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Tuesday, June 29, 2010

Trial Practice: Writ of Certiorari

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Stechebare v. Deere & Co., No. E2009-01514-COA-R3-Cv (Jun. 29, 2010). It does a good job of explaining the writ of certiorari.

Here's a link to the opinion:

Friday, June 25, 2010

Medical Malpractice: Court of Appeals Reverses Trial Court

The Middle Section of the Tennessee Court of Appeals Just released its opinion in Howell v. Claiborne and Hughes Health Ctr., No. M2009-01683-COA-R3-CV (Tenn. Ct. App. June 24, 2010). The syllabus from the opinion states as follows:

This is a medical malpractice action. Appellant originally filed a claim in 2007 in the name of an estate. The original claim was subsequently non-suited. Less than one year later, the claim was then re-filed, also in the name of an estate. With permission of the court, the Appellant later amended the complaint to name the administrator of the estate as the plaintiff. However, upon the Appellee’s motion, the trial court dismissed the complaint finding: (1) the complaint was barred by the statute of limitations as there were no allegations in the complaint which would invoke the savings statute; (2) the complaint failed to state with particularity the specific acts of negligence; and (3) that the Appellant failed to comply with the notice requirements for a medical malpractice action found in Tenn. Code. Ann. § 29-26-121. Finding that the trial court erred, we reverse the decision of the trial court and remand for further proceedings.
Here's a link to the opinion:

Thursday, June 24, 2010

Medical Malpractice: New Tennessee Supreme Court Decision

The Tennessee Supreme Court issued its opinion in Estate of Bell v. Shelby County Health Care Corp., No. W2008-02213-SC-S09-CV (June 24, 2010). Here's the syllabus from the first page of the opinion:

This appeal involves the application of the Tennessee Governmental Tort Liability Act to an action for damages filed against a defendant that was not covered by the Act when the injury producing events occurred. The defendant filed a motion for partial summary judgment in the Circuit Court for Shelby County seeking the benefit of the claims and defenses available to government entities under the Act. The plaintiffs responded by challenging the constitutionality of legislation extending the coverage of the Act to the defendant on the ground that the legislation had been enacted after the plaintiffs had sustained their injuries. The trial court held that the Act applied to the defendant but granted the plaintiffs permission to pursue an interlocutory appeal. We granted the plaintiffs’ application for permission to appeal after the Court of Appeals declined to consider the case. We have determined that applying the substantive amendment to the Tennessee Governmental Tort Liability Act enacted after the injury-producing events occurred to the plaintiffs’ damage claims violates the prohibition against retrospective laws in Article I, Section 20 of the Constitution of Tennessee.

Here's a link to the opinion:

Wednesday, June 23, 2010

Medical Malpractice: Denial of Summary Judgement in the Plaintiff's Favor Reversed on Appeal

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Miller v. Birdwell, No. M2009-01730-COA-R3-CV (Tenn. Ct. App. Jun. 23, 2010).

The syllabus from the beginning of the opinion states as follows:

This appeal involves claims for medical malpractice against three doctors. The doctors each filed a motion for summary judgment. The trial court denied all three motions. After reviewing the record, we find that there are no material issues of fact in dispute. The defendant-doctors affirmatively negated an essential element of the Plaintiff’s claim — causation. Plaintiff failed to come forward with expert proof to demonstrate that there was a material issue of fact in dispute. Accordingly, the doctors are entitled to summary judgment. Consequently, this Court finds that the trial court erred in denying the motions for summary judgment. Reversed and remanded.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Carol%20E%20Miller%20vs%20Joel%20S%20Birdwell%20MD%20OPN.pdf

Monday, June 21, 2010

Medical Malpractice: Tennessee Supreme Court Reverses Court of Appeals

The Tennessee Supreme Court issued its opinion today in Cox v. Primary and Urgent Care Clinic, M2007-01840-SC-R11-CV (Tenn. Jun. 21. 2010). The syllabus of the opinion states as follows:

We granted permission to appeal in this case to address the standard of care that applies to a physician assistant in a medical malpractice case. The plaintiff sued for injuries she allegedly suffered as a result of physician assistant Michael Maddox’s failure to diagnose her condition accurately. The plaintiff did not sue Maddox, but sued the clinic which he owned and in which he practiced and Dr. Austin Adams, Maddox’s supervising physician. The defendants filed a joint motion for summary judgment, supported by their testimony that (1) Maddox did not violate the standard of care applicable to physician assistants and (2) Dr. Adams did not violate the standard of care applicable to physicians. The plaintiff responded with her cardiologist’s testimony that Maddox violated the standard of care applicable to primary care physicians. The cardiologist testified that he was not familiar with physician assistants or their supervision. The trial court granted the defendants’ motion for summary judgment on the basis that the plaintiff had failed to establish that Maddox violated the professional standard of care applicable to him. The Court of Appeals reversed the trial court, holding that the standard of care applicable to physician assistants is the same as that applicable to physicians. We reverse the Court of Appeals and hold that the standard of care applicable to physician assistants is distinct from that applicable to physicians. The trial court’s summary judgment in favor of the defendants is reinstated, and the case is dismissed.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Melissa%20Michelle%20Cox%20vs%20MA%20Primary%20and%20Urgent%20Care%20Clinic%20et%20al.pdf

Friday, June 18, 2010

Medical Malpractice: Pro Se Plaintiff's Case Dismissed Via Summary Judgment

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Luna v. Deversa, No. E2009-01198-COA-R3-CV (Tenn. Ct. App. Jun. 17, 2010). The plaintiff was pro se and failed to obtain expert testimony to rebut the summary judgment motions that were filed on behalf of the defendants. The trial court granted the defendants' motions and its ruling was upheld on appeal.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Nancy%20Luna%20vs%20Roger%20Deversa%20MD%20&%20Hamilton%20Co%20Hospital%20Auth%20opn.pdf

Monday, June 07, 2010

Summary Judgment for Defendant Reversed Due to Failure to Comply with Tenn. R. Civ. P. 56.04

The Western Section of the Tennessee Court of Appeals issued its opinion today in Winn v. Welch Farm, LLC, No. M2009-01595-COA-R3-CV (Tenn. Ct. App. June 4, 2010).

As many of you know, Tenn. R. Civ. P. 56.04 was amended in 2007 to require a trial court to state in its order the legal grounds for granting or denying a motion for summary judgment; this was done to assist in appellate review. In Winn, the Court of Appeals reversed a grant of summary judgment for the defendant because the order did not comply with Rule 56.04. Below is the syllabus of the opinion, to wit:

This is an appeal from the trial court’s decision to grant summary judgment to the appellees. After reviewing the record, we find that the order granting summary judgment fails to comply with Tenn. R. Civ. P. 56.04, as it does not “state the legal grounds upon which the court denies or grants the motion.” Consequently, this Court cannot proceed with our review and must vacate the judgment of the trial court.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Jerry%20A%20Winn%20v%20Welch%20Farm%20LLC%20and%20Richard%20Tucker%20OPN.pdf

Friday, June 04, 2010

Medical Malpractice: Court of Appeals Upholds Defense Verdict

The Western Section of the Tennessee Court of Appeals just released its opinion in Stanfield v. Neblett, No. W2009-01891-COA-R3-CV (Tenn. Ct. App. June 4, 2010). Among the issues raised were the following: (1) whether an expert may testify outside his or her Rule 26 disclosure; (2) expert qualifications; (3) cross-examining experts; and (4) the use of exhibits in opening statements and closing arguments. The Court of Appeals came down on the side of the defendants.

Here's a link to the opinion:


UPDATE: As of June 20, 2010, this opinion has been withdrawn by the Western Section. A revised opinion was released July 23, 2010. Here is a link to the revised opinion:

Tuesday, June 01, 2010

Jurors and the Internet, Etc.

I found this article to be very interesting, to wit: Douglas L. Keene & Rita R. Handrich, Online and Wired for Justice: Why Jurors Turn to the Internet, The Jury Expert, Nov. 2009, at 14. If you do any trial work, it is a must-read item.

Here's a link to the article:

http://www.astcweb.org/public/publication/documents/Keene%20Online%20&%20Wired%20TJE%20Nov20091.pdf