Day on Torts

July 22, 2006

Early Intervention Prevents Lawsuits

It just makes sense for hospitals and doctors to try to resolve problems with patients before lawyers get involved, and it looks like they are starting to do it.

This article from www.law.com explains how facilities are starting to aggressively deal with potential claims and avoid litigation.

Look at what happened to claims at the University of Michigan Hospital when such a program was adopted: "In August 2001, there were 262 total claims, ranging from presuit notices to active litigation; in August 2002, there were 220 total claims; 193 claims in August 2003; 155 claims in August 2004; 114 claims in August 2005; and since that time, the total number of claims has fallen to fewer than 100…." This occurred despite an increase in clinical activity.

July 21, 2006

Do You Ask About Personal Notes?

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

Here is a great case out of Illinois that reminds us of the importance of asking each fact witness about whether they have made any personal notes concerning the event at issue.

In Cangelosi v. Capasso, No. 03–L–392, (Ill. Ct. App, 2nd Dis. June 30, 2006), plaintiff asked that a nurse who made personal notes about treatment made within a day of the event at issue be compelled to produce them in litigation. She resisted that effort, saying that she made the notes in contemplation of litigation. At her deposition, the nurse "testified that her notes memorialized factual things that she saw, factual things that she did, and factual things that she saw other people do. The notes include things that the doctors may have said during her shift regarding plaintiff’s care. After completing her notes, defendant nurse] placed them in a folder in her kitchen cabinet. "

The court ordered production of the notes, saying that they were not protected by the attorney – client privilege because they were not a communication to an attorney for purposes of securing legal advice. Nor were they protected by the work product doctrine, because " they do not ‘contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.’"

July 20, 2006

New Emotional Distress Decision

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

The Tennessee Supreme Court has ruled that the three-year statute of limitation applies for emotional distess claims arising out of injury to property "inspired by fraud, malice or like motives."

The Trial Court and Court of Appeals affirmed dismissal of the claim for emotional injuries because the lawsuit was not filed within one year. The TSC reversed on this issue, holding that "[t]he gravamen of the Whaleys’ complaint is that the defendants’ actions injured their property, and the damages they sought for emotional distress were “damages aris[ing] wholly as a result of the injury to plaintiffs’ property and not as a result of anything personally done to them.” In other words, the Whaleys’ “claim” for damages for emotional distress was merely an element of their overall claim for damages for the injury to their property and not a stand-alone cause of action. Consequently, the three-year property tort statute of limitations applies, and the intermediate court erred in holding that the one-year personal injury statute of limitations barred the Whaleys’ claim for damages for emotional distress."

Turning to another issue, the Court also held that "the Defendants’ violation of the Shelby County subdivision regulation does not warrant the application of the doctrine of negligence per se." The Court agreed with the Court of Appeals on this issue, and adopted this language from the opinion of the lower appellate court: "these subdivision regulations were enacted largely for reasons related to quality of life, among them, assuring adequate public facilities for residents, minimizing pollution, providing for orderly layout and use of land, protecting the value of land, preventing overcrowding, and assuring effective traffic circulation. The harm alleged by the Whaleys is not a harm the regulations were designed to prevent, but rather, it is an accidental consequence of a [regulation] enacted to prevent other harms to the community and its residents that could be caused by the unregulated subdivision of land."

July 18, 2006

Another Report from Seattle

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

This was another interesting day at the ATLA Convention.

This morning I went to a breakfast featuring Senator Gordon Smith (R-OR). He gave a good talk, not particularly dynamic but very informative and given with obvious conviction. Senator Smith’s remarks included telling us about the relatively recent suicide of his son, a young man who suffered from manic depression. He gave each of us a copy of his book about his son; I have already started to read it and find it well-written, informative, and profoundly sad. I had not met Senator Smith before the speech but found him to be an intelligent, pleasant man who appears to have an understanding of who he is and what he stands for.

I heard James Carville speak at lunch. Carville is an dynamic speaker who can really pump a crowd already leaning toward his views. He is very bright and truly believes what he says but tends to use outrageous examples and words to drive his point home. I have had the pleasure of seeing Carville speak three or four times and meeting him twice. He is much more reserved in person and it is easy to understand why candidates seek his advice.

July 17, 2006

Good Morning From Seattle

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

I am in Seattle at the ATLA Convention. I arrived here last Thursday. I spent Friday and Saturday doing board work for the National Board of Trial Advocacy and Sunday morning meeting with a group of lawyers on a case that we are working on together. I finally got the opportunity to get in a little CLE yesterday afternoon and will be enjoying more of that today.

The weather is beautiful here – mid-70s during the day and sunny.

Those of you that are ATLA lawyers know that there will be a vote here Wednesday on whether to change ATLA’s name. I do not have a sense on whether the name change will pass but ATLA leadership seems confident that it will.

July 16, 2006

Lots of Links to Codes and Standards

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

Here is a list of those starting with the letter "A":

AAMA American Architectural Manufacturers Association

AAMA American Apparel Manufacturers Association

July 15, 2006

21% of Tennesse Drivers Uninsured

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

Motorists Beware! A new study reports that 21% of drivers in Tennessee are uninsured. Read about the study here.

I would love to know what percentage of the drivers that have insurance have only the minimum limits ($25,000 per person, $50,000 per accident).

Use this information to educate your clients about the need to purchase adequate levels of uninsured / underinsured motorist coverage. I have always thought it was an outrage that an agent could persuade a person to waive UM / UIM limits equal to that of their liability limits. While I agree that the limits purchased should be a made of choice, I also think that the agent should be required to say, in writing, what it would cost the customer to have UM / UIM limits equal to their liability limits. Such a rule would ensure that the consumer made an informed decision about what to purchase. I also think that the customer should be required to waive equal limits in writing every year, not just once during the life of the relationship.

July 14, 2006

Doctor Fights Back

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

Dr. Fullerton made a horrible mistake. He testified for a patient in a medical malpractice case. The defendants won the case and turned Dr. Fullerton into the Florida Medical Association "stating, among other things, that his opinion testimony fell below reasonable professional standards, that it was made “for the sole purpose of propagating a frivolous lawsuit for financial gain,” and that he specifically “presented false testimony and false theories about stroke in the hope to prove negligent medical care in an 80-year-old diabetic with previous strokes who suffered a stroke despite appropriate care.” Appellees concluded their letter with a request to the FMA to issue an opinion addressing whether Fullerton’s testimony “fall[s] below standards,” and, if so, to report its findings to the Board of Medicine for appropriate disciplinary action in order “to prevent the Medical profession from being terrorized by similar experts.”

Fullerton (who was not a member of the FMA) responded with litigation, alleging " that the statements in the letter were false and were submitted for processing by the FMA’s Expert Witness Committee (EWC) of FMA’s Council on Ethical and Judicial Affairs (CEJA), which was organized for the purpose ‘of intimidating, hindering, and deterring persons, including plaintiff Fullerton, from appearing as expert witnesses on behalf of plaintiffs in cases involving medical malpractice,’ thereby depriving injured plaintiffs of the ability to pursue medical-malpractice lawsuits. He continued that because of the actions of FMA and the defendant doctors, who acted in concert to inhibit expert testimony in medical malpractice cases, he had suffered damages and would suffer irreparable harm to his reputation and to his capacity to earn income in the future if the defendant FMA’s CEJA and EWC programs were permitted to continue their operations."

The doctors and the FMA claimed they were immune from suit under the peer review statute in Florida. The trial court dismissed the case.

July 13, 2006

Yesterday .. and Today

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

LexBlog provides us various types of service for our four blogs. Yesterday they upgraded our software and therefore we couldn’t blog until the end of the day. And by the end of the day (I left the office at 6:00, came back at 7:45 and left at 9:15) I was ready for bed.

However, today is a new day and we are ready to rock ‘n roll.

I am off to Seattle to the ATLA Convention. I attended by first ATLA Convention in Seattle over 20 years ago. It is a very nice city and I am really looking forward to the trip.

July 13, 2006

When The Snow and Your Client Falls

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

Here is the latest premises case involving freshly fallen snow.

In Clifford v. Crye-Lieke Commercial, Inc., No. M2005-00376-COA-R3-CV (Tenn. App. M.S. July 11, 2006), Judge Koch and his colleagues affirmed a grant of summary judgment in favor of the defendant in a slip and fall case involving freshly fallen snow.

The holding: