Day on Torts

August 22, 2007

A Practice Tip for Federal Court

Did you know that you can avoid the use of affidavits in federal court and use declarations instead?

I confess that I did not until I read this post in What About Clients?, one of my favorite blogs. 28 U.S.C. Sec. 1746 "allows a federal court affiant or witness to prepare and execute a "declaration" rather than an affidavit–and do that without appearing before a notary. Under section 1746, a "declaration" has the same force and effect of a "regular" notarized affidavit."

Holden Oliver, the author of the post, points out that "an un-notarized declaration with the simple oath required by section 1746 can be used any time you need an affidavit, e.g., an affidavit supporting (or opposing) a summary judgment motion."

August 21, 2007

Fighting Back

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

The people opposed to the efforts to restrict the right to trial by jury in personal injury and wrongful death cases are fighting back – this time with a video on YouTube.

Watch it here.

August 21, 2007

Tennessee Supreme Court Releases Defamation Opinion

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

The Tennessee Supreme Court has released an opinion that sets forth the scope of the litigation privilege to pre-litigation activity by counsel. The Court said that "an attorney is privileged to publish what may be defamatory information prior to a proposed judicial proceeding, even though the communication may be received by individuals who are unconnected with the proposed proceeding. In order for the privilege to apply, (1) the communication must be made by an attorney acting in the capacity of counsel, (2) the communication must be related to the subject matter of the proposed litigation, (3) the proposed proceeding must be under serious consideration by the attorney acting in good faith, and (4) the attorney must have a client or identifiable prospective client at the time the communication is published."

Read the entire opinion here.

August 20, 2007

Big News from Medicare

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

Medicare is no longer going to pay hospitals from costs arising from "preventable errors" and "serious preventable events."

What are preventable errors? The Washington Post story on the subject says this: "bedsores, or pressure ulcers; injuries caused by falls; and infections resulting from the prolonged use of catheters in blood vessels or the bladder."

Serious preventable events? They are events that should not occur during a hospital stay such as "leaving a sponge or other object in a patient during surgery and providing a patient with incompatible blood or blood products."

August 17, 2007

You Gotta Love This

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

Pharmacist persuades a female customer to stay over night at his house. When his wife is gone. Girlfriend is unaware he has a wife and, indeed, is told to the contrary. Wife appears at an inopportune time. Fight ensues. Girlfriend gets hurt. Lawsuit follows. Girlfriend seeks to hold wife and husband responsible for her injuries.

Husband: "I owe no duty to that woman." Dinner? "Yes." Flowers? "Yes." Warm B & B by candlelight while nestled in a king-size bed playfully wrapped in a leopard skin comforter with Rod Stewart’s "Great American Songbook Collection" playing softly in the background? "Yes." Duty? "Now just a damn minute."

The trial judge disagreed and a jury popped him with a percentage of fault for the injuries for her significant injuries. Judge Lee wrote the opinion for our Court of Appeals and affirmed. She quickly found a duty existed, and said this on the issue of breach of duty:

August 15, 2007

The Suspension Statute

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

Here is a handy little decision that reminds of the existence and limits of the suspension statute.

You know the suspension statute. It tells us that "[i]f at any time any cause of action shall accrue against any person who shall be out of this state, the action may be commenced within the time limited therefor, after such person shall have come into the state; and, after any cause of action shall have accrued, if the person against whom it has accrued shall be absent from or reside out of the state, the time of absence or residence out of the state shall not be taken as any part of the time limited for the commencement of the action. " T.C.A. § 28-1-111 (2000).

In Jones v. Johnson. No. W2006-01859-COA-R3-CV (July 16, 2007) the Court of Appeals for the Western Section applied the statute in a personal injury case. You will recall that "the suspension statute is inapplicable to toll a statute of limitations where there is a valid method of service of process on an out-of-state defendant." Arrowood v. McMinn County, 121 S.W.2d 566, 568-69 (Tenn. 1938). However, "[i]n Lam v. Smith, 891 S.W.2d 207 (Tenn. 1994), the Supreme Court recognized an exception to the general Arrowood rule in cases where (1) the plaintiff lacked knowledge that the defendant is an out-of-state resident, and (2) the plaintiff had exercised due diligence in trying to ascertain the location of the defendant, but nevertheless remained unaware of the defendant’s nonresident status."

August 13, 2007

The Double Standard

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

From a full-page ad in yesterday’s Knoxville’s Sunday News Sentinel:

Last year, Covenant Health hospitals saved the lives of 752 people who would not have lived at average hospitals.

According to U.S. government data, quality care makes a life-saving difference for patients at Covenant Health hospitals. By being far better than national averages, we help more patients survive – 753 more than the national norms last year alone.

August 10, 2007

New AG Opinion on Medical Practice Ownership

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

The Tennessee Attorney General’s Office has just released on opinion on the issue of the ability of non-physician health care professionals to own and operate a medical practice and to employee physicians. Here are the two specific issues addressed:

"1. Considering the provisions of Tenn. Code Ann. §§ 63-6-204(b), 68-11-205(a), or any other law of this state, is it lawful for a certified nurse practitioner, registered nurse, advanced practice nurse, licensed practical nurse or physician assistant to own and operate a professional practice wherein medical services are provided?
2. Considering the provisions of Tenn. Code Ann. § 63-6-204(c) or any other law of this state, is it lawful for a physician to be an employee of, or an independent contractor to, a certified nurse practitioner, registered nurse, advanced practice nurse, licensed practical nurse or physician assistant for the sole purpose of providing the supervision, responsibility and control required by Tenn. Code Ann. § 63-6-204(b) for medical services being provided by those licensed allied health care providers at their practice sites? For purposes of this question, we assume that the physician, if he or she actively practices clinical medicine at all, does so primarily (if not exclusively) at some office or location other than at the referenced practice sites."

And here is the summary of the answers to those questions:

August 9, 2007

Off Topic – Our New Daughter

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

My wife Joy and I are pleased to announce the birth of our daughter, Kaitlin Irene Day, yesterday at 2:41 p.m. at Baptist Hospital in Nashville. Kate weighed in at an unbelievable 10 pounds, 9 1/2 ounces and is 21 an 3/4 inches long.

She began riding a tricycle last evening.

Kate and Joy are doing great. We are very blessed to have had an incident-free pregnancy followed by the delivery of a healthy, beautiful baby girl. Indeed, this is the third time I have been blessed with a strong, healthy child – Sarah was born 16 years ago and Michael 12 years ago.

August 8, 2007

Transparency?

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

How much transparency should there be in health care? In commerce in general?

Senator Grassley wants transparency in medicine – he has introduced legislation that is designed to require drug companies to disclose what they pay doctors. Read about the legislation in this article from the New York Times. The article says that Grassley "cited as an example the case of a prominent child psychiatrist, who he said made $180,000 over just two years from the maker of an antipsychotic drug now widely prescribed for children."

This is interesting, too: "Mr. Grassley said that he had asked how much the child psychiatrist, Dr. Melissa DelBello at the University of Cincinnati, made from AstraZeneca, the London-based drug giant that manufactures the antipsychotic Seroquel. Dr. DelBello’s studies of Seroquel in children have helped to fuel the widespread pediatric use of antipsychotic medicines. Those studies were inconclusive, but she has described them as demonstrating that Seroquel is effective in some children. Asked in a past newspaper interview how much she was paid by AstraZeneca to help market Seroquel, she had said, “Trust me, I don’t make very much.” Mr. Grassley said this week that her disclosure forms at the University of Cincinnati show she received $100,000 from AstraZeneca in 2003 and $80,000 in 2004. Dr. DelBello consults for seven other drug makers as well. She did not respond to requests for comment this week. "