Anti-SLAPP Statutes and Peer Review
October 30, 2006
Hospitals trying to assemble a peer review committee to review another practitioner's record and perhaps impose sanctions for substandard performance have their jobs cut out for them because physicians are often reluctant to pass judgment on a colleague. In addition to this natural reticence, those who sit on or testify at a peer review proceeding have another reason to want to avoid it: the threat of lawsuits brought by the medical practitioner facing discipline. The scope of the problem is obvious: without willing and honest participants, the peer-review system that helps keep patients safe is compromised.
Out of Court and Onto the Web
October 30, 2006
If a doctor's mistakes can be broadcast over the Internet for all the world to see, will he or she be more or less likely to settle a claim? What about plaintiffs? What are the implications for them should their suits against doctors and hospitals some day become public knowledge?
Case Notes
October 30, 2006
Highlights of the latest product liability cases from around the country.
Hospital Liability for Actions of Independent Contractor Physicians
October 30, 2006
The classic vicarious liability claim goes something like this: The patient is referred to the local hospital, receives treatment from a physician who is not an employee of the hospital, and now that an adverse outcome has arisen from the treatment, the patient brings a claim against both the physician and the hospital. The foundation of the vicarious liability claim is that the hospital has held out the physician as having 'apparent authority' to act as an agent of the hospital, thereby inducing a reasonable reliance by the patient on that agency. With this year's publication of the new Restatement of the Law (Third) of Agency (2006), there may be subtle changes in store in some courts' inquiry into this aspect of liability assignment; therefore, review of the case law as it now stands and analysis of the change in the Restatement are in order.
Excluding Unreliable Expert Testimony in Fire Cases
October 30, 2006
Fire cases, especially those involving appliances, present unique challenges because the lack of compelling physical evidence often permits ex-perts to give unreliable opinions concerning causation. Fire usually destroys evidence showing its cause, and many fire scenes contain multiple possible causes in the area of origin. Moreover, the area of origin can only be defined in the most general sense in most significant cases because there are no fire patterns indicating a specific point of origin. Many times, the likely area of origin is no smaller than a large portion of a particular room. Moreover, property owners are reluctant to reveal that they negligently started a fire, so they provide misleading information in some cases. In many fires, certain or even likely identification of any particular cause is simply not possible.
Bariatric Surgery Demand Is Rising
October 30, 2006
Morbid obesity affects over 20 million Americans; indeed, between 3% and 5% of the adult population of the United States is morbidly obese, or clinically severely obese, the highest percentage of population of any country. Sabiston: Textbook of Surgery. 17th ed. Townsend, CM (ed) et al. Elsevier Saunders 2004 p. 357. Severe obesity and its co-morbidities are estimated to cause 280,000 deaths annually in the United States compared with 90,000 per year from breast and colon cancer. Given these numbers, it is not surprising that bariatric surgical operations are in more demand by patients than any other operation and have experienced the most rapid growth rate both of procedures performed and surgeons performing them than any area of general surgery over the past 3 years. Id.
Prescription Drug Litigation Pre-emption: A Status Report from the Defense Perspective
October 30, 2006
The Food and Drug Administration's ('FDA') pre-emption analysis in the preamble to its Jan. 24, 2006 drug-labeling rule has resulted in a significant shift in judicial recognition of pre-emption in prescription drug litigation. While only a handful of courts had upheld prescription drug pre-emption arguments prior to the FDA preamble, a solid majority of courts informed by the FDA's preamble analysis have found state law claims pre-empted. Part One of this series discussed key battlegrounds upon which future FDA pre-emption arguments will be fought. This second installment reviews recent case law and also discusses two new FDA <i>amicus</i> briefs in which the FDA provides further guidance on the proper scope of pre-emption in prescription drug litigation.
Net News
October 30, 2006
Music Industry Files 8000 New Infringement Lawsuits <br>
Minimizing Internet Risk
October 30, 2006
The Internet has revolutionized how companies conduct business. Utilizing Internet technologies, people now instantly share ideas with individuals around the globe, and companies can now reach previously inaccessible markets through their Web sites. Along with these advantages, however, the Internet and related technologies have added unique risks to today's businesses. As discussed in Part One of this article, these dangers include threats to a company's electronic information through viruses and worms as well as new legal liabilities stemming from a business' Internet usage. In addition, the Internet provides numerous threats to a business's intellectual property and makes unwary companies susceptible to suit for treading on the intellectual property rights of others. This part of the article reviews some of these hazards and summarizes steps that companies can take to minimize their exposure to these risks.
