Thursday, April 20, 2006

A veto on Tuesday?

I don't have a huge problem with Doyle's veto of a bill that would have prevented discovery of certain hospital quality control documents. There is always a trade-off between the type of discovery that might help the plaintiff make out a case that someone acted negligently or that a product is defective and the need to encourage the people who provide those services or manufacture those products to engage is self-critical examination. There is always a risk that, if internal efforts to improve the way you do things are going to come out in litigation, those efforts will never be undertaken because no one wants to make out a case for the other side.

As a general matter, the law errs on the side of disclosure. I think that's mostly reasonable. Any lawyer who advices a client not to address internal problems because of the fear that it will "discover" problems that which can then be used against it in court is 1)not a good lawyer (because uncorrected problems present greater liability risks) and 2) telling her client to wag the dog.

The real problem with our liability rules is not what the plaintiff can find out, but the circumstances for which we tell juries they can impose liability.

I suppose you could make an argument that, since in medical malpractice cases, the issue is always negligence which presumably exists or does not exist regardless of what happened in other cases, this type of disclosure is not necessary. But it isn't that simple.

I agree that the trial lawyers own the Dems, but this one isn't as bad as many of his other vetoes.

Maybe that's why he didn't wait until Friday.

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