Day on Torts

November 3, 2009

Texas Supreme Court Weighs In On Collectability Issue in Legal Malpractice Cases

I have written in the past about whether a plaintiff in a legal malpractice action arising out of the alleged mishandling of the plaintiff’s underlying case should have to prove not only that the firm committed malpractice and that damages would have been awarded if malpractice had not occurred but also that the damages were collectable. This post will link you other posts on this subject.

The Texas Supreme Court has ruled that "(1) the amount of damages that would have been collectible in the prior suit is the greater of the amount of a judgment for damages that would have been either paid or collected from the underlying defendant’s net assets; and (2) the time at which collectibility is determined is as of or after the time a judgment was first signed in the underlying case."

The case is AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. v. NATIONAL DEVELOPMENT AND RESEARCH CORPORATION, No. 07-0818 (Texas Oct. 30, 2009). Read the opinion here.

November 3, 2009

Rhode Island Hospital Cannot Get It Right

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

You know that patient safety is not a priority in a hospital when your state regulatory agency orders that cameras be installed in your operating rooms.

Rhode Island Hospital has had five wrong-site surgeries since 2007. Here is how the AP described the last incident:

The latest incident last month involved a patient who was to have surgery on two fingers. Instead, the surgeon performed both operations on the same finger. Under protocols adopted in the medical field, the surgery site should have been marked and the surgical team should have taken a timeout before cutting to ensure they were operating on the right patient, the right part of the patient’s body and doing the correct procedure.

November 2, 2009

Nashville Annual Review For Civil Trial Practioners Only Two Weeks Away

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

Penny White, Joe Riley and I are on the road again this Fall for the 2009 Justice Programs seminars. This two-day, 15-hour is designed for Tennessee lawyers who do civil litigation and who are looking for substantive continuing legal education that will help them better serve their clients.

We will be in Nashville November 19 and 20, Chattanooga on December 3 and 4, Memphis on December 10 and 11, and Knoxville on December 17 and 18.

Here are the topics we are offering this year:

November 1, 2009

Upcoming AAJ Seminar

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

Focus groups are invaluable tools for exploring key issues in your case before taking it into the courtroom. Register for Case Plus: The Next Step in Developing and Testing Your Trial Story to benefit from not one, but three focus groups—now with extended focus group time spent on your case. And you can bring a second member of your trial team from your firm at no additional cost.

Case Plus Helps at Every Stage of Your Case:

• Explore the biases and beliefs surrounding your case in order to develop a discovery plan and case themes

November 1, 2009

Commercial Appeal Writes About Medical Malpractice Litigation

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

The Commercial Appeal wrote an interesting story on medical malpractice litigation in today’s paper. Read it here.

An excerpt:

Nationwide, the number of payments physicians made for malpractice claims fell to 11,037 last year — the lowest figure since the National Practitioner Data Bank began tracking data in 1990. Adjusted for inflation, the total $3.6 billion they paid was the second-lowest sum on record.

October 30, 2009

Lawsuit Against Pharmacists For Filling Prescriptions for Known Drug Abuser

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

On the afternoon of June 4, 2004, a woman named Patricia Copening driving a SUV ran into a delivery-van driver who had pulled over to repair a flat tire on the highway’s shoulder, killing him at the scene. She also hit another man, causing a head and other injuries.

A lawsuit filed by the victims and their families against Wal-Mart, who dispensed a painkiller prescription to Copening, asks whether drugstores must use information at their disposal to protect the public from potentially dangerous customers. State officials had sent letters to 14 pharmacies in the Las Vegas area warning that Copening could be abusing drugs. The letters were issued after a state-ordered prescription audit identified potential drug abusers, including Copening.

According to this story from Wednesday’s Wall Street Journal, Nevada pharmacies have been gathering information about prescription drug use, sending it to the state, and receiving letters from the state advising about potential drug abuse since 1997.

October 29, 2009

Thinking About the Lack of a Duty to Rescue

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

I participated in a panel discussion at a local high school a week or so ago. The attendees were high school students and their parents. The other participants on the panel included a local juvenile court judge, a police officer, and an assistant district attorney.

Some of the questions included the potential liability of parents for furnishing alcohol to minors and various, easy-to-imagine spin-off questions. One question was the liability of an adult who comes upon a drunken minor but did not nothing to furnish alcohol to the minor, did not own or occupy the site where the alcohol was given to the minor, and had no relationship with the minor. If the adult simply ignores the minor and watches him get into a car and drive away, does the adult have any liability if the minor dies in a one-car wreck a block down the road?

This is a moral and a legal question – and I informed the group that I would leave the moral question to" pillow test." Legally, there is no liability on the adult because there is no duty on the adult to rescue another from the potential for harm or to otherwise come to the aid of a stranger. We had a nice discussion about it, and also about the consequences of deciding to lend aid under such circumstances.

October 29, 2009

Death of John O’Quinn

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

Houston trial lawyer John O’Quinn died in a motor vehicle wreck earlier today. This article provides a lot of information about this very interesting man.

October 28, 2009

Another Sanction for Misconduct

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

The Star-Tribune from Minneapolis – St. Paul reports that a state court judge in Minnesota imposed a $4 million sanction against Burlington Northern Santa Fe Corp. for engaging in a "staggering" pattern of misconduct aimed at covering up its role in the deaths of four young people whose car collided with a train largely because a crossing gate wasn’t working properly.

The paper reports that the railroad began destroying evidence within minutes of the incident.

The trial judge, Ellen Maas, found that the railroad company lost or fabricated evidence, interfered with the families’ investigation of the accident and "knowingly advanced lies, misleading facts and/or misrepresentations" in order to conceal the truth and "has attempted to explain away each instance of misconduct as either an innocent mistake or a mere coincidence. … "

October 27, 2009

Putting Medical Malpractice Insurance Costs in Perspective

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

An article by Robert Heath in Monday’s Washington Post gives us some of the financial details of the practice of Dr. Robert Hardi, a D.C. gastroenterologist.

Dr. Hardi has about 4500 patient visits per year and performs about 1150 procedures. He works about 47 weeks per year.

Thus, Dr. Hardi has about 5650 patient contacts per year, and each of those contacts presents an opportunity for a claim to be asserted against him (because each presents the possibility of making an error or omission that could result in injury). The cost of Dr. Hardi’s malpractice insurance is $45,000 per year. The amount of his insurance coverage was not disclosed in the article. The cost of his malpractice insurance per patient contact is $7.96.