Day on Torts

June 17, 2006

The Convention, This Blog, and Giving

Well, the 2006 TTLA Convention is over. As I mentioned earlier this week, Gary Gober did a great job organizing the speakers for the event.

Many of you came up to me at the various meetings and parties and expressed your appreciation for my work on this blog. I truly appreciate your kind words. A blog does take more effort than you might imagine, although I must say I do not really find it to be “work” in any shape, form or fashion. I learn with every post and, to the extent that I can help my fellow lawyers do a better job representing their clients by sharing what I learn on this blog, so much the better. A rising tide truly lifts all boats.

Some of you asked what you could do for me for providing this service to the Bar. I have one request: support the Tennessee Trial Lawyers Association and its political action committee, Lawyers Involved For Tennessee. Both organizations perform valuable service for the people of Tennessee. TTLA helps advance the cause of personal injury and wrongful death victims on Capitol Hill and educate its members on how to advance the cause of those citizens in our courtrooms. LIFT contributes money to candidates who have made or are willing to make the sacrific of public service in our Legislature. Both organizations deserve our continued support.

June 15, 2006

Summary Summary Judgment

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

Judge Koch and the Court of Appeals for the Middle Section have ruled that a summary judgment in favor of a doctor in a medical malpractice case must be reversed because the plaintiff was not given adequate time to marshal the facts necessary to respond to it and submit an affidavit necessary to defeat the motion.

I have commented before that it is a mistake for lawyers to assume that a trial judge will automatically give a plaintiff additional time to respond to a motion for summary judgment. But this case tells us that a plaintiff must have a reasonable opportunity to respond to the motion, and recognizes that “[i]t is quite conceivable that careful experts will withhold rendering an opinion based on medical records or supporting affidavits alone.”

Say it again, brother. Lawyers who handle medical negligence cases know that the medical records tell only part of the story and that if you develop, in writing, a theory of the case based on the medical records any gaps in the records will be filled with facts contrary to your theory. Am I saying that health care providers lie? Oh, sometimes – they are human. But in the ordinary course “lie” is too strong of word. It is more accurate, and certainly more polite, to say that most human beings tend to resolve doubts in favor of themselves, particularly when those doubts cannot be controverted by something written in their own hand. Hence, a careful expert, and a careful lawyer, will not assume facts that only can be found in the gray matter of an opponent or potentially hostile witness.

June 13, 2006

Emotional Distress Claims Allowed for Trespass to Real Property

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

The United States District Court for the District of Columbia has allowed plaintiffs in a trespass action to seek damages for emotional distress.

Defendant and its predecessors alleged contaminated ground water with gasoline. Plaintiffs’ claims included claims for emotional distress.

The Court ruled that “[u]nder District of Columbia law, it is firmly established that a plaintiff may recover damages for mental suffering unaccompanied by physical injury where the plaintiff sues for an intentional tort. Adams v. George W. Cochran & Co., Inc., 597 A.2d 28, 31 (D.C. 1991); Parker v. Stein, 557 A.2d 1319, 1322 (D.C. 1989); Barnes v. Dist. of Columbia, 452 A.2d 1198, 1199 D.C. 1982). It is also clear that trespass is an intentional tort. E.g., Cleveland Park Club v. Perry, 165 A.2d 48, 488 (D.C. 1960). Although the parties have not cited – and the Court has been unable to find – a District of Columbia decision addressing the availability of emotional distress damages in a trespass case, the decision in Parker is instructive. In that case, the Court of Appeals for the District of Columbia, applying the established rule regarding intentional torts, concluded that emotional distress damages are available in an action for conversion of personal property. Parker, 557 A.2d at 1322-23. Here, the Court can find no meaningful distinction between personal and real property to suggest that courts in the District of Columbia would permit recovery of emotional distress damages for intentional torts involving personal, but not real, property damage. Accordingly, the Court concludes that emotional distress damages are recoverable for trespass actions under District of Columbia law.”

June 12, 2006

Great Info on Medicaid / Medicare Subrogation

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

I wrote recently about the decision in Arkansas Dept. of Health and Human Services v. Alhborn, 126 S.Ct. 1752 (2006), the USSC decision which ruled that state Medicaid agencies’ claims for reimbursement out of tort settlements are limited to that portion of any settlement attributable to past medical expenses. The ruling means that the agencies may not lay claim to any portion of a plaintiff’s recovery for lost wages, pain and suffering, permanent disability or other future damages.

Now, ATLA’s Center for Constitutional Litigation has issued a paper titled “Possible Extension of Ahlborn Ruling to Medicare and Guidance to Plaintiffs’ Counsel Regarding the Decision.” The CCL’s view: “We believe that Ahlborn’s logic should control repayment claims by other federal programs, such as those asserted under the Medical Care Recovery Act (“MCRA”) and the Medicare Secondary Payer Act (“MSPA”), despite differences in the language of each statute, because the basic structure of the repayment obligation is the same under all three federal statutes and because all three acts share a common congressional purpose.”

The memo is a six-page receipe for addressing this issue.

June 10, 2006

Hospital-Acquired Infections

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

As you undoubted know if you are a regular reader of this blog, we represent plaintiffs in medical malpractice cases. We average almost three calls per business day from prospective medical malpractice plaintiffs; our screening process weeds out 98% of those calls and therefore we file less than 20 of those cases per year.

We are seeing a significant increase in the number of hospital-acquired infection calls we are getting. Of course, we have always gotten a good number of calls where people complain about getting a staph infection. But we have seen a virtual explosion in the number of calls.

That is why this article caught my eye. Apparently a hospital in Pennsylvania decided to attack the problem and believes that it saved 47 lives by doing so. One doctor said that their three year program demonstrates that “as much as 90 percent of common hospital-acquired infections could be prevented in a year’s time if hospitals paid better attention to hygiene and standardized how intensive care unit patients receive care.”

June 10, 2006

Trial Update

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

As I mentioned in a post last weekend, our firm had three cases going to trial this week. John Branham and Brandon Bass settled their personal injury case Tuesday morning right around the time for closing argument. They obtained a great result in a case in which no money was offered before trial.

John Branham and Rebecca Blair’s trial settled Wednesday, the day before trial.

My case – an arbitration of a commerical case – was set to go three days. I was defending this case; it alleged breach of contract and a TCPA violation. It settled near the end of my cross-examination of our adversary’s CEO for one-half of our prior offer and less than 4% of the claimed damages. It was a fun experience, especially since the arbitrator did not permit depositions.

June 9, 2006

New Book on Patient Safety Standards

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

The Joint Commission has released the Fourth Edition of its book “Patient Safety Essentials for Health Care.”

The blurb: “This book is the complete guide to the Joint Commission’s safety standards for ambulatory care, behavioral health care, critical access hospital, home care, hospital, and long term care organizations. It includes the standards, rationales, elements of performance, and scoring information in one handy resource. This book also identifies the commonalities among the standards to help readers understand which standards apply to which settings.”

Order it for $75.00 here.

June 9, 2006

Spoliation Instruction Given

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

The Rhode Island Supreme Court has ruled that a plaintiff who is injured in a slip and fall accident at a restaurant is entitled to a spoliation instruction if the restaurant, contrary to policy, did not prepare an accident report.

The Court re-affirmed existing law in the state which provided that “it was appropriate for a trial justice to give a spoliation instruction where a corporate defendant (1) failed to produce a document which the evidence tended to show was routinely generated by the corporation and (2) was unable to provide a satisfactory explanation as to why the document was not prepared with respect to the incident in the case before the court.””

The dissenting justice said as follows: “In this case, no evidence whatsoever was introduced to explain how the liquid came to be on the floor, how long it had been there before Mrs. Mead fell, or whether the defendants had any actual or constructive notice of its presence. It is difficult to discern a factual predicate for the defendants’ liability other than by drawing an adverse inference from their failure to produce an accident report. A necessary precursor to the jury’s ability to draw such an adverse inference, however, was a determination that an accident report at one time existed. Lacking that factual predicate, the majority’s endorsement today of the trial justice’s instruction, in effect, commandeers the doctrine of spoliation to enforce, with severe consequences, a corporate policy of creating accident reports.”

June 7, 2006

TBA Article

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

Here is a link to an article I wrote for the Tennessee Bar Journal about a recent opinion discussing T.C.A. Sec. 20-1-119. Go to the link and locate the article and you will find a link to the article in the “Table of Contents” on the left side of the page. The column is titled, “You Sunk My Lifeboat!”

June 6, 2006

Tort Reform Around the Country

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

Do you want to see how the tort deform movement has made an impact on the laws of the fifty states (and D.C.)? See this article.

The abstract: “This manuscript contains the most detailed, complete and comprehensive legal dataset of tort reforms in the U.S. The dataset records state laws in all fifty states and the District of Columbia over the last several decades. For each reform we record the effective date, a short description of the reform, whether or not the jury is allowed to know about the reform, whether the reform was upheld or struck down by the states’ supreme courts, as well as whether it was amended by the state legislator. Previous and current scholarship which studies the empirical effects of tort reforms uses various different legal datasets, (tort reforms datasets and other legal compilations), some which existed online, some created ad-hoc by the researchers. Besides being different from each other, these datasets frequently do not cover reforms adopted before 1986, miss reforms superseded after 1986, miss court-based reforms, ignore effective dates of legislation, and do not accurately record judicial invalidation of laws. It is possible that at least some of the persisting variation across empirical studies about the effect of tort reforms might be due to variations across legal datasets used. This dataset builds upon and improves existing data sources. It does so by reviewing original sources of legislation and case law to determine the exact text and effective dates. It is hoped that by creating one “canonized” dataset our understanding of the impact of tort reform on our life will increase.”

The author is Ronen Avraham, a Professor at Northwestern.