Day on Torts

October 4, 2010

Important Medicare Subrogation Decision

The United States Court of Appeals for the Eleventh Circuit has ruled that Medicare is not entitled to rely on its field manual and argue that a subrogation interest be reduced under a "made whole" type of analysis only if a judgment is entered in the case.

In Bradley v. Selbelius, plaintiff settled a wrongful death case for policy limits, $52,500, and put Medicare on notice of the settlement. Medicare asserted a $38,000+ lien, less procurement costs. Plaintiff filed suit in the probate court and asked the court to determine the value of the case and the amount that needed to be re-paid to Medicare. Medicare refused to participate.

The trial judge ruled that the value of the case exceeded $2,500,000 and that Medicare’s reimbursement should be cut to $787.50. Medicare refused to recognize the probate court’s decision, saying that its field manual provided that it need not rely on a court order allocating proceedings unless the court order was based on the merits of the controversy. The estate paid Medicare under protest, exhausted its administrative remedies, and then filed suit in federal court.

October 3, 2010

NEJM Editor Asks: Is Academic Medicine for Sale?

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

Those of us who represent victims of medical negligence and dangerous, defective drugs and medical devices know that a significant percentage of so-called "medical research" is nothing more than fodder prepared to help health care providers and doctors win lawsuits or help manufacturer’s reps sell product. All to often, jurors gobble up the phony information, always assuming that no respectable professional would engage in such conduct and no respectable publication would print it.

It appears that Dr. Marcia Angell, MD., the first woman to serve as Editor of the New England Journal of Medicine. has the same concerns. In an editorial titled "Is Academic Medicine for Sale?," Angell said as follows:

What is wrong with the current situation? Why shouldn’t clinical researchers have close ties to industry? One obvious concern is that these ties will bias research, both the kind of work that is done and the way it is reported. Researchers might undertake studies on the basis of whether they can get industry funding, not whether the studies are scientifically important. That would mean more research on drugs and devices and less designed to gain insights into the causes and mechanisms of disease. It would also skew research toward finding trivial differences between drugs, because those differences can be exploited for marketing. Of even greater concern is the possibility that financial ties may influence the outcome of research studies.

September 30, 2010

Electronic Service of Papers Now Permitted in State Court

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

The Tennessee Rules of Civil Procedure have been amended to permit pleadings, motions, discovrey and briefs to be served via email. Here is the new rule:

Here is the text of Rule 5.02(2):

(a) Service upon any attorney may also be made by sending him or her the document in Adobe PDF format to the attorney’s email address, which shall be promptly furnished on request. The sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule. On the date that a document served under this rule is electronically sent to an attorney, the sender shall send by mail, facsimile or hand-delivery a certificate that advises that a document has been transmitted electronically. The certificate shall state the caption of the action; the trial court file number; the title of the transmitted document; the number of pages of the transmitted document (including all exhibits thereto); the sender’s name, address, telephone number and electronic mail address; the electronic mail address of each recipient; and the date and time of the transmission. The certificate shall also include words to this effect: "If you did not receive this document, please contact the sender immediately to receive an electronic or physical copy of this document." The certificate shall be sent to all counsel of record.

September 28, 2010

Medical Errors

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

This article from Newsweek reveals some interesting information on medical errors.

An excerpt:

Undoing a culture is hard, especially one steeped in hierarchy and intimidation, where doctors tend to reign supreme and nurses, pharmacists, and technicians fall into the ranks below. “What underlies it is arrogance,” says Pronovost, an anesthesiologist and director of Hopkins’s Quality and Safety Research Group. In his book he describes a run-in with a surgeon who refused to switch from latex to non-latex gloves during a hernia operation, despite Pronovost’s concern that the patient was having a potentially fatal latex-allergy reaction. It was only after a nurse picked up the phone to call the hospital president that the surgeon relented. “This patient,” Pronovost writes, “could have died from ignorance and arrogance—a lethal combination.”

September 26, 2010

Data on Tennessee Hospitals

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

Bill Leader reminded me the other day that you can access detailed information about Tennessee hospitals from the Tennessee Department of Health Website. Here is the site.

There is a 40 + page PDF of information on each hospital. Here is a list of the types of data for each hospital:

Identification

September 26, 2010

Bill Haslam’s Health Care Commercial

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

Bill Haslam is the Republican nominee for Governor of Tennessee. I have never met the gentleman, but my friends who have say he is friendly and bright.

Mr. Haslam’s latest television commercial calls for Tennesseans to address problems in health care, asking for more personal responsibility and tort reform in the scope of five seconds.

Readers know that since at least 1975 "tort reform" has been advanced to protect doctors and hospitals from personal responsibility for their actions. Through damage caps, artificial restrictions on who can testify as an expert, modification of the collateral source rule, and other measures, legislatures across the country have actively worked to reduce the personal responsibility of health care providers that harm patients.

September 24, 2010

Per Diem Arguments

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

Justice William C. Koch referenced an article by Joseph H. King, Jr. about per diem arguments in his concurring opinion in Elliott v. Cobb, W2009-00961-SC-S09-CV (Sept. 23, 2010). Elliott recognized that lawyers in medical malpractice cases tried in Tennessee have a right to argue the monetary value of the case but cannot argue the amount sued for in the ad damnum. Here is the majority opinion by Justice Sharon Lee. Justice Koch’s concurrence made it clear that the Court was not addressing the issue of the appropriateness of per diem arguments.

Professor King’s article is copywright protected so I cannot share it with you. You can order the entire article on Westlaw or through the University of Tennessee Law Review. The title of the article is "Counting Angels and Weighing Anchors: Per Diem Arguments For Noneconomic Personal Injury Tort Damages." It can be found at 71 Tenn. L. Rev. 1 (Fall 2003).

You can get a feel about the article from this language quoted from the article’s Conclusion: "More fundamentally, per diem anchoring exacerbates the ill-defined nature of damages for pain and suffering. In so doing, per diem anchoring undermines the central goals of tort law."

September 23, 2010

Rita’s Rules for Email (With Comments and Additions by John)

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

More and more of the communications between lawyers are conducted by email. For the most part, I approve of the change and, indeed, I proposed and served as the principle author of the new rule of civil procedure that allows for the service of papers in state court via email. T.R.C.P. Rule 5.02(2). I rarely see the need for letters between lawyers anymore, and use letters only to communicate on very substantial matters (settlement demands, inadequate discovery response letters, policy limit demands, etc.). Even then I tend to have the letter attached to an email for immediate delivery.

That being said, communicating by email presents a host of problems. Therefore, I was happy to see this post by Rita Gunther Mcgrath that offered up "Rita’s Rules for Email." Here they are (in bold), with my comments and additions:

1. Meaningful subject lines that tell the reader what to expect. Don’t say “Thursday’s meeting” as your subject. Say “followup expected by client from Thursday’s meeting.” (My case management program inserts the case name in the subject line. To help find the emails later in my CMP, I put the subject of the email in the first line of the email and start the text two lines below it. Given the layout of my CMP email screen, I can see the first twenty or thirty letters of each email and enhance my ability to find the email when I need it.)

September 21, 2010

Effective Use of Depositions at Trial

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

Winning Trial Advocacy Tips has an excellent post on how to improve the reading of depositions at trial.

An excerpt:

4. Tab the appropriate pages. Just like on the radio, you want to prevent the courtroom from filling with “dead air.” When your witness is flipping through pages of the transcript, trying to find what portion he’s supposed to read next, it breaks the flow of your presentation and gives the jurors’ minds an opportunity to wander away. Prevent “dead air” by tabbing the witness’s transcript, so he clearly understands which portion to flip to next. Combined with the highlighting, this little bit of extra effort will make it much easier for your witness to smoothly present the transcript.

September 16, 2010

Making Adjustments at Trial

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

Trial Lawyer Tips has this great post on the need to be aware of what is happening in the courtroom and changing your game plan as the need arises.