Day on Torts

August 25, 2009

Hospitals That Do It Right

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.’

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.