Day on Torts

November 7, 2009

Duty to Rescue Created By Statute

A little over a week ago I wrote this post about the general rule in the law of torts that one person does not have a duty to rescue another from harm. To be sure, there are exceptions to that general rule, but the fact remains that this is one area of tort law in where the duty imposed by law is generally less than that imposed by the moral code of most people.

This post from the Volokh Conspiracy notes that some states impose a duty to rescue crime victims or report crimes. The 10 states listed by Volokh with "duty to rescue" statutes are California, Florida, Hawaii, Massachusetts, Minnesota, Ohio, Rhode Island, Vermont, Washington and Wisconsin. Most of the statutes, however, impose only a very limited to duty to call the police if you witness a serious crime such as murder or rape, and can summon help without endangering yourself. Vermont imposes the highest level of responsibility by requiring assistance to the victim.

November 5, 2009

More on Dangers of Texting While Driving

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

I have written before about the dangers of texting while driving (here is a post about the danger of posed when truckers text and drive), and the Tennessee Legislature recently outlawed the practice.

Here is a game developed by the New York Times that demonstrates the danger.

November 4, 2009

Tort Cases Pending Before the Tennessee Supreme Court – Physician Assistants

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

There are a significant number of cases of interest to Tennessee tort lawyers pending before the Tennessee Supreme Court. One of those cases is Cox v. M.A. Primary and Urgent Care Clinic, 2009 WL 230242 (Tenn. Ct. App. 230242 (Jan. 30, 2009).

The issue in the case is the appropriate standard of care for a physician’s assistant. The Court of Appeals ruled as follows:

the services provided by a physician assistant are provided under the supervision of a licensed physician and within the scope of practice of that physician, who is responsible for the treatment rendered by the physician assistant. Consequently, the standard of care applicable to a physician assistant is that of the supervising physician in the community in which the supervising physician practices.

November 3, 2009

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

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

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.