Day on Torts

September 8, 2011

Florida Supreme Court to Evaluate Constitutionality of Damage Cap in Medical Negligence Cases

The Florida Supreme Court has agreed to determine whether a limit on noneconomic damages in medical malpractice cases violates the state’s constitution. The law was passed in 2003 as part of a Republican-led effort to limit the rights of medical malpractice victims. The damages cap in Florida is $500,000 per claimant and practitioner with an aggregate cap of $1,000,000.

Here are the facts of the case as reported by FJA:

In June 2005, Michelle McCall began receiving prenatal medical care at a United States Air Force clinic as an Air Force dependent. On February 21, 2006, test results revealed that Ms. McCall’s blood pressure was high, requiring labor be induced immediately. Ms. McCall remained at the family practice department instead of being transferred to the OB/GYN department. When it was determined that Ms. McCall would require a cesarean section, an Air Force obstetrician was called. Unfortunately, he was unavailable, so the family practice department opted to wait and deliver the child vaginally instead of calling another doctor.

September 7, 2011

Kentucky Jury Throws Out Claim of Wrongful Penis Amputatiion

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

Insurance Journal reports that a Kentucky jury has sided with a physician who is alleged to have amputated a portion of his patient’s penis without the patient’s consent.

The article states that "[t]he doctor said he decided to amputate less than an inch of the penis after he found potentially deadly cancer during surgery in 2007. The rest of the penis was taken off later by another doctor. [The defendant doctor] testified that when he cut the foreskin, the tip of the penis had the appearance of rotten cauliflower, indicating cancer. A pathologist later testified that tests confirmed the diagnosis."

The plaintiff argued that the doctor should have allowed the patient to wake up from the procedure and determine whether he wanted the amputation. He alleged that he only gave consent for a circumcision. He also alleged negligence in performing the procedure.

September 6, 2011

Government Cannot Be Sued For Emotional Distress Suffered By Mother Who Was Mistakely Told Her Solider Son Was Dead

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

The Federal Tort Claims Act does not permit a mother who was mistakenly told that her son (a solider ) was dead to sue for emotional distress.

Ms. Nabjur sent her son a letter and it was returned with a red stamp bearing the word "DECEASED." (Isn’t that nice?). The good news: her son was still alive. The bad news: it took some time to figure that out. She sued the government for negligent and intentional infliction of emotional distress and negligence per se.

The United States Court of Appeals for the Eighth Circuit affirmed dismissal of the claim, holding that the government was immune from this type of suit. What barred the claim? The FTCA’s waiver of sovereign immunity does not apply to "[a]ny claim arising out of . . . misrepresentation," 28 U.S.C. § 2680(h), or "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter," 28 U.S.C. § 2680(b). Thus, the government successfully argued that Najbar’s claims arose out of either a misrepresentation (i.e., my son was alive when you told me he was dead), or lost, miscarried, or negligently transmitted mail.

September 4, 2011

Liability of A General Contractor for the Acts of a Subcontractor

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

The Tennessee Bar Association published my column, Day on Torts, on September 1, 2011. The title of this column is "Who Should Get Burned by Bruce’s Torch?".

An excerpt:

Independent contractors are not considered employees. The general rule is that one who employs an independent contractor is not liable for the negligence of the contractor. This rule “is so riddled with exceptions that it is only applied when the courts cannot find a good reason to ignore it,” and a case on the court’s Sept. 1 oral argument docket provides another opportunity for common sense and sound public policy to trump the general rule. [Footnote omitted.]

August 29, 2011

Proposed 2012 Changes to the Tennessee Rules of Procedure and Evidence

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

The Tennessee Supreme Court has circulated for public comment changes to the rules of evidence and procedure.

If adopted by the Court and approved by resolution in the 2012 General Assembly, the proposed rule changes will go into effect July 1, 2012.

A couple changes are of particular interest to tort lawyers. First, there is a proposal to amend TRCP 12.06 to extend the time to file motions to strike. Second, changes have been suggested to Rule 45 to put receipents of subpoenas on notice of the 14-day deadline for lodging objections. Third, several changes to the rules of appellate procedure have been suggested.

August 29, 2011

Lawyer Alleges That False Medical Article is Being Used to Defeat Brachial Plexus Injury Cases

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

Kenneth Levine of Kenneth Levine and Associates of Brookline, Massachusetts has filed a fascinating lawsuit against the authors of an article on brachial plexus injuries and the publication that printed the article.

Levine alleges that the article, "Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia ", was published in 2008 in the American Journal of Obstetrics and Gynecology, and is being used by defense experts to defeat brachial plexus injury claims. The article claims to report the "first unambiguous case of a baby born vaginally without physician traction, and even without the occurrence of shoulder dystocia, that resulted in a permanent brachial plexus injury."

He further alleges that the case report of the delivery contains false information and the individual defendants knew the data was false when it was published. The Complaint states that the corporate defendants were later made aware of the falsities and have refused to retract the article.

August 22, 2011

Baxter Lawyer Taped Trying to Get Opposing Expert to Leave Town

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

Associated Press reports that a lawyer employed by Baxter International, Inc, a major manufacturer of intravenous drugs and medical devices, tried to pay an opposing expert in a lawsuit if he would leave the country on a key court date. The expert caught the offer on tape.

Baxter’s response: "The offer to engage an expert was not intended seriously and the lawyer had no authority to offer it or act on it," Baxter spokeswoman Laureen Cassidy told the AP. "It does not constitute bribery under Mexican law and was never acted upon."

Reminds me of the old joke about told about the defendant in a dog bite case. "I don’t have a dog. If I do have a dog it wasn’t my dog that bit you. If you can prove my dog bit you I didn’t know my dog would bite. If I knew my dog would bite you must have provoked my dog. If you didn’t provoke my dog you weren’t injured by the bite. [And the new one] If you were injuried by the bite your claim for damages, compensatory and punitive, is capped."

August 22, 2011

Big Firm Associate Sues – Says He Was Fired For Being Too Intelligent

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

I don’t have a Category titled "You Won’t Believe This Crap" but, if I did, this post would be filed there.

According to the WSJ Law Blog, New York City lawyer Gregory Berry has sued his former firm for more than $75 million, claiming the firm fired him for exhibiting intelligence and creativity. The article explains that "a former software engineer and graduate of the University of Pennsylvania Law School, Berry claims in his complaint that he arrived at Kasowitz last fall and “immediately began doing superlative work,” even pointing out alleged inefficiencies in the way the firm was handling certain assignments.

Berry told the Law Blog: “There is simply no room in a big law firm for an intelligent, creative lawyer with real-world experience, and I had to learn that the hard way.”

August 22, 2011

California Supreme Court Limits Medical Expense Recovery to Amount Paid By Insurer

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

The California Supreme Court has ruled that a tortiously injured person who receives medical care for his or her injuries may recover medical expenses only in the amount that the plaintiff’s health insurer paid, not the amount charged by the health care provider but later reduced by a contract between the provider and the insurer.

Whether a plaintiff can recover the amount paid or the medical "charges" is a hot issue in tort law. The California opinion falls on the pro-defendant side of that issue.

Plaintiffs have sought the right to claim the higher amount by invoking the collateral source rule.
The California Court said the collateral source rule did not protect the plaintiff, because a negotiated discount – whether negotiated by the plaintiff or the plaintiff’s health insurer – means that the plaintiff has not suffered a pecuniary loss in the greater amount.

August 19, 2011

Iowa Rules That The Dead Cannot Be Sued for Punitive Damages

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

The Supreme Court of Iowa has ruled that punitive damages cannot be recovered from the estate of a dead tortfeasor.

The thinking goes that punitive damages cannot punish a dead person. In addition, the Court held that in such cases the actor’s state of mind is important and direct evidence of the state of mind is unavailable after death.

The excellent dissent points out the opposing view.