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Countersuit litigation.

Countersuit litigation brings into sharp focus some difficult and conflicting concepts in law and social policy. A point that seems reasonably self-evident is that the existence of a viable countersuit remedy in most states has not produced the huge volume of litigation that might create a "chilling effect" upon access to the courts, and it is not likely to do so in the future. If our system is actually committed to the idea that all disputes can be submitted to the courts for resolution, it is difficult to conclude that a remedy should not be available to an individual who has been subjected to the very real cost and hardship of defending a frivolous lawsuit. The use of the legal system to provide redress for injuries should be a two-way street. The fact that a remedy should exist, however, does not necessarily mean that is should be encouraged. Most serious-minded people understand that certain types of inconvenience are a necessary part of life in a civilized society. Nevertheless, if litigation is increasingly becoming a mechanism for profit or an instrument to remedy the most minor grievance, some response is mandatory. While litigation is a serious matter and should not be undertaken lightly, it is impossible to overlook the fact that there is a certain percentage of cases that are filed to exploit the system at the expense of innocent defendants. If litigation serves a dual purpose of providing compensation to injured parties and setting appropriate standards for future conduct, it is hard to find a rational basis for denying a countersuit remedy to those who have been victimized in this manner.

Jurisprudence

Collective judicial management of mass toxic tort controversies: lessons and issues from the Agent Orange litigation.

Viewing the Agent Orange litigation as a case study, this article explores the feasibility and desirability of strengthening the powers of the courts to manage toxic tort controversies en masse. The Agent Orange lawsuit, brought on behalf of potentially millions of Vietnam War veterans and family members, charged that herbicides used for military purposes during the war caused a wide range of health problems. This article first reviews the current national debate over how mass toxic tort controversies should be handled, including key legislative reform options, and describes how attention is increasingly focused on ways that the court system might better cope with mass toxic torts. The principal events of the Agent Orange litigation are then summarized, by which the litigation was consolidated into a massive class action, the class action was settled, and a streamlined plan for distributing the settlement fund was adopted. The article evaluates the outcome of the litigation, and discusses whether the solution there can and should be broadly applied to other mass toxic tort cases. This question depends, in part, on a series of complex legal and practical issues, but the author suggests that the question will also depend on what institutional role we expect the judiciary to play within society.

2,4,5-Trichlorophenoxyacetic Acid

Unraveling the effects of compensation, litigation, and employment on treatment response in chronic pain.

Although it has often been suggested that chronic pain patients who are receiving workmen's compensation or who have litigation pending are less likely to benefit from treatment, the results of outcome studies of this question conducted by various pain clinics have been inconsistent. We hypothesized that poorer outcome in such patients may be related to the fact that they are less likely to be working and that the inconsistent results in the literature may therefore be explained by variability among studies in the percentages of patients who are receiving compensation (or who have litigation pending) who are also working. We examined the relationships among compensation, litigation, employment, and short- and long-term treatment response in a series of 454 chronic pain patients. Compensation benefits and employment status both predicted poorer short-term outcome in univariate analyses; however, when employment and compensation were jointly used to predict outcome in multiple regression analyses, only employment was significant. In additional analyses, only employment significantly predicted long-term outcome, whereas compensation and litigation did not. Our results suggest that it would be valuable to redirect attention away from the deleterious effects of the 'compensation neurosis' and toward the roles of activity and employment in the treatment and rehabilitation of chronic pain patients.

Adult

Forty years of litigation involving medical students and their education: I. General educational issues.

An analysis of reported state and federal adjudication from 1950 through 1989 was undertaken to identify trends in litigation involving medical students and undergraduate medical education. Of the 110 decisions cited, 51 (46%) involved disputes over general educational issues. A majority of the decisions affecting general education involved admissions and dismissal processes. Recently courts have begun scrutinizing readmission, course repetition, and cheating. Medical schools have accommodated to judicial scrutiny of general educational issues and have prevailed more often than claimants in litigation during this period, but litigation has not decreased as precedent and procedure have become clearer. Instead, litigation has continued unabated in alternative areas and at different levels of the educational process.

Education, Medical, Undergraduate

Image processing by computer analysis--potential use and application in civil and criminal litigation.

The image processing by computer analysis has established a data base for applications in the industrial world. Testing has proved that the same system can provide documentation and evidence in all facets of modern day life. The medicolegal aspects in civil and criminal litigation are no exception. The primary function of the image processing system is to derive all of the information available from the image being processed. The process will extract this information in an unbiased manner, based solely on the physics of reflected light energy. The computer will analyze this information and present it in pictorial form, with mathematical data to support the form presented. This information can be presented in the courtroom with full credibility as an unbiased, reliable witness. New scientific techniques shown in the courtroom are subject to their validity being proven. Past imaging techniques shown in the courtroom have made the conventional rules of evidence more difficult because of the different informational content and format required for presentation of these data. I believe the manner in which the evidence can now be presented in pictorial form will simplify the acceptance. Everyone, including the layman, the judge, and the jury, will be able to identify and understand the implications of the before and after changes to the image being presented. In this article, I have mentioned just some of the ways in which image processing by computer analysis can be useful in civil and criminal litigation areas: existing photographic evidence; forensic reconstruction; correlation of effect evidence with cause of evidence; medical records as legal protection; providing evidence of circumstance of death; child abuse, with tracking over time to prevent death; investigation of operating room associated deaths; detection of blood at the scene of the crime and on suspected objects; use of scales at the scene of the crime; providing medicolegal evidence beyond today's technology; and a new theory and technique on using polygraph information in litigation. I am sure that the professionals in the forensic field will be able to think of many more applications where the image processing by computer analysis tool will be able to provide solutions to complex problems. The next time you say to yourself, "I wish they would have preserved this," or, "It's too bad they didn't do an autopsy," think of this new tool that is available to help you get the documentation and answers that will stand up to the scrutiny of the civil and criminal litigation system.

Accidents, Traffic

Pending litigation and rehabilitation outcome of chronic back pain.

The effects of pending litigation for compensation on treatment outcomes of patients with chronic low back pain, were assessed. The 81 patients with chronic low back pain who participated in a six-week behavioral treatment program organized around the theme of self-control, were differentiated according to whether there were unsettled legal claims for compensation. Scales from the MMPI and Health Index were administered before and after treatment. Three behavioral measures of physical mobility were obtained from representative subsamples in each group before and after treatment and at one and three months follow-up. Results indicated that after treatment, patients without litigation pending obtained significantly greater reductions on the Hypochondriasis and Hysteria scales of the MMPI and achieved relatively greater improvements on two behavior measures. Because patients with litigation pending also evidenced significant behavioral gains, the belief that these patients are at risk for treatment appears to be true only in relation to the patients without current litigation rather than in an absolute sense.

Back Pain

Medical malpractice litigation: do the British have a better remedy?

Medical malpractice claims are filed nearly ten times more frequently in America than they are in Great Britain. British patients generally adopt a less adversarial stance toward medical malpractice than do American patients. This Article examines the British malpractice system, as compared with the American system, and explores the differences between the two, in terms of costs and fees, liability rules, statutory provisions, and judicial attitudes toward malpractice litigation. The Article also discusses British social and institutional factors, such as the "taint" of litigation and the National Health Service, and evaluates how these factors affect British malpractice litigation. The Article presents the alternative forums available to British patients in seeking satisfaction for their medical service complaints. The Article concludes with an evaluation of how these factors achieve the three societal objectives of malpractice litigation: reparation, emotional vindication and deterrence.

Attitude

Fathers and sons: some effects of prolonged custody litigation.

In all jurisdictions, for a variety of reasons, child custody and visitation issues may be reopened at any time. The children at issue, already likely to have been traumatized by problems in the parental marriage and subsequent separation and divorce, are affected further by still more litigation. The cases of three preadolescent boys who are the subjects of such prolonged litigation are presented. In each, the boys resided with their mothers as the primary custodial parents, the fathers having generally liberal rights of visitation. Regardless of which parent raised further court-related issues after the original agreements, the father-son relationship was most severely affected by continuing legal actions and related parental actions. Each child became increasingly fearful of the next anticipated visit by the father, who was cast into the role of villain by the child. Efforts to improve these damaged relationships through joint parent-child therapeutic attempts were largely of little avail. In spite of what may have been good experience with the person of the judge who dealt with earlier litigation, the children became fearful of what the next might be like or might do, viewing the judge as the person in power to whom parents and attorneys alike deferred. It is suggested that, wherever possible, prolonged litigation be avoided in the best interests of the child and of preserving necessary child-parent relationships.

Child

HIV infection and AIDS in the public health and health care systems: the role of law and litigation.

The AIDS Litigation Project has reviewed nearly 600 reported cases involving individuals with human immunodeficiency virus (HIV) infection and acquired immunodeficiency syndrome (AIDS) in the federal and state courts in the United States between 1991 and 1997. Cases were identified through a federal and 50-state computer and library search. An important subset of litigation relates to HIV/AIDS in the public health and health care systems, since the law affects health care institutions and professionals, patients, and public health policy in America. This subset of HIV/AIDS litigation includes testing and reporting; privacy, the duty to warn, and the right to know; physician standards of care in prevention and treatment; and discrimination and access to health care. In broad terms, the review demonstrates a reliance on voluntary testing and protection of patient privacy through HIV-specific statutes and the common law. Negligence with potential civil and criminal liability has been alleged in cases of erroneous or missed diagnosis of HIV infection. In the first AIDS case to be considered by the Supreme Court, the Court will decide whether patients with asymptomatic HIV infection are protected under the Americans With Disabilities Act. Considerable progress has been made, both socially and legally, during the first 2 decades of the epidemic, but much still needs to be accomplished to protect privacy, prevent discrimination, and promote tolerance.

AIDS Serodiagnosis

Malpractice litigation involving laparoscopic cholecystectomy. Cost, cause, and consequences.

OBJECTIVE: To analyze 44 cases of malpractice litigation involving laparoscopic cholecystectomy for cost, cause, and consequences of civil court actions. DESIGN: Survey of national jury verdict reporting services, covering 20 states during the 39-month interval from January 1, 1993, to April 30, 1996. The 44 laparoscopic cholecystectomies were performed during the 40-month interval from February 1, 1989, to June 30, 1992. MAIN OUTCOME MEASURES: Types of injuries leading to litigation, morbidity and mortality from injuries, trial verdicts, and cost of liability payments. RESULTS: The 44 injuries composed 4 main categories of injuries: (1) bile duct, n = 27, 61%; (2) bowel, n = 7, 16%; (3) major vascular, n = 4, 9%; and (4) other, n = 6, 14%. Bowel injuries involved trocar or cautery injury; vascular injuries all involved trocars. There were 7 deaths (16%) overall from either septic peritonitis resulting from bowel injury (4 patients [57%]) or bile peritonitis involving spills or cystic duct leaks (3 patients [43%]). No deaths resulted from injury to main bile ducts. Of the 44 cases, 21 (48%) settled out of court (mean payment, $469,711). Of the remaining 23 cases proceeding to trial, 19 (83%) were defended successfully while 4 (17%) concluded with plaintiff jury verdicts (mean payment, $188,772). CONCLUSIONS: Frequent settlements of cases involving laparoscopic cholecystectomy injuries that are litigated have resulted in a selection of cases of increased defensibility at trial. The high mortality rate from bowel injuries is a new medicolegal finding in laparoscopic cholecystectomies, as expensive to settle (mean payment, $438,000) as laparoscopic cholecystectomy bile duct injury (mean payment, $507,000).

Cholecystectomy, Laparoscopic

Psychological assessment of postdisaster class action and personal injury litigants: a case study.

The case study method is used to describe psychological assessments undertaken with victims of a combined natural/technological disaster for litigation purposes. A class action suit was filed in which the authors determined levels of traumatic stress in 27 plaintiffs as a group and relative to each other. The process was effective--the case was settled out of court in favor of the litigants. Individual litigants were satisfied with monetary awards received.

Adult

'Compensation neurosis' revisited: outcome studies of the effects of litigation.

Although the term 'compensation neurosis' has been frequently used to describe personal injury litigants, its clinical validity--and the assumptions about individuals described by this label--have not been critically examined. This article reviews the concept of 'compensation neurosis' and follow-up studies of claimants for compensation following the finalisation of their legal proceedings. A follow-up study of 760 litigants found that, of the 264 subjects who were not working at the time of conclusion of litigation and who could be traced, 198 (75%) were not working after an average of 23 months following the finalization of their cases.

Adjustment Disorders

A review of transfusion-associated AIDS litigation: 1984 through 1993.

BACKGROUND: Since 1984, hundreds of lawsuits have been filed against health care providers in the United States, alleging transmission of human immunodeficiency virus by transfusion. While anecdotal reports of jury verdicts have been published, no quantitative study to identify trends in transfusion-associated AIDS litigation has been undertaken. STUDY DESIGN AND METHODS: To identify trends in lawsuits filed against health care providers alleging human immunodeficiency virus infection transmitted via transfusion, 163 legal actions were analyzed. Included were those for which the authors provided legal defense or consultation (n = 79) and cases reported nationally (n = 84). Cases were analyzed as to characteristics of defendant(s), date of transfusion and case filing, liability theories, and verdict, if applicable. RESULTS: Defendants were blood centers (74% of cases), hospitals (58%), and physicians (53%). Of physicians, surgeons were named in 78 percent of cases; 42 percent of these surgeons were cardiothoracic surgeons. Nationally, 14 cases have resulted in plaintiff awards totalling $75,420,798. Physicians have been liable for 41 percent of that sum, blood banks 31 percent, and hospitals 26 percent. Of the 10 liability theories raised, the most frequent were claims of medical negligence (46% of cases), failure to identify high-risk donors (45%), lack of informed consent (39%), and failure to conduct surrogate testing (39%). Twenty-six trial results favorable to health care providers were noted nationally, 17 occurring in the San Francisco Bay Area, where case filings peaked before 1990 (40/56) and where new case filings decreased (1990, 5; 1991, 3; 1992, 1; 1993, 0) as verdicts favoring health care providers were reported. CONCLUSION: Transfusion-associated AIDS litigation began with verdicts against blood banks, but has expanded to suits against physicians and hospitals that are based on theories of medical negligence and informed consent. Despite widely publicized verdicts for plaintiffs, health care professionals have successfully defended these lawsuits, and in one center of early litigation, a sharp decrease in new case filings has been observed.

Acquired Immunodeficiency Syndrome

Relation between negligent adverse events and the outcomes of medical-malpractice litigation.

BACKGROUND: We have previously shown that in New York State the initiation of malpractice suits correlates poorly with the actual occurrence of adverse events (injuries resulting from medical treatment) and negligence. There is little information on the outcome of such lawsuits, however. To assess the ability of malpractice litigation to make accurate determinations, we studied 51 malpractice suits to identify factors that predict payment to plaintiffs. METHODS: Among malpractice claims that we reviewed independently in an earlier study, we identified 51 litigated claims and followed them over a 10-year period to determine whether the malpractice insurer had closed the case. We obtained detailed summaries of the cases from the insurers and reviewed the litigation files if the outcome of a case differed from the outcome predicted in our original review. RESULTS: Of the 51 malpractice cases, 46 had been closed as of December 31, 1995. Among these cases, 10 of 24 that we originally identified as involving no adverse event were settled for the plaintiffs (mean payment, $28,760), as were 6 of 13 cases classified as involving adverse events but no negligence (mean payment, $98,192) and 5 of 9 cases in which adverse events due to negligence were found in our assessment (mean payment, $66,944). Seven of eight claims involving permanent disability were settled for the plaintiffs (mean payment, $201,250). In a multivariate analysis, disability (permanent vs. temporary or none) was the only significant predictor of payment (P=0.03). There was no association between the occurrence of an adverse event due to negligence (P = 0.32) or an adverse event of any type (P=0.79) and payment. CONCLUSIONS: Among the malpractice claims we studied, the severity of the patient's disability, not the occurrence of an adverse event or an adverse event due to negligence, was predictive of payment to the plaintiff.

Adolescent

Appraisal of the event as a factor in coping with malpractice litigation.

The authors designed a study to explore medical malpractice litigation as a stressor, factors that contribute to doctors' appraisal of it, how they actually cope with it, and the potential effects on them and on their mode of practice. We interviewed 51 physicians who had been sued for medical malpractice. Those who identified litigation as their most stressful life event (Group 1, N = 11) experienced significantly more physical and emotional symptoms, especially those suggestive of a major depressive disorder, and used more emotion-focused coping mechanisms than those who identified some other event in life as being most stressful (Group 2, N = 39). The appraisal of litigation as one's most stressful life experience may be a useful predictor of coping response, with previous life experiences as a major contributing factor to this appraisal.

Adaptation, Psychological

Forty years of litigation involving medical students and their education: II. Issues of finance.

An analysis of reported state and federal adjudication from 1950 through 1989 was undertaken to identify trends in litigation involving medical students and undergraduate medical education. Of the 110 cited judicial decisions during that time, 59 (54%) involved disputes over financing medical education; 43 (73%) were litigated since 1985. This dramatic increase arises primarily from challenges to National Health Service Corps obligations and from attempts to discharge or reorganize debt under the Bankruptcy Code. Medical school graduates enjoyed very little success in these cases. Analysis of court decisions points to a need for informed counseling for medical students, particularly as to the consequences of timing in default on service obligations and of incurring loans under the Health Education Assistance Loan (HEAL) program as opposed to other loan sources. The growing educational debt of today's medical students foreshadows continued litigation in this area.

Education, Medical, Undergraduate

Forty years of litigation involving residents and their training: I. General programmatic issues.

An analysis of reported state and federal adjudication from 1950 through 1989 was undertaken to identify issues and trends in litigation involving residents and their training. Of the 174 decisions cited, 38 (22%) involved disputes over general programmatic issues. The great majority of these addressed academic administration, especially issues arising from dismissals of residents. During more recent periods, residency programs have accommodated to judicial scrutiny of dismissals and have prevailed more often than claimants in litigation. Successful accommodation by residency programs has apparently not operated as a disincentive to further litigation, however.

Accreditation

Forty years of litigation involving residents and their training: II. Malpractice issues.

The authors reviewed 136 cases of malpractice litigation involving residents or programs of graduate medical education that were reported from 1950 through 1989. Before 1970 malpractice constituted the only area of reported litigation for residents. The number of malpractice cases involving residents increased substantially after 1975, paralleling the growth of malpractice cases nationally. The regional pattern of reported cases involving residents also corresponded with previous findings. Questions of vicarious liability, the applicable standard of care, and residents' supervision were at issue in the great majority of cases. Questions related to judicial procedure, immunity from liability, breach or causation, and informed consent were also litigated. Residents were on the side of the prevailing party in 44% of the cases. Malpractice continues to be the key legal issue facing programs of residency training.

Internship and Residency