Day on Torts

April 7, 2007

Off Topic – The Education of Ms. Goodling

Slate has published this article about Monica Goodling and the Regent University School of Law.

Did you know that "[u]nder Ashcroft, career lawyers were systematically fired or forced out and replaced by members of conservative or Christian groups or folks with no civil rights experience. In the five years after 2001, the civil rights division brought no voting cases on behalf of African-Americans. It brought one employment case on behalf of an African-American. Instead, the division took up the "civil rights" abuses of reverse discrimination—claims of voter fraud or discrimination against Christians."

April 5, 2007

Hospital Errors Rising – 247,662 Deaths Over Three Years???

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

It is getting worse.

Healthgrades reports that the number of errors in our nation’s hospitals rose 3% over the years 2002 – 2005. From the press release:

The HealthGrades study of 40.56 million Medicare hospitalization records over the years 2003 to 2005 … found:
• Patient-safety incidents continue to rise in American hospitals, with 1.16 million preventable
patient-safety incidents occurring over the three years studied among Medicare patients in the
nation’s hospitals, an incidence rate of 2.86 percent.
• 247,662 deaths were potentially preventable over the three years, and Medicare patients who had one or more patient-safety incidents had a one-in-four chance of dying.
• The excess cost to hospitals was $8.6 billion over three years, with some of the most common
incidents proving to be the most costly.
• Ten of the 16 patient-safety incidents tracked worsened from 2003 to 2005, by an average of
almost 12 percent, while seven incidents improved, on average, by six percent. Patient-safety
incidents with the greatest increase in incident rates were post operative sepsis (34.28 percent),
post-operative respiratory failure (18.70 percent) and selected infections due to medical care
(12.23 percent).
• Patient-safety incidents with the highest incidence rates were decubitus ulcer, failure to rescue
and post-operative respiratory failure.

April 3, 2007

The Vanishing Civil Trial

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

The Beasley Allen law firm summarized a report on the number of civil jury trials in Alabama. Here is my summary of their summary concerning civil jury trials in 2006:

Motor Vehicle Negligence Cases: 126 trials Verdict for plaintiff – 59

Products Liability Cases: 6 trials Verdict for plaintiff – 3

April 3, 2007

Comcast

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

Poor Comcast. With its blood-sucking monopoly threatened by pending legislation it (a) decides to lower prices; (b) promise that all future employees will have no less than a room temperature IQ; or (c) have technical problems and not broadcast the Lady Vols National Championship basketball game in Williamson County?

It chose (c).

Apparently the Bush Administration has nationalized Comcast and is bringing all of its management skills to bear in running the organization. The good news is I now know where to address my complaint letter.

April 2, 2007

Causes of Truck Accidents in Tennessee

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

What causes truck wrecks? According to Ron Miller, a trial lawyer in Maryland, the Federal Motor Carry Safety Administration’s 2006 report shows there are approximately 141,000 truck crashes every year. In 77,000 of these truck accidents – more than half – fault was attributed to the truck driver.

Ron’s post at The Maryalnd Injury Lawyer Blog lists the top ten causes of the wrecks caused by truckers as follows:

1. Prescription drug use (26%)

March 30, 2007

More Data on Rising Insurance Rates for Doctors

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

Amercicans for Insurance Reform have released a report that demonstrates that the "insurance crisis that hit doctors between 2001 and 2004 was not caused by claims, payouts or legal system excesses as the insurance industry claimed."

Rather, this report concludes as follows:

"Inflation-adjusted payouts per doctor not only failed to increase between 2001 and 2004, a time when doctors’ premiums skyrocketed, but they have been stable or falling throughout this entire decade.

March 28, 2007

A “Recreational Use” Statute Decision out of Kansas

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

In Lane v. Atchison Heritage Conference Center, Inc., No. 94634 (March 16, 2007), the Kansas Supreme Court held that "mmunity from liability under the recreational use exception to the [Kansas Tort Claims Act] does not depend upon the "primary use" of the property but rather depends on the character of the property in question." Therefore, the Court ruled that "the recreational use exception to the KTCA, K.S.A. 2006 Supp. 75-6104(o), applies when property is "intended or permitted" to be used for recreational purposes. The correct test to be applied under K.S.A. 2006 Supp. 75-6104(o) is whether the property has been used for recreational purposes in the past or whether recreation has been encouraged."

The Court then applied the statute to bar and slip-and-fall claim against the convention center which had hosted dances, card tournements, sewing demonstrations, local Bar meetings, etc. The plaintiff in the case was injured at a New Year’s Eve Party.

Read the decision here.

March 27, 2007

The Rules of Cross and Argument

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

The penalty for violating the rules of cross-examination and closing: reversal.

Here is how the Court described the violation: "the cross-examination of [defense expert] Dr. Ramirez went beyond permissible grounds on the issue of bias and amounted to a prohibited attack on Dr. Ramirez’s character when plaintiff’s counsel repeatedly argued that Dr. Ramirez had intentionally destroyed documents that had never been created and of which he was under no duty to compile or produce. … Plaintiff’s counsel’s arguments to the jury that defense counsel was “pulling a fast one,” “hiding something,” and “trying to pull something,” was tantamount to calling defense counsel liars and accusing them of perpetrating a fraud upon the court and jury."

Learn the rules. And follow them. Indeed, work hard to follow them in the heat of the moment and when your opponent is violating them. There is no reason to believe or even suspect that Plaintiff’s counsel here intentionally violated the rules of trial, but the fact remains that his client lost a verdict in her favor. And that does neither client nor lawyer any good.

March 26, 2007

More Med Mal Facts

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

Pardon me, but I have always been a fan of facts. Opinions are like … noses, everybody has one.

The Kaiser Family Foundation has analyzed paid claims data and discovered that in 2005 Tennessee had 10.1 paid med mal claims per 1000 active, non-federal physicians. Total paid claims were 156. The national average was 17.1 paid claims per 1000 active, non-federal physicians.

Tennessee ranked 12th lowest in the Nation by this measure. We are the fourth lowest in the South Census Region.

March 23, 2007

Economic Loss Doctrine

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

The highest court in Maryland has ruled that the economic loss doctrine did not bar a lawsuit against General Motors alleging that their front seats were unsafe because they collapsed rearward in rear-impact collisions. The claimants sought recovery of the cost of repairing the seats.

A quick summary of the 69-page opinion: "Maryland has joined those jurisdictions that recognize an exception to the rule which bars economic loss in tort. As we have seen, the reasoning behind the exception is that the likelihood is so great that severe bodily harm or death will result from the product defect, that we substitute actual present injury or product malfunction with the cost to repair the problem. Assuming that plaintiffs can adequately prove the substantive elements of their claims and objectively quantify the measure of their damages, Maryland has determined that the exception to the economic loss rule advances the practical goal of providing a remedy before the significant loss of life o r limb. To b e sure, in light of the general distaste for aw arding eco nomic losses in tort, if a petitioner has presented enough facts to qualify for the exception to the rule, then he or she has surmounted the grea test hurdle for pleading injury and this court cannot fathom why such economic losses would not qualify as a sufficient injury, or in the case of the Consumer Protection Act, loss for the purpose of pleading those claims."

The case is Lloyd v. General Motors Corp., No. 10 (Md. Ct .App.Feb. 8, 2007). Read it here.