The Fine Print and The Costa Concordia Disaster

Author: Mark B. Hartig

Some Americans take for granted legal protections our court system provides. This may especially be apparent to those American victims of the Costa Concordia accident off the coast of Italy. Many reported accounts say the cause of the accident was human error when the ship was steered off its plotted course and ran aground causing it to sink killing at least 16 passengers and injuring scores of others.

Americans who were on this cruise signed a contract with Costa agreeing that any legal action must take place in Genoa, Italy where Costa’s corporate offices are. And while Costa is owned by Carnival Cruise Lines, an American corporation based out of Miami, the contract passengers have is with Costa Cruises.

It is all but certain that an attorney will file a claim against Costa, and perhaps Carnival here in the U.S., but the odds of claim succeeding in an American court are slim. U.S. Courts have previously upheld forum clauses such as the one in the Costa Concordia ticket unless plaintiff makes a “strong showing that enforcement would be unfair and unreasonable under the circumstances.”

The test on whether the choice of forum would be “unfair and unreasonable” is if (1) its formation was induced by fraud or overreaching; (2) the plaintiff would be deprived of its day in court because of inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of a remedy or (4) the enforcement would contravene public policy.

It will be very challenging for the American citizens who were aboard the Concordia to invalidate the venue provision of their cruise contract. Their strongest argument would be that they may be deprived of their “day in court” because of the unfairness of bringing the claim in Italy. Apparently a Plaintiff in Italy must post a bond of 10% of their expected damage award to simply file a lawsuit. This cost would certainly be a bar to most people trying to bring a suit. The legal battle though to bring the claim here in the U.S. will also undoubtedly be costly, time consuming and subject to appeals as Costa and other cruise lines would likely vigorously fight a challenge to the venue clause.

While no one likes to contemplate potential disaster in advance of a vacation, the lesson here is that when traveling abroad it is important to review your travel documents to see what limitations on venue and damages are stated. This is especially true if your trip has segments that do not originate and terminate outside the U.S. If there are limits which would not cover you for what you may lose if you were to lose your possessions or be injured, you may want to consider purchasing travel insurance when planning your trip, as you may not be able to count on the American legal system to protect your rights.

Medical Malpractice Relief: Sovereign Immunity Sought for Emergency Room Physicians

Author: Albert M. Rodriguez

Once again, legislation has been proposed in the Florida House and Senate to extend sovereign immunity coverage to physicians providing care in emergency rooms. The proposed legislation would make the physicians agents of the State and limit their liability to $200,000 per claim.

Critics of the bill maintain that emergency room physicians already enjoy sufficient protection with statutory caps to medical malpractice claims and argue that additional protection will remove physician accountability, potentially decreasing the quality of care.

However, what the critics of the proposed legislation fail to appreciate is that providing this type of care presents a high risk situation that demands high medical malpractice insurance premiums and frequently exposes emergency room physicians to lawsuits, regardless of whether or not they are responsible for a bad medical outcome. Further, despite the risks, state and federal law require emergency room physicians to provide emergency care regardless of a patient’s ability to pay or the type of their injury or illness, without providing these physicians any protection from liability exposure.

While it is hard to quantify how many specialists have left the state and/or stopped providing care in emergency rooms due to the liability exposure and its associated costs, it is clear that the State must provide physicians an incentive to continue to provide these essential public services if it wants to avoid a future shortage of emergency room physicians.

Please visit the links below to view H.B. 385 and H.B. 614:
http://www.flsenate.gov/Session/Bill/2012/0385/BillText/Filed/PDF
http://www.flsenate.gov/Session/Bill/2012/0614/BillText/Filed/PDF

Do the Changes to Florida’s Mediation Procedures Rules Really Help?

Author: Amy L. Miles

Florida’s Supreme Court amended Florida Rule of Civil Procedure 1.720, governing mediation procedures with the changes effective as of January 1 of this year. Substantively, the court added a definition of “party representative having full authority to settle” and a requirement that the party certify to the court the identity of that representative and that he or she actually have the required authority to settle before the mediation conference takes place.

It is clear from the committee notes on the amended rule that the purpose for the new definition is to create an “objective standard” by which the court, without input from a mediator who is bound by confidentiality requirements, can measure the authority of a party representative to settle the dispute. So, too, the certification is a “direct representation to the court” that can be verified “upon motion by a party or inquiry by the court without involvement of the mediator and would not require disclosure of confidential mediation communications.” We must not forget that rule 1.720 contains a sanctions provision for failure to appear at the mediation conference.

So, is the amendment a cure for something that is broken? Will there be more settlements coming out of court-ordered mediations as a result? Those we have spoken to are doubtful.

Let’s first look at the purpose for mediation. Mediation is a process that has been formally incorporated into the litigation system to facilitate dispute resolution. It was added with the idea that mediation will save parties time and money while enabling them to come to a mutually-acceptable resolution.

What element of involving the court further in the mediation process as an enforcer, not of the agreement but of the process itself, will decrease the cost and time spent? Cost and time will not be saved by additional motions filed by parties when, for instance, the individual certified to attend has a sudden emergency? Nor is cost and time saved by motions to dispense with mediation altogether because the only nationally-based corporate officer with the actual ability to authorize millions of dollars of settlement is unable to attend a court-ordered mediation over a local dispute with which he or she is unfamiliar. Similarly, cost and time will not be saved by post-mediation motions for sanctions—and the discovery or hearings they will generate—based on the perceived failure to attend the conference in strict compliance with the rule.

Courts have, for years, recognized the benefits of permitting persons to appear by telephone. Telephonic hearings permit the case to move along where individuals necessary for the hearing would otherwise be unable to attend due to location, time, or cost constraints. Although the new amendments don’t change the requirements that those authorized to settle the case appear personally, they do take it a step further from having the ability to confer with corporate superiors if necessary. This may ultimately increase the cost of mediation and decrease the possibility of settlement—or at least slow the process down—as often local representatives familiar with the case will not have the authority to settle without the need to seek further approval and those who must attend are fewer in number, possibly much further away and without intimate knowledge of the case that would assist in a mediated settlement.

And what about that representative who is the “final decision maker with respect to all issues presented by the case who has the legal capacity to execute a binding settlement agreement”? In the context of large corporations involved in considerable amounts of litigation, such as insurance companies and banks, who will be tending the daily operations and financial management of the corporation if the final decision maker—often asked to be able to commit the corporation to a settlement of hundreds of thousands, if not millions of dollars, is out attending mediations most of the time? If a corporation must attend several mediation conferences within short time periods the logistics and cost of travel for this executive certainly would frustrate the purpose of reducing time and money spent on litigation. Alternatively, how many representatives could a company afford to provide full financial authority to at any given time period? And if the mediation happens to require decisions on something other than a dollar amount—such as changes in company policy, waiver of rights between the parties, or other business decisions, a whole new set of questions arise as to how many representatives—each one able to address a specific issue—a corporation must have personally attending. If mediation becomes a process that makes it difficult for these types of corporations to adequately monitor their own operations, it may discourage them from doing business in Florida in the first place.

There is no doubt that at times mediation conferences have not been attended with a good faith attempt to settle. Rule 1.720 provides for the parties to stipulate alternative procedures and alternative requirements for attendance. In all respects, to the extent that the parties work with each other, mediation will a successful means of resolving disputes. To the extent, however, that mediation makes it more difficult for a party to participate in the resolution process, it will work only to delay and increase the cost and complexity of litigation as a whole.

Bill Proposes New Strict Regulations on ALFs in Florida

Author: Mark B. Hartig

Fresh out of a Florida Senate subcommittee, Senate Bill 658, proposed by Senator Wise looks to significantly impact regulations in Assisted Living Facilities. As reported in the Tampa Bay Times, pressure to move these bills to a vote this year may be spurred on by a series of news media reports about alleged abuse and neglect in Assisted Living Facilities.

One of the biggest changes would be regarding the educational requirements to be an administrator at an assisted living facility. The bill states an administrator would have to have a 4 year college degree or 5 years of experience as an administrator. Currently a person with a high school diploma could be licensed as an administrator by completing ALF core training and passing a core competency exam.

Other changes proposed in the bill would raise fines and penalties that can be imposed by the state regulators who monitor ALFs, allow the state to strip the license of an ALF where a resident dies from abuse and impose criminal penalties on persons who falsify ALF records.

It would appear the regulation changing the educational requirements for an administrator of an ALF could impact small “mom and pop” ALFs. These are the facilities that are typically run out of someone’s home. While greater oversight to protect residents is a positive goal, it must not drive out operators who fill the void between a resident’s own home and skilled nursing facilities. We’ll be watching this legislation closely and update our readers on its progress.

Pennsylvania House Approves Caps on Punitive Damages in Claims against Long Term Care Facilities

Author: Mark B. Hartig

On Wednesday, in a narrow vote, the Pennsylvania House approved legislation which would cap punitive damages to 200% of what a jury awards a claimant for compensatory damages.  House Bill 1907 passed the chamber by a 103-89 vote.  This cap would apply to claims against Nursing Homes, Assisted Living Facilities, and Personal Care Homes.  The legislation now proceeds to the Pennsylvania Senate for consideration.

The cap on punitive damages can only be avoided if a claimant were able to allege and demonstrate intentional misconduct.  The law further states that the minimum amount awarded for punitive damages would be $100,000, unless a jury specifically awarded less than that for punitive damages.

It will be interesting to follow this legislation to see if it survives in the Senate and makes its way to the Governor. In an election year, industry efforts to pass legislation capping damages is a difficult task.

Loosening the screws on tort reform? NIED theory expanded in medical malpractice cases by the Pennsylvania Supreme Court

Author: Mary Beth Davis

A plurality opinion from the Pennsylvania Supreme Court came down on December 22, 2011, which expanded the NIED claim (negligent infliction of emotional distress) by adding a fourth category of people who may recover and removing the physical impact element for this category of people. See Toney v. Chester County Hospital, 2011 WL 6413948 (Pa. Dec. 22, 2011)(Baer, Todd, and McCaffery, JJ. join in support of affirmance)(Castille, Saylor, Eakin, JJ. join in support of reversal)(Orie Melvin, J. who sat on the Superior Court when it issued its 2008 opinion did not participate in this opinion).

In the 3-3 split, Justice Baer, writing for the affirming opinion, decided that NIED is available in cases where a “special relationship” exists and there is a foreseeable breach of the relevant duty that would “[r]esult in the emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress.” The physician-patient relationship is a special relationship, thus this case has an impact on medical malpractice cases. The Court analyzed the history of the physical impact rule for NIED recovery, which first required physical impact for recovery , then was expanded to allow recovery for those who were in close proximity of physical impact, and then to include those who witnessed a tortfeasor impact a close relative (bystander liability). In Toney, the assenting opinion said that there does not need to be a physical impact to recover for a NIED claim based on a special relationship.

In Toney, the plaintiff gave birth to a baby with several deformities, including all four limbs terminating at the elbow or knee, hypoglossia (incompletely developed tongue), micrognathia (abnormal, small lower jaw). An ultrasound reading by the radiologist from four months earlier said her pregnancy was normal. The plaintiff only alleged that the defendants’ negligence (not detecting the baby’s abnormalities in the ultrasound) prevented her from preparing herself for the “[s]hock [of witnessing her child’s birth with profound abnormalities], without the benefit of seeking psychiatric, religious, or social counseling, [and] without the benefit of making appropriate arrangements prior to [her child’s] birth”. She did not allege that earlier detection of the abnormalities could have prevented any of them. The trial court granted the defendants’ preliminary objections based on the failure to state a legally cognizable claim, but the Superior Court reversed the trial court.

The Justices in favor of reversal of the Superior Court’s decision did not believe that it was the High Court’s place to add to the already “complex and risk-laden” medical malpractice arena, and saw these “social policy judgments” best fit for the General Assembly. They warned of engaging in judicial policy-making, where it can have a broader social impact. The dissenting opinion also pointed out the difficulty in trying to separate the inevitable suffering plaintiff would have undergone upon first learning about the abnormalities from the additional distress caused by the “unpreparedness”.

The Toney decision raises quite a few questions, especially in light of Legislature’s tort reform over the past decade. Doesn’t this expansion of liability in the medical malpractice arena for healthcare providers, who will have these “special relationships”, seem inconsistent with tort reform to reduce frivolous medical malpractice suits? Should a Certificate of Merit be required when filing the Complaint to also show that the emotional harm suffered was worsened due to the “unpreparedness”, to minimize frivolous suits filed based solely on this theory? How does the healthcare provider ever prove that the emotional harm suffered would have been just as devastating if learned earlier, since the outcome could not have been changed? Is this a form of strict liability?

It seems that this decision created more questions and uncertainty. The answers to which will surely unfold in an inconsistent, case-by-case basis in the different counties, or at least until the Legislature steps in… again.

Please click links below to read all opinions:

Opinion affirming

Concurring opinion affirming

Opinion reversing

Concurring opinion reversing

New Teen Driver Law Will Reduce Number of Crashes and May Reduce Lawsuits

Author: Karen L. Tucci

Pennsylvania Department of Transportation (PennDOT) reports show teenagers continue to have a disproportionately high number of crashes. In PennDOT’s 2010 Pennsylvania Report on Crash Facts & Statistics, young drivers (ages 16- 21) accounted for 39.5% of single vehicle crashes [FN1]. PennDOT found that young drivers were over-represented in the analysis on single and multiple vehicle crashes because young drivers are more easily distracted while driving. In an analysis on drivers in crashes by age group, as the driver age groups increased in age, the percentage of Pennsylvania total drivers involved in crashes within each age group decreased considerably.

To combat the high numbers of teen crashes and fatalities, on December 24, 2011, a new law in Pennsylvania for teen drivers went into effect. This new law may reduce the number of accidents and fatalities for new teen drivers, and thereby reduce the number of lawsuits arising from those accidents.

The new law, “Lacy’s Law” is named for Lacy Gallagher, 18, from the Philadelphia area. Lacy was killed in 2007 in a car crash, as a passenger in a vehicle with six other teens. Under the new law, the number of hours of supervised driving required prior to gaining a junior license increased from 50 hours to 65 hours. Ten of those hours must be at night and 5 must be in inclement weather. For the first 6 months on a junior license, teens may transport no more than 1 non-family member passenger under the age of 18 unless a parent or guardian is in the car. After the first 6 months on a junior license, teens may transport no more than 3 non-family member passengers under the age of 18 unless a parent or guardian is in the car.

If a teen with a junior license is convicted of a traffic violation, or is found to be partially or fully responsible for a reportable crash, the number of passengers that the teen can transport is limited to one non-family member until the teen driver is 18. The law also now provides police, for the first time, to pull over a teen driver if the officer sees the driver, or any passenger the officer believes to be under the age of 18, not buckled up.

Supporters of this legislation hope the bill will lead to another round of reductions in the number of injuries and deaths attributable to accidents involving Pennsylvania’s youngest drivers.

Lacy’s Law aims to reduce distractions for young drivers, which will hopefully reduce the numbers of accidents and fatalities involving young drivers in Pennsylvania. It will increase restrictions on young drivers and may increase the cost of driver’s education given increased training hours, but the benefit of having safer roads with less accidents and fatalities involving young teens, is immeasurable.

For more information on the requirements for teen driving in Pennsylvania, visit http://www.dmv.state.pa.us/centers/TeenDriversCenter.shtml. For more information on the new laws and information on driver’s education services in Pennsylvania and New Jersey, you may visit www.streetsafedriving.com.

[FN1] PennDOT’s full report entitled “2010 Pennsylvania Crash Facts & Statistics can be found at ftp://ftp.dot.state.pa.us/public/Bureaus/HighwaySafety/Web%20Development/Crash%20Facts%20Book/2010_CFB_linked.pdf#page=25.

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