Day on Torts

January 25, 2008

Appellate Forms – And More

Did you that our appellate courts had forms to help guide you through the appellate court process?

This page at the Administrative Office of the Courts website has various forms relevant at different stages of the appellate process, inlcuding a sample brief cover page, a motion for extension of time, etc.

That being said, the recent decision in Range v. Baese reminds us of the importance of knowing and following the rules of appellate procedure. The Tennessee Court of Appeals reversed a grant of summary judgment because "multiple deficiencies in the record on appeal" did not permit it to reach the merits.

January 23, 2008

Videotaping of Rule 35 Exams

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

The Oklahoma Supreme Court has ruled that a plaintiff has a right to videotape a Rule 35 examination (often mistakenly referred to as an "independent medical exam").

The Court’s conclusion:

"Our decision to allow an examinee to videotape a court-ordered independent examination was foreshadowed by our decision in McCullough v. Mathews, 1995 OK 90, ¶¶1-2, 918 P.2d 25. In McCullough we recognized that the broad language of 12 O.S. 2001 §32352allows the examinee to bring a third party representative to a court-ordered independent examination. We also determined that in addition to handwritten notes, audiotaping by the examinee, which was incorporated into the statute by the 2001 recodification of §3235, would be allowed as a "condition" of the examination. While audio recording is capable of providing proof that the examination did not involve a malingering patient or a cursory examination, we now hold that a video recording may be a superior method of providing an impartial record of the examination. Accordingly, a party to a lawsuit who is required to submit to a medical examination pursuant to 12 O.S. 2001 §3235 is permitted to videotape the examination." [Footnotes omitted.]

January 22, 2008

Pushing Pills for Profit

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

This study in PLoS Medicine reports that, based on estimates from publicly available data, drug manufacturers probably spend more money on advertising than they do for research and development.

In the words of the study: "From this new estimate, it appears that pharmaceutical companies spend almost twice as much on promotion as they do on R&D. These numbers clearly show how promotion predominates over R&D in the pharmaceutical industry, contrary to the industry’s claim. While the amount spent on promotion is not in itself a confirmation of Kefauver’s depiction of the pharmaceutical industry, it confirms the public image of a marketing-driven industry and provides an important argument to petition in favor of transforming the workings of the industry in the direction of more research and less promotion."

This study makes it clear that it is using estimates to reach its conclusions. The manufacturers don’t report this data, so the authors had to take the limited available information and do what they could. Obviously, they could be wrong.

January 21, 2008

What It Takes To Be A Great Trial Lawyer – Part 5

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

5. A Great Trial Lawyer Maintains A Reasonable Caseload

In Part 4 we discussed the fact that great trial lawyers take time to think about their cases. And we mentioned that many lawyer argue that they don’t have time to think.

I suggest that there are only four possible reasons why lawyers don’t have time to think. First, a lawyer who doesn’t have time to think is not working hard enough. Alternatively, a lawyer who doesn’t have time to think has too much work. Third, it possible the lawyer has an appropriate caseload and is working an appropriate number of hours but is not operating efficiently. Fourth, a lawyer who doesn’t have time to think can be lazy.

January 18, 2008

Article on T.C.A. Sec. 20-1-119

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

The United States Court of Appeals for the Sixth Circuit released a decision several months ago that presents a real danger for plaintiff’s lawyers and their clients who seek to rely on T.C.A. Section 20-1-119 to avoid a statute of limitations defense.

The Tennessee Bar Journal published my article on the case. The article lays out the problems with the opinion and the case law you can use to try to convince a federal judge that the decision is plain error.

If caught in a trap, I would recommend bringing the case law I cite in the article to attention of the federal judge and asking the court to certify the question to the Tennessee Supreme Court.

January 18, 2008

Op-Ed Published

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

The Tennessean has been kind enough to print an op-ed piece I wrote and to editorialize against the health care industry’s attempt to avoid full responsibility for the harm it causes to its patients.

Read the editorial here.

Read my op-ed piece here.

January 17, 2008

Tennessee Board of Professional Responsibility

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

The Tennessee Board of Professional Responsibility has a website that includes a section that allows you to search ethics opinions by key word. Of course, it also has a complete set of the displinary rules.

January 16, 2008

Surgical Errors

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

The November 2007 Annals of Surgery has an interesting article on surgical errors. The abstract of the article says that the authors "analyzed 444 randomly sampled surgical malpractice claims from four liability insurers. Among 258 claims in which injuries due to error were detected, 52% (n = 133) involved technical errors."

They found that "[f]orty-nine percent of the technical errors caused permanent disability; an additional 16% resulted in death. Two-thirds (65%) of the technical errors were linked to manual error, 9% to errors in judgment, and 26% to both manual and judgment error. A minority of technical errors involved advanced procedures requiring special training ("index operations"; 16%), surgeons inexperienced with the task (14%), or poorly supervised residents (9%). The majority involved experienced surgeons (73%), and occurred in routine, rather than index, operations (84%). Patient-related complexities-including emergencies, difficult or unexpected anatomy, and previous surgery-contributed to 61% of technical errors, and technology or systems failures contributed to 21%."

So, what do they conclude? "Most technical errors occur in routine operations with experienced surgeons, under conditions of increased patient complexity or systems failure. Commonly recommended interventions, including restricting high-complexity operations to experienced surgeons, additional training for inexperienced surgeons, and stricter supervision of trainees, are likely to address only a minority of technical errors. Surgical safety research should instead focus on improving decision-making and performance in routine operations for complex patients and circumstances."

January 15, 2008

Are Doctors Fleeing Tennessee? The Facts

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

We are hearing it again this year: doctors are leaving the state because we don’t have caps on damages in medical malpractice cases. When pressed for evidence on this point, a doctor will refer to "some guy in Memphis" or "some woman in Knoxville" who quit practicing medicine because of the risk of being sued.

Set aside the fact that the risk of being sued exists whether there are damage caps or not. Are doctors leaving the state?

Well, consider this. In 1975, at the time of the first medical malpractice crisis, Tennessee had 11.3 doctors of medicine in patient care for every 10,000 residents.

January 14, 2008

Fax Filing of Affidavit Not Sufficient

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

The Eastern Section of our Court of Appeals has ruled that Rule 5A(4)(c) of the Tennessee Rules of Civil Procedure means what it says and that a party cannot fax file an affidavit opposing a motion for summary judgment .

Rule 5A (4)(c) says that “The following documents shall not be filed in the trial court by facsimile transmission: . . . (c) A will or codicil to a will; a bond; or any pleading or document requiring an official seal . . . .” Affidavits require a seal.

A technicality? Certainly. The rule? Certainly. Are you ever going to take the chance of filing an affidavit by fax just to argue to the Tennessee Supreme Court that a trial judge should not follow the rule? Nope.