Day on Torts

December 6, 2010

Surveillance Videos Admitted Into Evidence Despite Claim of Unfair Prejudice

The United States Court of Appeals for the Fifth Circuit has ruled that a trial judge appropriately admitted surveillance videos of the plaintiff into evidence. The videos were taken in a case where the quality of life of the plaintiff after the accident was "hotly disputed." The videos showed the plaintiff engaged in activities at casinos, but were admitted despite an objection under FRE 403 that the probative value was outweighed by the danger of unfair prejudice that some jurors might consider his gambling immoral.

The Court explained that the plaintiff’s “post-accident quality of life was hotly disputed, and plaintiff’s witnesses testified in detail regarding the allegedly severe post-accident limitations plaintiff faces, including the inability to count money, make change, or be in crowds,” and thus concluded that the video’s probative value of his casinos visits “contradict[ed] these statements” and that this “weighs heavily against a hypothetical juror’s moral aversion to gambling.”

The case is Baker v. Canadian National / Illinois Central R.R., 536 F.3d 357 (5th Cir. 2008).

December 1, 2010

Drugs and Drivers

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

The National Highway Traffic Safety Administration (NHTSA) has reported that post-mortem testing has demonstrated an increase in the level of drug involvement among fatally injured drivers over a five-year period from 2005 to 2009.

According to data compiled by NHTSA, 63 percent of the 21,798 drivers who were killed in motor vehicle crashes in 2009 were tested for drugs. Of these, 3,952 tested positive for drug involvement, representing 18 percent of the total for that year. The report also showed drug use reported by the states among fatally injured drivers increasing from 13 percent in 2005, to 15 percent in 2006, 16 percent in 2007, and 18 percent in 2008. Drug involvement does not mean the driver was impaired or that drug use was the cause of the crash.

The drug data was collected by NHTSA as part of its Fatality Analysis Reporting System (FARS) and included information collected from the states under three broad categories: whether the driver was tested, the type of test conducted, and the test results. The types of drugs recorded in FARS include narcotics, depressants, stimulants, hallucinogens, cannabinoids, phencyclidines (PCPs), anabolic steroids, and inhalants. The groups include both illicit drugs, as well as legally prescribed drugs and over-the-counter medicines.

November 29, 2010

NY Times: “Study Finds No Progress in Safety at Hospitals”

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

The November 25, 2010 New York Times has reported on a study that has found that no progress has been made at improving patient safety in hospitals.

The study is reported in last week’s New England Journal of Medicine. It was conducted from 2002 to 2007 in 10 North Carolina hospitals, found that harm to patients was common and that the number of incidents did not decrease over time. The most common problems were complications from procedures or drugs and hospital-acquired infections.

As the author explained,

November 18, 2010

Thoughts on Mediation

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

Mediation is an important part of personal injury and wrongful death litigation. Indeed, my only significant quarrel with mediation is that defendants often refuse to engage in any settlement negotiations in significant cases without a formal mediation. I still remember the days where lawyers could actually engage in settlement negotiations without having to pay for the services of a mediator.

Karen Koehler, a personal injury lawyer in Seattle, writes a blog called "The Velvet Hammer." Here is an interesting post she has written about mediation: "Tips for Attorneys: Mediation Meanderings."

An excerpt:

November 17, 2010

AAJ Seminar on Changes to Medicare Subrogation Reporting Rules

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

AAJ Education’s Breaking News in Medicare Secondary Payer Requirements: Moratorium on Reporting Teleseminar, November 23, will give you the breaking news and latest on Medicare Secondary Payer reporting requirements, the Bradley v. Sebelius 11th Circuit decision, what the moratorium means, and what happens next. To view the agenda and faculty, and to register, go to www.justice.org/education/medicare or call 800-622-1791 or 202-965-3500, ext. 8612.

November 15, 2010

Preparing for Oral Arguments in the Appellate Courts

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

Jay O’Keeffe has a written a great post called "10 Things I Wish I’d Known Before My First Oral Argument." An excerpt:

3. Anticipate hard questions.

As soon as I start working on an appeal, I create a document called "Tough Questions." This document includes every hard question I can think of, regardless of whether I can answer it. I update it constantly through the briefing and oral argument process. The goal is to anticipate every hard question the Court can throw at you, and prepare–and practice–your best answer.

November 15, 2010

Medicare Reporting Rules Temporarily Abated

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

Hot off the press this morning from AAJ:

As all of you are aware, the Centers for Medicare & Medicaid Services’ (CMS) implementation of the Section 111 reporting requirements of the Medicare Secondary Payer Act (MSP) for liability settlements and the penalties associated with improper lien resolution has created turmoil and delay for anyone trying to reach a settlement in any liability case.

After several months of working with the Department of Health and Human Services (HHS) and CMS, we are pleased to inform you that today CMS is announcing a one year delay in implementation on Section 111 reporting requirements for claims involving liability insurance, retroactive to October 1, 2010 through October 1, 2011. This delay should facilitate settlements and allow for faster resolution of certain cases. In addition, we believe that during this period, CMS will suspend the issuance of MSP guidance documents, which have often been contradictory and a source of confusion.

November 13, 2010

Justice Programs Seminar in Nashville on November 18 and 19

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

Our Justice Programs seminar series will be held on Nov. 18 and 19 in Nashville. Former Tennessee Supreme Court Justice Penny White, Court of Criminal Appeals Judge Joe Riley, and I also will present the two-day programs in Memphis (Dec. 9 and 10) and and Knoxville (Dec. 2 and 3) . Each program provides the fifteen (15) hours required CLE and includes four (4) hours of ethics/professionalism/dual credit on Friday afternoon. You may register for both days (all 15 hours), one and a half days (11 hours), or the Friday afternoon ethics program (4 hours).

Here is what is on the agenda

Tort Law / Comparative Fault – John Day

November 12, 2010

Tennessee Medical Malpractice Statistics – Successful Claims Against Physicans

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

The United States Department of Health and Human Services maintains a databank of individuals who have had medical malpractice settlements or judgments

The National Practitioner Data Bank (NPDB) and the Healthcare Integrity and Protection Integrity Data Bank (HIPDB) are information clearinghouses created by Congress to improve health care quality and reduce health care fraud and abuse in the U.S. Collectively, the NPDB and HIPDB are referred to as the Data Bank.

The Data Bank collects information on and maintains reports on the following:

November 11, 2010

State Volunteer Mutual Insurance Company’s Profits Explode

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

Yesterday I reported that SVMIC, the bedpan mutual that insures the vast majority of Tennessee doctors, reduced its rates by 23.1% . I also reported that the company declared a $20,000,000 dividend. The net effect of the dividend means that policyholders with a history of no paid claims will receive another 8% reduction (or so) in rates effective May 15, 2010.

How can SVMIC cut rates so dramatically while paying the highest dividend it has paid in years? There are two reasons. First, as a result of the tort reform passed effective October 1, 2008 (revised effective July 1, 2009) claims have decreased substantially. Fewer claims means reduced claims handling costs, defense fees, court reporter and other litigation fees, and claims payments. Since the law permits insurers to "write off" reserves as they are established, fewer claims means that reserves are lower than these would have otherwise been had there been more claims. A decrease in the need to set aside money in reserves for these "absent" claims increases net income.

And how it has increased. In 2009, SVMIC had a net income (after taxes) of a whopping $71, 968,000, an increase of over 100% from a year earlier.