Day on Torts

August 27, 2009

New Judicial Selection Commission Members

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

The new members of the Tennessee Judicial Selection Commission have been announced.

Lt. Governor Ron Ramsey appointed the following people:

Miles Burdine, President and CEO of the Kingsport Area Chamber of Commerce
Christopher Campbell, a Memphis attorney
Christopher Clem, a Chattanooga attorney
William Jenkins, Jr., a Dyersburg attorney
Teresa Lee, Senior VP and CLO for Eastman Chemical in Kingsport
Thomas Lawless, a Nashville lawyer
Jack Lowery, a Lebanon lawyer
William Young, GC of BCBS in Chattanooga

Speaker Williams appointed the following people:

David Bautista, an attorney and ETSU professor
Mary Helen Beard, a lawyer with Fed Ex in Memphis
Ana Escobar, a Nashville attorney
Russell Johnson, DA in Loudon County
Ed Martindale, a Jackson attorney
Scott Sims, a Nashville attorney
Denise Stapleton, a Morristown attorney
Barry Ward, a Memphis attorney

The speakers jointly appointed Verna Anne Wyatt of Nashville, the ED of the group You Have the Power, a crime victims advocacy group.

August 26, 2009

Additional Email Tips

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

On August 11, 2009 I directed you to an article written by Steven Robbins on writing better emails. Here is a great article written by Jim Calloway on managing your in-box. Jim writes the "Law Practice Tips Blog," a great place to learn about law practice management and technology.

An excerpt:

if an e-mail is being retained because it is really a task, save it as a task! Drag it from the inbox to Tasks on the lower left hand corner of display in Outlook 2007. A new Task appears with the subject line and contents of the e-mail. Then do three quick things: edit the subject line to whatever it is you need to do, give it today’s date and determine what the due date should be. It there is a hard due date, add it here. It you need to start on it several days in advance, then give that date as the due date and chance the task(subject) line to ‘do X by Y date.’

August 26, 2009

AAJ Issues Report About Unsafe Trucks on U.S. Roads

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

The American Association for Justice has issued a report called "Warning! Safety Violation Ahead." The report reveals that "a new analysis of government data reveals that more than 28,000 motor carrier companies, representing more than 200,000 trucks, are currently operating in violation of federal safety laws." The safety violations include "defective brakes, bad tires, loads that dangerously exceeded weight limits and drivers with little or no training or drug and alcohol dependencies." The accompanying press release indicates that

AAJ obtained data on the safety performance of U.S. trucking companies through the Motor Carrier Management Information System (MCMIS), which is maintained by the Federal Motor Carrier Safety Administration (FMCSA). Over a million lines of data were analyzed in an effort to pinpoint just how many unsafe trucks might be on the road.

Tennessee had 107 fatalies involving large trucks in 2007. The country as a whole had 4808 fatalities and 142,949 non-fatal crashes involving large trucks. You can access the national database by clicking here. You can reach the Tennessee database by clicking here. Trucking companies are listed by city.

August 25, 2009

Failure to Inform Patients of Abnormal Test Results

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

An article in Archives of Internal Medicine (2009;169(12):1123-1129) reveals that about 1 in 14 abnormal outpatient test results are either not reported to the patient or the report to the patient is not documented. The article summarizes a study consisting "of a retrospective medical record review of 5434 randomly selected patients aged 50 to 69 years in 19 community-based and 4 academic medical center primary care practices."

Read an abstract of the article here.

August 25, 2009

Hospitals That Do It Right

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

Some health care providers are starting to get it. When you mess up, fix it. Don’t hide. Don’t cover it up. Don’t blame the patient. Just do the responsible thing and fix it.

Today’s Wall Street Journal writes about the relatively recent phenomena of hospitals that not only step in and make a fair payment to a person who has been harmed by negligence but go a step further and (a) figure out how and why the error happened and (b) put measures in place to prevent future errors.

This is absolutely wonderful, and shows that the tort system works. The purpose of the system is not just to compensate victims of negligence but also to deter future harm. Other things being equal, wrongdoers who fail to take steps to deter future harm will be hurt in the marketplace. Thus, the reasonably prudent person who is in the position to cause harm takes steps to prevent harm from occurring. That means they take advantage of the every error to analyze what they can do to prevent future harm. And they try to work out something with the victim of that error before litigation, saving everyone transaction costs and potential harm to reputation.

August 25, 2009

Dan Hull on Lawyering

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

I love to read Dan Hull’s blog, What About Clients? He gets it. Or, more precisely, he gets most of it. He doesn’t get contingent fees, which puzzles me. But the rest of it is firmly within his grasp.

Dan’s post, Litigation: Lawyering, Real Life and a Little Zen is one is wish I would have written. Here is an excerpt from the post, which I hope will wet your appetite to read the rest of it.

The ability "to think like a lawyer"–what you get in law school and then polish in practice–is at most about 8 percent of what you need to be an effective lawyer. That’s right, about 8 percent.*

August 24, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 14

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

Well, are all of these posts on new legislation of interest to Tennessee tort lawyers driving you crazy? Some lawyers forget that the Tennessee General Assembly has passed hundreds of laws that impact tort practice. The rest of us know that tort law has it roots in common law, but is also greatly impacted by statutes and regulations. Thus, we continue down the path of identifying new legislation that will impact the right of your clients to recover damages.

This post addresses a change to the worker’s compensation law, not a tort subject but one of interest to many tort lawyers. T.C.A. Sec 50-6-110(a), which addresses those situations in which worker’s compensation will not be paid to a worker, has been revised. Here is the new , revised section created by Public Chapter 403:

(a) No compensation shall be allowed for an injury or death due to:
(1) The employee’s willful misconduct;
(2) The employee’s intentional self-inflicted injury;
(3) The employee’s intoxication or illegal drug usage;
(4) The employee’s willful failure or refusal to use a safety device;
(5) The employee’s willful failure to perform a duty required by law;
(6) The employee’s voluntary participation in recreational, social,
athletic, or exercise activities (including, but not limited to, athletic events,
competitions, parties, picnics, exercise programs) whether or not the
employer pays some or all of the costs thereof unless:
     (A) Participation was expressly or impliedly required by the
employer; or
     (B) Participation produced a direct benefit to the employer
beyond improvement in employee health and morale; or
     (C) Participation was during employee’s work hours and
was part of the employee’s work-related duties; or
     (D) The injury occurred due to an unsafe condition during
voluntary participation using facilities designated by, furnished by
or maintained by the employer on or off the employer’s premises
and the employer had actual knowledge of the unsafe condition
and failed to curtail the activity or program or cure the unsafe
condition.

August 22, 2009

CPSC Renews Warnings About Bassinets

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

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.’