Day on Torts

September 19, 2008

Mississippi Supreme Court Discusses Certificates of Merit in Med Mal Suit

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.

September 6, 2008

Off Topic – Speech to Nowhere

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

Written by Will Bunch, as found at www.philly.com.

Palin’s Speech to Nowhere

Sarah Palin delivered a great speech tonight — for her party, for John McCain, for herself, for what she set out to accomplish. This was America’s first real glimpse at the Alaska governor, and what we saw was a boffo politician who speaks in a plaintive prairie voice that channels America’s Heartland like a chilling breeze rippling a field of wheat, who knows how to tell a joke, how to bring down the house and bring a tear to a few eyes. She is proud of her family, as she should be, and there is much to admire in her own “personal journey of discovery” (don’t we all have these, by the way?) including her efforts to raise her son Trig. It is indeed nice to think that there would be an advocate for such children inside the corridors of the White House, although I’d surely like to hear what — if anything — she’s done for special needs kids as governor of Alaska.

September 5, 2008

Insurance Coverage Litigation?

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

In most states the duty to defend an insured in litigation is broader than the duty to indemnify that insured.

Here is a 50-state survey prepared by the highly regarded Chicago-based firm of Hinshaw & Culbertson on the duty to defend. Here is how they describe the 105-page publication:

Duty To Defend contains a survey of the law of the 50 United States and the District of Columbia on an insurer’s duty to defend a lawsuit against its insured and related topics. Each state entry includes a discussion of the scope of the duty to defend in that state and of the test employed by the state to determine whether the insurer owes such a duty. The state entries also include discussions of whether the insurer may defend pursuant to a reservation of rights and the implications of doing the same, including conflicts of interest which may be created; whether a declaratory judgment action may be brought to determine the insurer’s rights and obligations under the policy; and the consequences of the insurer’s failure to defend where it has an obligation to do so.

September 3, 2008

“Your Plaintiff is a Scumbag”

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

It is not uncommon for the defense in personal injury cases to attack the character of the plaintiff. It seems to me that young defense lawyers particularly enjoy doing this to uneducated, unsophisticated plaintiffs.

The defense in a products case in California introduced evidence that the plaintiff had a mistress and was a bigamist. The jury rendered a defense verdict, and the plaintiff moved to set it aside saying that the admission of the evidence unfairly prejudiced the jury against the plaintiff. The California Court of Appeals, 2nd District agreed, saying

Michelin’s primary basis for introducing evidence of Winfred’s illicit conduct was to contradict his deposition testimony that he could not recall who [his wife and mistress] were. But his extramarital affairs were irrelevant to the substantive issue in the case: the cause of the accident. To the extent the evidence was relevant to Winfred’s credibility, it was more prejudicial than probative. … From start to finish, Michelin painted Winfred as a liar, cheater, womanizer, and a man of low morals based principally, if not solely, on what we have concluded was inadmissible evidence.