February 17, 2011

Application of Comparative Fault to Economic Loss

The Missouri Supreme Court has determined that comparative fault principles should apply to cases where the loss suffered by the plaintiff is purely economic.

In Children’s Wish Foundation, International, Inc. v. Mayer Hoffman McCann, P.C., No. SC9094 (Missouri S.C. 2/8/11) plaintiff brought a professional negligence claim against the accounting firm that provided it auditing services and another firm that provided tax services. Defendants persuaded the trial court to charge the jury that any contributory negligence of plaintiff barred its claim. The jury returned a verdict for defendants.

The issue on appeal was whether comparative fault applies in a professional negligence action alleging only economic damage. (Missouri adopted comparative fault in personal injury cases in 1983). Defendants argued that contributory negligence should bar the claim because the relationship between them and the plaintiff was governed by a contract and that contract gave the parties the opportunity to allocate risk of loss.

February 17, 2011

Governor’s Tort Reform Bill Introduced

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

Governor Haslam (R-Tenn.) has introduced his tort reform bill which, among other things, imposes an arbitrary cap on the damages a jury may award for pain, suffering, disability, disfigurement, loss of enjoyment of life, loss of consortium (in both personal injury cases and wrongful death cases). The proposed cap is $750,000.

The stated reason? According to the Times Free Press, the Governor thinks we need to “make sure there aren’t states around us that don’t have more welcoming climates around us than we have.” My guess is that he means that Tennessee needs to more welcoming to those who negligently cause harm as opposed to those who suffer from that harm.

One positive thing can be said for the Governor’s proposal – it is more generous to the maimed and survivors of the dead than that of the Republicans who have sponsored bills in the House and Senate.

February 17, 2011

Ohio Speaks Out on Settlement Proposals Requiring Plaintiff’s Lawyers to Indemnify Opposing Parties

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

The Board of Commissioers on Grievances and Discipline of The Supreme Court of Ohio has released an opinion of the issue of whether, during settlement of a matter, it is ethical for a lawyer to propose, demand, and or agree to personally satisfy any and all claims by third persons as to settlement funds.

Here is the Syllabus of the Opinion 2011-1:

It is improper for a plaintiff’s lawyer to personally agree, as a condition of settlement, to indemnify the opposing party from any and all claims by third persons to the settlement funds. Such agreements are not authorized by Prof. Cond. Rule 1.15(d) and violate Prof. Cond. Rules 1.8(e) and 1.7(a)(2). Further, it is improper for a lawyer to propose or require, as a condition of settlement, that a plaintiff’s lawyer make a personal agreement to indemnify the opposing party from any and all claims by third persons to the settlement funds. Such conduct violates Prof. Cond. Rule 8.4(a). The Board recommends that this advisory opinion be prospective in application.

February 15, 2011

Patients Are Dying From Unheard Alarms

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

The Boston Globe reports that more than 2000 people died in a period of a little more than five years because of issues arising from alarms on hospitalized patients. The cause in many cases: personnel did not notice that the alarms were sounding or ignored them.

From the article:

The Globe enlisted the ECRI Institute, a nonprofit health care research and consulting organization based in Pennsylvania, to help it analyze the Food and Drug Administration’s database of adverse events involving medical devices. The institute listed monitor alarms as the number-one health technology hazard for 2009. Its review found 216 deaths nationwide from 2005 to the middle of 2010 in which problems with monitor alarms occurred.

February 15, 2011

Hot Off the Press: Medical Malpractice and the President

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

From the AP at 1:43 PM EST on 2/15/11

Obama starts drive for medical malpractice reforms

WASHINGTON — Putting his own stamp on a long-standing Republican priority, President Barack Obama is launching a drive to overhaul state medical malpractice laws and cut down on wasteful tests doctors perform because they fear lawsuits.

Obama’s budget calls for $250 million in Justice Department grants to help states rewrite their malpractice laws in line with recommendations that his bipartisan debt reduction commission issued last year.

February 14, 2011

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

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

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.