Day on Torts

October 31, 2005

“Corporate Negligence”

A friend who is getting ready to file a medical negligence case told me that his medical consultant said this about the case: “It took a whole group of doctors to kill this woman.”

The consultant was not suggesting that the doctors conspired to hurt, much less “kill”, the patient. His point was that in a hospital setting the cause of an injury or death is often not the fault of one person. In the ordinary course, one person makes an error and someone else catchs it before harm is done. No, where things really get messed up is when a group of people is having a bad time of it, where balls are flying all over the place and nobody has a catcher’s mitt or is even aware that the balls are flying around. Simply put, awareness is off, communication breaks down and people get hurt.

The adoption of proper systems can usually prevent these situations from occurring. Indeed, this is one of the reasons behind Vanderbilt’s Evidence-Based Medicine Program that I talked about recently.

October 31, 2005

Status of the New Jersey Vioxx Case

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

Closing arguments are today – read this article from Bloomberg for the latest summary of recent events and thoughts of other lawyers about the case.

October 28, 2005

Vioxx Trial At End

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

Closing arguments in the New Jersey Vioxx trial are expected to begin on Monday, according to news reports. The lawyers are working with the trial judge on jury instructions today. The trial has lasted seven weeks.

Predictably, there has not been as much press about this case as the one in Texas, although that will change next week. This case is a “must win” for Merck.

October 28, 2005

A Blue-Chipper for Friday

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

I have not posted any blue-chip tort cases lately. There is no particular reason for my failure to do so; there has just been a good deal of other information out there to post.

(For those of you who are new to this blog you can read about “blue-chippers” here.)

Today I have a special treat for you – two blue-chippers. Why? Because they really need to be considered together to understand the full impact on them in Tennessee law.

October 28, 2005

How is your Math?

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

Do you what $146,604 represents?

It is the amount of money both Exxon and Shell made every minute of every hour of every day last quarter.

Or $2443 every second.

October 26, 2005

Rule 9 Granted in Medical Negligence Case

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

The Tennessee Supreme Court has just granted a Rule 9 application in a medical negligence case, even though the Tennessee Court of Appeals refused to do so.

The plaintiff had an abdominal operation several years ago and learned more than three years later that a clip was left on one of her ureters, resulting in the death of one kidney. She brought suit and the defendants asserted the three-year statute of repose. The plaintiff raised the foreign objection exception to the statute of repose. The defendants then asserted because the clip was of the type that is often left in the body it was not a “foreign object” within the meaning of the statute and therefore the suit was untimely.

Plaintiff asserts that even though the clip is of the type often left in the body it is not supposed to be left on a ureter. Essentially, the plaintiff argues that an object can become a “foreign object” if it was left in the body for an unintended use.

October 25, 2005

Vioxx Dream Team

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

A group of plaintiffs lawyers have formed a “dream team” to take on Merck in Vioxx litigation. Merck has said it will defend every case individually, but now a group of plaintiffs’ lawyers has said they will band together and will press for a continuous trial schedule so that plaintiffs can get their cases heard. The cases will be heard in state court, outside the federal MDL. One leader of the group is Mark Lanier, lead counsel in the Texas case.

The group says they control some 20,000 cases, only 10% of which have been filed to date.

October 24, 2005

Electronic Discovery

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

Here is an interesting article tilted “Understanding U.S. Electronic Discovery and “Best Practices” Therefore” written by Michael Kaminski. It will give you a good idea of the way major law firms are advising their clients on discovery and retention of electronic evidence.

October 24, 2005

Tort Reform in Texas

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

Hopefully you will get to read this article in Texas Monthly before this link is gone. It describes what happened to the people of Texas because of tort reform.

Here is a description of what happened to one family who was looking for a plaintiff’s lawyer to handle a medical malpractice case:

“They saw the first [lawyer] last December. He explained the realities: The facts of the case looked promising, but because their mother was retired, they would have a hard time getting any lawyer to take the case. It was, essentially, the same story Kelly Reddell had told Alvin Berry: Anyone who didn’t work-the elderly, homemakers, or children-was looking at a cap on noneconomic damages of $250,000. Trying such cases was simply not cost-effective for the lawyer or the client. (“It’s an assault on those who are the most vulnerable,” one plaintiff’s attorney told me. “It’s almost legal malpractice to take those cases.”)

October 23, 2005

Roscoe Pound Institute

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

Some of you are familiar with the Rosoce Pound Institute, an organization founded in 1956 which works to “help judges, academics and others understand a balanced view of the U.S. civil justice system.”

Last week, the Institute held a conference at Vanderbilt University School of Law on the issue of medical negligence. Friday afternoon I had the opportunity to participate in a panel discussion about patient safety. Joining me on the panel were Sandy Bledsoe, a nurse by training and now the #2 person in Vanderbilt’s Risk Management Department, Dr. Paul Keckley, the head of Vanderbilt’s Center for Evidence-Based Medicine, and Dr. Gerald Hickson, Director of the Center for Patient and Professional Advocacy.

I was happy to learn about the substantial effort Vanderbilt is making in attempting to reduce patient injuries and claims. The CPPA identifies physcians who are the subject of patient complaints and works with them to approve their skills in communicating with patients. Dr. Hickson has taken this program around the country; I believe he said that his team has been to 18 other institutions with this concept. Dr. Hickson has worked in conjunction with the Risk Managment Department at Vanderbilt.