Day on Torts

February 12, 2010

How Much Do ER Patients Pay to Protect Themselves from Malpractice of ER Doctors? You Won’t Believe It.

Team Health Holdings, Inc. is a physician-founded, physician-led outsourced healthcare professionals staffing organization. Based in Knoxville, TN, it purports to be "the largest providers of [Emergency Department] staffing and management services in the United States, based upon patient visits and revenue."

The company serves "approximately 550 hospital clients and their affiliated clinics in 46 states with a team of approximately 6,100 healthcare professionals, including physicians, physician assistants and nurse practitioners." It. provided care to 7.6 million patients in emergency rooms alone for the calendar year ending December 31, 2008.

The outlook for this business looks good. Here is how Team Health describes the future demand for its services:

February 10, 2010

Suggested Jury Instructions to Warn Jurors About Accessing the Internet and Social Media

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

The Blog of Legal Times advises that the Committee on Court Administration and Case Management of the United States Judicial Conference has developed pattern jury instructions "to address the increasing incidence of juror use of such devices as cellular telephones or computers to conduct research on the Internet or communicate with others about cases,” as explained by Judge Julie Robinson, committee chair, in a memo to district judges. “Such use has resulted in mistrials, exclusion of jurors, and imposition of fines.”

“The committee believes that more explicit mention in jury instructions of the various methods and modes of electronic communication and research would help jurors better understand and adhere to the scope of the prohibition against the use of these devices,” explained Robinson.

Here are the instructions:

February 9, 2010

Tennessee Jury Trials in Tort Cases by the Numbers

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

How many tort cases are tried in Tennessee in the last year? The Annual Report of the Tennessee Judiciary gives us the answer.

Here is the data for the year ended June 30, 2009:

Total jury trials in all tort cases: 260

February 8, 2010

Kentucky Lawyers Sued By Client

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

A plaintiff in a car accident lawsuit has become a legal malpractice plaintiff.

Sharon Langford has sued a law firm with office in Kentucky and Florida and made some very serious allegations. Basically, she was alleged to seek health care for her injuries from a specific provider and that there was a business relationship between the provider and the lawyers. She also alleges that the provider and the law firm advised her not to submit the bills to her health insurer and that she did not receive documentation of the charges made by the health care provider.

She alleges that the undisclosed relationship between the health care provider and the lawyers resulted in financial and other losses. Here is a copy of the complaint.

February 4, 2010

Tennessee Nursing Homes – 5th Worst in United States

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

Tennessee’s nursing homes rank the 5th worst in the United States, according to an analysis done by the Tennessean.

The February 3, 2010 article points out that

[a]bout 15,000 nursing homes nationwide got ratings of one to five stars, with five being the best, from the U.S. Centers for Medicare and Medicaid Services. The ratings are based on inspections, complaint investigations, staffing levels and other nursing home survey data collected in 2008 and 2009.

February 3, 2010

The Ref is a Jerk! Can I Sue?

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

My daughter was hurt in a soccer game because the ref refused to reign in a reckless player on the opposing team. Can I sue? My son is devastated because he was improperly called out on strikes by a blind umpire. Can I sue?

Setting aside the merits of these complaints, or the wisdom of pursing such a claim, Tennessee law gives a relatively high level of immunity to sports officials. Under T. C. A. Section 62-50-201, a “’sports official’ means any person who serves as referee, umpire, linesperson or in any similar capacity in supervising or administering a sports event and who is registered as a member of a local, state, regional or national organization that provides training and educational opportunities for sports officials."

Section 62-50-202 provides that "[a] sports official who administers or supervises a sports event at any level of competition is not liable to any person or entity in any civil action for damages to a player, participant or spectator as a result of the sports official’s act of commission or omission arising out of the sports official’s duties or activities."

February 2, 2010

Legislators Propose Caps on Damages Recoverable in Medical Malpractice Cases

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

A bill has been introduced in the Tennessee General Assembly to cap "non-economic" damages in medical malpractice lawsuits to $1,000,000, regardless of the degree of harm suffered by the patient.

Non-economic damages are defined as " damages for physical and emotional pain and suffering, inconvenience, discomfort, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, punitive damages, and all other nonpecuniary losses of any kind or nature."

The effort to limit patient rights comes notwithstanding the fact that medical malpractice filings are dropping significantly and there are less than seven jury verdicts for patients in the entire state per year.

February 1, 2010

Tennessee Medical Malpractice Claims Report – 2008

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

The Tennessee Medical Malpractice Claims Report for 2009 (which reports data for 2008) contains lots of information of interest to lawyers who represent Tennesseans in medical malpractice claims. Last week I wrote about the number of claims closed in 2008 and the amount paid on these claims. Today I will drill down a little deeper on one topic – resolution of claims involving death.

About 1960 Tennesseans die each year as a result of medical malpractice in a hospital. (The number that die as a result of malpractice in a doctor’s office or nursing home or dentist’s office or elsewhere has not been estimated to my knowledge.) Yet, in 2008, there were 538 medical malpractice claims resolved in cases where the allegation involved malpractice-related death of the patient in all settings.

The total amount of money paid to resolve the 538 death claims was $60,663,764, or an average of less than $120,000 per claim. I hasten to add that gross payment figure includes claims on which no money was paid. The report does not indicate how many closed death claims resulted in no payment whatsoever. However, the report does indicate that payments were made in only 15% or so of all closed claims in 2008. If that statistic is true in the wrongful death area, it means that payments were made in only about 80 wrongful death cases in 2008 and the average payment was about $750,000 per claim.

January 29, 2010

Tennessee Adult Protection Act

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

The Tennessee Adult Protection Act, T. C. A. Sec. 71-6-101 et seq, creates civil action for compensatory and, as appropriate, punitive damages when "adults" covered by the act are victims of abuse or neglect, sexual abuse or exploitation and for theft of money or property whether by fraud, deceit, coercion or otherwise. Those covered by the Act fall within this definition of adult:

“Adult” means a person eighteen (18) years of age or older who because of mental or physical dysfunctioning or advanced age is unable to manage such person’s own resources, carry out the activities of daily living, or protect such person from neglect, hazardous or abusive situations without assistance from others and who has no available, willing, and responsibly able person for assistance and who may be in need of protective services; provided, however, that a person eighteen (18) years of age or older who is mentally impaired but still competent shall be deemed to be a person with mental dysfunction for the purposes of this chapter

The Act also permits recovery of attorneys’ fees in certain circumstances.

January 27, 2010

Truck Drivers – No More Texting

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

Truck drivers who text while on the road are now violating federal law. On January 26, 2010, the federal Transportation Department said it is prohibiting truck and bus drivers from sending text messages on hand-held devices while operating commercial vehicles.

Tennessee banned texting while driving effective July 1, 2009.

The Transportation Department said that "FMCSA research shows that drivers who send and receive text messages take their eyes off the road for an average of 4.6 seconds out of every 6 seconds while texting. At 55 miles per hour, this means that the driver is traveling the length of a football field, including the end zones, without looking at the road. Drivers who text while driving are more than 20 times more likely to get in an accident than non-distracted drivers."