudied area, there are three aims of this paper: first, to review the current literature on work impairment and disability associated with PTSD; second, to draw on this literature to present a biopsychosocial framework of work impairment and disability in PTSD; and third, to offer suggestions for improving the assessment and management of PTSD-related work impairment and disability.

Erratum to: The MMPI-2 Symptom Validity Scale (FBS) is an Empirically-Validated Measure of Over-reporting in Personal Injury Litigants and Claimants: reply to Williams et al. (2009)

Erratum to: The MMPI-2 Symptom Validity Scale (FBS) is an Empirically-Validated Measure of Over-reporting in Personal Injury Litigants and Claimants: reply to Williams et al. (2009)

The MMPI-2 Symptom Validity Scale (FBS) is an Empirically-Validated Measure of Over-reporting in Personal Injury Litigants and Claimants: reply to William et al. (2009)

The MMPI-2 Symptom Validity Scale (FBS) is an Empirically-Validated Measure of Over-reporting in Personal Injury Litigants and Claimants: reply to William et al. (2009)

Complex regional pain syndrome: the role of the psychiatrist as an expert witness

Complex regional pain syndrome (CRPS) is a regional pain syndrome of unclear pathophysiology, typically affecting the hand or foot. CRPS can be subject to personal injury litigation and may be the cause of substantial future loss of earnings claims. In clinical practice, a variety of medical experts can be involved in the diagnosis and management of CRPS and this can lead to confusion about the most appropriate expert for lawyers to instruct. This paper defines the role of psychiatrists as experts to the court in CRPS and reviews the associated psychiatric literature. Psychiatrists do not have expertise in the clinical diagnosis of CRPS, but they are able to assess the presence of co-morbid psychiatric conditions. They can assist the court as experts in the underlying neuro-physiological and psychological processes which may explain some of the important features of CRPS and an individual's psychological vulnerability to CRPS. Their expertise in psychological and psycho-pharmacological interventions should be considered for any multidisciplinary treatment programme for CRPS along with the likely contribution of these interventions to the overall prognosis.

The Law of Medical Negligence in England and Germany

Medical malpractice reform has been periodically on the national political agenda in the UK since the 1970s.1 Although a highly specialised and a proportionally small area of personal injury litigation, it has nevertheless attracted a significant degree of political, judicial, and stakeholder interest. This may be attributed in large part to concern over the impact of rising number of claims, as well as compensation payments and legal costs, on the limited resources of the publicly funded National Health Service (NHS). From an academic perspective, much of the interest has centred on possible options for reform which would involve the partial or complete abolition of the current system, to be replaced by either general no-fault or specialised redress schemes. In justifying the need for adopting an alternative approach in the English context, reformers have often pointed by way of comparison to the negative effects created by medical malpractice litigation in countries such as the USA, and have argued it has resulted in spiralling costs, escalating insurance premiums for doctors, a rise in defensive medicine and a decline in the morale of healthcare professionals more generally.2

Waiting for the Big One: The Economics of Plaintiff-Side Personal Injury Litigation

Little is known about the economics of plaintiff-side law firms, which typically work on a contingency fee basis. We begin here to fill that gap. We report on the fees received by 124 plaintiff-side personal injury firms located in four states (Illinois, Texas, and two additional undisclosed states), and estimate the impact of various statutory fee caps on those firms. At all of the firms, cases with modest fees may help to keep the lights on, but occasional “blockbuster” cases account for an overwhelming percentage of earned fees. A one-third contingency fee is the most common arrangement, but is not always collected ex post; when recoveries are low, firms often reduce or waive their fee. The estimated effect of caps on contingency fees varies, depending on cap design and the mix of cases a firm handles. But many fee caps dramatically affect the economics of plaintiff-side personal injury practice.

Regulated One-Way Costs-Shifting

With serious consideration being given to one-way cost shifting in personal injury litigation in England and Wales this paper sets out some of the advantages of such a system and how its drawbacks might be ameliorated through regulation.

Waiting for the Big One: The Economics of Plaintiff-Side Personal Injury Litigation

Contingency fees are a matter of intense public concern, but little is known about the economics of plaintiff-side personal injury litigation. We obtained data on payouts, fees, and expenses for all cases settled over an extended period by three plaintiff-side personal injury firms, one in Texas, one in Illinois, and one in a state we cannot disclose. We study the economics of plaintiff-side personal injury litigation, and estimate the effects of statutory caps on contingency fees. Fees vary from 0% to 34%, but the modal fee is one-third of the recovery. A one-third fee is not uniformly collected ex post even when it is explicitly contracted for ex ante: when recoveries are low, plaintiffs’ attorneys often reduce or waive their fee. Mean per-case litigation-related expenses were 5.1% (Il firm) and 5.6% (Tx firm). In prior work with Texas data, we found that defense-side fees and expenses increased over time. Although expenses increased at all three firms over time, fees as a percentage of recoveries decreased modestly at the Texas firm, and were stable at the Illinois firm. Analysis continues on the expenses and fees at the 3rd firm. At all three firms, an overwhelming percentage of total fees comes from a small number of cases. The top 10% (1%) of cases are responsible for 67% (23%) of total fees for the Illinois firm; 82% (55%) of total fees for the Texas firm; 43.5% (15%) for 3rd firm cases handled internally, and 67% (30%) of 3rd firm cases referred elsewhere. Cases with modest fees may help to keep the lights on, but the blockbuster cases are what keep plaintiffs’ attorneys in this line of work. Statutory restrictions on contingency fees vary in severity, but have the potential to significantly change the economics of plaintiff-side representation.

The MMPI-2 Symptom Validity Scale (FBS) Is an Empirically Validated Measure of Overreporting in Personal Injury Litigants and Claimants: Reply to Butcher et al. (2008)

We address issues raised by Butcher et al. (Psychological Injury and the Law 1:191–209, 2008) in their critique of the Minnesota Multiphasic Personality Inventory-2 Symptom Validity Scale (FBS) and show that their analyses and conclusions are based on faulty premises, a misunderstanding of basic concepts in the assessment of overreporting, a selective review of the literature and mischaracterization of the findings they do cite, problematic analyses of a dataset that had already been similarly analyzed, and a flawed analysis of a legal case they discuss. We complement the review of existing research with some new findings that provide further empirical support and clarification of current interpretive recommendations for proper use of the FBS in evaluations of personal injury litigants and claimants.

Comparison of MMPI-2 Validity Scales Among Compensation-Seeking Caucasian and Asian American Medical Patients

Validity scales of the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) are widely used for the detection of exaggerated psychological complaints, although little is known about the results of these scales with racial or ethnic minority individuals. Five validity scales derived from the MMPI-2, including the F Scale, the Back Infrequency Scale, the Symptom Validity Scale, the Infrequency-Psychopathology Scale, and the Dissimulation Scale-MMPI-2, were evaluated in 157 medical patients-109 Caucasian Americans and 48 Asian Americans. All patients were involved in personal injury litigation or seeking compensation for alleged psychological conditions. Analyses of variance (ANOVAs) conducted on the five validity scales revealed no significant group effects for race. The results were consistent with the limited available data on the MMPI-2 validity scales with minority group samples. Further research with other racial minorities, including relevant extra-test criteria for malingering, is encouraged.

The Vulnerability to Coaching across Measures of Effort

Neuropsychologists are increasingly called upon to conduct evaluations with individuals involved in personal injury litigation. While the inclusion of measures of effort within a test battery may help clinicians determine whether a client has put forth full effort, attorney coaching may allow dishonest clients to circumvent these efforts. The purpose of this study was to determine the degree to which frequently used measures of effort are susceptible to coaching, as well as to explore and classify strategies undertaken by coached malingering simulators. Overall, coached simulators performed significantly better on 7 of 14 measured variables. Potential improvements in the external validity of the simulation design were also explored.

Medico‐legal radiology ‐ Edited by WSC Hare

By WSC Hare. Published by Churchill Livingston, Elsevier Publishers, Sydney, 2007. 200 pages. A$79.00. ISBN 978 072 953 8312. It is an honour to review this book which contains some of the distilled wisdom of a radiological giant. Professor William SC Hare was the first Australian Professor in Radiology and held the Chair in Melbourne from 1965 to 1988. His career was remarkable both in innovation and scope of practice. Between 1990 and 2000 he provided legal opinion on the radiological aspects of hundreds of cases. Radiologists in training would do well to follow Professor Hare’s advice in separate chapters on interpreting diagnostic images and writing reports. Much of this book contains ‘must knows’ for one’s career in radiology. In the crowded curriculum, it is all too easy for the trainee to be mesmerized by exotica most of us seldom encounter. Professor Hare shines the spotlight on the common pitfalls of our specialty. Radiologists at all stages in their career would benefit from the 10 chapters devoted to different parts of the body. These chapters have a compelling style considerably enhanced with many succinct pertinent examples of actual litigation. A useful summary list of ‘suggestions’ is given at the end of each of the 15 chapters. The literature up to the end of 2006 has been most thoroughly reviewed and scores of key references selected. This book is particularly timely as radiologists enter an era of individual recertification. Different countries will introduce processes that vary in detail. However, common to all will be a paradigm shift in culture of scrutiny of our personal performance. Those who read this book and follow its advice will provide a better service for patients and clinicians, as well as reduce their own vulnerability to claims of professional malpractice or misconduct. Radiological error and discrepancy is a most sensitive topic. Professor Hare’s balanced analysis will prove very helpful for clinical directors and conveners of radiological discrepancy meetings. Readers will gain very useful advice on how to word radiological reports that are likely to be used in deciding legal outcomes (e.g. compensation cases). There are several chapters on legal processes, including sections on the radiologist as a defendant and another on the radiologist as a witness. I anticipate that this book will also prove very popular with orthopaedic surgeons and other clinicians who provide medico-legal reports, as well as with lawyers involved in personal injury and medical litigation work. This is a book all radiologists should own and read. It is the product of unrivalled experience, scholarship, wisdom and an awesome amount of research. There are now two beacons in the medico-legal radiological firmament: Leonard Berlin and William Hare.

Assessing Economic Damages in Personal Injury and Wrongful Death Litigation: The State of South Dakota

This article discusses the court system, pattern jury instructions, statutes, and case law relevant to the practice of forensic economics in the areas of personal injury and wrongful death in the state of South Dakota. This article is organized as follows. Section II presents the state court system in South Dakota. Section III discusses issues of expert testimony and data and Section IV presents the South Dakota Pattern Jury instructions relevant to the forensic economist. Section V examines South Dakota statute law and Section VI discusses special issues. Section VII addresses practice issues in South Dakota Courts.

Assessing Economic Damages in Personal Injury and Wrongful Death Litigation: The State of Illinois

Forensic economics experts (FE) working with attorneys engaged in litigation, whether consulting, preparing a report, or testifying at deposition or trial, generally are expected to have some knowledge (1) of the state’s statutory and case law regarding allowable damages and methods; and (2) that certain topics (e.g., taxes, collateral sources) should not be mentioned or considered at certain times since a mistrial could result. This situation creates a tension: forensic economics experts are economics experts and are not attorneys, but nonetheless must have a reasonable understanding of the relevant state law. In this vein, the Journal of Forensic Economics (JFE) continues to publish a series of articles on the ways such damages are calculated in different state jurisdictions, one state at a time.2 The state of South Dakota is included in this issue and this paper adds Illinois to the list. Following the format of previous articles in this JFE series, Section II provides a listing of the controlling statutes, general case law, and court rules. Section III discusses the concept of earning capacity which appears throughout PI and WD case law in Illinois. Section IV discusses discounting to present value. Fringe benefits are discussed in Section V, while Section