Personal Injury Law

Tort Cases From the Past - Palsgraf

Posted on May 15, 2009
Last Monday I referred to the Palsgraf opinion and took the opportunity to re-read it.  I suggest you do the same.  The dispute between Justice Cardozo and Justice Andrews lives on.  Read this and tell me who could have written the exact same words almost 100 years later: The proposition is this...

Sanctions for Spoliation in Federal Court

Posted on May 14, 2009
The United States Court of Appeals for the Sixth Circuit recently ruled that federal law applies to determination what sanctions should be available for relief of spoiled evidence in federal question cases.  The en banc decision reversed  precedent and brought the circuit in line with other appellate courts...

SVMIC Supplies Us With Surgical Checklist

Posted on May 13, 2009
SVMIC, the medical malpractice insurer owned by doctors for doctors, has published information about a seminar it offered to its insureds addressing the issue of surgical checklists. This is how SVMIC describes the seminar it called "'Applied Aviation Safety Practices for Surgeons and Anesthesiologists:' The basic premise of these seminars was that human errors, often supported by poorly designed systems, are the primary cause of preventable patient deaths and injuries...

Download a Free Copy of Trial Law Report - Tennessee Tort Law Edition

Posted on May 12, 2009
Every month I let you know that a new edition of our newsletter - Trial Law Report - Tennessee Tort Law Edition - is in the mail to our subscribers.  This month, we are making a free copy available  for downloading by each of you, the loyal readers of this blog...

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That Crazy Causation Element

Posted on May 11, 2009
"Yeah, the facts demonstrate a Shoney's buffet of negligence, but there is no proof that any of that negligence caused any harm.   So what?" This case out of Illinois is a classic example.  Russell was found severely injured at the bottom of some steps...

Tennessee Public Acts

Posted on May 07, 2009
Westlaw charges you for looking at the language of a public act after it has been codified. The Tennessee Secretary of State has the language of the public act for free at this site.  The site includes public acts back to 1997.

TBA Journal - Recreation Limits Litigation

Posted on May 06, 2009
I write a quarterly column on tort law for the Tennessee Bar Journal.  The  column for the May edition of the publication discusses Tennessee's recreational use statute, Tenn. Code Ann. §70-7-101 et seq, An excerpt: The Tennessee Supreme Court has interpreted the recreational use statute as one that gives rise to a defense to liability that requires a three-pronged analysis to determine the applicability of the statute: '(1) is the defendant a ‘landowner' under the statute; (2) is the activity alleged a recreational activity as defined by the statute; and if so, (3) are any of the statutory exceptions or limitations to the immunity defense applicable?'  [ Footnote omitted...

Slip and Fall Claims

Posted on May 05, 2009
CNA has issued a white paper titled "Slip and Fall Control Techniques for Commercial Real Estate Owners."    The report indicates  that more than one million people are injured each year in slip or trip and fall incidents and 16,000 people die from falls...

Medical Record-Keeping

Posted on May 04, 2009
The Doctors Company, a medical malpractice insurer, has published this article about keeping medical records.  An excerpt: The following entries should appear in the office or hospital records of each patient: Results of a patient's physical examination, specifically noting the absence of abnormality...

May 2009 Edition of the Tennessee Trial Law Report Available

Posted on May 03, 2009
The May 2009 edition of the Tennessee Trial Law Report should be arriving in the mailboxes of our subscribers on Monday May 4.  The Tennessee Trial Law Report is the only newsletter in Tennessee written to meet the complete needs of the tort law practitioner...

Chrylser's Bankruptcy Filing - A Tort Lawyer's Thoughts

Posted on May 01, 2009
If you are breathing and can read, you know that Chrysler has filed a Chapter 11 bankruptcy petition. I am not a bankruptcy lawyer.  I am not a corporate lawyer.  But the filing has some immediate consequences readily apparent to the reasonably prudent tort lawyer...

Can A Podiatrist Give Causation Testimony?

Posted on April 30, 2009
A Virginia trial judge refused to allow a podiatrist to give causation testimony in a FELA case where a railroad worker alleged his foot problems were caused by conditions in the workplace.  The Virginia Supreme Court has agreed to hear the case...

Thanks to Lexmonitor

Posted on April 30, 2009
A heartfelt thanks to Lexmonitor, a daily review of law blogs and journals, for these kind words about my post  discussing testimony by podiatrists. Tennessee injury lawyer John Day has been blogging for years, and his posts display a keen knowledge of what makes a blog consistently readable and valuable to your readership...

Work Life Expectancy Tables

Posted on April 29, 2009
Economists in personal injury cases and wrongful death cases often consider work life expectancy tables in calculating future economic losses. As explained on this website, "[m]any laypersons (and some experts) assume that [worklife expectancy] is the number of years until the person turns 65, the historic age for full social security retirement...

Chamber of Commerce At the Movies

Posted on April 28, 2009
According to the Wall Street Journal Law Blog,  the Chamber of Commerce is going to start running short films before feature films in movie theaters in the Washington, D.C,area.  The films "tell a story of supposed 'Lawsuit Abuse' — cases in which people were allegedly dragged into the legal system with the filing of a frivolous lawsuit...

Sixth Circuit Issues Opinion of Expert Testimony

Posted on April 28, 2009
The Court of Appeals for the Sixth Circuit has issued an opinion upholding the admissibility of an medical doctor's opinion on causation based on application of traditional differential diagnosis theory. In  Best v. Lowe's Home Centers, Inc...

Malpractice Concerning Pap Smears

Posted on April 27, 2009
One medical malpractice insurer, The Doctors Company, has an interesting article on medical malpractice claims concerning pap smears. Here is a excerpt from the article that discusses the scope of the problem: To put the potential magnitude of this problem in perspective, a College of American Pathologists (CAP) study of the five-year 'look-back' at previous negative Pap smears following the diagnosis of HSIL/carcinoma found that 10 percent of prior smears were false negatives for SIL/carcinoma...

Was Gov. Palin Advising a Miss USA Contestant?

Posted on April 25, 2009
Ms. Arizona was asked a question about universal health care during  her Miss USA pageant interview    Her response reminded me the frequent, mindless sound bites offered by the 2008 GOP candidate for Vice President of the United States...

Tennessee Ranks #40 in Doctor Discipline

Posted on April 24, 2009
Public Citizen ranks Tennessee 40th in its 2008  ranking of serious doctor disciplinary actions taken by state medical licensing boards. The Tennessee board took a total of 40 serious disciplinary actions against the 18,137 doctors in Tennessee, or a total of 2...

Medical Helicopter Crashes

Posted on April 23, 2009
The Wall Street Journal has been writing a series of articles about crashes of medical helicopters.  A total of 13 crashes took 29 lives in 2008. This crashes can give rise to several potential types of claims.   The patient  has a potential claim,  assuming he or she can prove that there was negligence in the operation or maintenance of the helicopter...

Prescribing Drugs for Off-Label Use

Posted on April 22, 2009
Many of us know that  doctors prescribe drugs for uses other than those approved by the FDA.  This article discusses off-label drug prescribing and suggests that physicians who prescribe a drug for an off-label use follow the following steps to obtain informed consent: a statement that the off-label use is an 'experimental use' so all the possible side effects and complications are not known; a list of the common and/or known risks and complications with use of the medication; a statement that the details of the treatment have been fully explained in lay terms or in terms that are easily understood by the patient; a statement that no guarantees about the results of the medication are given; and a statement that the patient is not required to take the medication...

Expert Testimony Allowed on the Issue of Recklessness in Medical Negligence Case

Posted on April 20, 2009
The Idaho Supreme Court has permitted an expert to opine that two defendants in a medical negligence case engaged in not just negligent but reckless conduct. In Jones v. Crawford, 2009 Opinion 53 (Idaho S. Ct. April 8, 2009), a defendant appealed from an adverse jury verdict in a wrongful death case...

Preparing the Witness for Deposition - From the Perspective of the Defense

Posted on April 17, 2009
Evan Schaeffer at The Trial Practice Tips Weblog  tracked down an article titled "Preparing A Witness for a Successful Deposition" written by Matt Keenan, a defense lawyer with Shook, Hardy and Bacon in Kansas City.   An excerpt: In my 20-some years of working with company witnesses as part of the discovery process, I've learned that the prospects of a deposition can stress even the most accomplished corporate executive...

Subjective Medical Findings

Posted on April 16, 2009
Did you know that there is  a statute that expressly permits physicians to base their opinions on subjective complaints? Here it is: T.C.A.Sec. 24-7-115 "In the trial of any civil suit, there shall be received in evidence if offered on behalf of any party thereto, opinions as to medical findings as a result of treatment or examination of the party, whether such opinions are based on subjective or objective findings; provided such opinions are those of persons otherwise qualified as medical experts...

"Preparing for the Video Deposition"

Posted on April 15, 2009
Yesterday I mentioned that James Publishing Company's website includes excerpts of certain of its books.  I thought that the excerpt I referred to yesterday was so valuable that it was worth another post, so here is an excerpt from Section 439 of  "How to Prepare for, Take and Use a Deposition" by Daniel P...

"Using A Checklist for Witness Preparation"

Posted on April 14, 2009
James Publishing Company's website includes excerpts of certain of its books.  Here is an excerpt from Section 433 of  "How to Prepare for, Take and Use a Deposition" by Daniel P. Dain. §433   Using a Checklist for Witness Preparation Some lawyers prefer to go through an extensive checklist of points for discussion with their witness...

David Mills' Courtoon Caption Contest Winner

Posted on April 13, 2009
David Mills, lawyer and cartoonist,  held a contest to determine the best caption for this cartoon.  The winning caption appears below.   I submitted several entries, including "'Yes, I made $4M last year testifying for Ford, but that does not influence my professional judgment," and "demonstrative evidence is essential when proving loss of consortium for the single male...

Never Events

Posted on April 10, 2009
Here are the 28 medical events that the National Quality Forum says should never occur: Surgical Events Surgery performed on the wrong body part Surgery performed on the wrong patient Wrong surgical procedure on a patient Retention of a foreign object in a patient after surgery or other procedure Intraoperative or immediately post-operative death in a normal healthy patient Product or Device Events Patient death or serious disability associated with the use of contaminated drugs, devices, or biologics provided by the healthcare facility Patient death or serious disability associated with the use or function of a device in patient care in which the device is used or functions other than as intended Patient death or serious disability associated with intravascular air embolism that occurs while being cared for in a healthcare facility Patient Protection Events Infant discharged to the wrong person Patient death or serious disability associated with patient disappearance for more than four hours Patient suicide, or attempted suicide resulting in serious disability, while being cared for in a healthcare facility Care Management Events Patient death or serious disability associated with a medication error Patient death or serious disability associated with a hemolytic reaction due to the administration of ABO-incompatible blood or blood products (transfusion of the wrong blood type) Maternal death or serious disability associated with labor or delivery on a low-risk pregnancy while being cared for in a healthcare facility Patient death or serious disability associated with hypoglycemia, the onset of which occurs while the patient is being cared for in a healthcare facility Death or serious disability (kernicterus) associated with failure to identify and treat jaundice in newborns Stage 3 or 4 pressure ulcers acquired after admission to a healthcare facility Patient death or serious disability due to spinal manipulative therapy Environmental Events Patient death or serious disability associated with an electric shock while being cared for in a healthcare facility Any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances Patient death or serious disability associated with a burn incurred from any source while being cared for in a healthcare facility Patient death associated with a fall while being cared for in a healthcare facility Patient death or serious disability associated with the use of restraints or bedrails while being cared for in a healthcare facility Criminal Events Any instance of care ordered by or provided by someone impersonating a physician, nurse, pharmacist, or other licensed healthcare provider Abduction of a patient of any age Sexual assault on a patient within or on the grounds of a healthcare facility Death or significant injury of a patient or staff member resulting from a physical assault (i...

Trial Lawyer's Prayer

Posted on April 09, 2009
I didn't write the Trial Lawyer's Prayer, but I wish I had. Read more of Evan Schaeffer's stuff by clicking here. Trial Lawyer's Prayer, by Evan Schaeffer Dear Lord: Here I am, back in Church. It's been awhile, I freely admit, and I apologize for the long string of Sunday absences, but as you know, the demands of my busy practice often require me to work all weekend, Sundays included...

Is that Deposition Necessary?

Posted on April 08, 2009
I brought a couple posts from the Lean and Mean Litigation Blog  to your attention back in December.  These posts discussed the need of formulating a discovery plan before taking depositions. Here is a related article titled "Mastering the Blind Cross-Examination" written by Mark A...

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