Day on Torts

March 19, 2006

Doctor and Employer “Bit By Their Own Dog”

The locality rule in medical malpractice cases is absolutely ridiculous. It is designed to create an artifical barrier to recovery, to protect doctors and hospitals, particularly those in rural areas, from malpractice suits. It pretends that there is a difference in the standard of care given the size of the community, as if people from smaller towns are entitled to less quality of care than those of bigger towns.

(Don’t get me wrong – there are some services that hospitals in rural towns that are not and should not be provided and there are some doctors in rural areas who lack the practical experience of taking care of some types of patients. The patients who need this help need to referred to a place where such help is routinely given.)

Well, a doctor and his group in Clarksville just got bit by their own dog. A medical malpractice verdict for the plaintiff was reversed because the Court of Appeals found that the defendents’ experts did not meet the qualifications of the locality rule.

March 17, 2006

Introducing “Bad” Documents

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

The “smoking gun” document does not do you any good unless you can find a way to get it introduced in to evidence. You have to determine what foundation must be established to introduce the document into evidence, call the witness or witnesses necessary to establish that foundation, and be able to link the document to your theory of the case as set forth in the complaint (to establish that it is relevant).

Here is an article by Leslie O’Tool and Wendy Sexton, two defense lawyers, which explains how your opponents intend to try to keep that smoking gun document out of evidence.

The article appeared in the Fall, 2005 edition of FDCC Quarterly, PDF page 79.

March 16, 2006

Lanier v. Merck, Round 2, Post 8

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

Here is the latest on the Vioxx trial – with two plaintiffs – currently underway in New Jersey. Recall that this is the case where each plaintiff claims more than 18 months of use of the drug, a critical factor in the minds of all concerned.

March 16, 2006

Waiver of Expert Witness Rule

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

Back in 1975 the Tennessee Legislature determined that the only health care providers who could testify against a Tennessee health care provider in a malpractice case where experts from contigious states. This is an assine rule – but it is still the law.

You can avoid the contigious state rule with permission of the trial judge. This opinion in Steele v. Berkman reminds us that we have to have some proof of the efforts made find an expert from a contigious state so that the court can determine that a waiver of the rule is appropriate.

The waiver has been applied in Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn.1991) and Steele v. Ft. Sanders Anesthesia Group, 897 S.W. 2d 270, 281 (Tenn.Ct.App. 1994). It was denied in Rose v. HCA Health Services of Tennessee, 947 S.W. 2d
144, 148 (Tenn.Ct.App.1996).

March 15, 2006

Trip to the 11th Circuit

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

As I mentioned Sunday, I went to Atlanta Sunday night, locked myself in a hotel room, and spent all day Monday and several hours early Tuesday morning preparing for an argument in the 11th Circuit Court of Appeals. As a result, I am very behind in my work and need to concentrate on it today.

Back in the saddle tomorrow!

March 14, 2006

Lanier v. Merck, Round 2, Post 7

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

Here is the latest.

March 13, 2006

Colorado Opinion on Spoliation

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

The Colorado Supreme Court has issued an opinion in Aloi v. Union Pacific R.R.

This is the opening paragraph of the opinion: “Petitioner Frank Aloi brought a personal injury action against Union Pacific Railroad (UP). Prior to trial, UP destroyed documents relevant to the litigation. As a sanction for spoliation of evidence, the trial court instructed the jury it could draw an inference that the evidence contained in the destroyed documents would have been unfavorable to UP. The trial court gave the adverse inference instruction three times, one time interrupting a crossexamination to provide the instruction. The jury returned a verdict for Aloi, and UP appealed. The court of appeals reversed the trial court’s judgment. The Supreme Court granted certiorari.”

The holding? “We hold that the trial court did not abuse its discretion by providing the jury with an adverse inference instruction as a sanction for the spoliation of evidence where it found that UP willfully destroyed relevant evidence, which otherwise naturally would have been introduced at trial. Second, we hold that the trial court did not abuse its discretion by repeating the adverse inference instruction because the trial court addressed appropriate objections and articulated the reasoning for its decision; nor did the trial court abuse its discretion by interrupting the crossexamination because it acted to remedy prejudice and as a result did not depart from the required impartiality so as to deny the defendant a fair trial.”

March 12, 2006

No Post Today

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

Sorry, folks, but I do not have time for a post today. I have an oral argument in the 11th Circuit Court of Appeals in Atlanta on Tuesday and I am busy getting ready. I will post tomorrow morning.

March 11, 2006

Lanier v. Merck, Round 2, Post 6

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

Here is a summary of events from Friday in the two Vioxx cases being tried (together) against Merck in state court in New Jersey.

March 11, 2006

Peer Review Statute Analyzed

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

The Tennessee Peer Review Law of 1967 was “was passed with the stated intent of encouraging ‘committees made up of Tennessee’s licensed physicians to candidly, conscientiously, and objectively evaluate and review their peers’ professional conduct, competence, and ability to practice medicine.’ The statute further ‘recognizes that confidentiality is essential both to effective functioning of these peer review committees and to continued improvement in the care and treatment of patients.’ Tenn. Code Ann. ㋔ 63-6-219(b)(1). To this end, the statute creates a privilege for certain documents, etc., which are generated or provided during the peer review process.”

Dr. Moore was summarily suspended from his staff privileges in a Chattanooga hospital and sought information from his creditionals file. The hospital refused to provide it, citing the Peer Review Law. The case went to the Eastern Section of our Court of Appeals and the appellate court remanded to case to the trial judge for further action in consideration of the opinion.

Specifically, the appellate court found even though the creditionals file was covered under the Peer Review Law the wording of the statute itself said that “[n]othing contained in this subsection (e) applies to records made in the regular course of business by a hospital or other provider of health care and information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil proceedings merely because they were presented during proceedings of such committee.”