Day On Torts

More Proof that the Big Lie is a Big Lie: Medical Malpractice Payments Continue to Fall

John Day — Fri, 12 Mar 2010 04:05:28 -0600

The following comes to us from an article written by Chelsey Ledue, Associate Editor of Healthcare Finance News:

Fewer medical malpractice payments were made on behalf of doctors in 2009 than any year on record, according to the National Practitioner Data Bank.

This finding contradicts claims that medical malpractice litigation is to blame for rising healthcare costs and that changing the liability system to the detriment of patients will not curb costs.

The value of malpractice payments was also the lowest since 1999. Adjusted for inflation, payments were at their lowest since 1992, a Public Citizen analysis of the NPDB shows.

According to the analysis, healthcare spending rose 83 percent from 2000-09, while medical malpractice payments fell 8 percent (both figures are in unadjusted dollars.)

A total of 10,772 payments were made on behalf of doctors in 2009, totaling $3.49 billion. That figure equals 0.14 of 1 percent of the Centers for Medicare and Medicaid Services’ estimated $2.5 trillion in overall U.S. healthcare spending for 2009.

Last year was the fifth consecutive year that the number of payments has fallen and the sixth straight year in which the value of payments has fallen, according to the analysis. In contrast, U.S. healthcare costs have increased every year since 1965, the first year the data was recorded.

Studies have found that injuries and deaths caused by medical errors dwarf the number of actual medical malpractice payments. For example, the Institute of Medicine found in 1999 that 44,000 to 98,000 people die every year due to avoidable errors.

Proposals to set up alternative “health courts” that theoretically would compensate a greater percentage of patients in a less adversarial setting are misguided, according to Public Citizen, which said such a system would cost several times as much as the status quo if administered fairly. The only way to save money would be to impose draconian limits on compensation, according to Public Citizen.

“Litigation accounts for a miniscule fraction of health costs, small enough to be a rounding error,” said David Arkush, director of the Public Citizen’s Congress Watch division. “It is ridiculous that certain members of Congress continue to obsess about this greatly exaggerated problem. They should know better, and they should focus instead on fixing real problems like the crisis of preventable medical errors.”

SCOTUS Will Hear Vaccine Case

John Day — Thu, 11 Mar 2010 04:13:25 -0600

The United States Supreme Court has decided to hear Bruesewitz v. Wyeth, a case where the Bruesewitz family says there should be legal recourse beyond the administrative process set up by the National Childhood Vaccine Injury Act.

The minor plaintiff suffered seizures two hours after receiving her six-month DPT vaccine in 1992. The seizures caused permanent neurological damage. The Third Circuit Court of Appeals ruled against the Bruesewitz family.

The USSC docket number is 09-152. The issue is stated as follows:

Whether Section 22(b)(1) of the National Childhood Vaccine Injury Act of 1986 — which expressly preempts certain design defect claims against vaccine manufacturers “if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warning” — preempts all vaccine design defect claims, regardless whether the vaccine’s side effects were unavoidable.

Here is a copy of the cert petition. Here is the brief in opposition.

Helpful Checklist for Determining Whether A Person is an Independent Contractor or an Employee

John Day — Wed, 10 Mar 2010 04:41:11 -0600

I received an unsolicited (but not unwanted) email from the Baker Donelson law firm titled "20 Ways Your Independent Contractor Might Be an Employee." The purpose of the email was to warn recipients about ongoing IRS employment tax audits in general and the worker classification issue (are workers employees or independent contractors) in particular.

Well, I looked down the list of issues and it seemed like a pretty good checklist of areas of inquiry in a tort lawsuit to help establish that a so-called independent contractor was in fact an employee and thus the defendant should be vicariously liable for the negligent conduct of that worker. It appears that Baker Donelson may have got the 20-factor checklist from a government publication or from prior cases on the subject but that is a little unclear. That being said, a hat tip to Baker Donelson for sharing this information.

Here are what Baker Donelson calls the "two threshold questions."

Does the hiring company pay its regular employees to perform essentially the same duties as the subject worker who is treated as an independent contractor?
Has that worker previously been paid by the company as an employee to perform essentially the same task?

For a list of "twenty factors to determine whether the company hiring the worker actually has control over the worker" go to the jump.

1. Instructions. A worker who is required to comply with another person's instructions regarding when, where and how to perform the work is ordinarily an employee.

2. Training. Training a worker indicates that the company wants the services performed in a particular method or manner, which also indicates control.

3. Integration. Integration of the worker's services into the company's core business operations generally shows that the worker is subject to direction and control.

4. Services Rendered Personally. If the worker must personally perform services for the company, this will indicate control by the company. Alternatively, if the worker is free to engage others to perform the service for the company (i.e., subcontractors), a lack of control by the company is indicated.

5. Hiring, Supervising and Paying Assistants. Similar to #4 above, if the worker is unable to hire, supervise and pay assistants to perform services for the company, control by the company is indicated. However, a lack of control is indicated when the worker is able to hire his or her own assistants and pay them from the worker's own funds.

6. Continuing Relationship. A lengthy and continuing relationship between the worker and the company indicates that an employment relationship exists.

7. Set Hours of Work. If the worker works certain hours set by the company, employment status is indicated. If the company does not control the hours of the worker, independent contractor status is indicated.

8. Full Time Required. If the worker must devote substantially full time to the company's business, control is indicated.

9. Work Performed on Employer's Premises. If the work is performed on the company's premises, the company is considered to have control over the worker, especially if the work could be done elsewhere. Control is also indicated when the company has the right to compel the worker to travel a designated route, to canvass a territory within a certain time, or to work at specific places as required.

10. Order or Sequence Set. If a worker must perform services in the order or sequence as determined by the company, the worker is generally subject to an employer's control. However, if the worker chooses his or her own method for completing a job, a lack of control exists.

11. Oral or Written Reports. A requirement that a worker submit regular or written reports is an indicator of control.

12. Payment by Hour, Week, Month. Hourly, weekly or monthly payments generally point to an employment relationship. On the other hand, payments based on a contract or for completing a particular job or task will generally indicate an independent contractor relationship.

13. Payment of Business and/or Traveling Expenses. If the company ordinarily pays the worker's business and traveling expenses, the worker is ordinarily an employee.

14. Furnishing of Tools and Materials. If the company furnishes significant tools, materials and other equipment, an employment relationship is indicated.

15. Significant Investment. If the worker does not invest in his or her own facilities, control is indicated because the worker depends on the company for such facilities.

16. Realization of Profit or Loss. A worker who cannot realize a profit beyond an ordinary salary or suffer a loss is generally considered to be an employee.

17. Working for More Than One Firm at a Time. If the worker cannot perform services for more than one company at a time, the company generally controls the worker. However, a lack of control is indicated when the worker is able to perform services for multiple companies at the same time.

18. Making Service Available to General Public. If a worker is not free to advertise his or her services to the general public on a regular basis, control is indicated. Workers who advertise their services are generally considered independent contractors.

19. Right to Discharge. The right of the company to discharge a worker without breaching a contract indicates an employment relationship as control is exercised through the threat of dismissal.

20. Right to Terminate. If, at any time without incurring liability, the worker has the right to end his or her relationship with the company, an employment relationship is indicated.

"Tennessee Jury Verdict Reporter" Statistics - Part 1

John Day — Tue, 09 Mar 2010 18:21:02 -0600

Shannon Ragland of the Tennessee Jury Verdict Reporter has graciously agreed to permit me to share some of the information he has gathered concerning jury trials in Tennessee.

It is fair to say that Shannon has the most comprehensive collection of jury verdict information in the state. Indeed, in my mind it exceeds that offered by the annual reports published by the Administrative Office of the Courts. Why do I say this? First, Shannon gets paid to collect data and report it accurately. Second, the clerks report data to the AOC, and not every clerk is going to apply the same criteria when he or she completes the report. Thus, there is increased likelihood that data will not be consistently reported and this, of course, impacts the results.

This multi-part series will discuss some of the data contained in Shannon's 359-page report. You can buy the report yourself for $175.00. It is well worth the money. Click here to buy the report.

We begin with verdicts in the auto torts area. There were 130 jury verdicts in the auto negligence area in Tennessee, 93 of which were "won" by the plaintiff and 37 of which were won by the defense. Total damages awarded were $5.63 million, down 60% from a year earlier.

Jury trials in this area of law are dropping dramatically. IN 2005 there were 238 trials in auto negligence cases.

More interesting, however, is the distribution of the jury verdicts for the plaintiff. According to Shannon's analysis, in the last 5 years the top 10% of the cases took almost 80% of the total money awarded and about 40% of the successful plaintiffs (243 of 586) took awards of $10,000 or less. The total awards to this group were $1,207,373 - an average of less than $3000 per case.

Shannon's analysis: "If car wreck litigation is in fact a lottery in Tennessee, a notion sometimes being suggested by defense lawyers in jury trial or by others interested in civil jury verdict results, only a small number of plaintiffs are holding winning tickets."

Shannon goes on to breakdown verdicts by nine regions in the state for 2009. There is lots of interesting information in this data, the most shocking of which to me was that Hamilton County had only 3 auto negligence trials in 2009 with total damages awarded in the two successful cases of a mere $10,000.

Two last points. First, there were only seven verdicts over $100,000 in auto negligence cases in 2009. Seven. Unbelievable.

Second, I think Shannon would agree with me that the facts that the jury returned a verdict for 93 plaintiffs in auto negligence cases in 2009 does not truly mean that there were 93 "wins" by those plaintiffs. The statistics do not tell us how many plaintiffs recovered damages less than the amount of money offered before or during trial. ( A $45,000 verdict is not a win for a plaintiff who was offered $50,000.) Thus, it is reasonable to assume that there were plaintiffs in the "win" column who, for all intents and purposes, lost.

I will share some more of Shannon's work product in a couple days. Once again, click here to buy the report.

CA Court Says Witness Interviews Not Privileged Work Product

John Day — Tue, 09 Mar 2010 03:07:34 -0600

The March 8, 2010 edition of the Daily Recorder reports that a divided California appellate court has ruled that witness statements recorded or taken in writing by attorneys or their representatives aren't privileged work product and, therefore, are open to discovery. The dissenter ruled that the statements were qualified work product, which means that they are undiscoverable unless a court determines that denial of discovery would unduly prejudice the opposing party.

The case is Coito v. Superior Court (State of California) , 10 C.D.O.S. 2697 ( 5th Dis. Cal. Ct. App. March 4, 2010). Here is the opinion.

Here is a nice statement of the holding taken directly from the opinion:

We agree with petitioner‘s argument that witness statements are classic evidentiary material. They can be admitted at trial as prior inconsistent statements (Evid. Code, § 1235), prior consistent statements (id., § 1236), or past recollections recorded (id., § 1237). Yet, if the statements are not subject to discovery, the party denied access to them will have had no opportunity to prepare for their use. Moreover, a witness statement could contain information favorable to the party denied access, who otherwise could use the statement to refresh the witness‘s recollection, impeach the witness‘s testimony, or rehabilitate the witness after cross-examination. These impacts on the quest for truth simply are not justified by the policy of encouraging lawyers to prepare their cases for trial or the policy of protecting the diligent attorney from others who would take advantage of his or her industry. (§ 2018.020.)

―The purpose of the [work-product] doctrine is to prevent incompetent counsel from taking unfair advantage of his adversary‘s efforts in preparation for trial, not to suppress relevant testimony which happened to have been obtained by the opposition.‖ (Jasper Construction, Inc. v. Foothill Junior College Dist. (1979) 91 Cal.App.3d 1, 16.)

For those reasons, we choose to follow the weight of authority and hold that written and recorded witness statements, including not only those produced by the witness and turned over to counsel but also those taken by counsel, are not attorney work product.

Death of Howard Twiggs, Trial Lawyer

John Day — Sun, 07 Mar 2010 05:58:05 -0600

Former ATLA President Howard Twiggs has died. Funeral services are today. Howard has been a friend for over 25 years and was a leader in the plaintiff's trial bar and his community.

I first met Howard at a NCATL seminar in Chapel Hill, NC when I was still a law student. Later, we became re-acquainted at ATLA conventions and meetings around the country. About 12 years ago we had the pleasure of working on a case together, helping a North Carolina family that had a tragic accident on I-40 near Lebanon, TN. Thus, we had time to get to know one another in a long car rides and over dinner in my home, as opposed to simply running into each other at a reception at convention or two.

I say all of that to say this: Howard Twiggs was a very, very fine man and an extremely competent lawyer. He had a love for his fellow man, and felt duty-bound to help them, especially those who were not blessed with his intellect and his health. He loved his adopted state of North Carolina, and had that wonderful accent that always took me back 1978, when I left WI and jumped into life in the South.

I had the pleasure of seeing Howard five weeks ago in Maui. He was there with his daughters, still going to education sessions and trying to learn how to better serve his clients.

Howard, my friend, we will miss you.

To gain a better understanding about this wonderful man, read the obituary after the jump.

Howard Fabing Twiggs passed away unexpectedly Thursday morning. He was a lifelong resident of Raleigh but was born in Cincinnati, Ohio on October 27, 1932.

Howard received his undergraduate degree from Wake Forest University in 1954; and went on to get his law degree there in 1957. He was still actively practicing law as a partner in Twiggs, Beskind, Strickland & Rabenau in Raleigh when he died, having been a lawyer for more than 50 years. Over his practice, Howard diligently represented countless North Carolinians injured in accidents and accused of crimes.

His service to the law and to his clients has included working with many organizations and commissions. Howard served as a director of the Roscoe Pound Civil Justice Institute in Washington, D.C., for 20 years, and as its president for two years. He was a charter member of the North Carolina Chief Justice's Committee on Professionalism. For more than a decade, he was a member of the North Carolina Courts Commission.

Howard’s excellence as a trial lawyer led to his election to fellowship in the International Academy of Trial Lawyers; International Society of Barristers; and American Board of Trial Advocacy. Fellow lawyers chose him for listing in Best Lawyers in America and in North Carolina Super Lawyers since their first editions and he was selected as a Top 100 North Carolina Super Lawyer by the latter publication.

Howard was a frequent lecturer to lawyers around the United States on trial advocacy and professionalism topics. He also lectured and taught trial advocacy in five foreign countries: Canada, Mexico, England, Holland, and Australia.

He was elected and served as a Board Member and as President of the American Association for Justice (formerly The Association of Trial Lawyers of America), the national organization of lawyers representing injured persons. For his service to that organization, Howard received many awards including AAJ’s three highest awards: the Leonard Ring Champion of Justice Award; the Harry Philo Award for commitment to individual rights and leadership in the pursuit of justice; and the David Shrager President's Award for visionary leadership, support, and service to the cause of justice. He was only the second person in the history of the organization to receive all three of those awards.

Howard served for 34 years as board member of the North Carolina Advocates for Justice (formerly The North Carolina Academy of Trial Lawyers). He was also elected its President and also its delegate to the AAJ Board. For his service to NCAJ, his awards included the Walter Clark Award for Extraordinary Service to Justice; the Outstanding Legislator Award; and Election as President Emeritus.

Howard was President of the Wake County Bar Association and of the North Carolina Tenth Judicial Bar. Recently, Howard was honored by the Wake County Bar Association with the Joseph Branch Professionalism Award. Named for a former Chief Justice of the North Carolina Supreme Court known for his integrity and public service, the Award recognizes a lawyer who exemplifies professionalism in the practice of law.

Howard was elected and served in the North Carolina House of Representatives from 1966 to 1974, serving as Chairman of the House Judiciary Committee in 1973–74. In the General Assembly, his major accomplishments included improving protection for the disabled and injured citizens of North Carolina through passage of a major revision of the state Wrongful Death Act; extending the Statute of Repose; rewriting the laws relating to mental health; and removing all references to race from state laws in 1969. During his time as chair of the State Building Code Committee, the North Carolina Building Code was rewritten, making buildings, sidewalks, vehicular parking, and other areas accessible to the handicapped.

Howard's love for his alma mater, Wake Forest University, played an important role in his life. He served as the past president of the Wake Forest University Law Alumni Association and as past chairperson of the law school's Board of Visitors. His service to the University as a whole was recognized when he received the Wake Forest University Distinguished Alumni Award.

Howard received the War Horse Award from the Southern Trial Lawyers Association for leadership in the trial bar, teaching trial advocacy and excellence in the trial of cases for a period of over 30 years. From the National Crime Victim Bar Association he received the Frank Carrington Champion of Civil Justice Award. The Eastern North Carolina Chapter of the American Board of Trial Advocates gave him Champion of Justice Award.

From the Raleigh Junior Chamber of Commerce, Howard received its Distinguished Service Award as Young Man of the Year. The Carolina Mental Health Association bestowed on him its Lief Valland Award for outstanding service to North Carolina as a leader and as a legislator in the field of Mental Health.

He is survived by his wife of 40 years, Betty McBride Twiggs, and four daughters, Mary Catherine (Sissie) Twiggs and husband Vincent Valverde, Jennifer Twiggs and husband Ivi Bilich, Elizabeth Johnson, and Ashley Bryan Twiggs and husband Brandtly Jones. He had six grandchildren, Savannah Valverde Twiggs, Julian Valverde Twiggs, Lauren Valverde, Sebastian Valverde, Juliana Bilich Twiggs, Logan Bilich Twiggs, Jamie Johnson and Stone Johnson. Also one sister, Carolyn Twiggs Fox of Winston-Salem, niece Margaret Fox Miller and nephews, Spencer Fox and David Fox.
The family will receive friends at the home on Friday, March 5 from 6:00 until 8:00 p.m., and on Sunday, March 7 from 3:00 until 6:00 p.m. A memorial service will be held on Monday, March 8 at 3:00 p.m. at St. Michaels Episcopal Church in Raleigh.

Memorial gifts made be made to Pound Civil Justice Institute (Howard Twiggs Memorial Fund), 777 Sixth Street, N.W., Washington DC 20007, to the Capitol YMCA, or to the Wake County SPCA.

The Tort Reform Movement - Naked

John Day — Fri, 05 Mar 2010 04:35:26 -0600

I read Andrew Cohen's article in the Atlantic (Tort Reform is Anti-Democratic (And Ingeniously Marketed)) and thought I would summarize it for your convenience. Then I discovered that Philip Thomas had already done so, and quickly determined that he did a better job than I would have done.

Here is an excerpt of Philip's post on his blog, MS Litigation Review:

In order to sell tort reform, corporate America applies a bait and switch commonly referred to as a “straw man” argument. Barry and Soccio define the straw man attack as follows in their book Practical Logic 104:
The straw man fallacy is an argument that so alters a position that the result is easier to attack than the original and yet claims that it has provided grounds for attacking the original.

Corporate America claims that tort reform is the solution for frivolous lawsuits. But "frivolous lawsuits" is their straw man. They use frivolous lawsuits as their straw man because what they really desire is their offered solution: damages caps that reduce their liability for wrongdoing.

Online Accident Reports

John Day — Thu, 04 Mar 2010 03:09:21 -0600

Getting motor vehicle accident reports is a hassle, but is appears that it will be getting easier.

BuyCrash.com makes accident reports from Georgia, Indiana, and Kentucky available for purchase over the Internet. Accident reports from Tennessee will be available in the future.

Thanks to Chris Simon and the Atlanta Injury Attorney Blog for making me aware of this service.

Younger's 10 Commandments of Cross Examination

John Day — Wed, 03 Mar 2010 03:24:46 -0600

Some of you are a little young to remember Irving Younger, the great trial advocacy teacher. Professor Younger developed the "10 Commandments of Cross Examination" that were taught in trial advocacy programs across the country for many, many years.

Experienced trial lawyers would take issue with some of Younger's commandments, arguing that from time to time they should be ignored. I agree, but that does not mean that they do not have value.

Here is a copy for your reading pleasure.

Lawyer Speaks Out About Allstate Insurance Company

John Day — Tue, 02 Mar 2010 04:58:02 -0600

Trey Mills is angry at Allstate. He explains why on his South Carolina Injury Law Journal blog.

Tips for Managing Witnesses

John Day — Mon, 01 Mar 2010 03:50:20 -0600

Winning Trial Advocacy Tips is one of the best blogs for trial lawyers in the entire blogosphere. Elliott Wilcox repeatedly delivers useful, timely information of interest to those of us who try cases. I encourage you to add it to your regular reading list.

Today, I share with you his post of tips to keep your witnesses happy and gain their cooperation. He is, as usual, dead-on. Ignore his advice at your peril.

An excerpt:

1. Tell your witness EXACTLY where to go. I normally try cases in our downtown courthouse, and I’ve been to all of the outlying courthouses for miscellaneous hearings. But I’d never been to this courthouse before. The courthouse was located at the jail complex, and I didn’t know which building I was supposed to go to. I had to poke my way around a little bit before I was able to find the right building. Once I finally found the right building, I had no idea which floor I was supposed to go to, and I had no idea which of the two courtrooms I was needed in. Even when I found the right courtroom (which was behind bulletproof glass) I wasn’t sure if I was supposed to wait outside with everyone else or if I was expected to ask a guard to let me inside.

Even if you think your witness knows their way around the courthouse, don’t assume that they know where to go. Tell them not only where to go, but where they should park. If there is more than one building, tell them which one they’ll go to. Tell them how to navigate through the metal detectors. Once they’re inside the building, which floor do they need to find? Which room? Should they stay outside the courtroom, or should they walk inside? Remove all doubt from their heads — tell them exactly where to go.

Patient Rights and Health Care Reform

John Day — Thu, 25 Feb 2010 03:23:42 -0600

Will the President sacrifice the rights of patients injured by medical malpractice to get Republicans to sign-off on a health care bill?

Steven Olsen explains why the President should not in this article titled "Why Shouldn't Obama Throw Injured Patients Under the Bus to Get Heath Reform? Ask Steven Olsen."

Steven Olsen is a malpractice victim from California. Here is a letter written by the jury foreman after he learned that the jury's damage award was cut because of California's cap on damages.

We viewed video of Steven, age 2, shortly before the accident. This beautiful child talked and shrieked with laughter as any other child at play. Later, Steven was brought to the court and we watched as he groped, stumbled and felt his way long the front of the jury box. There was no chatter or happy laughter. Steven is doomed to a life of darkness, loneliness and pain.

He is blind, brain damaged and physically retarded. He will never play sports, work, or enjoy normal relationships with his peers. His will be a lifetime of treatment, therapy, prosthesis fitting and supervision around the clock...

Our medical-care system has failed Steven Olsen, through inattention or pressure to avoid costly but necessary tests. Our legislative system has failed Steven, bowing to lobbyists of the powerful American Medical Association (AMA) and the insurance industry, by the Legislature enacting an ill-conceived and wrongful law. Our judicial system has failed Steven, by acceding to this tilting of the scales of justice by the Legislature for the benefit of two special-interest groups....

I think the people of California place a higher value on life than this.

New Decision on Diversity Jurisdiction

John Day — Wed, 24 Feb 2010 03:14:10 -0600

What is the principle place of business for a corporation for purposes of determining whether a federal court has diversity jurisdiction under 42 U.S.C. Sec. 1332(c)(1)? Well, what you thought you knew is no longer the law.

The United States Supreme Court ruled yesterday that the phrase

"principal place of business' is best read asreferring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corporation’s “nerve center.” And in practice it should normally be the place where the corporation maintains its head-quarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center,” and not simply an office where the corpora-tion holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion).

The Court also explained that

The burden of persuasion for establishing diversity jurisdiction, of course, remains on the party asserting it. Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375, 377 (1994); McNutt v. General Motors Acceptance Corp., 298 U. S. 178, 189 (1936); see also 13E Wright & Miller §3602.1, at 119. When challenged on allegations ofjurisdictional facts, the parties must support their allega-tions by competent proof. McNutt, supra, at 189; 15 Moore’s §102.14, at 102–32 to 102–32.1. And when faced with such a challenge, we reject suggestions such as,for example, the one made by petitioner that the mere filing of a form like the Securities and Exchange Commission’s Form 10–K listing a corporation’s “principal execu-tive offices” would, without more, be sufficient proof toestablish a corporation’s “nerve center.” See, e.g., SEC Form 10–K, online at http://www.sec.gov/about/forms/ form10-k.pdf. (as visited Feb. 19, 2010, and available in Clerk of Court’s case file). Cf. Dimmitt & Owens Finan-cial, Inc. v. United States, 787 F. 2d 1186, 1190–1192 (CA71986) (distinguishing “principal executive office” in the taxlien context, see 26 U. S. C. §6323(f)(2), from “principal place of business” under 28 U. S. C. §1332(c)). Such possibilities would readily permit jurisdictional manipulation,thereby subverting a major reason for the insertion of the 'principal place of business” language in the diversity statute.' If the record reveals attempts at jurisdictional manipulation—for example, that the alleged 'nerve center' is nothing morethan a mail drop box, a bare office with a computer, or the location ofan annual executive retreat—the courts should instead take as the 'nerve center' the place of actual direction, control, and coordination, in the absence of such manipulation.

You can read the opinion in Hertz v. Friend, No. 08-1107 (USSC 2/23/10) here.

Hospital Acquired Infections in the News

John Day — Tue, 23 Feb 2010 15:22:31 -0600

Two common conditions caused by hospital-acquired infections (HAIs) killed 48,000 people and ramped up health care costs by $8.1 billion in 2006 alone, according to a study released yesterday in the Archives of Internal Medicine.

Here is an excerpt from a summary of the study as reported at www.extendingthecure.com:

The researchers looked at infections that developed after hospitalization. They zeroed in on infections that are often preventable, like a serious bloodstream infection that occurs because of a lapse in sterile technique during surgery, and discovered that the cost of such infections can be quite high: For example, people who developed sepsis after surgery stayed in the hospital 11 days longer and the infections cost an extra $33,000 to treat per person.

Even worse, the team found that nearly 20 percent of people who developed sepsis after surgery died as a result of the infection. “That’s the tragedy of such cases,” said Anup Malani, a study co-author, investigator at Extending the Cure, and professor at the University of Chicago. “In some cases, relatively healthy people check into the hospital for routine surgery. They develop sepsis because of a lapse in infection control—and they can die.”

The summary goes on to say as follows:

In 2002, the Centers for Disease Control and Prevention estimated that all healthcare-associated infections were associated with 99,000 deaths per year. While the Extending the Cure study looked at only two of the most common and serious conditions caused by these infections, it also calculated deaths actually caused by, rather than just associated with, infections patients get in the hospital.

Based on their research, study authors were able to estimate the annual number of deaths and health care costs due to sepsis and pneumonia that is actually preventable.

“The nation urgently needs a comprehensive approach to reduce the risk posed by these deadly infections," he added. “Improving infection control is a clear way to both improve patient outcomes and lower health care costs.”

You can purchase the Archives of Internal Medicine article here.

Secret Settlements Seminar

John Day — Tue, 23 Feb 2010 03:21:29 -0600

The American Association for Justice is hosting a teleseminar on March 16, 2010 on the ethics of secrets settlements. Get more information here.

Tennessee Personal Injury Client Advice

John Day — Mon, 22 Feb 2010 03:12:46 -0600

The Springfield Injury Law Blog has given us a great post titled "8 Ways to Help Your Personal Injury Lawyer Help Your Case." Obviously, the post informs personal injury clients how they can help their lawyer obtain a better result in their case.

It is so good I am going to reprint it here:

1. Give your lawyer the whole story

The conversations you have with your personal injury lawyer are confidential and protected by attorney-client privilege so you can tell the truth without fear of others finding out. Your lawyer must keep what you say in strict confidence. Don't omit details about the events in an accident just because they may be embarrassing or you think make you look like you did something wrong. A good injury attorney will take all the facts of your case and know how to present less flattering elements in the best possible light and keep the impact to a minimum. If your lawyer first hears about an important detail that you omitted from the lawyer on the other side, it can have devastating effects on your personal injury case. Caught unprepared, he/she is at a disadvantage in keeping potentially unfavorable facts from hurting your case and it can make it impossible to disprove negative accusations if there is not time to investigate. Be sure to tell your lawyer everything and answer all questions truthfully.

2. Go to doctor appointments and follow doctor recommendations

Since you hired a personal injury lawyer, you must have an injury. Therefore, getting well should be your first priority. You can't do that if you aren't going to the doctor or aren't following your doctor's recommendations for treatment or therapy. If you miss your doctor appointments, you are telling the other side that you must not be hurt and therefore, don't need any compensation for your injuries or medical bills.

3. Don't talk about your case with anyone but your lawyer

Don't tell your friends, family or coworkers about your personal injury lawsuit. Insurance companies will try and manipulate things you say and use them against you to reduce the compensation paid. This includes not mentioning your case on your blog, Facebook, MySpace or Twitter. See #4 below.

4. Put a hold on Facebook and Twitter

What you say in a post, tweet or status update can reveal a lot of about your activities and state of mind. If you are claiming serious injuries, but tweet about an upcoming deep sea fishing trip or post photos of you learning to snowboard, you can be sure an insurance company will find them and use them against you. Insurance companies are not above sending private investigators to physically follow those claiming injuries and following someone in cyberspace is just as easy and effective. Don't rely on privacy settings of social media applications to protect you. It is better to avoid making any updates until after your case has closed. Learn more about social networking and personal injury cases.

5. Supply all requested documents on time

You will need to fill out a variety of forms and provide insurance and medical documents periodically to your personal injury lawyer. Return any forms fully completed and provide documents in a timely manner to keep your case progressing and help your lawyer meet any filing deadlines. The legal process will naturally take long enough, see #6 below. Don't add to that by taking extra time to provide requested information after your accident.

6. Be patient

After a car accident, collecting necessary information such as police reports, information from witnesses, and paperwork from doctors takes time. Additionally, when injuries are involved there must be a confirmation and stabilization of medical conditions so time must pass while you receive medical tests and start to heal. Naturally, the insurance company will drag its feet before making any payments. Do not plan on getting a check in a week. If a personal injury lawyer tries to quickly settle your case you could lose out on all the compensation you may be entitled to receive.

7. Ask questions

If you don't understand something about your personal injury case, ask your lawyer to explain it. You should be aware of status of your case and what to expect along the way. This is YOUR CASE. The more you understand, the better you can participate and help your lawyer and your case.

8. Listen to your lawyer

You chose an experienced personal injury attorney because he/she can use the law to help you maximize the compensation you can receive for your injuries, lost wages and other pain and suffering after your car accident. What a lawyer may ask you to do (or not do) or the information you are requested to provide is based on their experience and knowledge of the law. For that reason, you should listen to your lawyer and cooperate with requests in order for you to secure the best possible outcome after your accident.

Federal Rules of Evidence PDF

John Day — Thu, 18 Feb 2010 04:19:40 -0600

The Federal Evidence Review has shared a PDF of the current federal rules of evidence. Only 40 pages in length (20 pages if you print on the front and the back of the page) this PDF is a handy addition to your trial notebook for cases in federal court.

2009 Medical Malpractice Claims Reports Due March 1, 2010

John Day — Mon, 15 Feb 2010 11:12:06 -0600

The Tennessee Department of Commerce and Insurance has released the forms for reporting on medical malpractice claims for the 2009 calendar year.

The reports are due March 1, 2010.

Here are the instructions for filling out forms as a representative of the claimant. Here is the link to the reporting form.

Failure to submit all of the required information on or before the March 1, 2010 deadline will subject a reporting attorney to a penalty of $100 per day.

Product Manufacturer Cannot Use Release Against Consumer

John Day — Mon, 15 Feb 2010 05:16:01 -0600

This is an interesting decision out of Colorado.

Executive Tans operated an upright tanning booth manufactured by Sun Ergoline. Before using the booth, Savannah Boles signed a release form provided by Executive Tans that said as follows: “I have read the instructions for proper use of the tanning facilities and do so at my own risk and hereby release the owners, operators, franchiser, or manufacturers, from any damage or harm that I might incur due to use of the facilities.” After entering the booth, several of Boles’s fingers came in contact with an exhaust fan located at the top of the booth, partially amputating them.

The Colorado Supreme Court refused to allow the manufacturer of the tanning both to assert the release as a bar to the claim. The court rejected the traditional test for determining the enforceability of exculpatory agreements (similar but not identical to the test we use in Tennessee) and court explained that

strict products liability evolved to accommodate, and is driven by, public policy considerations surrounding the relationship between manufacturers and consumers in general, rather than any particular transaction or contract for sale. In addition to the typical inaccessibility of information and inequality of bargaining power inherent in any disclaimer or ordinary consumer’s agreement to release a manufacturer, a claim for strict products liability is also premised on a number of public policy considerations that would be flatly thwarted by legitimizing such disclaimers or exculpatory agreements. Not least among these is the deliberate provision of economic incentives for manufacturers to improve product safety and take advantage of their unique 'position to spread the risk of loss among all who use the product.' [Citations omitted.]

Citing both the Restatement (Second) of Torts and the Third Restatement of Torts, the court held that "that an agreement releasing a manufacturer from strict products liability for personal injury, in exchange for nothing more than an individual consumer’s right to have or use the product, necessarily violates the public policy of this jurisdiction and is void."

The case is Boles v. Sun Erogline, Inc., Case No. 08SC970 (Colo. S. Ct. Feb. 8, 2010).

How Much Do ER Patients Pay to Protect Themselves from Malpractice of ER Doctors? You Won't Believe It.

John Day — Fri, 12 Feb 2010 03:49:54 -0600

Team Health Holdings, Inc. is a physician-founded, physician-led outsourced healthcare professionals staffing organization. Based in Knoxville, TN, it purports to be "the largest providers of [Emergency Department] staffing and management services in the United States, based upon patient visits and revenue."

The company serves "approximately 550 hospital clients and their affiliated clinics in 46 states with a team of approximately 6,100 healthcare professionals, including physicians, physician assistants and nurse practitioners." It. provided care to 7.6 million patients in emergency rooms alone for the calendar year ending December 31, 2008.

The outlook for this business looks good. Here is how Team Health describes the future demand for its services:

According to the American Hospital Association, ED visits increased at a compound annual growth rate of approximately 3%, from 92.8 million in 1997 to 120.8 million in 2007, and the average number of patient visits per ED grew at a compound annual growth rate of approximately 4%, from approximately 19,300 to approximately 27,000 over the same period. As the baby boomers and older generations above 55 years represent a larger percentage of the population (approximately 23% in 2008 and projected to be approximately 29% in 2020, according to the U.S. Census Bureau), the demand for ED services is likely to increase.

Interesting stuff, isn't it? But why am I reporting it here?

Because the company also tells us how much money it pays for professional liability coverage. How much do they pay? Well, in 2008, the company paid $15, 247,000 in professional liability costs. How much was its revenue that year? $1.331 Billion (revenue does not include billings deemed noncollectable).. Note: General and administrative costs were 10 times higher than professional liability costs. The company spent three times more money on interest than it did on professional liability insurance.

What was the percentage of professional liability costs in relation to revenue? 1.2%

What was the average collected revenue for each of the 7.6 million patient the company treated in 2008? $175.

On average, what amount did each of the 7.6 million patients pay to protect themselves from malpractice of a Team Health employee? $2.10.

These are the numbers that gave rise to the "crisis" in Tennessee which has compelled the state's emergency rooms and their doctors to raise the burden of proof in medical malpractice cases involving EDs. And this is why these same special interest groups support of cap on damages for pain, suffering, disfigurement, loss of enjoyment of life in personal injury cases, loss of consortium in death cases, and punitive damages in all cases to a total of $1,000,000.

If this happens, what will happen to the cost a patient bears to protect himself or herself from malpractice in an ED? Will it drop 10% (21 cents)? Will it drop 15% (31 cents)? Will it drop enough to pay for a newspaper that you can read while your child is waiting to be seen by a doctor in the emergency room? Sorry, the insurance industry makes no promises that that emergency room visit costs will drop if patient rights are limited and, the providers make no promises that charges will decrease if insurance costs decrease.

If facts made a difference to the Legislature, the debate would be over.

For the record, I am not making these numbers up. They were included in a Prospectus submitted to the Securities and Exchange Commission in December 2009. The link may not work. If it is broken go to www.sec.gov and search for filings for Team Health Holdings, Inc. Thanks to T.Robert Hill of Jackson, TN for letting me know about the filing.

By the way, if the company really wanted to save consumers money, it would live within its means and stop paying so much money in interest.. Each patient paid $6.30 per visit for the company's interest. Get rid of the interest and each patient saves $6.30, three times more money than they would save if the company paid no professional liability costs whatsoever.