Day on Torts

October 14, 2011

Lawyers’ Fight Over Fen-Phen Fees Near End

Two lawyers who have been involved in an arbitration and federal court battle over fees from Fen-Phen cases appear to be at the end of the litigation road.

The Tenth Circuit Court of Appeals recently upheld an arbitration award of over $8 million dollars, finding that one lawyer breached a written agreement to refer Fen-Phen cases to the other. The referring lawyer kept some cases for himself and referred some cases to another lawyer.

The decision in Abbott v. Law Office of Patrick J. Mulligan, No. 10-4113 (10th Cir. Sept. 21, 2011), has little to offer us from a legal standpoint except to remind us how difficult it is to overturn an arbitration award on appeal.

October 13, 2011

Twelve Steps To Avoid Summary Judgment on a Fact Issue

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

Tennessee summary judgment law changed on July 1, 2011 to allow the use of "put up or shut up" motions. (The law only applies to cases filed on or after July 1.) This change will increase the use of summary judgment motions in Tennessee and will probably result in an effort by defendants to file those motions earlier in the case.

Although there will be a constitutional challenge to this legislation, the constitutional issue will not reach the Tennessee Supreme Court for several years. In the meantime, lawyers opposing motions for summary judgment must work hard to marshal the facts necessary to create a genuine issue of material fact (if one can be legitimately created)..

TRCP 56.07 gives a lawyer opposing a motion for summary judgment the opportunity to ask for more time to complete discovery before a summary judgment hearing. Here are the twelve steps you should follow to (a) maximize your chances of putting your case in the posture of not needing to file a Rule 56.07 motion or (b) if a Rule 56.07 motion must be filed, increasing the likelihood that the motion will be granted.

October 12, 2011

Brief Seeking Recovery of Medical Expenses Charges Under Tennessee’s Medical Malpractice Law

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

In medical negligence cases in Tennessee there is often a dispute about whether the plaintiff can recover the amount of the medical charges or the amount actually paid by the private insurer or governmental entity like Medicare. This is a recent brief on the subject prepared by Brandon Bass, a fine lawyer who works with our firm.

It is hard to believe that this issue has not yet been addressed by our supreme court.

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October 11, 2011

The Common Fund Doctrine and Med Pay Claims

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

The Alabama Court of Civil Appeals has ruled that the common fund doctrine applies to the determination of the payment of attorneys’ fees when monies for payments made under medical payments coverage are collected in a personal injury case.

In Mitchell v. State Farm, No 2100184 (Ala. Civ. App. 10/7/11), Mitchell’s attorney thought that State Farm, which paid monies for some of Mitchell’s medical bills, should have its subrogation interest reduced by the amount Mitchell paid the lawyer to recover the money for the benefit of State Farm. The attorney for the plaintiff relied on the common fund doctrine to assert the claim against State Farm.

The Court of Civil Appeals held that the common fund doctrine applied. It then rejected State Farm’s argument that its policy voided any obligation to pay an attorney’s fee for the recovery of the med pay coverage for its benefit. Finally, and perhaps most importantly, the Court rejected the argument that the common fund doctrine was voided by the "active participation" of its lawyer. The Court noted that although State Farm said it didn’t need the plaintiff’s lawyer to collect its money for it, State Farm did nothing to collect the subrogation interest until after the plaintiff’s attorney negotiated the settlement.

October 7, 2011

Tennessee’s New Dog Bite Law Protects Motorcyclists, Too.

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

The old "every dog gets one free bite" rule was severely limited as a result of legislation enacted by the Tennessee General Assembly several years ago. In fact, the new law works to protect motorcyclists and bicyclists, too. Here are the new rules:

44-8-413. Civil liability for injury caused by dogs.

(a) (1) The owner of a dog has a duty to keep that dog under reasonable control at all times, and to keep that dog from running at large. A person who breaches that duty is subject to civil liability for any damages suffered by a person who is injured by the dog while in a public place or lawfully in or on the private property of another.

October 5, 2011

What Is Going Wrong With Patient Safety in Health Care?

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

The Doctor’s Company sells medical malpractice insurance to doctors. In 2010, it conducted 525 patient safety site surveys. The surveys were conducted across a range of practice environments around the country—from small office practices to large integrated delivery systems, hospitals, and outpatient facilities, such as surgery centers.

The survey found that in the 15 categories it surveyed, medical record documentation was the category with the most frequent patient safety/risk management issues. A total of 266 surveys—more than half of the 525 site surveys—had at least one issue related to this category. Top findings within this category included the failure to document allergy status in the same location in each record and the lack of a problem list or a list of current medications.

The research also disclosed that two combined categories—lab tests/referrals and scheduling/follow-up—came a close second with issues in 234 of the surveys. Although the categories are individually ranked fourth and fifth,searchers determined that the they are so closely related that a finding in one typically leads to a finding in the other.

October 4, 2011

Nice Article About “Trial Lawyers Care”

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

"Trial Lawyers Care" was created to help 9/11 victims advocate for benefits from the Victim Compensation Fund. It brought out the best of AAJ and its members.

This article does a nice job explaining the work that was done and the thoughts of some of the participants.

October 4, 2011

The Advice Goddess Takes on the TSA

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

Amy Alkon, the Advice Goddess, had a bad run-in with a TSA agent. Of course, we have no legal right to hold the TSA or its agents accountable for acting like complete and total jerks, so she wrote about her experience. As only a writer could write.

And, God love her, she named the agent.

The agent threatened a lawsuit against her and demanded $500,000. (Read the letter sent by the agent’s lawyer here.)

October 3, 2011

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

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

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.