Day on Torts

January 5, 2009

Medicare Subrogation

Plaintiff’s lawyers: do you want to have the hell scared out of you? Read this article by Rick Swedloff on Medicare subrogation entitled "Can’t Settle, Can’t Sue: How Congress Stole Tort Remedies From Medicare Beneficiaries." The article appears in Volume 41.2 of the Akron Law Review.

[A 2003 amendment to the Medicare Secondary Payor Act, which grants rights to Medicare in personal injury cases where Medicare pays benefits] significantly affects the ability of Medicare beneficiaries to bring or settle individual tort claims, the incentives for attorneys to represent Medicare beneficiaries in individual and mass tort litigation, and the tort system generally. Because of this – and despite the fact that courts and academics have largely ignored this amendment – attorneys from around the country have sounded alarm bells since the government first took the litigation position now reflected in the MSP. Lawyers have raised serious concerns about their ability to bring and settle individual and mass tort litigation under the MSP’s harsh liability rules. [Footnotes omitted.]

December 31, 2008

Fee Caps – And the Harm to the Patient that Results

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

There is a lot of talk about capping fees in medical malpractice cases. Fees are already capped, of course, at one-third of the recovery, but the health care industry wants further limitation on fees charged to plaintiffs in successful cases.

Why? Because they’re not stupid. They understand that a lower fee cap means that fewer cases will be filed and those that are filed will be filed by less qualified lawyers. Why? Because lawyers generally will not file cases when they cannot earn a fair return for their efforts on the case. And more qualified lawyers will file still fewer cases because they can earn a better return on other types of work. Reduced filings mean reduced indemnity payments and defense costs, which means more profits for insurers, which presumably will lead to reduced insurance rates. Filings by less qualified lawyers means more defense wins, which means more profits for insurers, which once again will presumably lead to reduced insurance rates.

What about statutory limitations on fees paid to defense counsel? Wouldn’t that save defendant’s money? Of course it would, but that would affect the quality of the lawyer who is willing to defend malpractice cases. A very good or great lawyer will not be willing to work for below-market rates.

December 31, 2008

Law Review Article on Police Chase Cases in the 6th Circuit

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

Do you have a Sec. 1983 lawsuit for injuries to a bystander arising out of a police chase? Are you thinking about filing one? Are you defending one?

If the answer to any of these questions is "Yes," I encourage you to read "When Innocent Parties Are Injured or Killed in High-Speed Pursuits, What Police Conduct Sufficiently Shocks the Conscience to Allow Recovery?" by Anna M. Krstulic. The article appears in the Vol. 47, No. 3 of the Washburn Law Journal (Spring 2008). Here is the conclusion she reached after studying the law in this area :

Given the high statistics of deaths and serious injuries that result from police pursuits, the Supreme Court should revisit the issue of federal liability under § 1983 to define a workable standard. Since both intent to harm and deliberate indifference can “shock the conscience,” courts must evaluate the totality of the circumstances in each case to determine which standard is appropriate. Police officers should be held accountable for violating pursuit regulations, and municipalities should be held accountable for failure to train their police officers. The governmental authority that police exercise in conducting pursuits must have clearly defined constitutional limitations. As one commentator noted, “[w]hat is shocking is the continued willingness of many officers to engage in unwarranted pursuits in the face of widespread awareness in the police community itself of the likelihood of tragic consequences.” [Footnotes omitted.]

December 29, 2008

Practice Tip – Professional Services Sales Tax on Lawyers?

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

From time to time over the years there has been talk about imposing a sales tax on professional services. One cannot help but wonder whether there will be an effort to impose such a tax to help solve the budget problem facing our state government.

Like all sales taxes, a tax on professional services should be paid by the client. However, to make that absolutely clear to the client, you may wish to include a paragraph similar to the one set out below in your fee agreement.

Possible Tax on Professional Services. In addition to the expenses listed above, in the event that the State of Tennessee imposes a tax on legal services (legal services, expenses of representation, or both), Client agrees to pay any such tax that is assessed against Attorneys. No such tax has been imposed by the State of Tennessee at this time, and Attorneys will inform me if such a tax is passed by the Legislature and signed in to law by the Governor. If the contingent fee option is chosen, any such taxes will be deducted from the recovery after attorneys’ fees have been calculated and deducted. If the hourly fee option is chosen, the applicable taxes will added to Client’s monthly bill.

December 25, 2008

Chamber of Commerce Lobbies for Protection from Lawsuits

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

Here is the text an December 20, 2008 article on the CBS News website about the efforts of the U.S. Chamber of Commerce to take advantage of the opportunity created by the world’s financial problem to seek legal protection for wrongdoers. Thanks to Suzanne Keith at TAJ who forwarded it to me.

Made in America: Corporate Gall

Dec. 20, 2008

December 24, 2008

The Politics of Fear in an Effort to Achieve Tort Reform

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

Insurance companies know that they have little credibility in the fight over access to the courthouse. This is particularly true in the medical malpractice area, where the evidence in Tennessee demonstrates that (a) doctors and hospitals win over 96% of jury trials; (b) professional liability rates, adjusted for the medical inflation rate, have been more or less flat for over 20 years; (c) the average settlement is $256,100 (for calendar year 2007); and (d) $1,000,000 verdicts are extremely rare.

But that doesn’t sell insurance. And it certainly doesn’t cause doctors to jump on the tort reform bus.

What does? Fear. And it was an effort to create fear that gave rise to this statement by State Volunteer Mutual Insurance Corporation in a publication to their insureds:

December 22, 2008

Will Budget Cuts Hurt Our Judiciary (And Tennesseans)?

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

The state’s law libraries are closing their doors to lawyers and other citizens. The Administrative Office of the Courts is cutting programs and staff. Appellate court law clerks are fearing the loss of their jobs.

Tennessee budget problems are hitting the judiciary and it remains to be seen what impact the financial cuts have on civil jury trials. In New Hampshire, civil and criminal jury trials are being eliminated for an entire month. Florida has cut 280 clerks, lawyers and staff members, and if another 10% budget cut is made civil jury trials will be suspended, according to one judge.

Will the budget crisis force the state to take a hard look at judicial system? There are some tough questions that will be asked. Do we need two sets of clerks – chancery and circuit? Should the Tennessee Supreme Court be given the power to administer the court system, allocating resources across the state as needed?

December 18, 2008

Tennessee Nursing Homes Rank At the Bottom

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

According to the Tennessean. Tennessee nursing homes rank No. 48 (beating only Louisiana and Georgia), according to new survey information out from the Centers for Medicare and Medicaid Services. Less than 7% of the nursing homes in Tennessee were rated above average.

The paper reports that

"[o]f the 40 nursing homes listed in Davidson, Rutherford, Sumner, Williamson and Wilson counties, 11 fell well below average. Three of those — Briley Nursing and Rehabilitation Center in Whites Creek, Greenhills Health and Rehabilitation Center in Nashville and Cumberland Manor Nursing Center in Nashville — not only received the poorest marks for overall quality, but also received the lowest possible score in every category."

December 18, 2008

My Grandmother’s Birthday

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

On March 24, 2006 I wrote about the death of my grandmother, Milda Heath, at the age of 97. Today is her 100th birthday.

She was a wonderful grandmother, mother, teacher and citizen. I miss her.

December 17, 2008

Summary of New FRE 402

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

Here is a summary of FRE 502 which came into effect on September 18, 2009. The rule – which addresses the attorney client privilege and work product doctrine – is intended to provide increased clarity in this confusing area of the law.

The author explains that "[t]he rule establishes a presumption against subject matter waiver, resolve the issue of inadvertent disclosure, provides for confidentiality orders and supports party agreements, among other issues. "

Thanks to Federal Evidence Review.