I hesitate to use this title – my “comments” log is already filled with posts from people who try to sell sex over the Internet.
But “Sex Torts” is the name of a law review article by Deana Pollard and, at a minimum, that title got each one of you to read this far, didn’t it?
Here is an abstract of the article:
The MCL is a great book and it is now available for free. The new edition “updates the treatment of electronic discovery and other aspects of pretrial management and describes major changes affecting case management in the substantive and procedural law in mass torts, class actions, intellectual property, employment discrimination, and other types of litigation.” It has dozens of forms, a good number of which can be used in “normal” cases.
Find the book here.
There are a good number of you folks – almost 50 of you every workday – who check this blog before 8:00 a.m. I typically get up between 4:00 and 4:30 and do my daily post first thing in morning, so some of you have come to expect that I will have posted by the time you have had your first cup of coffee. Indeed, my friend Keith Williams called me one time when I did not post before 8:00 because he thought I must be ill.
Tomorrow will be a little different. I have to go to Baltimore this morning and Washington, D.C. this afternoon. I have decided not to haul a computer will me so, unless the hotel has a business center with access to a computer, I will not be posting tomorrow until close to Noon.
Thanks for reading. If you have any suggestions for what I can do to improve this blog please let me know.
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.
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.
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.”
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.
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.”
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.
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.
