Day on Torts

September 22, 2008

Oregon Supreme Court Addresses Expert Testimony in Medical Malpractice Cases

The Oregon Supreme Court has released a fascinating opinion on expert testimony.

The Court stated that the Plaintiff

experienced symptoms of pain, swelling, and discoloration in her left hand immediately after injection of a chemical called gadolinium; her pain and the discoloration have continued. At trial, plaintiff proffered the testimony of a medical expert that the gadolinium, instead of going into the vein, went into an area of her hand outside the vein, a circumstance known as "extravasation." As a result, according to the expert, the toxicity of the gadolinium caused both her immediate and her ongoing symptoms. Defendants objected to the expert’s proffered testimony, and the trial court ruled that the testimony did not meet the legal standard for scientific validity. The Court of Appeals affirmed.

September 21, 2008

A Change at the Tennessee Tort Law Letter – And an Announcement

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

After over 13 years,165 editions, and no less than 1500 printed pages, I have resigned from my position as the Editor of the Tennessee Tort Law Letter." The September 2008 edition, mailed a couple days ago, is my final edition.

I will be taking one month off and then will launch a new tort law newsletter in November, 2008. Brandon Bass (who has resigned from his position as Assistant Editor of the TTLL) will be joining me in the effort.

I will share the details on the new newsletter at a later date. For the time being suffice it to say that the new newsletter will be a dramatically different publication and, I hope, one that helps its readers help their clients.

September 19, 2008

Ohio Supreme Court Addresses Value of Services

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

I am Columbus, OH today speaking an Ohio Association for Justice seminar program. The hotel where I am staying is right down the street from the Ohio Supreme Court building. It is appropriate, then, that I write about a new opinion handed down by that court on the issue of damages that may be recovered by a spouse who took off time from work to care for a spouse injured by the negligence of another.

The plaintiff was a financial planner who took off work to care for his injured wife. He sought over $1,000,000 in loss of income. A 5-2 majority of the court rejected his claim for this element of loss, holding instead that he could only recover the economic value of the care as if it had been provided by a non-family member.

To be more precise: "part of the injured spouse’s damages against a defendant can include the fair market value of the home health care provided by the uninjured spouse. Damages are measured not by the lost income of the supporting spouse but by the market value of the services he or she renders."

September 19, 2008

Mississippi Supreme Court Discusses Certificates of Merit in Med Mal Suit

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

The Mississippi Supreme Court accepted review of a case where the plaintiff failed to attach either an attorney’s certificate of consultation, or an expert disclosure in lieu of the certificate, as required by Mississippi Code Annotated Section 11-1-58 (Rev. 2007). The question is whether that fact required a dismissal of the suit as set forth in the statute.

The Court held that "a complaint, otherwise properly filed, may not be dismissed, and need not be amended, simply because the plaintiff failed to attach a certificate or waiver." The basis of the ruling was the seperation of powers between the Legislature and the Court. The Court said:

Section 11-1-58’s requirement that a certificate accompany the filing of the complaint contradicts these provisions of the Mississippi Rules of Civil Procedure. Furthermore, the statutory requirement is totally inconsistent with Rule 8(f)’s requirement that ‘pleadings shall be so construed as to do substantial justice.’

September 17, 2008

Themes for Product Cases

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

Paul Luvera is a highly-regarded trial lawyer from Seattle. His blog has this great post on slogans (read: themes) for trying product liability cases for the plaintiff.

September 15, 2008

E-Discovery Research

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

Do you have an e-discovery issue? Look to this database, which has over 1000 cases on the issue from state and federal courts, for assistance.

Thanks to K&L Gates for compiling and maintaining this resource.

September 14, 2008

Off Topic – Tina Fey as Sarah Palin

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

The Saturday Night Live video.

September 14, 2008

“Defending the Damages Only Case”

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

Smart defense lawyers know that sometimes the best defense is to admit liabilitiy and talk about damages. This article – "Defending the Damages Only Case" – is written by Mercer Clark of Miami. It appeared in the Winter 2008 edition of the Federation of Defense & Corporate Counsel Quarterly.

Defense lawyers: read it and learn. Plaintiff’s lawyers: read it and learn even more.

Note: this is post number 1250 in the 43 month life of this blog.

September 12, 2008

Standard of Care for Prescribing Medication

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

The Tennessee State Board of Medical Examiners has a policy about prescribing drugs. It applies to any prescription written for a patient, whether in person, electronically, or over the Internet.

The policy includes the following:

(1) Except as provided in paragraph (2), it shall be a prima facie violation of T.C.A. 63-6-214 (b) (1), (4), and (12) for a physician to prescribe or dispense any drug to any individual, whether in person or by electronic means or over the Internet or over
telephone lines, unless the physician has first done and appropriately documented, for the person to whom a prescription is to be issued or drugs dispensed, all of the following:
(a) Performed an appropriate history and physical examination; and
(b) Made a diagnosis based upon the examinations and all diagnostic and laboratory tests consistent with good medical care; and
(c) Formulated a therapeutic plan, and discussed it, along with the basis for it and the risks and benefits of various treatments options, a part of which might be the
prescription or dispensing drug, with the patient; and
(d) Insured availability of the physician or coverage for the patient for appropriate
follow-up care.

Paragraph (2) provides as follows:

September 8, 2008

Your PI Cases – The Government Has Its Hand Out

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

We all know that Medicare and Tenncare has a subrogation right in PI and wrongful death cases, but new information being sought by Medicare has lead some lawyers to believe that Medicare will now be looking at case proceeds for payment of future medical bills.

The Medicare, Medicaid and SCHIP Extension Act of 2007, §111, which requires liability (including self-insured), no-fault and workers’ comp insurers to report certain information about injured parties who are entitled to Medicare. New rules have been proposed on the subject and will go into effect on July 1, 2009.

The data required by the new rules will give the government a significant amount of information about PI and WD claimants and the concern is that the data will be used to insist that case proceeds be used to pay future bills.