Day on Torts

March 15, 2007

TSC Decides Independent Contractor Case

The Tennessee Supreme Court has issued an opinion in Bennett v. Trevacca Nazarene University.

The summary:

"We accepted this appeal of a premises liability case to determine whether the “independent contractor rule” adopted in Blair v. Campbell, 924 S.W.2d 75 (Tenn. 1996), relieves a premises owner from liability when a premises owner provides an independent contractor inaccurate information germane to the contractor’s work. We hold that a property owner has a duty of reasonable care to provide accurate information to an independent contractor if the owner provides specific information germane to the repair after engaging the contractor. Because material facts remain in dispute between the parties in this case about what information the premises owner provided, the trial court erred when it granted summary judgment to the defendant. We affirm the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion."

March 14, 2007

From the Tennessean

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

Larry’s recent column on the med mal issue.

Update: link repaired.

March 9, 2007

“Very, Very Modestly”

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

The President’s daughter Jenna has written a book that she "very, very modestly" hopes will have the influence of Anne Frank’s The Diary of Anne Frank.

Like Jenna, I too find myself tightly bound by humility. Her willingness to reveal her hopes despite her extreme modesty compel me to reveal one of my own hopes: that this blog will have the influence of the Declaration of Independence.

There. I said it. I feel better already. Many of you plaintiff’s lawyers simply cannot comprehend the burden of being "very, very modest." Indeed, I felt extreme anxiety for weeks calling this blog "Dayontorts" and took this step only after discovering, much to my dismay, the "Humbleontorts" was not available.

March 8, 2007

A Telling Comment

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

Here is an article that talks about the negotiations concerning the med mal legislation currently pending in the General Assembly.

This excerpt tells it all: ""Basically [the potential compromise] was done between the legislators themselves representing probably both sides of the interests," Miller [VP of the TMA] said. "One of the things that didn’t come through was that doctors _ who are probably the main focus of this legislation _ were not party to these negotiations."

He is right. The main push for and therefore focus of the legislation is doctors. Not patients. Not the common good. Not justice.

March 7, 2007

SVMIC 2006 Annual Report Filed

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

State Volunteer Mutual Insurance Company , the doctor-owned medical malpractice insurance carrier, continues to enjoy profitability, according to my review of its 2006 Annual Report that was recently filed with the Tennessee Department of Commerce and Insurance.

A few highlights:

* Surplus, the insurance industry equivalent of net worth, increased $33,000,000 to a total of $217,000,000. This represents an increase of almost 18% in one year. This follows a $16.4 million dollar increase in 2005.

March 6, 2007

Vioxx Status

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

Vioxx is back in the news. Merck won one and lost one in New Jersey and is on trial in Illinois.

In New Jersey, the jury condemned the pre- April 2002 label but approved the label issued that month. The verdict was under New Jersey’s consumer law fraud, which has a fee-shifting provision. The jury will now consider the issue of causation on the pre-April 2002 label – the plaintiff is Frederick Humeston. Read more here.

The Illinois case has just started and is expected to take four to six weeks.

March 6, 2007

Op- Ed Piece

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

The Tennessean published an op-ed piece I wrote today. Read it here.

March 5, 2007

As the Med Mal Bill Comes Up – A Reminder

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

The bill to limit health care provider’s responsibility for their errors comes up in Senate Judiciary tomorrow afternoon. Here is a list of some recent posts on the issue:

"The Great Medical Malpractice Hoax"

Another Aspect of the Big Lie

March 1, 2007

Rules of Civil Procedure Amended

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

The Tennessee Rules of Civil Procedure have been amended. The amendments are effective on July 1, 2007. See the amendments here.

The two most significant changes are to Rule 15 and Rule 56. Rule 15.01 has been amended to add the following language: "For amendments adding defendants pursuant to Tenn. Code Ann. §20-1-119, however, written consent of the adverse party or leave of court is not required."

Rule 56.04 has been amended to add the following language: "The trial court shall state the legal grounds upon which the court denies or grants the motion, which shall be included in the order reflecting the court’s ruling."

February 28, 2007

Attorney Liability For Distribution of Monies

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

This South Carolina case reminds us of our responsibilities when receive money on behalf of a client and are aware that a portion of the proceeds have been assigned to a third party.

The Court found that the lawyer was aware of the assignment and went on to say as follows: "A letter of protection offers one method protecting a creditor’s interest. However, the absence of a letter of protection does not automatically relieve an attorney of a duty under an assignment."

The Court cited several cases in support of its position, as well as these sections from 1.15 of the RPC: