TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, March 13, 2008

"Day on Torts" Returns

Regular readers of "Day on Torts" know that John Day has been on a weeks-long hiatus to try a med mal case.  Today he is back, with a post on the outcome.


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I know Day will be too good to reply to these questions. So here they are.

If the blood test did not get done, and no autopsy took place, how did the nephrologist know she died of high potassium?

Shouldn't the verdict get reduced by the contributory negligence of this patient?

What was the quality of her mothering? Shouldn't the verdict get discounted by its deficiency?

If I pay you a $1million to have you love me and to keep me company, is that legal?

Posted by: Supremacy Claus | Mar 14, 2008 5:49:43 AM

1. The potassium was at a panic level (6.6) 28 hours before she died. The blood test was done at the dialysis clinic on a routine basis but the results were not reported until after the death. The dialysis clinic was not sued. A blood test was also ordered on a stat basis at the ER 24 hours before death but the patient was discharged without the test having been performed. The 6.6 blood test, plus the likelihood that the potassium increased by at least one point in the next 28 hours, is why 4 doctors testified that, more likely than not, the cause of death was high potassium.

2. There was no contributory negligence. None of the defendants argued it or asked for an instruction on it. Your suggestion that it was present (without knowledge of the facts) reflects on the depth of your bias.

3. Quality of the mothering? How can you assume it was deficient in any way? What in heaven's name are you talking about?

4. Sorry SC - I wouldn't take it, even if it was legal.

Posted by: John Day | Mar 18, 2008 8:51:05 PM

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