Day on Torts

February 24, 2007

Another Aspect of the Big Lie

"It’s not personal responsibility I have a problem with. It is the constant threat of litigation that gets to me. And that’s why we need to cap damages in malpractice lawsuits."

How many times have you heard some member of the health care industry say that?

I guess that the argument means that the industry doesn’t mind valid lawsuits (how can they say anything else?) but they don’t like non-meritorious lawsuits. But how does capping damages stop non-meritorious lawsuits? Capping damages only limits recoveries for claims already found to be meritorious.

February 23, 2007

Top Ten Medical Malpractice Verdicts – 2000-2005

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

SVMIC, the well-managed, physician-owned liability insurance company that insures an estimated 90% of the doctors in the state, publishes a newsletter called "Riskpoints." It is available on their website.

The Fall 2006 edition of the newsletter (article in on Page 2 of the newsletter). listed the top ten jury verdicts against SVMIC insureds in the six year period 2000-2005. Four of those verdicts were by out-of-state juries (SVMIC writes insurance in multiple states).

The largest verdict was the verdict in Hunter v. Ura, a Davidson County case, in the amount of $5.8M. The decedent, a six-figure wage earner, died as the result of an anesthesa error. He left a wife and two minor children behind.

February 22, 2007

Tort Cases To Be Argued in April

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

The Tennessee Supreme Court will hear the following tort cases in Jackson in April:

Dewayne E. Holloway v. State: Whether the Claims Commission lacked subject matter jurisdiction under Tennessee Code Annotated section 9-8-307(a)(1)(E) to adjudicate the plaintiff’s wrongful death claim.

Troup v. Fischer Steel Corporation: Whether the Court of Appeals erred in (reversing the trial court and) determining in this negligence action in which the employee of a roofing subcontractor, from which the employee has received workers’ compensation benefits, sues a steel subcontractor, the jury may assign fault to the general contractor, which is a “statutory employer” but did not pay any workers’ compensation benefits.

February 21, 2007

Comment on Tuesday’s Post

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

This is a comment from "Chris" to my post on Tuesday

I agree that the main focus is economics. In general, one CV surgeon is needed for approximately every 35-50 thousand people. Now, it is impossible to do this if you are the only one as then there is constraint of constant call, etc. So, specialists tend to concentrate together. The other factor that brings these physicians into larger areas is that is where the hospitals are large enough to have a dedicated OR team, ICU and cardiac cath labs with the attending cardiologists. To further apply economics, it would cost more to place these facilities in a rural area that it would cost for an entire hospital. Also, the re-embursement for bypass surgery has greatly dropped and the risk of litigation is high. As a result, it is economically unwise to practice in a small area, with a small patient volume, inadequeate facilities.

Chris – what is the source for your data? Are you aware of statistics that tell us what sort of population is required to support a each class of specialist?

February 21, 2007

Punitive Damages

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

The Supreme Court has fiddled with the law of punitive damages again. More on this is in a later post.

February 20, 2007

More on the Big Lie

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

"We have to limit the liability of negligent health care providers because doctors are leaving medicine to work at Krystal (or whatever)." That’s the non-stop babble we hear from lobbyists and pr flacks for the health care industry.

Then, there are the facts.

Consider this: cardiac surgeons are looking for work. According to this article from USA Today, "[t]he use of artery-opening stents has helped lead to a sharp drop in the number of patients having cardiac bypass surgery and contributed to a tight job market for cardiac surgeons and falling interest in the specialty by medical school graduates."

February 19, 2007

Med Mal Reporting Forms Due April 2, 2007

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

Plaintiff’s lawyers need to be aware that legislation passed last year by the General Assembly requires the reporting of fees and expenses received as a result of medical negligence litigation in 2006. The reports are due at the offices of the Department of Commerce and Insurance on or before April 2, 2007.

The instructions for preparing the form it may be found here. The form itself is found here.

As one would expect, there are some problems with the reporting forms. I urge you not to simply object to filing the form (there are fines associated with not submitting the information on time) but instead fill out the form as completely and accurately as you can and accompanying it with an appropriate cover letter indicating the problems you identified. Such a letter will not only protect you from being accused of submitting inaccurate information (because of deficiencies in the form) but also will help the Department understand the shortcomings of the form so that it can be redesigned.

February 16, 2007

Tort Reform In Texas

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

In 2003 Texans passed Proposition 12. It placed caps on human losses in valid medical negligence claims and put in place other restrictions on the rights of citizens injuryed by medical negligence to seek justice. "Patients were told to expect significant improvements in health care across the state, as well as dramatically lower medical liability insurance premiums for their family doctors."

So now what? Or as a friend of mine would put it, "how’s that workin’ for ya?"

Here is a brief summary of a report from Texas Watch:

February 15, 2007

Notre Dame’s Coach Brings Malpractice Case

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

Charlie Weis, head football coach at Notre Dame, sued two doctors in connection with injuries he received following gastric bypass surgery. The trial in underway in Boston.

He alleges that he suffered internal bleeding after the procedure and that his doctors failed to promptly correct it. The doctors say that internal bleeding is a known, disclosed risk of the procedure and that they did not move more aggressively to correct the condition because of the risk of pulmonary embolus.

Read more here. Weis testified yesterday.

February 14, 2007

Amount Paid – Not Just Amount Charged – for Medical Care is Admissible

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

The Ohio Supreme Court has ruled that "both an original medical bill rendered and the amount accepted as full payment are admissible to prove the reasonableness and necessity of charges rendered for medical and hospital care."

The Court went on to say that "[t]he jury may decide that the reasonable value of medical care is the amount originally billed, the amount the medical provider accepted as payment, or some amount in between. Any difference between the original amount of a medical bill and the amount accepted as the bill’s full payment is not a “benefit” under the collateral-source rule because it is not a payment, but both the original bill and the amount accepted are evidence relevant to the reasonable value of medical expenses."

It should be noted that Ohio has a statute that modifies the traditional collateral source rule.