Day on Torts

May 17, 2005

Damages for Medical Bills Reduced By Contractual Discounts

The Florida Supreme Court has held that a plaintiff in a personal injury case cannot recover the gross amount of his medical bills when the plaintiff’s HMO has negotiated a lower rate of reimbursement with the health care providers. The decision is based in part on a Florida statute codifying the collateral source rule. Read the decision here.

The majority opinion and the accompanying concurring opinions do a nice job collecting the law on this subject.

Look for this issue to be raised more frequently in Tennessee.

May 16, 2005

Informed Consent A Jury Question

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

The Supreme Court of North Dakota has ruled that whether or not a reasonable patient would accept the risk of death from a procedure is a jury question and not one for which expert testimony is necessary. The plaintiff’s wife died after an IVP. The doctors admitted that they did not inform the patient of the risk of death.

Here is the opinion.

North Dakota does not appear to require expert testimony on what should have been disclosed to the patient; Tennessee law does require expert testimony on this subject. However, expert testimony should not be required on the issue of whether or not the reasonably prudent person would, under the circumstances, accept the risk of the procedure.

May 15, 2005

Source for Medical Images – Free

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

GE’s Standard Edition of Medcyclopedia includes at no charge all text and images from The Encyclopaedia of Medical Imaging’s eight book volumes: Physics, Techniques and Procedures, Normal Anatomy, Musculoskeletal and Soft Tissue Imaging, Gastrointestinal and Urogenital Imaging, Chest and Cardiovascular Imaging, Neuroradiology and Head and Neck Imaging, and Paediatric Imaging. There is a total of 18,000 topics and10,000 images.

The site notes that you are free to copy text and images for non-commercial use in lectures, articles, etc. provided that you refer to the source.

Thanks to the Insurance Defense Blog.

May 14, 2005

Order Shifting Costs of Expert Witness Depositions in Medical Malpractice Case

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

This is an Order entered in Davidson County Circuit Court that effectively shifts the costs of deposing expert witnesses to the defendant if they disclose more than two experts on any subject. The Order requires the defendant pay the court reporter fee, transcript fee, and any expert witness fee associated with the plaintiff’s discovery deposition of the additional expert witnesses. The Order comes from a motion in a medical malpractice case. For a copy of the motion and memorandum of law in support (or for a clearer copy of the signed order that has not been shrunken down to post on the web), email me.

Download file

Medical malpractice cases are expensive propositions for plaintiffs in any case, but when there are a number of defendants involved, the time and costs required can steamroll quickly. More defendants = more defense lawyers = more time and eyes watching the case on the defense side = exponentially more work for the plaintiff’s attorney.

May 13, 2005

Summary Judgment – Can You Get An Extension of Time To Do Discovery?

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

You cannot count on getting more time to do “discovery” in response to a motion for summary judgment. In Guzman-Ruis v.. Hernandez-Colon the defendant filed motion for summary judgment. Plaintiffs received one extension of time to respond, but failed to respond by the extended deadline. Some two months later, plaintiffs requested another extension to conduct further discovery. The court of appeals affirmed the district court’s denial of plaintiffs’ motion, stating that such extensions required due diligence both (a)in pursuing discovery before the summary judgment initiative surfaces and (b)in pursuing an extension of time thereafter. Read the opinion here.

To avoid this problem, start your discovery as early as reasonably possible. If the motion for summary judgment comes early, immediately serve the discovery you need and seek the depositions you need. Make sure your motion for an extension does not just ask for “more time;” be specific about what you need. And, for heaven’s sake, if you get an extension do your best to get your discovery done in the time you have been given.

May 12, 2005

Pro-Plaintiff Opinion from Sixth Circuit

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

The Sixth Circuit Court of Appeals reversed a ruling of the trial judge excluding certain experts in a medical negligence case, stating that Daubert’s role of ensuring that the courtroom door remains closed to junk science is not served by the exclusion of testimony supported by relevant experience. The Court further held the “exclusion of testimony in cases of medical experts is rarely justified as opposed to supposed experts in the area of product liability.”

Click here to read the opinion.

May 11, 2005

Flow Sheet for Handling a Personal Injury Case

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

This is a flow sheet for plaintiff’s lawyers to use in personal injury cases, starting with the first client interview and moving all the way up to the pre-trial brief. This is mainly a big picture view to keep you from missing the forest for the trees in litigation. It reminds you to check the answer to see if the defendant has pled the comparative fault of anyone else, to ask opposing counsel for a stipulation as to reasonableness and necessity of medical expenses, and the other important steps along the way in a case. While every file has its own nuances, hopefully this will serve as a nice checklist for you on the more common occurrences in a case.

Download file

May 10, 2005

Failed Vasectomy – Wife Has No Claim

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

James’ vasectomy did not go as planned. His wife Corrine became pregnant. They filed suit against his urologist.

The Maryland Court of Special Appeals held that Corrine could not file suit against the doctor because there was not a physican-patient relationship. In short, the Court ruled that Corrine did not establish that her husband’s doctor owed her a duty of care.

The dismissal of James’ claim on the ground of contributory negligence was also affirmed. (In Maryland, contributory negligence is still an absolute bar to recovery.) The basis for the claim of contributory negligence included the failure to follow doctor’s orders.

May 9, 2005

Plaintiffs’ Jury Verdict Reversed in Metabolife Case

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

A jury verdict for several plaintiffs who alleged that they were injured by the weight-loss supplement Metabolife 356 was recently reversed by the 11th Cir. Court of Appeals.

The Court ruled that the expert testimony offered by the Plaintiff on the causation issue should not have survived at Daubert challenge. The Court said that neither expert used a reliable methadology to prove that Metabolife 356 causes strokes or heart attacks, either generally or in the plaintiffs. The 49-page opinion is a reminder of the risk of pushing the envelope on “new” products cases.

May 8, 2005

– False Light Invasion of Privacy

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

Dayontorts.com knows no bounds to bring you what’s goin’ down in tort law.

Apparently my man Eminem (is it still cool to say “my man”?)(come to think about it, is is still cool to say “cool”?) wrote a “song” called Brain Damage, and told Rolling Stone that the song lyrics that discussed his childhood experiences with the plaintiff DeAngelo Bailey were true. Plaintiff decided to sue Eminem, thankfully deciding that it was a better course than cappin’ the dude. The suit alleged false-light invasion of privacy and negligence.

The Michigan Court of Appeals held that a claim of false-light invasion of privacy was not made out because the song contains several clues that the lyrics should not be taken literally and, given plaintiff’s admission that he picked on Eminem and did “bully type things” to him, the “substantial truth” test was met.
The negligence claim was dismissed because the plaintiff did not properly raise that issue on appeal.