Day on Torts

December 5, 2007

When Should a Doctor Speak Out?

This article in yesterday’s The Washington Post reported that 96% of physicians thought that they should report an impaired or incompetent colleague – but 45% said that they did not always do so.

In addition, "46 percent said they had failed to report at least one serious medical error that they knew about, despite the fact that 93 percent of doctors said physicians should report all significant medical errors that they observe."

I am not saying anything negative about doctors by telling you about this article. I am simply saying that doctors are human and that sometimes their conduct falls below what they expect of themselves.

December 4, 2007

Georgia Supreme Court Says Med Mal Statute of Repose Not Unconstitutional

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

The Georgia Supreme Court has refused to strike down that state’s statute of repose in medical malpractice cases when challenged on equal protection grounds. Georgia has a five-year statue of repose in medical malpractice cases (Tennessee has a three-year statute of repose).

The case is Nichols v. Gross, S07A1027 ( Georgia S. C. Nov. 21, 2007). Read the opinion here.

November 26, 2007

Western Section Reverses SJ in Negligent Entrustment Case

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

The Court of Appeals for the Western Section has said that a plaintiff in a wrongful death case has made out a claim of negligent entrustment of a vehicle against the parents of a drunk driver.

Here are some essential facts viewed in the light most favorable to the plaintiff:

"Like the defendant in [v. East Tennessee Pioneer Oil], in this case the [defendant]Johnsons clearly provided and controlled the means by which [their son the defendant] Jack was able to operate the vehicle. Regardless of whether the Johnsons purchased the vehicle from Ms. King and subsequently entrusted it to Jack, [The plaintiff] Mr. Watrous has presented evidence that the Johnsons repaid a loan Jack had taken against the title to the vehicle the day before it became due. The Johnsons do not dispute that, had they not paid off the title loan, the Concorde would nave been repossessed by Tennessee Title Loans. Thus, as Mr. Watrous asserts, the Johnsons essentially “re-purchased” the Concorde from Tennessee Title Loans and provided it to Jack. Further, it is undisputed that Jack had no access to funds other than his student loans and those provided by the Johnsons, that the Johnsons provided Jack with the funds to repay loans that had become due, and that the Johnsons paid virtually all of Jack’s expenses. The Johnsons do not dispute that they had knowledge of Jack’s history of driving under the influence, or that Ms. Johnson provided Jack with a check in the amount of $100 to be cashed at a gas station the night on which Jack struck and killed Ms. Watrous."

November 21, 2007

Court of Appeals Says Savings Statute Trumps Statute of Repose

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

The Tennessee Court of Appeals has held that the savings statute trumps the products liability statute of repose.

In Maino v. The Southern Company, Inc., d/b/a The Southern Company, et al., W2007-00225-COA-R9-CV (Tenn. Ct. App. NOv. 19, 2007) the Western Section of the Court of Appeals held that a products liability case brought under the savings statute was permitted to proceed even though the statute of repose expired during the savings period.

The Court said that "[p]ermitting a plaintiff to refile an action that originally was filed within the statute of limitations and ten-year statute of repose, non-suited, and refiled within the one-year period permitted by the savings statute does not frustrate the legislative intent of achieving a degree of predictability for the purposes of setting product liability insurance premiums. Unlike mental incompetency, the extension of time under the savings statute is neither unpredictable nor without limitation. Additionally, no surprise or hardship is worked on a defendant or its insurance carrier where actual notice of an asserted claim is had within the statutory period. On the other hand, the purpose and spirit of the longstanding savings statute is realized."

November 19, 2007

TSC Accepts Review of Railroad Crossing Case

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

Should a court ever determine, as a matter of law, that a plaintiff is fifty percent or more at fault? Should it ever do so when there is some evidence of fault of the defendant?

Those questions will be explored by the Tennessee Supreme Court in the coming months. The Court has accepted review of Martin v. Southern Railway Company, a railroad crossing death case. Judge Franks, joined by Judge Swiney, found that the plaintiff’s claims were barred as a matter of law. Judge Susano dissented, saying that a jury question was present.

Look for a decision in late Spring, 2008.

November 18, 2007

Book Updates Posted

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

Updates to A Handbook for Tennessee Tort Lawyers – 2008 have been posted on the book’s website. The updates are available in the "free updates" section of the site. To utilize this service, simply scroll down to the relevant chapter and section and click on it to see if there are any new cases in the relevant subject matter.

Book sales are brisk. Two good-sized firms who handle primarily personal injury work have purchased a copy for virtually every lawyer in the firm.

Recall that the book contains the leading Tennessee tort case on 233 subjects; here is a table of contents for that section of the book. The book also contains selected statutes of interest to tort lawyers and a complete set of the Tennessee rules of civil procedure, evidence and appellate procedure.

November 16, 2007

An Article from a Doctor Who Gets It

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

Read this heart-warming article by a doctor from Memphis as published in the November 12, 2007 Commercial Appeal.

Thanks to Lang Wiseman from Memphis for alerting me to the article.

November 14, 2007

Illinois Trial Court Strikes Down Caps

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

An Illinois trial judge has declared that caps on certain medical malpractice cases imposed by the Illinois Legislature violate the rights of medical malpractice victims.

An article in the Archives

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

An article in the Archives of Internal Medicine looked at closed malpractice claims to see what caused the errors made by medical trainees. A summary of the findings:

"Among 240 cases, errors in judgment (173 of 240 [72%]), teamwork breakdowns (167 of 240 [70%]), and lack of technical competence (139 of 240 [58%]) were the most prevalent contributing factors. Lack of supervision and handoff problems were most prevalent types of teamwork problems, and both were disproportionately more common among errors that involved trainees than those that did not (respectively, 54% vs 7% [P < .001] and 20% vs 12% [P = .009]). The most common task during which failures of technical competence occurred were diagnostic decision making and monitoring of the patient or situation. Trainee errors appeared more complex than nontrainee errors (mean of 3.8 contributing factors vs 2.5 [P < .001])." You can access the article here.

Thanks to the DC Metro Malpractice Blog for informing me about the article.

November 12, 2007

Discoverability of Insurance Policy Limits

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

In Tennessee, the Supreme Court has an advisory commission that recommends changes in the rules of civil procedure, evidence and appellate procedure. Proposed changes are circulated for public comment and then the court sends them to the legislature for approval. The legislature can only vote the rule changes up or down, it cannot modify them.

However, the legislature has persuaded the court to withdraw proposed changes to the rules on several occasions. The most frequent subject of objection has been a proposed change to Rule 26 of the Tennessee Rules of Civil Procedure which would permit the discovery of the existence and amount of liability insurance coverage. Insurance companies, primarily Tennessee Farmers Mutual Insurance Company, opposes disclosures of insurance information.

Now the Tennessee Supreme Court is going to get the opportunity to determine whether to permit the discovery of insurance information by way of case law. In Thomas v. Oldfield, No. M2006-02767-COA-R9-CV, (Tenn. Ct. App. Nov. 7, 2007) the intermediate court rejected a plaintiff’s effort to discover insurance information. The court held as follows: