Day on Torts

March 8, 2005

Discovery Questionnaire for Wrongful Death Action

Getting through litigation as efficiently as possible is (generally) in a plaintiff’s best interest. To avoid the “hurry up and wait” effect that can encumber a case, I send my clients a discovery questionnaire at the outset. I ask the clients to answer the questions that I anticipate needing to go forward in the case. I include the interrogatories we see most often – such as listing past residences, employers, and treating physicians. I also ask the client to gather and provide copies of documents frequently requested by defendants – recent photographs and videotapes, tax returns, and etc. At the same time, I ask my clients to gather the information and materials that will help us move the case forward on our end – copies of pertinent insurance policies, for example. The goal of all this is, of course, to have the information on hand before it is needed. Ideally, we are prepared to respond to written discovery the day we receive it, and can avoid delaying the case through extensions.
This form is one that I use in wrongful death actions. Download file. The information requested is largely the same as in a personal injury case, but the questions have been edited to specify whether I am asking about the decedent or the surviving family members.

March 7, 2005

Another Blue Chipper – Damages

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

The leading case on the law of damages in personal injury cases comes not from the Tennessee Supreme Court but rather from an opinion authored by Judge Koch on the Court of Appeals, Middle Section.

Judge Koch is an excellent writer. His opinions are exremely through and provide a great place to start legal research on viturally any topic he has written about during his twenty years on the Bench.

The opinion in Overstreet v. Shoney’s, Inc., 4 S.W.3d 694 (Tenn. Ct. App. 1999) is another example of the foregoing. If you know this opinion you know 85% of what you need to know about the law of damages in personal injury cases.

March 7, 2005

Discovery to Identify Nonparties

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

With several important limitations, T.C.A. ㋔ 20-1-119 permits a plaintiff to add parties defendant to a case even if the statute of limitations has expired. The triggering event for adding nonparties as parties is typically language in the defendant’s answer or amended answer.

Rather than waiting for the defendants to get around to blaming others, try to force the issue by using the following interrogatory:

Do you contend that any person or entity other than yourself caused or contributed to cause plaintiff’s [insert appropriate word] as alleged in the complaint? If so, please state (a) the identify of each such person; (b) what you contend he or she did (or did not do) to cause or contribute to cause the injuries; and (c) identify any documents or things that support your contention.

March 5, 2005

Rule 26 Disclosure of an Expert Witness in a Medical Negligence Case

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

It is a bit of a stretch to describe anything as a “form” for disclosing the opinions of an expert witness in a medical negligence case. Forms are designed to avoid re-inventing the wheel, shortcutting repetitive processes in lawsuits. There is rarely anything repetitive about the medico-legal issues that arise in a medical negligence case. Before putting pen to paper, an attorney must have a real grasp of the medicine and the law as it applies to a particular case.

That said, it is helpful to check an earlier Rule 26 disclosure as a prompt for the type of information that can be included, so I am providing this Rule 26 disclosure as an example. Download file. It sets forth the bases for the expert’s knowledge in the field, including an express statement that the expert is licensed to practice in Tennessee (or a contiguous state). It describes the expert’s familiarity with the standard of care in the locality, including how the expert gained that knowledge. The disclosure lists the materials that the expert has reviewed in forming his opinions. The disclosure states that the expert is familiar with the applicable standard of care and explains what that standard of care requires. It states that the defendants failed to act with the appropriate standard of care, and that failure to act with the standard of care resulted in the injuries and death of the decedent. The disclosure states that the expert’s opinions are held within a reasonable degree of medical certainty.

You will see this disclosure is very detailed. Some people try to get by with less, and depending on your opponent and your judge you sometimes can get by with less. The law is unclear on how much detail is required in an expert witness disclosure. When drafting an expert disclosure in a medical negligence case, it is helpful to check Tenn. Code Ann. 29-26-115 and a prior Rule 26 disclosure to refresh your recollection about what information should be included. Hopefully, this “form” will help you in your case.

March 4, 2005

Employment Agreement

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

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.