Damned if you monitor, damned if you don’t: medical malpractice and intraoperative neuromonitoring for spinal surgery

OBJECTIVEThe aim of this study was to identify trends in medical malpractice litigation related to intraoperative neuromonitoring.METHODSThe Westlaw Edge legal research service was queried for malpractice litigation related to neuromonitoring in spine surgery. Cases were reviewed to determine if the plaintiff’s assertion of negligence was due to either failure to use neuromonitoring or negligent monitoring. Comparative statistics and a detailed qualitative analysis of the resulting cases were performed.RESULTSTwenty-six cases related to neuromonitoring were identified. Spinal fusion was the procedure in question in all cases, and defendants were nearly evenly divided between orthopedic surgeons and neurosurgeons. Defense verdicts were most common (54%), followed by settlements (27%) and plaintiff verdicts (19%). Settlements resulted in a mean $7,575,000 damage award, while plaintiff verdicts resulted in a mean $4,180,213 damage award. The basis for litigation was failure to monitor in 54% of the cases and negligent monitoring in 46%. There were no significant differences in case outcomes between the two allegations of negligence.CONCLUSIONSThe use and interpretation of intraoperative neuromonitoring findings can be the basis for a medical malpractice litigation. Spine surgeons can face malpractice risks by not monitoring when required by the standard of care and by interpreting or reacting to neuromonitoring findings inappropriately.

Claims and Outcomes in ITA

ITA is no longer a theoretical risk but a practical reality. Data offers a key debiasing tool to prevent cognitive illusions from skewing debates about the reality of realized risk. Chapter 5 uses direct, objective measures to assess outcomes that, in combination with costs, permits parties to undertake evidence-based cost-benefit assessment of an ITA’s net value. It initially explores ultimate outcomes by identifying whether tribunals awarded any damages or an equivalent remedy (i.e., an investor win), whether there was no damage award (i.e., a state win), or whether parties settled or otherwise discontinued the case. To nuance so as to understand outcomes on a phase-by-phase basis, it explores tribunals’ determinations for dispositive elements involving jurisdiction, merits, and damages. It then explores ultimate outcomes through two other alternative lenses, namely actual amounts awarded, which includes amounts from settlements, and investors’ relative success as compared to amounts claimed.

What's it Worth? Jury Damage Awards as Community Judgments

55 William & Mary Law Review 935 (2014)In a recent article, The Political Puzzle of the Civil Jury, Jason Solomon questions whether the civil jury operates effectively as a political institution. Civil juries are said to perform multiple political functions. They inject community perspectives and values into legal decision making. They act as a check on government and corporate power. They legitimize the civil justice system. Finally, they promote greater civic engagement among jurors. Solomon concludes, however, that these claims about the civil jury's multiple political functions are overstated and understudied. He calls for more theoretical and empirical study of the civil jury's performance of its political functions.This Article offers a response to Solomon's piece, providing evidence about the political dimensions of jury damage award decision making. I argue that the damage award is a key part of the civil jury's political activity. Indeed, in my view, it is just as significant as the political nature of the civil jury's liability judgment, which up to now has been a more frequent topic of scholarly inquiry. This Article focuses on one of the dimensions Solomon identifies: the injection of community perspectives and values into legal decision making. I contend that damage awards and community values are deeply intertwined. The dollars that juries award, from the compensatory amounts they grant to auto accident victims to the punitive damages they deliver against large corporations, are very much products of community views and sentiments. In my view, damage awards constitute powerful political actions by the civil jury. Civil jury damage awards serve to check or endorse private power, whether it is power over one's own neighbors or over business corporations. To support my argument, I draw on theoretical accounts of jury decision making about damages, including the story model, insights from cultural cognition research, and a new gist model that cognitive psychologist Valerie Reyna and I have developed to explain the process of jury damage award decision making. Jurors' values constitute an important component of these and other models. I also describe the empirical research that documents and establishes the pervasive influence and content of community values in jury damage award judgments.

When Nominal Is Reasonable: Damages for the Unpracticed Patent

56 Boston College Law Review 1031 (2015)To obtain a substantial patent damage award a patentee need not commercialize the patented invention; the patentee need only show that its patent was infringed. This surely incentivizes patenting but it dis-incentivizes innovation. Why commercialize yourself? The law allows you to wait for others to take the risks, and then you emerge later to lay claim to “in no event less than a reasonable” fraction of other people’s successes. It is rational to be a patent troll rather than an innovator. This troll-enabling interpretation of patent law’s reasonable royalty provision, however, is wrong as a matter of patent policy. Surprisingly, it is also wrong as a matter of patent history. The courts created the basis for reasonable royalties in the nineteenth century, thereby marking a significant change to patent damages. But this precedent was nowhere near as sweeping as today’s interpretation would suggest. Up to the mid-1800s, the existing routes to patent damages were strict, available only to patentees who had already commercialized their patented invention. Budding innovators who were starting to commercialize but who could not yet prove an established royalty or lost profits were left out. Courts developed reasonable royalties for them. Those cases never extended reasonable royalties to those who simply sat on their patents waiting to extract payment from others. Starting in the 1970s, however, reasonable royalties came unmoored from that historical foundation. Infringement alone, without any evidence of commercialization, now creates a presumption of compensable harm. Today’s view of reasonable royalties is unsupported by patent history and sits in tension—if not outright conflict—with binding Supreme Court cases. Properly understood, some efforts to commercialize or some evidence of copying are still necessary for significant reasonable royalties. As a result, nominal damages are still reasonable to compensate for infringement of an unpracticed patent when asserted against independent inventors.

Demographics In Civil Trials: Biases And Implications

This paper investigates the implications of the demographics of jury members and its influence on their findings. A written civil case where the defendant was at fault but the damage and injury claims were equally believable on both sides was presented to a random group of potential jurors. A survey instrument collected selected demographic information from participants and asked how they would rule as to injury and damage awards were they jurors in the case. The sample was then analyzed as to the difference in their finding of fault and award recommendation based on the jurors’ selected demographic characteristics. Findings indicate that a juror’s recommendation regarding medical expense award and business damage award is not independent of gender and race.