Med Mal News

Parents Sue to Get Autism Therapy Back

The Los Angeles Times reports that a group of families of autistic children has filed a class-action suit against the Eastern Los Angeles County Regional Center, a nonprofit agency that had been providing the children with state-funded therapy. Zarembo, Los Angeles Times 1/14/10. The agency decided to discontinue its program, which had provided DIR model therapy (developmental, individual difference, relationship-based) to the children, because California's legislature cut back on funding for some therapies statewide. The types of therapies affected are those that are considered experimental, nonmedical or recreational. The parents contend that DIR therapy, which involves closely interacting with an autistic child in order to teach the child to become socially engaged and comfortable with communication, is not experimental, but has been proven to improve the lives of autistic children.

IL Supreme Court Shoots Down Damage Cap

In February, in Lebron v. Gottlieb Memorial Hospital, a consolidated case before the Illinois Supreme Court, a 2005 Illinois law capping medical malpractice damages was confirmed unconstitutional. The appeal followed from Cook County Circuit Judge Diane Joan Larsen's ruling, delivered in November 2007 in a case involving a birth-injured baby. The damage restriction law in question sought to cap hospital liability in med-mal cases at $1 million, and doctor liability at $500,000.

The state's highest court had also found similar laws unconstitutional in 1997 and in 1976. Robert Peck, who leads the Center for Constitutional Litigation in Washington and assisted in representing the plaintiffs, said, “I would hope that the legislature now, having gone to the well three times in Illinois, would understand that this is a non-starter constitutionally.” The Center has similar damage cap litigation pending in 13 other states.

New Hampshire Cannot Take Med-Mal Fund's Surplus

In January, New Hampshire's Supreme Court affirmed a July 2009 order prohibiting the transfer of up to $110 million in surplus medical malpractice insurance funds from the state insurance department's New Hampshire Medical Malpractice Joint Underwriting Association (JUA). The JUA is made up of insurers authorized to write medical malpractice liability policies in New Hampshire.

The Supreme Court majority ruled in Tuttle v. New Hampshire Medical Malpractice Joint Underwriting Association that the state law at issue violated a New Hampshire constitutional provision that bars the government from making retrospective laws and impairing contractual rights. Here, the policyholders' interest in the fund's surplus was vested and not contingent, according to the court, and they had the right to benefit from the excess monies in the fund, either by receiving a dividend or by the reinvestment of the surplus.

Kevin Fitzgerald, a partner at Nixon Peabody who helped represent the health care providers, applauded the decision, saying the legislators who passed the law were “trying to retroactively change agreements to solve the state's problems. That's not only a contract problem, it's a constitutional violation.”

The ruling leaves some questions unsettled, said New Hampshire Attorney General Michael Delaney, who pointed out that “the decision in no way resolves the outstanding question of who is entitled to a distribution from the JUA excess surplus or what will become of those JUA funds.” Delaney said the state is studying its options.

Parents Sue to Get Autism Therapy Back

The Los Angeles Times reports that a group of families of autistic children has filed a class-action suit against the Eastern Los Angeles County Regional Center, a nonprofit agency that had been providing the children with state-funded therapy. Zarembo, Los Angeles Times 1/14/10. The agency decided to discontinue its program, which had provided DIR model therapy (developmental, individual difference, relationship-based) to the children, because California's legislature cut back on funding for some therapies statewide. The types of therapies affected are those that are considered experimental, nonmedical or recreational. The parents contend that DIR therapy, which involves closely interacting with an autistic child in order to teach the child to become socially engaged and comfortable with communication, is not experimental, but has been proven to improve the lives of autistic children.

IL Supreme Court Shoots Down Damage Cap

In February, in Lebron v. Gottlieb Memorial Hospital, a consolidated case before the Illinois Supreme Court, a 2005 Illinois law capping medical malpractice damages was confirmed unconstitutional. The appeal followed from Cook County Circuit Judge Diane Joan Larsen's ruling, delivered in November 2007 in a case involving a birth-injured baby. The damage restriction law in question sought to cap hospital liability in med-mal cases at $1 million, and doctor liability at $500,000.

The state's highest court had also found similar laws unconstitutional in 1997 and in 1976. Robert Peck, who leads the Center for Constitutional Litigation in Washington and assisted in representing the plaintiffs, said, “I would hope that the legislature now, having gone to the well three times in Illinois, would understand that this is a non-starter constitutionally.” The Center has similar damage cap litigation pending in 13 other states.

New Hampshire Cannot Take Med-Mal Fund's Surplus

In January, New Hampshire's Supreme Court affirmed a July 2009 order prohibiting the transfer of up to $110 million in surplus medical malpractice insurance funds from the state insurance department's New Hampshire Medical Malpractice Joint Underwriting Association (JUA). The JUA is made up of insurers authorized to write medical malpractice liability policies in New Hampshire.

The Supreme Court majority ruled in Tuttle v. New Hampshire Medical Malpractice Joint Underwriting Association that the state law at issue violated a New Hampshire constitutional provision that bars the government from making retrospective laws and impairing contractual rights. Here, the policyholders' interest in the fund's surplus was vested and not contingent, according to the court, and they had the right to benefit from the excess monies in the fund, either by receiving a dividend or by the reinvestment of the surplus.

Kevin Fitzgerald, a partner at Nixon Peabody who helped represent the health care providers, applauded the decision, saying the legislators who passed the law were “trying to retroactively change agreements to solve the state's problems. That's not only a contract problem, it's a constitutional violation.”

The ruling leaves some questions unsettled, said New Hampshire Attorney General Michael Delaney, who pointed out that “the decision in no way resolves the outstanding question of who is entitled to a distribution from the JUA excess surplus or what will become of those JUA funds.” Delaney said the state is studying its options.