Thursday, March 24, 2011
Non-Economic Damage Caps Disproportionately Affect Children, Elderly and People with Disabilities
Nashville— Five year old Amanda Travis went to a Nashville surgery center for a routine tonsillectomy. She never returned home. During her stay nurses administered the wrong dosage of Demerol and Valium as well as the wrong type and dosage of IV fluids—four times the normal amount. Due to vomiting of blood and mucus caused by the medication error and an understaffed facility, Amanda suffered a loss of oxygen, and soon after was pronounced brain dead.
The surgery center altered Amanda’s medical records three times in an attempt to cover up the medical errors which caused her death. It was also revealed that her nurse-anesthetist had a history of drug abuse and later died from a drug overdose during another patient’s surgery.
Non-economic damage awards compensate for real injuries and losses that are not easily measured by a dollar amount like lost wages or medical bills. Losses like paralysis, disfigurement, or a child’s loss of a mother are more significant than medical bills or lost wages. Caps on non-economic damages are unfair and discriminate against individuals who have little to no income, such as women or men who work inside the home, children, people with disabilities, and the elderly. Caps arbitrarily limit damages in cases where the injuries are the most severe and often where the conduct is the most reprehensible.
“Since a five year old obviously has no source of income, non-economic damages provided the only recourse the Travis family had to hold those who were responsible for the senseless death of their little girl accountable,” stated Phillip Miller, President, Tennessee Association for Justice. “The government should not be legislating the price of someone’s life when their death unnecessarily occurs as a result of blatant medical negligence. A Tennessee jury, after hearing all the facts, should be trusted with determining the amount a negligent defendant should be responsible for when wrongful conduct takes the life of a little girl.”
Caps on non-economic damages means the lives of children, seniors, women and low wage earners who do not work outside the home are worth less than the lives of a businessmen. Entire classes of low–income or non-earners would be branded as being worth less than their wealthier counterparts. Without non-economic damage awards to these vulnerable citizens, care decreases and wrong doers are not properly held accountable for their negligence.
“We trust our fellow Tennesseans in the ballot box,” said Miller. “We should continue to trust them in the jury box.”
BABY BOOMERS HAVE SOME REGRETS
A recent article by Rebecca D'Angelo in USA TODAY found that there are some common regrets among those born between 1946 and 1964.
This is what they wished they had known earlier:
•The stock market can go down as well as up.
•Your home equity line should not be used as a personal ATM.
•Youth doesn't last forever, but moving more, and eating less can delay old age. Comments like, "Why didn't I start with the sunscreen sooner so I wouldn't be so wrinkled?” as well as consternation over bulging waistlines, weight-related illness or ailments, and decreased physical capabilities are common.
•Our parents weren't blowing smoke when they said "Live within your means" and "Save for a rainy day." Now "they're afraid they'll outlive their money" because they didn't plan and save enough and certainly didn't predict the economy's meltdown.
In general their comments might be summarized as: “A little less ice cream and a lot more saving.”
If they live another 30 or 40 years, they will find longevity brings challenges. Some folks are realizing that 35 years of work cannot easily support 35 years of retirement.
It is not as if Baby Boomers did not have great role models. The generation that fought World War 2 has often been called the “Greatest Generation.” I am sure that the Depression era that preceded World War 2 did more good than harm to the character of Americans. It seems that the further we have gotten from those awful financial times, the more spoiled and selfish we have become.
Is there anyone now who will rise up and claim that Generation X, Generation Y or whatever we have now, will be the greatest generation? I certainly can’t imagine it.
But, the folks in the mid 1920’s never thought they would see a full out stock market crash in 1929, ushering in the worse Depression in American History. It is fairly well accepted that there were five causes or aggravations of the Great Depression.
1. Stock Market Crash of 1929: One of the major causes that led to the Great Depression.
2. Runs on Bank as Banks Failed: Over 9,000 banks failed and deposits were uninsured, so the money was just gone. You can recall a run on the banks in the classic Christmas movie, “It’s a Wonderful Life.”
3. Spending and Jobs Dried Up: Lack of money and fear kept many from purchasing items, which led to a reduction in the workforce. Foreclosures and repossessions followed. The unemployment rate rose above 25%, and that was likely not even accurate due to the conditions of that day. In many places it was much higher. My Granddaddy used to say, “There just wasn’t no money back then.”
4. American Economic Policy: Desperate for anything that would help, the government tried the Smoot-Hawley Tariff in 1930 to help protect American companies by charging high tariffs on imports. Trade stagnated further.
5. Dustbowl: The Mississippi Valley’s epic drought in 1930 caused many to have sell their farms. This was the topic of John Steinbeck's “The Grapes of Wrath.”
Today, we may be looking at similar conditions. Rising unemployment, stifled spending, a lack of production, foreclosures, less credit availability, rising food and gas prices and a staggering and growing national debt. If a natural disaster, a terrorism cyber attack or other unforeseen tragedy occurs, that may be all it takes to begin building a couple of truly great generations.
Mr. Peel may be available to address your civic club or church, please contact his office at www.PeelLawFirm.com
Monday, March 21, 2011
What’s in a Name?
I have taken to researching my family tree of late. This practice, known as “genealogy,” depends upon last names, sometimes called “surnames.” Sometimes they are unfortunate names. I have a relative named “Allavina Longbottom.” As quickly as she could, it appeared she changed her name to “Viney Bottom.” I am not sure it improved her situation much.
However, do you realize that surnames did not exist, in most cases, till about 1000 years ago! Before that, a less crowded society was mainly agrarian and the whole world consisted of only five miles from their home place. First names worked fine in most cases, and we see that surnames were still developing even in the Bible’s New Testament. “Jesus of Nazareth,” “Saul of Tarsus,” and “Mary of Magdalene” come to mind.
The middle ages, saw a change. A certain Peter might be called "Peter son of John" to distinguish him from his a fellow villager known as "Peter the goldsmith" and his friend "Peter of the hills." These names were not passed down as we do our surnames, as each person had their own.
Surnames’ origins can be divided into four main categories:
1. Place Names:
If they lived near a forest, hill, stream crossing (a “ford”), or cliff, this might be used to describe them, such as: FORREST, ATWOOD, GLEN, EASTMAN, BANKER (lives on hill side), WESTWOOD, DUNLOP (on muddy hill), BROOKS, CHURCHILL, CLIFF, HILLLMAN, BRITTON (from Britain), FORD, HARTSFORD, and WEATHERSFORD.
2. Parents’ Names:
Adding a prefix or suffix denoting either "son of" or "daughter of" made these common surnames. Names ending in "son", "Mac," "Fitz," "O," and "ap" are all derived from parents’ names such as: PETERSON, JOHNSON, FITZHUGH, O’MALLEY, and MACDONALD.
Only 5-10% of all surnames involve these oddities, like: WHITE, BLACK, STRONG, ARMSTRONG, GOODMAN, or even FALLOWELL or FALWELL (picking on a family member who once fell down a well.)
4. Occupational Names:
FLETCHER made arrows
SMITH was a gold, silver or iron smith
TURNER made table legs and chair legs on a lathe
TAYLOR, one that makes or repairs garments
COLLIER was a coal miner
MILLER was essential for grinding flour from grain
COOPER was a barrel maker
WAINWRIGHT was a wagon builder
BISHOP was in the employ of a Bishop
ALDERMAN, an official clerk of the court
SHOEMAKER was a cobbler
CARTER, a maker/driver of carts
OUTLAW, an outlaw or criminal
Whatever your name, God has gifted you to add to its meaning and heritage something only you can provide. Now go do it!
Mr. Peel is often asked to address church and school groups, clubs and meetings. To check availability, contact www.PeelLawFirm.com.
Friday, March 11, 2011
Tuesday, March 8, 2011
Civil Justice System Under Attack with False Propaganda
Groups Working to Increase Profits by Taking Away Tennesseans Constitutional Rights
Nashville— Tennessee’s civil justice system works by promoting responsible behavior and holding wrongdoers accountable for the harm they cause others. Groups have recently started using propaganda based on fictitious numbers to try and convince Tennesseans to give up their right to a trial by jury while giving big business and insurance companies more profits. Real facts, published by credible sources not one-sided “think tanks”, show Tennessee provides a great environment for business, large and small, while maintaining a system of civil justice that works for all of its citizens, rich and poor.
“Most of the information circulating recently regarding so-called “lawsuit abuse” has been spun to misrepresent the facts and mislead the public.” said TAJ President Phillip Miller. “The real facts, backed up by real sources, prove there is no “lawsuit” crisis in Tennessee. Blaming “the civil justice system” for job loss is just a smokescreen for the real intent of these groups – finding yet one more “bail-out” for business that everyone else will pay for.”
“The current civil justice system is the only system of checks and balances ordinary citizens can use to protect them and their rights. Unfortunately, people who are the biggest beneficiaries of the Constitution are working to take the Constitutional rights of others away so they can line their own pockets. That is a sad reality,” continued Miller.
Texas and Mississippi are often used as positive examples in the lawsuit propaganda. Facts illustrate “lawsuit reform” did not benefit either state. According to the U.S. Bureau of Labor Statistics, Mississippi’s unemployment rate is at an all time high, and they are also ranked 46th in the nation for business climate. Texas currently faces a $25 billion deficit, and according to the U.S. Census Bureau, contains the nation’s highest rate of uninsured citizens – 24.5 percent.
Prior to the passage of “lawsuit reform” in Texas, 152 counties did not have a single obstetrician, four years later, the same number of counties still do not have an obstetrician. Rural counties do not have OB/GYN or other specialty doctors because there are not enough people and patients, not because of fictitious lawsuit abuse. However in Tennessee, medical malpractice filings have dropped 44 percent over the last 3 years and the premiums paid by doctors have dropped 23 percent.
“There are those that think false propaganda and phony statements will fool Tennesseans and scare them enough to give up their constitutional rights.” said Miller. “We are the Tennessee Association for Justice, and our members are sworn to uphold the Constitution. For us, that’s not an empty promise. Tennesseans deserve better than this. They are trusted in the ballot box, they can be trusted in the jury box as well.”
Thursday, March 3, 2011
Jobs Creation Lawsuit Reform Act. Defines "health care provider" and "health care liability action". Requires that compensation for reasonable attorney's fees, in the event an employment contract exists between the claimant and claimant's attorney, be awarded to the claimant's attorney in a health care liability action in an amount to be determined by the court with consideration to established limitations. Broadly captioned. (S: Kelsey; H: Dennis)
Tort Reform- Medical Malpractice & Products Liability. Creates the Private Attorney Retention Sunshine Act which requires state agencies obtaining legal services to conduct an open bidding process for services, seek general assembly approval for contracts over $1,000,000, and prohibits legal fees exceeding $1,000 per hour. Creates the Asbestos Claims Priority Act which prohibits the filing of specific asbestosis related claims including nonmalignant conditions, asbestos related cancer, mesothelioma, and wrongful death unless specific and enumerated prima facie evidence is shown by medical report and filed within 120 days of filing the complaint. Restricts premises owner liability for asbestos exposure on their property, and limits jurisdiction of Tennessee courts over asbestos claims. Creates the Innocent Successor Asbestos-Related Liability Fairness Act. Sets a maximum amount of liability placed on corporations that have incurred or assumed asbestos related liability as a result of a merger or consolidation prior to January 1, 1972. Redefines and expands the definition and requirements of a products liability claim including what constitutes defective and unreasonably dangerous, the burden of proof, requisite knowledge of both the plaintiff and the defendant, actions or knowledge by the plaintiff that absolve a defendant of liability, seller versus manufacturer liability, and seller indemnity. Creates a rebuttable presumption that when a seller or manufacturer is in compliance with applicable federal law a product is not considered to be defective. Replaces the term "Medical malpractice" with "Health care liability action" which clarifies the cause of action as limited to any civil action against a health care provider alleging injury related to the provision or failure to provide health care. Requires, rather than permits, a plaintiff in a health care liability action to include a demand for a specific sum in their complaint and limits suits against attorneys for failure to collect the demanded amount. Requires that a plaintiff file a HIPPA- complaint medical authorization form with their petition in a health care liability action. Allows an award of $75,000 or more in a health care liability action be made in periodic payments per court order and by party request. Restricts the amount of fees an attorney can collect in a health care liability action when employment contract was based on a contingent fee from a maximum of thirty three and one third percent of the damage award to various percentages based on the recovery amount, starting with forty percent of the first $50,000. Requires, subject to judicial waiver, an expert witness to have been practicing in the same specialty as the defendant to testify to duty and breach in a health care liability action. Prohibits specific expressive conduct and offers to correct from being used as evidence of an admission of fault against health care providers in suits and other disciplinary proceedings concerning unexpected results from medical treatment. Limits the amount of bond or other security a health care provider must post when an appeal is pending to no more than $1,000,000. Clarifies that groups qualifying as medical or peer review committees that provide review for the professional conduct and competency of peers are not limited to those listed in the code. Places the maximum amount of noneconomic damages recoverable under a civil action at $250,000 per person, $500,000 per occurrence, or a specified number based on the amount of full-time employees the defendant employs and restricts the award of punitive damages for claims involving drugs and devices. Redefines economic damages to include provisions regarding expenses forgiven, discounted, or covered by private insurance. Requires the plaintiff to show an actual out- of -pocket loss to recover any damages and prove causation in a suit for unfair or deceptive acts or practices. (pp 40.) (S: Johnson J.; H: Sargent)
Changes to venue, damages, and certain civil actions. Specifies that venue in transitory civil actions may be in a county where a substantial act, omission, or event allegedly occurred, instead of where the action arose. Specifies that venue for corporations in transitory civil actions may be in a county where the principal place of business is located. Removes venue for corporations within counties where the corporation has an office or agency located. Requires that each joined plaintiff must independently establish venue. Requires courts to dismiss certain claims, instead of adjudicating under forum non conveniens. Requires courts to consider certain factors when considering to dismiss an action or transfer venue under forum non conveniens. Specifies that it is a Class A misdemeanor to prevent a juror from serving jury duty or to require a juror to use annual, vacation, or sick leave to respond to a summons. Alters joint and several liability on multiple tortfeasors. Caps noneconomic damages at 500,000 dollars in medical malpractice lawsuits. Alters product liability actions to require the plaintiff to prove certain additional evidence, allow the product seller to be indemnified by the manufacturer in certain situations. Caps noneconomic damages at 1,000,000 dollars on all civil actions. Prohibits property owners or occupants from liability regarding certain injuries to independent contractors occurring on the property. Specifies how and when punitive damages can be awarded in certain actions. Caps punitive damages in certain actions at an amount depending on the defendant's net worth. (15 pp.) (S: Johnson J.; H: Sargent)
Medical malpractice resulting from emergency care. Establishes new requirements for medical malpractice actions in an emergency department of a hospital. Establishes the claimant has the burden of proving, by a preponderance of the evidence, the gross negligence of the defendant. Requires the jury to be further instructed that injury alone does not raise a presumption of the defendant's gross negligence. (S: Johnson J.; H: Casada)
Jobs Creation Lawsuit Reform Act. Enacts the "Jobs Creation Lawsuit Reform Act." Caps the reasonable attorney fees in medical liability/malpractice actions to 40 percent of the first 50,000 dollars in damages recovered, 33 and one-third percent of the next $50,000 in damages recovered, 25 percent of the next $500,000 in damages recovered, and 15 percent of any amount by which the recovery exceeds $600,000. (Broadly captioned.) (S: Kelsey; H: Dennis)
Death or adverse condition would have occurred anyway. Prohibits recovery in a medical malpractice case for negligent diagnosis or treatment that decreases a patient's chances of avoiding death or any other adverse medical condition where the death or other adverse medical condition would have occurred even if the defendant had not been negligent. Broadly captioned. (S: Faulk; H: Dennis)
Punitive damages in civil actions. Declares as reasonable attorney's fees of up to one-third the amount of a punitive damages award. Requires that any award of punitive damages in a civil action be divided equally between the plaintiff and the state. Specifies that the state's portion may be applied as an offset against the amount of fees charged the state and that moneys beyond that will be deposited in a civil reparations trust fund, to provide grants to indigent civil litigation programs. Defers collection of punitive damages until all other judgments in a civil action are fully paid. Broadly captioned. (S: Faulk; H: Lundberg)
Tort reform regarding punitives, noneconomic losses. Caps noneconomic losses at 250,000 dollars against each defendant or maximum of 500,000 dollars for each occurrence. Specifies that noneconomic losses do not include medical expenses, lost past or future wages or earnings capacity, other loss of income, funeral and burial expenses, economic value of services performed, or other similar actual monetary losses. Caps punitive damages at the greater of 250,000 dollars or twice the amount of compensatory damages, if the defendant employs more than 100 full-time employees. Caps punitive damages at the lesser of 250,000 dollars or twice the amount of compensatory damages, if the defendant employs 100 full-time employees or less. Specifies that such caps on punitive damages does not apply to certain actions. Specifies that each monetary figure will be adjusted at three-year intervals according to the Consumer Price Index rate. Specifies that such punitive damages caps do not apply to certain tort actions involving intentional or knowing mental states and when the defendant has been convicted of a felony that has one of the intentional or knowing mental states. Prohibits punitive damages in cases where the injury was caused by a drug or device that was approved by the Federal Food, Drug, and Cosmetic Act or the Federal Public Health Service Act or was an over-the-counter drug marketed according to federal regulation and the drug meets other conditions. Places the burden on plaintiffs seeking to prove discrimination in employment or retaliatory discharge at various levels regarding certain issues throughout the trial process. (S: Kelsey; H: Dennis)
Senate Status: Referred to Senate Judiciary.
House Status: Introduced 2/17/2011
Tennessee Civil Justice Act of 2011. Enacts the "Tennessee Civil Justice Act of 2011." Specifies new venue requirements for any civil suit against a company to no longer include any county in which the business has an agency or office. Reduces from $75,000,000 to $25,000,000 the maximum bond a civil litigant must post to appeal a final order and stay execution of the order while on appeal. Establishes a normal rule requiring bond equal to 125% of the judgment, excludes punitive damages from the calculation of the bond amount and provides for an appeal without the risk of bankruptcy. Clarifies that a civil plaintiff may recover for economic losses incurred but not for charges subject to discounts or forgiveness of such health care charges that would be discounted under a health care plan. Limits non-economic damages to $750,000 per injured plaintiff outside of the health care liability action context and $750,000 per occurrence in the health care liability action context. Provides limits for punitive damages at two times compensatory damages or $500,000 whichever is greater. Prevents punitive damages in products liability actions when the defendant complied with state and federal regulations. Limits liability of a seller of a product except in certain specific circumstances. Enables interlocutory appeal of orders granting or denying class certification and automatic stays. (Part of Administration Package) (13 pp.) (S: Norris; H: McCormick)
Study - impact of tort reform on anticompetitive activities. Creates an advisory council to study the potential impact of tort reform measures on anticompetitive activities engaged in by hospitals, insurance companies and health care professionals and whether or not such impact, if any, would increase or decrease the overall cost of healthcare in this state. (S: Johnson J.; H: Sexton)
Successful parties in civil actions entitled to full costs. Clarifies that successful parties to a civil action are entitled to full costs unless the law states otherwise. Abolishes the use of judicial discretion to adjudge costs or apportion the cost between litigants in a civil action. (S: Johnson J.; H: Marsh)
Apportioning litigation costs in certain suits. Removes judicial discretion to apportion costs based on equity and permits recovery of certain litigation costs by the successful party to certain civil actions. Broadly captioned. (S: Campfield; H: Dennis)
Frivolous appeals - awarding of fees. State Summary: As introduced, allows a reviewing court to award an appellee's attorneys' fees and related filing costs if the court determines that an appeal is frivolous or taken solely for delay. - Amends TCA Title 16; Title 25 and Title 27. (S: Johnson J.; H: Sargent)
Eric Watson (R) Cleveland – 201 WMB -615-741-7799 – firstname.lastname@example.org
Jim Coley (R) Bartlett – 207 WMB - 615-741-8201 – email@example.com
Vance Dennis (R) Savannah – 209 A WMB – 615-741-2190 – firstname.lastname@example.org
Eddie Bass (D) Prospect – 109 WMB – 615-741-1864 – email@example.com
Karen Camper (D) Memphis – 20 LP – 615-741-1898 – firstname.lastname@example.org
Linda Elam (R) Mt. Juliet – 212 WMB – 615-741-7462 – email@example.com
Jeremy Faison (R) Cosby – 202 WMB – 615-741-6871 – firstname.lastname@example.org
Jim Gotto (R) Nashville – 205 WMB – 615-741-6959 – email@example.com
Jon Lundburg (R) Bristol – 20 LP – 615-741-7623 – firstname.lastname@example.org
Debra Maggart (R) Hendersonville – 114 WMB – 615-741-3893 – email@example.com
Judd Matheny (R) Tullahoma – 15 LP – 615-741-7448 – firstname.lastname@example.org
Gary Moore (D) Joelton – 35 LP – 615-741-4317 – email@example.com
Barrett Rich (R) Somerville - 117 WMB – 615-741-8690 – firstname.lastname@example.org
Janis Sontany (D) Nashville – 23 LP – 615-741-6862 – email@example.com
Mike Stewart (D) Nashville – 24 LP – 615-741-2184 – firstname.lastname@example.org
Rick Womick (R) Murfreesboro - 207 WMB – 615-741-2804 – email@example.com