Day on Torts

June 1, 2005

Tort Law Trivia

The most famous plaintiff in the history of Tennessee tort law is Harry Douglas McIntyre, of McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992), fame. For those of you who are not from Tennessee, Mr. McIntyre was the gentleman whose case brought the law of comparative fault to Tennessee. The Tennessee Supreme Court decided his case on May 4, 1992.

The question for the day is this:

How many beers did Mr. McIntyre consume in the hours before his vehicle came into contact with a Peterbilt tractor driven by Mr. Ballentine?

June 1, 2005

Outrageous Conduct – Not

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

I would say that this is a familiar story, but that would only be partially correct.

Ok, it starts out familar. Man has affair. He says he loves his girlfriend. He says he is going to leave his wife. He leaves his wife. He and his lover live together. They travel together. They talk about marriage. He says he will support her. But he doesn’t divorce his wife. He stays married. OK. But now we break from the story line we have heard in the past.

This goes on 23 years. That’s right, 23 years. He breaks off the relationship. He gives her some back end cash. She’s upset, and sues him for breach of the promise to marry, fraud, palimony, intentional infliction of emotional distress, and more.

May 31, 2005

The Distinction Between Informed Consent and Battery Cases

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

The distinction between a lack of informed consent case and a pure medical battery case is set out in Blanchard v. Kellum, 975 S.W.2d 522 (Tenn. 1998). An informed consent case requires expert proof as to the standard of care (or recognized standard of acceptable professional practice) of similar medical professionals. The plaintiff must establish what information is provided to patients prior to the procedure, and how the information is disclosed to the patient, in order to prove that the professional deviated from the standard of care. In a medical battery case, on the other hand, the plaintiff must establish either that the patient was unaware that the doctor was going to perform the procedure, or that the patient did not authorize the procedure. Medical battery cases include those in which the doctor performs a surgery that has been discussed with the patient, but performs the surgery on the wrong part of the body (i.e., amputation of the wrong limb). A true medical battery case does not require expert witness testimony on the standard of care, because there is no prior consent to be judged.

This is complaint from a medical malpractice and medical battery case in which a surgeon mixed up two of his patients’ charts, leading him to perform a surgery on the plaintiff to which she had never consented. Download file

May 31, 2005

Drug Companies Withhold Data

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

Do you remember when the drug companies told us that they were going to release more data about clinical drug trials?

That was a year ago. The New York Times has taken a look at the record developed over the last year and discovered that some drug companies are not doing what they said they would do.

Read the story here.

May 31, 2005

Arthur Anderson Conviction Overturned

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

This is off topic, but very interesting. The United States Supreme Court has just overturned Arthur Anderson’s criminal conviction. The Court held that a key jury instruction was in error.

Read the opinion here.

May 30, 2005

Tort Law Tidbit – Negligence Per Se

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

What is the name of the case that tells us that violation of a statute is negligence per se? Cook By and Through Uithoven v. Spinnaker’s of Rivergate, 878 S.W.2d 934, 937 (Tenn. 1994). What about the violation of a regulation? Long by Cotton v. Brookside Manor, 885 S.W.2d 70, 73-74 (Tenn. App. 1994). An ordinance? Kim v. Boucher, 55 S.W.2d 551 (Tenn. App. 2001).

What is a tort law tidbit?

May 28, 2005

Another Vacation

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

That’s right. I just finished a ten-day vacation and now I have decided to take Saturday off. I can’t help it. I have a hearing that will consume June 2, 3, 6 and 7, an argument in the Tennessee Supreme Court on June 8, and a mediation in a major case on June 9. That schedule – coupled with a status conference in another case on June 1 – has made the last 5 days a whirlwind. So, no substantive blog today.

Have a wonderful weekend.

May 27, 2005

Interesting Med Mal Decision in New York

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

The highest court of New York has rejected in part the medical negligence claim of a woman who sued a doctor and others for emotional distress but permitted the claim of the child to go forward.

The mother claimed that the doctor told her that the seven week old fetus she was carrying in utero would likely be harmed by fibroid tumors in her uterous and recommended that she terminate the pregnancy. The drug methotrexate was given to accomplish that result. The drug was administered, and the woman thought that the pregnancy was terminated, but later discovered she was 28-weeks pregnant. She alleged that the dose of methotrexate that she was given was too small to terminate the pregnancy. She was told that the drug administration put the baby at risk for harm, but she decided not to have a late-term, out-of-state abortion.

The baby was born severly injured. Suit was filed on behalf of the child; the mother also filed suit for emotional distress. The Court of Appeals held that the mother could not assert a claim for emotional distress arising out of the birth the impaired child but could assert a claim for any injuries independent of the birth of the child. She was granted leave to amend her complaint to plead accordingly.

May 27, 2005

Black Box Seminar Postponed

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

My friend David Allen has sent word that the black box seminar mentioned in yesterday’s post has been postponed. He’s right.

I will let you know when it is re-scheduled.

Thanks David. You da’ man.

May 27, 2005

No Error Leaving Defense Counsel on Med Mal Jury

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

The Texas Supreme Court has held that it is not error for a judge to permit a lawyer who regularly represents defendants in medical negligence cases to sit on a medical neligence jury.

The lawyer/juror candidly admitted that he would tend to relate to the defense lawyers in the case and that he would tend to look at the case from their perspective. He did say he would do his best to be objective.

I would love to know why the plaintiff’s lawyer let this guy sit on the jury given these answers; perhaps there were worse jurors and the lawyer had to use all of the preemptory challenges on them. I certainly wouldn’t second guess the lawyer for the call (especially without knowing a whole lot more about the facts) – picking a jury is the hardest part of a trial. Judgments must be made quickly, often on gut instinct (even when you use a consultant) and require you do look across the venire and think what you will get if you use a challenge on the potential juror you are evaluating.