Day on Torts

February 2, 2006

Thoughts on “Givers” and “Takers”

I attended and spoke at the Tennessee Trial Lawyers Association’s Mid-Winter Convention yesterday. Gary Gober of Nashville was the Program Chair and put together a fine program, as usual.

Gary is but one example of many plaintiffs’ lawyers who are “givers” rather than “takers.” Gary was President of TTLA over 20 years ago, but still gives of his time and money to support the work of our Association. There are many others who fall into this category, men and women, some past officers and some future officers, who step up to the plate time and time again to help advance the cause of civil justice in this state. Some give knowledge, some give time, some give money, and some give all of the above – and each of us is indebted to every single one of them.

On the other hand there are “takers.” There are lawyers who spend thousands of dollars advertising for clients but refuse to give money to support legislative efforts designed to support the rights of those clients. There are lawyers who make a good living representing plaintiffs but refuse to give time or money to support the association. There are lawyers who seek the help of the association or its members when they are need, but turn away when asked to help. These men and women thrive off the efforts of others, giving nothing, taking whatever they can, and smile all the way to the bank.

February 1, 2006

Limitation of Actions and the Mentally Disabled

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

We all know that that a person who suffers from an “unsound mind” gets the benefit of a tolling of the statute of limitations under T.C.A. Section 28-1-106, which states that “[i]f the person entitled to commence an action is, at the time the cause of action accrued, either within the age of eighteen (18) years, or of unsound mind, such person, or such person’s representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability.”

But what if the injured party, prior to becoming of “unsound mind,” granted a durable power of attorney that gave an attorney-in-fact the duty “act in my name, place and stead in any way which I myself could do, if I were personally present, with respect to … claims and litigation…?” Does the presence of that durable power of attorney trump the “unsound mind” statute, mandating the statute of limitations begin to run as if the plaintiff were not of unsound mind?

I have worried about this issue for years. We how have an answer from the Eastern Section of our Court of Appeals hearing a case arising out of the Middle Section. The plaintiff in the case held a durable power of attorney from his father. The father was a resident in the defendant’s nursing home and became of “unsound mind.” According to the opinion, “[t]he plaintiff frequently visited the deceased during the latter’s stay at the defendant’s facility. The plaintiff would later testify that, at the time of his visits, he observed problems in the defendant’s care and treatment of his father, which he believed were harmful to him.” More than a year after the father was transferred from the defendant’s nursing home but within one year of the father’s death {when the disability was “removed,” according to the plaintiff) the attorney-in-fact filed a malpractice suit against the nursing home. Defendant sought summary judgment of the statute of limitations issue, arguing that plaintiff had the power and duty to act on behalf of his father and did not do so in a timely fashion. Plaintiff argued that the cause of action was tolled by operation of Section 28-1-106.

February 1, 2006

Ethics Reform – Tennessee Legislature

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

Last night I attended a reception for the General Assembly that was sponsored by the Tennessee Trial Lawyers Association. Several state senators told me that they thought that the legislative special session could end in a couple days.

The House and Senate have passed different “ethics” bills, which means that a conference committee has to attempt to come up with a consensus bill that each body then must vote on. There are some huge differences to work out, although there is no doubt that a bill will be passed.

The end of the special session means the beginning of the ordinary session, which means that we will see a major fight by hospitals, doctors, and their insurers to avoid accountability for medical negligence. This session will be the biggest battle on the issue since the mid-80s.

February 1, 2006

The President and Tort Reform

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

I did not watch the State of The Union Address last night but I read the speech that he was supposed to have delivered.

It was to contain this line: “And because lawsuits are driving many good doctors out of practice – leaving women in nearly 1,500 American counties without a single OB-GYN – I ask the Congress to pass medical liability reform this year.”

How can anyone with a lick of sense suggest that OB-GYNs do not practice in rural American because of medical negligence lawsuits? Doctors practice medicine where there are patients and where there are hospitals. Hospitals need enough patients to establish and maintain a maternity ward. America does not need and cannot afford a hospital in every county with a maternity ward (which must be staffed 24/7).

January 31, 2006

Michigan Decision: No Duty to Advise of Success Rate

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

The Michigan Court of Appeals has ruled that “[a]s a matter of law … a physician’s raw success rates do not constitute risk information reasonably related to a patient’s medical procedure.”

There apparently was no (or little) evidence of affirmative misrepresentation on the issue.

A verdict for the plaintiff was reversed and the case remanded for trial.

January 30, 2006

A Weekend Off

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

Why no posts this weekend? Am I getting lazy?

I had to be in court in Nashville Friday morning to argue a motion in a products liability case and then went immediately to the airport to catch a flight to Boston. I had a great dinner at The Federalist on Beacon Hill Friday night. Work started Saturday morning at 7:30 and was finished at 2:00. I was staying on Arlington Street and walked down to the Wharf to meet an old friend for a cup of coffee. It was 55 degrees in Boston and the people of the city – thrilled at the warm weather – were out in droves.

I went back to the hotel to have a cocktail and then walked back to the North End to have dinner on Hanover Street I love walking in Boston, so I walked back to the hotel about 10:00.

January 30, 2006

New Carolina Business Magazine Article

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

I graduated from the University of North Carolina School of Law, and I can tell you that the home state of Jesse Helms does not share the political philosophy of, say, Seattle.

So, imagine my surprise when I read this article from Business North Carolina.

I will save the details for you, but you get a good feel for the story from this ending: “On a gray late-November day at her home in Raleigh, Sandy Lakey considers that. Twelve summers have passed since her daughter’s life was forever altered by a product that a jury decided the manufacturer had sold knowing that it had maimed other children. “How lucky a lot of people will be,” she says, “to never find out whether they really need a lawyer.”

January 27, 2006

Defense of Vioxx Cases

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

Here is a good article from the Washington Post that summarizes where we are and what lies ahead in Vioxx litigation.

January 27, 2006

Summary of Significant Worker’s Comp Opinions

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

Many tort lawyers in Tennessee also handle worker’s compensation cases. Here, for your reading pleasure, is a summary of the significant worker’s compensation opinions issued by the Tennessee Supreme Court in 2005 as prepared by the Tennessee Workers’ Compensation Advisory Panel.

January 27, 2006

Another Day, Another Resignation

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

Justice Birch resigned yesterday; the effective date of the resignation is August 31, 2006.

Justice Birch has served the State of Tennessee as a judge for 43 years, beginning as a General Sessions Judge, then serving 9 years as a trial judge and 19 years as an appellate judge. [Bio] His service on the Tennessee Supreme Court will be best remembered for his insistence that citizens accused of crimes receive a fair shake in the criminal justice system and his steady opposition to imposition of the death penalty given the current circumstances that give rise to its imposition. He is a man of courage and conviction. His leadership will be missed.

This resignation follows that of Justice Anderson earlier this week.
We now have two openings on our five member court. The Governor will be able to select two judges from panels provided to him by the Judicial Selection Commission. Under our rules, no more than two judges can come from any one Grand Division. Chief Justice Barker is an East Tennessean, Justice Holder is a West Tennessean, and Justice Clark is a Middle Tennessean. Therefore, one of the appointees can come from any Grand Division but both cannot come from the same Grand Division.