Day on Torts

October 11, 2005

Errors in Diagnosising Cancer

Rueters reports that “in a review of patient specimens, errors in cancer diagnosis were seen in up to 11.8 percent of cases, according to a report in the medical journal Cancer. Moreover, in a substantial proportion of cases, the error caused some degree of harm for the patient.”

The article goes on to say that “the frequency of errors varied between hospitals and ranged from 1.79 percent to 9.42 percent for gynecologics cases and from 4.87 percent to 11.8 percent for other cases, the researchers note. A significant link between the institution and the error cause was observed. As for the cause of errors, up to 50 percent were due to misinterpretation with the remainder being due to poor tissue sampling.”

Forbes has an even more complete description of the study.

October 10, 2005

New Spoliation Case

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

Bryant Flury alleged that he was injured when his air bag failed to open. He brought suit against the manufacturer of the truck he was driving at the time of the one vehicle accident. He won a $250,000 jury verdict.

The manufacturer appealed on several grounds, including that the subject vehicle was destroyed before the manufacturer had an opportunity to inspect it. The vehicle had been stored at Flury’s home but State Farm, the vehicle’s insurer, had taken the vehicle from the home and sold it for its salvage value.

The trial judge told the jury that if it found that the plaintiff was responsible for the loss of the vehicle a rebuttable presumption arose that the vehicle was not defective. The 11th Circuit reversed the verdict, saying that the loss of the vehicle was the sole fault of the plaintiff and that the only appropriate sanction was dismissal of the action.

October 9, 2005

Silicosis, Doctors and Lawyers

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

There is a fascinating but disturbing story in today’s New York Times about a federal court case involving claims arising from alleged injuries because of exposure to silica. Judge Jack has raised serious questions about whether the claims are legitimate and the role of the doctors and claimant’s lawyers in making the diagnosis.

From the article: “‘It is apparent that truth and justice had very little to do with these diagnoses – otherwise more effort would have been devoted to ensuring they were accurate,’ Judge Jack wrote. ‘These diagnoses were driven by neither health nor justice: they were manufactured for money. The record does not reveal who originally devised this scheme, but it is clear that the lawyers, doctors and screening companies were all willing participants.'”

The NYT article includes a link to Judge Jack’s 249 page opinion.

October 8, 2005

Appellate Advocacy and Legal Writing

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

I love handling appeals. I prefer to be an appellee, and I would just as soon win and move on, but if we have to end up in an appellate court, I enjoy the work.

Here is a publication from the Defense Research Institute addressing various issues concerning appeals, including some legal writing tips.

October 7, 2005

Another Study Concerning Medical Malpractice Insurance Rates

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

The Insurance Commissioner from the State of Washington has released a fascinating study of malpractice insurance rates for physicians in that state. A news report of the findings says “that the amount doctors pay for malpractice insurance in 2005 is largely equal to or less than what they paid for coverage in 1985 when adjusted for inflation. These findings and others ‘fly in the face of those who claim that something dramatic has changed relating to malpractice suits in Washington,’ said Commissioner Mike Kreidler.”

Claims were also studied: “There were 10,212 closed claims during the period. Of those, 45 claims – less than 1 percent – were decided by a jury. Of those claims, 27 percent resulted in payments to patients. More than 60 percent were for $100,000 or less and less than 2 percent resulted in payments of more than $1 million.”

Here is the study itself.

October 4, 2005

Ford Truck Roof Crush Verdict

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

A jury in South Texas returned a jury verdict against Ford yesterday.

A teenager died when the truck rolled over and the roof crushed. The truck was forced off the road by the actions of another driver. That driver was also apportioned fault in the incident. Ford was given 90% of the fault.

Plaintiffs introduced testing that demonstrated when the truck was dropped from a height of nine inches the roof crushed down to the headrest.

October 4, 2005

Passenger vs. Passenger

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

Can a passenger of one vehicle sue a passenger of a different vehicle alleging that the latter negligently told the vehicle driver that it was safe to back up when, in fact, it was not, and the resulting wreck injured the former?

This is a classic duty question – it has been certified to the Florida Supreme Court. Read the opinion here.

Remember that even if there is not a duty in general there may well be a duty because of the “gratuitous undertaking” of giving the driver advice. But that gives rise to a duty issue itself. Why? Because while the passenger who undertook the duty to “be on the lookout” for the driver of his car would clearly owe a duty to that driver and probably other passengers in that car there is still an issue of whether the passenger would owe a duty to the passengers of other vehicles.

October 4, 2005

New Jersey Vioxx Trial – Update

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

The Plaintiffs’ proof is about over, and the jury has been permitted to ask questions. To read about the current status of this important case, click here.

October 3, 2005

Extreme Makeover Lawsuit

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

Extreme Makeover is a disturbing show that takes advantage of poor self image and glorifies physical beauty. Deleese Williams did not make the final cut of the show and, she now alleges, the experience was so horrible that it caused her sister to take her own life. <a

According to one source, “Williams was videotaped recounting the ridicule she suffered as a child and her years in an abusive marriage to an ex-husband. Her lawsuit alleges that her husband and sisters were also interviewed and encouraged to make disparaging comments about her looks.Here is a copy of the complaint.

It appears that the contestant signed some sort of release before taking part in the activities that may have given rise to an actual appearance on the show.

October 2, 2005

Proposed Rule Change – Supplementation

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

I mentioned in a previous post that the Civil Rules Commission has proposed several rules changes that, if adopted by the Tennessee Supreme Court and the Legislature, will become effective on July 1, 2006.

One proposal is a change to Rule 37 and provides that a party who without substantial justification fails to supplement or amend discovery responses pursuant to Rule 26.05 will not be able to use that evidence at trial. The proposed rule gives rise to the risk of imposition of other sanctions as well, including advising the jury of the failure to amend or supplement. Your can read the proposed rule here.