Day on Torts

February 22, 2007

Tort Cases To Be Argued in April

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.

February 13, 2007

Consumer Protection Act Applies Against Doctors

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

The Kansas Supreme Court has stated that a patient injured as a result of alleged medical negligence can file suit under the state’s consumer protection act.

The patient , Williamson, alleged that the defendant doctor "represented that the surgery he was recommending had a high likelihood of successfully relieving her pain when, in fact, that surgery had been unsuccessful in the majority of cases where [defendant] Dr. Amrani had utilized the same procedure. Williamson alleged that Dr. Amrani had willfully misrepresented or concealed material facts in that he knew or should have known that the surgery he was recommending had produced ‘bad results’ for a majority of his patients."

The Court reviewed the Kansas Consumer Protection Act and the law from other states interpreting similar statutes in other cases and ruled that "the language of the KCPA is broad enough to encompass a claim regarding the providing of medical care or treatment services brought by a patient against a physician for a violation under the KCPA."

February 9, 2007

Plastic Surgeon Loses Defamation Case Against Patient

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

A patient unhappy with the results of her plastic surgery created a website about her experiences. Her surgeon sued her for defamation, infliction of emotional distress, etc. The patient moved to dismiss, lost, and appealed the case to the California Court of Appeals (Third Appellate District).

This is how the Court describes the alleged defamatory statements: "[Dr.] Sykes alleges that [patient] Gilbert’s Web site defamed him in four different ways: (1) presenting misleading before and after facial photographs in that the after photos were taken after ‘additional and significant cosmetic surgery’ performed by others; (2) falsely indicating that Sykes recommended and performed procedures that Gilbert did not need or want; (3) misstating ‘the content of communications’ relating to the procedures he performed; and (4) falsely suggesting that Sykes was compensated for procedures ‘under the table.’"

The Court held that Sykes had not met his burden of proving that the statements were defamatory. The opinion carefully disects each statement and discusses the failure to Sykes to meet his burden of proof as to each. To be sure, the opinion is based on California law, but to those readers from Tennessee (and other states with an undeveloped body of defamation law) it is very informative.