Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘safety’

Economists’ amicus brief in Wyeth v. Levine

I’m proud to be part of the amicus brief in Wyeth v. Levine filed by leading economists John E. Calfee, Ernst R. Berndt, Robert Hahn, Tomas Philipson, Paul H. Rubin, and W. Kip Viscusi.    It provides an excellent explanation why FDA preemption is good for consumer safety and health policy, and why failure-to-warn litigation by trial lawyers hurts consumer safety.  (You may notice that none of the public-policy arguments against preemption you see in the blogosphere fairly address these economic arguments.)

For everything you could possibly want to know about the Wyeth v. Levine case, do see Beck & Herrmann’s roundup of their excellent posts on the subject, and keep an eye out for their discussion of the top-side briefs undoubtedly coming soon.

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How trial lawyers made American pedestrians less safe

Michael Lewyn writes:

In recent decades, American state and local highway officials have built wide streets and roads designed primarily to accommodate high-speed automobile traffic. However, such high-speed streets are more dangerous for pedestrians and bicyclists than streets with slower traffic, and thus fail to adequately accommodate nondrivers. Government officials design streets for high-speed traffic partially because of their fear of tort liability. An influential street engineering manual, the American Association of State Highway and Transportation Officials’ Green Book, has generally favored the construction of such high-speed streets, and transportation planners fear that if they fail to follow the Green Book’s recommendations, they are more likely to be held negligent if a speeding driver is injured on a street designed for relatively slow traffic.

Changes in the Green Book may ameliorate such design considerations in the future.

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The health costs of defensive medicine

There is no shortage of examples of medical malpractice litigation where plaintiffs blame doctors for failing to perform a CT scan. E.g., Oct. 2006 and Feb. 2004. This plainly raises costs far more than the direct costs of medical malpractice insurance that you see when the trial bar claims that malpractice reflects only 1-2% of health-care expenses. Tom Baker, among others, argues that defensive medicine has to be viewed as good with bad, because of improved health-care outcomes from the additional care. But not all defensive medicine is positive; it can be irrelevant, or, worse, adversely affects health results.

Malpractice litigation does change doctors’ incentives, but only with respect to short-term results. Because doctors won’t be sued for long-term consequences of defensive medicine, there is a substantial risk of overexposure to radiation in the course of defensive CT scans—a problem identified in a study in the latest issue of Annals of Emergency Medicine (Winslow, et al., Quantitative Assessment of Diagnostic Radiation Doses in Adult Blunt Trauma Patients; Reuters summary), finding that standard trauma treatment—1005 chest X-ray equivalents—results in an additional 322 cases of cancer per 100,000 treated because of use of CT scans. Earlier: Feb. 2004.

(Update: Walter writes in to note that “the problem of needless or avoidable CT and MRI scans has been getting a fair bit of discussion at the medical blogs lately, e.g. White Coat Rants, GruntDoc, and KevinMD.”)

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December 8 roundup

  • As governor, Huckabee signed a good tort reform package capping punitive and non-economic damages, and reforming joint and several liability and venue law, but the rest of his economic record is big-government. And David Harsanyi is critical of Huckabee’s claimed opposition to nanny-statism. [Insurance Journal; Human Events; Harsanyi; RCP; Michael Tanner @ FoxNews]
  • Update to the popular Bridezilla flowers lawsuit; florist files opposition. Lots of comments ensue. [Lattman]
  • South Dakota Supreme Court: no, you can’t sue a pharmacy for being a “drug dealer” when plaintiff steals prescription medicine for a disabled friend and injures himself OD’ing on it. [On Point]
  • Former litigator hired to invest $100m in court cases for UK hedge fund. [Times Online]
  • Atkins fallout in Texas and California, as professional anti-death-penalty experts there happily minimize subject IQs to call their intelligent clients retarded. Earlier: Feb. 2005; Sep. 2003. [Science Evidence blog; and again]
  • Heartbalm tort of alienation of affection withstand constitutional challenge in Mississippi. Earlier: Jul. 5; Nov. 2006, etc. [Torts Prof]
  • Bob Woodruff biography: I would have died if my injury happened in the United States because of fear of liability. [Murnane]
  • I’ve updated my paper on Thomas Geoghegan’s new book. [SSRN]
  • Overlawyered holds slim lead at ABA Blawg 100 popularity contest. But why aren’t any of you voting for Point of Law? [ABA Journal]

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Black hydrants and unintended consequences

The state of Texas recently enacted legislation requiring that all non-working fire hydrants, defined as those pumping less than 250 gallons of water per minute, be painted black so that firefighters do not waste time during emergencies hooking up to futile sources (and presumably so that nearby homeowners can also assess their risk before a fire). Alas, the new law has had an unintended consequence, according to this Sept. 18 press release (PDF) from the State Firemen’s and Fire Marshals’ Association of Texas:

Unfortunately, some water utilities in Smith County have over-reacted to the legislation by painting all fire hydrants black, most of which are functioning hydrants that pump well over 250gpm. “The utilities are painting all hydrants black to protect against liability,” said, Cody Crawford, Fire Chief of Chapel Hill Fire Department. “While this makes sense to the lawyers, it doesn’t make good common sense and it puts homeowners at risk.”

Crawford goes on to give his opinion that the practice “creates more liability than it removes”; presumably the water utilities’ lawyers disagree with that assessment (h/t reader Eric Bainter).

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May 22 roundup

  • Class action lawyer on the divvying up of $6.9M of attorneys fees among 79 attorneys: “There were two firms that . . . we generously gave a substantial award that really didn’t do anything for the common benefit.” But the award is still under seal; the Fifth Circuit is now considering. WSJ: “Unsealing the records would be a good first step, but Mr. Barrett’s statements suggest that the juiciest story is not how the money was divided among the lawyers, but how 79 lawyers extracted nearly twice as much from the defendant for themselves than they won for their 81,000 clients. Just another day at the office for the tort bar.” We reported Apr. 9. [W$J]
  • Street vendor sign of “180-degree coffee” reminds professor that McDonald’s coffee isn’t all that relatively hot. [Childs]
  • Briefing from the Pearson pants case (Apr. 26, etc.). [On Point]
  • FDA scandal! Or is it? Is it really the case, as some claim, that safety is never too expensive? [Point of Law]
  • Trial lawyers and Jay Angoff, at it again, incredibly accusing a non-profit mutual med-mal insurer of gouging. [RiskProf]
  • “Treating patients is a lot harder for this physician—and much less fun—in a climate of fingerpointing.” [Medical Economics via Kevin MD]
  • Are abuse victims squandering their moral authority? [Commonweal]

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Deep pocket files: Newark police chase

The outrage is so common, we may have to create its own category. This one is in Newark, New Jersey: three car thieves running from police in a stolen SUV swerved into a group of pedestrians. Taxpayers are on the hook for a $3.6 million settlement, a substantial chunk of which will go to attorneys. [AP/Newsday] The Newark police department has “changed its chase policy” as a result; no mention in the press coverage that now criminals know that they are more likely to escape if they engage in a dangerous high-speed getaway, they’re more likely to engage in a high-speed getaway that will endanger the public. Earlier: Feb. 28; Feb. 27; Jan. 9; Nov. 27, 2005 and links therein.

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Profiled by flight attendant, wins $27.5 million

Left over from last month: “An economics professor from California who was arrested because a flight attendant thought she looked like a terrorist has been awarded $27.5m. In a victory for critics of racial profiling, a jury in El Paso, Texas, ordered Southwest Airlines to pay damages to Samantha Carrington for false imprisonment and malicious prosecution after she was bundled off a flight and arrested because flight attendants found her appearance suspicious.” (Salamagundi, Apr. 14; Best of the Fray; Protein Wisdom; “Finding the wrong answer” (editorial), USA Today, Apr. 14). For more links on air profiling, see our aviation page archive.

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Liability fears cancel Christmas display

Many Maryland towns string Christmas lights from powerlines, but the town of Lonaconing made the mistake of asking for permission, rather than forgiveness, and Alleghany Power, afraid of the legal risks of an accident if it approved the display, was forced to forbid it. Protesting citizens have erected an inflatable Grinch protesting against Verizon and the power company, but their efforts would be better directed at the litigation culture that forced these company’s decision. (JoAnna Daemmrich, “Grinch pulls plug on a cherished ritual”, Chicago Tribune, Dec. 22).

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