Day on Torts

February 14, 2011

Mississippi Supreme Court Strikes Jury Verdict for Plaintiff Because of Failure to Supplement Expert Witness Disclosure

Plaintiff’s accident reconstructionist (Webb) in an auto defect case was deposed about his proposed testimony. Thereafter, Webb signed an errata sheet that changed four of the variables he used to make his calculations. Among the changes were a change in the angle of the subject vehicle from 22 degrees to 44 degrees and an increase in the closing speed of the vehicle from 68 miles per hour to 78 miles per hour. He said these changes did not alter his ultimate conclusion on the change of velocity (delta-v) experienced by the vehicle occupants (35 miles per hour). The plaintiff did not supplement interrogatory responses concerning the expert’s testimony but simply sent the errata sheet to the defense.

The defense denied receiving the errata sheet. The defense expert testified that the delta-v was between 55 and 67 miles per hour. All parties agreed that a crash is not survivable with a delta-v in excess of 50 miles per hour.

At trial the expert said he completed the errata sheet because he realized after his deposition that he had made some mistakes in his analysis. He did not claim that the court reporter made an errors or that the changes were made to clarify his testimony.

February 11, 2011

Adjuster v. Lawyer

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

This video demonstrates the struggles that defense lawyers have with some claims adjusters.

February 10, 2011

Hospitals Fail to Follow-Up on Test Results

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

A new study reveals that as many as 75 percent of hospital tests are not followed up and this failure can have serious consequences for patients, including delayed or missed diagnoses and even death.

The study is a "study of studies," and looked at 12 international studies. The work showed that between 1% and 75% of tests run on ER patients were not followed up after the patients were discharged. For inpatient tests the rate was 20% to 65%.

The study is published in the Feb. 8 edition of the journal BMJ Quality and Safety.

February 9, 2011

Doctor Turned Congressman Has A History of Malpractice Cases

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

Here is an interesting story from the New York Times.

Malpractice Bill Raises Issues About a Lawsuit
By BARRY MEIER
Published: February 8, 2011

The lawmaker and retired obstetrician sponsoring a Congressional bill to sharply cut medical malpractice awards was involved in a $500,000 settlement of a malpractice lawsuit. The action was brought by a pregnant woman who charged that inappropriate care caused the loss of her fetus and other complications.

February 8, 2011

Adverse Event Protocol in Anesthesia

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

The Anesthesia Patient Safety Foundation has released this Adverse Event Protocol discussing what should be done when things go bad for a patient receiving or who is under anesthesia.

As the author of the plan explains, the "plan of action will help minimize damage to the patient (and also to the involved practitioners) as well as promote understanding and learning that will help prevent recurrence or repetition of the adverse event."

This is a very good piece of work by the APSF and they are to be commended for creating it.

February 1, 2011

Discovery Of an Expert’s Income From Testifying

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

The Appellate Division of the Superior Court of New Jersey has ruled that an expert should not be required to reveal details about his income from testifying as an expert witness.

In Gensollen v. Pareja, No. A-0401010T3, (N.J.A.D. 11/19/10), doctor who examined the plaintiff in a personal injury case admitted in a deposition that over 95% of his litigation work was for defendants. He also testified that testified that he conducted an average of eight to nine IMEs per week. He also testified that his two doctor orthopedic firm charges a fee of $895 per exam, but would impose additional charges depending on the extent of records and x-ray or MRI studies reviewed in a given case.

Plaintiff wanted more data to show bias, and the trial judge ordered defendant to produce, at his own cost, (a) documentation indicating the percentage of the firm’s findings in the past five (5) years that supported the premise that plaintiff suffered no type of permanent injury, (b) documentation indicating the percentage of the firm’s work that is defense related and the percentage of his work that is plaintiff related; and (c) documentation indicating what monies in the past five (5) years have been paid by defense attorneys to the firm for conducting medical exams.

January 27, 2011

Preventing and Management of Operating Room Fires

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

The Anesthesia Patient Safety Foundation has created a video that discusses how to prevent and manage fires that occur in the operating room.

The video is 18 minutes long and was released in February 2010.

Here is what the organization says about operating room fires:

January 27, 2011

Lies, Damn Lies and Medical Malpractice Reform

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

Tennessee consumers injured by medical negligence are facing a full assault on their right to trial by jury. Some members of the new General Assembly seem hell-bent on placing arbitrary caps on damages, notwithstanding the fact that medical malpractice lawsuits are down over 40% and malpractice insurer profits are soaring.

Max Kennerly, one of my favorite bloggers, has a great post on similar efforts in Congress. Here is an excerpt:

Even if we put aside the fact that, for every dollar spent on compensating the victims of medical negligence, more than $5 dollars in damage was caused by medical negligence, it bears repeating that the overall costs of compensating injured patients is so small that it the medical malpractice liability system does not restrict access to health care. Similarly, malpractice lawsuits have not been shown to change of physician behavior — so-called “defense medicine” — even in high-risk, high-liability cases like obstetricians’ decisions to perform c-sections when the baby shows signs of fetal distress.

January 26, 2011

2010 Medical Malpractice Reports Due March 1, 2011

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

The Tennessee Department of Commerce and Insurance has put the medical malpractice case reporting form on its website. The reports must be filed on or before March 1, 2011.

Plaintiff’s medical malpractice attorneys who concluded a case in 2010 must complete this form.

January 25, 2011

Improper Closing Argument on Uncalled Witness Constitutes Reversible Error

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

The Oregon Supreme Court has ordered a new trial in a case where defense counsel’s closing argument included a discussion of the testimony of an expert who never testified at trial. The majority and dissenting opinions collect law from across the country on this issue and provide a gold mine of information for lawyers facing a similar issue.

You read that correctly. In Cler v. Providence Health System -Oregon, SC S056715 (Ore. SC 12/30/10), plaintiff’s counsel remarked in closing argument that defense counsel did not call any independent nurse as an expert witness in support of its case. In return, and over plaintiff’s counsel’s objection, defense counsel said this (among other things):

[The defense oncology nurse expert] was here [on the firth day of trial] prepared to testify in the afternoon. She sat in the courtroom all afternoon, and she didn’t get on because [plaintiffs’ counsel] was calling Mr. Cler in the afternoon. She had to leave on the following day. She got on a plane. She was scheduled to go on vacation. That’s why you didn’t hear from [her]. She was prepared to be here. She sat in the courtroom all that afternoon, and again, she was prepared to testify and would have testified in our case and supported our case." [Footnotes in opinion omitted.]