An important all-day conference at AEI next week:

In the last several years, nearly every major pharmaceutical company has paid hundreds of millions of dollars to settle allegations of illegal “off-label” marketing of drugs. There has been a growing trend of actions by federal prosecutors, state attorneys general, and cooperating trial lawyers to litigate against pharmaceutical manufacturers for allegedly doing too much to promote off-label use of prescription products. Citing recent legal changes mandating exclusion from federal programs after a conviction, many manufacturers say they are forced to settle rather than risk defending themselves–even as prosecutions against individual executives have foundered in front of juries.

At this AEI Legal Center event, experts on both law and health care will present papers on the law, economics, medicine, and public policy of off-label marketing, discussing everything from the abuse of class action mechanisms to implications for the First Amendment and medical malpractice. Speakers include former Food and Drug Administration chief counsel Daniel Troy; former Cephalon general counsel John Osborn; former deputy attorney general George Terwilliger; principal deputy assistant attorney general and acting assistant attorney general for the Civil Division Jeffrey Bucholtz; attorneys Brian Anderson, James Beck, Mark Herrmann, Richard Samp, and Kyle Sampson; law professor Margaret Johns; and AEI scholars John E. Calfee, Theodore H. Frank, and Scott Gottlieb.

Panel I: Off-Label Marketing, R&D, and Medical Practice

Panel II: The Legal Environment from Federal Regulation and Enforcement

Panel III: Distortions from State and Private Enforcement

Panel IV: Legal Implications for Commercial Speech and Medical Practice

Register here. Earlier discussion on POL: Feb. 1; Feb. 19; Mar. 24; Dec. 17; Aug. 31; Aug. 22 (Richard Epstein); Aug. 1, 2006 (state AGs); Mar. 19 (InterMune indictment).

Asbestos litigation has been around a long time. Early on, nothing like modern product liability law existed (see Richard Epstein’s discussion here); lawsuits resided in workplace injury law when filed in the 1920s and 30s, and were soon subsumed in workers compensation reforms.

Modern asbestos litigation began after the Selikoff study was published in 1964. In December 1965, Texas attorney Ward Stephenson filed a case on behalf of Claude Tomplait, who had worked as an asbestos insulator. Four years later, Stephenson extracted a settlement for $75,000 from seven defendants.

Notwithstanding this meager beginning, Stephenson persisted in asbestos litigation and won a major victory in Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (1973), in which the Fifth Circuit Court of Appeals found asbestos manufacturers strictly liable for their workers’ injuries. The Borel court rejected statute of limitations, contributory negligence, and assumption of risk defenses; and modern asbestos product liability litigation was born.

The litigation got another shot in the arm when New Jersey attorney Karl Asch uncovered the “Sumner-Simpson papers,” which “described in great detail the efforts of Raybestos, Johns-Manville, and other manufacturers to find out about the hazards of asbestos, develop strategies to deal with them, and–most important–to keep that knowledge from the public and workers.” These documents were put to great effect by South Carolina lawyer Ron Motley, who actually used the papers to convince a South Carolina circuit judge to grant a new trial after a jury had ruled in favor of asbestos defendants. Motley of course went on to become an asbestos super-lawyer and an architect of the multibillion-dollar multistate tobacco settlement; his antics are well-known to long-time readers of this site.

Two more foundational cases are worthy of mention. In 1981, the D.C. Circuit ruled that insurers who had written asbestos policies were liable for the maximum insured between exposure and diagnosis, rather than only in the year of diagnosis. See Keene Corp. v Insurance Co. of North America, 667 F.2d 1034 (D.C. Cir. 1981). Given the long latency between asbestos exposure and ultimate illness, the level of insurance exposure was suddenly massive. Circuit Judge Patricia Wald warned that the court’s decision “requires a leap of logic from existing precedent, for it concerns diseases about which there is no medical certainty as to precisely how or when they occur.”

In 1982, the New Jersey Supreme Court threw out the “state of the art” defense for asbestos manufacturers, in essence holding that it mattered not whether business practice was the best available to the industry at the time the injury occurred. See Beshada v. Johns-Manville Products Corp., 442 A.2d 539 (N.J. 1982). The court opined, “The burden of illness from dangerous products such as asbestos should be placed upon those who profit from its production and, more generally, upon society at large which reaps the benefits of the various products our economy manufactures. ”

Thus, in less than a decade, the law was radically shifted, and asbestos litigation was born: “The decade after Borel saw 25,000 asbestos cases filed. By 1981, more than 200 companies and insurers had been sued; by 1982, defendants’ costs had topped $1 billion.” But these early years were just the beginning…

• Joe Nocera’s recent column on the Vioxx settlement infuriated loyalists of the plaintiff’s bar, and they won’t like his new one on lead paint litigation much better [NY Times]
• Trial of Overlawyered favorite Jack Thompson over ethical charges leveled by Florida bar wraps up, but judge won’t rule right away [GamePolitics earlier, more recent posts]
• Two joggers hit by driver alongside Pacific Coast Highway will share $49 million from city of Dana Point — allegedly the bike lane was too wide — so now here come the concrete barriers [LA Times]
• Do makers of anti-PC documentary “Indoctrinate U.” owe cash to Indiana U. for infringing on its logo? [Maloney, OpinionJournal, Coleman] Update Dec. 11: settled.
• Casselberry, Fla. cop who sued parents after boy’s near-drowning in pool has now lost her job following public outcry over the incident [Orlando Sentinel; earlier]
• Lawyer who says he was defamed by commenters on DontDateHimGirl.com is back in court [Pittsburgh Post-Gazette, Ambrogi, On Point; earlier here, here, etc.]
• Outspoken blog of BU prof Dr. Michael Siegel ticks off “tobacco control” activists [Beam, Globe]
• Warning label alert: old Sesame Street episodes unsafe for children? [Stier, Wash. Times]
• Furor mounts in and out of Canada over “human rights” complaint against Maclean’s over Mark Steyn book excerpt [Wente, Globe and Mail; Eteraz, UK Guardian; Steyn, NRO; Kimball]
• Judge rejects lawsuit by animal rights group challenging UCSF animal testing [SF Chronicle]
• New at Point of Law: How do all those big cases wind up in Judge Jack Weinstein’s court, anyway?; latest Richard Epstein podcast is on antitrust, Microsoft, AT&T, etc.; abuse of the Family and Medical Leave Act; welcome new contributor Marie Gryphon; Yale Law clinic sues Yale-New Haven Hospital; bar official dismisses concerns about cy pres slush funds; breastfeeding accommodation on the job, via lawsuit?; just what New York needs, a new state law school at Binghamton; and much more.

Advice to Harvard professors: do not get into a battle of wits with Richard Epstein if you’re showing up unarmed.

The trial bar’s efforts to broadly expand the securities laws through judicial fiat is challenged in an amicus brief filed in Stoneridge v. Scientific-Atlanta (earlier: Jul. 31, etc.), including former SEC chairs Roderick Hills, Harvey Pitt and Harold Williams; and law professors Richard Epstein, Joseph Grundfest, Stephen Bainbridge, and Larry Ribstein.

Update: Not only has the Department of Justice come out in favor of affirmance (despite extensive lobbying by the plaintiffs’ bar), but both major stock exchanges—who interests unquestionably parallel the interests of investors as a group—filed amicus briefs seeking affirmance. But watch the press portray this as “businesses versus investors” instead of “businesses and investors versus trial lawyers and government officials seeking donations from trial lawyers.”

Update: Oral argument is October 9. AEI will hold a panel discussing the case October 5.

As if to demonstrate that their website is simply reflexively anti-reform rather than anything to do with the justice they supposedly aspire to, one of their trolling bloggers attacks the American Justice Partnership for seeking predictability in the law (and does so by quoting a positively deranged anonymous blogger). Of course, predictability—that like cases are treated alike—is a fundamental component of the definition of justice. The social benefits of the rule of law are so obvious that it should hardly be necessary to list them, but, aside from issues of fundamental fairness enshrined in our Constitution in the ex post facto clause among other places, predictability has other advantages. If a result is predictable, settlement is easier: there’s little point in continuing to litigate on either side, because additional money spent on lawyers cannot change the result. If a result is predictable, one can more easily conform conduct to be law-abiding. Corporations aren’t incentivized to break contracts with one another to see whether they can get a better deal in the courts; individuals and corporations know where the line is in dealing with the public and won’t step over it. And as I noted last year,

In banana republics across the globe, economies come to a standstill because the risk of confiscation or corruption keeps many investments from ever happening. The same danger occurs when the expropriation is conducted by lawyers in the name of “justice.” If businessmen and entrepreneurs—be they insurers, manufacturers of lifesaving pharmaceuticals, or the small businesses that deliver your packages—have to account for the risk that their contractual arrangements will be disregarded by courts, they have to raise prices to account for that risk. Such increased prices mean fewer contracts are signed and fewer businesses are started. Consumers are worse off, not just because they now have fewer options, but because the economy is smaller as jobs and opportunities are lost. The only beneficiaries are the lawyers.

The poster knows darn well that the idea of predictability in justice hardly originates with Dan Pero and reformers. As I once noted to the same poster in a comment thread:

Since when is predictability a component of justice?

Since at least Aristotle, and arguably even further back to Mosaic law and the Code of Hammurabi.

If a desire for predictability in law makes one a reformer, then one can certainly add Plato, Thomas Aquinas, Montesquieu, Justice Holmes, and Lord Chief Justice Bingham of Cornhill to the list of reformers. More recently, one can read Richard Epstein on the subject. Justinian Lane would serve himself better by reading more books and fewer anonymous blogs before he asks such silly questions.

• More fen-phen scandals: Possible smoking-gun email in Kentucky case (see Walter’s post today) came from Chesley firm computer; Vicksburg lawyer first attorney convicted in Mississippi fen-phen scam. [Courier-Journal via Lattman; Clarion-Ledger (h/t S.B.)] (Updated with correct Courier-Journal link.)
• Allegheny College found not liable by jury for student’s suicide; school raised issue of student privacy concerns. Earlier on OL: May 30; Dec. 7, 2004. [WSJ]
• Update on the tempered glass versus laminated issue earlier discussed in Overlawyered (Feb. 15, 2006; May 16, 2005; May 13, 2005, etc.) [LA Times]
• Massachusetts court rejects quack sudden acceleration theory. (See also Dec. 20, Aug. 7, etc.) [Prince]
• California bill would bar carpenters from school campuses. [Overcriminalized]
• New book: Antitrust Consent Decrees in Theory and Practice [Richard Epstein @ AEI]
• To be fair, I went to school with “young Mr Sussman, the boyish charmer”, and I don’t know how to pronounce “calumnies” either—it’s one of those words I’ve only seen written, and never heard spoken [Steyn; MSNBC]

• My informal debate with Professor Silver over the effect of reform on physician supply continues. [Point of Law; Silver]
• If you’ve been intrigued by Professor E. Volokh’s idea of medical self-defense (and thus payment for organs) as a constitutional right, he’ll be discussing it with Richard Epstein and Jeffrey Rosen at AEI. [Volokh; Harvard Law Review @ SSRN; AEI]
• Peter Wallison on how over-regulation and over-litigation is killing American competitiveness in the capital markets. [Wall Street Journal @ AEI]
• Press coverage is finally starting to break through in the Milberg Weiss scandal with a lengthy Fortune profile. [Point of Law]
• Economists and scholars file Supreme Court amicus brief calling for federal preemption of state “anti-predatory lending laws” in important Watters v. Wachovia case. [Zywicki @ Volokh; CEI]
• One-sided coverage by the New York Times on the issue of web accessibility for the blind. Earlier: Oct. 27; Feb. 8. [New York Times]
• Deep Pocket Files update: MADD tries to intervene in stadium vendor case where appellate court tossed $105 million verdict because of unfair trial. See Aug. 4 and links therein. [New Jersey Law Journal]
• Lawsuit: my dead father’s baseball card mischaracterizes his nickname. [Lattman]
• Lawsuit: I have legal right to the letter W. [Times Record News via Bashman]
• Samuel Abady and Harvey Silverglate on libel tourism. [Boston Globe via Bashman]
• Another roundup of Justice Robert Thomas libel lawsuit stories. [Bashman]
• $15M Minnesota verdict blaming a delayed delivery for cerebral palsy, despite evidence it was caused by an unrelated infection. [Pioneer Press]

• I’m speaking at the National Press Club today on the Philip Morris v. Williams case. [Point of Law; Medill summary; Bashman analysis]
• How much skin color discrimination is there? [Somin @ Volokh]
• Latest in the Ninth Circuit follies. [Above the Law]
• Difficulty of making causal link between lung disease and 9/11 dust. [NY Times; TortsProf]
• Kirkendall on the Skilling sentence. [Kirkendall]
• Quelle surprise: ATLA dishonestly attacks me. [Point of Law]
• Ford seems to have settled, instead of fighting, the ludicrous Texas Garcia decision where they got blamed for a drunk-driving accident with unbelted passengers. [Point of Law; CFIF]
• Scalia: “The more your courts become policy-makers, the less sense it makes to have them entirely independent.” [AP]
• Richard Epstein on legislators v. Wal-Mart [EconTalk Podcast]
• Environmentalists v. private property rights. [CEI blog]
• Litigious Pennsylvania judge Joan Orie Melvin sues for a pay-cut. [Bashman]
• Why law firm associates work so hard. [Marginal Revolution]

A People for the American Way report attacking the Supreme Court nominee is “something of a bore”, “lacks any nuance that would make it credible”, “scattershot”, a “less than compelling document” based on “utter dogmatism”, opines Richard Epstein. Ah, but don’t underestimate the group’s powers to stir up media trouble for Roberts, replies Stephen Presser as the two continue their featured discussion of the Supreme Court vacancy at Point of Law.

Law profs Richard Epstein (Chicago) and Stephen Presser (Northwestern) are exchanging views on the Supreme Court vacancy as the latest Featured Discussion on Point of Law.

Along with a great deal of other discussion of the John Roberts nomination (for which see the site’s special Supreme Court nominations page), Point of Law has kicked off a featured discussion of the confirmation saga by two distinguished contributors, U. of Chicago lawprof Richard Epstein and Northwestern lawprof Stephen Presser (more).

Some other recent highlights at the site: Jim Copland and Jonathan Wilson on the Texas Merck trial, Wilson on Georgia’s new rule regarding “offers of judgment”, and posts from me on an expansion of ADA coverage, school finance suits, the retention by Oklahoma’s attorney general of private tort lawyers to sue chicken farmers in nearby Arkansas, an appeals court approves RICO suits against employers of illegal aliens, health care qui tam actions, the “cab-rank” principle in legal ethics (observed more in Britain than here), and Astroturf in the liability wars.

Speaking only for myself and not for Ted (and obviously not for anyone else either), I’m among those who believes George W. Bush doesn’t merit re-election, though I supported and in fact actively advised his campaign the first time around. For some of the reasons, check the links in this Oct. 5 post. Foreign policy and defense blunders aside, the last thing I wanted was an administration combining aggressive social conservatism with uncontrolled spending and big new government programs.

Some Bush strategists have seemed confident that secular-minded supporters of small government and individual liberty — a rather important constituency, historically, within the Republican Party — would have nowhere to go this fall, since it’s not as if the record of Sen. John Kerry inspires confidence. But there are places to go, if not especially attractive ones. Prof. Richard Epstein of the University of Chicago School of Law, whose scholarship has inspired so many of us, says he plans to vote for the Libertarian nominee (true, as Megan McArdle points out, the nominee in question appears to be a barking moonbat, but the point of a Libertarian vote is to send a well understood protest message that stands apart from personalities). My favorite syndicated columnist, Steve Chapman of the Chicago Tribune, is actually planning to cast a Democratic presidential ballot for apparently the first time in his life (”Why I’m voting for John Kerry”, Oct. 24). Chapman quotes Cato’s Dave Boaz making perhaps the strongest argument that can be made for the Democrat on domestic policy: “Republicans wouldn’t give Kerry every bad thing he wants, and they do give Bush every bad thing he wants.” The Detroit News, meanwhile, editorializes in favor of none of the above. Finally, for balance, here’s a link to Coyote Blog, run by a small businessman who says he’s going to support Bush as a “single-issue voter” motivated by the subject matter of this website, that is to say, the need to reform the litigation system.

George Will, Lynne Cheney, Arnold Schwarzenegger, Rudolph Giuliani, and Bob Barr are all on record opposing this wretched would-be Constitutional amendment, and they’re right. See Faith Bremner, “Conservatives opposing marriage amendment”, Gannett News Service/The Coloradoan, Dec. 11, 2003. For our earlier posts on the subject, see Feb. 20 and Feb. 25. For a comeback to the ripely absurd “FMA is needed to bolster fertility rates” argument, see Jacob Levy, Volokh Conspiracy, (Jul. 9); for some ribbing of social conservatives who seem determined to borrow the “precautionary principle” from enviro absolutists for this occasion, see Jane Galt’s co-blogger “Mindles H. Dreck” (Jul. 8, Jul. 9). “As for the gay Republicans whose votes Mr. Bush might then lose, Mr. Weyrich [Paul Weyrich, prominent in the Washington religious right] wrote, ‘Good riddance.’” (Carl Hulse and David D. Kirkpatrick, “Senate Braces Itself for Fight on Gay Marriage”, New York Times, Jul. 9). And the same kind sentiments to you, sir!

More: And the Chicago Tribune (Jul. 13), and the Wall Street Journal, and Richard Epstein…. Update Jul. 14: defeated 48-50 on procedural vote. Yet more: Dale Carpenter (U. of Minn. Law School), “The Federal Marriage Amendment: Unnecessary, Anti-federalist, and Anti-democratic”, Cato Institute White Papers, Sept. 23; Rep. Christopher Cox (R-Calif.), “The Marriage Amendment Is a Terrible Idea”, Wall Street Journal, Sept. 28 ($).

Last week lawyers associated with uber-tobacco lawyer Richard Scruggs fanned out across the country to file a dozen lawsuits against thirteen large non-profit hospitals in eight states. According to one press account, the lawsuits allege that “the institutions are not living up to their charitable missions, are overcharging uninsured patients and are using overly aggressive collection tactics.” (Rob Kaiser, “Class actions filed against non-profit hospitals,” Chicago Tribune, June 18) Scruggs characterizes the litigation as his attempt “to stop profiteering by nonprofit hospitals.” (Bill Lewis, “St. Thomas among hospitals accused of ‘profiteering,’” Nashville Tennessean, June 18)

The Tennessean article further explains:

“The lawsuit said Saint Thomas unfairly benefits from its long-held tax-exempt status, and the suit alleges a breach of contract, consumer fraud and deceptive business practices because Saint Thomas and the other nonprofits allegedly haven’t provided enough charity care in return for their tax exemptions.

”’In exchange for its promise to operate as a charitable, nonprofit entity, defendant receives millions of dollars each year in federal state and local tax exemptions,’ the lawsuit said. ‘In reality, (the) defendant is anything but charitable.’

“Scruggs said he hopes to have the 13 lawsuits certified as class-action cases. Saint Thomas is the only Tennessee hospital named in the lawsuits. Scruggs said more lawsuits will follow, but he did not name the hospitals targeted.

“He criticized the hospitals named in the lawsuits for charging what he said were their highest rates to patients who do not have insurance, while giving discounts to big insurance companies. If the poor or uninsured patients cannot pay their bills, the hospitals garnishee wages and bank accounts, seize houses and force people into bankruptcy, he said.”

University of Chicago law professor Richard Epstein, quoted in the Tribune article, had this reaction: “Dicky Scruggs has got a lot of money, and he’s looking for a lot of trouble,” Epstein said. “The question is, what’s the law that’s being violated?”

University of Chicago Law School Professor Richard Epstein has a concise essay in the National Law Journal explaining what is wrong with current class action procedure and where reform is needed. (”Warping the law”, Mar. 22).

Wednesday, December 17, the American Enterprise Institute Liability Project is holding a panel moderated by Chicago Law Professor Richard Epstein on a new trend in the expansion of tort liability.

While plaintiffs have traditionally been required to demonstrate some form of harm or damage to file a lawsuit, recently proposed definitions of harm appear to be broadening substantially the scope of tort litigation. At the forefront of this legal innovation is the “benefit-of-the-bargain” theory of damages: if a product is shown to have harmed some consumers, unharmed consumers have a claim against the manufacturer on the basis that they would have not paid as much for the product had these risks been known beforehand. Panelists at this event will address the merits and disadvantages of “benefit-of-the-bargain” lawsuits.

“Texas’s giant legal reform“, Jun. 18-19, 2003.

Malpractice suit crisis, 2003: “Letter to the editor“, Jun. 20-22; “Docs leaving their hometowns“, Jun. 12-15; “Juggling the stats“, Jun. 4-5; “Malpractice studies“, May 12; “Public Citizen’s bogus numbers“, Apr. 10-13; “Malpractice crisis hits sports-team docs” (& general roundup), Apr. 7-8; “Would you go into medicine again?“, Mar. 18; “‘Public deceit protects lawsuit abuse’“, Mar. 15-16; “One solution to the malpractice crunch“, Feb. 19; “Feinstein set to back Bush malpractice plan“, Feb. 12; “State of the Union“, Jan. 29; “Malpractice-cost trends“, Jan. 24-26; “ATLA’s hidden influence“, Jan. 21-22; “Playing chicken on malpractice reform“, Jan. 9; “‘Doctors strike over malpractice costs’” (W.Va., Pa.), Jan. 3-6.  2002: “Campaign roundup“, Nov. 4-5; “Pennsylvania House votes to curb venue-shopping“, Oct. 11-13; “Rumblings in Mississippi“, Oct. 9-10 (& Sept. 9-10); “Let ‘em become CPAs“, Oct. 7-8; “Tour of the blogs“, Sept. 24; “You mean I’m suing that nice doctor?“, Aug. 1; “‘Bush urges malpractice damage limits’“, Jul. 29; “‘Trauma center reopens doors’“, Jul. 18; “Malpractice crisis latest” (Pa., Tex.), Jun. 11-12; “Sick in Mississippi?  Keep driving“, Jun. 3-4 (& Apr. 5-7); “‘Rocketing liability rates squeeze medical schools’“, May 28-29; “‘The trials of John Edwards’“, May 20-21; “Ob/gyns warn of withdrawal“, May 17-19; “‘The Tort Mess’” (Forbes, etc.), May 13; “Texas doctors’ work stoppage“, Apr. 11 (& Mar. 15-17); “No more ANZAC Day marches?” (Australia), Apr. 1-2; “Scenes from a malpractice crisis“, Mar. 5; “Med-mal: should doctors strike?“, Jan. 21-22.  2001:  “Soaring medical malpractice awards: now they tell us“, Sept. 11; “‘Valley doctors caught in “lawsuit war zone”‘“, May 3; “Pennsylvania MDs drop work today“, Apr. 24; “Philadelphia juries pummel doctors“, Jan. 24-25.  2000: “Trial lawyers’ clout in Albany“, Oct. 4; “Malpractice outlays on rise in Canada“, Oct. 2. 

Ob/gyn, 2003: “Juggling the stats“, Jun. 4-5; “Malpractice studies“, May 12; “‘Edwards doesn’t tell whole story’“, Mar. 4 (& letter to the editor, Mar. 31); “‘Delivering Justice’“, Feb. 27.  2002: “Ob/gyns warn of withdrawal“, May 17-19 (& see Jun. 11-12); “‘Support case hinges on failed sterilization’” (Ind.), Apr. 26-28; “Med-mal: should doctors strike?“, Jan. 21-22.  2001: “Fleeing obstetrics, again“, Dec. 21-23; “‘Wrongful life’ comes to France“, Dec. 11 (& updates Jan. 9-10, May 20-21, Jul. 1-2, 2002); “Meet the ‘wrongful-birth’ bar“, Aug. 22-23 (& letter to the editor, Sept. 3; more on wrongful birth/life: Nov. 22-23, Sept. 8-10, June 8, May 9, Jan. 8-9, 2000); “Pennsylvania MDs drop work today“, April 24; “Caesarean rate headed back up“, Feb. 5.  2000: “Birth cameras not wanted“, Oct. 18; “Plastic surgeons must weigh patients’ state of mind, court says” (roundup: anti-abortion suits), Aug. 15.  1999: “‘Trial lawyers on trial’” (Norplant, etc.), Dec. 23-26; “‘Your perfect birth control…blocked?’“, Aug. 11 (Norplant) (& update Aug. 27; company to settle 36,000 suits); “Yes, this drug is missed” (hospital admissions for hyperemesis tripled after lawyers drove Bendectin off market), Jul. 21. 

“Malpractice studies“, May 12, 2003; “Radiologists: sue them enough and they’ll go away“, Nov. 2, 2000 (& see Sept. 24, 2002).

Nursing homes, geriatrics, 2003: “Florida: ‘New clout of trial lawyers unnerves legislators’“, Mar. 20; “$12,000 a bed“, Mar. 19.  2001: “Soaring medical malpractice awards: now they tell us“, Sept. 11; “‘Doctor liable for not giving enough pain medicine’“, Jun. 15-17; “‘Nursing homes a gold mine for lawyers’“, Mar. 13-14.  2000: “‘Litigation grows in ailing nursing home industry’“, Jun. 20 (& see Mar. 2-4, 2001). 

“Incoming link of the day“, Mar. 5-7, 2003.

Emergency medicine: “‘Trauma centers warn lives could be at risk’” (Orlando), Feb. 28-Mar. 2, 2003; “Ambulances, paramedics sued more“, Oct. 28-29, 2002; “Let ‘em become CPAs“, Oct. 7-8; “Avoid having a medical emergency in Mississippi“, Apr. 5-7; “Scenes from a malpractice crisis” (closure of trauma centers), Mar. 5, 2002  (& see Jun. 11-12); “That’ll teach ‘em” (Chicago EMS), Dec. 26-28, 2000; “Highway responsibility” (ambulance, hospital sued in Derrick Thomas crash), Nov. 28, 2000. 

“The jury pool he faced“, Feb. 25, 2003.

“Take care of myself?  That’s the doc’s job“, Feb. 14-16, 2003; “Claim: docs should have done more to help woman quit smoking and lose weight” (Pa.), Sept. 18-19, 2002.

“Medical mistakes” estimates, 2001:  “Report: ‘medical errors’ study overblown“, July 27-29.  2000: “‘Report on medical errors called erroneous’“, July 11; “Medical mistakes, continued“, March 7; “‘Medical errors’ study“, Feb. 28; “Against medical advice” (Clinton proposals), Feb. 22 (& see malpractice law section below). 

“Mercury in dental fillings“, Jul. 16-17, 2002 (& Nov. 4-5, 2002). 

Psychiatry and allied fields, 2002: “‘Mom who drugged kids’ ice cream sues’“, Nov. 1-3; “‘Patient sues hospital for letting him out on night he killed’” (Australia, psychiatric case), Oct. 16-17; “‘After stabbing son, mom sues doctors’“, May 31-June 2; “Counseling center may face closure” (Okla.), May 24-26.  2000: “Killed his mother, now suing his psychiatrists“, Oct. 2; “Not my fault, I” (woman who murdered daughter sues psychiatrists), May 17; “Legal ethics meet medical ethics” (lawyers advise schizophrenic murder defendant to go off his medication for trial), Feb. 26-27 (update, Mar. 2: he’s reported to have punched a social worker twice since going off medication; Mar. 29: jury convicts him anyway); “Latest excuse syndromes” (”Internet intoxication”, etc.), Jan. 13-14; “Warn and be sued” (clinical psychologist loses confidentiality suit after warning of patient’s dangerousness), Jan. 12.  1999: “Doctor sues insurer, claims sex addiction“, Oct. 13; see also personal responsibility. 

“Artificial hearts experimental? Who knew?“, Oct. 23, 2002.

“U.K.: ‘Dr. Botch’ sues hospital for wrongful dismissal“, Oct. 18-20, 2002; “Let them sue us!” (hospitals get sued if they withdraw privileges from questionable doctors), Mar. 23, 2000. 

“Lawyers fret about bad image” (lawyers’ own poll finds public has much more confidence in doctors than in lawyers), Oct. 3, 2002.

“‘Patient pays price for suing over cold’” (U.K.), Sept. 20-22, 2002.

“‘Doctors hope fines will curb frivolous lawsuits’“, Sept. 6-8, 2002; “The doctor strikes back” (neurosurgeon countersues), June 14-15, 2000; “‘Truly egregious’ conduct” (court cites misconduct by attorney Geoffrey Fieger in suit against cardiologist), Sept. 14, 1999. 

“Accident medicine”, 2002: “‘How to spot a personal injury mill’“, Aug. 19.  2001: “Lawyers (and docs) block cleanup of Gotham crash fraud“, April 2.  2000: “‘How do you fit 12 people in a 1983 Honda?’“, Aug. 23-25; “His wayward clients“, May 25; “Less suing = less suffering” (NEJM whiplash study), Apr. 24 (& update Jun. 26). 

“‘The NFL vs. Everyone’” (medical privacy laws could restrict sports teams from commenting on players’ injuries), Jun. 13, 2002; “Promising areas for suits” (sports medicine), Dec. 7, 2000; “Doctor cleared in Lewis cardiac case“, May 15, 2000. 

“‘Remove child before folding’” (AEI-Brookings study on defensive medicine), Jun. 5, 2002. 

Managed care/HMOs, 2002: “‘Bad movie, bad public policy’” (John Q), Mar. 19; “Washington Post blasts HMO class actions“, Jan. 30-31.  2001: “Managed care bill: Do as we say…“, Sept. 7-9 (& Dec. 6, 1999); “Contrarian view on PBR“, Aug. 17-19; “Chapman, Broder, Kinsley on patients’ rights“, June 28; “Managed care debate“, June 26; “Columnist-fest” (Morton Kondracke), June 22-24; “Docs and Dems“, June 19; “Roundup“, May 21.  2000: “Patients’ Bill of Wrongs” (Richard Epstein), Oct. 27-29; “Fortune on Lerach“, Aug. 16-17; “Arm yourself for managed care debate“, April 20; “Employer-based health coverage in retreat?“, March 31-April 2.  1999: “Weekend reading: columnist-fest” (John McCarron), Dec. 11-12; “Actions without class” (Wash. Post editorial: “extortion racket”), Dec. 2; “Who’s afraid of Dickie Scruggs?“, Dec. 2; “Aetna chairman disrespects Scruggs“, Nov. 18-19; “World according to Ron Motley” (world’s richest lawyer plans to sue HMOs, nursing homes, drugmakers), Nov. 1; “Deal with us or we’ll tank your stock” (managed care stock prices plunge), Oct. 21; “‘Health care horror stories are compelling but one-sided’“, Oct. 16-17; “After the HMO barbecue“, Oct. 12; “Power attracts power” (Boies joins anti-HMO effort), Sept. 30; “Impending assault on HMOs“,  Sept. 30; “Rude questions to ask your doctor” (why are you helping trial lawyers make it easier to sue health plans?), Sept. 4-6; “From the fourth branch, an ultimatum” (leading trial lawyer vows to “dismantle” managed care), July 16. 

“Hospital rapist sues hospital“, May 22-23, 2002 (& Mar. 5-7, 2003: court dismisses case). 

“Bush’s big mistake on mental health coverage“, May 13, 2002. 

“‘Big government ruined my long weekend’” (tide-over weekend prescribing), May 7, 2002. 

“Lawyers stage sham trial aimed at inculpating third party“, Mar. 22-24, 2002. 

“All things sentimental and recoverable” (veterinarians), Jan. 30-31, 2002. 

Public health follies: “Infectious disease conquered, CDC now chases sprawl“, Nov. 9-11, 2001; “Letter to the editor” (activist doctors vs. gun ownership), May 18, 2001; “‘P.C., M.D.’“, Feb. 23-25, 2001. 

“Bioterrorism preparedness” (laws hobble hospitals), Oct. 30, 2001. 

“Letter to the editor“, Sept. 3, 2001 (can/should doctors avoid lawyers as patients?) (responses, Oct. 22). 

“Clinical trials besieged“, Aug. 27-28, 2001; “Bioethicist as defendant” (Arthur Caplan, Jesse Gelsinger case), Oct. 6-9, 2000. 

“‘Doctor liable for not giving enough pain medicine’“, Jun. 15-17, 2001. 

“The unconflicted Prof. Daynard” (British Medical Journal and tobacco lawyer), April 21-23, 2000 (& update: letters, Jan. 2001, June 2001). 

“To destroy a doctor” (lawyer’s campaign against laparoscopic surgeons), June 6, 2001. 

“Mommy, can I grow up to be an informant?“, July 30, 2001; “A case of meta-False Claims” (overzealous prosecution of hospitals), Sept. 9, 1999. 

“Updates” (Lawyers’ cameras in trauma ward), Dec. 26-28, 2000 (& Oct. 18). 

“Promising areas for suits” (laser eye surgery), Dec. 7, 2000. 

Plastic surgery: “Plastic surgeons must weigh patients’ state of mind, court says“, Aug. 15, 2000 (& June 11, 2001: she loses); “Strippers in court“, Jan. 28, 2000; “No spotlight on me, thanks” (leading breast-implant lawyer obtains gag order against lawyers for dissatisfied clients), August 4, 1999; “Never saying you’re sorry” (implants), July 2, 1999. 

“Turn of the screw” (pedicle screw lawsuits), Oct. 24, 2000. 

“Disabled rights roundup” (obligatory sign interpreters at doctor’s offices), Sept. 29-Oct. 1, 2000; “From our mail sack: ADA enforcement vignettes” (interpreters, guide dog allergy case), May 31, 2000. 

“Embarrassing Lawsuit Hall of Fame” (intimate injury; misdiagnosis charge), Aug. 14, 2000. 

“Senator Lieberman: a sampler” (cost of defensive medicine), Aug. 8-9, 2000. 

“And don’t say ‘I’m sorry’” (nurse’s first-person account), June 21, 2000. 

“Can’t sue over affair with doctor” (court rules it was consensual), June 13, 2000. 

“Jumped ahead, by court order” (residency), May 31, 2000.

“‘Case’s outcome may spur more lawsuits’” (Mississippi fen-phen trial), Dec. 10, 1999; “‘Dieters still want fen-phen’“, August 18, 1999. 

“Rhode Island A.G.: let’s do latex gloves next“, Oct. 26, 1999. 

“Michigan high court upholds malpractice reform“, August 6, 1999. 

Other resources on medicine and litigation:

Good general links pages on health law are provided by the St. Louis University Center for Health Law Studies and by the whimsically named but highly useful Health Hippo. 

The Litigation Explosion, the 1991 book by Overlawyered.com editor Walter Olson, was excerpted in two parts by Medical Economics [part one] [part two] 

Marc Arkin, “Products Liability and the Threat to Contraception” (Manhattan Institute Civil Justice Memo, February 1999). 

L. William Luria, M.D., and Dennis G. Agliano, M.D., “Abusive Medical Testimony: Toward Peer Review“, describes efforts under way in Hillsborough County, Florida, to apply principles of peer review to the control of irresponsible or unqualified forensic testimony by medical professionals. 

Walter Olson, “Lawyers with Stethoscopes: Clients Beware” (Manhattan Institute Civil Justice Memo, 1996) (abusive litigation is also bad for the medical prognosis of claimants) 

Breast implants: see separate page

Vaccines: 

Health Hippo vaccines section. 

Peter Huber, “Dan Quayle, the Lawyers and the AIDS Babies“, Forbes, October 28, 1991 (liability and an AIDS vaccine). 

Peter Huber, “Health, Death, and Economics“, Forbes, May 10, 1993 (”investment in vaccines remains far lower than it should be, given the huge benefits that vaccines provide”) 

Walter Olson, “California Counts the Costs of Lawsuit Mania“, Wall Street Journal, June 3, 1992 (liability slowing research on AIDS vaccine). 

Malpractice law:

Daniel Kessler and Mark McClellan of Stanford won the Kenneth Arrow Award in Health Economics in 1997 for their article “Do Doctors Practice Defensive Medicine?”, which “found that when states reformed malpractice laws to put caps on damages for pain and suffering, or to eliminate punitive damages, hospital expenditures for heart disease patients were reduced by about 5 percent, yet did not leave the patients with worse health outcomes.” 

Richard Anderson, M.D., “An ‘Epidemic’ of Medical Malpractice?  A Commentary on the Harvard Medical Practice Study“, Manhattan Institute Civil Justice Memo, July 1996 (shortcomings of famous study of medical care in New York hospitals). 

Forbes columns by Peter Huber on the issue include “Malpractice Law: A Defective Product” (1990) and “Rx: Radical Lawyerectomy” and “Easy Lawsuits Make Bad Medicine” (1997). 

Walter Olson, “A Story That Doesn?t Have a Leg To Stand On,” Wall Street Journal, March 27, 1995 (the famous “wrong-leg amputation” case). 

In 1993, in a paper given at the annual meeting of the Association for Health Services Research, Daniel Mendelson and Robert Rubin estimated that defensive medicine practices in three areas alone — pre-surgical testing, fetal monitoring and skull x-rays — probably exceeded $2 billion a year, and estimated likely savings from “aggressive malpractice reform” at more than twice that amount.  Perhaps in contrast (or perhaps not), a 1995 study of obstetrics in Washington state by L. Baldwin et al found no differences in practice between doctors who had been named in suits and those who had not. And Mark Hauser et al, “Fear of Malpractice Liability and its Role in Clinical Decision-Making” studied doctors’ reaction to hypothetical cases in which a patient’s file did or did not reveal a history of having sued physicians.  They found that in cases where an earlier suit had been reported the doctors were modestly more likely to call in other doctors, to recommend hospital admission, to document a case “by the book” rather than rely on judgment, and to predict a bad outcome.  Surprisingly, they did not order more tests or withdraw from cases more often when informed that a patient had a record of suing.  The Hauser paper notes one possible cost of an over-hasty resort to hospitalization: “In psychiatry a defensive response might include a needlessly low threshold for involuntary hospitalization, where the patient’s liberty and autonomy are, in essence, sacrificed in favor of conservative practice for the sake of self-protection.” 

The Michigan law firm of Garan, Lucow, Miller & Seward, P.C., which has a specialty in medical malpractice defense, maintains a comprehensive links page of resources in the field. 

Among reform groups, the Health Care Liability Alliance is a nationwide advocacy group whose website offers a variety of useful materials on the case for lawsuit reform. Californians Allied for Patient Protection defends the Golden State’s MICRA limits on malpractice liability.  CLYSIS is a Minnesota group working for medical liability reform.  State medical societies, such as the Medical Society of the State of New York, often maintain law-related information at their websites.