Day on Torts

February 15, 2007

Notre Dame’s Coach Brings Malpractice Case

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.

February 8, 2007

Another Blue Chip Tort Case

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

Intentional Interference With Contractual Relations

The Case: Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691 (Tenn. 2002). Author: Justice William M. Barker

Why it is a Blue Chipper: Trua-Med is the first Tennessee case to recognize a common law cause of action for intentional interference with contractual relations. To reach that result the Court overruled Nelson v. Martin, 958 S.W.2d 653 (Tenn. 1997).

February 7, 2007

Litigation Privilege Bars Claim Against Lawyers

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

The Hawaii Supreme Court has ruled that two law firms who represented a party in a business dispute cannot be sued by the adversary party for intentional interference with contractual relations.

Plaintiff had a dispute with a business partner – the two were general partners of a partnership that ran a hotel. The defendant law firms represented the non-plaintiff partner. The dispute ended up in arbitration, and Plaintiff demanded to see certain books and records of the hotel partnership. The law firms took possession of those documents, and Plaintiff sued them for interfering with its right to access to the books and records. The law firms said, inter alia, that the suit was barred by the litigation privilege.

The Court did a nice review of the history of the litigation privilege and ruled that the lawyer’s conduct was protected by the privilege. The Court explained that the fact that the arbitration process was temporarily stayed at the time the dispute arose was immaterial.

February 7, 2007

Business Tennessee’s List of 150 Best Lawyers

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

Business Tennessee magazine has released its list of the 150 best lawyers in Tennessee. Here is the list by area of practice.

These lists come out from time to time and I am always surprised to see that some lawyers I think are just fantastic are not included. I don’t know exactly how the process works but I am honored to be included on the list again this year.

February 6, 2007

The Blogs I Read

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

I was in Knoxville yesterday and had the opportunity to talk with my friend Howard Vogel and his son Alex. We were talking blogs (the three of us make a fun group, don’t we?) and Howard or Alex asked what blogs I regularly read.

I thought I would share the list.

What About Clients?

February 5, 2007

A Post from Blog 702

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

I really enjoy reading Blog 702. The writing is great, the posts informative. I wish they had a permalink function in their blogging program, but this post is too good not to re-print here in toto.

2/7/07 UPDATE: I got a comment from the folks at Blog 702 and they informed me that they do have a permalink function. My bad. Here it is the link.

"A post by Ted Frank at Point of Law directs us to another post, by Jim Beck and Mark Herrmann at Drug and Device Law, which adverts, in turn, to an article in the December 2006 issue of Neurology entitled "The impact of litigation on neurologic research." The article is authored by two faculty at the Washington University School of Medicine (Drs. Brad A. Racette and Joel S. Perlmutter) and two attorneys (Ann Bradley, internal university counsel, and Carrie A. Wrisberg, a partner in the St. Louis law firm Moser & Marsalek).

February 2, 2007

More Evidence of the Big Lie

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

Professional and hospital liability insurers have convinced their customers that malpractice premiums will go down if meritorious malpractice claims are capped by the state legislature.

But look what happened in Florida. According to Tallahassee.com, "the Legislature three years ago capped pain and suffering awards to $500,000 per physician and $1 million per case. Since then, [ Florida Department of Financial Services’ Consumer Advocate Steve] Burgess contends, insurance data shows medical malpractice legal costs and payouts have dropped 43.6 percent, from $989 million to $557 million." And rates? One insurer wants to cut them 8.6%.

Caps on human losses in malpractice cases will have no material effect on rates, and it the insurance companies believe that it will they should agree to a reduction in premiums as a matter of law. The amount of the reduction should be determined by an independent actuary, the cost of employing such borne by each company. The amount of saving should be available to the Legislature before voting on caps so that they can determine whether it is in the best interest of the state to save doctors and hospitals money by capping jury awards in meritorious cases.