Day on Torts

May 29, 2007

Eyewitness Reliability Expert Testimony Permitted

The Tennessee Supreme Court has a reversed its previous position and determined that it will permit juries to hear evidence from qualified experts on the reliability of eyewitness identification. The Court had ruled that such testimony was not admissible in 2000.

Now, in State v. Copeland, the Court has reached a different result. After reviewing advances in the field over the last few years, the Court said:

"In our view, it is far more likely for the jury to accredit the eyewitness than the expert. If eyewitness identification is a cornerstone of the criminal justice system, the jury is its foundation. It is also our view that the test in McDaniel is sufficient to allow the trial court to properly evaluate the admissibility of expert testimony on the reliability of eyewitness identification. To the extent that Coley holds otherwise, it is overruled. The essential role of the judge, as the neutral arbiter in the trial, is to govern the admission of the evidence within the rules, permitting only that expert testimony which substantially assists the jury in its consideration of the issue. The McDaniel test provides the trial judge with the necessary guidelines to properly exercise his or her discretion."

May 25, 2007

SVMIC Lowers Rates

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

Good news for all concerned. SVMIC, the doctor-owned professional liability insurer, has announced a rate reduction. You probably won’t read about falling medical liability insurance rates in the newspaper, but you can tell your friends and neighbors that rates are dropping even though the Legislature has not placed caps on damages in medical malpractice cases.

Here are the rate changes, by specialty:

Anesthesiology      – 14.1%
Cardiac Surgery    – 14.1%
Gynecological Surgery      – 14/1%
Family Practice – non-procedural     – 9.3%
Orthopedic Surgery       – 9.3%
Pediatrics          – 9.3%
Pulmonary & Critical Care Medicine       – 5.2%
Internal Medicine          + 3.3%
Infectious Disease, Hospitalists        + 3.3%
Gastroenterology       + 5.0%
Interventional Cardiology         + 5.8%
Pathology           +10.0%
Emergency Medicine       +15.0%
Most other specialties        – 4.5%

May 23, 2007

Today

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

I have been in mediations the last two days and have two depositions in a very significant case today. Therefore, I simply do not have time to do a substantive post.

I will take time to say one thing, however. This is my 1000th post on this blog. 1000 posts in 27 months. I must say that I have enjoyed every minute of it.

I hope that this blog has helped you better serve your clients. I know that writing it has helped me serve our firm’s clients.

May 21, 2007

Tennessee Administrative Rules and Regulations

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

The Tennessee Department of State has administrative rules and regulations on its website.

May 21, 2007

Failure to Make Record Causes Reversal

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

The opening paragraphs of this opinion from the Supreme Court of Missouri sum up the case nicely:

"This case involves a motion to enforce a settlement agreement in a tort action. The Eatons contested the motion alleging they did not authorize the figure offered by their dismissed attorney that was accepted by the defendants.

The Eatons originally filed suit for property damage to their home allegedly caused by groundwater made toxic by waste discharged by a nuclear fuel processing operation conducted by the defendants. They refused to sign a proffered agreement on the basis that they never authorized the settlement figure and had dismissed their attorney.

May 18, 2007

ALI Rejects “Reasonable Degree of Medical Certainity”

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

Among the actions taken by the ALI at the meeting in San Francisco this past week was the rejection of the need for the magic words "reasonable degree of medical certainty."

The following language was approved for Section 28(a) of the Restatement of Torts Third:

"Subject to Subsection (b), the plaintiff has the burden to prove that the defendant’s tortious conduct was a factual cause of the plaintiff’s physical harm."

May 17, 2007

Medical Authorization Not Required

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

Georgia’s med mal statute requires that when a complaint is filed the plaintiff must submit a medical authorization. The statute says that "the authorization shall provide that the attorney representing the defendant is authorized to obtain and disclose protected health information contained in medical records to facilitate the investigation, evaluation, and defense of the claims and allegations set forth in the complaint which pertain to the plaintiff or, where applicable, the plaintiff’s decedent whose treatment is at issue in the complaint. This authorization includes the defendant’s attorney’s right to discuss the care and treatment of the plaintiff or, where applicable, the plaintiff’s decedent with all of the plaintiff’s or decedent’s treating physicians."

On May 14, 1007 in the case of Allen v. Wright, the Georgia Supreme Court struck down this statute as inconsistent with HIPPA.

Read the opinion here.

May 16, 2007

Patient Safety Website

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

The Joint Commission on International Patient Safety has a website that it calls "Patient Safety Practices."

Here is the introduction to the site: "Welcome to Patient Safety Practices, a new online resource for health care professionals and the public. Over 900 links to trusted patient safety websites are provided, with tips, tools and resources for addressing patient safety problems. The problem categories and topics have been culled from the Joint Commission’s Sentinel Event Database."

If you are looking for information on wrong site surgery, you will find links to a large number of sites, including this one from the American College of Surgeons.

May 15, 2007

Report from San Francisco – Second

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

I am still in San Francisco at the ALI meeting. Last night we had a reception at the Legion of Honor and then dinner at the Boulevard.

On today’s agenda are discussions of proposed restatements on the law of nonprofit organizations, aggregate litigation (class actions) and restitution and unjust enrichment. Tonight is a black tie dinner at the Westin St. Francis.

There is one custom at this meeting that I have never seen at any meeting of lawyers I have ever attended. There are scores of federal and state judges here, but none of the name tags identify the judges as judges. Yesterday I was talking to the Chief Justice of New Zealand and had no idea that she was a judge.

May 14, 2007

Changes

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

Some of you have looked at the upper right-hand corner of this blog and noticed that our firm name has changed to The Law Offices of John Day, P.C. Those of you on our announcement list received a more formal notice last week.

What’s going on? John Branham, the gentleman I started the firm with in 1993, turned 65 last fall and decided to leave the firm at the end of the year. Rebecca Blair, who has been a shareholder of the firm for several years, has now became a name partner in the firm.

We are in the same location, have the same phone number and, with a couple of exceptions, the same personnel we had four months ago. Regrettably, we are losing a lawyer in a couple days. Jimmy Streett, who clerked with us as a rising third-year student and has been with us since his graduation from Vanderbilt two years ago, is moving home to Arkansas to take over his father’s law practice. Jimmy has done a very good job for our clients and we will miss him.