Day on Torts

October 17, 2005

Gay Partner Cannot File Wrongful Death Suit

It had to happen sooner or later.

Neil allegedly died from medical negligence in New York. His partner, John, filed a wrongful death suit, alleging and proving that he and Neil had participated in a civil union in Vermont several years earlier and insisting that he could maintain a medical negligence suit.

The Associated Press reports that a divided appellate court in New York rejected the claim, saying that a ruling allowing John to maintain the action would be “taken as judicial imprimatur of same-sex marriages and would constitute a usurpation of powers expressly reserved by our Constitution to the Legislature.”

October 15, 2005

You Have to Make a Record

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

The Tennessee Supreme Court has just reversed a summary judgment because there was not an appropriate record to permit the Court to determine if summary judgment was appropriate. The trial court granted summary judgment in favor of the appellee without indicating its reasoning for doing so. The appellee’s motion for summary judgment did not state the grounds for summary judgment with particularity and no memoranda in support were contained in the record on appeal.

Here is the decision.

The Court put a burden on the appellant and the appellee to ensure that the record is in order. The Court put particular emphasis on the fact that the appellee was trying to uphold a summary judgment.

October 13, 2005

Air Bag Class Action To Proceed

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

The United States Supreme Court has refused to hear a case involving a class action certified by a Oklahoma judge involving 420,000 GM vehicles. The lawsuit alleges that the vehicles are equipped with airbags that deploy unnecessarily.

The problem is a software glich, later corrected by GM on other vehicles.

October 12, 2005

Off Topic – Taking the Blinders off a Blind Trust

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

Senator Frist’s blind trust is a story that will not die – and now more information is coming forward.

Read the latest from the Miami Hearld and the AP.

October 12, 2005

Tennessee Releases First Study of Med Mal Payouts

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

Where’s the beef?

Rep. Rob Briley lead an effort to make medical malpractice insurers and health care providers to reveal to the State of Tennessee what their claims experience was. Malpractice insurers and health care providers fought this type of disclosure for almost two decades and, given what was disclosed, one can understand why they did so.

The first report came out yesterday, and it is of no particular surprise to anyone who does medical malpractice legal work.

October 11, 2005

Florida Med Mal Fee Cap

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

You may remember that the Florida voters passed a cap on attorneys’ fees in medical malpractice cases. The constitutional amendment was pushed by Florida’s doctors. Fees are capped at 30% for the first $250,000 and 10% on any amount over $250,000.

Lawyers representing patients began asking them if they wanted to waive the cap of fees. The doctors then got a group of lawyers to petition the Florida Supreme Court to have the Court change its rules of professional conduct to limit attorney’s fees in medical malpractice cases. The doctor’s efforts is being led by former Florida Supreme Court Justice Stephen Grimes who works for Holland & Knight.

Grimes led an effort to get 54 lawyers to sign a petition to get the rules changed – Florida rules require at least 50 lawyers to sign a petition to start the process. Former Justice Grimes managed to get 19 lawyers from his firm to sign the petition – quite an amazing result given the fact that the firm advertises that it has “1200 lawyers and professionals.”

October 11, 2005

Errors in Diagnosising Cancer

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

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.