Day on Torts

October 3, 2011

He Killed His Momma But Is Permitted to Sue His Psychiatrist?

Sounds outrageous, doesn’t it? A guy kills his mother and then the Georgia Supreme Court says he has a right to sue his psychiatrist for inappropriate psychiatric treatment that gave rise to the death of his mother.

It is outrageous only if you know nothing about either law or medicine.

Psychiatrists are trained to help people who have mental illness (duh). Some psychiatrists are good. Some are bad. Some good psychiatrists will, from time to time, fall below the standard of care and cause harm to a patient.

September 27, 2011

What Would The State Of Tennessee’s Liability Be If The Indiana State Fair Tragedy Happened in Nashville?

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

There has been lots of discussion about those responsible for the tragedy that occurred on August 13, 2011 at the Indiana State Fair, where multiple people died and many others were injured after a stage collapsed at a concert. At last count, seven people died and another 40 people were injured in the collapse.

The Governor and the Attorney General of the State of Indiana stepped up and said that even though the horrific tragedy was a "fluke event" the State would pay $5,000,000 to the victims. Why $5,000,000? That is the cap on damages for claims against the State of Indiana provided by statute. The damages cap put in place by the Indiana Legislature has not been updated since 2003. No single victim can receive more than $700,000 under the law.

To be sure, the Indianapolis Star reports efforts are going to be made to increase the cap. And perhaps that will be done – it happened in Minnesota several years ago when the I-35W bridge collapsed, killing 13 and injuring another 100 people.

September 18, 2011

General Contractor Liability for Subs

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

Interested in the circumstances under which a general contractor can be held liable for the acts of a sub-contractor? Here is my article on one aspect of the subject in the TBA Journal.

September 9, 2011

Insurance Agent: Professional or Salesperson?

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

The California Court of Appeals explored the issue of the responsibility of an insurance agent is the case of Williams v. Hilb, Rogal & Hobbs Ins. Services of California, Inc., 177 Cal.App.4th 624, 98 Cal.Rptr.3d 910 (2nd Dist. 2009).

Insurance agents like to argue that they do not have a duty to advise a client that it should procure additional or different insurance coverage. However, the Williams case makes it clear that when an agent assumes additional duties by holding himself out as an expert he can be held liable for not procuring appropriate coverage.

This just makes sense. Most folks rely on their agent to tell them what coverage they need, particularly in the commercial insurance field, but also in the consumer area. Agents are in a far better position than potential insureds to know what types and amounts of insurance coverage should be in place. To be sure, the agent cannot force a client to buy any type of coverage (just like a lawyer cannot force a client to follow his or her advice or a doctor cannot force a patient to stick to a diet) but the notion that insurance agent’s are nothing but salespeople is an outrage.

September 9, 2011

CCL Wins Victory in Louisana – Med Mal Damages Caps Declared Unconstitutional

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

AAJ received good news today regarding a case that was argued in the 14th Judicial District Court of Louisiana by the Center for Constitutional Litigation and Louisiana lawyer Oliver Schrumpf. CCL has worked on the case (Arrington v. Galen-Med, Inc.) for about four years, with support from AAJ and the Louisiana Association for Justice.

The court declared Louisiana’s $500,000 cap on all damages in medical malpractice cases unconstitutional as a violation of the state constitution’s equal protection and adequate remedy guarantees. The Louisiana cap is the most severe cap in the United States.

The court also found that there was no correlation between medical malpractice lawsuits and any crisis in insurance for doctors or the availability and affordability of health care.

September 8, 2011

Florida Supreme Court to Evaluate Constitutionality of Damage Cap in Medical Negligence Cases

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

The Florida Supreme Court has agreed to determine whether a limit on noneconomic damages in medical malpractice cases violates the state’s constitution. The law was passed in 2003 as part of a Republican-led effort to limit the rights of medical malpractice victims. The damages cap in Florida is $500,000 per claimant and practitioner with an aggregate cap of $1,000,000.

Here are the facts of the case as reported by FJA:

In June 2005, Michelle McCall began receiving prenatal medical care at a United States Air Force clinic as an Air Force dependent. On February 21, 2006, test results revealed that Ms. McCall’s blood pressure was high, requiring labor be induced immediately. Ms. McCall remained at the family practice department instead of being transferred to the OB/GYN department. When it was determined that Ms. McCall would require a cesarean section, an Air Force obstetrician was called. Unfortunately, he was unavailable, so the family practice department opted to wait and deliver the child vaginally instead of calling another doctor.

September 7, 2011

Kentucky Jury Throws Out Claim of Wrongful Penis Amputatiion

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

Insurance Journal reports that a Kentucky jury has sided with a physician who is alleged to have amputated a portion of his patient’s penis without the patient’s consent.

The article states that "[t]he doctor said he decided to amputate less than an inch of the penis after he found potentially deadly cancer during surgery in 2007. The rest of the penis was taken off later by another doctor. [The defendant doctor] testified that when he cut the foreskin, the tip of the penis had the appearance of rotten cauliflower, indicating cancer. A pathologist later testified that tests confirmed the diagnosis."

The plaintiff argued that the doctor should have allowed the patient to wake up from the procedure and determine whether he wanted the amputation. He alleged that he only gave consent for a circumcision. He also alleged negligence in performing the procedure.

September 6, 2011

Government Cannot Be Sued For Emotional Distress Suffered By Mother Who Was Mistakely Told Her Solider Son Was Dead

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

The Federal Tort Claims Act does not permit a mother who was mistakenly told that her son (a solider ) was dead to sue for emotional distress.

Ms. Nabjur sent her son a letter and it was returned with a red stamp bearing the word "DECEASED." (Isn’t that nice?). The good news: her son was still alive. The bad news: it took some time to figure that out. She sued the government for negligent and intentional infliction of emotional distress and negligence per se.

The United States Court of Appeals for the Eighth Circuit affirmed dismissal of the claim, holding that the government was immune from this type of suit. What barred the claim? The FTCA’s waiver of sovereign immunity does not apply to "[a]ny claim arising out of . . . misrepresentation," 28 U.S.C. § 2680(h), or "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter," 28 U.S.C. § 2680(b). Thus, the government successfully argued that Najbar’s claims arose out of either a misrepresentation (i.e., my son was alive when you told me he was dead), or lost, miscarried, or negligently transmitted mail.

September 4, 2011

Liability of A General Contractor for the Acts of a Subcontractor

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

The Tennessee Bar Association published my column, Day on Torts, on September 1, 2011. The title of this column is "Who Should Get Burned by Bruce’s Torch?".

An excerpt:

Independent contractors are not considered employees. The general rule is that one who employs an independent contractor is not liable for the negligence of the contractor. This rule “is so riddled with exceptions that it is only applied when the courts cannot find a good reason to ignore it,” and a case on the court’s Sept. 1 oral argument docket provides another opportunity for common sense and sound public policy to trump the general rule. [Footnote omitted.]

August 29, 2011

Proposed 2012 Changes to the Tennessee Rules of Procedure and Evidence

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

The Tennessee Supreme Court has circulated for public comment changes to the rules of evidence and procedure.

If adopted by the Court and approved by resolution in the 2012 General Assembly, the proposed rule changes will go into effect July 1, 2012.

A couple changes are of particular interest to tort lawyers. First, there is a proposal to amend TRCP 12.06 to extend the time to file motions to strike. Second, changes have been suggested to Rule 45 to put receipents of subpoenas on notice of the 14-day deadline for lodging objections. Third, several changes to the rules of appellate procedure have been suggested.