Dr. Bill Frist, who serves both as Majority Leader of the United States Senate and Founder and CEO of  APCDBAV (Association of Physicians Capable of Diagnosing Brain Activity Via Videotape), applied for renewal of his medical license in Tennessee, pledging that he met the CME requirements of the State.

This article suggests that he did not.

The excuse?  "’As a result of a change in Tennessee’s regulations several years after Dr. Frist came to the Senate, he may be required to complete additional continuing medical education hours,’ spokesman Matt Lehigh said in a statement. ‘A representative of the Tennessee Board of Medical Examiners has been contacted, and Dr. Frist will meet every requirement of the Board.’"

The case:  Lavin v. Jordon, 16 S.W.3d 362 (Tenn. 2000).  Author:  Justice William M. Barker.

Why it is a Blue Chipper:  Lavin v. Jordan is the leading case on the liability of parents for the willful or malicious tortious acts of their children.  It is important to note, however, that despite some rather broad language in Lavin the Eastern Section of the Tennessee Court of Appeals has recently held that neither Lavin nor the statute referenced below are applicable in cases where the child negligently causes injury or death.

The bottom line:

Former Justice Penny White, former Judge Joe Riley and I are holding our civil trial practice seminars again this Fall.

We started Justice Programs three years ago with the idea that, with increasing specialization in the Bar, a large number of people would prefer to attend an "annual review" program that was focused on the law of interest to civil trial lawyers.  Attendance at the seminars have exceeded our expectations and have grown by leaps and bounds each year.  We believe that this year’s program will be even better than the one we offered last year and registrations are already flowing into our headquarters in Ripley.

Here is our schedule for 2006:

Damage paid for personal injury claims are not taxable, right?  Wrong.  Damages paid for personal injury claims "“on account of personal physical  injuries or physical sickness” are not taxable.  26 U.S.C. § 104(a)(2).   Damages paid for purely emotional injuries are taxable, at least in the opinion of the IRS. 

Now, along comes Murphy v. Internal Revenue Service,  No. 05-5139 (D.C. Cir.  August 22, 2006).  Murphy received "damages for emotional distress and loss of reputation she was awarded in  an adminstrative action she brought against her former employer."  She was asked to, and did, pay taxes on the award, and then sued to get her tax payments back.  She tried to argue that the payments fell within the exclusion of § 104(a)(2), but that failed.  However, the Court held that  "§ 104(a)(2) is unconstitutional as  applied to her award because compensation for a non-physical  personal injury is not income under the Sixteenth Amendment  if, as here, it is unrelated to lost wages or earnings."

The Court said "it is clear from the record that the damages were awarded to make Murphy emotionally and  reputationally “whole” and not to compensate her for lost wages  or taxable earnings of any kind. The emotional well-being and  good reputation she enjoyed before they were diminished by her  former employer were not taxable as income. Under this  analysis, therefore, the compensation she received in lieu of  what she lost cannot be considered income and, hence, it would  appear the Sixteenth Amendment does not empower the  Congress to tax her award."  It went on to say that "every indication is that damages received solely in  compensation for a personal injury are not income within the  meaning of that term in the Sixteenth Amendment. First, as  compensation for the loss of a personal attribute, such as wellbeing  or a good reputation, the damages are not received in lieu  of income. Second, the framers of the Sixteenth Amendment  would not have understood compensation for a personal injury —  including a nonphysical injury — to be income. Therefore, we  hold § 104(a)(2) unconstitutional insofar as it permits the  taxation of an award of damages for mental distress and loss of  reputation."

Another day, another article about problems in the human tissue industry.  This time it is Donor Referral Services of Raleigh, N.C., a company run by a man named Philip Guyett.

This North Carolina firm in the business of body part brokering allegedly used an unsterile embalming room to get usable tissue.  The number of people who received the tissue is unknown.

No lawsuits appear to have been filed concerning the problem and, in fact, it is unknown whether any patients have been injured by the tissue.

The statute of limitations is tolled when the plaintiff is of unsound mind.  Tenn. Code Ann. §  28-1-106.  Does the fact that a Durable Power of Attorney (executed before the incompetency) is in existence trump the tolling statute and require the attorney-in-fact to take action within the original statute?

The Tennessee Court of Appeals said "no" in Sullivan v. Chattanooga Medical Investors, L.P.,  No. M2004-02264-COA-R3-CV –  (January 26, 2006).   See the original opinion here.

Judge Susano put the issue this way:  "Is the tolling effect  of Tenn. Code Ann. § 28-1-106 implicated when an individual, while competent, grants another a  durable power of attorney, including the power to act for the grantor with respect to “claims and  litigation”? The crux of both the defendant’s argument and the trial court’s holding in opposition  to the application of § 28-1-106 is that, by granting a durable power of attorney, the deceased  removed himself and the plaintiff from the ambit and protection of § 28-1-106."

From a recent press release issued by the Tennessee Dept. of Commerce and Insurance:

"Public Chapter 744, effective May 23, 2006, contains several important changes to the Medical Malpractice Reporting Law of Tennessee, (Public Chapter 902, adopted in 2004, and codified at Tenn. Code Ann. § 56-54-101). For the first time, it requires “reporting entities” (insurance companies, uninsured health care facilities and professionals) to include the damages and defense expenses incurred from the inception date of the medical malpractice claim until the end of the reporting year in its annual report to the Department of Commerce & Insurance (the “Department”). This change will enable the Department to accurately report on all of the costs to date incurred by reporting entities in its annual report to the General Assembly, rather than just those costs incurred during the reporting calendar year. The law requires reporting entities to re-file 2005 reports by July 1, 2006 to reflect these inception-to-date damages and costs, and also extends the deadline for the Department to report to the General Assembly from September 1 to November 1 of each year.

The legislation places requirements on counsel for claimants to submit their information on medical malpractice fee arrangements directly to the Department by April 1 of each year, beginning in 2007. Counsel for claimants are also included in the definition of “reporting entities” over which the Department has civil penalty authority to levy a fine of $100 a day for failure to report. The law now requires claimant’s counsel to report the portion of settlement or judgment received in the reporting calendar year. Similarly, all reporting entities must now list the name of each attorney representing claimants in its annual report in order to provide the Department with additional enforcement information. All settlement and judgment information submitted to the Department will continue to be held confidential, and reported only in aggregate form.

Here is an interesting site that provides a good number of links of use to tort lawyers (and others).  The site is published by the Philadelphia Association of Paralegals and has more than 100 links.

For instance, Omni Medical Search is a site that I was unfamiliar with that is referenced by the PAP.  It looks great.

Enjoy.

Merck got hammered twice yesterday, first in New Orleans and then in New Jersey.

In New Orleans, a federal court jury ordered Merck to pay $51 M to a retired FBI agent who suffered a heart attack after taking Vioxx for three years.  The case was a "must win" for the plaintiffs in the Vioxx litigation, who lost the first Vioxx trial in the federal court case track several months ago.

In New Jersey, Judge Higbee granted a motion for new trial in a case lost by a Vioxx plaintiff several months ago, a case tried before it became public knowledge that Merck had played games with the data underlying a published study on the "safety" of Vioxx.  The Judge "said that jurors should not have had to consider the [New England Journal of Medicine] article without knowing that its editors believed that Merck had misrepresented the results of the trial."   Judge Higbee is presiding over 7100 suits in New Jersey.

The ABAs House of Delegates voted 207-137 to recommend adding to Federal Rules of Civil Procedure Rule 26(a)(2) a privilege for draft reports and communications between attorneys and their experts.

A Law.com article on the votes reports that "[t]he proposed change was prompted by varying judicial interpretations of 1993 amendments that expanded permissible expert discovery from "materials relied on" by an expert to "any data or other information considered by an expert" in forming his or her opinion. Some judges protect drafts until experts turn them over to counsel, while others require counsel and experts to turn over all drafts. "

Read the full article here.

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