Day on Torts

April 25, 2005

Tort Law Tidbit – Uninsured Motorist Claims

Many clients do not understand why their insurance company should have to pay out money because the driver that caused the wreck did not have insurance or did not have sufficient insurance to cover the loss. Those people are reluctant to “sue” their own company, in part because they are afraid that doing so will increase their insurance rates.

T.C.A. Sec. 56-7-1201 (f) gives you information that can help your client feel more comfortable about the decision to seek UM benefits. It provides that an insurer cannot raise insurance rates solely to the payment of a UM claim.

A significant percentage of drivers do not have insurance and a large number of those that do have it have only the mimimum amount prescribed by state law. Consider counseling your clients to increase their liability and UM limits. Many will be surprised how much more protection they can get for a relatively low cost.

April 25, 2005

Doctor Speaks Out In Favor Of Medical Malpractice Litigation

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

A neurosurgeon has written an op-ed piece about his experience with medical negligence litigation and offering his opinion about the role it plays in our society. The article is titled “How Malpractice Suits Keep My Profession Honest.”

The writer gives this example of the pressure faced by doctors who testify for patients: “I remember a Detroit neurosurgeon calling me in desperation to ask what to do after he had testified against a surgeon who had operated on the wrong side of a patient’s head. The Detroit doctor worried that he was being needlessly scrutinized by the American Association of Neurological Surgeons. It reminded me of a case in which I had been an expert witness here in Washington that led to complaints from the professor who had performed the surgery and unrelenting nit-picking from the association. My advice to the Detroit doctor? Resign from the association. That’s what I did.”

Isn’t it nice to see a member of the profession speak out on the side of his patients?

April 22, 2005

New Theory – Bullying

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

Well, that isn’t quite right. “Bullying” is just a sub-class of the tort we all know as intentional infliction of emotional distress.

According to press reports of the trial, the plaintiff perfusionist was the subject of a verbal attack by a heart surgeon. The plaintiff claimed that the attack forced him to leave his job.

The jury found the claim meritorious, and awarded the plaintiff $325,000. No punitive damages were awarded. In final argument, the plaintiff’s lawyer called the defendant “a domineering manager who viewed himself as untouchable” who “wanted to put [the plaintiff] in his place when the [he] threatened to tell hospital administrators that [the defendant] had verbally abused other members of his staff.” Read the post-trial press report here.

April 22, 2005

New Bullying Statute

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

Call it a coincidence, but the General Assembly has passed a bill addressing the subject of bullying in schools. Read an article about it here. The bill requires school districts to develop a policy that prohibits harassment, intimidation or bullying.

To see the bill itself, click here and look up SB 1621 by Senator Black.

April 22, 2005

Break

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

I am taking the weekend off. Those of you who are kind enough to stop by on Saturdays and Sundays (and there are scores of you who do) please know that I will be back on Monday morning.

I am going to Wisconsin (my home state) for a family reunion. Cheese curds and sausage for everyone!

Have a great weekend.

April 22, 2005

Finger Woman Arrested!

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

Remember the woman who said she found a finger in the chili she bought at Wendy’s?

She was arrested late yesterday afternoon. Read the press report here.

There is supposed to be a press conference today so that we can get the details behind the arrest.

April 21, 2005

You Think You Have Had Problems With An Expert?

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

Expert witnesses. Can’t live with ’em. Can’t live without ’em. Can’t kill ’em.

Buy me a drink sometime and I will tell you expert witness stories that will make your head spin. Or, let me buy you a drink and I will bore you with the same stories.

But I must confess that I never had an expert I had difficulty reaching because he was in jail. That’s right: jail. Read the opinion.

April 21, 2005

Tort Law Tidbit – Criminal Injuries Compensation Subrogation

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

Did you know that the Criminal Injuries Compensation Act has a subrogation provision?

T.C.A. Sec. 29-013-113 requires that a crime victim who receives payments under the Act and later receives damages in a civil action re-pay the State for monies received under the Act. If a civil action is filed the local DA and others must be sent a copy of the complaint and all subsequent pleadings.

April 20, 2005

Why all these blogs about Medical Malpractice Statistics and Legislation?

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

Why? Because, unfortunately, part of the job of being a tort lawyer who represents patients and other negligence victims is staying on top of issues that affect current and future clients. I have monitored tort “reform” legislation since 1984. I have testified on our Capitol Hill numerous times since 1985; the first time concerned a bill that severely limited the liability of servers of alcoholic beverages (it passed, we lost).

The fact of the matter is that plaintiff’s lawyers are one of the few voices for malpractice victims. AARP is there. Labor is often there. But there is no “Future Wrongful Death Victims of America Association.” There is no “Prospective Med Mal Victims PAC.” No one ever thinks that they will be a victim of a negligent doctor, a careless truck driver, or a defective product, and therefore even the consumers who care about the issue are often unwilling to speak out about it – they have too many other things going on in their lives that demand attention today.

Therefore, it falls upon lawyers to advocate for victims, not just in the courtroom, but in the halls of the legislature. We have to run for the legislature (only 17 lawyers out of 132 legislators in Tennessee!) or, if we cannot, give monetary support to those who will. We have to find non-lawyers to serve as candidates, help them win, and help them understand that the same people who had the ability to cast the votes that put them into office are the people who serve as jurors. We have to help them understand that when a jury makes an error there is a judge there who can correct the error, and that if that judge makes an error we have an appellate court system to correct it. In summary, we have a system of checks and balances that, all things considered, works pretty dang well.

April 20, 2005

Another Study Rejects Med Mal Reform Hype

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

Public Citizen has just released new information that sets the record straight on various facts concerning medical negligence.

A few highlights:

1. At the same time that insurance rates in some areas have been climbing, the number and total value of malpractice payouts to patients have been flat since 1991 and, in fact, show a significant decline since 2001, when the spike in insurance rates began.