Day on Torts

March 22, 2005

Another State Questions Med Mal Crisis Hype

The Insurance Commissioner from the State of Washington has issued a report that examines whether or not there is a medical malpractice insurance crisis in the state.

Rather than relying on simple statements from doctors and their insurers the Insurance Commissioner did a closed claim study covering about 90% of the physicians from the state. The report shows that the number of $1,000,000+ verdicts or settlements is relatively flat and that there were only 50 verdicts for the plaintiff in the 10 – year period covered by the study. Seventy-three percent of the claimants recovered nothing.

This data, not dissimilar from information received from the a recent Texas study, adds further support for the notion that rising medical malpractice insurance rates are out of control or that they are caused by a defect in the jury system that will be fixed by caps on damages.

March 22, 2005

Blue Chipper – Premises Liability

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

Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998), is a must-know for anyone handling a slip and fall or trip and fall case in Tennessee. Indeed, it is important reading for anyone handling any type of premises liability case in this state. It is the first Tennessee Supreme Court decision in the field after the adoption of comparative fault.

Be sure to read both the majority opinion and the concurring opinion to see a philosophical divide on the subject as wide as the one between Nietzsche and St. Thomas Aquinas.

In my mind, the Tennessee Supreme Court has unduly complicated the job of a trial judge in the typical premises liability case. I agree with Judge Holder’s concurring opinion – there is no need to undertake a duty analysis is the typical premises liability case.

March 21, 2005

Tort Law Tidbit – Arguing Pain and Suffering

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

Can a judge stop a lawyer from arguing the value of pain and suffering to a jury?

No. T.C.A. Sec. 20-9-304 gives a lawyer in a personal injury case the right to argue the worth or monetary value of pain and suffering. The argument must conform to the evidence or reasonable deduction from the evidence in the case.

The only possible exception to this rule is medical negligence cases.

March 20, 2005

Sen. Frist: Video Diagnosis

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

An article in the Washington Post demonstrates an amazing ability of Sen. Bill Frist: the skill to make a medical diagnosis from a videotape.

This may surprise some of you who do medical negligence work or address a lot of medical issues in your practice. As lawyers we are all told how difficult it is to make a medical diagnosis. Defense experts will routinely testify that it is unfair to challenge a medical diagnosis without seeing and laying hands on the patient. But Sen. Frist has the ability to look at a videotape and make a diagnosis that contradicts that of the patient’s treating physicians!

The article discusses Sen. Frist’s review of a videotape of Terri Schiavo and his (subsequent?) opinion that she may not be in a persistent vegetative state. That opinion was in no way influenced by the upcoming Presidential election.

March 20, 2005

Trial Lawyer’s Prayer

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

Sorry for the lack of a post yesterday; I am at a conference in Florida and the day was a little hectic.

I didn’t write the Trial Lawyer’s Prayer, but I wish I had. Read more of Evan Schaeffer’s stuff by clicking here.

Trial Lawyer’s Prayer, by Evan Schaeffer

March 18, 2005

Tort Law Tidbit – When Must The Judge Rule?

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

I know the judge has to render a decision in my case in some time period. What is it?

T.C.A. Sec. 20-9-506 requires a judge who tries a non-jury case to render a decision and have the judgment entered within 60 days after completion of the trial.

Now, how do you enforce that statute? Well, the is a little more delicate. First, know your judge. Some judges will appreciate a “Motion to Determine Status.” Some judges let it be known that they want such a motion in the event something slips through the cracks.

March 17, 2005

Medicaid Subrogation Right Restricted

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

The Eighth Circuit Court of Appeals has limited Medicaid’s subrogation interest in a tort recovery.

Plaintiff received substantial injuries in an auto wreck. She applied for Medicaid coverage and agreed to assign to the state her “right to any settlement, judgment or award” she might receive from any third parties. Medicaid paid over $215,000 in benefits on her behalf.

Medicaid and plaintiff agreed that plaintiff’s damages exceeded $3,000,000. However, plaintiff settled her case against the tortfeasors for $550,000.

March 17, 2005

Special Courts for Doctors?

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

Most tort reform proposals center on limiting damages for people who are found by a jury to have meritorious claims. Insurance companies that sell malpractice insurance want their exposure capped. (Who wouldn’t?) Do doctors and hospitals get lower premiums in return? Well, that depends on if you ask the insurance companies under oath or if you are reading their PR pieces.

There is another debate out there that is more interesting from an intellectual standpoint – the debate about special courts for health care claims. These courts would run by health care professionals. Two folks are going at it on the Internet right now – Philip K. Howard, Founder and Chair of Common Good and the author of The Death of Common Sense: How Law is Suffocating America and Stephanie Mencimer, a contributing editor of The Washington Monthly and author of a upcoming book on tort reform.

Read the debate by clicking here.

March 16, 2005

Seminar on Fact Finding on the Internet

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

The ABA is hosting a 90-minute teleconference and live audio webcast on how to unearth fact information on the Internet.

Carole Levitt and Mark Rosch, authors of the ABA’s The Lawyer’s Guide to Fact Finding on the Internet will be the speakers. They will address issues like locating public records, locating background information on people and companies, and effective search techniques.

The seminar will take place on April 14, 2005 from 12:30 to 2:00 Eastern time. Call 800.285.2221 weekdays from 8:30 a.m. to 6:30 p.m. Eastern time to register. The program is eligible for 1.5 hours of CLE credit. Click here for more information.

March 16, 2005

Cost of Injuries and Death

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

I came across an interesting website from the National Safety Council the other day. The NSC does lots of stuff; one thing it does it estimate the cost of injuries and death in the USA.

For example, look at this table:

Average Comprehensive Cost by Injury Severity, 2003