Day on Torts

February 17, 2013

Tennessee Personal Injury and Wrongful Death Statistics, 2011-12 – Part 1

The Tennessee Supreme Court has released data concerning filings and dispositions on civil and criminal cases for the year ended June 30, 2012, including personal injury and wrongful death cases. The Annual Report of the Tennessee Judiciary is published every year and contains lots of data not readily available from any other source.

To be sure, the Tennessee Jury Verdict Reporter provides detailed information about jury verdicts in Tennessee personal injury and Tennessee wrongful death cases and that publication is of much more assistance to lawyers seeking to find jury verdict information about a particular type of case. However, he Annual Report, provides a view our justice system at the 10,000 foot level.

What follows is certain data about personal injury and wrongful death filings in Tennessee for the year ended June 30, 2012. The second number (in bold) for each category is the same statistic for the prior year, 2010-2011:

December 29, 2012

Surgical Errors

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

It comes as no surprise to those of us who are medical malpractice attorneys in Tennessee or elsewhere around the Nation, but this article, "Surgeons Make Thousands of Errors," (subscription required) does a great job of identifying problems that arise in the operating room.

The article reports that surgeons make such mistakes more than 4,000 times a year in the U.S. The article is based on a study led by Johns Hopkins University School of Medicine, published online in the journal Surgery.

The study, relied on data in the National Practitioner Data Bank, a federal repository of medical-malpractice judgments and out-of-court settlements,and examined cases involving leaving an object inside a patient, wrong-site surgeries, wrong procedures and wrong-patient surgeries.

December 26, 2012

NECC, Compounder Involved in Meningitis Cases, Files Bankruptcy

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

As predicted, New England Compounding Pharamcy, Inc., the owner of the New England Compounding Center (NECC), filed for bankruptcy last week. NECC is the company that provided contaminated steriods that killed and hurt hundreds of people, including many in Tennessee and Kentucky.

Click the link to view NECC’s bankruptcy filing.

www.dayontorts.com/uploads/file/Bankruptcy Petition.pdf

November 19, 2012

Sixth Circuit Severely Limits FTCA Claims With Broad Interpretation of Discretionary Function Exception

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

I am one of the those personal injury lawyers who doesn’t win every case. The loss in Kohl v. United States of America is particularly difficult. First, we have a wonderful client who I truly believe has a valid claim. Second, the opinion in this case makes it very difficult for anyone to establish subject matter jurisdiction in any type of Federal Tort Claims Act (FTCA) case other than those arising from classic motor vehicle crashes.

Debbie Kohl, a member of the Nashville Bomb Squad, received a serious brain injury during a training exercise. While Debbie was partially inside a van looking for explosives, an ATF agent tried to wench open a door on the van, causing the van to shift and hit Debbie on the head.

We brought an FTCA claim on Debbie’s behalf, alleging that the ATF agent was negligent in his operation of the wench and in failing to warn her that he was going to use it. The Federal Government denied liability, and argued that the court did not have subject matter jurisdiction in the case because the ATF agent was engaging in a discretionary function.

November 15, 2012

Illinois Supreme Court Recognizes Claim For Invasion of Privacy and Holds Employer Responsible For Acts of Non-Employee Private Investigator

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

The Illinois Supreme Court has issued an opinion in Lawlor v. North American Corporation of Illinois, Case No. 112530 (Oct. 18, 2012), holding that (a) the tort of intrusion upon seclusion is recognized in Illinois and (b) held that an employer liable for the torts of a non-employee private investigator because the investigator was acting as the employer’s agent.

Defendant North American hired a private investigator to determine whether Lawlor, a former employee of North American, had violated a covenant not to compete contained in her employment contract with the company. The private investigator assessed the Lawlor’s cell and home telephone records without her permission, causing her emotional distress.

The Court first recognized that existence of a tort that had never been expressly recognized by the High Court in Illinois. The Court adopted Section 652B of the Restatement (Second) of Torts, which provides as follows: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”

October 29, 2012

Kidney Transplant Doner Does Not Have Malpractice Claim Against Kidney Donee’s Doctor

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

The Nebraska Supreme Court has held that the doctor for a kidney donee does not owe a duty to the kidney donor. Thus, when the donee’s doctor allegedly committed malpractice when treating the donee, rendering the donor’s kidney useless, the donor cannot sue the donor’s doctor.

In Olson v. Wren shall, 284 Neb.445 (Oct. 5, 2012), Sean Olson agreed to give a kidney to his dad, Daniel. The initial surgery went fine, but complications later developed. Allegedly, a medical error caused the death of the donor’s kidney in the do nee and it had to be removed.

The donor and his wife sued the Donne’s doctors, seeking damages for the errors committed on do nee that resulted in the loss of the donor’s kidney. The trial court dismissed the case, finding that the Donne’s doctors (who did not remove the kidney from donor) did not owe a duty a care to the donor. The trial court also ruled that no legally cognizable damages were suffered by donor and his wife as a result of the alleged malpractice.

October 16, 2012

Medical Malpractice Victims: Denied Access to Justice

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

It happens almost every day. I receive a call from a person claiming that they have been injured by the act or omission of some health care professional and I have to tell them I can’t help them because the damages suffered to not justify the time and expense of a medical malpractice case.

This has always been a problem, but has gotten worse with tort reform legislation in Tennessee. Caps on damages further restrict access to the courts.

Those in academia are paying attention. Torts Prof recently wrote about a new article by Joanna Shephard tiitled ""Justice in Crisis: Victim Access to the American Medical Liability System."

October 14, 2012

Fungal Meningitis Outbreak: Tort Reform Legislation Sponsor Still Doesn’t Get It.

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

I recently wrote about a few of the ways the tort reform legislation that hit Tennessee effective October 1, 2011 will impact the victims of the fungal meningitis outbreak.

Heidi Hall of the Tennessean talked to one of the sponsors of the tort reform legislation. This is what he said:

Sen. Jack Johnson, R-Franklin, said he stands by the need for it to attract companies and jobs to Tennessee — even though now at least 52 have been sickened in the state by the outbreak, and six of those cases resulted in death.

October 13, 2012

Fungal Meningitis Outbreak: Do Those Who Received Contaminated Steroids But Who Do Not Get Fungal Meningitis Have A Claim for Damages Under Tennessee Law?

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

The fungal meningitis outbreak will result in four different classes of those with claims for damages against those who are responsible for the harm: (1)those who die; (2) those who contract the disease and are treated with no long-range effects; (3) those who contract the disease, are treated, but are left with long-range effects; and, (4) those who learn they were exposed to the contaminated product but never contracted the disease. (Note: I understand this is a simple breakdown and that in fact there will be several sub-groups within one or more of these groups.)

Do the people in the last grouping have a claim for damages under Tennessee law? That is, if a person can prove that he or she was exposed to the contaminated product, knew of the exposure, experienced understandable emotional distress after he or she learned of the exposure, is there a claim for damages under Tennessee law?

I believe the answer to that question is "yes." The case I turn to for support of this opinion is Carroll v. Sisters of St. Francis Health Services, Inc., 868 S.W.2d 585 (Tenn. 1993). The issue in Carroll was whether a plaintiff may recover damages for negligent infliction of emotional distress, based on the fear of contracting the Acquired Immunodeficiency Syndrome (AIDS), without presenting evidence that he or she was actually exposed to the human immunodeficiency virus (HIV or the AIDS virus) The Court answered this question "no" and dismissed the case.

October 11, 2012

Understanding Basic Medical Tests

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

Those of us who are medical malpractice lawyers or personal injury lawyers spend some time every day learning some aspect of medicine. Like most of you, I am always on the lookout for good websites that will help me learn some aspect of medicine that will help me help my clients.

Let me a share a good one with you. The "Stanford 25" is a website that helps medical students understand how to perform 25 common train physicians to glean diagnostic information without technology to augment the information gathered by technology.

The "Stanford 25" includes information on thyroid examinations, gait abnormalities, pulmonary examinations, and more. For example, here is the explanation on the fundoscopic exam.