Day on Torts

June 5, 2006

CAUGHT!

The doctors have been claiming that there are shortages in the numbers of physicians and that the shortage is due to laws which hold doctors accountable for negligence that causes harm to patients. (You know, just as if they were truck drivers or other real people.)

Well, yesterday’s Los Angeles Times wrote about the shortage of physicians. Take a look at this:

“The number of medical school graduates has remained virtually flat for a quarter century, because the schools limited enrollment out of concern that the nation was producing too many doctors. But demand has exploded, driven by population gains, a healthy economy and a technology-driven boom in physicians’ repertoires, which now include such procedures as joint replacement and liposuction.”

June 5, 2006

Negotiation and Truth-Telling

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

“Are we negotiating or are we telling the truth?”

That’s a quote from a defense lawyer friend of mine made while we were trying to resolve a medical malpractice case. I have used it many times over the years.

The American Bar Association has issued a Formal Ethics Opinion recognizing that there must be a little room for positioning while negotiating. The opinion gives specific examples of when you can puff and when you cannot.

June 4, 2006

Busy Week

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

It is going to be a busy week at Branham & Day. John Branham and Brandon Bass are trying a two-day personal injury case starting Monday morning in Gallatin. I start (what hopefully will be only) a three-day arbitration in a commercial case Tuesday – we have eleven notebooks of exhibits and my opponents claim that they will call over a dozen witnesses. No depositions have been permitted (except for a couple witnesses who could not be physically present for the hearing); the lack of depositions makes trials so much more exciting (and, quite frankly, increases the anxiety level).

Then John Branham and Rebecca Blair start a trial in a commerical case on Thursday; it should be finished in a day-and-a-half.

So, as you trial lawyers might imagine, there has been a flurry of activity at our offices in the last week. Exhibit lists and witnesses lists being prepared. Direct and cross-examnations have been honed. The copy machine has been working like an expresso machine at the Starbucks in Rockefeller Center at 8:30 a.m. My opponent and I are trying to hammer out stipulations, something that therotically should be done earlier but always seems to be done on the eve of trial.

June 1, 2006

Products Liability Case Preempted

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

The Court of Appeals for the Second Circuit has ruled that a products liability claim against a catheter manufacturer are preempted. More specifically, the Court held that “tort claims that allege liability as to a PMA-approved medical device, notwithstanding that device’s adherence to the standards upon which it obtained premarket approval from the FDA, are preempted by Section 360(k)(a)” of the 1976 Medical Device Amendments to the Food, Drug, and Cosmetic Act.

Accordingly, the Court dismissed the claim so far as it alleged “strict liability, breach of implied warranty, and negligent design, testing, inspection, distribution, labeling, marketing, and sale claims as to the Evergreen Balloon Catheter, a PMA-approved medical device.” The claim of negligent manufacturing was found not to be preempted, but it was dismissed on summary judgment because of the absence of a dispute as to material facts.

This is an interesting statement: “We note that our preemption analysis is quite limited in scope, affecting the small universe of cases resting on claims alleging liability despite a PMA-approved device’s adherence to the standards upon which it secured FDA premarket approval. We take care to explain that we do not hold that all state tort claims as to PMA-approved devices are preempted. Thus, tort claims that are based on a manufacturer’s departure from the standards set forth in the device’s approved PMA application – such as the Riegels’ negligent manufacturing claim – are not preempted.”

May 31, 2006

Products Liability Cases Decreasing

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

The number of products liability lawsuits filed in federal courts is declining.

According to an article posted at www.insurancejournal.com, the number of federal products liability lawsuits declined by 14% last year and are on pace to decline 16% this year. Read the article here.

The study itself may be found at www.lexisnexus.com; the report is here. Tennessee is a “third-tier” state in products liability filings in federal court, with between 1000 and 5000 filings over the 50 months ending 3/1/06.

May 31, 2006

Court Allows Executors to Sue Attorneys Who Drafted Will

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

The Texas Supreme Court has ruled that executors of an estate can sue the decedent’s attorney for malpractice for negligently providing estate planning advice.

In Belt v. Openheimer, Blend, Harrison & Tate, Inc., No. 04-0681 (May 5, 2005), the executors claimed that poor estate planning cost the estate $1.5M that could have been avoided by competent estate planning. The defendants argued that they owed no duty of care to anyone outside the attorney-client relationship, relying on a prior Texas decision which did not permit trust iciaries to sue a lawyer who drafted a trust which was set aside as invalid. (Noe: Texas is in the minority in this position. “In the majority of states, a beneficiary harmed by a lawyer’s negligence in draftting a will or trust may bring a malpractice claim againt the attorney, even though the beneficiary was not the attorney’s client.”

Under these facts, however, the Texas Supreme Court found that a duty existed. Noting that Ohio, Virginia, Oregon, and Illinois permit such actions, the Court said “estate-planning malpractice claims seeking recovery for pure economic loss are limited to recovery for property damage. … Therefore, in accordance with the long-standing, common-law principle that actions for damage to property survive the death of the injured party, we hold that legal malpractice claims alleging pure economic loss survive in favor of a deceased client’s estate, because such claims are necessarily limited to recovery for property damage.”

May 31, 2006

Guest Article in the

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

Senators Clinton and Obama have written an article about the need for patient safety for the New England Journal of Medicine.

The opening paragraph: “We have visited doctors and hospitals throughout the country and heard firsthand from those who face ever-escalating insurance costs. Indeed, in some specialties, high premiums are forcing physicians to give up performing certain high-risk procedures, leaving patients without access to a full range of medical services. But we have also talked with families who have experienced errors in their care, and it has become clear to us that if we are to find a fair and equitable solution to this complex problem, all parties – physicians, hospitals, insurers, and patients – must work together. Instead of focusing on the few areas of intense disagreement, such as the possibility of mandating caps on the financial damages awarded to patients, we believe that the discussion should center on a more fundamental issue: the need to improve patient safety.”

The Senators propose to pass legistation to address this issue. According to the article, “[t]his legislation would create an Office of Patient Safety and Health Care Quality within the Department of Health and Human Services. The director of this office will be responsible for establishing a National Patient Safety Database, conducting data analyses to inform policy and practice recommendations, establishing and administering the National Medical Error Disclosure and Compensation (MEDiC) program, and supporting studies related to MEDiC and the medical liability system.”

May 30, 2006

Case Dismissed for Fraud

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

The male plaintiff said that he slipped, fell, and sustained various injuries on the sidewalk outside of his apartment early one morning. He and his wife brought suit.

Defendant found a medical record (from a provider not listed in answers to interrogatories by the plaintiffs) that indicated that plaintiff was treated for a dog bite on the morning of the alleged incident. He made no reference to his alleged fall. A scar he said was related to the fall was in a location similar to the site of the dog bite.

There were other problems with plaintiff’s medical history as well – the type of stuff that a defense lawyer drools over. This defense lawyer, however, stopped drooling long enough to file a motion to dismiss the case for fraud. The case was dismissed, and the Florida District Court of Appeal, First District, affirmed.

May 26, 2006

Lay and Skilling Convicted – Now What?

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

Lay and Skilling have been found guilty of multiple crimes that contributed to the fall of Enron and the loss of hundreds of millions of dollars of shareholder value.

How much time should these men spend in prison?

I know little about the federal sentencing guidelines. But I think back to Anna Ayala, who got nine years for saying that she found a finger in the chili she purchased at Wendy’s when in fact she planted the finger. (Prior posts.) If that sentence was fair – and I don’t think that it was – then each of these men deserve to spend the rest of their lives in prison.

May 25, 2006

Jet Ski Verdict Upheld

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

I love to ride a jet ski. In fact, I have had a Yahama Waverunner since 1999 and my beautiful wife just bought me the Mac- Daddy Seadoo (which will go 80 MPH and will rock your world).

So it was with more than my usual “I-love-torts-so-I-will-read-dang-near-court-opinion-on-the-subject” attitude that I picked up the opinion in Ford v. Polaris Industries, Inc., A106375 (Cal. App. 4th Div. 4 May 18, 2006). The facts: “Susan Ford sustained severe orifice injuries after falling off the rear of a twoseater Polaris personal watercraft. The jet-powered nozzle propelled a high-pressure stream of water that tore apart her internal organs. Today she uses a colostomy bag, urinates through a catheter, and her lower right torso and leg are numb from nerve damage. Susan and her husband sued the manufacturer and distributor of the watercraft on a strict products liability theory.”

OK.