Day on Torts

June 5, 2012

“They Left A Sponge In Me!”

How often are sponges, towels, pads and other foreign objects left in surgical patients? The Doctor’s Company, a medical malpractice insurer, has shared some information that helps us get an idea of the scope of the problem.

The insurer reports that from 2002 through 2011, there were 3,273 surgical claims closed (not including obstetric cases). Five percent involved retained foreign objects, with half of those being sponges, towels, or pads. That means that this one insurer has defended about 160 foreign object claims during the indicated ten-year period.

The insurer admits that the claims are very difficult, if not impossible, to defend.

May 31, 2012

2012 Legislation of Interest to Tennessee Personal Injury Lawyers – Part 2

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

Tennessee personal injury lawyers know that the Tennessee General Assembly is a far different place than it used to be. The Legislature is determined to change the rules of tort litigation for the benefit of defendants and those who would be defendants.

What follows is a second list of legislation enacted during the 2012 session that has been signed by the Governor and is available on the Tennessee Secretary of State’s website. I previously wrote a post about 2012 legislation of interest to Tennessee personal injury lawyers that was available on May 4.

Public Chapter 884: purports to wipe out the liability of car dealerships for loaning cars to certain customers who have proof of insurance.
Public Chapter 902: addresses when punitive damages may be awarded in Tennessee
Public Chapter 907: prohibits children as passengers on motorcycles unless their legs can reach the foot-pegs.
Public Chapter 913: creates a rebuttable presumption that those who sign insurance policy application have read it and that when premium is paid all policyholders accept coverage as stated in policy or amendments thereto.
Public Chapter 922: sets forth duty of landowners to those who are determined to be "trespassers".
Public Chapter 926: sets up statutory scheme to permit defense counsel in health care liability actions to have ex parte communications with plaintiff’s health care providers.
Public Chapter 998: authorizes clerks of court to set up electronic filing system and charge filing fees.
Public Chapter 1046: sets up a statutory scheme requiring courts to make loser of Rule 12 motions pay opposing party’s fees and costs under certain circumstances.
Public Chapter 1108: requires police officers determine whether physical barriers are present at the scene of an accident.

The increased efforts by the Legislature to codify tort law will mean that tort lawyers will be looking to statutory law to determine whether there are limits imposed on the common law or new defenses. This is a pretty significant change for lawyers – historically, most tort law was common law.

May 24, 2012

Tennessee Supreme Court Discusses Federal Preemption and Discretionary Function Immunity Under the GTLA

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

Rarely have so many resources been spent defending a claim that has a maximum value of $300,000, the cap on damages under the Tennessee Governmental Tort Liability Act.

This case already wound its way to the Supreme Court in 2009, with the Court reaching a critical holding on duty in negligence cases. In this Giggers Redux edition, the Supreme Court provides a brief outline for Tennessee state courts to analyze implied federal preemption. More importantly, the Supreme Court makes clear that the GTLA discretionary function exception does not apply to a governmental entity’s decision to reject having a policy and instead leave decisions up to its employees on a case-by-case basis.

Briefly, the case involves a claim for wrongful death under the GTLA. Plaintiffs alleged that Defendant should have evicted a tenant, Assailant, after Assailant was committed an aggravated assault against another tenant. Four years later, Plaintiffs’ Decedent was killed by a stray bullet fired by Assailant.

May 23, 2012

New Tennessee Opinion on Filing Proof Of Service of Summonses Increases Risk on Plaintiff’s Lawyers

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

The Tennessee Court of Appeals recently issued an opinion of interest to every Tennessee personal injury lawyer. The Court of Appeals held in a car accident case that a plaintiff who serves a summons by certified mail must file the return receipt “promptly.” The court did not say what “promptly” means. The failure to do resulted in dismissal of the case.

Plaintiff filed suit within the statute of limitations and had summons issued the same day. There was some dispute as to whether Plaintiff’s process server delivered the summons and complaint to Defendant within 90 days, but the Court of Appeals found that dispute immaterial. Instead, the Court of Appeals affirmed dismissal based on the statute of limitations because Plaintiff filed the returned summons and proof of service more than a year after it was issued.

The Court of Appeals held that, in order for a plaintiff to rely upon the original filing date for the purpose of commencing suit under Tenn. R. Civ. P. 3, the plaintiff must “promptly” return proof of service under Tenn. R. Civ. P. . 4.03(1). Rule 4.03 states:

May 17, 2012

Truisms in Cross-Examination

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

The Cross-Examination Blog is a good blog to add to your reading list. Written by Ronald H. Clark, the blog is filled within helpful information for personal injury and wrongful death lawyers.

The following is from a recent post titled "Truisms in Cross-Examination:"

David Paul Jones’s Rules of Cross-Examination (Jones was a British barrister who wrote a century and a half ago)

May 17, 2012

Attorney Sued for Failing To Protect Subrogation Interest; Ordered to Re-Pay Trust Account Pending Outcome of Case

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

A personal injury attorney may be sued in federal court for the failure to pay a subrogation interest subject to ERISA and required to put money back into his trust account pending the outcome of the subrogation fight.

So holds the United States District Court for the Northern District of Illinois. In Central States v. Lewis, No. 11 CV 4645 (N.D. Il. May 15, 2012a personal injury attorney settled a case for a client and disbursed funds to himself and the client without paying the subrogation interest claimed by Central States. Central States sought a preliminary injunction against the attorney and client to restore the money to the attorney’s trust account so that the plan could proceed with an action against the trust account. The court agreed, and stated that even the attorney’s fee must be restored to the account, even if the attorney has already commingled the monies with other funds.

The Lewis court cited with approval the Longaberger opinion from the Sixth Circuit Court of Appeals, a case familar to all tort practioners.

May 11, 2012

Lawsuits Against John Travolta Are Foolish

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

John Travolta, one of the better known actors in the world, has been hit with two lawsuits alleging that he engaged in sexual misconduct.

The allegations come from two masseurs who, so far, have refused to reveal their names. In one case, the masseuse claims that Travolta solicited sexual conduct with him on January 16, 2012 at the Beverly Hills Hilton. Travolta allegedly began rubbing the masseuse’s leg, touched his scrotum and the shaft of his penis. Travolta adamantly denies the accusations, and has offered proof that he was in New York at the time the alleged incident occurred. Now, the accuser says he got the date wrong, and that the real date was some time earlier.

Here is a copy of the complaint in case. The theories of liability are assault, battery, and intentional infliction of emotional distress.

May 7, 2012

2012 Legislation of Interest to Tennessee Personal Injury Lawyers

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

Tennessee personal injury lawyers know that the Tennessee General Assembly is a far different place than it used to be. The Legislature is determined to change the rules of tort litigation for the benefit of defendants and those who would be defendants.

What follows is a list of legislation enacted during the 2012 session that has been signed by the Governor and is available on the Tennessee Secretary of State’s website as of Friday, May 4, 2012. I know that there are other bills that have been passed but have not yet found their way to the Secretary of State’s site. I will post on those public acts when they become available.

Public Chapter 506 requires that institutions of higher learning do background checks on those who have access to student rooms at those institutions. (This was passed in the last legislative session but I did not include it on last year’s list.)
Public Chapter 518 impacts the defense of "unclean hands."
Public Chapter 539 exempts ambulances for certain requirements imposed on certain medical transportation companies.
Public Chapter 552 creates a cause of action for those injured or otherwise harmed by mislabeled sorghum molasses. Really.
Public Chapter 568 requires that all recreational vehicles available for rental or lease have functioning carbon monoxide detectors and provides that the failure to do so gives rise to civil liability, including payment of attorney’s fees.
Public Chapter 613 creates a cause of action for victims of human trafficking offenses.
Public Chapter 649 allows nursing homes to employ physicians.
Public Chapter 678 provides that physician’s assistants may not be subpoenaed to trial but may be required to give a deposition.
Public Chapter 798 appears to be a house-keeping Act that primarily deletes reference to "medical malpractice" and substitutes the language "health care liability action."
Public Chapter 844 enacts "Jaclyn’s Law," which grants civil immunity to first responders in certain circumstances involving entry into homes.

Public Chapter 862 limits the liability of whitewater rafting companies.

May 4, 2012

Tennessee Comparative Fault Law is 20 Years Old Today!6

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

Today, May 4, 2012, is the 20th anniversary of the landmark McIntyre v. Balentine opinion, the case where the Tennessee Supreme Court adopted modified comparative fault.

All in all, most would say that the comparative fault scheme in Tennessee improved the quality of the civil justice in Tennessee. I agree. For the most part, the Tennessee Supreme Court has done a fine job developing the common law in this important field.

There is one notable exception, although it is not entirely the Tennessee Supreme Court’s fault.

May 2, 2012

Article on T.C.A. Section 20-1-119 and the Mills Decision

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

T.C.A. Section 20-1-119 is one of the most important statutes for those of us who practice personal injury law in Tennessee, and the recent Mills v. Fulmarque opinion issued by the Tennessee Supreme Court has changed the way many people thought about this statute.

Subject to several important limitations, the purpose of section 20-1-119 is to provide plaintiffs with an opportunity to add additional defendants to a case in which comparative fault is an issue, notwithstanding the expiration of the statute of limitations. The Mills court held that section 20-1-119 provides a ninety-day window in which a plaintiff may name a new non-party as a defendant only if the defendant alleging comparative fault against the new non-party was sued within the statute of limitations applicable to the plaintiff’s cause of action.

The Tennessee Bar Association has published an article I wrote on the statute and the MIlls opinion as the cover story for the May 2012 edition of the Tennessee Bar Journal.