Environmental Torts

Over the last two decades, a new class of torts has emerged that targets personal injuries caused by toxic substances in the environment. These hybrid environmental torts are quite distinct from the trespass-nuisance precedent that is part of traditional tort theory; nor are environmental torts simply a subset of the mass hazardous sub- stance litigation that has remade product liability law. Environmental torts are informed, in a way product law is not, by environmental regulation. These torts are unique because their deterrent signal is transmitted to producers of hazardous environmental pollutants by litigants who have suffered physical injury or disease. Environmental tort litigation appears to be burgeoning. While comprehensive evidence on the number and average severity of environmental tort claims nationwide is not available, published cases would suggest both are at unprecedented high levels. Yet the topic is only peripherally discussed in law reviews, and has not penetrated most law school courses on tort law. The academic silence is perhaps understandable, since the subject of environmental torts tends to fall between two relatively well-circumscribed disciplines, tort law and environmental law. Moreover, the teachers and theoreticians of both subject areas are somewhat introspective at present. Over the past decade, the debate over reforms that would retard the growth of certain kinds of tort claims has preoccupied many tort law professors and some practitioners. Environmental law appears to be experiencing a severe mid-life crisis, as academics struggle to redefine a subject that is increasingly composed of stultifyingly technical statutes. The result of such distractions is that an exciting hybrid of personal injury and environmental law has evolved without much analysis. This essay develops a theory of environmental torts that has both positive and normative aspects.\u27 The positive theory describes why environmental tort litigation occurs. It emphasizes the economic gain, by at least some of the participants, that drives the enterprise. In much of tort law, environmental torts included, the critical economic players are the plaintiffs\u27 attorneys. If the compensation available through contingency fees from personal injury suits is insufficient, attorneys will pursue other kinds of cases. Hence, a positive theory of environmental torts must explain how attorneys are able to gain compensation for their clients, and themselves

Should Asbestos in Buildings Be Regulated on an Environmental or Occupational Basis?

The issue of asbestos abatement in buildings may be viewed as part of a larger and more fundamental scientific and social issue: Should asbestos in buildings be regulated on an environmental or an occupational basis? The environmental approach to regulation of hazardous substances has a different emphasis from that of an occupational approach. The environmental approach emphasizes abatement of property damage, while the occupational approach is more concerned with decreased exposure levels and compensation for injuries to health. Similarly, the justifications for the two approaches also have a different emphasis. The need for environmental protection is justified on the basis of diffuse injuries of toxic substances to the general population. In comparison, the justification for regulation of toxic substances in the workplace is based on identifiable injuries to workers. These different justifications have led to some divergence in policy approaches. Thus, this article addresses the issue of abatement of asbestos in buildings in the context of comparing the environmental with the occupational approaches to regulating asbestos in buildings

Geographic Variation in Informed Consent Law: Two Standards for Disclosure of Treatment Risks

We analyzed 714 jury verdicts in informed consent cases tried in 25 states in 1985–2002 to determine whether the applicable standard of care (“patient” vs. “professional” standard) affected the outcome. Verdicts for plaintiffs were significantly more frequent in states with a patient standard than in states with a professional standard (27 percent vs. 17 percent, P = 0.02). This difference in outcomes did not hold for other types of medical malpractice litigation (36 percent vs. 37 percent, P = 0.8). The multivariate odds of a plaintiff’s verdict were more than twice as high in states with a patient standard than in states with a professional standard (odds ratio = 2.15, 95% confidence interval = 1.32–3.50). The law’s expectations of clinicians with respect to risk disclosure appear to vary geographically

Can the United States Afford a “No-Fault” System of Compensation for Medical Injury?

One of the key issues separating US critics of a no-fault alternative to the tort system for compensating victims of medical injury from supporters is its anticipated cost. Results from a study are presented that estimate the costs of a no-fault system, one that is similar to the system now in operation in Sweden, within the context of the US health care system

Ambulatory care adverse events and preventable adverse events leading to a hospital admission.

BACKGROUND: Most healthcare in the US is delivered in the ambulatory care setting, but the epidemiology of errors and adverse events in ambulatory care is understudied. METHODS: Using the population-based data from the Colorado and Utah Medical Practices Study, we identified adverse events that occurred in an ambulatory care setting and led to hospital admission. Proportions with 95% CIs are reported. RESULTS: We reviewed 14,700-hospital discharge records and found 587 adverse events of which 70 were ambulatory care adverse events (AAEs) and 31 were ambulatory care preventable adverse events (APAEs). When weighted to the general population, there were 2608 AAEs and 1296 (44.3%) APAEs in Colorado and Utah, USA, in 1992. APAEs occurred most commonly in physicians\u27 offices (43.1%, range 46.8-27.8), the emergency department (32.3%, 46.1-18.5) and at home (13.1%, 23.1-3.1). APAEs in day surgery were less common (7.1%, 13.6-0.6) but caused the greatest harm to patients. The types of APAEs were broadly distributed among missed or delayed diagnoses (36%, 50.2-21.8), surgery (24.1%, 36.7-11.5), non-surgical procedures (14.6%, 25.0-4.2), medication (13.1%, 23.1-3.1) and therapeutic events (12.3%, 22.0-2.6). Overall, 10% of the APAEs resulted in serious permanent injury or death. The proportion of APAEs that resulted in death was 31.8% for general internal medicine, 22.5% for family practice and 16.7% for emergency medicine. CONCLUSION: An estimated 75,000 hospitalisations per year are due to preventable adverse events that occur in outpatient settings in the US, resulting in 4839 serious permanent injuries and 2587 deaths

Randomized Trial of Four Financial-Incentive Programs for Smoking Cessation

Background Financial incentives promote many health behaviors, but effective ways to deliver health incentives remain uncertain. Methods We randomly assigned CVS Caremark employees and their relatives and friends to one of four incentive programs or to usual care for smoking cessation. Two of the incentive programs targeted individuals, and two targeted groups of six participants. One of the individual-oriented programs and one of the group-oriented programs entailed rewards of approximately $800 for smoking cessation; the others entailed refundable deposits of$150 plus $650 in reward payments for successful participants. Usual care included informational resources and free smoking-cessation aids. Results Overall, 2538 participants were enrolled. Of those assigned to reward-based programs, 90.0% accepted this assignment, as compared with 13.7% of those assigned to deposit-based programs (P Conclusions Reward-based programs were much more commonly accepted than deposit-based programs, leading to higher rates of sustained abstinence from smoking. Group-oriented incentive programs were no more effective than individual-oriented programs

SPECIAL COMMUNICATION Health Industry Practices That Create Conflicts of Interest A Policy Proposal for Academic Medical Centers

market incentives in the United States is posing extraordinary challenges to the principles of medical professionalism. Physicians’ commitment to altruism, putting the interests of the patients first, scientific integrity, and an absence of bias in medical decision making now regularly come up against financial conflicts of interest. Arguably, the most challenging and extensive of these conflicts emanate from relationships between physicians and pharmaceutical companies and medical device manufacturers. 1 As part of the health care industry