Day on Torts

December 14, 2009

Settlement Mills

A law professor at Stanford, Lora Freeman Engstrom, has written an article published in Georgetown Journal of Legal Ethics called "Run-of-the-Mill Justice." Her bio reveals that her research interest is high-volume personal injury law practices that heavily advertise and mass-produce the resolution of claims and is supported by a grant from the American Bar Association’s Litigation Research Fund.

Here is an abstract of the article:

This Article examines a particular form of heretofore unexamined personal injury law practice that has proliferated across the United States. These law firms, which I call settlement mills, are characterized by their high claim volume, aggressive advertising, significant delegation to non-attorneys, entrepreneurial focus, and quick resolution of claims, typically without initiation of suit. Drawing on voluminous documents extracted from federal court and state bar disciplinary files, as well as fifty interviews with current and past law firm employees, the Article demonstrates that settlement mills represent a relatively new, largely distinct, and surprisingly prevalent form of law firm organization. After setting forth the characteristics that distinguish settlement mills from conventional personal injury practices, the Article considers the forces that have contributed to their rise, analyzes how they resolve claims in practice and to what effect, and asks why insurers (not facing a realistic threat of trial) bargain with settlement mills at all. The analysis reveals that settlement mills are not only organized differently than their conventional counterparts; they actually settle claims differently, in a manner that challenges prevailing theories of settlement as well as our basic notions of compensation through tort.

December 11, 2009

Fatal Car and Truck Crashes By Young Drivers

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

NHTSA has released a report concerning fatal crashes by young drivers. The report shows that

Youths 15 to 20 years old represented 9 percent of the U.S. population in 2007 and 6 percent of the licensed drivers; however, 19 percent of the fatalities in the United States in 2007 were related to young-driver crashes.
Approximately two-thirds of the people killed in fatal young-driver crashes are the young drivers themselves or the passengers (of all ages) of the young drivers.
Of the passengers killed riding in vehicles with young drivers, 67 percent are in the same 15-to-20-year-old age group as the drivers.
Fifty-six percent of the fatal crashes and 57 percent of the fatalities involving young drivers occur on rural road-ways.
In 2007, 6,982 young drivers were involved in 6,669 fatal crashes. A total of 7,650 fatalities occurred in those crashes.
The 2007 National Occupant Protection Use Survey (NOPUS) states that overall restraint use has increased slightly from the previous year, to 82 percent. However, belt use among people 16 to 24 was only 77 percent. In 2007, of the 15- to 20-year-old passenger vehicle occupants killed in all fatal crashes, 61 percent (of those whose restraint use was known) were unrestrained. Of the total fatalities in which restraint use was known in 2007, 54 percent of the vehicle occupants killed were unrestrained.
In 2007, 31 percent of young drivers 15 to 20 years old who were killed had blood alcohol concentrations (BACs) of .01 grams/deciliter (g/dL) or greater, and 26 percent of young drivers had BACs of .08 g/dL or greater. These figures are relatively similar to the overall driving population in which 37 percent involved BACs of .01 g/dL or greater and 32 per-cent involved BACs of .08 g/dL or greater in 2007.

December 10, 2009

Debt Collector Blamed in Wrongful Death Lawsuit

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

Dianne McLeod says a debt collector killed her husband Stanley.

According to CNN, Ms. McLeod alleges that " her mortgage company, Green Tree Servicing, for the wrongful death of her husband. McLeod said she thinks he would be alive if not for the stress caused by Green Tree’s debt collectors. She said they sometimes called up to 10 times a day and also called the McLeods’ neighbors." Stanley , a heart patient died of heart failure.

The CNN story does not reveal the cause of action being employed in the Florida litigation. In Tennessee, the Supreme Court has ruled that debt collectors may be liable for damages caused if they engage in intentional infliction of emotional distress, as known as the tort of outrageous conduct. The case applying this tort to debt collectors is Moorhead v. J.C. Penny, Co. 555. S.W. 2d 713 (Tenn. 1977). Whether conduct is "outrageous" and whether the conduct caused an injury or death is very much dependent on the facts.

December 10, 2009

Medical Malpractice Insurance Rates

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

From the American Association for Justice:

State tort reforms have provided a boon to insurance companies, leading to record profits while physician and patient premiums continue to skyrocket.

An analysis of data from the National Association of Insurance Commissioners (NAIC) and company annual statements shows malpractice insurer profits are 24 percent higher in states with caps. In these cap states, insurers took in 3.5 times more in premiums than they paid out in 2008. In contrast, insurers in states without caps took in just over twice what they paid in claims.

December 9, 2009

Alcohol Impaired Drivers Continue to Kill

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

According to NHTSA’s National Center for Statistics and Analysis there were 1035 people killed on Tennessee roads in 2008. Of those fatalities, 327 of them involved at least one driver who had a blood alcohol level of 0.8 or greater.

This is an alcohol-related death rate of .47 people per 100 Million Vehicle Miles Traveled (VMT). The death rate per VMT is down 11.3% from a year earlier.

In 2008, Montana had the highest alcohol-impaired fatality rate in the Nation – 0.84 fatalities per 100 million VMT while Vermont had the lowest rate in the Nation – 0.16 per 100 million VMT.

December 8, 2009

Maine’s Senator Snowe Introduces Legislation To Require Malpractice Victims Go to Expense and Time Delay of Medical Screening Panels Before A Jury Trial

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

Maine requires that a medical screening panel hear a medical malpractice case before it can be heard by a jury. Tennessee had screening panels in the late 1970s and early 1980s, when they were abandoned because all agreed that they were ridiculous.

Now, Senator Snowe wants to require that states adopt screening panels as a condition of receiving Medicaid funding. Here is a copy of the proposed amendment: www.dayontorts.com/uploads/file/Snowe-2948.pdf

How are the panels working in Maine? Well, 37.61% of claims filed in 2005 have yet to be heard by a panel while 69% of claims filed in 2006 are still pending. Maine Chief Justice Saufley has called the two-trial system “a cumbersome process with unpredictable results that cost both the plaintiffs and the defendants money and time in a way that was not intended by the Legislature.”

December 8, 2009

Wal-Mart Wins Suicide Case in Illinois

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

The Seventh Circuit Court of Appeals has affirmed the dismissal of a case against Wal-Mart for selling bullets to a person without requiring her to present an identification card as required by Illinois law. Candice Johnson later used the bullets to commit suicide. Her husband filed suit, alleging that his wife did not have an identification card in her possession and Wal-Mart’s violation of the Illinois statute requiring proof of identification was the proximate cause of her death. He also alleged that she should not have been sold a gun because she had been a mental patient within the previous five years and thus should not have been sold a weapon. The opinion does not say whether Wal-Mart knew of her prior status as a mental patient.

Wal-mart argued that the act of suicide was a superceding cause and thus it was not responsible for the death. It also argued that the violation of Illinois law was not the cause of Ms. Johnson’s death.

The appellate court accepted Wal-Mart’s arguments, saying that under Illinois law suicide is ordinarily an unforeseeable event and thus causation was not present as a matter of law.

December 7, 2009

When to Evaluate for a Hypercoagulable State

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

The Doctors Company is a medical malpractice insurer. Its website contains articles of interest to all Tennessee medical malpractice lawyers and, in fact, medical malpractice lawyers in every state.

For example, one interesting article is titled "When to Evaluate for a Hypercoagulable State." Here is an excerpt:

Hypercoagulability is any alteration in the coagulation pathway that predisposes to thrombosis; it can be divided into primary (genetic) and secondary (acquired) disorders.

December 7, 2009

Senate Defeats Effort To Limit Access to the Courthouse by Medical Malpractice Victims

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

Senator Ensign (R-Nevada) introduced an amendment to limit contingent fees in medical malpractice cases. The Senator attempted to attached the language to amendment SA 2786 to H.R. 3590, which is intended to amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes.

Senator Ensign’s amendment was defeated by a vote of 32 – 66 (2 Senators did not vote). Both Tennessee senators voted in favor of the amendment to restrict fees.

The following Democrats voted to limit fees as set forth in the amendment: Senators Hagan, Warner, Lieberman, Lincoln, and Kohl. The following Republicans voted against the amendment to limit fees: Senators Bennett, Chambliss, Cochran, Collins, Crapo, Hatch, Johanns, LeMieux, Risch, and Shelby.

December 4, 2009

Court Erred in Ordering Release of Medical Records

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

The Ohio Court of Appeals has ruled that a trial judge committed error by ordering production of a personal injury plaintiff’s medical records without first doing an in camera review to determine if the records should have been turned over to the defendant.

The opinion is interesting to Tennessee lawyers and should be persuasive in Tennessee even though the physician-patient privilege is statutory in Ohio.

Under Ohio law, "the filing of any civil action waives the physician-patient privilege as to any communication (including a medical record) that relates causally or historically to the injuries at issue in the action. Natl. City Bank v. Rainer (Aug. 12, 1999), 10th Dist. No. 98AP-1170; Ward v. Johnson’s Indus. Caterers, Inc. (June 25, 1998), 10th Dist. No. 97APE11-1531."