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.
Read more here.
An article in the Archives
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.
Discoverability of Insurance Policy Limits
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:
TSC Issues Arbitration Decision
The Tennessee Supreme Court has ruled that an arbitration provision in a nursing home contract signed by a person who had a power of attorney to act on behalf of the resident is not void as against public policy. However, the court remanded the case to the trial court for a determniation of whether the inclusion of the provision was an unconscionable contract of adhesion.
Justice Holder wrote the opinion for the Court. Here is a summary of the holding:
"the agreement is governed by the Tennessee Uniform Arbitration Act and that the power of attorney authorized Daniel to sign the arbitration agreement on behalf of King. We also affirm the intermediate appellate court’s holding that the arbitration agreement is not unenforceable on the ground that a material term of the agreement is incapable of performance. We likewise affirm the Court of Appeals’ holding that the arbitration agreement does not violate federal law. We further hold that a pre-dispute arbitration agreement in a nursing-home contract is not per se invalid as against public policy. In addition, we affirm the intermediate appellate court’s holding that the agreement is not unenforceable on the ground that requiring King to sign an arbitration agreement breached a purported fiduciary duty owed to King by the defendants. We vacate, however, the Court of Appeals’ judgment insofar as it holds that the arbitration agreement is not an unconscionable contract of adhesion, and we remand for further proceedings on that issue. In light of our remand for further proceedings on the unconscionability issue, we also vacate the intermediate appellate court’s instruction to the trial court to enter an order compelling arbitration."
Conversations with Other Lawyers
Do you document substantive conversations with other lawyers? Once upon a time, it was unheard of to do so and some felt it was downright offensive. A lawyer can and should be trusted to stick by an understanding that is reached with another lawyer, the theory went, and to confirm a conversation in writing was a sign of mistrust.
Of course, there has always been and will always be lawyers who cannot be trusted. I know a few. You know a few. They are the scum of the profession, who thank God for the bottom-dwelling lawyers who steal from their clients (so the liars and cheaters can feel superior to someone).
Today, however, I think a quick note or email confirming a substantive conversation is a good thing – one that avoids the chance of innocent misunderstandings in the future. My view is that good lawyers no longer find such communications offensive and, indeed, I have found these lawyers are appreciative of the effort.
Thank You
My new book – Day on Torts: A Handbook for Tennessee Tort Lawyers – was delivered yesterday (November 5). It was promised for last week, but there were apparently some difficulties in the shipping process.
The project started about eight months ago and the book was delivered within ten days of the original target date. The printer did a great job getting the book out in a timely fashion despite an unexpected glitch with the texture of the copper band on the cover.
The reason for the "thank you" is that a good number of you have already placed an order for one (or more) books. We shipped twenty-five books yesterday and will ship about that many tomorrow. Orders continue to arrive via www.dayontortsbook.com.
Tort Reform Talk Works in Tennessee
A new report issued by the Tennessee Department of Commerce and Insurance re-affirms what everyone in the state knows: further restrictions on patient rights are not necessary in Tennessee.
The doctors (and occasionally the hospitals) have beat the tort reform drum for over thirty years, seeking further restrictions on the rights on patients to bring malpractice claims. They launched an attack on Justice Holder’s re-election effort. They write op-ed pieces, talk to their patients, spend hundreds of thousands of dollars on political contributions each legislative cycle, and employ more and more lobbyists – all to get the Legislature to give them even more special treatment in the courtroom.
The legislative effort has failed to date, but the jury pool has been contaminated. Those of us who handle medical malpractice cases know this from our experience, but a new report from the Department confirms that experience.
Article from North Carolina
I think you will enjoy this article from the on-line version of the Fayetteville, North Carolina newspaper. A few excerpts:
"Annual statements of Medical Mutual Insurance Co. of North Carolina filed with the N.C. Department of Insurance from 2001 through 2006 were studied and evaluated by former Missouri Insurance Commissioner Jay Angoff and some of his findings are:
Underwriting gain — the amount they earned on their insurance business — was up by 948 percent in only two years, from $2.1 million in 2004 to $22 million in 2006.
E-Discovery Article
Here is an interesting article written by Mark Berman that I found on Law.com.
The first few paragraphs:
"Electronic discovery, even more so than traditional paper discovery, offers the opportunity to burden unduly an opposing party with overbroad discovery requests, and three recent New York State court decisions have addressed over-reaching document requests seeking electronically stored information (ESI).
Book Website Available
The book website is up and running — www.dayontortsbook.com.
Several people received advance copies of the "selected cases" portion of the book and were kind enough to write down their impressions for me to use in a brochure that you will receive any day now. Those comments are as follows:
"John Day’s new book is the most in-depth, comprehensive and thorough analysis of Tennessee tort law compiled in years. Every practicing lawyer should have one!"
Sidney Gilreath, Knoxville