Day on Torts

September 20, 2006

Vacation

This morning my wife and I leave on what I think is a well-deserved vacation. I turn 50 years old on Thursday and my wonderful wife is taking me to the Canadian Rockies to celebrate.

One year ago she made booked a room for us at the Moraine Lake Lodge, a 33-room lodge 15 minutes outside of the Village of Lake Louise. I have wanted to go the Canadian Rockies for years and am thrilled about the trip.

I am not taking my computer and am not going to use one in the hotel. I am going to attempt to go 5 days without any communication from or to my office. I haven’t done that for at least 6 years, maybe longer.

September 19, 2006

Yesterday’s Post

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

Believe it or not yesterday’s post brought in more comments than any other post in a 24-hour period. I have published some of the comments; other comments seemed to address personal situations so I thought it best to pass on those.

Let me respond to several of the comments. Bill said "a judgment that is seemingly noncollectible today may be collectible tomorrow. Have you given any thought to this argument? In other words, what kind of proof should a victim of malpractice be required to produce?"

First, the plaintiff should have to prove the amount of liability insurance, if any, available to the original defendant. Second, if the plaintiff wants to collect a judgment more than the amount of the liability insurance originally available, he or she should have to prove that it was more likely than not that the plaintiff could have collected more than that amount from the tortfeasor. This will require proof of the income, assets and liabilities of the original defendant. In appropriate cases, the lawyer defendant will want to demonstrate that the income, etc of the original defendant is such that the plaintiff cannot prove that the judgment would not have been collectible.

September 18, 2006

Collectibility and the Burden of Proof

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

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.

September 17, 2006

Off Topic – Football

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

The only thing better than Notre Dame losing is Notre Dame losing at home.

September 16, 2006

Nancy Dis Grace, The Screaming Skull

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

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."

September 15, 2006

The “Unsound Mind” Exception to the Statute of Limitations

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

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.

September 14, 2006

Sidewalk, Not Curbside, Consultation

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

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:

September 13, 2006

Informed Consent and Causation

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

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.

September 13, 2006

Lawyer Attacks Lawyer in Congressional Race in Iowa

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

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.

September 12, 2006

A New Way to Limit Access to the Courts

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

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: