Friday, November 30, 2012

Just what the Doctor Ordered . . . Well, not really

In re Jon Porter, M.D., 2012 VT 97

This case turns partially on the definition of “legally liable” and—though no one is going to say it out loud—partially on common sense.

Here’s the scenario: Physician Assistant (or “PA” for short) overprescribes and perhaps diverts certain controlled substances.  Doctor is responsible for supervising PA.  Doctor, acting on a tip, concludes that PA is improperly prescribing drugs.  Doctor files a complaint against PA with the Board of Medical Practice.  Question: Is Doctor guilty of unprofessional conduct based on the PA’s acts?

Common Sense and its Exceptions

Taylor v. Fletcher Allen Health Care, 2012 VT 86

Being a pro ser ain’t easy.  

Plaintiff sued Fletcher Allen Health Care (FAHC) for medical negligence and negligent infliction of emotional distress, in connection with her medical care following lumbar-spine surgery.   She didn’t disclose any expert witnesses, and so FAHC moved for summary judgment.  The trial court granted the motion on the basis that Plaintiff couldn’t prove her claims without expert testimony.  A somewhat-divided SCOV affirms.  

Let’s look to see why.

Death Be Not Covered

In re Estate of Dunn v. Windham Northeast Supervisory Union, 2012 VT 93.

Workers’ compensation schemes have a simple structure: the State requires employers to carry workers’ compensation insurance to reimburse employees for medical and economic losses resulting from work-related injuries—even if a third-party tortfeasor caused the injury.  In the latter case, the insurer ends up paying the bill for someone else’s screw up. 

To be fair, Vermont’s workers’ compensation program gives the insurer a right to recover its losses from whatever award the employee gets as compensation from the wrongdoer.  It also allows the insurer to go after the wrongdoer directly if the employee doesn't sue.  This is what is known in the business as subrogation: insurer gets to stand in the employee’s proverbial work shoes and sue the wrongdoer on the employee’s behalf.

Tilting at Tax Appeals

Sobel v. City of Rutland, 2012 VT 84.

Sometimes a lawsuit is nothing more than a prolonged reaction to a single mistake.  A driver appears to waive another car forward, and the parties spend years litigating the question of whether this gesture caused the ensuing accident. 

Today’s appeal is essentially this problem writ large.  Plaintiffs are doctors who had the entrepreneurial idea to buy a residential property in Rutland, tear it down, and build an office building where they could house their practice and potentially charge commercial tenants commercial rents.

Tuesday, November 20, 2012

Davey Numberlady's Top-Ten Funniest Law Videos

Davey Numberlady is a semi-regular SCOV Law column dedicated to cataloging the small bits of trivia that populate the practice of law. Today's list focuses on the most-fun videos having to do with lawyers and law school. There are many humorous videos relating to law out there. Here are ten that Davey loves. Please add your own in the comment section.

10.  This guy seems . . . well, bitter.  It might be funnier if it weren't so sad.  Check out his current website.

9.  This one is a classic.  If you or someone you know is thinking about law school, please make that person watch this video.

Tuesday, November 6, 2012

Crazy on Condition

State v. M.W., 2012 VT 66.

Today’s case involves the criminal statute governing how a trial court orders a psychiatric evaluation of a defendant for competency to stand trial.

Here is the long version of how it works: the statute allows the trial court to consider the issue if the defense, the state, or the court believes the defendant lacks the mental capacity to stand trial for the alleged crime.  Once such a motion is made, the trial court is required by the statute to order an immediate initial screening by a mental health expert. 

Based on this impromptu exam and the facts and circumstances available to the trial court, it may determine whether a full examination is warranted.  The trial court is also to determine the least restrictive environment to conduct examination with the provision that the trial court shall not order an examination to take place in a mental health facility, unless the preliminary examination determines that the defendant needs treatment.

Monday, November 5, 2012

Late-Game Interference

Bandler v. Charter One Bank, 2012 VT 83.

It’s tricky being a trial court in the ten states in which decisions are directly appealable to the state’s supreme court.  The court’s decisions must be within the boundaries of the law, such as it is when handed down and codified by the Legislature or interpreted piecemeal by the supremes (minus Florence Ballard).  The trial court’s decisions must simultaneously pass muster and creatively interpret the precise contours of amorphous legal concepts.


State v. Brandt, 2012 VT 73

Defendant wanted to go to a party.  One late-summer evening Defendant woke his wife up, and told her that he planned to take their shared car to a party.  Wife pointed out to Defendant that she had to work in the morning, so he needed to get back with the car before she had to leave the next day.  Defendant felt this was curfew-like in nature, and the ensuing argument turned violent.  Defendant threw his wife down, and her head struck an unidentified hard object.  Defendant then drove to the party, while his wife lay dazed in the back seat.  At the party, she managed to find a ride home from a friend, who saw a bump on the back of her head.