Day on Torts

March 4, 2005

Employment Agreement

This is the standard fee agreement that I use in my own practice. Download file. I have tweaked the agreement repeatedly over the years, and plan to continue modifying it in the future as the need arises. If you want an updated form, or if you have suggestions for updates, please email me.

A few points on the fee agreement:
– Tennessee law prohibits a contingency fee greater than 33 1/3% in medical malpractice cases. If you are reviewing or accepting a medical negligence case, be sure to remove the provision for a 40% contingency fee in the event of an appeal.
– Note that the contingency fee is based upon gross recovery, rather than net after expenses.
– Near the bottom of page 2, the paragraph stating that attorneys are still investigating the case should be removed if you have already committed to pursuing the matter.
– I realize that the provision concerning sales taxes is currently unnecessary. However, the Legislature is always threatening to impose a sales tax on professional services and therefore I added this provision in case they decide to do so.

March 3, 2005

Drug-Related Errors

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

The cause of medical negligence cases is medical negligence. To be sure, the legal system does not do a very good job of holding careless health care providers accountable (far more people are injured or killed by medical negligence than ever bring a lawsuit much less win a lawsuit) but the legal system does not cause medical negligence.

Here is some interesting data regarding drug errors by some people who are actually working to prevent patient harm. Note that the information is from U.S. Pharmacopeia, Center for the Advancement of Patient Safety (CAPS), a group in the health field, not a bunch of lawyers.

The group found inter alia that during the three-year period of 2001-2003, there were 532,144 medication error records submitted to MEDMARX, a voluntary reporting service. Approximately 4.4% of these (n= 23,689) cited Wrong patient as a Type of Error. Nearly 50% of Wrong patient errors reached the patient but did not result in harm (Categories C and D) (Table 1.) Although only 1.3% of all Wrong patient errors resulted in harm, there were 10 sentinel events (including 3 fatalities) associated with this Type of Error. The number of fatalities from other types of errors is not a part of this report. The amount of medical expenses associated with errors and harm causing errors is not reported.

March 2, 2005

Discovery to a Corporate Defendant in an Automobile Wreck Case

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

This is a sample form set of interrogatories and requests for production of documents and things to send to a corporate defendant in a car wreck case. I typically serve a set of discovery with the complaint in order to get the ball rolling on the case. These form questions ask the basic issues that should be dealt with in almost any case involving a corporate defendant: (1) identifying witnesses, including experts; (2) determining whether any surveillance is being / has been conducted of the plaintiff; (3) narrowing any questions as to respondeat superior; and (4) discovering the factual bases for any affirmative defenses. There are other issues that you may want to address in the initial written discovery depending on the circumstances of the case. (For example, serving a request to produce the defendant’s vehicle itself for inspection to take photographs and recover data from the vehicle’s event data recorder, or “black box.”) Download file

March 1, 2005

Slip and Fall Cases – Constructive Notice

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

In Blair v. West Towne Mall, 130 S.W.3d 761 (Tenn. 2004), the Tennessee Supreme Court held that plaintiff may prove that a premises owner had constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition’s existence. This decision is an express adoption of what used to be called the “method of operation theory” of proving constructive notice. The owner, a third person, or nature may cause the condition. You may read the text of the opinion by clicking here.

I do not like phrase “method of operation theory;” it sounds as if the defendant must knowingingly engage in practices that create a risk of harm. That is simply not correct.

The better label is the “reoccurring risk of injury theory.” In other words, plaintiff must demonstrate that defendant, a third person or nature regularly created some condition that posed a risk of injury to third persons. For instance, a plaintiff who fell in a grocery store could met her burden of proving notice by proving that she slipped on a liquid substance that being given away for test consumption as a store promotion several isles away. She could prove actual notice of the substance on the floor, true constructive notice, or “risk of reoccurring injury” notice; i.e. that when the store had such give aways it routinely had spills nearby with such frequency that constructive notice should be found by the factfinder.

February 28, 2005

Does a Defendant Receive Benefit for Discounted Medical Care?

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

Medicare reimburses hospitals and other health care providers at a rate less than “charges,” i.e. the amount stated on the bill. The amount of the discount is often seventy percent or more. Should the medical expense recovery by a sucessful personal injury or wrongful death plaintiff be the amount of the charges or the discounted amount paid by Medicare?

The Supreme Court of Hawaii has ruled that the amount of the “charges” was the appropriate measure of recovery. In Bynum v. Mango the court said that “the tortfeasor is not entitled to reap the benefit of the plaintiff’s elgibility for public assistance or from the government’s economic clout in the health care market place.” Click here to read the opinion. The dissent may be read by clicking here.

Mississippi, North Carolina, South Carolina, and Wisconsin reach a similar result. California and Pennsylvania hold to the contrary. The citations to those opinions may be found in the Bynum decision.

February 26, 2005

Surveillance Videos Discoverable

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

The Illinois Court of Appeals has ruled that surveillance videos made of a plaintiff in a personal injury suit are disoverable.

In Shields v. Burlington Northern and Santa Fe Railroad Co. defendant argued that the films were protected under the work product doctrine. The appellate court followed the majority rule and held that the plaintiff was entitled to the videos. The court stated that “surveillance videos contain substantive evidence concerning the extent of a plaintiff’s injuries, and they do not reveal mental processes, opinions or other conceptual data. Thus, surveillance videotapes do not count as work product.” Read the opinion by clicking here.

It is important to warn your clients of the risk of surveillance videos. We tell our clients about the risk not because we want them to restrict their activities in public places but because we want to encourage them to accurately remember the activities they engage in so that they will not be impeached on video. Clients should also be cautioned about the difference between the activities they “can’t do” as a result of their injuiries versus the activities they do less frequently or do with pain they did not experience before the injury. An understanding of the difference in degree of these limitations will reduce the likelihood of successful impeachment of your client, by video or otherwise.

February 24, 2005

Wrongful Death – Whose Claim Is It?

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

Tennessee’s wrongful death law is a little unusual. The claim is the claim that the decedent would have been able to bring if the decedent were still alive.
Tennessee law spells out who has the right to bring an action of behalf of the decedent. The person who has the right to bring the claim is the only proper party plaintiff. Of course, after the Jordan opinion, certain beneficiaries can prove loss of consortium damages, but those parties are not true “plaintiffs” in the traditional sense of the word. Not only is it not necessary to add the other statutory beneficiaries but their efforts to remain in the case will be met with a motion to dismiss.

So, before you file a wrongful death case, study Title 20, Chapter 5, identify the proper plaintiff, and prepare your papers accordingly. It is appropriate to plead the existence of and even identify other beneficiaries who are entitled to prove loss of consortium, but they should not be named as plaintiffs in the case.

February 23, 2005

Order Reducing TennCare’s Subrogation Amount

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

TennCare has a statutory subrogation interest provided by Tenn. Code Ann. sec. 71-5-117. Under the statute, once a personal injury plaintiff’s attorney is on notice that TennCare has an interest, the attorney has an obligation to contact TennCare or the plaintiff’s managed care organization “before the entry of a judgment or settlement” to find out the amount of TennCare’s asserted subrogation interest. Tenn. Code Ann. sec. 71-5-117(g). TennCare’s subrogation interest is often small in comparison to the tort victim’s damages, if for no other than reason than the amount that health care providers write off from the patient’s medical expenses when accepting payment from TennCare. When a plaintiff’s damages bump into the available insurance policy limits, however, TennCare’s subrogation interest can be a significant barrier to accepting a reasonable settlement. Fortunately, Tenn. Code Ann. sec. 71-5-117 provides a remedy if TennCare or its MCO will not accept a reasonable reduction – a hearing by the trial judge to adjudicate TennCare’s subrogation amount.

In essence, Tenn. Code Ann. sec. 71-5-117 codifies both the “made whole” rule and the “common fund” rule, reducing TennCare’s recovery by the same factors that the plaintiff faces in evaluating a settlement.

First, the trial judge determines TennCare’s gross subrogation interest. The court looks to the medical expenses that the plaintiff could expect to prove at trial. The court also hears evidence introduced about TennCare’s total payments for those medical expenses. Tenn. Code Ann. sec. 71-5-117(g).

February 23, 2005

Finding Insurance Limits for Commercial Vehicles on the Web

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

49 C.F.R. 387 requires commercial motor carriers to maintain minimum insurance policy limits on their commercial vehicles. The minimum amount varies depending on the vehicle’s use. In any event, the commercial motor carrier is required to report their insurance policy limits to the Federal Motor Carrier Safety Administration. The FMCSA, in turn, publishes the information for free on a public website.

February 22, 2005

Comparative Fault and

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

Can a plaintiff who may be at fault assert res ipsa loquitur in a jurisdiction that has adopted comparative negligence?

The Eighth Circuit Court of Appeals recently examined this issue under Iowa law. The Court held that the Iowa Supreme Court would not require a plaintiff to disprove his or her own fault in order to rely on res ipsa. The decision is McGuire v. Davidson Manufacturing Company; to read the opinion click here.

The opinion does a nice job collecting case law from around the country on this subject. Of course, the opinion is not binding precedent on Tennessee but it will give you a good head start for your research on this issue.