personal injury lawyer

November 8, 2009

Precise Fix for Defect in Toyotas Still Unknown

Toyota has a problem with some of the vehicles it has manufactured and a little over 40 days ago issued a recall of 3.8 million of them. According to Toyota, "[r]ecent events have prompted [the company] to take a closer look at the potential for an accelerator pedal to get stuck in the full open position due to an unsecured or incompatible driver’s floor mat. A stuck open accelerator pedal may result in very high vehicle speeds and make it difficult to stop the vehicle, which could cause a crash, serious injury or death." Read more here.

Something else is going on. Read this statement released by the National Highway Traffic Safety Administration (NHTSA) on November 4:

A press release put out by Toyota earlier this week about their recall of 3.8 million Toyota and Lexus vehicles inaccurately stated NHTSA had reached a conclusion "that no defect exists in vehicles in which the driver’s floor mat is compatible with the vehicle and properly secured." NHTSA has told Toyota and consumers that removing the recalled floor mats is the most immediate way to address the safety risk and avoid the possibility of the accelerator becoming stuck. But it is simply an interim measure. This remedy does not correct the underlying defect in the vehicles involving the potential for entrapment of the accelerator by floor mats, which is related to accelerator and floor pan design. Safety is the number one priority for NHTSA and this is why officials are working with Toyota to find the right way to fix this very dangerous problem. This matter is not closed until Toyota has effectively addressed the defect by providing a suitable vehicle based solution.

November 5, 2009

More on Dangers of Texting While Driving

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

I have written before about the dangers of texting while driving (here is a post about the danger of posed when truckers text and drive), and the Tennessee Legislature recently outlawed the practice.

Here is a game developed by the New York Times that demonstrates the danger.

November 3, 2009

Rhode Island Hospital Cannot Get It Right

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

You know that patient safety is not a priority in a hospital when your state regulatory agency orders that cameras be installed in your operating rooms.

Rhode Island Hospital has had five wrong-site surgeries since 2007. Here is how the AP described the last incident:

The latest incident last month involved a patient who was to have surgery on two fingers. Instead, the surgeon performed both operations on the same finger. Under protocols adopted in the medical field, the surgery site should have been marked and the surgical team should have taken a timeout before cutting to ensure they were operating on the right patient, the right part of the patient’s body and doing the correct procedure.

November 1, 2009

Commercial Appeal Writes About Medical Malpractice Litigation

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

The Commercial Appeal wrote an interesting story on medical malpractice litigation in today’s paper. Read it here.

An excerpt:

Nationwide, the number of payments physicians made for malpractice claims fell to 11,037 last year — the lowest figure since the National Practitioner Data Bank began tracking data in 1990. Adjusted for inflation, the total $3.6 billion they paid was the second-lowest sum on record.

October 22, 2009

New Medical Malpractice Filing Numbers

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

Every day, more than 5 Tennesseans die as a result of medical malpractice.

How do I know such a thing? Simple math. The Institute of Medicine has reported that 98,000 people a year die from medical malpractice. Think about it: the death rate from medical malpractice is the equivalent of a large commercial airline crash every day that results in the death of 268 people.

The USA has about 300,000,000 people. Tennessee has about 6,000,000 citizens, or 2% of the total. Assuming that the rate of medical errors that result in death in Tennessee is no better and no worse than anywhere else in the country, 1960 Tennesseans die every year as a result of medical malpractice (2% x 98,000). And that works out to 163 people per month. That is the equivalent of a commuter jet crash in Tennessee every week that results in the death of about 40 people.

October 22, 2009

Liability in the Sweat Lodge Case

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

By now most of us have heard of the Sweat Lodge incident.

The Huffington Post article says that "[m]ore than 50 followers of spiritual guru James Arthur Ray had just endured five strenuous days of fasting, sleep-deprivation and mind-altering breathing exercises [were] into a sweat lodge ceremony" that is said to have resulted in the deaths of three people. The "Spiritual Warrior" event apparently cost $9,000-plus for each participant. One survivor, Beverly Bunn, said that "Ray pushed for participants to go without sleep, enter into altered states of mind through breathing exercises and meditation, compete in a game in which he played God and fast for 36 hours during a vision quest." Bunn also said that "people were vomiting in the stifling heat, gasping for air, and lying lifeless on the sand and gravel floor" in the 415-square-foot sweat lodge. Apparently, people were not forced to stay inside but were highly encouraged. Bunn said "it was all about mind over matter, you’re stronger than your body."

Who is James Arthur Ray? He says he is "an internationally-renowned Personal Success Strategist, Visionary and New York Times Best-Selling Author who has traveled the globe dedicating over two decades of his life to studying the thoughts, actions, and habits of those who create true wealth in every area of their life [who] delivers his practical teachings to hundreds of thousands of individuals and business leaders every year." I confess I never heard of him before this incident, but if his website says he is internationally-renowed I suppose it must be true.

October 18, 2009

Board Certification in Medical Malpractice

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

A couple of months ago I filed an application with the American Board of Professional Liability Attorneys seeking board certification in medical malpractice cases. I have been board certified as a civil trial specialist for over 15 years. In fact, several years ago I served as President of the National Board of Trial Advocacy, the group that certifies civil trial specialists.

For those of you who want to seek certification, here are the criteria:

Be in good standing with your State Bar;
Provide a writing sample, either trial memorandum or brief;
Pass EBOLA’s written examination in either Legal or Medical Professional Liability;
Have spent at least the last 5 years practicing in Legal or Medical Professional Liability;
In the last 3 years, have dedicated at least 25% of your professional time to Medical Professional Liability;
In the last 3 years, have completed a minimum of 36 hours of continuing legal education (CALE) in Medical Professional Liability, or met the CALE requirements of your State Bar, whichever is greater; and
Provide 6 references: 3 judges and 3 attorneys who practice in Legal or Medical Professional Liability.

I have to confess I was a little nervous about the examination. I haven’t taken a test for over 15 years and had no idea what to expect. I was told it was impossible to study for the test, and that advice was correct. The test was at least 50% medicine and the breadth of the subjects covered made studying impractical if not impossible.. I received a break – one series of questions dealt with a medical subject on a case I tried in 2008.

October 6, 2009

An Appropriate Handoff

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

Yes, handoffs occur in football. But they also occur in healthcare, when one professional transfers the responsibility for caring for a patient to another provider.

Here is how The Doctor’s Company explains handoffs when talking about hospitalists:

The primary objective of a handoff is to provide accurate information about a patient’s care, treatment, current condition, and any recent or anticipated changes. Handoffs are interactive communications allowing the opportunity for questioning between the provider and the recipient of patient information. For hospitals, the handoffs that occur during the time when a patient is moved to another unit, sent for a diagnostic test, or transferred to a new physician can create continuity of care issues.

September 17, 2009

Georgia Supreme Court Considers Constitutionality of Damages Cap in Medical Malpractice Cases

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

The Georgia Legislature imposed a cap on noneconomic damages in meritorious medical malpractice cases in 2005. The cap is $350,000. In a case tried in Fulton County several years ago, the jury’s verdict exceeded the cap, and the Georgia Supreme Court is now considering whether the cap is constitutional.

According to a press release from the Georgia Trial Lawyers Association and re-printed on the Atlanta Injury Lawyer Blog

“Betty Nestlehutt was the face of her real estate business,” said Malone. “Her face was so horrifically disfigured that she was no longer able to even leave her house. Photographs of her disfigurement are even too gruesome for public distribution. The damage is permanent. Years later she has to wear layers of special makeup to try to give the appearance of normalcy.”

September 17, 2009

Washington Certificate of Merit Struck Down

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

The Washington Supreme Court has struck down the filing of a certificate of merit in medical malpractice cases in Washington state. The certificate is required by RCW 7.70.150.

The opinion said that the statute was unconstitutional because it violated the separation of powers between the Legislature and the Judiciary and it denied medical malpractice victims equal access to the courts.

The Court said that