Day on Torts

June 9, 2005

Cheating Scientists?

This should scare the hell out of every one of us who try lawsuits for a living and have to rely on or fight against “scientific studies.”

This article from the Washington Post tells us that (a) “more than 5 percent of scientists answering a confidential questionnaire admitted to having tossed out data because the information contradicted their previous research or said they had circumvented some human research protections;” (b) “ten percent admitted they had inappropriately included their names or those of others as authors on published research reports;” (c)”more than 15 percent admitted they had changed a study’s design or results to satisfy a sponsor, or ignored observations because they had a “gut feeling” they were inaccurate;” and (d)
“13.5 percent who used research designs they knew would not give accurate results.”

It is no surprise that the survey of the 3247 scientists was conducted anonymously.

June 8, 2005

Medical Negligence Judgments Increasing? No – Not Even As Much As Medical Inflation

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

There is yet another article that provides more data undermining the alleged need for restrictions on the right of patients to sue negligent health care providers.

According to the abstract of a study published in Health Affairs “we used data from the National Practitioner Data Bank (NPDB) to study the growth of physician malpractice payments. Judgments at trial account for 4 percent of all malpractice payments; settlements account for the remaining 96 percent. The average payment grew 52 percent between 1991 and 2003 (4 percent per year) and now exceeds $12 per capita each year. These increases are consistent with increases in the cost of health care. A preoccupation with data on judgments, extreme awards, or specific specialties results in an incomplete understanding of the growth of physician malpractice payments.”

Almost every week there is another study that demonstrates that the so-called “crisis” is one manufacturered by the insurance and health care industry. The current “crisis” is about over; the next one will be occur in about seven years.

June 7, 2005

Medical Research on the Web

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

The Internet is the great equalizer. It allows solo practioners in Burning Stump, Tennessee to have access to the same information available to the biggest law firm in the biggest bank building in the the biggest city. All you need is a computer, an Internet connection, and time.

Gloria Miccioli, a law librarian for 23 years, has written a great article that will help us get a grasp on the vast resources available to those of us who do medical research on the Web. It is filled with information about free sites and fee-based sites. If you do (or should be doing) medical research you will want to read this article.

Thanks to Gloria for sharing your knowlege with us. And thanks to Evan Schaeffer and his wonderful blog for informing me about this great article.

June 7, 2005

New Tennessee Business Litigation Blog

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

I am embarrassed to say that six months ago I did not even know what a blog was. Well, maybe I knew what one was – I have some recollection about reading stories about political blogs during the last presidential campaign – but I had never looked at one. I was just busy.

I like to think I stay current in my field, but I must confess that I missed alot by not taking advantage of the knowledge that my (now) fellow bloggers have been sharing via their blogs. I hit several blogs everyday; over the next few weeks I will share my favorites with you.

Our firm hopes to add to this body of knowledge by introducing another blog called the “Tennessee Business Litigation Law Blog.” Brandon Bass of our firm is the chief blogger on this one, but other people in our firm will be adding posts as appropriate. The purpose of this blog is to gather and share information of interest to corporate counsel and executives, small business owners, and the people that represent them about recent developments in commerical litigation and business law. It will concentrate on the law of the Tennessee, but will gather interesting and useful information from around the nation.

June 6, 2005

Chief Justice Drowota Announces Retirement

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

It has been rumored for over a year that our Chief Justice would retire this year, and in fact his retirement party has been in the planning stages for some time. However, it is now official: effective September 2, 2005 we will be losing Frank Drowota as a member of our appellate court. The Chief Justice has served on either the Court of Appeals or the Supreme Court for 31 years. Read his announcement here.

The new justice will be appointed by the Governor from a panel of three selected by the Appellate Court Nominating Commission. I believe that the next judge can come from either Middle or West Tennessee, although I have heard that others have a different opinion. In fact, at least one person thinks that the next justice will be selected in an election.

I will keep you updated.

June 6, 2005

Football Players Settle Lawsuit

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

OAKLAND, Calif. — ESPN has reported that former Oakland Raiders teammates Marcus Williams and Bill Romanowski are settling their legal dispute.

Williams’ career ended after his eye socket was broken by Romanowski, who ripped off Williams’ helmet during a practice drill and hit him in the face. Williams sued Romanowski for battery. A jury ordered Romanowski to pay Williams $340,000 in damages. Williams was dissatisfied with the result and convinced Romanowski to pay $415,000 to end the dispute.

Football is a rough game, particularly in Oakland. But there is – appropriately – a limit to when you play rough and how you do it. Cheap shots can be expensive.

June 6, 2005

Pharmacist Liability

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

The Fourth District Court of Appeals in Florida has ruled that a pharmacist may be held liable for failure to follow the standard of care for pharmacists even though the pharmacist dispensed drugs pursuant to a doctor’s order.

The plaintiff alleged that the pharmacist should have intervened to stop the numerous overlapping presriptions for narcotics and other medications prescribed for plaintiff’s wife. Plaintiff’s wife died of a drug overdose.

The trial judge dismissed the case, saying that the pharmacist had no duty. The court of appeals reversed, holding that despite competing authority in Florida the complaint stated a cause of action. Read the opinion here.

June 5, 2005

“Anticipatory” Wrongful Death

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

Is this what a corporation does when it knowingly markets a product that it knows will kill?

No. “Anticipatory” wrongful death is what author Gregory P. Forney calls a claim for loss of earnings and consortium for someone who has arguably had his or her life expectancy shortened because of the negligence of another. In the case mentioned in Mr. Forney’s article, the male plaintiff was negligently not advised of a mass that was lung cancer and the delayed diagnosis greatly shortened his life expectancy. The still-alive plaintiff and his wife brought wrongful death claims; Mr. Forney apparently was one of the lawyers who defended the case.

The article sets forth Mr. Forney’s position on why the plaintiff should not have been permitted to seek such damages – which boil down to the fact that the plaintiff was not yet dead.

June 4, 2005

Punitive Damages From the Standpoint of the Defense

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

Punitive damages are hard to get and harder to keep. Defendants have been pushing the evils of punitive damages for over two decades now, and the United States Supreme Court has placed certain limitations on the award of such damages.

So, the reasonably prudent plaintiff’s lawyer must give careful consideration about whether punitive damages should even be requested. The decision is a complicated one.

To get a better idea of where the defense will be coming from if you seek punitive damages, go to the 2005 Winter Edition of FDCC Quarterly, advance to page 73 and read the article entitled “Making the Most of Your Opportunities: State Farm – Based Litigation and Non-Litigation Strategies to Limit Corporate Liability for Punitive Damages.” This 16-page article is a nice roadmap of what you can expect from your adversary.

June 4, 2005

Anticipatory Wrongful Death – Part II

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

I wrote a couple days ago about “anticipatory” wrongful death. I mentioned that I would try to track down the case that gave rise to the article and see how it turned out.

I found it. The case is Natalini v. Little, 278 Kan. 140, 92 P.3d 567 (Kan.2004). The Kansas Supreme Court reversed the award of wrongful death damages.

The Court said “in circumstances like Natalini’s, even if a malpractice plaintiff’s premature death is highly likely to be caused by the malpractice, plaintiff’s survival for more than 4 years beyond the negligent act means no wrongful death action will ever be possible. K.S.A.2003 Supp. 60-513(c) and K.S.A. 60-1901 will combine to cut it off before it can accrue, i.e., before the death giving rise to the action has occurred. Although family members of the patient would qualify at the time of death as heirs at law entitled to seek recovery in a wrongful death suit, see K.S.A. 60-1902, they would be prevented from bringing an action because 60-513(c)’s repose language would have barred the injured patient’s own lawsuit before his or her death. See K.S.A. 60-1901; Crockett v. Medicalodges, Inc., 247 Kan. 433, 440, 799 P.2d 1022 (1990) (if injured plaintiff’s claim time barred before death, claim of heirs also barred); Mason v. Gerin Corp., 231 Kan. 718, Syl. ｬ? 1, 647 P.2d 1340 (1982) (K.S.A. 60-1901 requires “existence of a right of action in the injured person at the time of his death as a condition precedent to the existence of a right of action for wrongful death”).”