The Twenty-Sixth Amendment and the Real Rigging of Georgia’s Election

VIKRAM DAVID AMAR

Illinois law dean Vikram David Amar explains why Georgia’s law allowing persons 75 years and older to get absentee ballots for all elections in an election cycle with a single request, while requiring younger voters to request absentee ballots separately for each election, is a clear violation of the Twenty-Sixth Amendment. Dean Amar acknowledges that timing may prevent this age discrimination from being redressed in 2020, but he calls upon legislatures and courts to understand the meaning of this amendment and prevent such invidious disparate treatment of voters in future years.

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COVID Comes to Federal Death Row—It Is Time to Stop the Madness

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—explains the enhanced risk of COVID-19 infection in the federal death row in Terre Haute, not only among inmates but among those necessary to carry out executions. Professor Sarat calls upon the Trump administration and other officials to focus on saving, rather than taking, lives inside and outside prison.

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Laureano-Quinones v. Nadal-Carrion

Court: US Court of Appeals for the First Circuit

Docket: 19-1139

Opinion Date: December 18, 2020

Judge: David J. Barron

Areas of Law: Medical Malpractice

The First Circuit affirmed the district court's grant of summary judgment to Defendant Dr. Richard Nadal Carrion on Plaintiff's claims for negligently failing to obtain Plaintiff's informed consent before performing an abdominoplasty surgery and negligently abandoning her thereafter, holding that Plaintiff's challenges failed. Plaintiff filed her complaint in the District of Puerto Rico following her abdominoplasty, alleging that Nadal failed to disclose and discuss the risks of the surgery and that Nadal conditioned a necessary corrective procedure on her signing a consent form that she considered unacceptable. The magistrate judge granted Nadal's motion for summary judgment on the ground that Plaintiff had failed to provide expert testimony to support her claims. The judge then denied Plaintiff's motion for reconsideration. The First Circuit affirmed, holding that the district court did not err in granting summary judgment to Nadal and denying Plaintiff's motion for reconsideration.

Hubbard v. Bayer Healthcare Pharmaceuticals Inc.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-13087

Opinion Date: December 22, 2020

Judge: Marcus

Areas of Law: Drugs & Biotech, Health Law, Medical Malpractice, Personal Injury, Products Liability

In 2012, 41-year-old Karen Hubbard suffered a catastrophic stroke caused by a blood clot to her brain--a venous sinus thrombosis, a type of venous thromboembolism (VTE). She had been taking Beyaz, a birth control pill manufactured by Bayer. While she first received a prescription for Beyaz on December 27, 2011, Karen had been taking similar Bayer birth control products since 2001. The pills are associated with an increased risk of blood clots. The Beyaz warning label in place at the time of Karen’s Beyaz prescription warned of a risk of VTEs and summarized studies. The Eleventh Circuit affirmed summary judgment in favor of Bayer. Georgia’s learned intermediary doctrine controls this diversity jurisdiction case. That doctrine imposes on prescription drug manufacturers a duty to adequately warn physicians, rather than patients, of the risks their products pose. A plaintiff claiming a manufacturer’s warning was inadequate bears the burden of establishing that an improved warning would have caused her doctor not to prescribe her the drug in question. The Hubbards have not met this burden. The prescribing physician testified unambiguously that even with the benefit of the most up-to-date risk information about Beyaz, he considers his decision to prescribe Beyaz to Karen to be sound and appropriate.

Hollingsworth v. Thompson

Court: Idaho Supreme Court - Civil

Docket: 47488

Opinion Date: December 23, 2020

Judge: Moeller

Areas of Law: Civil Procedure, Medical Malpractice

Rockne Lee Hollingsworth brought a medical malpractice claim against a local hospital and doctor in Gem County, Idaho district court. The district court found Hollingsworth lacked due diligence in failing to determine the hospital was a political subdivision, subject to the notice requirements of the Idaho Tort Claims Act (“ITCA”), and granted summary judgment for Respondents. Hollingsworth appealed, arguing the corporate filings made by the county-owned hospital created the false impression the hospital was a private corporation. Respondents contended the hospital and corporate entity, both owned by Gem County, were both subject to the ITCA because they were actually one and the same. To this, the Idaho Supreme Court concurred and reversed the district court's ruling.

Beck v. Honorable Ernesto Scorsone

Court: Kentucky Supreme Court

Docket: 2019-SC-0726-MR

Opinion Date: December 17, 2020

Judge: John D. Minton, Jr.

Areas of Law: Civil Procedure, Medical Malpractice

In this medical negligence lawsuit, the Supreme Court reversed the decision of the court of appeals denying Defendants' application for a writ of prohibition seeking to prevent the trial court from enforcing a protective order that forbade them from certain ex parte communications, holding that the trial court abused its discretion. Plaintiff brought this action against the University of Kentucky Medical Center and thirteen healthcare professionals allegedly employed by the Medical Center. Here, Defendants sought to prevent the trial court from enforcing a protective order forbidding them from ex parte communication with Plaintiff's unnamed treating physicians or other healthcare providers employed by the Medical Center. The Supreme Court remanded the case to the court of appeals with direction to issue a writ consistent with this decision, holding that the trial court abused its discretion because the basis of the order was purportedly the personal conviction of the trial court that departed from precedent without appropriate justification.

Merritt v. Catholic Health Initiatives, Inc.

Court: Kentucky Supreme Court

Docket: 2018-SC-0155-DG

Opinion Date: December 17, 2020

Judge: Hughes

Areas of Law: Insurance Law, Medical Malpractice

The Supreme Court affirmed the judgment of the court of appeals affirming the trial court's grant of summary judgment for the defendants in this insurance dispute, holding that the Legislature has clearly and unequivocally excluded captive insurers from the requirements of the Kentucky Unfair Claims Settlement Practices Act (USCPA), Ky. Rev. Stat. 304.12-230. Plaintiff brought this action against various healthcare defendants. The medical negligence claims were eventually settled. Thereafter, the circuit court denied Plaintiff's motion for declaratory relief as to his bad faith insurance claim against First Initiatives Insurance, Ltd., a foreign captive insurance entity that provides self-insurance for Catholic Health Initiatives, Inc. The court granted summary judgment for Catholic Health and First Initiatives. The court of appeals affirmed. The Supreme Court affirmed, holding that First Initiatives, as a captive insurer, is not subject to the USCPA.

Smith v. Fletcher

Court: Kentucky Supreme Court

Docket: 2019-SC-0503-TG

Opinion Date: December 17, 2020

Judge: Michelle M. Keller

Areas of Law: Government & Administrative Law, Medical Malpractice

In this case heard after the Kentucky Medical Review Panel Act (MRPA), Ky. Rev. Stat. 216C.005 et seq., was declared to be unconstitutional, the Supreme Court affirmed in part and reversed in part the judgment of the trial court finding the complaint to be untimely and dismissing this case, holding that the complaint was timely as to the individual defendants. Plaintiffs filed a complaint against advanced Practice Registered Nurse Wynetta Fletcher, Dr. Amjad Bkhari, Dr. James Detherage under the MRPA. After the claims made their way through the medical review panel process, Plaintiffs filed a complaint against the same defendants and the entities that allegedly employed them. After Plaintiffs filed their complaint, the Supreme Court's decision in Commonwealth v. Claycomb, 566 S.W.3d 202 (Ky. 2018), wherein the Court declared the MRPA unconstitutional, was finalized. Thereafter, Defendants filed motions to dismiss, alleging that the claims were untimely and that Plaintiffs could not rely on the tolling provision of the MRPA to extend the deadline. The circuit court dismissed the suit as untimely. The Supreme Court reversed in part, holding (1) Ky. Rev. Stat. 413.270 applied to Plaintiffs' claims; and (2) Plaintiffs' claims were timely filed under section 413.270 but saved only those claims that were filed with the medical review panel.

Parkes v. Hermann

Court: North Carolina Supreme Court

Docket: 241PA19

Opinion Date: December 18, 2020

Judge: Paul M. Newby

Areas of Law: Medical Malpractice

The Supreme Court affirmed the decision of the court of appeals affirming the trial court's decision to grant summary judgment to Defendant in this medical malpractice action, holding that the trial court properly granted summary judgment to Defendant. Plaintiff went to the hospital complaining of slurred speech and numbness in her left arm. Defendant contacted Plaintiff's primary care physician and erroneously communicated that Plaintiff had no neurological deficits. Plaintiffs symptoms continued until she was admitted. Plaintiff alleged, among other things, that Defendant's negligence diminished her likelihood of full recovery, thus proximately causing her injury. At issue was whether Plaintiff's "loss of chance" at a better outcome following her stroke was a separate type of injury for which Plaintiff could recover in a medical malpractice action. The Supreme Court affirmed the lower courts' decisions granting summary judgment for Defendant, holding that losing the chance for an increased opportunity for an improved outcome is not a cognizable and compensable claim in North Carolina.

Wilson v. Durrani

Court: Supreme Court of Ohio

Citation: 2020-Ohio-6827

Opinion Date: December 23, 2020

Judge: Judith L. French

Areas of Law: Medical Malpractice

The Supreme Court held that a plaintiff may not take advantage of Ohio's saving statute to refile a medical claim after the applicable one-year statute of limitations has expired if the four-year statute of repose for medical claims has also expired. Plaintiffs filed a medical malpractice complaint against Defendants in the Hamilton County Court of Common Pleas. Plaintiffs previously filed their claims against Defendants in prior actions that were dismissed without prejudice before refiling their claims in Hamilton County. Defendants moved for judgment on the pleadings in both refiled cases, arguing that Ohio's medical statute of repose, Ohio Rev. Code 2305.113(C) barred the refiled claims. The trial court agreed and granted Defendants' motions. The court of appeals reversed, concluding that Plaintiffs timely refiled their claims pursuant to the saving statute and that the statute of repose did not bar the refiled claims. The Supreme Court reversed, holding that because Plaintiffs commenced their actions in Hamilton County more than four years after the alleged conduct that formed the basis of their claims, the statute of repose barred Plaintiffs' refiled actions.