Day on Torts

June 27, 2013

Case Selection for Plaintiff’s Lawyers – 2013 Update

About eight years ago I wrote a guest post for Legal Underground that addressed the importance of case selection by plaintiff’s lawyers. The post got lots of discussion, and in fact I ended up doing a series of speeches about the topic at seminars sponsored by various state lawyer associations and at an AAJ national conference..

Eight more years in the trenches as a practicing lawyer have given rise to a few more thoughts on the subject, and therefore I have updated the post. Here is the 2013 version.

The key to making a decent living (and maintaining sanity) as a plaintiff’s lawyer is knowing when to turn a case down. To be sure, you have to a plan in place to get inquiries on new cases. And you have to have the ability to prepare and try the cases you accept. But it is also essential that you need do know when to say "thanks, but no thanks" to a case offered to you from a potential client or another lawyer.

June 21, 2013

Tennessee General Assembly Fixes One Small Problem With The Tort Reform Legislation

by The Law Offices of John Day, P.C.

Well, it ain’t much, but the Tennessee Legislature has fixed one small problem with the tort reform legislation that impacts all tort cases arising on or after October 1, 2011.

The original legislation included a provision that required all future damages to be broken down "on an annual basis" for future medical bills, lost earning capacity, and non-economic damages. Tennessee Code Annotated, Section 29-39-103(a)(2), This was a disaster waiting to happen. Why?

Here is an example. Assume a 20 year old unmarried woman is severely brain damaged as a result of an incident. She will never work again and she has a significant future medical expenses over her lifetime. Her life expectancy is disputed – the defense says she has a fifteen year life expectancy and the plaintiff’s expert says she has a normal (sixty year) life expectancy. There is also a dispute over the inflation rate and the discount rate.

May 28, 2013

Tennessee Law of Negligent Infliction of Emotional Distress

by The Law Offices of John Day, P.C.

Negligent infliction of emotional distress is a relatively new tort in Tennessee. True, the tort existed in the early days of Tennessee tort law (not by that name, but the root concept was out there) but the circumstances giving rise to liability were extremely narrow.

All of that changed a little less than twenty years ago and we know have a nice body of law on negligent infliction of emotional distress claims. I wrote an article on subject in an article for the May, 2013 edition of the Tennessee Bar Journal, a publication of the Tennessee Bar Association. Click on the link o get a good grasp on the current Tennessee law of negligent infliction of emotional distress.

May 23, 2013

Major Changes to Tennessee Wrongful Death Law – Death of a Spouse

by The Law Offices of John Day, P.C.

Under the law of wrongful death in Tennessee, the spouse of the decedent typically has the principle right to pursue a wrongful death claim.

However, from time to time cases have arisen where the marriage effectively but not legally ended before the death of one spouse, and squabbles arose over who controlled the wrongful death action and whether wrongful death proceeds were recoverable.

The Tennessee General Assembly has weighed in on the controversy. First, Tenn. Code. Ann. Sec. 20-5-110 has been amended to provide that the right to bring a wrongful death case or collect any proceeds is waived if the surviving spouse abandoned the deceased spouse as described in Tenn. Code Ann. Sec. 36-4-101(a)(13) or otherwise willfully withdrawn from the decedent for a period of two (2) years. Section (c) of the statute sets forth more details on the issue, and includes a mechanism for bringing the issue to a head.

May 18, 2013

Tennessee Medical Malpractice Lawsuits Against Governmental Entities and Their Employees and the Notice Statute

by The Law Offices of John Day, P.C.

Tennessee law has a one year statute of limitation in a medical malpractice (now called a health care liability) case. Formal legal notice must be given to health care providers who are going to be sued in the case and this notice must be given before the expiration of the statute of limitations. Notice must be given at least 60 days before suit is filed. If notice is given as required by law, the statute of limitations is extended for 120 days. All of this is spelled out in detail in T.C. A. Sec. 29-26-121..

Thus, if a patient is hurt as a result of a medical error on Day 1, and notice is given on Day 364, plaintiff cannot file suit until Day 425 (60 days after suit was filed) but must file before Day 485 (120 days after the statute of limitations expired), right?

Yes, unless the case is against a health care provider employed by a local government or against the local government itself. The Tennessee Supreme Court has released its opinion in Cunningham v. Williamson Cty. Hosp. District, No. M2011-00554-SC-S09-CV (Tenn. May 9, 2013) and has ruled that the notice statute (T.C.A. Sec. 29-2-121) does not extend the statute of limitations applicable to claims against governmental entities and its employees. Why? Because the Court has ruled that changes in statutes of general application that specifically conflict with the GTLA do not apply to claims against governmental entities unless the General Assembly specifically says they do.

April 27, 2013

Important Medicare Subrogation Decision From the 9th Circuit Court of Appeals

by The Law Offices of John Day, P.C.

The 9th Circuit Court of Appeals has ruled that a private Medicare Advantage Organization plan cannot sue a plan participant’s survivors for reimbursement of medical payments out of the proceeds of an automobile insurance policy.

The case is Parra v. PacificCare of Arizona, No. 11-16069 (9th Cir. April 19, 2013), Parra was struck by car and was seriously injured. His medical expenses were paid by Defendant, a Medicare Advantage Organization ("MAO"). Parra died from his injuries, and his survivors brought a claim under Arizona’s wrongful death law. The MAO also asserted a claim for monies it paid for medical expenses. GEICO, the tortfeasor’s insurer, issued a joint check to the parties for the full amount of the MAO’s claimed interest, to be held in trust pending the outcome of the dispute between the survivors and the MAO.

The survivors sued PacificCare, saying that it had no right to seek recovery of monies from the wrongful death settlement.

April 22, 2013

Claims That Trucking Companies May Have Against Pilot Flying J

by The Law Offices of John Day, P.C.

The news that Pilot Flying J, a company largely if not exclusively owned by Governor’s Haslam’s family and run by his brother, is the subject of a criminal investigation has made a lot of news in the last week. Headquartered in Knoxville, Tennessee, Pilot Flying J has over 600 retail locations and is the largest operator of travel centers and travel plazas in North America. The company is one of the largest privately owned companies in the United States.

The FBI has searched corporate headquarters in Knoxville as well as the homes of several employees of the company. It has been reported that FBI Special Agent Robert H. Root alleged in an affidavit that a “conspiracy and scheme to defraud executed by various Pilot employees to deceptively withhold diesel fuel price rebates and discounts from Pilot customers … for the dual purposes of increasing the profitability of Pilot and increasing the diesel sales commissions of the Pilot employees participating in the fraud.”

Here is the company’s latest press release on the matter. Here is the affidavit in support of the search warrant served on Pilot Flying J.

April 17, 2013

SVMIC – A Prediction on the Future of Defense of Medical Malpractice Cases

by The Law Offices of John Day, P.C.

My last two posts (here and here) have discussed financial and related information about Tennessee’s largest insurer of physicians that I hope is of interest to Tennessee medical malpractice lawyers and patients. Now I am taking out my crystal ball and looking in the future of SVMIC’s defense of medical malpractice cases.

Before I get there, let’s think about Business 101. Businesses exist to produce profit. Profit is the difference between revenue and expense. If revenues exceed expenses, there is profit. If expenses exceed revenues there is a loss. Losses are bad, profits are good. (OK, I told you it was Business 101.)

There are basically two ways that any going concern can increase profit. First, it can increase revenue. Second, it can decrease expenses.

April 16, 2013

SCOTUS Releases Opinion in ERISA Subrogation Case

by The Law Offices of John Day, P.C.

The United States Supreme Court has released its opinion in U.S. Airways v. McCutchen, No. 11-1285 (USSC April 16, 2013), a case that raised the issue of whether "equitable doctrines and defenses," such as the "common fund" doctrine and the "made whole" doctrine applied to subrogation interests governed by the Employees Retirement Income and Security Act of 1974 ("ERISA").

McCutchen was injured in a car accident and received $110,000 in a personal injury settlement – $10,000 from the defendant’s liability insurer and $100,000 from his underinsured motorist insurance carrier. His attorneys’ fees were 40% of the recovery, leaving McCutchen with $66,000. U.S. Airways had paid the medical bills incurred to treat the injuries in the accident, and demanded repayment of 100% of the monies it paid – $66,866. When McCuthen refused to do so, U. S. Airways filed suit in federal court.

The USSC ruled that U.S. Airways had the right to enforce what it called an "equitable lien by agreement." and thus had a right to recover its money notwithstanding any argument that McCutchen was not made whole.

April 13, 2013

State Volunteer Mutual Insurance Company – 2012 Financial and Claims Data- A Follow-Up Post

by The Law Offices of John Day, P.C.

Last week I wrote a post titled " State Volunteer Mutual Insurance Company -2012 Financial and Claims Data" that resulted in an unusual number of emails and phone calls. To those that took the time to reach out and thank me for the information, thank you – I appreciate your efforts.

One caller brought up an excellent point that needs to be shared. I mentioned that I thought SVMIC was seeing an increase in the number of insureds because of increased competition and expanding group practices (if a physician joins an existing group that does not do business with SVMIC the insurer loses an insured). The caller pointed out that another reason for the decline in the number of SVMIC insureds is the fact that more and more doctors are being employed by hospitals. These doctors then fall within the insurance package carried by the hospital, and have no individual need to buy coverage (except perhaps for tail coverage for their prior work history). This phenomena impacts other professional liability insurers as well, but certainly impacts SVMIC given its dominating percentage of the professional liability market for Tennessee physicians.

The other point that people mentioned was the issue of the increasing amount of money spent on defense costs in Tennessee medical malpractice cases. I noted that the company indicated defense costs had increased over fifty percent in the last five years. Remember, this has occurred even though the number of lawsuits filed against the company’s insureds has decreased significantly over the last five years. I cannot share that percentage decline in the number of lawsuits filed against SVMIC insureds in the last five years – I don’t think that information is publicly available. But, in the fiscal year ending June 30, 2012, there were 374 medical malpractice (now called health care liability) cases filed in Tennessee’s circuit courts. Five years earlier, in the fiscal year ending June 30, 2008, there were 537 medical malpractice cases filed in our circuit courts. That is a decrease of 153 cases, a 30 percent decline.