Day on Torts

April 24, 2009

Tennessee Ranks #40 in Doctor Discipline

Public Citizen ranks Tennessee 40th in its 2008 ranking of serious doctor disciplinary actions taken by state medical licensing boards.

The Tennessee board took a total of 40 serious disciplinary actions against the 18,137 doctors in Tennessee, or a total of 2.44 actions per 1000 physicians. The total leading states were Alaska (6.54 per 1000) and Kentucky (5.87 per 1000). The two states with the lowest rankings were Minnesota (0.95 per 1000) and South Carolina (1.23 per 1000).

In 2006 Tennessee ranked 29th on the list and in 2007 it ranked 28th.

April 23, 2009

Medical Helicopter Crashes

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

The Wall Street Journal has been writing a series of articles about crashes of medical helicopters. A total of 13 crashes took 29 lives in 2008.

This crashes can give rise to several potential types of claims. The patient has a potential claim, assuming he or she can prove that there was negligence in the operation or maintenance of the helicopter. Assuming that the health care providers are employed by the same entity that owns, operates and maintains the helicopter, they will be limited to a worker’s compensation claim. If a different company flies, owns, or maintains the helicopter, a lawyer should look to see whether the negligence of any of the non-employers contributed to cause the incident. Of course, it is always possible the crash was caused by a defect in the helicopter, the failure of a replacement part, etc.

Let me hasten to add that not every crash will give rise to a lawsuit. For example, the patient who survives a crash may not be able to prove that the crash caused an injury. Or the family of a deceased patient may not be able to show that the patient would have survived the acute illness or trauma the resulted in the air transport of the patient in the first place. A through investigation of each crash is necessary to determine whether the crash was caused by negligence, whether the crash caused an injury or death, and whether the wrongdoer, if any, is protected from liability by worker’s compensation law or some other law.

April 22, 2009

Prescribing Drugs for Off-Label Use

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

Many of us know that doctors prescribe drugs for uses other than those approved by the FDA.

This article discusses off-label drug prescribing and suggests that physicians who prescribe a drug for an off-label use follow the following steps to obtain informed consent:

a statement that the off-label use is an “experimental use” so all the possible side effects and complications are not known;
a list of the common and/or known risks and complications with use of the medication;
a statement that the details of the treatment have been fully explained in lay terms or in terms that are easily understood by the patient;
a statement that no guarantees about the results of the medication are given; and
a statement that the patient is not required to take the medication.

Read the entire article here.

April 20, 2009

Expert Testimony Allowed on the Issue of Recklessness in Medical Negligence Case

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

The Idaho Supreme Court has permitted an expert to opine that two defendants in a medical negligence case engaged in not just negligent but reckless conduct.

In Jones v. Crawford, 2009 Opinion 53 (Idaho S. Ct. April 8, 2009), a defendant appealed from an adverse jury verdict in a wrongful death case. Plaintiffs charged that the decedent’s death from an air embolus after spine surgery was a result of the negligent and reckless conduct of the defendants. The trial judge permitted the plaintiff’s experts to opine that the conduct of two of the defendants was reckless.

In affirming the trial judge’s decision to admit the expert testimony on the issue of recklessness, the Idaho Supreme Court said

April 17, 2009

Preparing the Witness for Deposition – From the Perspective of the Defense

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

Evan Schaeffer at The Trial Practice Tips Weblog tracked down an article titled "Preparing A Witness for a Successful Deposition" written by Matt Keenan, a defense lawyer with Shook, Hardy and Bacon in Kansas City.

An excerpt:

In my 20-some years of working with company witnesses as part of the discovery process, I’ve learned that the prospects of a deposition can stress even the most accomplished corporate executive.

April 15, 2009

“Preparing for the Video Deposition”

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

Yesterday I mentioned that James Publishing Company’s website includes excerpts of certain of its books. I thought that the excerpt I referred to yesterday was so valuable that it was worth another post, so here is an excerpt from Section 439 of "How to Prepare for, Take and Use a Deposition" by Daniel P. Dain.

§439 Preparing for the Video Deposition

If your witness’ deposition is to be videotaped, additional preparation is generally in order. Unlike the standard stenographic record, a videotaped deposition captures the witness’s appearance, demeanor and testimony. Consequently, you may want to experiment with makeup, hair and clothing, in preparation for the deposition. You may also want to conduct a mock video deposition of your witness to not only familiarize your witness with the nature of the proceeding, but to graphically demonstrate what areas need correcting before the actual deposition. Often the witness’s review of his or her own performance is a much better aid in that witness’s preparation than all of your carefully drafted verbal admonitions.

April 14, 2009

“Using A Checklist for Witness Preparation”

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

James Publishing Company’s website includes excerpts of certain of its books. Here is an excerpt from Section 433 of "How to Prepare for, Take and Use a Deposition" by Daniel P. Dain.

§433 Using a Checklist for Witness Preparation

Some lawyers prefer to go through an extensive checklist of points for discussion with their witness. One benefit of using this approach is that it provides some assurance that you will not leave out an important point. One of the problems with this approach, and with any approach, is that your witness is only likely to recall and put into use a very few points. Whatever approach you choose, make sure that your emphasis is on your most important points because the others may fall by the wayside.

April 13, 2009

David Mills’ Courtoon Caption Contest Winner

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

David Mills, lawyer and cartoonist, held a contest to determine the best caption for this cartoon. The winning caption appears below.

Courtoon(1)

I submitted several entries, including "“Yes, I made $4M last year testifying for Ford, but that does not influence my professional judgment," and "demonstrative evidence is essential when proving loss of consortium for the single male." I also offered this caption from the standpoint of a juror: “He makes more sense than the last three witnesses.” I did not win, but must confess that the winning caption is much better than any of those I offered.

David has a wonderful gift. I confess – I am jealous.

April 10, 2009

Never Events

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

Here are the 28 medical events that the National Quality Forum says should never occur:

Surgical Events

Surgery performed on the wrong body part
Surgery performed on the wrong patient
Wrong surgical procedure on a patient
Retention of a foreign object in a patient after surgery or other procedure
Intraoperative or immediately post-operative death in a normal healthy patient

April 8, 2009

Is that Deposition Necessary?

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

I brought a couple posts from the Lean and Mean Litigation Blog to your attention back in December. These posts discussed the need of formulating a discovery plan before taking depositions.

Here is a related article titled "Mastering the Blind Cross-Examination" written by Mark A. Nuebauer. This article questions the need to depose everyone and provides tips on cross-examining a witness who has not been deposed.

An excerpt: "To be effective, blind cross must have a specific goal. More often than not, each witness in a trial is intended to lay out a specific fact or a set of key facts that help provide the premise for that side’s case. Cross-examination should be a laser beam designed to attack that side’s contention of that fact or set of facts. In short, blind cross-examination should be a stiletto, not a sledge hammer attack."