Yes, the dissent makes reasonable arguments for construing the statute the other way, although I think (on balance, having listened to the extensive oral argument in the case, read the opinions, and read the briefs on the petition for rehearing) that the majority got it right. As a policy matter, a court could have gone either way but, a…
Yes, the dissent makes reasonable arguments for construing the statute the other way, although I think (on balance, having listened to the extensive oral argument in the case, read the opinions, and read the briefs on the petition for rehearing) that the majority got it right. As a policy matter, a court could have gone either way but, as the majority repeatedly stressed, AL is not a state where the courts do policy. They read the statute and construed it in a very textualist way and did so entirely reasonably.
I am not sure why you couldn't waive a wrongful death claim. Even if you can't, however, I don't see why that's a problem for the IVF industry - the key is not being negligent. All of the cases of negligence that the bioethics, reproductive medicine, etc. literatures have reported are based on one of the following (as far as I can tell): (1) negligence in using the wrong solution to store the embryos in; (b) negligence in not having temperature alarms to alert staff when there is a problem during hours the clinic is closed; (c) using equipment that fails, which may or may not have been negligent; and, in the AL case, (d) not controlling access to the storage room and freezer. All of those are things that medical facilities deal with routinely and generally don't have problems with. Any insurer would insist on things like alarms on the units for temperatures rising or locks on doors if there were potential wrongful death damages. So I think a new equilibrium of straightforward procedures and equipment being used would quickly be reached after a wrongful death suit or two was filed.
The mystery in the AL case is why the clinic was so negligent - I think we will find out in the next couple of years as discovery proceeds.
Regarding the list you gave 1-4, I fear only 4 is going to apply in practice without further laws.
Absent another law the clinic can just regularly toss records of temperature, alarm status etc etc and be effectively immune to suit on such matters and that's what such liability would incentivize. Without said records how do you ever prove they were negligent and it caused the problem? That's why I feel it's bad policy. Not to mention the fact that proving negligence in such matters is going to have alot of overhead in legal costs.
I'm open to some targeted regulation which forced all those records to be kept. But absent that I fear it just incentivizes avoiding freezers that keep temperature records and other things we probably want them dojng.
Yes, the dissent makes reasonable arguments for construing the statute the other way, although I think (on balance, having listened to the extensive oral argument in the case, read the opinions, and read the briefs on the petition for rehearing) that the majority got it right. As a policy matter, a court could have gone either way but, as the majority repeatedly stressed, AL is not a state where the courts do policy. They read the statute and construed it in a very textualist way and did so entirely reasonably.
I am not sure why you couldn't waive a wrongful death claim. Even if you can't, however, I don't see why that's a problem for the IVF industry - the key is not being negligent. All of the cases of negligence that the bioethics, reproductive medicine, etc. literatures have reported are based on one of the following (as far as I can tell): (1) negligence in using the wrong solution to store the embryos in; (b) negligence in not having temperature alarms to alert staff when there is a problem during hours the clinic is closed; (c) using equipment that fails, which may or may not have been negligent; and, in the AL case, (d) not controlling access to the storage room and freezer. All of those are things that medical facilities deal with routinely and generally don't have problems with. Any insurer would insist on things like alarms on the units for temperatures rising or locks on doors if there were potential wrongful death damages. So I think a new equilibrium of straightforward procedures and equipment being used would quickly be reached after a wrongful death suit or two was filed.
The mystery in the AL case is why the clinic was so negligent - I think we will find out in the next couple of years as discovery proceeds.
Regarding the list you gave 1-4, I fear only 4 is going to apply in practice without further laws.
Absent another law the clinic can just regularly toss records of temperature, alarm status etc etc and be effectively immune to suit on such matters and that's what such liability would incentivize. Without said records how do you ever prove they were negligent and it caused the problem? That's why I feel it's bad policy. Not to mention the fact that proving negligence in such matters is going to have alot of overhead in legal costs.
I'm open to some targeted regulation which forced all those records to be kept. But absent that I fear it just incentivizes avoiding freezers that keep temperature records and other things we probably want them dojng.
Usually waivers of things like wrongful death claims are void as against public policy no?