Max Kennerly has a great post on a study on medical malpractice that was recently published in the NEJM. Read it here.
Fee Petitions in {Personal Injury Cases Involving Minors In Tennessee
In Wright v. Wright, No. M2008-01181-SC-Rll-CV (Tenn. March 29, 2011) the Tennessee Supreme Court explains how trial courts should determine a “reasonable” attorney’s fee amount when the attorney represents a minor. Trial courts and lawyers should know:
(1) an evidentiary record should be made in support of an attorney’s fee on behalf of a minor;
(2) an affidavit from the attorney seeking a fee, specifying the amount of time and type of work spent on the case, should be provided to the trial court;
Reasonable and Necessary Diagnostic Tests Must Be Awarded By Jury in Personal Injury Case
The Tennessee Court of Appeals has ruled that if it is undisputed that the defendant caused circumstances requiring diagnostic tests to rule out injuries, and the undisputed evidence shows that those tests were reasonable and necessary, a trial court cannot affirm a jury verdict of $0 damages. The trial court either must order a new trial or an additur.
Plaintiff was receiving treatment for chronic lower back pain before the accident. The physician who treated her before and after the accident testified that he “believed” Plaintiff suffered a back strain or whiplash that caused chronic headaches and aggravated her existing lower back condition. In addition, the physician testified that medical tests, including MRI and CT scans, were necessary to rule out hemorrhaging or fractures. Defendant’s medical expert testified that the medical tests were reasonable and necessary, but that Plaintiff’s pain was ultimately due to her preexisting condition.
The Court of Appeals agreed with Plaintiff that there was no material evidence to support the jury’s finding of $0 in damages, as the undisputed evidence established that Plaintiff was at least entitled to the costs of the diagnostic tests. The Court of Appeals noted that appellate courts lack the authority to award an additur, and therefore remanded for the trial court to order either a new trial or an additur.
Use of Internal Policies Can Be Used to Prove Violations of Reasonable Care
A recent opinion of the Tennessee Court of Appeals in case reminds us that a company’s internal policies, while not dispositive, are relevant to the standard of care for its employees.
After a bench trial, the trial court found Defendant was not negligent, and the Court of Appeals reversed based on the testimony of Defendant’s employees. Defendant provides door-to-door transportation services, with many of the passengers elderly or disabled. Defendant’s driver testified that he was aware of Defendant’s policies and procedures, particularly those requiring the driver to be aware of any walking surfaces that the passenger must travel upon, and those requiring the driver to keep a passenger within the driver’s line of vision in case the driver needs assistance. The driver also admitted that Defendant had a written policy requiring the driver to stay close to the passenger while walking in case the passenger needed assistance.
In this case, the driver testified that he noticed before picking up the passenger that there was frost on the ramp the passenger would use to exit her home. While the passenger was on the ramp, the driver turned back into the passenger’s home to get a bag for her. When he turned back, he saw that she was falling but she was six to eight feet away from him, which the driver admitted was not close enough to provide assistance. The Court of Appeals found this evidence preponderated against the trial court’s finding that the driver was not negligent.
Cross-Examination Blog
Several months ago I reviewed a book called "Cross-Examination Handbook." Now, the authors of that book have a blog aaptly called the "Cross-Examination Blog."
The site is a great place to keep up to date on this important issue. Add it to your regular reading list.
Fainting Juror Helps Settle Case
A juror faints during a lawyer’s opening statement. Lawyer happens to be discussing how a traffic accident left Gary Pettet with rotting flesh and bone after 12 surgeries. Ultimately, the damaged leg was amputated.
Defense counsel blamed the heat in the courtroom.
I know the Plaintiff’s lawyer, and I guarantee there was heat in the courtroom.
Can You Wing It At A Deposition?
Evan Shaeffer wrote a book called Deposition Practice Tips. Certain excerpts from the book appear here.
I want to focus on Section 1.111, which Evan titled "Can You Wing It At A Deposition?"
Here, in bold print, is his work:
Can An Insurance Company Bring a Legal Malpractice Claim Against Defense Counsel It Hired For Its Insured?
I serve on the Standards Committee of the National Board of Trial Advocacy, a division of the National Board of Legal Specialty Certification. Our members have a duty to report legal malpractice claims that have been filed against them, so from time to time I see claims filed by liability insurance companies against defense counsel that the companies hired to defend insureds.
So, when I saw this article in the Spring 2011 edition of the Federation of Defense and Insurance Counsel Quarterly, I thought it deserved to be seen by a broader audience.
The article explains that
Does the Privilege Still Apply if Non-Clients Were In The Room During the Conversation Between Counsel and Client?
Gregory Joseph’sComplex Litigation Blog brought my attention to this important decision. Quagliarello v. Dewees, 2011 U.S. Dist. LEXIS 78870 (E.D. Pa. July 20, 2011) is a § 1983 action against a police officer but addresses a situation that plaintiff’s lawyers address everyday when a potential client shows up with a bunch of friends and family members. Here is Gregory’s post:
Defendants argue that Plaintiff waived the attorney-client privilege because she consulted with Murphy in the presence of third parties, i.e. her parents and Gorbey [a neighbor and employee of defense counsel who referred the plaintiff to her lawyer]. Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1424 (3d Cir. 1991) (citing United States v. AT&T, 642 F.2d 1285, 1299 (D.C. Cir. 1980)) ("voluntary disclosure to a third party of purportedly privileged communications has long been considered inconsistent with an assertion of the privilege").
The Court finds that Plaintiff did not waive the privilege as to discussions where Donna Gorbey and Plaintiff’s parents were present. In Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984), the First Circuit held that the presence of a client’s father at the meeting with his attorney did not waive the attorney-client privilege where the client intended that his communications with the attorney were confidential. Id. at 849. Furthermore, "[t]he presence of a third party will not vitiate the attorney-client privilege if the third party is the attorney’s or client’s agent or possesses a commonality of interest with the client." In re Grand Jury Investigation, 918 F.2d 374, 386 n.19 (3d Cir. 1990) (citing 8 Wigmore at § 2311); see also Miller v. Haulmark Transport Sys., 104 F.R.D. 442, 445 (E.D. Pa. 1984) (Huyett, J.) ("[T]he privilege is not destroyed when a person other than the lawyer is present at a conversation between an attorney and his or her client if that person is needed to make the conference possible or to assist the attorney in providing legal services.").
Worker’s Compensation Liens for Future Medical Bills
The recent decision of the Tennessee Court of Appeals in Joshua Cooper, et al. v. Logistics Insight Corp., et al., No. CV (Tenn Ct. App. May 16, 2011) potentially upsets the apple cart for workers’ compensation liens on third-party tort recoveries. The prevailing view for a decade has been that the employer gets no lien or credit for future medical expenses. That isn’t entirely clear any more after this one.
Employee filed suit against Defendants, and Employer who paid Employee’s workers’ compensation benefits intervened. Employee settled with Defendants and filed a notice and order of voluntary dismissal. Employer moved to set the case for trial, contending Employer was not part of the settlement and was actively engaged in obtaining expert medical proof as to Employee’s future medical expenses. The trial court set the case for trial, but then granted Defendants’ motion to dismiss Employer’s suit for failure to state a claim upon which relief could be granted under Tenn. R. Civ. P. 12.02(6). Employer appealed.
On appeal, Defendants contended that Employer was not entitled to a credit on Employee’s recovery “for medical expenses that have not been incurred and are speculative.” The Court of Appeals looked to the workers’ compensation lien statute at Tenn. Code Ann. § 50-6-112(c)(1) and (2):