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Saturday, February 11, 2012

Medical Malpracitce: New Opinion on Comparative Fault

The Western Section of the Tennessee Court of Appeals recently released its opinion in Dickson v. Kriger, No. W2011-00379-COA-R9-CV (Tenn. Ct. App. Feb. 10, 2012). The summary from the opinion states as follows:

This appeal arises from injuries Plaintiff sustained after undergoing laser corrective eye surgery. Plaintiff filed a complaint against Defendant alleging medical negligence. Subsequently, Defendant filed an amended answer alleging, inter alia, the affirmative defense of comparative fault. Plaintiff filed a motion to atrike portions of Defendant’s amended answer, and following a hearing on the motion, Defendant agreed to the entry of a consent order waiving the defense of comparative fault. Thereafter, Plaintiff filed motions in limine to preclude the testimony of two of Defendant’s experts. Plaintiff argued that, because Defendant waived comparative fault, he could not use the causation testimony of the two experts to shift blame away from himself unless he first plead comparative fault under Rule 8.03 of the Tennessee Rules of Civil Procedure. The trial court denied both motions. We granted permission for interlocutory appeal. We affirm in part, reverse in part, and remand for further proceedings.
Here's a link to the opinion:

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