Plaintiff's Attorney Research Articles

Sovereign immunity and its implications for neurosurgery

The proportion of neurosurgeons facing a malpractice suit each year is highest among all medical and surgical specialties. It is critical for neurosurgeons to understand local malpractice laws because they vary among states. Sovereign immunity, as described in the 11th constitutional amendment, provides absolute immunity to states from being sued by their residents and by other states. A state may waive its sovereign immunity, however, and substitute itself as the defendant in place of a state-employed physician in the court of law. This means that a physician working for a state-funded hospital may not be liable to a malpractice suit. Further provisions of the law allow the state not to pay indemnity beyond a certain limit, which discourages plaintiff attorneys from pursuing indemnity charges against physicians working for state-funded institutions. In this review, the authors describe the concept of sovereign immunity and its implications for the practice of neurosurgery.

Factors Affecting the Outcomes of Legal Claims against Auditors

SUMMARY Maksymov, Pickerd, Lowe, Peecher, and Reffett (2020b) draw insights based on interviews with 27 prominent audit litigation attorneys about the factors affecting the initiation of legal claims against auditors and how such factors affect settlement outcomes. We summarize their key findings and discuss important implications for audit practitioners. Specifically, we focus on the key factors that affect plaintiff attorneys' willingness to pursue legal claims against auditors, including the merits of the claim, size of alleged economic damages, auditors' ability to pay, and the expected cost to pursue the claim. We also discuss the reasons why most audit disputes settle (as opposed to resolving at trial) and the factors affecting settlement outcomes. We hope the insights provided enhance audit practitioners' understanding of litigation and the settlement process to allow them to manage claims in a less intimidated and ultimately more strategic manner.

Knowledge in youth is wisdom in age: an empirical study of attorney experience in torts litigation

The effect of attorney experience in civil litigation has not been causally identified, because attorneys everywhere are not randomly assigned to clients, and detailed measures of jurist experience have not been available. Using a unique data set from Taiwan, we measured attorney experience by either the total number of civil cases they have represented from 2000 to 2014 or their number of years in practice. We argue that theoretically, there was hardly any case selection by litigants and litigators in Taiwan’s flat-fee attorney market. Combining these data with another unique data set we compiled from pain and suffering damages lawsuits regarding personal injury in weighted ordinary least squares models after full matching and coarsened exact matching, we find that experienced plaintiff attorneys claim more than inexperienced ones.

A Fair Price and a Fair Deal: On the Future of 'Entire Fairness' in Freezeouts

Controlling shareholders can compel the sale of minorities’ shares in freezeouts, potentially to their financial detriment. To limit controllers’ opportunism and support the value of minorities’ investments, the Delaware supreme court has endorsed strong minority shareholder protections under the rubric of 'Entire Fairness' – the governing standard for cash-out mergers. However, the court of chancery has refused to apply Entire Fairness to tender offer freezeouts, and is advocating unifying freezeout doctrine around a looser, deferential standard of review. The influence of popular and Congressional concern over excess plaintiff lawyers’ fees and discovery costs is likely making itself felt, although the true extent of these litigation agency costs is unknown and likely overstated. This influence is evident in three recent court of chancery cases analyzed herein (Pure, Cysive and Cox), which advocate lesser scrutiny of controllers’ transactions. There are several problems with the court of chancery’s proposed reforms, including that they conflict with Delaware supreme court precedent. A fair price duty is crucial to minorities’ bargaining leverage with controllers, and controllers’ power financially to oppress minorities if their freezeouts are thwarted ('inherent coercion') remains a genuine concern for equity. Lack of minority consent is still a problem that equity should be responsive to. This Article presents the case for applying Entire Fairness review to cash-out mergers and tender offer freezeouts. The sole exception should be when a controller authorized an independent committee to conduct an auction or market check and agreed to sell if a substantially higher offer for the company surfaced.

A Tale of Two Forums: Employment Discrimination Outcomes in Arbitration and Litigation

This article presents data from a novel survey of 1,256 employment plaintiff attorneys to test whether employee rights and remedies are affected by mandatory employment arbitration. By surveying attorneys directly about their most recent employment discrimination cases taken to verdict in arbitration and civil litigation, the author presents a systematic empirical comparison of outcomes between civil courts and arbitration with robust controls. The ability to control for the legal basis of the claim, defendant size, use of summary judgment, and attorney and plaintiff characteristics significantly improves on previous empirical research studies. Consistent with previous research, employee win rates in arbitration are lower than those found in state and federal court. In addition, monetary award amounts and percentage of claim amount awarded to employees who prevail in their cases are significantly lower in arbitration compared to outcomes in state and federal jury trials.

Engaging the Solo Practitioner to Reduce Errors and Burnout

Engaging the Solo Practitioner to Reduce Errors and Burnout

‘Hidden’ Information in Your EHRs Could Increase Your Liability Risk

‘Hidden’ Information in Your EHRs Could Increase Your Liability Risk

Decision‐making in civil litigation: Effects of attorney credibility, evidence strength, and juror cognitive processing

AbstractThe current study examined the relationship between juror cognitive processing (measured by need for cognition [NFC]), attorney credibility, evidence strength, and civil litigation verdicts (liability, likelihood of causation, and compensatory damages). Participants (N = 446) viewed a videotaped mock civil trial in which the credibility of the attorneys and the strength of the plaintiff's evidence were manipulated. Plaintiff attorney credibility, defense attorney credibility, and strength of evidence interacted with one another for liability verdicts. In the strong evidence condition, the likelihood of a liable verdict was higher for a credible plaintiff attorney than a non‐credible plaintiff attorney when facing a non‐credible defense attorney. In the ambiguous evidence condition, the likelihood of a liable verdict was higher for a credible plaintiff attorney than a non‐credible plaintiff attorney when facing a credible defense attorney. Plaintiff attorney credibility, however, was found to be more influential on jurors’ decision‐making than case evidence for likelihood of causation and compensatory damage award decisions. Participants’ NFC also interacted with plaintiff attorney credibility. High NFC jurors were more influenced by a credible plaintiff attorney than low NFC jurors. Although these findings are counter to common findings in the NFC literature, they conform to a body of literature that supports the notion that jurors view attorney credibility as a piece of case evidence and not a peripheral cue as is often assumed. Thus, the findings indicate that attorneys do matter to the outcomes of cases. Policy and practice implications for attorneys and the courts are discussed.

Cryostorage failures: a medicolegal review.

To heighten awareness of the potential legal and financial burdens faced by those providing cryopreservation storage services of embryos and gametes in light of recent lawsuits involving inadvertent thawing of specimens. Case law review of US legal databases and courthouse dockets with a focus on lawsuits against reproductive endocrinologists and cryostorage facilities offering cryopreservation. Emphasis was placed on court decisions, awarded damages, and legal and media coverage related to cryostorage failure events. Lawsuits pertaining to two notable ongoing cases of cryostorage failure that occurred at fertility clinics in the US in 2018 were reviewed. Media coverage of these events and plaintiff and defense attorney strategies were evaluated. Legal documents from previous, similar cryostorage failures were also reviewed. Common claims in cryostorage system failures include breach of contract and negligent handling of property. Facilities offering cryostorage services are vulnerable to significant burden, legally and financially, if they are to experience a storage system failure. Providing cryostorage services is not without significant financial risk. Inadvertent thawing of specimens can lead to high damage awards against cryostorage facilities and those individuals linked to a cryostorage failure event. Because monetary damages can surpass insurance policy limits, those providing cryostorage services should be aware of plaintiff attorney strategies, common legal defenses, and basic asset protection principles to safeguard themselves if ever faced with these situations. Facilities should also carry out regular maintenance and safety checks on equipment and alarm structures to deter such events.

Being True to Trulia: Do Disclosure-Only Settlements in Merger Objection Lawsuits Harm Shareholders?

A significant debate within mergers and acquisitions law concerns the explosive popularity of the “merger objection lawsuit” (MOL), a shareholder action seeking to enjoin an announced deal on fiduciary duty grounds. MOLs blossomed during the Financial Crisis, becoming popularly associated with “shareholder shakedowns,” whereby quick-triggered plaintiff attorneys would file against — and then rapidly settle with — acquirers, typically on non-monetary terms containing modest added disclosures in exchange for blanket class releases and attorney fee awards. This practice unleashed a torrent of criticism from lawyers, commentators, academics, and (ultimately) judges, culminating in a doctrinal shift in Delaware law in the January 2016 Trulia opinion, which virtually prohibited disclosure-only settlements. This paper investigates the implications of this doctrinal shock from a shareholder welfare perspective. We argue that — notwithstanding the intuitive appeal of prohibiting / discouraging disclosure settlements — it is far from clear whether doing so helps or hurts target shareholders ex ante, since the threat of MOLs interacts with other intra-corporate agency costs (such as those of managers and buyers negotiating deals). Reducing the credibility of a litigation threat may deter shakedowns at the cost of reduced deal premia and shareholder value — consequences inconsistent with conventional commitments of corporate law. We develop a theoretical model of company acquisitions formally demonstrating that the competing equilibrium effects of Trulia are indeterminate, an insight that hoists a flag of caution regarding the doctrinal innovation. Moreover, our model delivers testable implications related to Trulia, which we investigate empirically. Our empirical analysis suggest that the recent doctrinal shock does not appear to have resulted in a discernible increase to target shareholder welfare.

04:12 PM Abstract No. 61 Medical malpractice related to inferior vena cava filter placement: how commonly are interventional radiologists named in cases?

Inferior Vena Cava (IVC) filters are commonly placed in patients who are unable to be anticoagulated. Though relatively safe, such procedures are not without risks. Complications may occur and patients may seek legal redress. There remains only a paucity of data understanding IVC filter litigation. The aim of this study was to analyze malpractice trends regarding IVC filter placement across the USA. Westlaw Next, an online legal research dataset with publicly available records throughout the USA was queried. Using the terms medical malpractice and IVC filter complications, we searched all jury verdicts and settlements focusing on IVC filter complications including: filter migration, filter fracture, embedded filter hook, and filter malposition. Social security disability claims and hospital employment contract disputes were excluded from the analysis. Factorial data collection included: patient demographics, physician specialty, alleged reason for the malpractice claim, outcome(s) of trial and awarded payment, procedural characteristics, indication for placement of IVC filter, state demographics and type of IVC filter placed. The search criteria yielded 36 case briefs for initial review; 14 cases were included after application of exclusion criteria. The most common alleged reason for malpractice litigation was damage to surrounding structures (62%). Overall 86% of cases were decided in favor of the defendant. Plain jury verdict and settlement sum was reported for one case, as a plaintiff victory of $3.64 million. Interventional radiologists were involved in only 17% cases, with both cases decided in favor of the defendant. Surgery as a combined group were involved in 50% of cases. The filter manufacturer was sued in 21% of cases, with physicians sued in 36% of cases. IVC filter medical malpractice litigations require a more in-depth analysis in light of recent media attention. Public awareness of complications related to IVC filter placement has increased secondary to recent advertising and marketing by plaintiff attorneys. Most cases were decided in favor of the defendant, with interventional radiologists playing a minor role in lawsuits.Tabled 1SpecialityNumber of LitigationsInterventional radiology2Bariatric surgeon1Cardiovascular surgeon1 (plaintiff awarded)General surgeon1Trauma surgeon1Diagnostic radiology2Internal medicine2Thoracic surgery1Vascular surgery1 Open table in a new tab

Knowledge in Youth Is Wisdom in Age: An Empirical Study of Attorney Experience in Torts Litigation

The effect of attorney experience in civil litigation has not been causally identified because attorneys everywhere are not randomly assigned to clients and detailed measures of jurist experience have not been available. Using a unique data set from Taiwan, we measured attorney experience by either the total number of civil cases they have represented from 2000 to 2014 or their number of years in practice. We argue that theoretically, there was hardly any case selection by litigants and litigators in Taiwan’s flat-fee attorney market. Combining these data with another unique data set we compiled from pain and suffering damages lawsuits regarding personal injury in weighted ordinary least square models after full matching and coarsened exact matching, we find that experienced plaintiff attorneys claim more than inexperienced ones.

Is the Cargo Liability Limit Unbreakable under the Montreal Convention?: Implications of a Civil Case in China

Air cargo claims have been handled under the international legal regime since the early 1930s when the Warsaw Convention was adopted. This liability regime later developed into a more modern instrument, i.e. the Montreal Convention 1999, which allegedly sets an unbreakable limit for cargo damage. Although such cargo liability limit under the Montreal Convention has been upheld by courts in many jurisdictions, efforts made by plaintiff lawyers to circumvent it have never ceased. In China, a Beijing Intermediate Court decided in an air cargo damage case that the airlines should not be entitled to the limit protection under the Montreal Convention and must indemnify the actual losses suffered by the plaintiff in accordance with the PRC Civil Aviation Law. This has been criticized by many practitioners for violating the intention of the drafters of the convention. The aim of this article is to look into the true meaning of the related provisions of the Montreal Convention by examining not only the convention itself, but also the judicial practices of other countries, and explore possible methods to clarify the legislative intent so as to avoid judicial uncertainty.

California's Glyphosate Judgement – Emotion, Bad Science and Greed Win the Day

Jurors in California have awarded $289 million to a man who claimed that his cancer was due to Monsanto's herbicide glyphosate, even though that is biologically impossible. Even the judge acknowledged that there was no evidence of harm. Yet, trial lawyers manipulated a jury's emotions and the public's misunderstanding of science to score another jackpot verdict. The plaintiff, Dewayne Johnson, claims that glyphosate gave him non-Hodgkin's lymphoma, a cancer that occurs when the immune system goes awry. There are three major problems with this claim. First, as stated above, glyphosate does not cause cancer because it does not harm humans. It is an herbicide, so it is only toxic to plants. There is no known biological mechanism by which glyphosate could cause cancer, therefore its carcinogenicity is not even theoretically possible. That is why there is not a single reputable public health agency that believes glyphosate causes cancer. The US Environmental Protection Agency, the World Health Organization, and the European Food Safety Authority all reject claims of any link. The only organization of note that rejects this scientific consensus is a group within the World Health Organization called the International Agency for Research on Cancer (IARC). Contrary to all evidence, the group insists that glyphosate causes cancer – along with bacon and hot water. The truth is that IARC is a fringe outlier, staunchly ideological rather than scientific, and rife with financial conflicts of interest. Christopher Portier, a special adviser to the IARC working group that examined glyphosate, was also working for the activist organization the Environmental Defense Fund and received $160,000 from trial lawyers who stood to profit handsomely if IARC declared glyphosate a carcinogen because they could file suits in lawsuit-happy California. IARC's credibility has been so thoroughly shattered that Congress recently pulled its funding. Secondly, although the root cause of non-Hodgkin's lymphoma is unknown, that does not mean its etiology is completely open to speculation. Lymphomas originate from white blood cells, so scientists believe that autoimmune disease or chronic infections play a role. Just because the plaintiff's attorneys can fool a jury into believing that glyphosate causes non-Hodgkin's lymphoma does not mean there is any scientific evidence – and there is not. Thirdly, glyphosate has been off-patent for 18 years, and about 40% of the world's glyphosate is made in China. So, why pick on Monsanto when several different companies could have supplied the glyphosate the plaintiff used?

Fair Division of Attorneys' Fees

As consolidated multidistrict litigation (MDL) has come to dominate the federal civil docket, the problem of how to divide attorney fees among participating firms has become the source of frequent and protracted litigation. For example, in the NFL Concussion Litigation, the judge awarded the plaintiff attorneys over $100 million in fees, but the division of those fees among the 26 firms involved sparked two additional years of litigation. In this Essay, we explore solutions to this fee division problem, drawing insights from the economics, game theory, and industrial organization literatures. Ultimately, we propose a novel division method based on peer reports. Participating firms assess the relative contribution of other firms to the litigation, and then optimization or Bayesian techniques arrive at a consensus or compromise fee allocation. Our methods are intuitively easy to understand, enable broad participation, and are resistant to collusion or other strategic behavior, making them likely to be accepted by the firms involved. Our Essay thus provides courts with an important mediation tool or decision rule for these fee division disputes.

An Innovative Approach for Familiarizing Surgeons with Malpractice Litigation

Familiarize surgery residents with medicolegal knowledge and skills required when facing the prospect of being sued through a simulation session. The general surgery residency, hospital risk management, and malpractice attorneys collaboratively organized an educational intervention, consisting of an introductory lecture followed by a mock lawsuit. Two medical malpractice attorneys acted as defense and plaintiff attorneys while an attending surgeon experienced in litigation acted as defendant. Experience, attitudes, and preintervention/postintervention competency were evaluated via retrospective self-assessment. Weekly departmental educational conference. Forty residents and attending surgeons. Among the participants, 27.5% had been named in a law suit before. Most surgeons (70.0%) are worried about malpractice. Physicians who had been sued were no more likely to worry about malpractice (18.6 vs 25.0%, p = 0.82) than their colleagues who had never been sued. Results from the retrospective preintervention/postintervention competency assessmentsdemonstrated significant improvement in all measured competencies after the mock lawsuit. In comparison with attending faculty, residents obtained greater improvements in understanding the essential elements of a medical claim (1.9 vs 1.1, p = 0.03), gaining confidence doing a deposition for medical litigation (1.9 vs 0.9, p < 0.01) and understanding the do's and don'ts when named in a lawsuit (2.0 vs 1.1, p = 0.01). The novel educational format effectively familiarized surgery faculty and residents with the process of litigation and improved their confidence and mental preparedness when facing the prospect of a lawsuit. It is a valuable educational tool that can be incorporated in residency training and faculty development curricula.

Reforming the Securities Class Action: An Essay on Deterrence and its Implementation

The securities class action cannot be justified in terms of compensation, but only in terms of deterrence. Currently, the damages recovered through private enforcement dwarf the financial penalties levied by public enforcement. Yet, the evidence is clear that corporate officers and insiders rarely contribute to securities class action settlements, with the settlement funds coming instead from the corporation and its insurers. As a result, the cost of such actions in the aggregate falls on largely diversified shareholders. Such a system is akin to punishing the victims of burglary for their negligence in suffering a burglary and does little to deter corporate officials who have private motives for engaging in securities fraud. The present structure of securities class actions benefits a trio of interest groups - corporate officials, plaintiff's attorneys, and insurers - but not shareholders. To reform the securities class action and give it a true deterrent orientation, this article proposes a variety of steps - none requiring legislation or the reversal of well-established precedents - to shift the costs of the securities class action to the culpable. These steps proceed from the twin premises that (1) the settlement of a securities class action is a conflict of interest transaction requiring independent directors to exercise oversight over the allocation process, and (2) enterprise liability is an ineffective approach for misconduct that is privately motivated and easily concealed. To incentivize private enforcers, a basic change in the judicial approach to attorney's fees is proposed.

Single-State Tort Reform Analysis: Perspectives From the Volunteer State (Tennessee)

Malpractice legislation is of particular concern to radiologists [ 1 Borgstede J.P. Tort reform and you: winners and losers, friends, foes, and facts of life. J Am Coll Radiol. 2004; 1: 535-536 Abstract Full Text Full Text PDF PubMed Scopus (1) Google Scholar , 2 Berlin L. Radiologic malpractice litigation: a view of the past, a gaze at the present, a glimpse of the future. AJR Am J Roentgenol. 2003; 181: 1481-1486 Crossref PubMed Scopus (15) Google Scholar ] who are involved in a majority of patient encounters in the inpatient and outpatient setting. Accordingly, they are frequently involved in litigation. In fact, radiologists are consistently within the top 10 medical specialties named in malpractice suits and also for payment of malpractice claims [ 3 Thomson N.B. Patel M. Radiology liability update: review of claims, trends, high-risk conditions and practices, and tort reform alternatives. J Am Coll Radiol. 2012; 9: 729-733 Abstract Full Text Full Text PDF PubMed Scopus (11) Google Scholar ]. Most radiologists agree that tort reform would be beneficial in reducing the number of frivolous claims and costs of defensive medicine. However, attempts at medical malpractice tort reform have been stymied by a strong and well-funded plaintiff attorney lobby, especially on the national level. The most recent example of federal tort reform is the Protecting Access to Care Act (HR 1215), which was recently passed by the House [ 4 Congress.gov. H.R.1215—Protecting Access to Care Act of 2017. Available at: https://www.congress.gov/bill/115th-congress/house-bill/1215/text. Accessed January 23, 2018. Google Scholar ], but is unlikely to pass the Senate. Historically, the rules governing the practice of medicine, including medical malpractice, fall under the state purview. The federal government would have to address concerns over principles of federalisms when attempting to override state tort law. Concerns over the constitutionality of national malpractice law threaten to erode the broad support that any tort reform proposal would need to address an already highly controversial subject.

Inferior Vena Cava Filter Malpractice Litigation: Damned if You Do, Damned if You Don't

The aim of this study was to analyze malpractice litigation trends and to better understand the causes and outcomes of suits involving inferior vena cava filters (IVCF) to prevent future litigation and improve physician education. Jury verdict reviews from the Westlaw database from January 1, 2000, to December 31, 2015, were reviewed. The search term "inferior vena cava filter" was used to compile data on the demographics of the defendant, plaintiff, allegation, complication, and verdict. A total of 156 cases were identified. Duplicates and cases in which the IVCF was incidentally included were excluded from the analysis. Forty-nine cases involving either failure to place or a complication of IVCF placement were identified. Throughout the last 15years, there has been increased number of jury verdicts toward IVCF. The most frequent defendants were internal medicine physicians (38%), vascular surgeons (19%), and cardiothoracic surgeons (12%). The most frequent claims were denied treatment or delay in treatment (in 35% of cases), negligent surgery (in 24% of cases), and failure to diagnose and treat complications (in 24% of cases). Of these, the most frequent specific claims were failure to place IVC filter (41%), implantation failure such as misplacement and/or misaligned implant (24%), erosion of IVC/retroperitoneal bleed (6%), and discontinuation of anticoagulation prematurely (6%). Seventeen cases (35%) were found for the plaintiff, with median awards worth of $1,092,500. In the 21 cases where pulmonary embolism (PE) was involved (43% of cases), 19 were fatal (90%). Of the fatal PE cases, 8 cases ended with verdicts in favor of the plaintiff (42%). Both nonfatal PE cases were won by the defense. IVCF placement with subsequent PE and death results in verdicts that favor the plaintiffs. This study emphasizes that adequate and transparent communication regarding preoperative planning, decision for IVCF placement, and informed consent may reduce the frequency of litigation. Public awareness of complications related to the placement of IVCF is increasing largely and spurned by aggressive advertising and marketing by plaintiff attorneys. Conditions for which IVCF placement is contemplated carry significant risk of malpractice litigation.

Defending Against the Lost Chance Claim Lurking Within Plaintifffs Petition; Lagniappe: How to Avoid Being Taxed with $155,000 of Plaintifffs Costs

This paper examines the latest standards applied by Louisiana courts regarding a plaintiff attorneys attempt to assert a medical malpractice action on the theory of loss of a chance of survival. The paper provides guidance for defense counsel on the best ways to combat a plaintiff's attempt to add a claim for lost chance of survival, particularly when plaintiff attempts to do so at a very late date. The paper also examines the latest Louisiana law regarding a plaintiff's ability to recover costs following a successful jury verdict, and provides guidance to defense counsel on how best to minimize such recovery.