Expert Article Library

The Changing Nature of Liability

by Mark Clinton

By: Mark Clinton, ARM Email:

Change in the Nature of the Definition of Bodily Injury, Associated Events and Resulting Under Reserving by Insurers in General and Professional Liability

From Prudent Man to Negligence per se

The essence of liability has changed since the early 1950's from prudent "man" tests to one of today's strict liability environment across virtually all legal environments, including asbestos, tobacco, FDA, premises liability, professional liability and others. Nonwithstanding the shifting sands of the contract environment, tort has changed from one in which injuries were needed to assess negligence to one in which regulatory non-compliance provides the wrongful act preceding an injury of virtually any description.

A key component in my strict liability theory is that it was necessary to denote agents such as asbestos and tobacco as carcinogens or hazardous, with limits that are specified in the law to render use or provision above the limit illegal in order state the claim that manufacturers are criminal.

Once the criminality has been settled, then the damages are assigned as is judged appropriate. Interestingly, in the case of asbestos, threshold limits were significantly ratcheted down by a factor of 600 from the first level to the last.

Medical errors are on the way to tort development. An error should not have occurred. It is a deviation from code, from should have done. The act that should have been done is a reported evidentiary account of a successful treatment of a particular issue, no matter how thinly distributed. The standard by which medical professionals are judged cries out for substantial, coordinated automation from all allied fields.

Some commentary on the methods of the plaintiff's bar is necessary at this point. It has been noted in articles related to Norfolk Southern v. Ayers (asbestos fear suit in WV), that there exists an "inventory" of tens of thousands of asbestos to be litigated and settled. Inventory like boxes of bolts, tire rims or grapefruit, I guess. As the plaintiffs drill down for insured pockets, they fully expect and have stated that they intend to involve retailers, distributors and transporters of products with incredibly infinitesimal levels of asbestos. The Wall Street Journal quoted a report stating that 85% of American businesses have an exposure to asbestos. The plaintiff's bar conducts training like every other business group, in the same manner through seminars.

The essence of the new tort begins at the definition of a civil "wrong". In the current environment, a wrong is a violation of any regulatory fiat, legal doctrine or public policy. The liability begins and stops at this definition of the wrong. The injury itself is the fact that the second party suffered an offense at the hands or a violation of a right.

To win a negligence case, a SNF (skilled nursing facility) patient or family must prove that a duty existed between plaintiff and defendant, that defendant breached this duty by failing to adhere the community standard of care, that this breach led to injury or death of the plaintiff, and the amount of compensation and / or punitive damages that should be awarded to make the plaintiff as whole as possible.

These cases usually require the involvement of expert witnesses to establish the community standard of care, or the duty owed to plaintiff by defendant.

More testimony and perhaps documentary evidence is needed to show that defendant breached his or her duty to plaintiff.

Finally, more testimony and evidence is needed to show a causal link between defendant's alleged act or omission that was a breach of duty, and the resulting harm or injury claimed by the patient.

Under established case law, and now statute in some states, plaintiff in a negligence case can satisfy elements one and two of the case (existence of a duty and breach of that duty) by showing that defendant violated a statute, regulation or ordinance designed to protect a person of plaintiff's status (i.e., SNF patient) against injury of the type plaintiff suffered.

This is known as the concept of "negligence per se," because it allows plaintiff to prove the duty and breach-of-duty elements of the case by merely showing the violation of the particular statute or regulation at issue. Once the statutory or regulatory violation is proved, plaintiff can move to directly to the causation portion of the case where he or she must demonstrate that the alleged breach of duty or contributed to the case. Examples of the application of negligence per se are the nursing home liability cases, where the violation of a regulation lends itself to a charge of inadequate care. The proving of the violation proves the inadequacy of the care is the theory of the negligence per se application. A diary or calendar showing appointment’s you had to cancel.

This is the reason that Mississippi has just limited the use of inspection reports in their new tort reform statute. "The fact that these reports are prepared and maintained by state agencies gives them a certain credibility, and where a provider has not challenged the report's findings, it becomes next to impossible to argue the merits of individual citations plaintiff relies on at a subsequent civil trial (Kenneth L. Burgess, Esq., Legal Advisor, Provider, October 2002, pp. 73-75)".

In SNF cases, plaintiffs' lawyers rely heavily upon the state's survey form or the CMS 2567 report to establish violations of the Budget Omnibus Reconciliation Act of 1987 (OBRA) or state licensure laws.

Courts have come to expect that all entities will have written safety and compliance programs. As a result, those that do not meet this standard are sub-standard relative to meeting their duty.

Relatively, fewer entities have conducted training and this standard furthers separates those who have met their duties from those who haven't. But, does a written program and training equal safety? Evidently, a lack of it exemplifies a lack of safety. Unfortunately, the converse does not seem to hold true.

The lessons of Asbestos

The asbestos and tobacco litigation are instructive. After having been labeled as a hazard, the threshold limit value for acceptable exposure levels was ratcheted down from 12.0 f/cc to 0.02 from 1971 to 1986, a reduction of a factor of 600. Asbestos was initially taken off the market in various forms in the late 1970's. In 1975, OSHA issued Appendix C: U. S. Department of Labor - Occupational Safety and Health Administration (OSHA) Asbestos Regulation, CFR 29 1910.1001, effective July 7, 1972. The 8-hour time-weighted average airborne concentration of asbestos fibers to which employee may be exposed shall not exceed two fibers, longer than 5 micrometers,…(41 F.R. 11504, March 19, 1976). These changes were not accompanied by hard scientific data, but legislative fiat (Rep. James Florio, D-NJ). Aggressive sampling counted fibers of any kind, when only electron microscopes would definitively identify asbestos.

Mr. Florio's bill expanded AHERA (Asbestos Hazard Emergency Response Act of 1986) from all public or private elementary and secondary schools as an amendment to TSCA (Toxic Substances Control Act) and provided a TEM clearance (Transmission Electron Microscopy) of 0.005 f/cc, cleaner than laboratory clean rooms. The testing areas declined from over 3,000 square feet to 160 from 1989 to October 1990. The standard specifically included State, Federal, Commercial and Private buildings.

Currently, the West Virginia asbestos litigation (Norfolk & Southern Railway vs. Ayers) involves the fear of asbestosis and whether additional monies should be dedicated to the fear without presentation of symptoms of the disease itself.

The standards, whatever they might be, create the "wrong" applicable to the use of the premise of the owner, regardless of the level of exposure, if at all. Many of the sellers of products with asbestos, such as building material suppliers will have had no exposure to asbestos, but will be sued nevertheless.

The U. S. Supreme Court's Justice Ginsburg in Amchem Products v. George Windsor (No. 96-296 on June 25, 1997), noted that the Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation 2-3 (March 1991), suggested passage by Congress of an administrative claims procedure similar to the Black Lung legislation (Georgine v. Amchem Products). Although other issues are definitely involved the asbestos issue appears to be thriving as much due to the rules of the class action mechanism as anything.

In Amchem, the Court decided that questions of law or fact … predominate over any questions affecting only individual members." The District Court concluded that predominance was satisfied based on two factors: class members' shared experience of asbestos exposure and their common "interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system. IBID pp.17

In the same case, which seems to be the precedent setting one for asbestos and therefore for exposure without injury, The Third District Court said, "Class members were exposed to different asbestos-containing products, for different amounts of time, in different ways, and over different periods. Some class members suffer no physical injury or have only asymptomatic pleural changes, while others suffer from lung cancer, disabling asbestosis, or from mesothelioma…Each has a different history of cigarette smoking, a factor that complicates causation injury. IBID pp.18. Further, it is unclear whether they will contract asbestos-related disease and so, what disease each will suffer. IBID 18

In Judges Breyer's and Stevens' partial concurrence and partial dissent to Amchem, they noted that up to one-half of the asbestos claims are now being filed by people who have little or no physical impairment. Many of these claims produce substantial payments and costs even though the individual litigants will never become impaired. IBID pp. 23

The Rand Corporation Institute for Civil Justice found that only 39% of verdicts are paid to victims with the remainder going to "transaction costs".

I believe it fair to conclude that members of the disparate asbestos classes have indeed been exposed to asbestos, I believe it fair to state that the rest of us have also, whether we know it or not. The unclaiming masses would also have an interest in collecting some share of the funds.

The regulations do not need to be developed by experienced parties within the field of endeavors, in fact they are often not. For example, current medical guidelines for nursing home patients are developed by academic physicians with no experience in the industry environment.

This is typical for medical regulations, surprisingly, at least to me. The applicability of regulations are laid against the rights of nursing home patients to decide whether their rights have been violated. These rights are not limited as the patients mental capabilities become more limited and as they can't participate in their care (Sauer v. Diversicare, Montgomery County, AR, 2001).

Regulations are not of a single phase of depth, either and truly constitute a web. Regulations are generated from several different sources for a single exposure and are confusing to the employer. They come from OSHA, National Fire Protection Association, Environmental Protection, Patients Bill of Rights, False Claims Act, used for exposures in applications in which they were not designed.

However, once an entity or group of entities has been successfully prosecuted by the Federal government, they have been opened for successful litigation by others on similar grounds.

For example, a successful False Claims case easily is made into a successful general liability case.

The facts will go something like this; a nursing home did not provide an adequate level of care given the reimbursement provided by the Medicare program. They took monies that they were not entitled to, essentially, and committed fraud. A judgment is rendered or a settlement is rendered and the entity has been convicted of a crime, they are a criminal enterprise. A general liability suit / claim is made because the inadequate care occurred on the insured's premises and harmed the home's patients. The case can be the same, but the government's attorneys do the heavy lifting, beautiful. After the government has provided a successful prosecution using the False Claims Act, more succinct liability actions are available using the government's case as a blueprint.

The webs of regulations assure non-compliance in several aspects. The violations of the regulations provide the impetus to label and taint the offender as a criminal enterprise. Secondly, they provide the need for the government to engage in prosecution.

The regulations or standards of care do not need to accepted by a wide cross section of the group. Very often, a new successful medical procedure is accepted as a standard if it is successful regardless of the review process (meningitits, rocky mountain spotted fever).

The converse of the regulations merely for regulation sake is exemplified by Dallas' Parkland Hospital Labor & Delivery areas (Charles Fishman, Fast Company, October 2002, pp. 107-116).

Their L & D areas, operate within rigid, carefully codified rules about medical practice, a method that is unusual even for an academic medical center. But those rules play out in a workplace culture of notable informality and flexibility. Parkland's L & D staff constantly manages to turn adversity into advantage. Practically overwhelmed by the increasing number of babies, critically short of nurses, and operating in a building designed for 3,000 fewer births a year, Parkland's L & D department has had to reengineer how it delivers babies several times over the past 20 years. Some measures in desperate efforts to keep pace may actually have improved patient care.

The professional staff in Parkland's L & D areas is divided into an elaborate hierarchy. At any given moment, there are 14 distinct levels of medical staff, from nurse's aides ("OB techs") to attending physicians with years of experience. The hierarchy involves a precise definition of duties and authority at every level: There are three different kings of nurses, for instance, each allowed to do different things.

And yet in practice, the L & D floors could be less egalitarian, all hands-on-deck spirit.

In fact, there is a careful system behind the success of L & D, one that has been honed over 50 years. Parkland's L & D areas rely on a set of protocols that define every step of the medical experience for women.

The protocol - actual rules that are written down and taught - specify which questions a woman should be asked in a satellite clinic during her first prenatal visit. The protocols specify that at Parkland, RNs do not do pelvic exams - those are for doctors, midwives, or nurse-practitioners. The protocols specify that women in high-risk labor not get fluids by mouth - no juice, no Popsicles, no ice chips (IV fluids are preferred).

But these are not rules for rules' sake. "The protocols are not recipes," says Miriam Sibley, who has risen through the ranks from L & D nurse to senior VP of Parkland's Women and Children's Service division. "They give us a way to organize a tremendous amount of work.

Says Dr. Steve Bloom, associate medical director of L & D: "Without the protocols, well, you've got 50 faculty members, 40 midwives, and 100 nurses, all practicing medicine. It would be chaos.

The protocols define a standard of practice. They set a floor for the kind of medicine that everyone should get. And although many hospitals have rules and procedures, Parkland's system, which is constantly being refined using clinical research, is much more developed. "People used to say, 'Oh, Parkland is all cookbook medicine,' " says Lockwood of Yale.

"Up here in the northeast, we used to say, 'We believe every patient is an individual with her own unique set of variables. There's no way we could practice cookbook medicine.' Well, guess what? We were wrong. The protocols reduce variability, error, and cost, and they increase care. It seems Parkland's way is a better way of doing things."

More than that says Leveno, "the system gives the staff a sense of order, even if you are overwhelmed.

Things settle down and function. Otherwise, the volume creates a frazzled environment. The staff gets frazzled, and the patient gets frazzled too."

Duties of the owner

As is commonly known, an owner of a property has a duty to advise the visitors, those unfamiliar, children and others of imperceptible hazards. Warnings defeat physical hazards. Once a warning has been provided, it serves as a defense, or so goes the thinking. The warning should bring the visitor to the level of knowledge of the owner.

The requirement of compliance trumps the old definition of third party property in common law. A warning will not override a non-compliant exposure. The simple fact of stating a warning will not make an exposure disappear, neither will a fully compliant safety program.

The exposure has replaced the injury as the change required.

Additionally, the "premises" has been replaced by data such as antibiotic resistance, believe it or not. Each antibiotic and other medicine for that matter has county specific effectiveness ratings. Prescribing the wrong antibiotic for a child has a lot to do with their county of residence and exposes doctors to mistreatment. One example of a GL application of a medical error is the anti-biotic resistance issue. Anti-biotic resistance and pharmaceutical efficacy is analyzed by county, for instance. A particular drug is appropriate or inappropriate based on these data sets. The standard for the appropriate drug renders all other choices inappropriate. The appropriateness is very fluid for all sorts of drugs, changing based on efficacies. Again, this cries out for automation.

"We have a health care crisis, and we have an education crisis, at the heart of them is the fact the people are no longer free to use their judgment," says Phillip K. Howard, partner of the New York law firm Covington & Burling and Common Good. He is the also the best-selling author of Death of Common Sense: How Law is Suffocating America and more recently, The Collapse of the Common Good: How America's Lawsuit Culture Undermines Our Freedom. The problem as he sees it, is that "we no longer have the law". (Alan Webber, Fast Company, November 2002, pp. 46)

According to Howard, America got off track in the 1960's. "In the 1960's, we changed our entire legal structure and philosophy," he says. "We created a philosophy that took away from everybody's freedom, in the name of freedom. We were trying to stop abuses, but now we need to restore our capacity to make judgments about what we think is right." Howard makes the case that have lost their right to make commonsense distinctions between acceptable uses of individual judgment and legitimate causes for legal action. "We've forgotten the second half of the law: It's supposed to protect people who do the right thing." Howard quotes one study that says that because doctors see patients as potential plaintiffs, they practice "defensive medicine" --- at a cost of more than $50 billion annually.

Compliance is not Safety

I have long believed that safety and compliance are distant and unrelated concepts. They are not related, they do not have to be related. I can buy written safety programs all day long for under $100, download them and provide evidence of safety compliance to OSHA. Employees can sign safety attendance forms all day long, as well. But application, well that's another story. Conversely, safety, coaching and attention are not documented, at least not totally.

As a means of example, the hazardous communication standard is OSHA's 29 CFR (Code of Federal Regulation) 1910.1200. It is their most cited standard and has been so for several years. The standard itself deals with the right of employees to know about the classified chemicals, substances and materials with which they work. It is a substantial clerical endeavor, with minimal training requirements in most instances.

It has a five-part compliance system including:
- A written hazardous communication program;
- Chemical lists including volumes on hand, annually, hazard class, etc;
- Compilation of material safety data sheets;
- Employee training;
- Employee proficiency testing.

In the allied health care and medical professional liability arena, as well as others, the employers complain of risk management detracting from patient care. Future risk management must be risk advancement, integrating itself with operations to advance the mission of the entities.

Record positive actions and make the case about the uniqueness of the situation. I believe that complete systems of compliance are necessary to limit the non-injured's access to liability.

Successful legal arguments must center on the pattern of positive outcomes, rather than the isolated case. Currently, the argument is that because there is no positive repository of data, we must assume that all conditions are as ill-controlled as the one at the center of this case. It becomes very difficult, impossible to recite positive outcomes of similar exposure years later.

Change in Loss Criteria

These changes in the nature of liability have not been observed by liability insurers in my opinion, i.e. St. Paul's medical malpractice line of 300% combined ratio. I believe that they have continued to price coverage retroactively over the specialty and bring them forward using loss trending. Data collection exists for jury awards via Jury Verdict Research and settlement data for the different insurers and State Insurance Departments. But how are raw suit filings, expenses and non-suits analyzed? Not at all.

The current rate making methodology is not capturing the strict liability events, that do not involve physical injury. Claims are made when they are received by the insurer. Given the current state of medical errors, we know that most injuries are not claimed and that non-errors are claimed. About 6% of actual (medical) injuries are claimed, according to studies such as Peter Huber's in The Liability Maze. However, the same studies state that many claimants with no objectively discoverable injuries, make claims. The payment rationale for the non-claims lays in the violation issue. Non-injured claimants are paid because they do have substantive legal arguments and their payment requests are less than the value of defending them.

So, what are the patients with non-injuries claiming, non-standard of care treatment, not meeting the applicable standard. The current methods are far behind in terms of timing and severity, unless the staff becomes immediately concerned about a problematic presentation, such as West Nile, meningitis, asbestos, or nursing home injuries.

My theory of strict liability does attach an event as the injury, substituting an exposure instead of the injury.

When an insured, any insured, any manufacturer, any doctor does not fully comply with all phases of the regulations particular to them, whether or not they know which ones will be used to evaluate their behavior in court, they have caused a loss. The non-compliant act is an incident, which may have produced past losses or regulatory violation. As a result, a reserve should be set up to initiate an IBNR claim at a minimum.

The event may and very likely will not manifest itself. However, it is conception of the birth of the litigation / legal liability process, just the same. I don't believe this fact is being recognized.

The losses should be correlated to the ultimate loss cost for the event, but they are not. I define ultimate loss cost as the average for the non-compliant action.

Experience continues to be rated on specialty, the riskiness of the specialty and geographic area. The assumptions, which should be used are the collection of all losses (non-compliant events) and their relationship to ultimate loss reserving. Deviations should be made for legal environment and occupational likelihood of litigation. But, reserving should be done immediately upon the completion of the adverse act.

Actuarially Rating for medical errors and tying to actual costs

"Mr. Hunter admits that there is generally a 5-to-10 year lag between claim reporting and settlement. In other words, 1995 premiums, on the average, are needed to pay 2001 settlements. And 2001 premiums pay for 2006 settlements not on the graph"(Robert Wolf, The National Underwriter, 11/11/02). Mr. Wolf identifies the problem in medical malpractice reserving when he states, "Medical malpractice loss reserves were in hindsight, redundant in the early 1990's because loss-cost trends were actually more favorable than insurers had expected.

Resulting reserve takedowns-from 1992 through 1997-and the bull stock market were largely responsible for the success that may medical malpractice insurers enjoyed from 1990 through 1998. The resultant reserve releases and high investment yields subsidized deteriorating accident-year loss ratios to achieve profitable reported loss ratios." IBID, Robert Hunter, NU, 11/11/02.

These days, lawsuits not only reflect a philosophy of negligence for "committed acts," but also a negligence from "omitted acts" philosophy, with failure to diagnose and refusal to treat allegations becoming common. In particular, according to the Physician Insurers Association of America, the failure to diagnose breast cancer is now the leading cause of malpractice claims (Robert F. Wolf, Actuary Counters Hunter on Med Mal Insurance Crisis, The National Underwriter, 11/11/02). Robert F. Wolf is a principal and consulting actuary for Mercer Consulting in Chicago. He also serves as the chair of the Casualty Actuarial Society's Media Relations Committee.

Each and every action of the staff should be cataloged and evaluated for compliance. Insureds should be charged or credited for each and every one of them, as they occur. Reserves would then be made. After the statute of limitation has expired, they would be dropped down.

The benefits of complete cataloging would far outweigh the costs. Currently, in professional liability litigation, concentration is upon the potential pattern of abuse that this potential (hypothetical) case brings to mind. Well, if they did this to him / her, how many other times did they do it to others? The potential, unquantifyable data becomes the unreferenced elephant in the room. If all data and all actions were retained, a hypothetical treatment of patterns of behavior would be no more potential; a factual basis of all acts would exist. A pattern of action based on those exposures would exist. A treatment of the number of exposures would exist. A clearer picture of the stress of the employees and the repetition of their activities would exist. A truer picture of the exposures would exist for all captives, alternatives, insurers and reinsurers.

With the collection and processing of data, grouping and correlation would follow. The service industries are given a simplistically derived business modality. The integration of the components necessary by a successful health care professional such as nurse, doctor or surgeon are simply not known by those unfamiliar with it. The same is true of knowledge workers. However the product and general liability rules, requirements and laws developed during the industrial age are still the norm. The product inputs in health care and knowledge based industries are invisible, the plant floor goes back years into medical school, residency and private practice experience. Yet all of those knowledge-based raw materials make the product of service for a specific patient with specific presentation. The actions per the norm would have to be judged according to these inputs, as the standard(s) to arrive at adequacy of care. This may be why current professional liability standards have moved away from professional training to compliance with a standard of care.

Break into subspecialty

The data mining that would be done at a large, academic hospital would provide the data logic necessary to create computer logic for the medical field as a basis for the other knowledge fields.

The use or adoption at a large facility would allow data to be collected and actuarially analyzed for liability trending. Rates could be developed and set based on the resulting case values on prospective rather than retroactive, reactive basis. The current malaise and crisis in the general liability marketplace, especially where it intersects with professional liability will not improve, but continue to decline, in my view, until they conduct analyses of the base event at the causation of the injury. For this analysis to be salient and germane to the insurance industry, financial data for losses have to be attached to errors. Once trending is developed for the specific events, IBNR would be redundant, since all claims would be reported upon occurrence.

I believe that a key component to the deviated liability environment would be the storage of positive outcomes. In medical malpractice, doctors are no longer asked about their qualifications to treat this or that injury, disease or malady. They are asked how many of a specific injury, disease or malady they have treated. My pediatrician wife will treat 4,000 patients this year. She remembers the bad ones, not the good ones.

Retaining the savings

The prototypical capture of the investment necessary for the standard-based program should be the alternative market. The standard market is incapable of the storage mechanism, partially due to their own issues, partially due to political landscape with the left's marriage to the plaintiff bar and partially due to issues outside their control. The fear and respect of the plaintiff's bar is well founded, on the part of the standard insurance market. Unfortunately, their storage of the surpluses that would develop would not be allowable in terms of public policy. Cheap insurance and large surpluses are not comprehensible by the general public, the general public that provides our juries. In order to drive down costs of coverage, other entities are necessary. In addition, expense ratios in the standard market would negate the substantial savings that should ensue. With the adoption of standard-based risk management systems, actual expense ratios would be negligible. Case values would be virtually predetermined. Infinitely more information would be available on exposure and injury.

Medical errors piggy backing

Much good work is currently being done in the area of medical errors, some 48,000 deaths were attributable to them a couple of years ago.

So they are a problem, or are they. What exactly is a medical error anyway? The non-compliance with a protocol, standard of care or success of care is a medical error. A success of care is my own term, standards within the knowledge-based industries are subject to constant change, similar to the rate of retained data available to us. The knowledge workers are expected to assimilate and use all of this available data. The only perceptible way to use the amount of data available is through automation.

Bodily - Pertaining to or concerning the body; of or belonging to the body or the physical constitution; not mental but corporeal (hereditament, likely inherited).

Bodily injury - Generally refers only to injury to the body, or to sickness or disease contracted by the injured as a result of injury; including illness caused by nervous shock or injury resulting from rape or attempted rape.

Broad definition of injury includes any injury which is an invasion of personal rights (patient's rights in nursing homes), and in this signification it my include such injuries to the person as libel or slander, criminal conversation, malicious prosecution, false imprisonment, and mental suffering.

Civil - of our relating to the state or its citizenry.

Error - an act or behavior of ignorant or imprudent deviation from a code of behavior; an act involving an unintentional deviation from truth or accuracy; an act that through ignorance, deficiency, or accident departs from or fails to achieve what should be done (Webster's Ninth Collegiate Dictionary).

Exposure - claimant was on the same premises as the hazard, however miniscule the concentration. This differs from a loss control / risk management related exposure, wherein an employee, third party or other entity could be "injured" through completion of a potentially accident producing process.

Injury - change in physical condition; statement of claim of an adverse change in mental, emotional and or physical condition, i.e. fear, concern, or other similar affect. The long standing definition of injury, i.e. broken bones, diseases, maladies has been replaced by the exposure to an agent of change, such as irregular diet, placing the individual in an established where asbestos was also present and occupying a room in a building without appropriate life safety controls. All these are exposures to hazards, which are in context "injuries".

Negligence - The omission to do something, which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.

Negligence per se - negligence proves the existence of the injury (Clinton).

A form of ordinary negligence that results from violation of a statute. Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a specific statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can said without hesitation or doubt that no careful person would have been guilty of it.

Negligence (Clinton) - non-/mis/incomplete/undocumented compliance in an area where the government has identified the existence and concentration levels constituting a hazard.

Negligence in law - "Actionable negligence" or "negligence in law" grows out of nonobservance of a duty prescribed by law.

Strict liability - in product liability, strict liability holds that a product defect resulting in an injury to a third party buyer / user renders the maker liable for ensuing injury.

Tort (from Lat. Torquere, to twist, tortus, twisted, wrested aside) - A private or civil wrong or injury, including action for bad faith breach of contract, for which the court will provide a remedy in the form of an action for damagers. A violation of duty imposed by general law or otherwise upon all persons occupying the relation to each other which is involved in a given transaction. There must always be a violation of some duty owing to plaintiff, and generally such duty must arise by operation of law and not by mere agreement of the parties.

Wrong - violation of the legal rights of another; an invasion of right to the damage of the parties who suffer it, especially a tort. It usually signifies injury to person, property or relative non-contractual rights another than wrongdoer, with or without force, but in more extended sense, includes violation of contract.


Burgess, Esq., Kenneth L. "Legal Advisor", Provider, October 2002, pp. 73-75
Fishman, Charles. "Fast Company", Parkland Hospital Labor and Delivery, October 2002, pp. 107-116
Justice Ginsburg; Amchem Products v. George Windsor (No. 96-296 on June 25, 1997), "The Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation" 2-3 (March 1991).
Peter Huber and Robert E. Titan, editors, The Liability Maze: The Impact of Liability Law on Safety and Innovation; The Brookings Institution, Washington, DC, 1991.
Hunter, Robert. "The National Underwriter", Med Mal Crisis, 11/11/02.
Webber, Alan. "Fast Company", Commentary on the Legal System, November 2002, pp. 46
Wolf, Robert F. "The National Underwriter", Actuary Counters Hunter on Med Mal Insurance Crisis, 11/11/02.