Day on Torts

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

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."

December 2, 2009

A New Way of Looking at Duty and Causation

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

The Iowa Supreme Court has released an opinion in Thompson v. Kaczinski, 2009 WL 3786632 (Iowa 2009) and adopted the Restatement (Third) of Torts approach to both duty and causation. The case arose after "a motorist lost control of his car on a rural gravel road and crashed upon encountering a trampoline that had been displaced by the wind from an adjoining yard to the surface of the road. He and his spouse sued the owners of the trampoline." The lower court dismissed the case, holding that the defendants did not owe a duty to the plaintiffs and that causation did not exist as a matter of law.

“An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” Restatement (Third) of Torts: Liab. for Physical Harm § 7(a), at 90 (Proposed Final Draft No. 1, 2005). As the Court explained, "

[I]n most cases involving physical harm, courts “need not concern themselves with the existence or content of this ordinary duty,” but instead may proceed directly to the elements of liability set forth in section 6. Id. § 6 cmt. f, at 81. The general duty of reasonable care will apply in most cases, and thus courts “can rely directly on § 6 and need not refer to duty on a case-by-case basis.” Id. § 7 cmt. a, at 90.

December 2, 2009

Does Ms. Tiger Woods Have A Tort Claim Against the Other Woman?

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

More information continues to be leaked to the media about Tiger Woods’ alleged mistresses, and news reports indicate that at least one of them has confirmed a long-lasting affair.

What does the law of torts say about this? Alienation of affections, criminal conversation, and reckless infliction of emotional distress immediately come to mind as potential claims that Ms.Nordegren could assert any woman who had a sexual relationship with her husband.

What is alienation of affections? In Tennessee, alienation of affections "is the willful and malicious interference with the marriage relation by a third party, without justification or excuse." Donnell v. Donnell, 220 Tenn. 169, 415 S.W.2d 127, 132 (1967). The cause of action was abolished by statute in Tennessee in 1989.

December 1, 2009

Free Software for Trial Lawyers

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

The good folks at the Winning Trial Advocacy Tips blog have assembled some more great information of interest to trial lawyers. This post is titled "Free Software for Trial Lawyers‘ and features a dozen free or almost free programs of interest to lawyers who try personal injury and wrongful death cases.

An excerpt from the post:

IMAGE EDITING PROGRAMS

November 30, 2009

Defendant’s Discovery Abuse Results in Default Judgment of $8,000,000, Plus Fees

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

What do you do when a party to a lawsuit intentionally refuses to follow the rules? One judge in Washington State knew what to do: the judge struck the defendant’s answer, entered judgment for $8,000,000, and awarded attorneys’ fees. Last week the Washington Supreme Court had upheld the award.

The facts are almost impossible to summarize and readers are urged to review the opinion to learn the details. The bottom line:

The court found (1) there was no agreement between the parties to limit discovery, (2) Hyundai falsely responded to Magaña’s request for production and interrogatories, (3) Magaña was substantially prejudiced in preparing for trial, and (4) evidence was spoiled and forever lost. The trial court considered lesser sanctions but found that the only suitable remedy under the circumstances was a default judgment. Hyundai then appealed.

November 25, 2009

AAP Issues Expert Witness Policy

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

The American Academy of Pediatrics has issued a Policy Statement titled "Guidelines for Expert Testimony in Medical Malpractice Litigation.

After reviewing the role of the expert witness in medical malpractice litigation, the Guidelines begin the "recommendations" section of the paper with this statement:

The AAP recognizes that physicians have the professional, ethical, and legal duty to testify as called on in a court of law in accordance with their expertise. Physicians serving as expert witnesses have an obligation to present complete and unbiased information with which the trier of fact can ascertain whether the defendant was medically negligent and whether, as a result, the plaintiff suffered compensable