Day on Torts

June 12, 2006

Great Info on Medicaid / Medicare Subrogation

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.

June 5, 2006

CAUGHT!

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

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.