Day on Torts

August 22, 2009

CPSC Renews Warnings About Bassinets

The Consumer Product Safety Commission has renewed warnings to parents that certain bassinets made by Simplicty present a risk of death to children. From the press release:

[The CPSC] is once again urging all parents and caregivers to immediately stop using convertible "close-sleeper/bedside sleeper" bassinets manufactured by Simplicity Inc., of Reading, Pa. CPSC has learned of two additional infant deaths since the August 2008 safety alert and recall announcements that notified consumers of two infants who had strangled in their Simplicity bassinets. To date, CPSC is aware of four infants who have died in the close-sleeper bassinets.

Here is the problem:

August 21, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 13

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

Post 13 in our series of new legislation of interest to tort lawyers concerns the administration of in nursing homes.

Public Chapter 403 eliminates the need for nurses to provide medication to patients. Now, an aide who receives certain training is permitted to administer the following medications:

(1) Oral medications;
(2) Topical medications;
(3) Medications administered as drops to the eye, ear, or nose;; and
(4) Any of the above medications prescribed with a designation authorizing or requiring administration on an as-needed basis, but only if a nursing assessment of the patient is completed by a licensed nurse before the medication is administered.

August 20, 2009

Blaming the Plaintff

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

We have seen much of this story happen before. Woman is raped at gunpoint in a hotel parking garage. Woman sues hotel for negligent failure to keep premises secure. Hotel blames woman for failing to exercise due care – how dare she assume that the hotel parking garage was secure.

What you don’t see very often is the response of the co-defendant franchisor – the Marriott International. This is from the Washington Post story about the litigation:

Marriott said it has pressured the legal team [hired by the insurance company for the hotel franchisee] to withdraw the filings, saying in a statement Tuesday that it was ‘a mistake to suggest that the victim of this tragic incident was responsible for the vicious crime against her.’

August 20, 2009

AAJ Seminar: “Litigating Pharmaceutical and Medical Device Cases”

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

AAJ is sponsoring a pharmaceutical and medical device seminar at the Venetian in Las Vegas on September 24-25, 2009. The seminar, open only to AAJ members who represent plaintiffs, offers 11.25 CLE hours.

The seminar is an effort lead by AAJ’s Section on Toxic, Environmental, and Pharmaceutical Torts (STEP), which focuses on the toxic effects of pharmaceuticals, pesticides and herbicides, medical devices, consumer products, industrial pollution, and other environmental poisons.

The products that will be discussed include various heart devices, Hydroxycut, Avandia, pain pumps, asbestos, Paxil, and Gadolinium. There is also be a presentation on Chinese drywall.

August 19, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 12

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

Post 12 of this series on changes in Tennessee statutory law of interest to tort lawyers addresses a new law that imposes lighting requirements on bicycles.

Here is the new code section, which replaces existing section (a) of T.C.A. Sec. 55-8-177:

(a) Every bicycle, when in use at nighttime, shall be equipped with a lamp on the
front which shall emit a white light visible from a distance of at least five hundred feet (500′) to the front and either a red reflector or a lamp emitting a red light which shall be visible from a distance of at least five hundred feet (500′) to the rear when directly in front of lawful upper beams of head lamps on a motor vehicle.

August 18, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 11

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

We are up to Post 11 in our series that highlights new changes to Tennessee statutory law of interest to tort lawyers.

The Legislature has modified T.C.A. Sec. 68-11-256 (a) to require all nursing homes to perform a criminal background check on all employees who provide direct care to patients or residents. The background check must be performed before the person is hired.

Read Public Acts, 2009 Public Chapter 384 here.

August 17, 2009

The First Syllable of “Lawyer” is “Law”

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

A Tennessee lawyer who purports to have knowledge and experience in Tennessee medical malpractice law recently wrote a blog post that advised the pubic about statutes of limitations in medical malpractice cases. His post was wrong, and it was obvious to me that he was unaware of the legislation passed in June and that went into effect on July 1, 2009.

Now, you might say, "well John, don’t be a jerk. The law has only been in effect for a little over a month." Sorry folks, in my opinion that doesn’t cut it. If you hold yourself out as having knowledge in a given area of law you have the responsibility to keep yourself reasonably current in that area. The proposed changes to the medical malpractice law have been talked about by those actively involved in the field for months before the legislation was signed by the Governor. The Tennessee Association for Justice list-serves have had numerous posts about the subject. I wrote several blog posts on the issue (here, here, and here.). I wrote a cover-story article for the July 2009 TBA Journal on the changes. In short, there were plenty of opportunities to learn that the law was changing and that it had in fact changed.

I don’t expect every lawyer to keep up with all changes in the law – that is impossible. I don’t expect every personal injury and wrongful death lawyer to keep up with changes in medical malpractice law, for the simple reason that many of these lawyers do not do medical malpractice law. I don’t expect anyone to keep all the details of law in his or her head even in a relatively narrow field like medical malpractice. And of course I am not saying that everyone who does tort work in Tennessee must read this blog.

August 15, 2009

Working Smarter

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

Those of us who typically work for contingent fees have an extra incentive to work smarter. Like many of you, I have done a lot of reading in the field of time managment and project management, looking for ways to improve my productivity through better organization.

I found this article on Harvard Business School’s "Working Knowledge" site that does a nice job summarizing some of the ideas I have read over the years that help improve productivity.

August 14, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 10

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

Post 10 addresses changes to the Personal Rights Protection Act of 1984, codified at TCA Title 47, Chapter 25, Part 11.

Here is a summary of the new law:

Under present law, the Personal Rights Protection Act specifies that an individual is entitled to recover the actual damages suffered as a result of the knowing use or infringement of such individual’s rights and any profits that are attributable to such use or infringement which are not taken into account in computing the actual damages. Profit or lack thereof by the unauthorized use or infringement of an individual’s rights is not a criteria of determining liability.

August 13, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 9

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

Post 9 in our ongoing series of legislation of interest to tort lawyers addresses a new act that clarifies the responsibility of cemetary operators when they learn that a body has been interred in the wrong burial plot at the cemetery. If the cemetary operator complies with the statute no damages can be awarded against the cemetery unless the cemetery acted intentionally or with malice.

Click on the link to read Public Acts, 2009 Public Chapter 365.