Day on Torts

August 15, 2007

The Suspension Statute

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. "

August 7, 2007

Effect of Bankruptcy on a Personal Injury Claim

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

I wrote on July 30 about a decision from the 10th Circuit Court of Appeals that addressed the issue of the effect of the failure of a plaintiff in a personal injury action to disclose the existence of the claim on a bankruptcy petition and the failure to disclose the claim during a hearing.

Tennessee Court of Appeals Judge Sharon Lee wrote to tell me about a decision from the Tennessee Court of Appeals (Eastern Section) that addressed the interaction of bankruptcy law and personal injury claims. Here is the summary paragraph in Headrick v. Bradley County Memorial Hospital written by Judge Lee:

"In this appeal, the issue presented is whether a party has standing to pursue a personal injury claim in state court that accrued after the filing of the party’s bankruptcy petition and before the closing of the bankruptcy case. Ms. Headrick filed a Chapter 13 bankruptcy petition. While the bankruptcy case was pending, Ms. Headrick was involved in a single car accident and was treated for her injuries by Dr. Daniel Johnson at Bradley County Memorial Hospital. Subsequently, she converted her Chapter 13 bankruptcy case to a Chapter 7 bankruptcy case. While the Chapter 7 case was still pending, she discovered that she suffered a hip fracture in the car accident which she alleges that Dr. Johnson and the Hospital failed to timely diagnose and treat. Thereafter, Ms. Headrick received a discharge in bankruptcy and the bankruptcy case was closed. Ms. Headrick then filed a medical negligence case against Dr. Johnson and Bradley Memorial Hospital. The Defendants filed a motion for summary judgment asserting that Ms. Headrick did not have standing to bring the case. The trial court agreed and dismissed the case. After review of the record and applicable authorities, we hold that Ms. Headrick’s post-bankruptcy cause of action is not part of the bankruptcy estate and therefore, as a matter of law Ms. Headrick did have standing to bring the lawsuit. The trial court’s decision is reversed."

August 6, 2007

How To Make Sure This Doesn’t Happen To You

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

A complaint against the State of Tennessee has just been dismissed because the plaintiff alleged that a state trooper may have committed negligence but did not affirmatively allege that the trooper was negligent. The Court of Appeals affirmed the dismissal stating that it did not state a cause of action. The case is Rogers v. State, No. M2006-2353-COA-R3-CV (Tenn. Ct. App. August 2, 2007). Read the opinion here.

Plaintiff filed the complaint in response to an allegation of fault by a defendant. Clearly the plaintiff did not want to sue the state (read: the trooper) but felt she had to and do so within the time period prescribed by T. C.A. Sec. 20-1-119.

So what do you do? You plead the case against the new defendant like this: "Based solely on the allegations of Defendant X, Plaintiff alleges that …." That tactic permits you to allege fault but not have the defendant’s theory attributed to you or, worse yet, have your case dismissed.

August 5, 2007

Death of Robert E. Keeton

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

Judge Keeton, co-author of Prosser and Keeton on Torts, died July 1, 2007 in Cambridge, Massachusetts. Keeton was a professor at Harvard and later became a federal district judge. He was 87.

August 3, 2007

Bridge Collapse

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

Investigations following the collapse of the bridge in Minneapolis will tell us how it occurred and whether anyone bears responsibility for the failure.

In Tennessee, it would be very difficult for a case to be brought the most obvious potential defendants. Our state and local governments have a damage cap that make it impossible to economically pursue claims after such a disaster. Our "architects, engineers and contractors immunity act" make it impossible for them to be held responsible more than four years (ok, four plus one years) after construction (absent a showing of fraud). Our products liability act gives manufacturers of any component parts a get-out-of-jail-free after ten years.

Of course, perhaps contractor(s) working on the bridge at the time may be found to have some fault and perhaps a private firm did an inspection and did not perform it carefully – the facts will trickle out over the next few days. But in Tennessee the ability of these potential defendants to assert fault against the potential defendants mentioned above and have that fault reduce the recovery of the plaintiff (the magic of several liability and allowing fault to be placed on immune non-parties) make these cases a challenge, too.

August 1, 2007

Collateral Source Rule Bars Evidence Of Amount Paid By Health Insurer

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

The Wisconsin Supreme Court has ruled that a plaintiff is entitled to prove the full amount of medical charges, despite the fact that plaintiff’s insurer actually paid a less amount. The lesser amount cannot be used to prove that it is the "reasonable" value of the services.

This is how the Court expressed its holding: " the collateral source rule prohibits parties in a personal injury action from introducing evidence of the amount actually paid by the injured person’s health insurance company, a collateral source, for medical treatment rendered to prove the reasonable value of the medical treatment."

The majority opinion is 37-pages long, but here is a brief statement of the reason for the Court’s holding: "Although an injured person may experience double recovery when the collateral source rule is applied, one recovery from the collateral source and a second recovery from the tortfeasor, the purpose of the collateral source rule is not to provide the injured person with a windfall, but rather to prevent the tortfeasor from escaping liability because a collateral source has compensated the injured person. The injured person, not the tortfeasor, benefits from the collateral source." [Footnotes omitted.]