The jury is still in: Florida's Birth-Related Neurological Injury Compensation Plan after a decade

Florida's Birth-Related Neurological Injury Compensation Plan (NICA) is the most significant experiment with compensation for medical injury yet undertaken in the United States. As NICA enters its second decade of operation, maintaining the scheme's jurisdictional integrity has emerged as a key challenge for policy makers in Florida. We explore the relationship that has emerged between NICA and the tort system as competing avenues for families to obtain compensation for severe birth-related neurological injury. By linking NICA claims data with data on malpractice claims filed in Florida, we found a lively persistence of "bad baby" litigation despite NICA's implementation. Many families pursued claims in both fora. An explanation for these results can be traced to key features of the plan's design--primarily, the way in which "exclusive" jurisdiction over injuries is determined and the restrictive nature of the compensation criteria used. Our findings may help efforts to consolidate NICA's role in injury compensation and inform future design of alternative compensation systems.     

Bad medicine: prescription drugs, preemption, and the potential for a no-fault fix

For decades, federal regulation of pharmaceutical drugs and medical devices has worked hand in hand with state tort claims to protect the health and safety of the American public. Now, a new trend toward preemption endangers this scheme. In recent years, the Supreme Court has given increasing deference to agency assertions about their preemptive authority and has found preemption in an increasing number of cases. In the process, the Supreme Court has preempted claims for medical device injuries and left claims for pharmaceutical harms in a precarious position. The elimination of common law claims for drug and device harms will leave holes in the FDA's regulatory scheme, endangering the health and safety of Americans. It will also prevent ordinary Americans from seeking compensation for their injuries--even those injuries caused by manufacturer malfeasance. This Article proposes that Congress create a no-fault compensation scheme for drugs and medical devices to close these gaps. Such a scheme could be both practical and politically possible, satisfying manufacturers, tort reformers, patients, and plaintiffs' lawyers alike.     

Cumulative injury or disease claims: an attempt to define employers' liability for workers' compensation

The workers' compensation systems of several states have been expanded in recent years to include injuries and diseases caused by cumulative injury and occupational stress. This expansion has placed a financial burden on the respective systems, on employers, and on consumers, who ultimately must pay the cost of claims through higher priced products or services. This expansion may not be justified from a social perspective, however; extant medical and sociological evidence is not conclusive as to whether occupational-stress injuries or diseases--such as coronary heart disease, hypertension, stroke, and neuropsychiatric illness--are the direct result of stressful work environments. Using the California workers' compensation system as a model, the authors submit that the underlying premises of liability governing the expanded systems should be reassessed based (1) on economic factors, specifically, the increasing costs of workers' compensation; (2) on the capacity of the system to process an ever-increasing number of claims; and (3) on the principle on which workers' compensation systems were established, that of equity between the employer and the employee. On the basis of these three factors, the authors evaluated three legislative approaches to restructuring the expanded system: presumption of compensability, apportionment of liability, and threshold of compensability. The first recognizes that although certain health problems are related to the workplace, the degree of causation is difficult to prove; under this approach, therefore, causation is presumed, and injury compensated, for all diseases and injuries that the system defines as work related. The second holds that where a causal relationship between the work and the injury can be proved, the employer nevertheless should be responsible only for that portion of the disability actually caused by the workplace. The third directs that the injured employee be compensated only when a direct causal link between the job and the injury or disease can be proved. The authors recommend that legislators implement this third alternative. For one reason, it is feasible economically; for a second, it would not burden the system or increase litigation; for a third, it is equitable to both employees and employers.     

U.S. Industries v. Director: "claim" versus "condition" in the analysis of workers' compensation cases

Under most workers' compensation statutes, an injury must "arise out of " and "in the course of" employment in order to qualify as a compensable disability. In U.S. Industries v. Director, the Supreme Court held that the Longshoremen's and Harbor Workers' Compensation Act must be strictly construed to avoid transforming the compensation system into a form of social insurance. In U.S. Industries, the Court denied a disability claim based on an arthritic condition which was manifested while the worker was at home in bed. This Note contends that the Supreme Court neglected to consider pertinent medical realities when analyzing the causation question. Thus, the decision undermines the overall rationale behind workers' compensation legislation. Nonetheless, the Note argues that the case does not relax the requirement of adequately scrutinizing the causative elements underlying any reasonable claim for disability benefits. An analysis adequately accommodating both medical and legal facts, instead of relying upon the vagaries of statutory interpretation, is necessary to improve the efficiency and fairness of workers' compensation disability determinations.     

Administrative compensation of medical injuries: a hardy perennial blooms again

Periods in which the costs of personal injury litigation and liability insurance have risen dramatically have often provoked calls for reform of the tort system, and medical malpractice is no exception. One proposal for fundamental reform made during several of these volatile periods has been to relocate personal injury disputes from the tort system to an alternative, administrative forum. In the medical injury realm, a leading incarnation of such proposals in recent years has been the idea of establishing specialized administrative "health courts." Despite considerable stakeholder and policy-maker interest, administrative compensation proposals have tended to struggle for broad political acceptance. In this article, we consider the historical experience of administrative medical injury compensation proposals, particularly in light of comparative examples in the context of workplace injuries, automobile injuries, and vaccine injuries. We conclude by examining conditions that may facilitate or impede progress toward establishing demonstration projects of health courts.     

Limiting Liability for Automobile Accidents: Are No-Fault Tort Thresholds Effective?

"No-fault" automobile insurance plans are designed to supplant the tort system by requiring motorists to purchase no-fault insurance and allowing victims to file liability insurance claims and tort suits only if their injuries exceed a legislated "tort threshold." While thresholds vary among states, many are satisfied if the victim incurs medical expenses as low as a few hundred dollars. Using insurance claims data, we estimate the effectiveness of several states' thresholds. We find that tort thresholds are surprisingly effective: modest tort thresholds reduce the number of successful tort claimants by half, and the strictest thresholds may exclude nine-tenths of potential claimants. Moreover, we find little evidence of claimants "padding" their claims to exceed the dollar thresholds.     

Products liability issues in school asbestos litigation

The hazards posed by deteriorating friable asbestos in the nation's schools are causing serious concerns for public health officials, school boards, parents and school employees. Reports by both the Environmental Protection Agency and the U.S. Attorney General's Office agree that both school children and school employees stand a substantially increased risk of contracting some form of asbestos-related disease as a result of exposure to deteriorating asbestos materials in school buildings. School systems plagued by the asbestos hazards are now filing suits against asbestos manufacturers alleging causes of action in breach of warranty, negligence and strict products liability in tort. Some plaintiffs in school asbestos litigation seek to recover the costs of EPA-mandated asbestos inspection and abatement programs which have already been completed. Still others request injunctions to compel the manufacturers themselves to conduct inspections and finance abatement. This Note examines the school asbestos situation from a legal perspective and focuses primarily on whether the schools' claims should be considered as economic losses or as property damage. It examines the impact of statutes of limitations on these cases under both contract and tort theories. The Note argues that school asbestos claims should be decided under a strict products liability standard.     

侵权债权在破产程序中的优先受偿顺位建构——基于“给最少受惠者最大利益”的考量

破产法的公平理念以及侵权债权的非自愿属性,决定侵权债权具有从现行破产法所规定的普通破产债权中分立出来,并优先于一般交易债权受偿的正当性。基于侵权债权类型化以及罗尔斯的公平的正义理念——给最少受惠者最大利益,侵权债权在区分人身侵权债权和财产侵权债权的基础上,应做以下受偿顺位安排:破产费用和公益债务之外,人身侵权债权——工资债权和社会保险费用——劳动补偿金债权——财产侵权债权——国家税收——一般交易债权。人身侵权债权甚至有可能优先于担保债权,如果担保债权的设立发生于人身侵权债权产生之后。社会强制责任保险费用债权视其保障范围可以先于人身侵权债权或财产侵权债权。     

The class certification of medical monitoring claims

The tort claim of medical monitoring has produced a disarrayed set of state and federal court opinions. The procedural dimensions of this claim are as vexing as the related substantive issues with which courts and commentators have long been grappling. Ordinarily, mass tort actions, typically involving claims for money damages, are certified under Rule 23(b)(3), which class category requires the right to notice and to opt out of a proceeding, and the fulfillment of "predominance" and "superiority" requirements. Such features are absent in Rule 23's mandatory classes. Nevertheless, this Note argues that it is appropriate for claims exclusively for medical monitoring to be certified as a mandatory class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure or its state law counterparts. Given that a medical monitoring fund is an equitable remedy, nonpreclusive of a future damages claim, and groupwide in nature, the (b)(2) class category adequately protects the due process rights of class plaintiffs.     

Work-related stress in Australia: The effects of legislative interventions and the cost of treatment

The Australian Institute of Health and Welfare data published in 2002 shows a continued rise in health care costs to the Australian community due to the growing number of people diagnosed with mental health disorders. Those mental health disorders may originate from a number of sources, including work and non-work-related factors. The so called work-related stress claims in all Australian jurisdictions are the most expensive form of workers compensation claim. In the most part this is due to the lengthy period of absence (duration) and complicated medical care which are characteristic of these claims. In Australia, in the last decade, attempts have been made to reduce the costs of compensable stress-related claims by imposing special legislative thresholds on such claims. This ‘back end’ approach to cost reduction has resulted in an array of legislative formula designed to exclude work-related stress claims. This article surveys the various legislative provisions dealing with work-related stress claims in Australia and provides an analysis of their effectiveness. A range of options are presented as alternatives to the exclusion of particular forms of work-related stress claims. The use of a corporate citizenship approach to the prevention and management of stress claims is also discussed as a proactive alternative to occupational safety and health legislative provisions and the workers compensation legislative exclusions.     

Preconception tort liability: recognizing a strict liability cause of action for DES grandchildren.

Over the past decade more than 1,000 "DES daughters" have filed lawsuits against the manufacturers of DES, alleging that their in utero exposure to the drug caused various reproductive tract abnormalities, including cancer. Plaintiffs now allege that their grandmothers' use of DES during pregnancy caused genetic damage leading to cancer in third generations. This Note addresses the validity of preconception tort liability in the context of third-generation DES cases. Plaintiffs in preconception tort liability cases have sought recovery under both negligence and strict liability causes of action. Courts should recognize the validity of preconception tort liability and allow a strict liability cause of action in third-generation cases.     

Neoclassical Difficulties: Tort Deterrence for Latent Injuries*

Economists often claim that the tort system leads firms to provide consumers and workers with the socially optimal level of safety. Moreover, in the case of work-related hazards, employers are alleged to have another source of incentives to take precautions. If wages are sensitive to job-related risks, employers should spend money to reduce such risks when, by doing so, they can save more in wage costs than the costs of the precautions taken. Whatever their merits in other settings, in the case of latent injuries such as workplace exposure to asbestos neither tort nor market are likely to provide an optimal level of safety; indeed, they have failed to do so in the examples we discuss. We find that the introduction of a long delay between the exposure to a hazard and the onset of symptoms introduces a variety of empirical complications that overwhelm the assumptions on which the neoclassical model rests. Our conclusion is thus that comparisons between tort and alternative systems of deterrence/compensation should start from an empirical assessment of how the tort system actually works (and doesn't work), rather than beginning with misleading theoretical claims about the system's optimality.     

Wrongful death claims. Harriton v Stephens. [2002] NSWSC 461. Edwards v Blomeley. [2002] NSWSC 460. Waller v James [2002] NSWSC 462

Studdert J in all three cases went to great length to summarise the global judicial position of "wrongful life" claims. He did not, however, examine in great length how or whether "wrongful life" claims or "wrongful birth" claims are reconcilable with tort and common law principles. Although the cases identify the difficulty in assessing and quantifying damages, they do not directly address the strict legal principles which apply in the assessment of damages. The main conclusion of the three judgments was that no duty of care is owed to the plaintiff in these circumstances and, even if a duty could be established, the impossibility of quantifying damages and public policy considerations warrant the rejection of such a claim: "thus conscience does make cowards of us all." The significance of the decisions cannot be understand. The decisions deny recognition of "wrongful life" claims in circumstances where a disabled person has incurred injuries en ventre sa mere (in the mother's womb) as a result of infections contracted by a plaintiff's mother or genetic material passed on by a plaintiff's parents. Some countries have now legislated for the abolition of "wrongful life and birth" suits. In January 2002 the French legislature passed a Bill overturning the "wrongful life" decision of the Cour de Cassation in Perruche (17 November 2000). As the issue now falls for ultimate determination by the French Senate, the French pro-life movement continues to lobby for the prohibition of "wrongful birth" suits as well. Furthermore, eight States in the United States have prohibited either one or both actions and the State of Michigan prohibited both actions in 2001. It is likely that all three cases will be appealed. The appeal in Harriton will re-examine the viability of a "wrongful life" claim in Australia whereas the cases of Edwards and Waller still need to determine the "wrongful birth" claims brought by the plaintiffs' parents. It is likely that the latter two cases will not be determined until the High Court has considered the Queensland "wrongful birth" case of Melchior v Cattanach, expected to be late in 2002.     

Recovering from research: a no-fault proposal to compensate injured research participants

National advisory committees have considered the obligations owed to research participants in the event of research-related injuries. These committees have repeatedly concluded that injured research participants are entitled to compensation for their injuries, that the tort system provides inadequate remedies, and that the United States should adopt no-fault compensation. But because the advisory committees have made no concrete proposals and have taken no steps toward implementing no-fault compensation, the United States continues to rely on the tort system to compensate injured research participants. This Article argues that recent legal developments and a transformation in the global research landscape make maintaining the status quo morally indefensible and practically unsustainable. Recent legal developments exacerbate the longstanding difficulties associated with the tort system as a method of compensation; nearly every injured research participant will have difficulty recovering damages, and certain classes of injured research participants--those in federal research and those abroad--are prevented from recovering altogether, resulting in substantial unfairness. In the past ten years, many of the countries substantially involved in research have mandated systematic compensation. By not mandating compensation, the United States has become a moral outlier and risks having its noncompliant research embargoed by foreign ethics committees, thereby delaying important biomedical advances. This Article examines alternative compensation mechanisms and offers a concrete no-fault compensation proposal built on systems already in place. The proposed system can be implemented in the United States and countries around the world to help harmonize various national compensation systems and to more equitably and effectively make those injured by research whole.     

Spiralling or Stabilising? The Compensation Culture and Our Propensity to Claim Damages for Personal Injury

The propensity of accident victims in England and Wales to claim compensation through the tort system has generally increased since the 1970s. Contrary to popular belief, however, it has remained relatively stable since 2000, if not since 1997/1998. The upward trend in claims abated, therefore, when no-win no-fee advertising achieved prominence. Whether this long-term increase in our propensity to claim supports the notion that a compensation culture has developed is largely a matter of interpretation. Our understanding of recent trends in our propensity to claim has clearly, however, been distorted through the media. This distorted legal consciousness may not only have affected our views of the tort system but may also have influenced our readiness to use it and thereby contributed to the stabilisation of accident claims in recent years.     

Administrative "health courts" for medical injury claims: the federal constitutional issues

Our article analyzes whether the federal government may constitutionally supplant a traditional system of common-law trials before state judges and juries with new federal institutions designed by statute for compensating victims of medical injuries. Specifically, this article examines the federal constitutional issues raised by various proposals to replace traditional medical malpractice litigation in state courts with a federal system of administrative "health courts." In doing so, we address the following constitutional issues: 1. Is there federal authority to preempt state law (the commerce clause and spending clause issues)? 2. May jurisdiction be created in non-article 3 tribunals, and may claims be decided without trial by jury (the separation of powers and Seventh Amendment issues)? 3. Would pilot programs that require some claims to be pursued in a federal administrative forum while other claimants are left to pursue traditional state tort law remedies be constitutional (the equal protection issue)? The article concludes that a federal compensation system through administrative health courts should be constitutional provided the statute is appropriately drafted and that appropriate factual findings are made concerning the benefits to patients and the public as well as to doctors and their insurers.     

Tort Law Culture: Image and Reality

This article highlights two contrasting images of tort. The first reflects the traditional portrayal of justice, depicting tort as an independent ‘natural’ system of rules of universal application forming the foundation of a just society. The second is more recent and relates to the perceived development of a damaging compensation culture. Focusing on personal injury litigation, we show how these portrayals differ from the reality of tort. In practice it is heavily influenced by institutional arrangements: the importance of both welfare provision and liability insurance is highlighted, and the effects of a ‘no‐win no‐fee’ claims market are examined. The operation of tort is very much affected by commercial interests and the economic demands of the institutions which surround it. Overall we conclude that the images of tort fail to reflect how the personal injury compensation system actually operates.     

侵权死亡赔偿的理论学说与制度设计：基于个人福利角度的分析

死亡赔偿不是对死者本身的赔偿,而是对死者近亲属的赔偿。其请求权基础是死者近亲属受到了相关的损害,立法宜采固有损害说。死者近亲属遭受的损害包括增量损失、物质损害和精神损害,都应针对个案评估相应赔偿额,用以填补受害者损害,使其恢复原有的福利水平,在立法上可采福利水平维持说。赔偿绝不能实行全民统一的赔偿额度,侵权法不应该有改善社会收入差距的冲动。