Day on Torts

October 11, 2011

The Common Fund Doctrine and Med Pay Claims

The Alabama Court of Civil Appeals has ruled that the common fund doctrine applies to the determination of the payment of attorneys’ fees when monies for payments made under medical payments coverage are collected in a personal injury case.

In Mitchell v. State Farm, No 2100184 (Ala. Civ. App. 10/7/11), Mitchell’s attorney thought that State Farm, which paid monies for some of Mitchell’s medical bills, should have its subrogation interest reduced by the amount Mitchell paid the lawyer to recover the money for the benefit of State Farm. The attorney for the plaintiff relied on the common fund doctrine to assert the claim against State Farm.

The Court of Civil Appeals held that the common fund doctrine applied. It then rejected State Farm’s argument that its policy voided any obligation to pay an attorney’s fee for the recovery of the med pay coverage for its benefit. Finally, and perhaps most importantly, the Court rejected the argument that the common fund doctrine was voided by the "active participation" of its lawyer. The Court noted that although State Farm said it didn’t need the plaintiff’s lawyer to collect its money for it, State Farm did nothing to collect the subrogation interest until after the plaintiff’s attorney negotiated the settlement.

October 7, 2011

Tennessee’s New Dog Bite Law Protects Motorcyclists, Too.

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

The old "every dog gets one free bite" rule was severely limited as a result of legislation enacted by the Tennessee General Assembly several years ago. In fact, the new law works to protect motorcyclists and bicyclists, too. Here are the new rules:

44-8-413. Civil liability for injury caused by dogs.

(a) (1) The owner of a dog has a duty to keep that dog under reasonable control at all times, and to keep that dog from running at large. A person who breaches that duty is subject to civil liability for any damages suffered by a person who is injured by the dog while in a public place or lawfully in or on the private property of another.

October 5, 2011

What Is Going Wrong With Patient Safety in Health Care?

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

The Doctor’s Company sells medical malpractice insurance to doctors. In 2010, it conducted 525 patient safety site surveys. The surveys were conducted across a range of practice environments around the country—from small office practices to large integrated delivery systems, hospitals, and outpatient facilities, such as surgery centers.

The survey found that in the 15 categories it surveyed, medical record documentation was the category with the most frequent patient safety/risk management issues. A total of 266 surveys—more than half of the 525 site surveys—had at least one issue related to this category. Top findings within this category included the failure to document allergy status in the same location in each record and the lack of a problem list or a list of current medications.

The research also disclosed that two combined categories—lab tests/referrals and scheduling/follow-up—came a close second with issues in 234 of the surveys. Although the categories are individually ranked fourth and fifth,searchers determined that the they are so closely related that a finding in one typically leads to a finding in the other.

October 4, 2011

Nice Article About “Trial Lawyers Care”

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

"Trial Lawyers Care" was created to help 9/11 victims advocate for benefits from the Victim Compensation Fund. It brought out the best of AAJ and its members.

This article does a nice job explaining the work that was done and the thoughts of some of the participants.

October 4, 2011

The Advice Goddess Takes on the TSA

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

Amy Alkon, the Advice Goddess, had a bad run-in with a TSA agent. Of course, we have no legal right to hold the TSA or its agents accountable for acting like complete and total jerks, so she wrote about her experience. As only a writer could write.

And, God love her, she named the agent.

The agent threatened a lawsuit against her and demanded $500,000. (Read the letter sent by the agent’s lawyer here.)

October 3, 2011

He Killed His Momma But Is Permitted to Sue His Psychiatrist?

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

Sounds outrageous, doesn’t it? A guy kills his mother and then the Georgia Supreme Court says he has a right to sue his psychiatrist for inappropriate psychiatric treatment that gave rise to the death of his mother.

It is outrageous only if you know nothing about either law or medicine.

Psychiatrists are trained to help people who have mental illness (duh). Some psychiatrists are good. Some are bad. Some good psychiatrists will, from time to time, fall below the standard of care and cause harm to a patient.

September 27, 2011

What Would The State Of Tennessee’s Liability Be If The Indiana State Fair Tragedy Happened in Nashville?

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

There has been lots of discussion about those responsible for the tragedy that occurred on August 13, 2011 at the Indiana State Fair, where multiple people died and many others were injured after a stage collapsed at a concert. At last count, seven people died and another 40 people were injured in the collapse.

The Governor and the Attorney General of the State of Indiana stepped up and said that even though the horrific tragedy was a "fluke event" the State would pay $5,000,000 to the victims. Why $5,000,000? That is the cap on damages for claims against the State of Indiana provided by statute. The damages cap put in place by the Indiana Legislature has not been updated since 2003. No single victim can receive more than $700,000 under the law.

To be sure, the Indianapolis Star reports efforts are going to be made to increase the cap. And perhaps that will be done – it happened in Minnesota several years ago when the I-35W bridge collapsed, killing 13 and injuring another 100 people.

September 18, 2011

General Contractor Liability for Subs

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

Interested in the circumstances under which a general contractor can be held liable for the acts of a sub-contractor? Here is my article on one aspect of the subject in the TBA Journal.

September 9, 2011

Insurance Agent: Professional or Salesperson?

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

The California Court of Appeals explored the issue of the responsibility of an insurance agent is the case of Williams v. Hilb, Rogal & Hobbs Ins. Services of California, Inc., 177 Cal.App.4th 624, 98 Cal.Rptr.3d 910 (2nd Dist. 2009).

Insurance agents like to argue that they do not have a duty to advise a client that it should procure additional or different insurance coverage. However, the Williams case makes it clear that when an agent assumes additional duties by holding himself out as an expert he can be held liable for not procuring appropriate coverage.

This just makes sense. Most folks rely on their agent to tell them what coverage they need, particularly in the commercial insurance field, but also in the consumer area. Agents are in a far better position than potential insureds to know what types and amounts of insurance coverage should be in place. To be sure, the agent cannot force a client to buy any type of coverage (just like a lawyer cannot force a client to follow his or her advice or a doctor cannot force a patient to stick to a diet) but the notion that insurance agent’s are nothing but salespeople is an outrage.

September 9, 2011

CCL Wins Victory in Louisana – Med Mal Damages Caps Declared Unconstitutional

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

AAJ received good news today regarding a case that was argued in the 14th Judicial District Court of Louisiana by the Center for Constitutional Litigation and Louisiana lawyer Oliver Schrumpf. CCL has worked on the case (Arrington v. Galen-Med, Inc.) for about four years, with support from AAJ and the Louisiana Association for Justice.

The court declared Louisiana’s $500,000 cap on all damages in medical malpractice cases unconstitutional as a violation of the state constitution’s equal protection and adequate remedy guarantees. The Louisiana cap is the most severe cap in the United States.

The court also found that there was no correlation between medical malpractice lawsuits and any crisis in insurance for doctors or the availability and affordability of health care.