Day on Torts

January 15, 2008

Are Doctors Fleeing Tennessee? The Facts

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.

January 13, 2008

Book Updated

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

Day on Torts: A Handbook for Tennessee Tort Lawyers 2008 has been updated to include all cases through Sunday, January 13, 2008.

The updates work like this. After you have found the leading case summarized in one of 233 sections of the book, go to the "Free Updates" page of the book website, scroll down to the relevant section, and you will any decision released since October 1, 2007 on that subject.

Don’t have the book? Well, my bias is obvious, but I must say I have been very gratified by the comments I have received to date. I have had multiple people tell me they use it every day. I was in three different law offices the other day and saw the book open on lawyer’s desk. Last week one purchaser placed a second order for the rest of the lawyers in his office. Even judges have begun ordering it.

January 12, 2008

Tort Cases By The Numbers – Part 2

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

Yesterday I wrote about tort statistics revealed by the 2006-07 "Annual Report of the Tennessee Judiciary." Among the statistics I cited was that there were 584 medical malpractices cases filed in the state of Tennessee and a total of 15 medical malpractice trials.

To put that in perspective, remember that according to the National Institute of Health 98,000 people a year die in the United States from malpractice in hospitals alone. Assuming that Tennessee is neither worse nor better than average, that means that 1986 Tennesseans die each year as a result of malpractice in a hospital setting (because we have about 2% of the nation’s population).

And yet only 584 malpractice cases were filed in the entire state for the fiscal year ending June 30, 2007. Those cases presumably involved not only deaths in hospitals but also injuries in hospitals and deaths and injuries in outpatient settings, nursing homes and surgery centers. They also include cases against pharmacies and home health agencies and outpatient physical therapy centers.

January 11, 2008

Tennessee Tort Cases By the Numbers

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

The Tennessee Supreme Court has just released the 2006-07 “Annual Report of the Tennessee Judiciary.” It has some amazing, indeed alarming, information.

There were 584 medical malpractice cases filed in Tennessee last year. To put that in perspective, there were 10,165 general “Damages/Torts” cases filed. Indeed, there were less medical malpractice cases filed than there were kidnapping (660) and homicide (1622) cases.
There were 28 jury trials in Chancery Court and 393 civil jury trials in Circuit Court in the entire state.
There were just 590 jury and non-jury personal injury and death cases tried in the entire state; 289 of those were jury trials. In 242 jury and non-jury cases the plaintiffs recovered money (about 40%).
Davidson County had 54 of the jury trials; Shelby County had 31. Knox Courty had 45 jury trials of personal injury and wrongful death cases, Hamilton County had 23 and Montgomery County had 6. Forty-three counties had no personal injury or wrongful death jury trials.
There were only 15 medical malpractice trials in the entire state during the one year period covered by the report. ]
About 5% of all personal injury and tort cases end up going to trial (jury or non-jury).
Total damages awarded ($44,600,000) in personal injury and death cases is down from $94,500,000 a year previously.
The total number of tort cases filed has dropped in the last ten years.
This data is for the one year period ending June 30, 2007.

Read the statistical section of the Annual Report here.

I will have some comments about this data in later posts.

January 10, 2008

What It Takes to Be A Great Trial Lawyer – Part 4

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

A Great Trial Lawyer Takes Time to Think

It is easy to get lost in the daily grind of litigation. The phone constantly rings. The computer’s “ding” tells us that another email has arrived. Each piece of mail brings another task and another deadline. Each fax brings bad news, especially those faxes that arrive after hours.

It is easy to fall into a reactive mode and then find yourself scrambling to do what you should have done long before. Deadlines get extended or outright missed. Interrogatory answers are incomplete. Your opponent’s ridiculous objections to discovery go unchallenged. You think about the need for a particular type of expert later than you should and end up using the only one you can find because the “good” ones are too busy to work on a short time-table. Your failure to follow a scheduling order results in your client’s case being continued to a date six months later, and then she gets in another car wreck and injures the same body part. And so on.

January 9, 2008

Check A Little Later

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

I have an early morning meeting and won’t be able to post until closer to Noon. Check back later for another in the Great Lawyer series.

January 7, 2008

Evidence of Settlement

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

T.C.A. Sec. 29-11-105 (b) says as follows: "No evidence of a release or covenant not to sue received by another tort-feasor or payment therefor may be introduced by a defendant at the trial of an action by a claimant for injury or wrongful death, but may be introduced upon motion after judgment to reduce a judgment by the amount stipulated by the release or the covenant or by the amount of the consideration paid for it, whichever is greater."

Does this prohibit a defendant from introducing evidence of a settlement with another defendant but permit a plaintiff to do so (at plaintiff’s option)? If so, can the plaintiff introduce the fact of settlement, the amount of the settlement, or both?

January 3, 2008

Savings Statute for Dismissed Federal Court Actions

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

T.C.A. Sec. 28-1-115 gives a plaintiff who is bounced out of federal courts for lack of jurisdiction one year from the dismissal to re-file the action in state court.

Here is the exact text of the statute: "Notwithstanding any applicable statute of limitation to the contrary, any party filing an action in a federal court that is subsequently dismissed for lack of jurisdiction shall have one (1) year from the date of such dismissal to timely file such action in an appropriate state court."

January 3, 2008

Better Looks = More Money? For Lawyers?

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

The Economist reports about a new study that links physical appearance and income.

The article says that " a series of surveys in the United States and Canada [show] that when all other things are taken into account, ugly people earn less than average incomes, while beautiful people earn more than the average. The ugliness “penalty” for men was -9% while the beauty premium was +5%. For women, perhaps surprisingly considering popular prejudices about the sexes, the effect was less: the ugliness penalty was -6% while the beauty premium was +4%."

But there is more: "The difference also applies within professions. Dr Hamermesh [the author of the study] looked at the careers of members of a particular (though discreetly anonymous) American law school. He found that those rated attractive on the basis of their graduation photographs went on to earn higher salaries than their less well-favoured colleagues. Moreover, lawyers in private practice tended to be better looking than those working in government departments."