Tort Law Tidbit - Sex Abuse Claims Against Therapist

Did you know that Tennessee has a specific statute addressing sex abuse claims against therapists?

The "Therapist Sexual Misconduct Victims Compensation Act" is set forth in T.C.A. Sec. 29-26-201 et seq. A "therapist" is defined as "any person who performs therapy regardless of whether the person is licensed by the state." "Therapy" is also a defined term, and includes marital counseling, substance abuse treatment, family counseling, and other treatment.

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Hot Off the Press

Hunter v. Ura has been decided by the Tennessee Supreme Court. The Court reversed the Tennessee Court of Appeals and reinstated a jury verdict for the plaintiff.

The majority opinion is authored by Justice Riley Anderson. Justice Barker, joined by Chief Justice Drowota, dissented on one issue of many raised in the appeal.

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Taking Photographs

Thanks to Evan Shaeffer - a man who has time for two blogs and a law practice - for directing me to this helpful article on how to take photographs of vehicles.

You would think it was simple. Not. This article gives some great tips on taking photos that give you the information you need. The main thing I get from this article is that if you have a case where the injuries warrant it (from a financial stanpoint) it makes sense to have a professional take the photographs. It smaller cases these tips may help you improve upon the photos you take yourself.

Damages in Legal Mal Case Include Punitives in Underlying Case

The defendant law firm was found to have negligently prepared a commercial litigation matter for trial. The plaintiff argued that it would have been able to recover punitive damages in the underlying case had it not been dismissed because of the law firm's negligence and therefore should be able to recover them in the second case.

The Illinois Court of Appeals agreed, stating that "we believe the proper focus of our analysis to be what would make the plaintiff whole with respect to the defendant attorney's negligence. When, as in this case, a jury has determined that the plaintiff would have been entitled to punitive damages but for the negligence of the attorney, then such damages must be recoverable in order for the plaintiff to be made whole. We note that this result is consistent with the general principle in this state that '[a] legal malpractice plaintiff is entitled to recover those sums which would have been recovered if the underlying suit had been successfully prosecuted.'" [citation omitted].

The court then affirmed a jury verdict including over $1,100,000 in punitive damges. Read the opinion by clicking here.

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Vigilantes on Trial

I need to tell you about a fascinating tort opinion I came across recently, one that presents an interesting yet troubling view of the state of the law at the time.

The decedent was awaiting trial for rape and murder when he was dragged from his jail cell and hanged. Suit was filed against the vigilantes. A White County jury returned a verdict against the vigilantes, but it was appealed as inadequate.

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Just When You Thought It Couldn't Get Worse ...

I wrote yesterday about the bad day the lawyers at Kirkland & Ellis and the folks at Morgan Stanley were having. Well, it got worse.

Matthew McCarrick, the blogger who has the excellent blog I cited yesterday, was kind enough to let me know of a recent development in the case.

Judge Maass has now granted a partial default judgment against Morgan Stanley and has disciplined several K&E lawyers. Perelman need now only prove that he relied on information from Morgan Stanley in connection with the Coleman - Sunbeam sale and that he suffered damages.

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Sanctions in Electronic Discovery Disputes

Here is a recent law review article that summarizes the state of the law of sanctions in cases involving electronic discovery. The article, entitled "Electronic Discovery Sanctions in the Twenty-First Century," is authored by a federal court judge and a law clerk.

You Think You Have Had a Bad Day?

The lawyers at Kirkland & Ellis, a major law firm with its home office in Chicago, had a real bad day recently after its client got hammered with sanctions.

Financier Ron Perelman has sued Morgan Stanley for fraud, alleging that it helped appliance maker Sunbeam Corp. conceal accounting woes tht reduced the value of Perelman's investment in Sunbeam. The trial is scheduled to begin shortly.

The trial judge is Elizabeth Maass. She ruled that Morgan Stanley hid emails and hit failings in its search for emails. "Many of these failings were done knowingly, deliberately and in bad faith," Judge Maass wrote in her order.

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Tort Law Tidbit - Use of Demonstrative Aids in Closing

T.C.A. Sec. 20-9-303 permits a lawyer "to use a blackboard, models or similar devices, also any picture, plat or exhibit introduced in evidence, in connection with his argument to the jury for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury...." The statute prohibits a lawyer from making an argument "in writing" that could not properly be made orally.

In this era, I think this statute gives counsel the right to use Powerpoint or a similar program during closing argument.

How Does This Happen?

Would you think that a doctor who has had 33 medical malpractice payouts in the last decaded would still be practicing medicine?

Dr. Michael Sachs in Manhattan is. His record became news after a 42 year old mother died after a nose job performed in his office. The cause of death was "cardiac arrest." He also has two malpractice cases pending against him alleging breathing difficulties stemming from botched nose jobs. Read the article here.

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Failure to Warn of Genetic Problem

The Supreme Court of the State of Minnesota has held that a physician has an affirmative duty to inform a child's biological parents about the risks posed by their child's genetic problem.

The plaintiff's child was born with an inheritable form of mental retardation known as "Fragile X." The parents were told that the condition was probably not genetic and the child's doctors did not do full genetic testing on the child. The parents then had a second child born with the same condition. Later testing revealed that both children and the parents were carriers of Fragile X.

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Mother Can Recover Damages for Emotional Distress - Child Stillborn

The Wisconsin Supreme Court has ruled that the mother of a stillborn infant may seek damages for wrongful death and for negligent infliction of emotional distress.

The child died as a result of conceded medical malpractice. The misdiagnosis took place several hours before the child died in utero. The mother sued for wrongful death of the child and her own emotional distress. The hospital settled the wrongful death claim but argued that the mother did not have a cause of action for her own emotional distress.

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Electronic Discovery

Those of you who do any products liability, medical negligence, or commerical litigation know that e-discovery is a hot topic. More and more discoverable data never makes its way to a piece of paper, so a RFP seeking only paper documents will not get you what you hoped to get or are entitled to get.

Likewise, courts are imposing requirements on lawyers to advise their clients to maintain electronic data after a lawsuit has been filed. The failure to act promptly and appropriately can have dire consequences.

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Blue Chipper - Premises Liability

Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998), is a must-know for anyone handling a slip and fall or trip and fall case in Tennessee. Indeed, it is important reading for anyone handling any type of premises liability case in this state. It is the first Tennessee Supreme Court decision in the field after the adoption of comparative fault.

Be sure to read both the majority opinion and the concurring opinion to see a philosophical divide on the subject as wide as the one between Nietzsche and St. Thomas Aquinas.

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Another State Questions Med Mal Crisis Hype

The Insurance Commissioner from the State of Washington has issued a report that examines whether or not there is a medical malpractice insurance crisis in the state.

Rather than relying on simple statements from doctors and their insurers the Insurance Commissioner did a closed claim study covering about 90% of the physicians from the state. The report shows that the number of $1,000,000+ verdicts or settlements is relatively flat and that there were only 50 verdicts for the plaintiff in the 10 - year period covered by the study. Seventy-three percent of the claimants recovered nothing.

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Tort Law Tidbit - Arguing Pain and Suffering

Can a judge stop a lawyer from arguing the value of pain and suffering to a jury?

No. T.C.A. Sec. 20-9-304 gives a lawyer in a personal injury case the right to argue the worth or monetary value of pain and suffering. The argument must conform to the evidence or reasonable deduction from the evidence in the case.

The only possible exception to this rule is medical negligence cases.

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Trial Lawyer's Prayer

Sorry for the lack of a post yesterday; I am at a conference in Florida and the day was a little hectic.

I didn't write the Trial Lawyer's Prayer, but I wish I had. Read more of Evan Schaeffer's stuff by clicking here.

Trial Lawyer's Prayer, by Evan Schaeffer

Dear Lord: Here I am, back in Church. It's been awhile, I freely admit, and I apologize for the long string of Sunday absences, but as you know, the demands of my busy practice often require me to work all weekend, Sundays included. That's true even today, Lord, but today is a special Sunday. So special, in fact, that to skip Mass today would be malpractice, more or less, if you know what I mean, which, of course, you do.

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Sen. Frist: Video Diagnosis

An article in the Washington Post demonstrates an amazing ability of Sen. Bill Frist: the skill to make a medical diagnosis from a videotape.

This may surprise some of you who do medical negligence work or address a lot of medical issues in your practice. As lawyers we are all told how difficult it is to make a medical diagnosis. Defense experts will routinely testify that it is unfair to challenge a medical diagnosis without seeing and laying hands on the patient. But Sen. Frist has the ability to look at a videotape and make a diagnosis that contradicts that of the patient's treating physicians!

The article discusses Sen. Frist's review of a videotape of Terri Schiavo and his (subsequent?) opinion that she may not be in a persistent vegetative state. That opinion was in no way influenced by the upcoming Presidential election.

A person with this talent needs to be practicing medicine and not wasting his time in the U.S. Senate or sitting in the Oval Office.

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Tort Law Tidbit - When Must The Judge Rule?

I know the judge has to render a decision in my case in some time period. What is it?

T.C.A. Sec. 20-9-506 requires a judge who tries a non-jury case to render a decision and have the judgment entered within 60 days after completion of the trial.

Now, how do you enforce that statute? Well, the is a little more delicate. First, know your judge. Some judges will appreciate a "Motion to Determine Status." Some judges let it be known that they want such a motion in the event something slips through the cracks.

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Special Courts for Doctors?

Most tort reform proposals center on limiting damages for people who are found by a jury to have meritorious claims. Insurance companies that sell malpractice insurance want their exposure capped. (Who wouldn't?) Do doctors and hospitals get lower premiums in return? Well, that depends on if you ask the insurance companies under oath or if you are reading their PR pieces.

There is another debate out there that is more interesting from an intellectual standpoint - the debate about special courts for health care claims. These courts would run by health care professionals. Two folks are going at it on the Internet right now - Philip K. Howard, Founder and Chair of Common Good and the author of The Death of Common Sense: How Law is Suffocating America and Stephanie Mencimer, a contributing editor of The Washington Monthly and author of a upcoming book on tort reform.

Read the debate by clicking here.

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Medicaid Subrogation Right Restricted

The Eighth Circuit Court of Appeals has limited Medicaid's subrogation interest in a tort recovery.

Plaintiff received substantial injuries in an auto wreck. She applied for Medicaid coverage and agreed to assign to the state her "right to any settlement, judgment or award" she might receive from any third parties. Medicaid paid over $215,000 in benefits on her behalf.

Medicaid and plaintiff agreed that plaintiff's damages exceeded $3,000,000. However, plaintiff settled her case against the tortfeasors for $550,000.

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Cost of Injuries and Death

I came across an interesting website from the National Safety Council the other day. The NSC does lots of stuff; one thing it does it estimate the cost of injuries and death in the USA.

For example, look at this table:

Average Comprehensive Cost by Injury Severity, 2003

Death $3,610,000
Incapacitating injury $181,000
Nonincapacitating evident injury $46,200
Possible injury $22,000
No injury $2,000

These numbers include lost "quality of life."

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Seminar on Fact Finding on the Internet

The ABA is hosting a 90-minute teleconference and live audio webcast on how to unearth fact information on the Internet.

Carole Levitt and Mark Rosch, authors of the ABA's The Lawyer's Guide to Fact Finding on the Internet will be the speakers. They will address issues like locating public records, locating background information on people and companies, and effective search techniques.

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Punitive Damage Verdict Upheld

State Farm v. Campbell was feared to be a dramatic change in the law of punitive damages, but some courts have not taken the bait. In Willow Inn, Inc. v. Public Service Mutual Ins. Co. the United States Court of Appeals for the Third Circuit affirmed a punitive damage award of 75 times the compensatory damage award.

The plaintiff's property was damaged by a tornado. The trial judge found that the insurer had engaged in obstructive tactics in settling the plaintiff's property damage claim, which resulted in a two-year delay in the payment of $125,000.

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Vioxx Cases MDL Official Website

Our firm is handling Vioxx cases. The MDL Panel has just sent all of the cases to the ED of Louisana for pretrial proceedings. Judge Fallon will be handling the case.

The judge has set up a website for pretrial orders and proceedings. Here it is.

More on Texas Tort Reform Study

Last week I had a post regarding a new tort reform study out of Texas that destroys the myth that there was a medical malpractice crisis in that state. Here is a link to the study itself.

Blue Chipper: No Fault for Phantoms

The McIntyre opinion permitted fault to be assessed against people who were not a party to the action. From the day McIntyre was released it was clear that a defendant could ask that fault be assessed against a prior defendant who settled before trial. Over the years that followed it became clear that fault could be assessed against certain other people that the plaintiff could not have sued.

In Brown v. Wal-Mart, 12 S.W3d 785 (Tenn. 2000), the defendant tried to blame a phantom party. In other words, it tried to blame not only a person who the plaintiff could not sue but a person who it failed or refused to even identify. The Tennessee Supreme Court rejected that effort. Click here to read the opinion.

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Police Officer Excluded as Accident Reconstructionist

Many of us have attempted to use police officers as expert witnesses at trial. We have also had them used against us.

The Delaware Supreme Court has recently ruled that it was reversible error for a trial judge to permit a police officer to testify to the "primary contributing cause" when the police officer was not qualified as an expert in accident reconstruction. The decision in Lagola v. Thomas may be read by clicking here.

Testimony by police officers in traffic wreck cases often carries substantial weight. This decision may be of assistance to you in your attempt to exclude the opinion testimony of a police officer.

Bad Faith Action Survives

We have all seen it too many times. Your client has legitimate medical expenses well in excess of policy limits. Liability is not clear but will go to the jury. The defendant's insurer refuses to settle the case for policy limits.

That happened to defendant Johnson. His insurance company refused to settle an action against him. His $25,000/$50,000 in policy limits were to be of little help paying a judgment of $193,750. He sued his insurance company for bad faith failure to settle the case, and a jury agreed.

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Legal Technology Blog

David Swanner, a lawyer in South Carolina, has a blog focused on the use of legal technology by trial lawyers. David's blog has a lot of good information on Powerpoint, yet another great weapon that we can use when we go into battle.

David also has a guest post entitled "Twelve Ways Technology Can Make You a Better Trial Lawyer" that he made to another blog. It is filled with good ideas.

All of this demonstrates why technology and the Internet is changing law practice as we know it. When small firm lawyers are ready to share their ideas and invest in appropriate technology, the advantage that large firms have historically had dwindles.

Thanks David!

Medical Malpractice Crisis Not A Crisis At All

A study from Texas has determined that the medical malpractice "crisis" behind the push for restrictions on the rights of patients is phony, which is no news to anyone who understands the issue.

"We find no evidence of the medical malpractice crisis that produced headlines over the last several years and led to legal reform in Texas and other states," said the study, conducted by law professors at the University of Texas, University of Illinois and Columbia University law schools.

The article tells us that "'only a few states have comprehensive insurance databases like that of Texas,' said David Hyman, one of the study authors, 'but similar studies elsewhere have found nothing to indicate a link between litigation and rising medical costs.'"

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Tidbit #1 - Release of Agent

Everybody knows that if you release the employee you release the employer, right? Try to find a case that says so.

Well, here it is: Craven v. Lawson, 534 S.W.2d 653, 654, 657 (Tenn.1976). This case holds that release of an employee discharges employer's liability predicated on master-servant or principal-agent relationship.

What is a "Tort Law Tidbit?"

Have you ever been presented with a legal question, thought you knew the answer, but could not put your finger on the case or statute that confirmed your recollection? I have, and it drives me crazy. I think I am right. I know the answer is out there. But I can't confirm it.

My wife, also a trial lawyer, puts it this way: There are things that everybody just "knows" and finding support for those things is hard to do. That is fine, of course, unless what you know ain't so.

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Preparing for Trial Checklist

Preparing for trial is, by nature, hectic. If you are not wired enough to power the Titans' Coliseum on a night game, you are not paying enough attention. It's helpful to have a checklist to see if all of the applicable basics are covered.
This trial preparation is set out in phases - sixty days before trial, thirty days out, at the pre-trial conference, and in the final days before trial. The courtroom is a much friendlier place when you thoroughly prepare yourself.
Download file.

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Discovery Questionnaire for Wrongful Death Action

Getting through litigation as efficiently as possible is (generally) in a plaintiff's best interest. To avoid the "hurry up and wait" effect that can encumber a case, I send my clients a discovery questionnaire at the outset. I ask the clients to answer the questions that I anticipate needing to go forward in the case. I include the interrogatories we see most often - such as listing past residences, employers, and treating physicians. I also ask the client to gather and provide copies of documents frequently requested by defendants - recent photographs and videotapes, tax returns, and etc. At the same time, I ask my clients to gather the information and materials that will help us move the case forward on our end - copies of pertinent insurance policies, for example. The goal of all this is, of course, to have the information on hand before it is needed. Ideally, we are prepared to respond to written discovery the day we receive it, and can avoid delaying the case through extensions.
This form is one that I use in wrongful death actions. Download file. The information requested is largely the same as in a personal injury case, but the questions have been edited to specify whether I am asking about the decedent or the surviving family members.

Discovery to Identify Nonparties

With several important limitations, T.C.A. ㋔ 20-1-119 permits a plaintiff to add parties defendant to a case even if the statute of limitations has expired. The triggering event for adding nonparties as parties is typically language in the defendant's answer or amended answer.

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Another Blue Chipper - Damages

The leading case on the law of damages in personal injury cases comes not from the Tennessee Supreme Court but rather from an opinion authored by Judge Koch on the Court of Appeals, Middle Section.

Judge Koch is an excellent writer. His opinions are exremely through and provide a great place to start legal research on viturally any topic he has written about during his twenty years on the Bench.

The opinion in Overstreet v. Shoney's, Inc., 4 S.W.3d 694 (Tenn. Ct. App. 1999) is another example of the foregoing. If you know this opinion you know 85% of what you need to know about the law of damages in personal injury cases.

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Rule 26 Disclosure of an Expert Witness in a Medical Negligence Case

It is a bit of a stretch to describe anything as a "form" for disclosing the opinions of an expert witness in a medical negligence case. Forms are designed to avoid re-inventing the wheel, shortcutting repetitive processes in lawsuits. There is rarely anything repetitive about the medico-legal issues that arise in a medical negligence case. Before putting pen to paper, an attorney must have a real grasp of the medicine and the law as it applies to a particular case.

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Employment Agreement

This is the standard fee agreement that I use in my own practice. Download file. I have tweaked the agreement repeatedly over the years, and plan to continue modifying it in the future as the need arises. If you want an updated form, or if you have suggestions for updates, please email me.

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Drug-Related Errors

The cause of medical negligence cases is medical negligence. To be sure, the legal system does not do a very good job of holding careless health care providers accountable (far more people are injured or killed by medical negligence than ever bring a lawsuit much less win a lawsuit) but the legal system does not cause medical negligence.

Here is some interesting data regarding drug errors by some people who are actually working to prevent patient harm. Note that the information is from U.S. Pharmacopeia, Center for the Advancement of Patient Safety (CAPS), a group in the health field, not a bunch of lawyers.

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Discovery to a Corporate Defendant in an Automobile Wreck Case

This is a sample form set of interrogatories and requests for production of documents and things to send to a corporate defendant in a car wreck case. I typically serve a set of discovery with the complaint in order to get the ball rolling on the case. These form questions ask the basic issues that should be dealt with in almost any case involving a corporate defendant: (1) identifying witnesses, including experts; (2) determining whether any surveillance is being / has been conducted of the plaintiff; (3) narrowing any questions as to respondeat superior; and (4) discovering the factual bases for any affirmative defenses. There are other issues that you may want to address in the initial written discovery depending on the circumstances of the case. (For example, serving a request to produce the defendant's vehicle itself for inspection to take photographs and recover data from the vehicle's event data recorder, or "black box.") Download file

Slip and Fall Cases - Constructive Notice

In Blair v. West Towne Mall, 130 S.W.3d 761 (Tenn. 2004), the Tennessee Supreme Court held that plaintiff may prove that a premises owner had constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition's existence. This decision is an express adoption of what used to be called the "method of operation theory" of proving constructive notice. The owner, a third person, or nature may cause the condition. You may read the text of the opinion by clicking here.

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