I am currently defending a legal malpractice case for a friend of mine and have insisted that the plaintiff prove that amount of damages that would have been collectible in the underlying tort case.  I have a hearing on this issue coming up shortly; the trial is this Winter.

I think the burden of proving collectibility should be on the plaintiff because it should be deemed part of the causation argument.  More specifically, the plaintiff has to prove damages by reason of the alleged malpractice of the lawyer.   (The lawyer failed to have process re-issued in a timely fashion, and the case was dismissed with prejudice).  That means plaintiff must prove that what damages, if any, he would have been able to collect in the underlying tort action against the original defendant.  The plaintiff should not be able to collect more damages from the lawyer defendant that he would have been able to collect against the original defendant.  What the plaintiff lost was the right to proceed to trial against the original defendant, and therefore what he should be able to collect from the lawyer is what he could have collected from the original defendant. 

Illinois Legal Malpractice Blog has a post that highlights a recent case taking the opposite view but goes on to cite cases that set forth the majority (and better reasoned) view.

Nancy Grace, who brings disgrace on herself and on her profession every time she appears on television, is embroiled in another controversy.   This time, it is the death of Melinda Duckett, an interviewee on Grace’s show who committed suicide.

Those of you who believe that Ms. Grace defines everything that is wrong  with talking-head "journalism" will be re-affirmed by this well-written article  by Dahlia Lithwick from Slate.  Some excerpts:

"Nancy Grace didn’t kill Melinda Duckett, but she is aiding and abetting the death of public confidence in the law. Grace dresses like a lawyer and talks like one, but the only thing she seems to feel for the court system is contempt."

Tenn. Code Ann. § 28-3-104(a)(1) (2000) provides a one year statute of limitations in personal injury cases (the shortest such statute in the nation).  However, Tenn. Code Ann. § 28-1-106 (2000) creates two  exceptions to the rule; it provides as follows:

"[i]f the person entitled to commence an action is, at the time the cause of action  accrued, either under the age of eighteen (18) years, or of unsound mind, such person, or such person’s representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability."

But what happens when the person of "unsound mind" has a person appointed by the court to look out for him (a conservator)?  The Tennessee Supreme Court looked at that issue in an opinion released yesterday.  Here are the precise questions posed to the Tennessee Supreme Court from the United States District Court for the Western District of Tennessee.

Do you remember   Kelley v. Middle Tennessee Emergency Physicians, P.C., 133 S.W.3d 587 (Tenn. 2004), when the defendant tried to claim that he owed no duty to the plaintiff because he was not the plaintiff’s regular doctor?   The defendant was called by the emergency room doctor and gave the doctor advice that allegedly turned out to be wrong.  The defendant said his advise was a "curbside opinion" and did not give rise to a duty of care to the patient.  The Tennessee Supreme Court respectfully disagreed and said an issue of fact existed on the subject.  (Note:  the Court also made it quite clear that they thought the defendant’s argument that  there was a mere "curbside consultation" based on the "undisputed facts" was a stretch – see text accompanying fn. 17 in the opinion).

Well, the nice folks in Mississippi just had a "sidewalk opinion" case.  The defendant doctor there said he did not owe a duty to the patient to give the patient’s treating physician the right advice when the treating physician called and sought and opinion before referring the patient to the defendant for treatment.  In Scafide v. Bazzone, NO. 2004-CA-01658-COA (Miss.Ct. App. 9/12/06) the Court held that the defendant did not have a duty.

The key language from the opinion:

Here is an unusual case out of California – a unique application of the "reasonable person test" when applying the causation standard in an informed consent case.

Wilson was paralyzed from spinal surgery for scoliosis, rendering him a paraplegic. He was wheelchair bound and needed to use his arms and shoulders to get in and out of the wheelchair.  Some five years ago Wilson had a stroke, and thereafter  developed adhesive capsulitis in his shoulder.  His doctor referred him to a chiropractor, who recommended manipulation under anesthesia.  Wilson asked his doctor questions about the risk associated with the procedure, and allegedly was told by his doctor  that the only risk was an infection secondary to an injection that was part of the procedure.  His doctor was present at the procedure performed by the chiropractor. Wilson suffered a fractured shoulder and a torn rotator cuff during the procedure. As a result, he had to undergo surgery to repair the damage.

Wilson sued the doctor, the chiropractor and others, saying that he never gave informed consent to the procedure.  The case went to trial against the doctor, but the trial judge dismissed this case on several grounds, including the failure of Wilson to prove causation in the informed case. 

Bruce Braley is running for Congress in Iowa.  His Republican opponent is a lawyer.

Bruce is the subject of this attack ad – a real cheap shot considering it comes from a Republican who had enough intellect to attend Harvard Law School.

I know Bruce – he is a good guy who deserves the help of lawyers across the Nation.  You can contribute to his race here.

Ok.  You have heard of damage caps, certificates of merit, and restrictions on fees that one side of a dispute can pay its lawyers (but no cap on the other side).  And you have heard of experts having to know the local standard of care in reading x-rays or determining whether it is appropriate to operate the right leg when a patient has given given consent to operate on the left.  And if you are from Tennessee you know that medical experts have to come from contigious states to be qualified to testify in a medical malpractice case.

But the good folks down in Alabama have come up with a new way to erect a hurdle on litigants.  How?  The Legislature passed a law that says that in  Alabama an engineer who is a witness in a case has to be licensed in Alabama.  Yep.  And that rule was recently upheld by the Alabama Supreme Court in Board of Water vs. Hunter, 2006 WL 2089914 (July 28, 2006).   (Alabama does not post its opinions on a website that has free public access, there being no particular reason to let the people know what is going on in the court system.  Hell, if they read this stuff they might actually turn out and vote.)

The relevant statutes:

Did you see that Glaxo has agreed to pay the IRS $3.4 billion dollars in past due taxes?  Read more here.  Glaxo had estimated that it might be on the hook for $15 billion.

The good news for Glaxo is that paying the money will not have any significant impact on the company’s earnings.  Isn’t that nice?

The Washington Post says that "the case, which began with an IRS audit in the early 1990s, involved the way Glaxo paid taxes on U.S. profits from such popular drugs as Zantac, a stomach remedy, Imitrex, for treatment of migraines, and Ceftin, an antibiotic."

Timothy Brown sued the United States  alleging that his daughter Melody developed spinal bifida as a result of a military doctor recommending to Deborah Brown (Melody’s mother and a member of the military) than she  (Deborah) stop taking prenatal vitamins during a critical period in his development in utero.  The vitamins contained folic acid, which the Tommy alleged  is intended solely to prevent  neural tube defects in a developing fetus. Neural tube defects can cause serious spinal cord and  brain injury during the first 28 days of gestation, after which the fetal neural tube closes. Deborah Brown sustained no physical injury whatever from the effects of the negligent prenatal treatment, from her pregnancy, or from Melody’s birth.

The United States moved to dismiss, alleging that it was immune from suit under Feres v. United States, 340 U.S. 135 (1950).  Feres held that  the government “is not liable under [the Act] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”   Id. at 146.  Plaintiff argued that the  Feres  doctrine was inapplicable because Melody’s injury was not derivative of any injury to her mother but was, rather, the result of negligence affecting Melody directly(albeit in utero). 

The district court (Judge McCalla in Memphis) dismissed the case, saying the case was controlled by a prior decision of the Sixth Circuit in Irvin v. United States, 845 F.2d 126 (1988), which held that "the treatment accorded to a pregnant member of the military on active duty is inherently inseparable from that accorded to the fetus and that such a claim would therefore force a judge to  question the propriety of decisions or conduct of fellow members of the military."

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