Day on Torts

November 15, 2012

Illinois Supreme Court Recognizes Claim For Invasion of Privacy and Holds Employer Responsible For Acts of Non-Employee Private Investigator

The Illinois Supreme Court has issued an opinion in Lawlor v. North American Corporation of Illinois, Case No. 112530 (Oct. 18, 2012), holding that (a) the tort of intrusion upon seclusion is recognized in Illinois and (b) held that an employer liable for the torts of a non-employee private investigator because the investigator was acting as the employer’s agent.

Defendant North American hired a private investigator to determine whether Lawlor, a former employee of North American, had violated a covenant not to compete contained in her employment contract with the company. The private investigator assessed the Lawlor’s cell and home telephone records without her permission, causing her emotional distress.

The Court first recognized that existence of a tort that had never been expressly recognized by the High Court in Illinois. The Court adopted Section 652B of the Restatement (Second) of Torts, which provides as follows: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”

October 29, 2012

Kidney Transplant Doner Does Not Have Malpractice Claim Against Kidney Donee’s Doctor

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

The Nebraska Supreme Court has held that the doctor for a kidney donee does not owe a duty to the kidney donor. Thus, when the donee’s doctor allegedly committed malpractice when treating the donee, rendering the donor’s kidney useless, the donor cannot sue the donor’s doctor.

In Olson v. Wren shall, 284 Neb.445 (Oct. 5, 2012), Sean Olson agreed to give a kidney to his dad, Daniel. The initial surgery went fine, but complications later developed. Allegedly, a medical error caused the death of the donor’s kidney in the do nee and it had to be removed.

The donor and his wife sued the Donne’s doctors, seeking damages for the errors committed on do nee that resulted in the loss of the donor’s kidney. The trial court dismissed the case, finding that the Donne’s doctors (who did not remove the kidney from donor) did not owe a duty a care to the donor. The trial court also ruled that no legally cognizable damages were suffered by donor and his wife as a result of the alleged malpractice.

October 16, 2012

Medical Malpractice Victims: Denied Access to Justice

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

It happens almost every day. I receive a call from a person claiming that they have been injured by the act or omission of some health care professional and I have to tell them I can’t help them because the damages suffered to not justify the time and expense of a medical malpractice case.

This has always been a problem, but has gotten worse with tort reform legislation in Tennessee. Caps on damages further restrict access to the courts.

Those in academia are paying attention. Torts Prof recently wrote about a new article by Joanna Shephard tiitled ""Justice in Crisis: Victim Access to the American Medical Liability System."

October 14, 2012

Fungal Meningitis Outbreak: Tort Reform Legislation Sponsor Still Doesn’t Get It.

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

I recently wrote about a few of the ways the tort reform legislation that hit Tennessee effective October 1, 2011 will impact the victims of the fungal meningitis outbreak.

Heidi Hall of the Tennessean talked to one of the sponsors of the tort reform legislation. This is what he said:

Sen. Jack Johnson, R-Franklin, said he stands by the need for it to attract companies and jobs to Tennessee — even though now at least 52 have been sickened in the state by the outbreak, and six of those cases resulted in death.

October 13, 2012

Fungal Meningitis Outbreak: Do Those Who Received Contaminated Steroids But Who Do Not Get Fungal Meningitis Have A Claim for Damages Under Tennessee Law?

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

The fungal meningitis outbreak will result in four different classes of those with claims for damages against those who are responsible for the harm: (1)those who die; (2) those who contract the disease and are treated with no long-range effects; (3) those who contract the disease, are treated, but are left with long-range effects; and, (4) those who learn they were exposed to the contaminated product but never contracted the disease. (Note: I understand this is a simple breakdown and that in fact there will be several sub-groups within one or more of these groups.)

Do the people in the last grouping have a claim for damages under Tennessee law? That is, if a person can prove that he or she was exposed to the contaminated product, knew of the exposure, experienced understandable emotional distress after he or she learned of the exposure, is there a claim for damages under Tennessee law?

I believe the answer to that question is "yes." The case I turn to for support of this opinion is Carroll v. Sisters of St. Francis Health Services, Inc., 868 S.W.2d 585 (Tenn. 1993). The issue in Carroll was whether a plaintiff may recover damages for negligent infliction of emotional distress, based on the fear of contracting the Acquired Immunodeficiency Syndrome (AIDS), without presenting evidence that he or she was actually exposed to the human immunodeficiency virus (HIV or the AIDS virus) The Court answered this question "no" and dismissed the case.

October 11, 2012

Understanding Basic Medical Tests

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

Those of us who are medical malpractice lawyers or personal injury lawyers spend some time every day learning some aspect of medicine. Like most of you, I am always on the lookout for good websites that will help me learn some aspect of medicine that will help me help my clients.

Let me a share a good one with you. The "Stanford 25" is a website that helps medical students understand how to perform 25 common train physicians to glean diagnostic information without technology to augment the information gathered by technology.

The "Stanford 25" includes information on thyroid examinations, gait abnormalities, pulmonary examinations, and more. For example, here is the explanation on the fundoscopic exam.

October 7, 2012

Fungal Meningitis, Tort Reform, and Damages in Tennessee Personal Injury and Wrongful Death Cases

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

The fungal meningitis outbreak discovered in Nashville and now spread to other states (Minnesota, Ohio, Florida, North Carolina, Indiana, Michigan, Virginia and Maryland) will shed new light on compounding pharmacies and epidural steroid injections. But it will also shed a light on the tort reform statutes that placed limitations on the amount of money that wrongdoers have to pay when their conduct kills or injures a human being.

Usually, the effects of tort reform remain hidden, known only to the those who get harmed and find out their rights are limited, the legal community, and of course those members of the business and insurance communities who persuaded the General Assembly to pass the laws. But now that we have a tragedy that is in the national spotlight, millions of people will come to know that the Tennessee General Assembly does not permit Tennesseans to put a value on human life or on suffering or pain. Rather, the value of those losses has been arbitrarily capped by lobbyists and business interests.

In other words, the public will soon find out that tort reform will provide yet another harm to the victims of fungal meningitis and their families.

October 6, 2012

Who Has Legal Liability Arising From the Fungal Meningitis Outbreak?

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

The fungal meningitis outbreak continues to grow. Five patients have died and over 40 other patients have contracted fungal meningitis, reportedly after each of them received the steroid methylprednisolone acetate compounded by the New England Compounding Center ("NECC"). Each of the patients received the steroid as treatment for chronic back pain.

Allegedly, the steroid injections were contaminated with a fungus that led to meningitis, an infection of the lining of the brain and spinal cord. Fungal meningitis is very rare and presents a real risk of death to the patients who contract it.

Who has legal responsibility for this outbreak? There is a substantial amount of investigation that must be done to fully answer that question. The Centers for Disease Control is coordinating the multi-state investigation into the fungal meningitis outbreak and will help get to the bottom of the matter from a scientific standpoint. At this point, the CDC has not definitively demonstrated that the steroid is the source of the infection and, while that level of certainty is not necessary from a legal standpoint (in Tennessee, a victim or a victim’s family would only have to prove that more likely than not the steroid was the source of the infection) the CDC’s work will undoubtedly be of assistance in this matter.

October 4, 2012

Plaintiff’s Claim of Damages for Pain and Suffering Do Not Open Door to a Rule 35 Psychological Examination

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

The Montana Supreme Court has ordered that a trial court may not order a Rule 35 psychological examination of a personal injury plaintiff who has asserted a typical pain and suffering claim.

In Lewis v. 8th Judicial District, OP 12-0401 (Mont. S. C. Sept. 11, 2012) Lewis brought a claim for damages arising after she hit by a car while crossing the street as a pedestrian. Lewis did not claim damages for any mental or psychological disorder or injury due to the accident, nor did she claim that a pre-existing mental condition was exacerbated by the accident or assert an independent tort claim for negligent infliction of emotional distress. Rather, she made only a general claim for "emotional pain, suffering and anxiety" associated with her physical injuries from the accident.

Lewis maintained that the motor vehicle/pedestrian accident is solely responsible for her current and continuing issues with pain. However, a physician who examined Lewis on behalf of State Farm questioned whether her chronic pain may be caused or exacerbated by her preexisting mental health issues.

October 4, 2012

SCOTUS Takes Medicaid Subrogation Case

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

The United States Supreme Court has agreed to consider E.M.A. ex rel. Plyler v. Cansler, 674 F.3d 290 (4th Cir.2012), in which the 4th Circuit Court of Appeals said that North Carolina’s one-third cap on the state’s recovery against a Medicaid recipient’s settlement proceeds as provided in its third-party liability statutes, which inherently raised unrebuttable presumption in favor of the state that allocation of one-third of a lump sum settlement was consistent with federal law, violated anti-lien provision in federal Medicaid law.

The Court said that

As the unanimous [Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006)] … decision makes clear, federal Medicaid law limits a state’s recovery to settlement proceeds that are shown to be properly allocable to past medical expenses. In the event of an unallocated lump-sum settlement exceeding the amount of the state’s Medicaid expenditures, as in this case, the sum certain allocable to medical expenses must be determined by way of a fair and impartial adversarial procedure that affords the Medicaid beneficiary an opportunity to rebut the statutory presumption in favor of the state that allocation of one-third of a lump sum settlement is consistent with the anti-lien provision in federal law.