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Case No. 25 - Death Of A 25 Year Old Woman In A Hospital’S Micu With Sepsis And Septic Shock, New York Law School

Anonymous Closed Medical Liability Cases

Anonymous Closed Medical Liability Case - Death of a 25 year old Woman in a Hospital’s MICU with Sepsis and Septic Shock

Case No. 23 - Hypertensive Brain Bleed In A 10 Year Old With Undiagnosed Kidney Disease, New York Law School

Anonymous Closed Medical Liability Cases

Anonymous Closed Medical Liability Case - Hypertensive Brain Bleed in a 10 year old with Undiagnosed Kidney Disease

Online Defamation, Legal Concepts, And The Good Samaritan, Benjamin C. Zipursky

Valparaiso University Law Review

No abstract provided.

You As A Brand: A Legal History, Lyrissa Lidsky

Faculty Publications

Dr. Samantha Barbas’ book, Laws of Image: Privacy and Publicity in America, makes an original, important, and engaging contribution to the history of the privacy law in the United States. In the process, the book illuminates how we became a culture obsessed with image management and how the law developed and continues to evolve to protect our rights to become our own personal brands.

Response To Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Jennifer Wriggins

Faculty Publications

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose a …

Privacy As Quasi-Property, Lauren Henry Scholz

Scholarly Publications

Courts and commentators struggle to apply privacy law in a way that conforms to the intuitions of the average person. It is often assumed that the reason for this discrepancy is the absence of an agreed upon conceptual definition of privacy. In fact, the lack of a description of the interest invaded in a privacy matter is the more substantial hurdle. This Article provides such a description of the privacy interest.

Privacy is quasi-property. Quasi-property is a relational entitlement to exclude. Unlike real property, there is no freestanding right to exclude from a quasi-property interest absent reference to a relationship …

Is It Time To Adopt A No-Fault Scheme To Compensate Injured Patients?, Elaine Gibson

Articles, Book Chapters, & Popular Press

The tort system is roundly indicted for its inadequacies in providing compensation in response to injury. More egregious is its response to injuries incurred due to negligence in the provision of healthcare services specifically. Despite numerous calls for reform, tort-based compensation has persisted as the norm to date. However, recent developments regarding physician malpractice lead to consideration of the possibility of a move to “no-fault” compensation for healthcare-related injuries. In this paper, I explore these developments, examine programs in various foreign jurisdictions which have adopted no-fault compensation for medical injury, and discuss the wisdom and feasibility of adopting an administratively-based …

Driverless Cars And The Much Delayed Tort Law Revolution, Andrzej Rapaczynski

Faculty Scholarship

The most striking development in the American tort law of the last century was the quick rise and fall of strict manufacturers’ liability for the huge social losses associated with the use of industrial products. The most important factor in this process has been the inability of the courts and academic commentators to develop a workable theory of design defects, resulting in a wholesale return of negligence as the basis of products liability jurisprudence. This article explains the reasons for this failure and argues that the development of digital technology, and the advent of self-driving cars in particular, is likely …

"Should" Or "Must"?: Distinguishing Mandates From Guidelines In Tort Claims Contexts, A.G. Harmon

Scholarly Articles

This Article intends to bring some order to the discussion, both by

means of explaining what the science of the language arts—linguistics—says

about the matter, and by explaining how that science comports with what courts

think they are doing when they determine a government statement is, or is not,

a mandate. Linguists have considered language crimes before, relating to

perjury, bribery, and criminal threats, and I myself have conducted a linguistic

analysis with regard to the civil law Tarasoff context (i.e., “duties to warn”),

but a linguistic analysis of mandates as opposed to guidelines has not yet been

attempted.

Part …

Modernizing Informed Consent: Expanding The Boundaries Of Materiality, Nadia N. Sawicki

Faculty Publications & Other Works

Informed consent law’s emphasis on the disclosure of purely medical information – such as diagnosis, prognosis, and the risks and benefits of various treatment alternatives – does not accurately reflect modern understandings of how patients make medical decisions. Existing common law disclosure duties fail to capture a variety of non-medical factors relevant to patients, including information about the physician’s personal characteristics; the cost of treatment; the social implications of various health care interventions; and the legal consequences associated with diagnosis and treatment. Although there is a wealth of literature analyzing the merits of such disclosures in a few narrow contexts, …

Punish The Crown, But Protect The Government: A Comparative Analysis Of State Tort Liability For Exemplary Damages In England And Punitive Damages In The United States, Bradley Raboin

Cardozo Journal of International and Comparative Law

The article examines the contrasting approaches of the United States and England regarding punitive and exemplary damages in tort claims against the government. While the U.S. prohibits punitive damages against the government under the Federal Tort Claims Act (FTCA), England allows exemplary damages against the Crown in specific cases. The author argues that England's approach, which holds the government accountable through exemplary damages, is preferable and suggests that the U.S. should consider a similar, regulated approach to enhance government accountability.

Impact From Texas Tort Law On Damages Recovered, Richard Samuel Harris

CMC Senior Theses

This paper looks at Texas tort law reform to make claims regarding the relationship between Texas tort reform and damages recovered. Starting with reform in 1977, Texas has passed 15 pieces of legislation that, in principle, restrict the damages plaintiffs recover. Most empirical analyses have focused primarily on analyzing behavior resulting from the tort reform. In other cases, research has looked at the impact the most recent reform has had on damages recovered in medical malpractice lawsuits. This paper is the first to study the impact of Texas tort law reform on damages recovered while looking at the entirety of …

Litigating Intraoperative Neuromonitoring (Iom), Michael Brook, Kary Irle

University of Baltimore Law Review

Statistics regarding surgical medical malpractice are staggering. The annual cost of the medical malpractice liability system has been estimated to be $55.6 billion-2.4% of the total healthcare system.' The median award for plaintiffs in actions involving spinal cords is $2.9 million, and the median value for settlements is $1.45 million. A neurosurgeon will spend approximately eleven years of his or her career with outstanding malpractice claims.

Intraoperative neuromonitoring (IOM), also known as surgical neurophysiology, is hardly a novel medical technology. In fact, it has been used in the operating room for over half a century. IOM provides real-time monitoring of …

Tainted: Food, Identity, And The Search For Dignitary Redress, Melissa Mortazavi

Faculty Articles

No abstract provided.

Crowd Crush: How The Law Leaves American Crowds Unprotected, Tracy Hresko Pearl

Faculty Articles

Crowd-related injuries and deaths are startlingly common both in the United States and worldwide. They occur in a wide range of situations and at a vast array of venues: at music concerts, sporting events, and retail holiday sales, and in and around airports, subway platforms, and parking lots, among other locations. These “crowd crush” incidents, however, are extremely underreported and rarely litigated, masking the seriousness of this issue and making it difficult for the few victims who pursue legal recourse to recover damages. Given that there is virtually no statutory law in the United States pertaining to crowd management and …

Revenge Porn: Chivalry Prevails As Legislation Protects Damsels In Distress Over Freedom Of Speech, Sarah E. Driscoll

Roger Williams University Law Review

No abstract provided.

The Reciprocal Of Macpherson V. Buick Motor Company, Anita Bernstein

Faculty Scholarship

No abstract provided.

Far From The Madding Crowd: A Statutory Response To Crowd Crush, Tracy Hresko Pearl

Faculty Articles

Crowd-related injuries and deaths occur with surprising frequency in the United States. In recent years, crowd members in the United States have sustained significant injuries and even fatalities at concerts, sporting events, “doorbuster” sales, nightclubs, and large festivals. While some of these incidents have prompted victims to file negligence suits against event organizers and venue owners, common law has proven to be ineffective at addressing “crowd crush.” Indeed, courts have repeatedly held for defendants in these cases, making a series of scientific and legal errors in the process, and providing little incentive for organizers and owners to improve their crowd …

An Opt-In Option For Class Actions, Scott Dodson

Michigan Law Review

Federal class actions today follow an opt-out model: absent an affirmative request to opt out, a class member is in the class. Supporters defend the opt-out model as necessary to ensure the viability of class actions and the efficacy of substantive law. Critics argue the opt-out model is a poor proxy for class-member consent and promotes overbroad and ill-defined classes; these critics favor an opt-in model. This bimodal debate—opt out vs. opt in—has obscured an overlooked middle ground that relies on litigant choice: Why not give the class the option to pursue certification on either an opt-out or an opt-in …

Tax, Don't Ban: A Comparative Look At Harmful But Legitimate Islamic Family Practices Actionable Under Tort Law, Benjamin Shmueli

Vanderbilt Journal of Transnational Law

Massive migration of Muslims to the West in recent years has raised the question whether Shari'a--Islamic law--should apply to Muslim couples living in these countries. The issue is particularly acute when it comes to family life and the possibility of using tort law in cases of harmful religious practices that are permitted by Muslim law but are contrary to Western liberal values. Using tort law as a soft solution, that is, taxing that practice rather than banning it by criminal sanctions, may be a balanced and efficient solution, at least in some cases. The Article demonstrates this view--tax, don't ban--through …

Cache-22: The Fine Line Between Information And Defamation In Google's Autocomplete Function, Kacy Popyer

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Calibrating Participation: Reflections On Procedure Versus Procedural Justice, Elizabeth Chamblee Burch

Scholarly Works

When the same defendant harms many people in similar ways, a plaintiff’s ability to meaningfully participate in litigating her rights is curtailed dramatically. Now it is the rare plaintiff who sues a nationwide (or worldwide) corporation in her home jurisdiction and is able to litigate and resolve her claims there. Although several factors play a role in this phenomenon, including tort reform efforts like the Class Action Fairness Act, one of the most significant factors is Supreme Court jurisprudence over the last ten years in the areas of arbitration, personal jurisdiction, pleading, and class actions. Of course, recent cases aren’t …

Is It Time To Adopt A No-Fault Scheme To Compensate Injured Patients?, Elaine Gibson

Articles, Book Chapters, & Popular Press

The tort system is roundly indicted for its inadequacies in providing compensation in response to injury. More egregious is its response to injuries incurred due to negligence in the provision of healthcare services specifically. Despite numerous calls for reform, tort-based compensation has persisted as the norm to date. However, recent developments regarding physician malpractice lead to consideration of the possibility of a move to “no-fault” compensation for healthcare-related injuries. In this paper, I explore these developments, examine programs in various foreign jurisdictions which have adopted no-fault compensation for medical injury, and discuss the wisdom and feasibility of adopting an administratively-based …

Standing Up For Their Data: Recognizing The True Nature Of Injuries In Data Breach Claims To Afford Plaintiffs Article Iii Standing, Andrew Braunstein

Journal of Law and Policy

Over the last several years, data breaches have become increasingly more common, due in no small part to the failures of organizations charged with storing and protecting personal data. Consumers whose data has fallen victim to these breaches are more often turning to federal courts in attempts to be made whole from the loss of their information, whether simple credit card information or, as breaches become more sophisticated, social security information, medical and financial records, and more. These consumers are often being turned away from the courthouse, however, due to a failure of many federal courts to find that the …

Personal Injury Victims As Insurance Collection Agents: Erisa Preemption Of State Antisubrogation Laws, Jonathan P. Connery

Journal of Law and Policy

The Employee Retirement Income Security Act (ERISA) was enacted in 1974 to protect the pension rights of employees nationwide. However, due to its broad preemptive powers, ERISA has since developed into a tool used by health insurers to recover millions of dollars in tort damages meant to benefit employees with ERISA health plans. This practice, known as subrogation, has been met with legislative backlash in the form of state antisubrogation statutes, which attempt to limit the enforceability of subrogation clauses found in almost all ERISA health plans. However, many courts have held that ERISA preempts these antisubrogation statutes, thereby affirming …

Share And Share Dislike: The Rise Of Uber And Airbnb And How New York City Should Play Nice, Alexandra Jonas

Journal of Law and Policy

Uber and Airbnb are two companies in the emerging “sharing economy” that provide individuals with a means to become entrepreneurs and benefit from a laissez-faire business model. The problem, however, is that while the benefits to users are great, so too are the risks. The dangers of operating without restraint and circumventing existing law are not only potentially harmful to unapprised users, but also adversely affect the continued use of these businesses. Every aggrieved user complaint has the potential for a lawsuit and every violation creates an opportunity for penalties. Left over are attempts by the courts and city government …

Back To Basics: Public Adjudication Of Corporate Atrocities Torts, Maya Steinitz

Faculty Scholarship

The editors of this online symposium invited me to contribute to the subject of an argument I have recently advanced. This argument is that the world needs a permanent International Court of Civil Justice (ICCJ) to adjudicate cross-border mass torts. A common reaction to this proposal has been to suggest that the function of such an international court be assumed by one of the existing arbitration institutions or filled by a new one. I’d like to take this opportunity to argue against that idea.

Corporate atrocities, which are the symposium’s focus, may be crimes, but they also have a tort …

Briefing Book: Tort Litigation By The Numbers. Center For Justice And Democracy, Joanne Doroshow, Emily Gottlieb

Other Publications

The Center for Justice & Democracy at New York Law School released its new briefing book, TORT LITIGATION: BY THE NUMBERS. The book highlights the latest information and statistics on tort (personal injury) suits across the country, based largely on recent statistics from the National Center for State Courts (NCSC),[1] the U.S. Department of Justice and other research institutions. Principal authors of the briefing book are Emily Gottlieb, CJ&D’s Deputy Director for Law and Policy, and Joanne Doroshow, CJ&D Executive Director. Said Doroshow, “This briefing book shows that injured Americans hardly ever sue wrongdoers for their injuries, and when they …

Financing Issue Classes: Benefits And Barriers To Third-Party Funding, Elizabeth Chamblee Burch

Scholarly Works

This essay, written for NYU's symposium on Litigation Funding: The Basics and Beyond, explores the costs and benefits of using third-party financing to fund issue class actions.

Harmonizing European Tort Law And The Comparative Method A Review Of Basic Questions Of Tort Law From A Comparative Perspective (Helmut Koziol Ed., Sramek 2015), Michael Wells

Scholarly Works

This is a book review of Basic Questions of Tort Law from a Comparative Perspective, edited by Professor Helmut Koziol. This book is the second of two volumes on “basic questions of tort law.” In the first volume, Professor Helmut Koziol examined German, Austrian, and Swiss tort law. In this volume Professor Koziol has assembled essays by distinguished scholars from several European legal systems as well as the United States and Japan, each of whom follows the structure of Koziol’s earlier book and explains how those basic questions are handled in their own systems.

This review focuses on Professor Koziol’s …