Day on Torts

January 6, 2010

Choice of Words at Trial and Deposition

Once again, Winning Trial Advocacy Tips has an excellent article for those of us who try cases.

Here is an excerpt:

There’s something strange about how our brains work. For some reason, our brains don’t seem to comprehend the word “Don’t” very well. In fact, our brains have the power to completely ignore that single word while still hearing every other word in the statement. It happens on a subconscious level. When we hear the word “Don’t,” we ignore that word and follow the rest of the command. If you’ve ever coached sports, you probably noticed the difference between telling an athlete, “Don’t miss this shot” vs. “You’re going to make this shot.” When you tell players, “Don’t miss this shot,” they’re more likely to miss. For some reason, “Don’t” gets lost in the shuffle, leaving only the command: “MISS THIS SHOT!”

January 5, 2010

Tennessee Data From the National Practioners Data Bank

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

The National Practioners Data Bank collects data about malpractice claims paid by health care professionals. The NPDB has a report that lists all of medical malpractice paid claims against all Tennessee health care providers between September 1, 1990 through November 29, 2009, a period one month short of 20 years. To understand what data is collected by the NPDB click here.

The total number of paid claims against all health care providers in the United States is 340,463, or about 17,000 claims per year. Recall the National Institute of Medicine said that there were 98,000 documented deaths per year in our nation’s hospitals.

After the jump I have listed the number of paid claims by type of provider in Tennessee. The data does not include hospitals or nursing homes except to the extent the payment was made by a hospital or nursing home on behalf of an individual provider after receipt of a written claim or lawsuit.

January 1, 2010

New Local Rules in Memphis

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

The judges in Shelby County have adopted new local rules of court. Here is a copy.

December 31, 2009

Nevada Supreme Court Restricts Lawsuits Against Pharamacies

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

The Nevada Supreme Court has ruled that a pharmacy does not owe a duty of care to unidentified third parties who were injured by a pharmacy customer who was driving while under the influence of controlled prescription drugs.

In reaching the decision, the court rejected the arguments that pharmacies have a duty to act to prevent a pharmacy customer from injuring members of the general public and that Nevada’s pharmacy statutory and regulatory laws allow third parties to maintain a negligence per se claim for alleged violations concerning dispensation of prescription drugs and maintenance of customers’ records.

Here is the court’s summary of the facts:

December 31, 2009

Legal Malpractice Case – An Oldie But a Goodie

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

Legal Malpractice Law Review brought to my attention an interesting legal malpractice case from 1979 in Pennsylvania, Schenkel v. Monheit, 226 Pa. Super. 396 (Pa. Super. Ct. 1979).

The plaintiff’s lawyer in the underlying case (and now the defendant) failed to sue the original defendant’s employer in an auto accident case. Plaintiff received a jury verdict of $10,000 in the original case, but said he would have received more had the employer, a corporation, been sued. So, he sued his lawyer seeking the "extra" money.

The appellate court in the malpractice action disagreed, saying that the corporate employer’s liability was vicarious only and that joining the employer would have only enhanced collectability of the judgment. The failure to add the employer did not cause damage to the plaintiff because the original judgment was collected in full.

December 30, 2009

Ambulance Driver Crashes Into TDOT Help Truck – Is There an Incapacitated Driver Defense?

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

David Cline, the paramedic who was killed when the private ambulance he was driving slammed into the back of a TDOT roadside help truck on Interstate 65 on October 22, 2009, had a history of medical problems, including narcolepsy and epilepsy. Investigators are unsure why Cline left the highway but believe that the he suffered a "seizure or some type of medical condition that [incapacitated] him and led to the fatal crash, according to the final report released by Metro Nashville Police Department on December 28, 2009. The story was reported in The City Paper.

The article reports that "after performing a toxicology examination, police determined Cline had an elevated level of amphetamines in his bloodstream from his prescribed medication for narcolepsy, Adderall. The same report did not find indications his prescribed epilepsy medication, Depakote, was in his system." The article also reports that

Cline did have previous incidents involving seizures and car crashes. On Christmas Day 1999, Cline ran off the road and struck a utility pole after he had a seizure, and following the incident, his driver’s license was suspended. His credentials were reinstated in March of 2000. He suffered another seizure while working his day job as a Franklin firefighter, "three or four years prior" to the deadly crash.

December 30, 2009

Tennessee AOC Releases 2008-09 Annual Report of the Tennessee Judiciary

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

The Tennessee Administrative Office of the Courts has released the 2008-09 Annual Report of the Tennessee Judiciary. The report includes information about court filings and dispositions for the fiscal year ending June 30, 2009.

Here is some of the important data included in the Report:

1. There were only 10,659 personal injury and wrongful death cases filed in 2008-09. The backlog of cases is neither increasing or decreasing – case dispositions were about the same as filings at 10,768.

December 29, 2009

Economic Loss Rule Applied in South Carolina Truck Fire Case

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

The South Carolina Supreme Court has ruled that the economic loss rule precludes a truck owner’s tort claims against the truck manufacturer. The case is Sapp & Smith v. Ford Motor Company, Opinion 26754 (S.C. December 21, 2009).

Sapp filed suit against Ford alleging property damage to his vehicle (there was no personal injury or damage to other property) as a result of a fire Sapp claimed was caused by a design defect in the cruise control switch, which he said would short circuit and cause a fire in the engine compartment.

As explained by the Court,

December 28, 2009

Social Networking and its Impact on Trials

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

Philip Brown, author of MS Litigation Review and Commentary, has an interesting post on the impact of social networking on the work of trial lawyers.

An excerpt:

I have talked with lawyers who are worried about a juror going home and researching parties on social network sites. What if a juror does that and discovers that the juror has a mutual friend with the party or belongs to the same club or religious group? Could that impact the juror’s decision in the case?

December 28, 2009

Problem Nurses Move From State to State

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

Today’s Tennessean has an article originally published in the Los Angeles Times that reveals a problem with nurses moving from state to state and leaving behind a bad disciplinary record.

The article reports that "using public databases and state disciplinary reports, reporters found hundreds of cases in which registered nurses held clear licenses in some states after they had been sanctioned in others, often for serious misdeeds. In California alone, a months-long review of its 350,000 active nurses found at least 177 whose licenses had been revoked, surrendered, suspended or denied elsewhere."

This problem can be avoided. "By simply typing a nurse’s name into a national database, state officials can often find out within seconds whether the nurse has been sanctioned anywhere in the country and why. But some states don’t check regularly or at all."