Dean Chemerinsky Highlights New Challenges for Civil Rights Litigants

In a recent ABA Journal article, UC Irvine Law Dean Erwin Chemerinsky argues that two generally overlooked cases this term could have broad implications for civil rights litigants’ access to justice. Chemerinsky discusses Minneci v. Pollard and Ryburn v. Huff, arguing that “each reflects a significant, though unstated, change in the law.”

In Minneci, the Court held that employees of a privately-run federal prison cannot be held liable in federal court for constitutional violations because state tort law provides adequate remedies. Chemerinsky writes, “[F]or the first time, the court has said that the existence of state remedies can preclude a Bivens cause of action. In a number of cases, the court had said that the existence of a federal statutory remedy could preclude Bivens actions. But in Bivens, the court had rejected the argument that a state tort remedy was a reason to deny a federal cause of action for a constitutional violation.”

In Ryburn, decided without argument or briefing on the merits, the Court held that police officers who entered a home without a warrant and without permission from the occupants were shielded from suit by the doctrine of qualified immunity. In the 2002 case of Hope v. Pelzer, the Supreme Court held that qualified immunity can be overcome if an officer’s discretionary actions violate clearly established law that a reasonable officer should know, even if there is not a case directly on point. Chemerinsky notes, “However, in recent cases, without acknowledging it was doing so, the [C]ourt has backed away from Pelzer and found qualified immunity because there was not a specific case on point.” In Ryburn, and last term’s Ashcroft v. Al-Kidd, the Court upheld qualified immunity based on the absence of any case on point.

Chemerinsky writes, “The [C]ourt, of course, has not overruled Pelzer. But it is notable that in neither of these cases is it cited; nor does the court focus on, what should be the central inquiry under Pelzer: Did the officer have fair notice that the conduct violated the Constitution? Requiring that the plaintiff have a case on point to overcome qualified immunity will create an obstacle for civil rights plaintiffs in many cases.”

He concludes, “Perhaps the most important theme of the Roberts Court so far has been in making it harder for plaintiffs to go forward in federal court. From a practical perspective, its most significant ruling may be Ashcroft v. Iqbal, the 2009 ruling that increased the pleading burden on those wishing to sue in federal court. The two decisions from January fit this pattern and will create new obstacles for civil rights plaintiffs.”

AFJ is greatly concerned about the Roberts Court’s hostility to litigation as a means for everyday Americans to receive compensation for past wrongs and to deter future wrongdoing. Learn more about AFJ’s work on civil justice and the Roberts Court’s history of bending the law to favor corporate interests over everyday Americans.

To read the full article by Dean Chemerinsky, click here.

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Medical-Malpractice Narrative Undercut by Simple Reality

Are "skyrocketing" medical malpractice insurance premiums making it impossible for health-care practitioners to keep delivering quality care to patients? That's the current narrative in support of so-called tort reform legislation, but an important article published in Medscape Today (subscription required) undercuts that narrative with simple facts.

Medical groups, including the AMA, have constructed this narrative as part of their push for a legislative "fix" for the so-called problem, and have recently asked the Congressional deficit "supercommittee" to include medical malpractice caps in any deficit-reduction proposal. They've been working to convince patients and politicians that insurance claims are driving up medical costs, and that Washington can rein in health-care costs by enacting a national cap on medical malpractice damage awards for patients who are injured as a result of their medical treatment.

The Medscape Today article notes that despite the rhetoric, medical malpractice insurance premiums have actually been declining.

Although there was a time when the insurance premiums were increasing, the article notes:

[I]n 2011, they declined for the fourth straight year for 3 representative medical specialties, according to a publication called Medical Liability Monitor (MLM). Its annual rate survey, highly regarded in the field, was published this week.

Rates for obstetrician/gynecologists, general internists, and general surgeons decreased on average by a miniscule 0.2% this year after a 0.5% decrease in 2010. Rate decreases of 2.5% in 2009 and 4% in 2008 were more substantial. . . .

[A] downward trend is a downward trend, even though it is leveling out, and another upward trend is not imminent, said Chad Karls, a consulting actuary from a company called Milliman, who edits the MLM rate survey.

"Rates will remain flat in the foreseeable future," Karls told Medscape Medical News.

Medscape acknowledges that it is possible that caps in some states may have contributed to the national decline of insurance rates, but points out that this possibility falls far short of the claims made by supporters of a national cap. Those supporters claim that statewide caps have:

[L]ed to fewer malpractice claims being filed, which in turn has lowered premiums — a pattern attested to by a number of academic articles. However, premiums also have decreased in states, such as Oregon, that do not cap noneconomic damages.

"So caps can't be the only reason," Karls said. "I think the push for patient safety and risk management also has played a role" in reducing claims and premiums.

The article notes that even the American Medical Association seems to acknowledge that the so-called “crisis” in premium rates is no longer a crisis, referring merely to “rising,” rather than “soaring” or “skyrocketing” costs of premiums in a recent letter to the Joint Select Committee on Deficit Reduction which urges the Committee to include medical malpractice caps and tort reform as part of its savings plan for the federal budget.

Alliance for Justice, along with twenty other consumer and patient-safety groups, sent an open letter to the deficit supercommittee refuting the claims of malpractice cap supporters. The letter urges the committee not to include caps in their plan, and lists the many ways in which such caps would actually increase government costs (for example, by making it difficult or impossible to recoup Medicare expenses lost to fraud) while severely compromising patient safety.

For more information on AFJ's efforts to ensure that patients don't lose their rights to seek justice in court, see our Civil Justice webpage.

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