Day on Torts

February 5, 2007

A Post from Blog 702

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.

February 1, 2007

Those Who Share Prescription Drugs Owe Duty

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

The Supreme Court of Arizona has ruled that persons who are prescribed drugs owe a duty of care, making them potentially liable for negligence, when they improperly give their drugs to others.

The defendant shared his prescribed drug (oxycodone) with others at a party. One of the women he shared the drugs with gave them to the plaintiff’s decedent, who died that night from the combined toxicity of alcohol and oxcyodone. The plaintiff (decedent’s mother) sued, and defendant denied that he owed a duty to the decedent.

The Court held that because Arizona had statutes prohibiting the sharing of prescription drugs a duty existed. The Court said that "[b]ecause [the decedent] is within the class of persons to be protected by the statute and the harm that occurred here is the risk that the statute sought to protect against, these statutes create a tort duty."

February 1, 2007

The Death of Molly Ivins

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

I never met Molly Ivins, but wish I had. She was a gifted writer with a wonderful sense of humor.

Her death is a real loss for all of us who love to read about politics.

January 31, 2007

Are Expert Witness Fees Recoverable in the Sixth Circuit?

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

The Sixth Circuit Court of Appeals has ruled on whether expert witness fees may be taxed as costs in federal court.

FRCP 54(d) permits a successful party to recover costs in federal court and 28 U.S.C. 1920 permits the recovery of "fees and disbursements for printing and witnesses." The amount recoverable for witnesses is spelled out in § 1821 and includes $40 per day for an appearance fee, allowable travel expense, and a subsistence allowance when overnight travel is required.

The Court determined that expert witness fees were not recoverable because § 1920 does not provide for them. However, the prevailing party may recover "as ordinary witness costs for attendance fees, travel expenses, and as a subsistence allowance under § 1821."

January 30, 2007

New Hampshire Court Denies Claim for Boyfriend

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

The New Hampshire Supreme Court has held that a boyfriend riding a motorcycle could not bring an emotional distress claim against another driver for injuries caused as a result witnessing the death of his passenger (who was also his girlfriend).

The issue was "did the trial court err in determining that the plaintiff and MacDonald were not “closely related” so as to satisfy the requirements of Graves v. Estabrook, 149 N.H. 202 (2003), for bystander recovery in a negligent infliction of emotional distress claim?"

The Supreme Court affirmed dismissal of the case, holding that the plaintiff and his late girlfriend were not "closely related." They explained their decision as follows:

January 29, 2007

Verdict in Greyhound Case Affirmed

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

The Sixth Circuit Court of Appeals has affirmed a verdict in a case where a bus driver was attacked by a knife-wielding passenger, resulting a bus crash that resulted in several injuries and the death of the bus driver. A trial resulted in a verdict for the plaintiff passenger.

First, the defendant challenged the admissibility of plaintiff’s experts; the Court of Appeals found no error in permitting the experts to testify.

Second, the defendant argued that prior incidents should not have been admitted into evidence. This is the Court’s ruling on this point:

January 26, 2007

A Different Take on “Tort Reform”

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

The Economic Policy Institute has a different take on the impact of "tort reform" on the economy.

An excerpt:

The legal system for adjudicating tort claims in the United States delivers important bene?ts to the American people. Most notably, these benefits include the compensation of injured persons (including people harmed by giant corporations and other powerful interests), the deterrence of wrongdoing, greater investments in product innovation and safety, and the civilized, non-violent settlement of disputes. These benefits are rarely quantified, and critics generally focus exclusively on the system’s costs, whose magnitude and impact they tend to exaggerate, claiming that job growth, productivity, health care, and corporate profits suffer under the current system. Although a full review requires an examination of both the costs and benefits of the system, this briefing paper reviews only the tort system’s most commonly alleged economic costs and impacts and shows that most have little or no basis in reality.

January 25, 2007

Medical Practice Guidelines

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

It takes a tremendous amount of time and money to screen medical malpractice cases. Our office reviews over 700 cases per year and rejects over 95 percent of them over the phone. Of the remaining 5 percent most are rejected after review of the medical records and, if appropriate, consultation with one or more medical experts. In short, we spend a significant sum of money every year trying to take only claims that are valid and have sufficient damages to justify the significant investment of time and money necessary to prosecute one of these cases.

One way to save a little money and time reviewing cases and to help win a case that is actually filed is to use practice guidelines developed by the health care industry. Practice guidelines are consensus statements of good medical practice. The phrase "standards of care" immediately jumps to mind when one reads the last sentence – and that is what practice guidelines are. However, practice guidelines are not called standards of care because the people who write and use them seek plausible deniability if ever confronted with them.

No bother. You can use practice guidelines to evaluate the care your potential client or client received. You can use practice guidelines to prepare for depositions of health care providers. Your expert can point to practice guidelines as evidence of the standards of care, disclaimers notwithstanding. In short, they are potentially useful in litigation and, more importantly, very helpful in standardizing and improving the quality of care given to patients.

January 24, 2007

Getting Good Results

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

Here is an interesting post from the Virginia Injury Laywer Blog offering an opinion on how to get good settlements in personal injury cases. Permit me to comment on a couple:

"1. Don’t just dabble in personal-injury cases; the insurance defense lawyer is too good for that, and he will only smile as he runs over you while you are dabbling."

Personal injury trial work is a legal speciality, just like surgery is a medical speciality. If you take a personal injury case "now and then" when the opportunity presents itself you will almost certainly not get a reasonable value for it. Stick to what you know.