Nashville Personal Injury Lawyer

Study Shows Doctors Often Distort the Truth with Patients

John Lowery — Fri, 10 Feb 2012 23:08:34 GMT

A study discussed in Friday's Tennessean shows that many physicians withhold the truth from patients to avoid being held accountable through a lawsuit:

"More than half admitted describing someone’s prognosis in a way they knew was too rosy. Nearly 20 percent said they hadn’t fully disclosed a medical mistake for fear of being sued. And 1 in 10 of those surveyed said they’d told a patient something that wasn’t true in the past year."

As a trial lawyer, I'm not surprised that this many doctors are cutting corners with the truth and/or outright lying to their patients about deadly mistakes. I would wager that, among the 5% of doctors who commit the most malpractice, the percentage is much higher.

Originally posted at The Legal Examiner by John Lowery

Aunt Jemima Pancake Recall: Too Close for Comfort

John Lowery — Sun, 29 Jan 2012 21:36:05 GMT

I've never been a fan of the shopping cards some stores make you sign up for to get their discounts. But the nearest grocery store to my house is Kroger and I begrudgingly signed up and let them track my purchases. I admit the coupons targeted to one's shopping patterns are nice but the whole concept was a little too "Big Brother is Watching" for my comfort level. Until tonight. I got a phone message on Sunday night stating that certain varieties of frozen pancakes have been recalled and to not consume them. As some of you may know, I'm a single dad with a daughter who LOVES pancakes. I can't cook anything without either making way too much or dirtying every dish in the kitchen, so the frozen pancakes are an easy option that I let my kiddo have once every week or so. The shopping history traced by my registration with Kroger enabled them to alert me of this recall almost as soon as it was announced. It was a bit scary since I just opened a box of those very pancakes this morning, but thankfully the recall was based upon cross contamination with soy that could cause problems for those with soy allergies, which we don't have at our house.

If you have purchased any variety of Aunt Jemima Frozen Pancakes, click here for more information. I'm reconsidering my distaste for discount programs that track purchase histories and giving two thumbs up to Kroger for the quick safety alert that could save lives.

Originally posted at The Legal Examiner by John Lowery

Birds of a Feather: Why Tennessee Doctors Stick Together in Malpractice Cases

John Lowery — Sun, 22 Jan 2012 23:24:25 GMT

In medical malpractice litigation we often see a phenomenon where doctors stick together and seem to defy logic in the way they swear under oath that sometimes deadly mistakes aren’t malpractice. Surely some of these testifying physicians are acting out of sincerity and part of this “blindness” to a colleague’s medical errors may be attributed to the “old boys club”, but a skeptic might conclude there are other motivations at play. In Tennessee, the overwhelming majority of doctors purchase malpractice insurance through an entity called State Volunteer Mutual Insurance Cooperative (SVMIC). SVMIC is a cooperative that is owned by its members, who are generally doctors practicing in Tennessee.* In 1975, a group of doctors formed SVMIC and the venture has proven to be wildly successful. In less than 40 years of existence, SVMIC has achieved a surplus, or net worth of over $364 million (as of 2010). Part of these enormous profits ($71.9 million in 2009) are funneled back to members in the form of dividends and premium reductions. On those rare occasions when a malpractice case goes to trial (just 5.2% of all negligence cases filed in Tennessee make it to trial) there is a clear financial incentive for doctors to testify on each other's behalf. As trial lawyers, the rules of evidence enforced by the courts forbid us from mentioning anything about insurance during a trial, so most jurors have no idea that rendering a judgment in favor of a malpractice victim simply means that an insurance fund worth hundreds of millions of dollars will, if the appeals courts don't overturn the verdict, have to write a check that will not in any way, form or fashion affect anyone's access to medical care or cause their local physician to go out of business.

*SVMIC has expanded, over the last few years, into the neighboring states of Alabama, Arkansas, Georgia, Mississippi, Kentucky and Virginia but does not yet dominate those markets as it does the Tennessee insurance market for doctors.

Originally posted at The Legal Examiner by John Lowery

Big Trucks in Fog or on Ice: Federal Safety Regulations Say "Park It. Don't Drive It."

John Lowery — Tue, 20 Dec 2011 05:56:10 GMT

Recently in Nashville heavy fog and icy road conditions set the stage for a 50 car pile up during the morning work commute. With the onset of winter, it seemed prudent to revisit the topic of a blog last February: interstate trucking regulations prevent the operation of a commercial vehicle whenever hazardous conditions create a scenario causing a hazard to passengers (and other motorists). The applicable trucking regulation is 49 CFR §392.14, which states the following:

Hazardous conditions; Extreme Caution

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.

Several years ago I was involved in litigation surrounding a truck crash that was blamed on heavy fog when a passenger vehicle collided with a white truck attempting to execute a turn across traffic. Due to the fog, the truck was essentially invisible to approaching motorists. The highway patrol and police simply blamed the wreck on the fog, but an analysis of the trucking regulations in light of the foggy conditions revealed that legally, the truck should not have been on the road in those conditions. If you see a big truck on the highway in icy or foggy conditions that create a hazard, don’t hesitate to alert authorities. Making that call could save someone’s life. If you or a loved one have been injured by the negligent operation of a big truck, contact a qualified attorney to help you and your loved ones hold the trucking company accountable.

Originally posted at The Legal Examiner by John Lowery

The Acts Before: What the jury doesn't know in an injury trial

John Lowery — Mon, 19 Dec 2011 04:08:19 GMT

The following is cross-posted at JohnLoweryLaw.com:

I’ve never served on a jury although I wish I could. To those called to serve as jurors in a trial it must seem like they’ve been dropped via parachute into a strange land with arcane language, judge worship and the only certainties being delay and boredom. If all the world is a stage then a civil trial is a five act play where jurors double as actors entering just before the epilogue and playwrights tasked with authoring the ending without really knowing what transpired in the several acts before. Rules of evidence and decorum prevent lawyers (and judges) from telling jurors certain things they wish jurors could know about the case and the people involved. Lawyers and litigants aren’t even allowed to engage a juror in conversation for fear of tainting the outcome, so we try to avoid contact in courthouse hallways, parking lots or restrooms and silently pray that jurors don’t take our avoidance as a slight that affects their perception of our client’s case. Many other facts big and small would be shared with jurors if lawyers were allowed to tell the entire story. We want jurors to have all their curiosities satisfied so they can focus on the ultimate issue, which is how to best fix the wrong that has been done in the case before them. For example, in an injury case the defense lawyer tells you he represents the defendant when in fact he has been hired by the defendant’s insurance company. In a simple car crash the defense lawyer often admits that his client caused the wreck as the trial starts in order to seem reasonable to the jury even though the insurance company paying his bill has refused to accept responsibility and has denied, delayed and litigated the claim for years in hopes of avoiding judgment day. We aren’t allowed to tell jurors whether or not a client’s medical bills have been paid by private health insurance or Medicare or that, if those bills have been paid by some entity, that entity has to be reimbursed out of the verdict. If Medicare or (in our state) TennCare have paid the bills and no sufficient verdict is obtained, the taxpayer ends up footing the bill for the defendant’s negligence instead of the responsible party being required to reimburse the government. In a medical malpractice case, we aren’t allowed to tell jurors that we often have to go out of state to find a testifying expert because the vast majority of doctors in Tennessee have banded together to form a cooperative that (1) provides insurance for all its members and (2) pays dividends to its members when it doesn’t have to pay malpractice verdicts to victims of medical negligence. Because of this financial incentive, local doctors stick together and blackball those few doctors that follow their conscience and speak out against medical negligence. The same is true in other states. Also, because the defense is funded by an insurance company with hundreds of millions of dollars at its disposal, they typically bring twice as many “experts” to trial as do the plaintiffs, whose experts are typically being paid out of limited funds advanced from the lawyer’s own pocket in hopes of being reimbursed if victory is attained. Jurors typically are unaware that most lawyers employed by insurance companies to represent defendants are paid by the hour and have a vested financial interest in clogging the system and dragging things out for years while most personal injury lawyers work for a contingency fee, which means they must invest, by the time a case gets to trial, hundreds of hours of time and many thousands of dollars in case expenses over a course of several years before getting the first penny of compensation, which will only come as a percentage of any verdict returned by the jury. Even the court reporter, who is not actually employed by the court in civil cases, is paid out of the lawyer’s pocket on one side and by the insurance company on the other when the bill is split between the parties. Court reporter fees alone typically run into the thousands of dollars by the time a case gets to trial and when a doctor or other expert testifies, he gets paid in advance for his time, also out of the lawyer’s pocket on one side and from the insurance company on the other.

We aren’t allowed to tell a jury that the impact of their decision in the case before them resonates far past the courtroom walls and sends a message to insurance companies and defendants about how they should conduct future business. A substantial verdict means they will be more likely to reasonably settle future claims and more likely to take precautions and try to prevent repeat behaviors. Failure to provide a reasonable verdict in a case of negligence results in at best an extension of the status quo and, at worst, a callous disregard for notions of accountability leading to even greater wrongs and more damages to future victims.

It really doesn’t seem fair that, in the multi-act drama that is civil litigation, jurors are given such extreme and ultimate responsibility and so few facts to consider about the actions occuring before the jury enters the stage, but that is our system and in spite of its flaws, remains the best ever put in practice for resolving disputes and attempting to right wrongs.

Originally posted at The Legal Examiner by John Lowery

Joe Paterno's Firing Is Just The First Step

John Lowery — Wed, 09 Nov 2011 22:54:35 GMT

What I consider to be the most important case of my career so far involved the sexual molestation of children by a trusted counselor. I represented several victims who had been abused by a predator who somehow wasn't properly screened by an employer running a camp with a state contract to provide youth services. It could have all been prevented with either a cheap background check or a phone call to verify his references, which were fabricated. At State College in Pennsylvania, the final act of an equally preventable tragedy has played out on a public stage after indictments for child molestation and perjury have implicated a trusted assistant coach and destroyed the public perception of a football legend. Jerry Sandusky used his position as assistant coach to the legendary Joe Paterno to gain access to a growing list of victims who were coerced, molested and forcibly raped while parents and guardians trusted Sandusky, and Paterno by extension, with their children. It seems clear that Paterno and other Penn State athletic department personnel knew or should have known what was happening but did nothing to protect the children Sandusky was raping. There is no possible excuse for looking the other way.

The public debate has centered on whether Paterno should resign or be fired. Paterno and the other enablers at Penn State apparently did not technically break the law with their enabling of Sandusky, but they shattered the moral covenant between parents and the coaches to whom they entrust their children. There should be litigation and there should be consequences. Raping someone causes more than temporary physical pain. It causes long term psychological pain and therapy is expensive. At a minimum Penn State should be required to pay for all past and future therapy, but that does nothing except help them cope. Our civil justice system cannot turn back the clock and truly undo the wrongs, but it can financially punish wrongdoers and help provide both security going forward and a financial disincentive for other enablers tempted to look the other way when prevented with a moral decision.

Yes, Paterno should be fired. But that does nothing to help those boys his assistant coach molested and raped. There must be more. Much, much more.

Originally posted at The Legal Examiner by John Lowery

Halloween Safety: Keeping Our Kids Out of Harm's Way

John Lowery — Tue, 25 Oct 2011 19:32:40 GMT

It's Halloween week and soon our streets and sidewalks will be filled with costumed youngsters on a quest for treats. I spent parts of the last weekend crafting a spooky (not really) ghost circle for the front yard and helping my 8 yr. old daughter transform our porch into a den of spider webs, pumpkins, hay bales and one screeching bat. There are faux-bloody footsteps and a screaming doormat too. The love we have for our kids will make us do lots of things for their pleasure, including allowing them to dress in sometimes ill fitting costumes and to knock on strange doors for candy handouts. Accidents involving pedestrians are four times more likely on Halloween than a typical night. The convergence of darkness, increased pedestrian traffic, vehicles driving through unfamiliar neighborhoods without street lights or crosswalks and visibility hindering masks and hoods create a bit of a perfect storm for unsafe encounters between kids and cars. The Consumer Product Safety Commission has issued a Halloween Safety Alert including some common sense guidelines to follow such as:

Treats: Warn children not to eat any treats before an adult has carefully examined them for evidence of tampering.

Flame Resistant Costumes: When purchasing a costume, masks, beards, and wigs, look for the label Flame Resistant. Although this label does not mean these items won't catch fire, it does indicate the items will resist burning and should extinguish quickly once removed from the ignition source. To minimize the risk of contact with candles or other sources of ignition, avoid costumes made with flimsy materials and outfits with big, baggy sleeves or billowing skirts.

Costume Designs: Purchase or make costumes that are light and bright enough to be clearly visible to motorists.

For greater visibility during dusk and darkness, decorate or trim costumes with reflective tape that will glow in the beam of a car's headlights. Bags or sacks should also be light colored or decorated with reflective tape. Reflective tape is usually available in hardware, bicycle, and sporting goods stores.
To easily see and be seen, children should also carry flashlights.
Costumes should be short enough to prevent children from tripping and falling.
Children should wear well-fitting, sturdy shoes . Mother' s high heels are not a good idea for safe walking.
Hats and scarfs should be tied securely to prevent them from slipping over children's eyes.
Apply a natural mask of cosmetics rather than have a child wear a loose-fitting mask that might restrict breathing or obscure vision. If a mask is used, however, make sure it fits securely and has eyeholes large enough to allow full vision.
Swords, knives, and similar costume accessories should be of soft and flexible material.

Pedestrian Safety: Young children should always be accompanied by an adult or an older, responsible child. All children should WALK, not run from house to house and use the sidewalk if available, rather than walk in the street. Children should be cautioned against running out from between parked cars, or across lawns and yards where ornaments, furniture, or clotheslines present dangers.

Choosing Safe Houses: Children should go only to homes where the residents are known and have outside lights on as a sign of welcome.

Children should not enter homes or apartments unless they are accompanied by an adult.
People expecting trick-or-treaters should remove anything that could be an obstacle from lawns, steps and porches. Candlelit jack-o'-lanterns should be kept away from landings and doorsteps where costumes could brush against the flame. Indoor jack-o'-lanterns should be kept away from curtains, decorations, and other furnishings that could be ignited.

Follow these guidelines and have a great Halloween with more treats than tricks!

Originally posted at The Legal Examiner by John Lowery

Responsibilites of a Dog Owner:

John Lowery — Wed, 07 Sep 2011 11:59:41 GMT

There is an old saying that "every dog gets one bite." That saying came from the common law that held a pet owner was responsible for a dog's actions once it was known that the dog had a dangerous propensity, which was typically manifested in the first bite. Because of the huge casualty losses associated with dog bites (over $412 million in annual claims, discussed earlier here), the law has evolved in most states and pet owners have a greater responsiblity to prevent injury to others from animal attacks.

In Tennessee, the law changed in 2007 to hold dog owners responsible for injuries caused by their dogs regardless of whether the animal had a history of biting. The statute can be found at T.C.A. Sec. 44-8-413 and states in pertinent part:

"(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.

(2) Such a person may be held liable regardless of whether the dog has shown any dangerous propensities or whether the dog's owner knew or should have known of the dog's dangerous propensities."

If the victim is enticing the dog or is trespassing the dog owner may not be responsible for damages caused by a bite, but the burden has clearly shifted and the public policy is to encourage responsible pet ownership by requiring owners to restrain and care for their animals in a way that protects the public.

Originally posted at The Legal Examiner by John Lowery

Indiana Stage Collapse: Who's At Fault?(2)

John Lowery — Sun, 14 Aug 2011 00:41:25 GMT

Tragedy has struck the Indiana State Fair. Failure to adequately secure a concert stage rigging caused its collapse in the face of strong winds just before the country music duo Sugarland was to perform. (Photos here). According to press reports, four people died and at least two dozen were injured when the temporary structure came crashing down upon fans waiting to see the award winning group consisting of singer-songwriters Jennifer Nettles and Kristian Bush. Soon, the attention will turn to blame and legal liability. Ultimately the concert promoter, who typically provides the staging, will likely bear at least partial responsibility. Since the concert was outdoors, one can presume that winds, even high ones, were foreseeable and an appropriate outdoor stage rigging should have been in place prior to fans being allowed into the area. Some artists insist their own stage and lighting structure be used and if that is the case in this instance, Sugarland and/or their tour management company may be subject to liability.

This is an interesting (and common) legal situation that arises whenever negligence causes injury at a concert. Rest assured there will be much finger pointing between the Indiana State Fair, its concert promoters and individuals charged with securing and inspecting the premises to insure patron safety. Don't hesitate to contact a qualified lawyer if you have questions regarding concert injuries.

Originally posted at The Legal Examiner by John Lowery

Indiana Stage Collapse: Who's At Fault?

John Lowery — Sun, 14 Aug 2011 00:10:24 GMT

Tragedy has struck the Indiana State Fair. Failure to adequately secure a concert stage rigging caused its collapse in the face of strong winds just before the country music duo Sugarland was to perform. (Photos here). According to press reports, at least three people died and dozens more were injured when the temporary structure came crashing down upon fans waiting to see the award winning group consisting of singer-songwriters Jennifer Nettles and Kristian Bush. Soon, the attention will turn to blame and legal liability. Ultimately the concert promoter, who typically provides the staging, will bear at least partial responsibility. Since the concert was outdoors, one can presume that winds, even high ones, were foreseeable and an appropriate outdoor stage rigging should have been in place prior to fans being allowed into the area. Some artists insist their own stage and lighting structure be used and if that is the case in this instance, Sugarland and/or their tour management company may be subject to liability.

Originally posted at The Legal Examiner by John Lowery