Day on Torts

July 5, 2006

New Tennessee Supreme Court Opinion on “Foreign Object” Exception to Medical Malpractice Statute of Repose

The Supreme Court of Tennessee issued an important ruling on the “foreign object” exception to the medical malpractice statute of repose and statute of limitations. The case is Chambers v. Semmer, M.D., and deals with what exactly constitutes a foreign object. The plaintiff’s theory in the case is that a hemoclip was negligently placed on her ureter during a surgery and left there, later causing her left kidney to fail. The defendants countered that they did not leave any hemoclip on the plaintiff’s ureter, but that “hemoclips are used intentionally and are intended to remain permanently,” so they could not be foreign objects. The Supreme Court rejected the defendants’ argument, ruling “that a hemoclip that is intentionally used but negligently placed and negligently left in a patient’s body following surgery may be a “foreign object” under Tennessee Code Annotated section 29-26-116(a)4) that establishes an exception to the one-year statute of limitations and the three-year statute of repose.”

Read more about the opinion at our firm’s Tennessee Medical Malpractice Blog.

July 5, 2006

Sorry for the Infrequent Updates

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

I am at my cabin right now struggling with problems with the “internets.”

July 2, 2006

Medical Negligence

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

I apologize for the lack of a post Friday and Saturday. Friday morning I was in North Carolina and did not have access to a computer. By the time I made it to the office I had back-to-back conference calls or appointments until 4:15 and just decided to wait until Saturday morning to blog.

Friday night Joy and I went to the cabin. I got up early Saturday morning but for reasons I do not understand I could not get access to the Internet. I spent several hours riding my early birthday present (a Sea Doo RXT) and messing around in the water.

I got up early again this morning and, surprise, the Internet connection is working. So, I decided to bang out this post before Joy and I meet our friend Buzz at 8:00 a.m. to get in some water skiing before the water gets rough

June 29, 2006

Priest Tells All

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

Some of you know that we represented two boys who were sexually abused by a (former) Roman Catholic priest who served in the Diocese of Nashville. I came to learn most than I wanted to know (and more that the confidentiality order will allow me to share) about the Church’s response to misconduct of priests.

Here is a clip from CNN that describes a tell-all documentary from a priest in California.

An excerpt from the article:

June 29, 2006

Breaking News: Supreme Court Bars Ex Parte Talks with Plaintiff’s Doctors

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

The Supreme Court just issued its opinion in Alsip et al v. Johnson City Medical Center et al. More information on the opinion, holding that defense counsel may not participate in ex parte communications with a plaintiff’s non–party treating physicians, is available over at our firm’s medical malpractice blog. I am on the road right now, so commentary will follow later.

June 29, 2006

E. Coli 0157:H7 Outbreak

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

The Tennessean has reported that a E. coli 0157:H7 outbreak has sent four toddlers to Vanderbilt University Medical Center. Six other children also became infected with the potentially deadly organism.

The children became infected at Paulette’s Group Day Care Home. The paper reports that the day care center has been cleared of wrongdoing.

We just settled a case where we represented a teenager who became infected with E. coli 0157:H7 in a treatment center in East Tennessee. She became horribly ill, was hospitalized for weeks and received permanent kidney damage. We worked on the case with Bill Marler’s firm out of Washington State; he has a great blog on E. coli 0157:H7 and his firm has more knowledge about this subject than any law firm in the country, if not the world.

June 28, 2006

Attacked Expert Fights Back – and Wins

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

Dr. Gary Lustgarten testified the for the plaintiff as an expert in a medical negligence trial in North Carolina. Lustgarten testified that in his medical opinion that certain notes made by one of the defendant’s, Jauffman, were inaccurate. After the case settled, one of the defendants filed a complaint about Lustgarten with the American Association of Neurological Surgeons, which yanked Lustgarten’s membership. One of the defendants also complained to the State Medical Board, which pulled Lustgarten’s license.

Lustgarten appealed the ruling to the Wake County Superior Court, which affirmed. The North Carolina Court of Appeals reversed, saying “we conclude that the superior court erroneously affirmed the board’s determination, as the substantial record evidence does not permit an inference that Dr. Lustgarten made an entirely unfounded statement concerning Dr. Jauffman’s notes.”

This excerpt from the decision tells the story:

June 26, 2006

Trial Is Not a Game

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

I remember years ago trying a case against a well-known lawyer in Nashville (who is still practicing, by the way.) I moved in limine to prevent certain testimony from being introduced into evidence; my motion was granted.

Later that day I saw the witness in the hallway who would have been in the position to offer the excluded testimony. I asked the witness if he had been informed about the ruling. He said that he had been told by my opponent that he (the lawyer) could not ask him (the witness) a question about the matter that was excluded but he (the witness) could volunteer it.

Here is a case from Florida that explains is simple terms the obligation of a lawyer who knows that a witness has testimony that has been ruled inadmissible.

June 24, 2006

Broken Link

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

Moe Levine wrote and let me know that a link to the article that formed the based of my post about admissibility of electronic records was broken. He is right – and now I cannot find the article. I will keep looking.

Sorry about that.

However, if you go to the cases cited in the post you will find the substance of the article.

June 23, 2006

Ford Escort Seat Back Defect Verdict for Plaintiff Affirmed

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

The Eastern Section of the Tennnessee Court of Appeals has affirmed a jury verdict for the plaintiff in a case involving the design of a seat back in a Ford Escort. The case is Potter v. Ford Motor Co., No. E2005-01578-COA-R3-CV; it was decided on June 21, 2006. The opinion was authored by Judge Sharon Lee.

Ford argued that “to establish a prima facie case, the plaintiff must prove ‘the availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiff’s harm.” The Court disagreed, saying that no Tennessee state court had ever stated that Tennessee law placed that burden on a plaintiff. Judge Franks concurring, stating that while he agreed that what Ford said should be the law it was not the law of Tennessee.

[As I read the excerpts of the testimony of one of the plaintiff’s experts, the plaintiff introduced testimony that the plaintiff would not have been catastrophically injured if the Escort had been equipped with a belt integrated seat.]