By: Michael Eshman
The Center for American Progress recently proposed a “safe harbor” in medical malpractice litigation to reduce the cost of defensive medicine. The essential component of the “safe harbor” plan is the creation of clinical-practice guidelines on a national level, ideally through physician organizations – such as the American College of Obstetrics and Gynecologists. Under this system, the national guidelines would be presumed to establish the legal standard of care and create a “safe harbor” from medical malpractice for physicians who can show that they followed the guidelines. The idea being that, with national guidelines that establish the presumptive legal standard of care, physicians hoping to avoid suit will follow the national guidelines rather than practicing defensive medicine – the ordering of excessive and unnecessary medical tests, procedures, or further consultations.
Though the proposal cites an Oregon study that estimated the implementation of a “safe harbor” could save 5% in medical liability costs in Oregon and could resolve 10% of claims more quickly, the value of a national “safe harbor” as a means of reducing the cost of medical malpractice liability is unclear. A claimant could still support a medical malpractice claim with evidence that the guidelines are not applicable to the specific situation or that a physician did not actually follow the guidelines.
Other proposals to reduce the cost of medical malpractice liability include capping the amount of damages that may be awarded in medical malpractice suits, which has been found unconstitutional in Georgia, and the adoption of the worker’s compensation model for medical malpractice claims. Either the capping of damages or the adoption of a worker’s compensation model would likely go further in reducing medical malpractice liability costs for medical providers. However, both methods raise significant legal and constitutional questions.
What are your thoughts on the Center for American Progress proposal and other possible methods of reducing the cost of medical malpractice claims and reducing the cost of defensive medicine?
By: Anthony Del Rio
This week, in Oxford Health Plans v. Sutter, the Supreme Court upheld the authority of an arbitrator to interpret an agreement to permit class arbitration. While the Court expressed some doubt regarding whether the arbitrator made the correct decision, the Court unanimously agreed that “courts have no business overruling [an arbitrator] because their interpretation of the contract is different from [the arbitrator’s].”
In Sutter, Oxford Health entered into an employment agreement with Dr. Sutter that included an arbitration provision. Dr. Sutter filed a putative class action against Oxford Health, and Oxford Health moved to compel arbitration. The agreement did not include an explicit class waiver, and the parties disputed whether the arbitration could proceed on a class basis. The arbitrator ultimately ruled in favor of Dr. Sutter and interpreted the agreement to allow for class arbitration. The arbitrator reasoned that the language “any civil action” included class actions.
The Court’s holding highlights the importance of expressly precluding class arbitrations in agreements. An arbitration agreement is a very helpful tool employers can use to protect themselves, but their effectiveness can be undermined if the provisions are not properly drafted.
It should be noted that, in 2012, the NLRB adopted the position that class waivers were impermissible. However, the NLRB’s interpretation has been widely rejected by federal courts.
By: Neil Wilcove
Congratulations to Hunt Construction Group and Atlanta based Holder Construction Company for being selected as the general contractors for the new Atlanta Falcons stadium.
We look forward to seeing the stadium come out of the ground.
By: Ali Sabzevari
The United States Supreme Court has continued to expand the thought that bodily intrusions constitute a search under the Fourth Amendment. The Supreme Court has applied the Fourth Amendment to police efforts to draw blood, scraping an arrestee’s fingernails to obtain trace evidence, and even to a breathalyzer test. Recently, however, the Supreme Court applied the Fourth Amendment to police efforts to take “buccal swabs” on the inner tissues of a person’s cheek in order to obtain DNA.
On June 3, 2013, a divided (5-4) United States Supreme Court issued a decision, Maryland v. King, ruling that law enforcement officers are permitted to take DNA cheek swabs from people they arrest. The Supreme Court held that when police officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the police station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is a legitimate police booking procedure that is reasonable under the Fourth Amendment. The Supreme Court compared this process to similar post-arrest police booking procedures, such as fingerprinting and photographing.
The majority is embracing the fact that the use of DNA technology can significantly improve the criminal justice system and police investigative practices. Because of this decision, those who are arrested open themselves to having their DNA “taken and entered into a national database…rightly or wrongly, and for whatever reason.” Justice Antonin Scalia, one of the dissenting justices, further stated that although extracting DNA from arrestees may solve extra crimes, “so would taking your children’s DNA when they start public school.” Nevertheless, it is apparent that DNA identification is representing an important advance in the techniques used by law enforcement.