Plaintiff's Case Research Articles

Malpractice

FigureFigureA man presented to the ED with sudden onset flank pain. He was afebrile, and his vital signs were normal except for tachycardia of 105 bpm. A urinalysis was positive for nitrite and 15 WBC, and a urine sample was sent for culture. A CT scan showed a ureteral stone and minimal hydronephrosis. His pain was treated, he said he felt better, and he was discharged with instructions about treatment and follow-up for a kidney stone. The culture was reported the next day to the PA in the ED as growing Klebsiella. The PA called the patient and left a voicemail advising him of the culture result and the need for an antibiotic. He asked the patient to call the ED to obtain a prescription for Macrobid. The patient didn't return the call, but returned to the ED two days later. He was septic with significant hydronephrosis and was admitted. Despite aggressive treatment, including a nephrostomy to reduce urinary back pressure and drain infected urine, he decompensated rapidly and died. His family filed a lawsuit. The Plaintiff's Case The plaintiff's counsel believed that his client should have been treated with an antibiotic based on the urinalysis, but he could not find an expert who would support his claim that failure to do so was negligent. The survivors of the deceased lost interest in pursuing the claim. The Defense's Case The defense counsel had no difficulty securing strong expert opinions that the patient's care was within acceptable standards and not negligent, that is, that failure to treat with an antibiotic at the initial visit did not cause the patient's death. The Verdict The care at the initial ED visit was considered within the standard, given the lack of fever and the presence of only mildly abnormal urine findings. Despite the lack of medical decision-making addressing the possibility of a serious complication, expert review of the case felt this was a judgment call rather than negligence. The case was dismissed without prejudice, meaning that it could be refiled should circumstances change. Takeaways Pyelonephrosis is a serious complication of ureteral stones, aggravating an existing ureteral blockage due to viscous pus that cannot easily pass through the ureter. If a urinalysis shows sufficient evidence of concurrent infection in the presence of ureteral obstruction, antibiotics should be given and the patient admitted. This patient had minimal if any evidence of impending pyonephrosis. (Medscape eMedicine. March 23, 2021; https://bit.ly/3ViNnS4.) As often mentioned, physicians are not prophets. We cannot predict with certainty which patients will deteriorate and which will improve. We can only treat each patient according to the standard of care. We depend on patients to follow instructions. The PA in this case had no reason to assume that the patient was any worse than he was 24 hours earlier, and he had no reason to have him return to the ED emergently. We depend on patients to assess themselves and respond if things are worse.

Conflicting Approaches to the U.S. Common Law of Foreign Official Immunity

AbstractFor more than a decade, U.S. courts have struggled to develop a common law immunity regime to govern suits brought against foreign government officials, and they are now divided on a number of issues, including the extent to which they should defer to the executive branch and whether to recognize a jus cogens exception. This Editorial Comment considers a more conceptual division in the courts, between an “effect-of-judgment” approach that would confer immunity only when the judgment that the plaintiff is seeking would be directly enforceable against the foreign state, and a broader “nature-of-act” approach that would confer immunity whenever the plaintiff's case is challenging conduct carried out on behalf of the state. The Comment argues in favor of the nature-of-act approach and explains why analogies in this context to domestic civil rights litigation are misplaced.

Third Party Litigation Funding with Informative Signals: Equilibrium Characterization and the Effects of Admissibility

Litigation funders provide non-recourse loans to plaintiffs who repay these loans if and only if they prevail. The loan's interest rate reflects the funder's information about the strength of the plaintiff's case. We analyze a monopoly and a two-firm Bertrand model. Bertrand competition does not eliminate funder profits or ineffciency. Making the funding contract admissible evidence enables the funder to increase its chance of recovery by reducing the interest rate to signal to the court that the plaintiff has a strong case. Under monopoly, there is only a separating equilibrium without admissible funding. With admissible funding, there is either a pooling equilibrium or a separating equilibrium, but either increases the joint welfare of plaintiffs and funders. Under Bertrand competition, admissible funding increases joint welfare if court's can make adverse inferences from the absence of funding contracts. Plaintiffs are generally better off under admissibility if they discount the future sufficiently.

Perceptions of Institutional Elder Neglect in Civil Court

Perception of institutional elder neglect (IEN) in civil court was investigated. Experiment 1 participants (N = 162) read an IEN trial summary in which alleged victim testimony was presented or not. Victim testimony increased the likelihood of ruling for the plaintiff, partially mediated by credibility of witnesses for each side. Experiment 2 (N = 68) included a condition with testimony from the victim's floor-mate. Likelihood of ruling for the victim: victim = floor-mate > no testimony, was mediated by perceived credibility of the plaintiff's case. Results are discussed in terms of the importance of alleged victim testimony in IEN cases.

Public Participation in China's Energy Governance: The Non-Case of Chongqing Green Volunteers v. Yangzonghai Power Company

This case study examines the political, legal, and energy issues raised when some of China's leading environmental lawyers and public advocates filed a complaint aimed at coal plant emissions within a special environmental court in China and with the hope that the court would grant the plaintiff public interest standing. At its simplest, the plaintiff's complaint merely requested the court to ensure the enforcement of existing law and to increase transparency surrounding the power plant's emissions and pollution controls. At its most ambitious, the plaintiff's case tests the robustness of China's promotion of public participation and its reliance on China's weak judiciary to be effective. Additionally, the case study highlights the existence of dual enforcement systems unique to China, and how these dueling systems impact the ability of the public to participate in energy and environmental governance issues. An examination of China's sulfur dioxide (SO2) regulation evinces that enforcement of laws and policies has less to do with written law, and more to do with incentivizing local executive governments to meet specific targets. While the system of executive driven enforcement proved effective at curbing SO2 emissions in China, at least to some extent, it can also marginalize the role of existing law, the judiciary, and the ability of the public to effectively engage in energy and environmental issues. The development of public interest standing within China's environmental courts is also discussed.

A unified model of settlement and trial expenditures: The Priest–Klein model extended

Settlement and trial expenditures are crucially interrelated. The literature on settlement, however, takes no account of models of trial. In this paper, we develop a unified model of settlement and trial expenditures. We do this by discarding the usual assumption of settlement models that trial costs are constant across cases. Instead, we follow the literature on trial by permitting trial costs to vary with the legal merit of the plaintiff's case. Our approach can be used to extend standard models of settlement such as the well-known Priest–Klein model as well as models based on asymmetric information. As a demonstration, we extend the Priest–Klein model and generally overturn that model's canonical results. In particular, we show that even in a fully symmetric model, predicted win rates at trial can deviate substantially from 50 percent. Furthermore, win rates will vary in response to legal reforms that shift the decision standard.

Forensic Engineering Critique Of The Methodology Eliminating Fire Cause Possibilities

In A Case Involving A Residential Fire With Fatalities, Plaintiff Experts Alleged That The Fire Originated In A Bedroom As A Result Of An Electrical Failure In An Oscillating Pedestal Fan. At The Time Of The Fire, The Fan Was Plugged Into A Six Foot Extension Cord That Was Lying On The Floor Under The Bed And Plugged Into A Standard 115 Volt Duplex Receptacle. The Plaintiffs, Specific In Their Allegations, Opined That The Failure Occurred In The Rotary Switch That Controlled The Speed Of The Fan Even Though No Physical Evidence Of A Failure Of That Nature Was Identified Or Collected During The Analyses Of The Fire Scene. Since No Physical Evidence Of A Failure Was Identified, Nfpa 921, Guide For Fire & Explosion Investigations, Requires That All Other Potential Ignition Sources In The Area Of Origin Be Eliminated As A Possible Cause. Plaintiffs Eliminated The Power Cord For The Fan, The Extension Cord And The Cord Plug And Cord Receptacle Connection Under The Theory That The Material Was Pvc With A Vw-1 Fire Rating. Plaintiffs Testified That The Self Extinguishing Characteristics Of Vw-1 Material Were Such That, Even With An Electrical Failure In One Of Those Components That Resulted In The Ignition Of The Material, There Would Be Insufficient Heat Released To Ignite The Box Spring For The Bed. Plaintiffs Also Eliminated Improperly Discarded Smoking Material As A Potential Cause.Efendants Were In Sharp Disagreement With Plaintiff Case In Chief Regarding The Elimination Of The Vw-1 Materials As A Potential Fire Cause, Since The Material Will Combust In Situations With A Sustained Electrical Fault. Defendants Conducted Tests Which Not Only Demonstrated An Electrical Failure With Ignition At The Extension Cord Plug Receptacle Interface, But Also That The Burning Vw-1 Pvc Released Sufficient Heat Energy To Ignite A Box Spring Similar To The Box Spring Involved In The Fire. The Results Of Those Tests Assisted In The Resolution Of The Case Prior To Trial.

Medical Malpractice and the Chest Physician

The US malpractice system is based on tort law, which holds physicians responsible for not harming patients intentionally or through negligence. Malpractice claims are brought against physicians from most medical disciplines in proportion to their numbers in practice and to the frequency with which they perform procedures. Claims against chest physicians most commonly allege injuries caused by the following: (1) errors in diagnosis, (2) improper performance of procedures, (3) failure to supervise or monitor care, (4) medication errors, and (5) failure to recognize the complications of treatment. Most of these injuries occur in hospitals, and many of the injured patients die. The social goals of the medical malpractice system include the following: (1) compensating patients injured through negligence, (2) exacting corrective justice, and (3) deterring unsafe practices by creating an economic incentive to take greater precautions. Some patients injured through negligence are compensated, but most are not. Claims are brought against some negligent physicians but also some who are not negligent, and being negligent does not guarantee that a claim will be brought. The deterrent effect of medical malpractice is unproven, and the malpractice system may prompt defensive medicine and increase health-care costs. And by stressing individual accountability, it conflicts with a systems-oriented approach to reducing medical errors.

Risk Management for Pressure Ulcers: When the Family Shows Up With a Camera

Pressure ulcers, although sometimes unavoidable, are frequently viewed as a failure of the health care system. Private civil lawsuits alleging malpractice or negligence related to pressure ulcers are becoming increasingly common. Because of their graphic nature, a photograph of a wound may add value to a plaintiff's case whether or not a negligent act has truly occurred. When the family shows up with a camera, caregivers should be "on notice" that a lawsuit may occur. This applies not only to nursing homes, but to any setting in which pressure ulcers occur including hospital, rehabilitation facility, home care, or hospice. When the threat of litigation arises, we recommend steps that include reestablishing trust with the family, reassessing the patient, reevaluating the care plan, documenting problem behaviors, and incorporating Quality Improvement principles.

A princely impostor?: the strange and universal history of the Kumar of Bhawal

List of Illustrations ix Preface xi List of Abbreviations xvii Chapter One: The Facts of the Matter 1 Chapter Two: An Estate Called Bhawal 15 Chapter Three: On Hunting and Other Sports 32 Chapter Four: What Happened in Darjeeling? 46 Chapter Five: First Brush with the Law 72 Chapter Six: The House on Lansdowne Road 81 Chapter Seven: A Fondness for Miracles 97 Chapter Eight: The Identity Puzzle 115 Chapter Nine: The Trial Begins 138 Chapter Ten: Darjeeling: The Plaintiff's Case 172 Chapter Eleven: Experts on Recognition 186 Chapter Twelve: For the Defense 207 Chapter Thirteen: The Climax 224 Chapter Fourteen: Reasonings 237 Chapter Fifteen: The Judgment 258 Chapter Sixteen: The Appeal 277 Chapter Seventeen: Razor's Edge 307 Chapter Eighteen: The Decision 342 Chapter Nineteen: To London and Back 367 Notes 389 Bibliography 409 Index 417

Litigation and the Evolution of Legal Remedies: A Dynamic Model

In this paper we build upon existing literature on the evolution of the common law. We consider a model of legal evolution in which judges have varying ideologies and propensities to extend the domain of legal remedies and causes of action. Parties have symmetric stakes and are rational. Plaintiffs bring a case to court if the expected net return from the case is positive. The net expected value of the case depends on the objective merits of the case, the state of the law, and the ideological propensity of the judge. Plaintiffs have full control over whether to bring a case to court. In our model, the combined presence of differences in judges' ideology and plaintiff's case selection generate a monotonic upward trend in the evolution of legal rules and remedies. This may explain the stylized fact under which certain areas of the law have been granting increasing levels of remedial protection and recognition of plaintiffs' actions.

Of Two Wrongs that Make a Right: Two Paradoxes of the Evidence Law and Their Combined Economic Justification

Of Two Wrongs that Make a Right: Two Paradoxes of the Evidence Law and Their Combined Economic Justification

Upsetting the Balance between Adverse Interests: The Impact of the Supreme Court's Trilogy on Expert Testimony in Toxic Tort Litigation

MARGARET A. BERGER [*] I INTRODUCTION In 1948, in Michelson v. United States, [1] Justice Jackson declined to modify the common law rules on character evidence. He warned that [t]o pull one misshapen stone out of the grotesque structure is more likely simply to upset its present balance between adverse interests than to establish a rational edifice. [2] Justice Jackson's comment is worth pondering in a very different context. Beginning in 1993, the Supreme Court, in a trilogy of opinions, has explicitly sought to rationalize the law on expert testimony. [3] This article examines Justice Jackson's prediction that a change in an evidentiary rule may realign the balance that previously existed between adverse interests. My inquiry is limited to toxic tort cases for a number of reasons. First, these are the cases that drove the demand for expert testimony reform. [4] These are the cases that produced allegations about venal experts who bring junk into the courtroom [5] and that seem to have piqued the Supreme Court's interest in expert proof perhaps because of the huge amounts of damages and transaction costs at stake. [6] The first two opinions in the trilogy deal with the admissibility of expert proof on causation in toxic tort cases. Second, Justice Jackson's thesis seems applicable to toxic tort litigation because the trilogy may be leading some district court judges to exclude experts proffered by plaintiffs on the issue of causation who previously would have been permitted to testify. [7] The Federal Judicial Center conducted surveys in 1991 and 1998 asking federal judges and attorneys about expert testimony. In the 1991 survey, seventy-five percent of the judges reported admitting all proffered expert testim ony. By 1998, only fifty-nine percent indicated that they admitted all proffered expert testimony without limitation. Furthermore, sixty-five percent of plaintiff and defendant counsel stated that judges are less likely to admit some types of expert testimony since Daubert. [8] Without the means to prove causation, which is always a crucial element of the plaintiff's case, the plaintiff must lose, and the litigation ends with summary judgment for the defendant. The consequence, according to some observers, [9] is that toxic tort law is being reformulated in the federal courts to the advantage of defendants, a result that accords with Justice Jackson's predictions about the impact an evidentiary change may have. This article seeks to uncover the various ingredients that have contributed to this result. Part II contains an overview of the trilogy on expert proof and examines its message for the federal district judge. Part III examines the unstated assumptions some federal courts are making about science that affect a judge's rulings on the admissibility of plaintiffs' expert testimony. Part IV deals with a striking paradox. As every first-year law student knows, the Erie doctrine [10] requires a federal judge who sits in diversity jurisdiction to apply state substantive law. Toxic tort cases almost invariably come into federal court on the basis of diversity jurisdiction. Nevertheless, federal courts have ignored Erie in ruling on the admissibility of plaintiffs' experts, even in situations in which sensitivity to state law would seem appropriate under current Supreme Court jurisprudence, but have relied on Erie to convert rulings on the admissibility of evidence into determinations about the sufficiency of the evid ence. This conflating of sufficiency and admissibility began before the recent amendment to Rule 702, which added a sufficiency requirement to the rule. [11] Finally, Part V considers how the trilogy on the admissibility of expert proof has intersected with the Supreme Court's previous trilogy on summary judgment to move final adjudication in the toxic tort case from the trial to the pretrial stage, and from jury consideration to a decision by the judge. …

Choice of Law and the Home Court Advantage: Evidence

Modern choice of law rules are often regarded as simply an opportunity for a judge to exercise ad hoc or unprincipled discretion over the outcome of the case, rather than as a principled exercise in the legal and policy reasoning underlying the choice of law theory. This paper tests the hypothesis of Lea Brilmayer that choice of law rules are pro-resident, pro-forum-law, pro-recovery. To do so, I give an econometric reanalysis of the data used by Patrick Borchers, 49 Washington and Lee Law Review 357 (1992), who found that Brilmayer was correct. I find that Brilmayer is correct with respect to forum law, and correct with respect to recovery in the sense that although the marginal plaintiff has roughly equal prospects in either a lex loci state or a modern state, the fact that there are on average more suits filed and more recoveries awarded in non-lex loci states suggests that the marginal plaintiff's case is weaker in the non-lex loci states than in the lex loci states. I also find that the data do not support Brilmayer's assertion about the pro-resident bias -- if anything, the home-court advantage is more pronounced in the traditional states. I also argue that Borchers was overhasty in his pronouncement that courts do not take the new approaches seriously. I show that once the volume of cases and the natural differences of legal culture around the nation have been accounted for econometrically, there are clear differences between the results found under the various paradigms and that far from being unprincipled, the results generally follow Borchers's own predictions. Choice of law seems to adhere to economic predictions, as well; in places lacking a firm rule of lex loci, a presumption of lex fori seems to be the default substitute except in a few states adopting the minority view of Leflar. Given the fundamentally distributive role of choice of law, and the potential efficiency gain to the forum state of applying its own law, this outcome seems natural.

Medico-legal implications of sexual and relationship sequelae following trauma, surgery or childbirth

The importance of sexual and relationship sequelae following trauma, surgical or childbirth complications has been recognized by the legal profession (Simanowitz, 1996) and can form part of the plaintiff's case for compensation. This may include fees for sexual and relationship therapy when the relationship has been placed under stress by the problem or more substantial compensation where the relationship has broken down irretrievably. If interim payments are available then therapy can begin before the final hearing, or plaintiffs may opt to fund themselves in anticipation of a final settlement in their favour. A review of 17 medico-legal reports prepared by the author between 1989 and 1996 is presented. Fourteen were medical negligence cases and three were for personal injury. Sixteen of the 17 cases have ended and none has come to court. One is outstanding and awaiting trial in 1998. Of the 16 completed cases, three were dropped and 13 settled out of court in favour of the plaintiff. The discussion focuses on issues raised by these cases and their relevance to the medical and legal professions and sexual and relationship therapy

Science in the Supreme Court: round two.

Since the United States Supreme Court's 1993 decision in the Daubert case, federal judges have been looking more carefully at the scientific basis of the expert testimony presented in their courtrooms. Medical-device litigation, especially that over the alleged harm caused by breast implants, has been at the center of this rethinking of the role of the court in assessing scientific evidence. Cases that were about to settle for a total of more than $4 billion are now being seen as potentially groundless. One judge in Oregon dismissed a group of breast-implant cases. Finding there was no scientific basis for the plaintiff's claims. Another court, overseeing a large group of cases, has appointed an independent panel of experts to determine if the plaintiff's experts will be allowed to testify. As in the Oregon breast-implant cases, the exclusion of a plaintiff's expert witness often means the court must also dismiss the plaintiff's case. Plaintiffs have appealed these decisions, arguing that since the trial court's exclusion of their expert's testimony ends their case, the appeals courts should strictly review the correctness of the trial court's decision. In GE vs. Joiner, decided December 1997, the United States Supreme Court established the proper standard for appellate review of decisions by trial courts to exclude evidence.

Mock Trial: How Human Factors Experts Contribute to Civil Litigation

A mock trial format will be used to demonstrate how human factors consultants' expertise can facilitate the legal process. The following are two cases that will be “tried” in the mock trial sessions. These cases concern incidents that are commonly investigated by forensic human factors professionals: pedestrian accidents and product warnings. The trip and fall case is designed to depict how a human factors expert can contribute to a plaintiff's case; the warnings case is designed to demonstrate how a human factors expert can enhance a defendant's case. Participants will demonstrate the qualification process, and the direct and cross examination of experts. Experienced human factors professionals will serve as the experts, commentators, attorneys and judge. The commentators will highlight key issues and provide advice to those interested in a forensic human factors practice.

Equilibrium formation of class action suits

In large class litigation, courts often award judgments or make important decisions on the basis of the aggregate merit of the entire class and not upon the individual merit of each member. This so-called damage averaging practice provides different incentives to victims with different stakes to join a class action. When the defendant has complete information about each plaintiff's case, adverse selection, much like Akerlof's ‘lemons’ problem, arises in that low-stakes plaintiffs join the class action and high-stakes plaintiffs opt out. However, when the defendant does not have complete information the signaling effect associated with a plaintiff's membership decision matters; in particular, a low-stakes plaintiff may opt out for fear that joining the class may be interpreted by the defendant as evidence of a weak case. Thus, pure adverse selection never occurs in equilibrium. In equilibrium, a large fraction of high-stakes plaintiffs may join a class action, and low-stakes paintiffs may opt out.

Civil Discovery: Its Effects and Optimal Scope

IN this article I use Robert Cooter and Daniel Rubinfeld's insightful article on the discovery process' as the point of departure for analyzing two basic questions about this central feature of civil litigation. First, what are the effects of enabling litigants to compel adversaries to turn over evidence in their possession before trial? And second, how much discovery should be allowed in a given case? Section I examines the first, positive issue. My focus is on discovery's informational effects.2 The discovery process provides litigants with information about their case. But what kind of information exactly? In Cooter and Rubinfeld's model, discovery gives the parties information about the probable outcome of trial. The defendant (say), but not the plaintiff, knows the contents of certain evidence that is likely to emerge at trial. If the evidence is helpful to the plaintiff's case, the defendant

Ethico--legal aspects of high risk neurosurgery.

The greatest impediment to Courts understanding the realities of high risk Neurosurgery lies in the advice of neurosurgical experts who themselves are prepared to overlook those realities in support of a Plaintiff's case in an adversarial legal system. If such advice is taken to extremes, and Judges are unable to consider reality rather than perfection in formulating judgements, Neurosurgeons may be inhibited from performing some operations for which there are clear indications. Neurosurgeons in some Western Countries carry very high indemnity insurance, which follows from the high risk nature of Neurosurgery, patient's expectations, and, to some extent, from the activities of Lawyers. However if all parties behaved reasonably, developments could continue which will in time lead to the “high risk’ to today becoming the normal or low risk of tomorrow. Furthermore, given responsible behaviour by those who seek and who administer the Law, the Law could prove overall to be of benefit to the practice of Neurosurgery.