Damage Death Research Articles

Using TIPS to Discount to Present Value

AbstractThe practice of forensic economics has a long history of trying to identify the correct interest rate to use when valuing economic losses in personal injury and wrongful death cases. We trace the legal history as it relates to the appropriate interest rates and adjustments for inflation. We then discuss the use of Treasury Inflation Protected Securities, TIPS, and an analysis of the combined effect of realized inflation and taxes on the effective return. We come to the unexpected conclusion that the use of TIPS does not lend itself to a simple adjustment to the rate for taxes nor eliminate the need to consider expected inflation.

ADVANCING THE RIGHTS OF HETEROSEXUAL LIFE PARTNERS IN RESPECT OF LOSS OF SUPPORT Paixão v Road Accident Fund 2012 JDR 1749 (SCA)

The advent of the Constitution, as well as a reorientation in societal values, has seen old Western traditional rules being confronted with new challenges. The era of social change has consequently underscored the need for family law reform in certain areas of the law. A key aspect of family law and one that has come under constitutional scrutiny in recent times is that of persons living together as same-sex or heterosexual life partners. Life partnerships have none of the ex lege consequences of a civil marriage, and as such the consequences of a legally recognised marriage do not generally apply to life partners. A range of statutes have, however, given rise to specific spousal benefits being awarded to life partnerships , whilst, in the absence of same-sex partners being able to legalise their relationships, a number of ad hoc judgments have extended certain additional consequences of a civil marriage to same-sex life partners. The disparity in extending spousal benefits to same-sex life partners, to the exclusion of heterosexual life partners, raises the question of the tenability of the present legal position of life partnerships in light of the fact that the Constitution of South Africa is underpinned by values of equality and non-discrimination. Despite a decade of the aforementioned inequality, there seems to have been some movement made in restoring the dissimilarity of benefits afforded to same-sex life partners to the exclusion of their heterosexual counterparts. In this regard, the Supreme Court of Appeal has, of late, delivered judgments affording unmarried dependants in heterosexual life partnerships the locus standi to institute claims for loss of support arising from the wrongful death of a breadwinner. In this regard the case of Paixão is of particular importance as the case factors in the boni mores of society by finding that a tacit agreement between heterosexual life partners establishes a contractual reciprocal duty of support that is worthy of protection. The Paixão decision therefore shows a willingness to advance South Africa’s common law by affording protection to unmarried heterosexual life partnerships in line with their same-sex counterparts, as precipitated by the rights and values laid down in the Bill of Rights.

Sleep surgery and medical malpractice

To describe and analyze the causes and outcomes of lawsuits pertaining to sleep surgery to mitigate future litigation and improve physician education. A retrospective review of a publicly available database containing jury verdicts and settlements. The LexisNexis MEGA Jury Verdicts and Settlements database was reviewed for all lawsuits including settlements and trial verdicts related to sleep surgery. Data including type of surgery performed, plaintiff allegation, nature of injury, outcomes, and indemnities were collected and analyzed. Fifty-one cases met the inclusion criteria. Of these, 30 were decided by a jury, nine were settled out of court, and 10 were resolved by other means. Overall, 57% of known outcomes favored the defendant. The most common surgery performed was tonsillectomy (57%), followed by uvulopalatopharyngoplasty (45%), adenoidectomy (31%), and septoplasty (31%). No difference was found between outcomes when comparing the most common injuries cited, including wrongful death (P = .572), airway compromise (P = .376), and drug reaction (P = .443). If failure to recognize a complication (P = .034) or delay in diagnosis (P = .026) was a component of the legal allegations, the outcome significantly favored the plaintiff. The median settlement ($545,000) and plaintiff award ($1.45 million) were not significantly different (P = .13). The majority of outcomes favored the defendant. Type of injury did not predict outcome. Failure to recognize complications and delay in diagnosis strongly predicted a verdict in favor of the plaintiff. 2c.

Otolaryngology and medical malpractice: A review of the past decade, 2001–2011

To better understand the causes and outcomes of lawsuits involving otolaryngologists in the past decade by analyzing malpractice litigation trends to prevent future litigation and improve physician education. Analysis of a national database for all US civil trials. The Westlaw database was reviewed from 2001 to 2011. Data were compiled on the demographics of the plaintiffs, use of expert witnesses, procedures, nature of the injury, legal allegations, verdicts, and indemnities. One hundred ninety-eight cases met inclusion criteria. Verdicts for the defendant/otolaryngologist predominated (58%), whereas the average award when the verdict favored the plaintiff was $1,782,514. When otolaryngologists were used as expert witnesses by the defense, the verdict outcome statistically favored the defendant. Two of the most commonly cited legal allegations were improper performance and failure to diagnose and treat. Fifty-one cases involved allegations of wrongful death, with the overall outcome favoring the plaintiffs (51%). The average indemnities in these cases were significantly higher for plaintiff verdicts at $2,552,580 versus settlements at $992,896. Forty-two cases involved malignancy, with the two most common allegations being failure to diagnose and treat (79%) and delay in diagnosis (74%). Our study reveals that in the past decade, in significant malpractice litigations, overall outcomes favored otolaryngologists. The average awards was significantly higher when cases involved malignancy. Our analysis reveals the importance of meticulous surgical techniques and thorough preoperative evaluations. Last, when otolaryngologists are defendants in litigation, our review reiterates the value of the otolaryngologist as the defense's expert witnesses.

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

AbstractThis article presents the legal framework for the assessment of economic damages in the state of Colorado. Special attention is given to the statutes, case law, and procedural rules that govern the estimation of damages in personal injury and wrongful death actions including medical malpractice and ski accidents. Also included are an overview of the jury instructions and the role of the forensic economic expert in the assessment of economic damages.

Sleep Surgery and Medical Malpractice

Objectives: Describe and analyze the causes and outcomes of lawsuits pertaining to sleep surgery in order to mitigate future litigation and improve physician education. Methods: The LexisNexis MEGA Jury Verdicts and Settlements database was reviewed for all lawsuits including settlements and trial verdicts related to sleep surgery. Data including type of surgery performed, plaintiff allegation, nature of injury, outcomes, and indemnities were collected and analyzed. Results: Fifty-one cases met inclusion criteria. Of these, 30 were decided by a jury, 9 were settled out of court, and 10 were resolved by other means. Overall, 57% of known outcomes favored the defendant. The most common surgery performed was tonsillectomy (57%) followed by uvulopalatopharyngoplasty (45%), adenoidectomy (31%), and septoplasty (31%). No difference was found between outcomes when comparing the most common injuries cited, including wrongful death (p = 0.572), airway compromise (p = 0.376), and drug reaction (p = 0.443). If failure to recognize a complication (p = 0.034) or delay in diagnosis (p = 0.026) was a component of the legal allegations, the outcome significantly favored the plaintiff. The average settlement ($535,000) and plaintiff award ($1.52 million) were not significantly different (p = 0.13). Conclusions: The majority of outcomes favored the defendant with a trend towards higher payouts in cases settled by a jury when compared to a settlement. Type of injury did not predict outcome. Failure to recognize complications and delay in diagnosis strongly predicted a verdict in favor of the plaintiff.

Table of Contents

Abstract Cover Story Take preventive steps now to protect your head coaches, programs Train, then carefully monitor assistant coaches News Family settles wrongful death lawsuit Judge amends NCAA antitrust lawsuit Injured TSU basketball player sues Maryland star player arrested Compliance Collaborate to ensure access to athletics for students with disabilities Remember why providing access is so important Leaders & Innovators ELIZABETH ‘BETSY’ A. ALDEN, PRESIDENT/CEO, ALDEN & ASSOCIATES, INC. Former AD in consultant role helps others follow best practices Review Alden's advice to ADs NCAA Sanctions Gov's lawsuit against NCAA regarding Penn State fails due to lack of profit motive Managing Your Office Manage effectively when there's too much to do NCAA Update NCAA cuts ties with EA Coach draws penalties for comments E‐book clarifies transfer process Website offers APR info You Make The Call Must football players' education records be released? Lawsuits & Rulings WRONGFUL TERMINATION Coach gets 2nd chance to plead complaint COACHES' CONTRACTS Coach's documentation failure dooms lack‐of‐payment claim SEXUAL HARASSMENT Student‐athlete's harassment claim didn't beat the clock A Conversation With… TIM BECKMAN, HEAD FOOTBALL COACH, UNIVERSITY OF ILLINOIS ‘Encouragers’ boost academic success Resources/Ideas Get admin help Curb violence Names in the News

An Analysis of New York State’s Flawed Recovery Scheme in Prenatal Malpractice Actions: Why a Claim of NIED Should Be Available to Plaintiffs

Prior to 2006 mothers could not bring a wrongful death action on behalf of their stillborn child, nor could they bring any personal cause of action, absent a physical injury independent from the unsuccessful birth itself. In 2006, the New York Court of Appeals attempted to fill this gap in the case of Broadnax v. Gonzalez. This Note will analyze whether Broadnax successfully filled this recovery gap. Parts II, III, and IV will discuss the history of a mother’s failed attempts to gain recovery for the death of her stillborn child. Part V will discuss Broadnax. I will argue that Broadnax is flawed, as evidenced by subsequent cases that follow it as precedent. Finally, in Part VI, I will offer a better solution: instead of receiving arbitrary awards in the form of emotional damages, mothers should be given an actual cause of action in the form of Negligent Infliction of Emotional Distress.

Suit Brought for Wrongful Death of Lab Worker

Suit Brought for Wrongful Death of Lab Worker

Clostridium difficile Infections Can Hit Facilities in the Gut, Too

Clostridium difficile Infections Can Hit Facilities in the Gut, Too

Personal Consumption and Single Persons: A Reply to Thomas R. Ireland

Abstract After an exchange of comments, Ireland now agrees that could-based lost support analysis is appropriate as long as “could” is not represented as “would.” So, regarding the forensic economic convention of “could” or “contingent” based analysis in wrongful death, our exchange nets to zero.

A Comment on “Self-Consumption in Wrongful Death Cases: Decedent or Family Income?”

Abstract In a recent article in the Journal of Forensic Economics, Michael L. Brookshire and Frank L. Slesnick presented their analysis of the husband or wife decedent self-consumption literature. This comment presents two counter-arguments to their self-consumption methodology which renders their preference to the family income approach inconclusive. I first review the Brookshire and Slesnick make-whole damages doctrine and then I discuss the problems with forecasting household income.

A Reply to “A Comment on Self-Consumption in Wrongful Death Cases: Decedent or Family Income?”

Abstract This Reply responds to a comment made to our article titled “Self-consumption in Wrongful Death Cases: Decedent or Family Income?” published recently in the Journal of Forensic Economics 2009. The Comment's two main points are that our definition of the “make-whole” doctrine is not exclusive and the forensic economic literature is not able as yet to forecast total household income. It is our contention that the first point is simply incorrect and that the second point, although containing some validity, does not justify using a method of calculating economic loss just because the forensic economist will find it difficult to forecast the earnings of two individuals rather than one individual.

Evaluating Losses of Pension Benefits in Wrongful Death Cases

Evaluating Losses of Pension Benefits in Wrongful Death Cases

The State of the Union: Toward a Biopolitics of Marriage

The State of the Union: Toward a Biopolitics of Marriage

Bereavement Damages under German Law - Status Quo and Objectives for Reform

Under the German law of torts or delict, nonpecuniary losses incurred as a consequence of the death of a loved one are not compensable. Only if the spouse, partner or relative suffered a nervous shock serious enough to result in a medical condition that was verified by a doctor will damages for pain and suffering be awarded. The government of Bavaria has published a draft bill that suggests to change this state of the law and to introduce bereavement damages as a response to wrongful death. This paper explores how the Bavarian proposal fits in with general trends in European tort law and discusses the pros and cons of bereavement damages. The analysis is based upon the economic objectives of the law of torts, namely efficient deterrence, efficient risk bearing and efficient administration of claims. It is being argued that bereavement damages should be limited to cases of wrongful death, excluding cases of serious bodily injury or impairment of health. Furthermore, the scope of potential plaintiffs and the amounts recoverable should be fixed by statute rather than be left for the courts to decide on a case-by-case basis.

Securitizing Structured Settlement Payment Streams: A Primer

The term “structured settlement” refers to a broad category of financial resolutions between an aggrieved party and a party deemed to be responsible (or their insurer). In a structured settlement, often used to settle wrongful death and personal injury cases, the plaintiff is paid money over time, rather than in a single lump sum. This article provides an introduction to structured settlements, including how they benefit plaintiffs and insurers, how they are underwritten, how their transactions function, how they are securitized, how they have performed in the asset-backed securities marketplace, and how their risks are uncorrelated to the risks to which many other asset classes are exposed. <b>TOPICS:</b>Legal and regulatory issues for structured finance, legal/regulatory/public policy

Valuation of Spouse and Survivor Benefits In a Defined Benefit Retirement Plan

Abstract A search of the forensic economic literature fails to disclose any discussion of the proper methodology for valuing the loss of survivor benefits in a defined benefit retirement plan when a wrongful death event occurs. A first approximation, which might be used to calculate a widow's loss of retirement benefits resulting from the wrongful death of her spouse, is the retiree's benefit payments minus his personal consumption (or maintenance allowance) minus the widow's survivor benefit, if there is one. Economic analysis reveals that while the actual payment to the retiree includes the spouse's benefit if the retiree does survive, it fails to include the spouse's expected survivor benefit in the event that the retiree does not survive. This omitted benefit is significant and should be included in valuing the spouse's expected benefit from the total retirement plan and the widow's loss. Legal analysis reveals that the widow's benefit is essentially the same as proceeds from privately purchased life insurance, which in common law would be considered a collateral source and protected from disclosure at trial or offset against an award. However, tort reform efforts over the past 30 years have led many states to modify or even repeal the traditional collateral source rules. Therefore, the widow's benefit may or may not be considered in valuing the loss of retirement, depending on the jurisdiction, the cause of death (e.g., medical malpractice), and even the interpretation of the collateral source rules by the trial judge. If it is determined that the collateral source rule excludes introduction of the survivor benefit, a reasonable alternative for the plaintiff would be to claim the loss as the retiree's gross benefit minus his personal consumption weighted by the joint probability of survival.

Personal Consumption and Single Persons: A Reply to Thomas Ireland

Abstract In a recent JFE article, I presented five empirical approaches to identify the personal consumption of earnings made by single persons. I stated that forensic economic estimates of earnings minus personal consumption are relevant to, but do not define, the awardable financial support damages to survivors or estates under the various wrongful death laws in the United States. In a comment on my article, Thomas Ireland has stated that the role of forensic economic evaluation is to only estimate how much financial support single decedents would actually have provided to statutory survivors—which he states is often zero. I present several arguments and facts to show that Ireland's criticisms and concerns are unsupportable.

Life and death in the borderlands: Indian sovereignty and military impunity

This article looks at the operation of Indian national security and counter-insurgency laws in the border regions of Manipur and Kashmir. It focuses, in particular, on the Armed Forces (Special Powers) Act (AFSPA; in effect in Manipur since 1980 and in Kashmir since 1990), which gives the army wide-ranging powers of search, arrest, seizure, destruction of houses and the right to shoot to kill to maintain public order, without civilian or judicial oversight. Two cases challenging AFSPA are examined. Irom Sharmila, a Manipuri poet, has been on a fast-to-death for the repeal of AFSPA since 2000, to protest against the killing of civilians by Indian troops. In Kashmir, in the case of Masooda Parveen v Union of India, the widow of Ghulam Mohi-ud-din Regoo petitioned the Indian Supreme Court for compensation for the wrongful death of her husband, a businessman who was detained, tortured and killed by Indian security forces in 1998. In 2007, the Indian Supreme Court dismissed Masooda Parveen’s petition, upholding the army’s right to kill on suspicion, and denying any safeguards for civilians in Kashmir by invoking AFSPA. In the light of such cases, this article questions the nature of sovereignty, whether such laws are compatible with international human rights and with the practice of democracy in India.