Day on Torts

May 24, 2010

A Conversation With A Doctor Who Wanted To File A Malpractice Case

Max Kennerly has this interesting post that sprung from a post on Kevin, M.D. about a doctor who was a victim of poor medical care. The doctor went to a lawyer, not because she wanted money (she said) but because she wanted an apology. The lawyer couldn’t take her case because it was not economically viable. The doctor never got the apology she said she wanted.

I have represented patients in medical malpractice cases for 29 years. I have been contacted many times over the years by health care professionals to represent them in medical malpractice cases, and I am surprised to learn how little they know about the complexities of actually bringing the case. My assumption is that they have been taught that medical malpractice cases are routinely filed and won, and that cases are resolved based on sympathy and emotion, not laws and medicine. Anyone with any knowledge of the system knows that is simply not true and, for every plaintiff that wins a brain damaged baby case on the basis of "sympathy" there are five cases in which plaintiffs with valid cases lose because "Dr. Smith may have dropped the ball on this one but he is such a nice guy and volunteers as the team doctor for the high school football team."

Likewise, I am constantly amazed at how angry these health care professionals get when I do not automatically accept their view of the case or decline a case because it is not economically viable. Let me recount a recent example. Note: to avoid any risk of someone recognizing this event or the people involved, the gender of those involved may or may not be correct and the facts of the underlying event may or may not have been altered. Those portions of the post that go over the discussion with the prospective client are accurate.

May 21, 2010

Don’t Do That

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

Are you a male lawyer who finds a woman in your office particularly attractive? Are you weird enough to even contemplate secreting a camera under her desk and filming … whatever?

Well, it allegedly crossed the mind of this Atlanta tax lawyer, and he is accused of actually putting his thoughts into action.

Free legal advice: don’t do that.

May 20, 2010

Tennessee County Maps

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

Can’t quite figure out if that automobile accident case happened in Davidson or Wilson County, Tennessee? This website has a detailed map of every Tennessee county that you can use to start your investigation into this issue.

May 18, 2010

Tennessee Trial Judge Statistics

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

The Tennessee Administrative Office of the Courts has released a database that allows the public to see what number of cases were closed in each judicial district and by each of the trial judges in the state. The database allows searches by judicial district or by judge.

When a judge’s name is pulled up the reader can see how many cases were closed in the last fiscal year. One can also see a list of the judge’s case that went up on appeal during the year, but only if an opinion has already been issued. Unfortunately, to determine the judge’s reversal rate, you have to open and read each of the opinions.

This information is interesting, but can be misinterpreted. First, the statistics tell us nothing about the complexity of the cases handled by the judge. A judge may end up with a number of medical malpractice cases, all of which involve more motion practice than the typical car wreck case and which can consume days of trial time.

May 16, 2010

Slight Delay on Shipping 3rd Edition of Day on Torts

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

The horrible flooding in Nashville has delayed our printer’s ability to finish the 3rd edition of Day on Torts. It now looks like we will not be able to ship the book until May 28, 2010.

Day on Torts: Leading Cases in Tennessee Tort Law consists of a summary of the leading case on over 300 subjects in Tennessee tort law. The book also cites you to thousands of other cases to aid you in your research. As you can see from the Table of Contents, the book will give you readily access to current, definitive case law on topics of interest to every tort lawyer.

The book was written because I found that computerized legal research often makes it more difficult to find the leading case on a particular topic. Now, you can turn to the appropriate section of the book, find the leading case on the subject as of the date of publication, and the use computerized legal research to update the case law or expand your research as necessary.

May 14, 2010

A Court Calls Out a Jerk

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

Plaintiff had the obligation to seek attorneys fees in a case by a date certain. Plaintiff”s counsel and defense counsel agreed on multiple occasions to extend the deadline so that they can negotiate the fee issue, but Plaintiff failed to file a written stipulation concerning the extension with the Court as required.

Negotiations break down. Plaintiff seeks fees. Defendant objects, admitting that they agreed to extensions of the deadline but fault the plaintiff for not filing a written stipulation. Trial court agrees and strikes the fee request.

The California Court of Appeals called "bullshit." "Admittedly, the law frowns on an attorney‟s neglect to comply with a clear rule. However, it positively glowers at another attorney‟s exploitation of such neglect as an excuse to break his word." Ron Burns Const. Co. v. Moore, (Cal. Ct. App. – May 11, 2010).

May 10, 2010

Ohio Permits Evidence of Write-offs Of Medical Bills

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

The Ohio Supreme Court has ruled that a defendant in a personal injury action may introduce evidence that plaintiff’s health care provider "wrote off" certain medical charges for care given to the plaintiff.

The plaintiff was billed $21,874.80 for care received in the accident. His health insurer paid $7.483.91 of those bills and the provider wrote off the balance pursuant to an agreement with the health insurer. The trial judge did not permit the defendant to introduce evidence of the write-offs.

The Ohio Supreme Court reversed, saying that "’the reasonable value of medical services is a matter for the jury to determine from all relevant evidence. Both the original medical bill rendered and the amount accepted as full payment are admissible to prove the reasonableness and necessity of charges rendered for medical and hospital care.’" [Citation omitted.]

May 4, 2010

Gulf Oil Spill: The Impact of Damage Caps Will Be Felt By Tens of Thousands

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

You haven’t seen much about it in the press yet, but BP has the benefit of a cap that will probably limit its liability for the oil spill in the Gulf. Section 1004 of the Oil Pollution Act (OPA), passed into law in August 1990 after the Exxon Valdez incident, limits the liability of holders of leases or permits for offshore facilities to $75 million per spill, plus removal costs.

The Act also limits the liability for tank vessels larger than 3,000 gross tons to $1,200 per gross ton or $10 million, whichever is greater and the liability for responsible parties at onshore facilities and deepwater ports to $350 million per spill.

The Act also created the Oil Spill Liability Trust Fund. The primary source of revenue for the fund was a five-cents per barrel fee on imported and domestic oil. Collection of this fee ceased on December 31, 1994 due to a "sunset" provision in the law. Other revenue sources for the fund include interest on the fund, cost recovery from the parties responsible for the spills, and any fines or civil penalties collected. The Fund is administered by the U.S. Coast Guard’s National Pollution Funds Center (NPFC).

May 3, 2010

Oprah Lends Support to Safe Driving Practices

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

PC Magazine Oprah Winfrey has been urging her viewers to promise not to text or make telephone calls while driving. Last Friday she dedicated her show to the subject.

Some 23 states, including Tennessee, have laws banning texting while driving. Eight other states have partial bans on texting while driving. This chart summarizes the law of those states.

A July 2009 study by the Virginia Tech Transportation Institute concluded that texting while driving increases the risk of a crash by 20 times. A recent University of Utah study reached a similar result. The Secretary of Transportation has testified that distracted drivers caused the death of nearly 6000 people in 2008.

May 2, 2010

Johnson and Johnson Issues Massive Product Recall

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

The good news is that a division of Johnson and Johnson appears to be acting promptly to solve a problem. The bad news is that the consumers who use the 43 recalled products for children and infants are going to be wondering if their children have suffered any harm from them..

Federal regulators have identified what they called deficiencies at a Johnson and Johnson manufacturing facility. The products include liquid versions of Tylenol, Motrin, Zyrtec and Benadryl. The FDA called the potential for health problems "remote."

This is from the J & J subsidiary’s press release on the subject: