Boston Personal Injury Lawyer Blog

Don't Drive With A Divorced Doctor In A Pick-Up Truck On Super Bowl Sunday: Some Surprising Car Accident Statistics

Sun, 05 Sep 2010 11:09:21 -0500

My interest kindled by his blog, I've been reading Tom Vanderbilt's book "Traffic: Why We Drive The Way We Do (And What It Says About Us." It's a fascinating quasi-anthropological study of the role of the automobile in our everyday lives. The book touches on a number of subjects, from road rage to city planning. But of greatest interest to most personal injury lawyers is his analysis of some of the surprising risk factors that play into many car accidents. Passengers would be wise to heed Vanderbilt's advice: "Don't drive in a pick-up truck with a beer-drinking divorced doctor on Super Bowl Sunday."

Why shun doctors? They seem like a responsible lot; why are they at a greater risk of being involved in a car accident? The researchers don't know for sure. Some possible theories include: 75 percent of doctors are male (and males are more likely to be involved in car accidents than women); doctors spend a lot of time driving in urban areas, dispensing advice via cell phone; and, last but not least, doctors may be more fatigued than the average driver (a New England Journal of Medicine study showed that interns working an extended shift are ten percent more likely to be involved in a car accident on their way home).

The Super Bowl Sunday risk factor is a famous result that was actually discovered by a doctor - Stanford researcher Donald A. Redelmeier - who was profiled in The New York Times last week for his quirky but illuminating public health research. Dr. Redelmeier's findings that car accident fatalities spike by forty-one percent on Super Bowl Sunday prompted the National Highway Traffic Safety Administration to launch a program aimed at getting fans to stay off the road. Before the game on Super Bowl Sunday, the roads are as safe as any other time. During the game, there are actually fewer car accidents than normal because so many people are off the road, watching the game. But after the game (twenty times more beer is consumed on Super Bowl Sunday than a typical Sunday), the number of car accidents goes through the roof. Fans of the losing team - who perhaps were drowning their sorrows in alcohol (or who perhaps left the party right after the game, rather than staying to celebrate and thereby sobering up) - are much more likely to be involved in a Super Bowl Sunday car accident than fans of the winning team.

Divorce or a recent separation is linked with a fourfold increase in car crashes. The reasons for this are murky. But the research is consistent with other research showing that the never-married are much more likely to be in a car accident than the married-with-children. Having children makes you more likely to buckle up and more likely to drive cautiously (especially while the children are in the car).

Pickup trucks are another surprising car accident risk factor. More pickup truck drivers die per 100 million registered vehicles than any other style of car. Given pickup trucks' size, you'd think that pickup truck drivers would be among the least likely to die in a car accident. But research has shown that a car's size is of almost no importance when the car or truck collides with a fixed barrier like a tree or a bridge support. Some of the risk of pickup trucks may be connected to the fact that far more men than women drive pickups and men are much more likely to be involved in a car accident. Men also are much less likely to wear a seatbelt. Beyond those possible contributing factors, statisticians have a hard time sussing out why pickups are so dangerous.

So, whatever the reasons, don't drive with a divorced doctor in a pick-up truck on Super Bowl Sunday.

Students Who Take Driver's Ed More Likely To Be Involved In A Car Accident Than Those Who Do Not Take Classes?

Wed, 01 Sep 2010 21:44:13 -0500

Lawmakers in Indiana are puzzled by a new study showing that students who take driver's ed classes are four times more likely to be involved in a car accident than those who don't take the classes and instead merely take the license exam.

The study has led some lawmakers to propose that driver's ed classes be overhauled. The curriculum has not been changed in 30 years.

The study seems counterintuitive but it's easy to think of a few reasons why it might be true:

1.) The students who can afford to pay for driver's ed classes are wealthier on average than the students who don't take the classes and therefore are likelier to own their own car, leading them to rack up more mileage and causing them to be involved in more car accidents. The students who don't take driver's ed are poorer on average and therefore have less access to cars, causing them to be involved in fewer car accidents.

2.) The students who can't afford to take driver's ed worry that they are lesser-prepared than their driver's ed counterparts and overcompensate by logging more hours practicing with family members or other (free) driving instructors. (This could easily be the case in a state like Massachusetts where driver's ed only requires twelve hours of behind-the-wheel time. In Massachusetts, however, driver's ed classes are mandatory for all drivers under eighteen.).

3.) Driver's ed programs self-select for bad drivers: the students who enroll in driver's ed are students who realize they need it. Driver's ed coaches them up but doesn't bring them to the same level as peers with better driving abilities (the least plausible explanation).

Putting All Of Your Eggs In The Same Basket: The Story Of The Salmonella Egg Recall

Fri, 27 Aug 2010 14:52:20 -0500

Unless you've been living under a rock, you couldn't have missed the past week's nationwide recall of a half-billion eggs feared to be contaminated with salmonella bacteria. How could half a billion eggs - more eggs than there are people in the United States - become unsalable?

Part of the story is that we've been putting all of our eggs in the same basket. All of the recalled eggs originate with two producers in Iowa - Wright County Egg and Hillendale Farm. Iowa has come to dominate egg production nationally because the cost of feed grain is so cheap in Iowa, because of Iowa's abundant corn fields. Although the cost of feed grain in Iowa is probably only marginally cheaper than elsewhere in the country, the huge scale of modern agribusiness means that egg production will be located in a few centralized locations in Iowa.

In short, we put all of our eggs in a few Iowa-based egg baskets. This means when there is a problem in the supply chain, it will have massive implications. These Iowa plants with their Concentrated Animal Feeding Operations (CAFOs) are the ideal breeding grounds for the spread of any disease or contaminants: you have massive, very dense populations whose members, once infected, travel across all fifty states.

Also, with that many egg-laying chickens in such close proximity, prophylactic antibiotics are the order of the day to prevent epidemics that would kill off the chickens laying the golden eggs. But regimens of prophylactic antibiotics of course have side effects: they build up resistance and cause new strains of bacteria to evolve.

What's the solution? Critics of a pending food safety bill (previously blogged about here), including Walter Olson of the Cato Institute, insist that more regulation is not the answer - that the cost of complying with new regulations will crowd out small-scale producers, such as organic and free range egg producers. You can read Olson's critique here, in part of a New York Times symposium on the salmonella egg recall.

Of course, as many have rightfully pointed out, the blame for the salmonella outbreak lies not only with the degree of regulatory oversight but with the framework of the oversight. Two different government agencies are responsible for the safety of two intricately connected foodstuffs: the chicken and the egg. The Food and Drug Administration is responsible for egg safety while the Department of Agriculture regulates chickens. (The same bizarre regulatory framework applies to cows and their milk). Having one government agency that oversees both chickens and their eggs might be more efficient. Of course that's almost too much to hope for.

Critics of new regulation, like Olson, also maintain that big time egg producers like Wright Egg and Hillendale farm already have market incentives to get uncontaminated food to market. Having to destroy half a billion eggs is going to cost them and their shareholders dearly. Yet such a claim would seem to be belied by the checkered safety records of both Wright County Egg and Hillandale Farms. In 2000, the owner of Wright County Egg was cited as a "habitual violater" of Iowa environmental law. A few years before that, the egg supplier paid $2 million dollars in fines for safety violations at a Maine farm. Economies of scale can apply not only to production, but also to avoiding regulation. A small time farmer skips a safety precaution and profits a little by it, but when a large agribusiness cuts the same corner it reaps much larger savings.

Massive Iowa egg producers are probably here to stay. Americans, and people around the world, demand low-cost food. So what should we be doing? Well, the FDA's new egg safety regulations that went into effect in July will help prevent another salmonella egg recall of this scale. Additionally, a salmonella vaccine that is given to hens in Britain and New Zealand has proved effective there.

But, more than likely, we're going to see more outbreaks on even bigger scales as agribusinesses try to squeeze more productivity out of every square foot of their operations.

Link Roundup: From Across The Blawgosphere

Fri, 27 Aug 2010 12:52:38 -0500

I want to go on vacation with Eric Turkewitz. He definitely goes on way cooler vacations. [New York Personal Injury Law Blog].

Over at Torts, law professor Alberto Bernabe covers an ethically troubling phenomenon: the outsourcing of pediatric clinical trials. More and more pediatric clinical trials are being conducted outside the United States. Nearly forty percent of pediatric clinical trials are now being carried out in developing countries. Given a recent Second Circuit decision, the outsourcing of clinical trials might not reduce the pharmaceutical companies' legal exposure, but patients in the developing world are certainly more likely to have a tougher time getting a lawyer with the skills to successfully sue for them. Also problematic, as Bernabe points out, is the distribution of benefits from these clinical trials. Local populations are the test subjects in these clinical trials but once these expensive pharmaceutical make their way to market will they be available in poor corners of the world? [Torts].

Over at the Volokh Conspiracy, Professor Volokh raises a question that has long puzzled me: Why does the Supreme Court often use a series of asterisks as an ellipsis? [Volokh Conspiracy]

One-Third Of Doctors Would Not Report Incompetent Or Impaired Colleagues

Sat, 21 Aug 2010 16:35:43 -0500

There are some signs that the medical profession's code of silence is retreating, but a recent Journal of the American Medical Association survey of 2,000 doctors reveals that only 64 percent of doctors agreed that they had an ethical obligation to report colleagues who were "significantly impaired or otherwise incompetent to practice."

Seventeen percent of doctors replied that they knew of a doctor so incompetent or impaired that the doctor should not be practicing.

Should Doctors Admit More Of Their Mistakes?

Fri, 20 Aug 2010 16:05:09 -0500

A new study published in the Annals of Internal Medicine suggests that when hospitals and doctors admit their mistakes and offer immediate upfront compensation to their patients, they succeed in driving down their medical malpractice liability costs.

The University of Michigan Health System (UMHS) program studied by the researchers is truly remarkable. If UMHS discovers its doctors have committed malpractice, it discloses that fact to the patient, even if the patient is unaware that he has been injured by malpractice.

Why this program works and, if indeed it has been efficacious, is anyone's guess. Ted Frank gives it his tentative endorsement but cautions that the numbers could be skewed by the absence of one or two large medical malpractice cases. Katherine Hobson notes that the implementation of the program coincides with an overall decline in the number of medical malpractice claims in Michigan and a decrease in the size of those claims.

I can see a few reasons why this program might work. For one thing, delaying compensation in cases of obvious malpractice does nothing but foster animosity toward the hospital and doctors. Injured people's resolve starts to harden when they can't pay their bills because they're out of work and months have gone by without them seeing any money. Secondly, if you get people to sign a full release of their claims before the day-to-day reality of living with their injury has really sunk in, they might be willing to accept a smaller amount of money. Lastly, if patients are entering into these agreements without the benefit of legal counsel or discovery that uncovers all the facts, they might be selling themselves short.

Of course none of these rationales for the program's success can explain the most remarkable part of the study: that the number of medical errors apparently declined. Maybe knowing that their mistakes will be discovered by the patient, regardless of whether the patient perceives the mistake, makes doctors act more carefully?

Car Accidents: Changing Times, Changing Causes

Tue, 17 Aug 2010 16:54:31 -0500

Today the BBC commemorated the 114th anniversary of Great Britain's first fatal car crash with a feature story on the accident that claimed the life of Bridget Driscoll.

The story, retold through the conflicting testimony offered at the inquest into Driscoll's death, is fascinating. Apparently, the car, driven by Arthur Edsall, had a top speed of four miles an hour, due to a governor that limited the car's top speed.

How did Bridget Driscoll fail to get out of the way of a car traveling at the snail's pace of four miles an hour? According to one witness at the inquest, Driscoll, "bewildered" by the strange sight of an automobile, froze in place in the roadway. Other testimony seemed to suggest that Edsall, who had only a few weeks' experience behind the wheel, did not how to steer and may have inadvertently steered into Driscoll.

Of course, new technologies continue to cause accidents. This week brought news that Dr. Frank Ryan, a famed Hollywood plastic surgeon, drove off a cliff in Malibu while trying to upload a picture of his dog to Twitter. Nowadays it seems we're not so bewildered by the operation of a car; we're more likely to get in trouble by thinking we can multitask while doing it.

Sudden Uncontrolled Acceleration And Stock Trading Algorithms

Fri, 13 Aug 2010 14:27:38 -0500

In January, on the heels of the terrifying tale of a state trooper and his family killed in a crash caused by their out-of-control Lexus, more reports of sudden uncontrolled acceleration problems with Toyotas began pouring in. Of course, skeptics were quick to point out that reports of uncontrolled acceleration problems with Toyotas resembled past claims of acceleration problems with various makes and models that had come to naught, especially the Audi acceleration flap of the early 1980s.

Since no one could point to any mechanism in Toyota's (computerized) accelerators that would cause uncontrolled acceleration, these skeptics insisted that the problem must be driver error. At the time, I cautioned that we should keep an open mind - that the block box computer programs that regulate Toyotas' acceleration and braking could conceivably have a bug, the same sort of bug that caused the Great Northeast blackout of 2003.

This week, the acceleration skeptics got welcome news as the National Highway Traffic Safety Administration announced its preliminary findings: in all of the Toyota acceleration cases investigated thus far, driver error has been found to be the cause of the braking failures. Yes, pedal misapplication - hitting the accelerator instead of the brake - is the leading culprit at this point in time.

Meanwhile this week came another story, a story about malfunctioning black boxes. Wall Street traders and government regulators are still probing the May 6 "flash crash" in which the Dow Jones inexplicably plunged nearly 1,000 points within a couple hours. Of course the bulk of stock trading is done by computers running proprietary algorithms that Wall Street banks have invested many more billions in than Toyota has spent engineering the computer systems in its late model cars. Investigators probing these trades are finding the black box computer algorithms used by traders produced bizarre "crop circle" graphs over the course of the flash crash.

It seems one might draw some parallels between the 2010 "flash crash" and an older stock market mystery that occurred around the same time as the 1980s Audi debacle: the Black Monday 1987 stock market crash that some chalk up to computer trading.

My position on the Toyota uncontrolled acceleration phenomenon has always been the same: when people complain that their cars (increasingly controlled by complex computer systems) are going haywire, we should take them seriously and investigate thoroughly because even the best-engineered systems can behave unpredictably. If investigation reveals that root of the problem is not a defectively designed product, but rather human-fueled hysteria, then so much the better for society.

I just wish the same people who are so quick to point to human error in the driver's seat would be as quick to recognize human error in some of Wall Street's follies.

New Study Puts Costs Of Injuries From Medical Errors At $19.5 Billion Annually

Mon, 09 Aug 2010 17:53:43 -0500

The Wall Street Journal's Health blog reports today on a new study, carried out by the nonpartisan Society of Actuaries, that estimates the medical costs of medical errors at $19.5 billion annually in the United States.

This blog has long noted how common medical errors are. More than half of pediatricians admit to making at least one treatment error a month. In an intensive care unit, individual doctors and nurses perform, on average, 178 actions per day and commit, on average, two errors. According to the Archives of Internal Medicine, only twenty percent of the time are the correct protocols followed flawlessly in administering patients' medicines. IV line infections - easily preventable if the proper protocols are followed - affect 80,000 patients annually in the US and kill approximately 5,000.

Of course not every medical error is an instance of medical malpractice. In order to constitute medical malpractice, the breach of the standard of care must cause an injury. If a medical error is caught before it results in injury, it does not rise to the level medical malpractice.

Of course, catching and fixing these medical errors does have costs for our health case system. The new study from the Society of Actuaries pins the direct medical costs of those medical errors at approximately $19.5 billion annually. These are simply the treatment costs of undoing medical errors.

Meanwhile, insurance companies pay out $4 billion a year in medical malpractice claims.

Tort reformers complain that medical malpractice lawsuits drive up the cost of our healthcare by forcing doctors to practice "defensive medicine" - ordering unnecessary tests and procedures simply to protect themselves from liability.

But the costs of defensive medicine ignore an important offset: how much does defensive medicine save us by catching diseases that would otherwise go undetected and untreated? And how much does the threat of medical malpractice litigation save us by causing doctors to remain vigilant in their treatment?

Lastly, would that $19.5 billion dollar a year figure in medical error costs be much higher without medical malpractice lawyers?

Mounting Evidence About The Defective Design Of CT Scanners

Sun, 08 Aug 2010 12:23:56 -0500

It's a problem we've blogged about many times before - patients receiving mega-doses of radiation from CT scans and other medical imaging.

There are several dimensions to this problem. One, these potentially lethal machines are being operated by under-trained and under-educated technicians who don't understand all of their dangers. Two (and perhaps most importantly), the manufacturers of these machines, including General Electric and other companies, have defectively designed them, failing to implement any kind of failsafe mechanisms that would prevent technicians from administering radiation doses that would kill an elephant.

Thankfully, The New York Times' Walt Bogdanich has not let up on this story and last weekend, published another follow-up piece. The piece details just how badly designed some of these CT machines are. As one victim of radiation overdose told Bogdanich, when a truck backs up, "it goes 'beep, beep, beep.' If you fill up the washing machine too much, it won't work. [But on a CT scan] there is no red light that says your irradiating too much."

Let's hope these defective machines get re-designed and soon.

Legal News Round-Up

Sun, 08 Aug 2010 11:53:27 -0500

At Concurring Opinions, Dave Hoffman discussed a working paper co-authored with Christina Boyd entitled, "Litigating toward Settlement," that examines the factors that make a case more likely to reach a settlement. Among the conclusions reached: the more motions filed, the more likely settlement becomes (this is sort of counterintuitive because you might think the opposite is true - the more hard-fought a case, the more likely it is to be resolved by jury verdict); a plaintiff's success on a motion speeds settlement more than a defendant's victory; and cases presided over by women judges are nearly twenty-five percent more likely to settle than cases with male judges.

An article published in the journal Health Affairs argues that foreign-educated doctors (now nearly a quarter of US doctors) perform equally well as their US-trained counterparts. The New York Times has the story. The article suggests that while, in the past, foreign-born doctors lagged behind their US-trained counterparts, by the 1990s, they began besting US-born doctors on many standardized tests in internal medicine.
Now I am aware of research suggesting that doctors from elite medical schools perform better than their peers who attend inferior schools. But this new research about the quality of foreign-educated doctors shouldn't surprise any regular readers of this blog. Competent doctors don't need to be hyper-educated savants whose heads are crammed with medical knowledge; they simply need to be modest and conscientious followers of medical protocols to avoid committing most medical errors.

I'm convinced that the number one thing we could do to lower the cost of health care in the United States is to increase the number of doctors by "lowering" academic standards (e.g., making it easier for foreign-educated doctors to practice medicine) and instituting more rigorous medical error protocols.

Insurance That Pays For Your Traffic Tickets?

Sat, 07 Aug 2010 11:32:51 -0500

In one of his "Markets in Everything" blog posts, Tyler Cowen introduces us to the (perhaps apocryphal) "Ticket Free" insurance - an insurance policy that drivers can obtain in addition to their primary liability policy that will pay for any tickets they get and the insurance surcharges associated with these tickets.

Ticket Free offers three different policies. The "Mini" exclusively pays for speeding tickets.The "Classic" covers other moving violations, such as illegal u-turns and running red lights and the "Enthusiast" covers everything from excessive window tint to having an excessively loud car stereo.

Although the fact that Ticket Free's website no longer seems to be operational and it apparently never was registered with the California insurance commissioner suggests that it was pretty fly-by-night, this sort of insurance policy apparently is available in some Scandanavian countries, if blogging commenters are to be believed.

Needless to say, this sort of "ticket insurance" would be a bad idea for American roadways. As the comments to this blog post by law professor David Bernstein (himself recently ticketed) suggest, there are myriad ways that reckless drivers can get out of tickets - even citations issued on the basis of that gold standard of speed detection "lidar."

The underenforcement of our traffic safety laws causes more numerous and more serious car accidents to occur. Let's hope that just forcing traffic scofflaws to take time out of their day to show up to traffic court has some deterrent effect on them.

Massachusetts Supreme Judicial Court Hands Down Disappointing Liquor Liability Case

Sun, 01 Aug 2010 11:32:48 -0500

On July 12, the Supreme Judicial Court handed down a disappointing decision in the much-anticipated case of Lev v. Beverly Enterprises-Massachusetts, Inc., declining to hold an employer liable after its employee became intoxicated at an after-work meeting held at a restaurant and struck a pedestrian on his way home.

In a separate criminal case, the employee was found guilty of operating under the influence.

The facts of the case are simple and many of the minor details played an important part in the opinion's rationale. On March 14, 2004, a nursing home dietician and his supervisor met at a Chinese restaurant after work to discuss patients' menus. Over the course of the meeting, the employee had at least two and a half drinks, that he paid for himself. Upon leaving the meeting, the intoxicated employee struck a pedestrian near an on-ramp to Rt. 128 in Newton.

The pedestrian sued the intoxicated driver's employer (who would be much more likely to be able to pay any judgment than the employee).

The Supreme Judicial Court declined to hold the nursing home liable for two distinct reasons. First, the Supreme Judicial Court said that the doctrine of respondeat superior did not operate to hold the employer liable because, at the time of the accident, the employee was traveling home and employers, in accordance with so-called "going and coming" rule, are not liable for the negligent acts of their employees in traveling to and from work. Second, the Supreme Judicial Court said that the case did not call for an extension or modification that employers are liable for their employees' intoxication only when the employer controls the supply of the alcohol (as opposed to having mere control over the employee who decides to consume it).

From a public policy standpoint, both of these rationales are lacking. The idea that liability should attach to an employer only when the employer actually supplies the alcohol is misguided. From a public policy standpoint, legal duties should be assigned to the party who can fulfill the duty at the lowest cost/with the greatest ease. In light of this principle, who should we assign the duty to - the restaurant or the employer?

It seems obvious that in this case, the employer (acting through the supervisor) was in the best position to determine whether the employee had become intoxicated and to act to prevent him from driving. This was a one-on-one meeting with the supervisor sitting opposite the employee the whole time.

The supervisor (employer) had the best opportunity to observe the employee and to determine whether he should have anymore to drink. The waiter/waitress, on the other hand, was probably attending to a dozen different tables and interacted with the employee for only a couple of minutes.

Some basic economic theory illustrates that the supervisor's perspective on things was superior to the restaurants. Why do waiters and waitresses earn tips as opposed to earning a regular hourly salary? One explanation is that it's simply historical custom. But another explanation, an economic explanation, draws upon the agency problems inherent in a restaurant manager's supervision of his or her staff. It's extremely difficult for a manager to distinguish among his or her best wait staff and to determine who's doing the best job and to reward the best performers with higher wages. The tipping system avoids this problem by putting decisions about pay into the hands of the people with the most detailed information about wait staff performance - the restaurant's customers.

In this situation, the employee's supervisor had superior information about the employee's level of intoxication and a much better opportunity to monitor the employee than the restaurant's management or wait staff. Accordingly, responsibility for the employee's intoxication should be allocated to the nursing home rather than the restaurant.

In some situations, such as a large Christmas party, it might make sense to assign legal liability to the party controlling the alcohol supply, rather than the company's supervisor. In cases like companywide outings and picnics, the sober caterers and bartenders are likely in a far better position to monitor employees than the company's management and, indeed, the monitoring of the employees is something that the company is paying for. The Supreme Judicial Court's unwillingness to distinguish a one-on-one or small group meeting from a company Christmas party was disappointing.

The Court's rather mechanical application of the "going-and-coming" rule was also disappointing. It simply begged the question of where the negligent conduct occurred - was it at the meeting at the restaurant or on the way home when the employee was driving erratically?

We can't afford to hold liquor liability cases to a different standard than other negligence cases. There are just too many tragedies that could be prevented by stricter legal rules.

Massachusetts Supreme Judicial Court Abolishes Archaic "Natural Accumulation" Rule In Premises Liability Cases

Sun, 01 Aug 2010 10:43:06 -0500

In what is being hailed as one of the most important Massachusetts premises liability cases in decades, the Supreme Judicial Court last week in Papadopoulos v. Target Corporation abolished the so-called "natural accumulation" rule that had long governed Massachusetts slip-and-fall cases involving snow and ice.

The so-called "natural accumulation" rule held that Massachusetts property owners were not liable for injuries resulting from the natural accumulation of snow and ice on their properties. So, for example, if a snowstorm dropped a foot of ice and snow on a Massachusetts property, the property owner could not be held liable if a visitor slipped and fell on that virgin snowfall because it was "natural accumulation."

Of course what was natural accumulation and what was some artificial alteration of the natural accumulation was never really clear. As the Supreme Judicial Court noted in last week's decision, the distinction between natural and unnatural accumulation, "has proved difficult to apply because virgin snow that falls on a heavily trafficked walkway, driveway, or parking area is soon changed by the tramping of feet, the rolling of tires and the passage of time." The natural accumulation rule had even resulted in the absurdity that property owners who shovel away a top layer of snow, revealing a bottom layer of ice, were not liable to individuals who slipped on the ice because the bottom layer of ice was considered "natural accumulation." Barrasso v. Hillview West Condominium Trust, 74 Mass. App. Ct. 135 (2009).

The natural accumulation rule was such an outlier that, in other jurisdictions, it was referred to as the "Massachusetts rule." All of the other courts in snowy New England had rejected it and imposed a duty of reasonable care on property owners.

In Papadopoulos, the Supreme Judicial Court finally joined those other jurisdictions, holding that a property owner will now owe the same duty of reasonable care regarding dangers arising from snow and ice on his property that he owes with regard to all other hazards to lawful visitors on his property. What exactly is that duty of reasonable care, what are its flesh and sinews? In last week's opinion, the Supreme Judicial Court stated: "The snow removal reasonably expected of a property owner will depend on the amount of foot traffic to be anticipated on the property, the magnitude of the risk reasonably feared, and the burden and expense of snow and ice removal. Therefore, while an owner of a single-family home, an apartment house owner, a store owner and a nursing home operator each owe lawful visitors to their property a duty of reasonable care, what constitutes reasonable snow removal may vary among them."

The new reasonable care standard is a far superior rule to the old "natural accumulation" rule. The natural accumulation rule was unclear and therefore difficult and expensive to apply. Furthermore, property owners did not rely on it. Because the distinction between what was "natural" accumulation and what was "unnatural" was so illusory, the legal standard made no difference to the way that businesses actually plowed their property. And regardless of the legal standard, any business owner who wanted to attract patrons would have to plow and shovel his property.

Next winter, we'll get our first opportunity to see how this new legal rule will develop in Massachusetts.

Does Who Pays For Your Surgery Determine If You Survive?

Sat, 31 Jul 2010 16:38:44 -0500

Over the past week or so, National Review's Avik Roy has kicked off a bit of a blogospheric firestorm with his posts on a journal article published in the latest edition of the Annals of Surgery entitled "Primary Payer Status Affects Mortality for Major Surgical Operations." The article analyzes the surgical outcomes of 839, 658 patients who had surgeries between 2003 and 2007, in terms of what type of health insurance, if any, the patients had. The study's authors conclude that patients with Medicaid or who were uninsured fared more poorly in their outcomes than patients with private insurance.

Some blog posts have erroneously suggested that the article concludes that patients with Medicaid actually had worse outcomes than the uninsured, but that is not the case. Medicaid patients fared worse than the uninsured in one limited category - in-hospital mortality (deaths occurring during the hospital stay). Overall, patients with private insurance had a the lowest mortality rate. Their mortality rates were nearly half of those with Medicaid and the uninsured. (The overall mortality rates of the uninsured were 0.5% higher than those with Medicaid).

There are many reasons that we would expect Medicaid patients or the uninsured to fare worse than patients with private insurance. Patients on Medicaid or without any insurance are likely to be poorer than patients with private insurance and being poor means you're more likely to suffer from a wide range of health problems from hypertension to diabetes. So the poorer health of Medicaid patients and the uninsured prior to their surgeries is one explanation that we have to take account of.

But so too are differences in the surgical talent performing the surgeries and the rates at which doctors are compensated in performing private insurance, Medicaid and uninsured surgeries. Medicare reimburses doctors at only a fraction of the rate of private insurance and Medicaid reimburses doctors only three-quarters of Medicare's already discounted rates. Because of these low rates of reimbursement, a growing number of the most sought-after doctors are turning away patients with Medicaid.