Health Care Liability Action (f.k.a. Medical Malpractice Action): New Case on Sanctions under Tenn. Code Ann. sec. 29-26-122

The Tennessee Court of Appeals, Middle Section, recently issued its opinion in Kerby v. Haws, No. M2011-01943-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2012).  The summary from the slip opinion states as follows:

A woman who suffered a series of persistent infections after surgery filed a malpractice complaint against the defendant surgeon. Her complaint alleged that the infections were cause by a small metal object that the defendant had negligently left in her body during the surgery. The plaintiff attached to her complaint the statutorily required certificate of good faith, which certified that she had consulted with an expert, who provided a signed statement confirming that he believed, on the basis of the medical records, that there was a good faith basis to maintain the action. See Tenn. Code Ann. § 29-26-122. After the object was discovered to be a surgical clip of a type that was designed to be retained by the patient’s body, the defendant filed a motion for summary judgment, which the plaintiff did not oppose.  The defendant surgeon subsequently filed a motion for sanctions against the plaintiff under Tenn. Code Ann. § 29-26-122 (d)(3), which gives the court the authority to punish violations related to the certificate of good faith. The trial court granted the motion, and awarded the defendant doctor over $22,000 in attorney fees. We reverse.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/kerbyta_opn.pdf

Medical Malpractice: Statutorily Required Presuit Notice Does Not Provide 120-day Extension of One-year Statute of Limitations Against Governmental Entity

The Tennessee Court of Appeals released its opinion yesterday in Lawring v. Green Cnty. EMS, No. E2011-1201-COA-R9-CV (Tenn. Ct. App. Dec. 17, 2012). The summary of the opinion reads as follows:

In this action the defendants filed a Motion for Summary Judgment on the grounds the statute of limitation had run on plaintiff's cause of action. The Trial Court overruled the Motion on the grounds that the tolling provisions in Tenn. Code Ann. § 29-20-201(c) was applicable to GTLA actions and granted permission to appeal pursuant to Tenn. R. App. P. 9. On appeal, we hold that the tolling provision does not apply because the statute did not expressly extend it to GTLA actions.

The issue on appeal was stated on page 3 of the opinion as follows: 

Does the medical malpractice pre-suit notice requirement contained in Tennessee Code Annotated §29-26-121(a) operate to toll the one year statute of limitations for bringing suit against a governmental entity under the GTLA?

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/lawingbopn.pdf

This opinion, which was issued by the Eastern Section Court of Appeals, is in direct contradiction to the opinion released by the Middle Section Court of Appeals in Cunningham ex rel. Cunningham v. Williamson Cnty. Hosp. Dist., which was the subject of my December 1, 2011 post, to wit:

http://theduncanlawfirm.blogspot.com/2011/12/medical-malpractice-statutorily.html

The Tennessee Supreme Court granted permission to appeal in Cunningham on April 16, 2012.  It was argued on October 3, 2012.  To state the obvious, the decision in that case will affect the outcome of this case.  

The Importance of Uninsured/Underinsured Motorist Coverage

This post is a lot like a public service announcement.  To any and all persons out there who own and drive a care, please contact your insurance agent and make sure you have uninsured/underinsured ("UM/UIM") coverage.  And if you are in Tennessee, get no less that fifty thousand in coverage (of course the more coverage you have, the better).

Making sure you have enough UM/UIM coverage might be the best decision you ever make.  This is because UM/UIM might be the only source of a monetary recovery you will have if a person hits you who doesn't have liability insurance (an uninsured situation); and it might provide additional monies as further compensation if the person who hits you doesn't have enough coverage (an underinsured situation).

Tony Duncan Named a 2012 Mid-South Super Lawyer

I want to begin by saying that I am sorry for not posting anything in a while.  I have been busy (like all of us); I've got two jury trials coming up in December that have been taking up a lot of my time.

Anyway, I did want to post that I have been selected to as a 2012 Mid-South Super Lawyer again, which is a great honor; I am truly humbled.  Below is a link to the digital edition to Mid-South Super Lawyers (2012).  I am on Page 33.

http://digital.superlawyers.com/superlawyers/midsouth2012?pg=33#pg1

News from CDC on Fungal Meningitis

Please read the information from the CDC at this link:

http://www.cdc.gov/meningitis/fungal.html

If you have any questions about this issue, please, do not hesitate to call my law firm to discuss.

Civil Procedure: Substitution of a Representative Plaintiff Who Died During Pendency of Wrongful Death Action

The Tennessee Court of Appeals, Western Section, just issued its opinion in Holley ex rel. Holley v. Blackett, No. W2011-02115-COA-R3-CV (Tenn. Ct. App. Oct. 10, 2012).  The summary from the opinion states as follows:

This appeal involves an attempt to substitute parties after the original plaintiff in this wrongful death case died. The trial court struck the motion to substitute parties and dismissed the case. We reverse and remand for further proceedings.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/holleyericopn.pdf

Medical Malpractice: New Tenn. Sup. Ct. Opinion on Presuit Notice and Certificates of Good Faith

The Tennessee Supreme Court recently issued its opinion in Myers v. AMISUB (SFH), Inc., No. W2010-00837-SC-R11-CV (Tenn. Oct. 4, 2012).  Here's the summary from the slip opinion, to wit:

The plaintiff filed a medical malpractice action against several health care providers and subsequently dismissed the lawsuit. He re-filed the action after the legislature enacted Tennessee Code Annotated section 29-26-121, which requires a plaintiff who files a medical malpractice suit to give health care providers who are to be named in the suit notice of the claim sixty days before filing the suit; and Tennessee Code Annotated section 29-26-122, which requires a plaintiff to file with the medical malpractice complaint a certificate of good faith confirming that the plaintiff has consulted with an expert who has provided a signed written statement that there is a good-faith basis to maintain the action. The defendants moved to dismiss the complaint based on the plaintiff’s failure to comply with Tennessee Code Annotated sections 29-26-121 and 122. The trial court denied the motion, finding that the plaintiff’s original suit constituted substantial compliance with the statutes’ requirements and that extraordinary cause existed to excuse compliance with the requirements of Tennessee Code Annotated section 29-26-121. Upon interlocutory appeal, the Court of Appeals reversed. We hold that the statutory requirements that a plaintiff give sixty days presuit notice and file a certificate of good faith with the complaint are mandatory requirements and not subject to substantial compliance. The plaintiff’s failure to comply with Tennessee Code Annotated section 29-26-122 by filing a certificate of good faith with his complaint requires a dismissal with prejudice.

Here's a link to the unanimous opinion:

http://www.tncourts.gov/sites/default/files/myerscurtisopn.pdf

Medical Malpractice & Concurrent Common-law Negligence Claims

The Middle Section of the Tennessee Court of Appeals recently issued its opinion Parker v. Portland Nursing & Nursing Rehab., No. M2011-02633-COA-R9-CV (Tenn. Ct. App. Aug. 30, 2012).  The summary of the opinion states as follows:

In this action, the plaintiff has attempted to assert claims for ordinary negligence and medical malpractice against nursing home defendants by filing two separate actions and then seeking to consolidate the cases or to amend the complaint to assert both types of claims in one case.  The first complaint filed only asserted claims for ordinary negligence against the nursing home defendants. Sixty days after having given the statutory notice to the healthcare providers of her intent to file medical malpractice claims, the plaintiff commenced a separate action against the same nursing home defendants and an additional defendant, a physician who treated the nursing home patient, by filing a complaint for medical malpractice. Upon motions of the nursing home defendants, the trial court refused to consolidate the cases, dismissed the medical malpractice claims against the nursing home defendants upon the ground of a prior suit pending, and denied the plaintiff’s motion to amend the complaint in the first case to add claims for medical malpractice against the nursing home defendants.  Having determined that the plaintiff complied with Tennessee Code Annotated § 29-26-121(a) by giving the requisite 60 days notice to the medical providers and that the statute of limitations had not run, we have concluded that the trial court erred in denying the plaintiff’s Tennessee Rule of Civil Procedure 15.01 motion to amend the complaint. Accordingly, we reverse and remand with instructions to grant the plaintiff’s motion to amend the complaint for ordinary negligence against the nursing home defendants thus allowing the plaintiff to assert medical malpractice claims against the nursing home defendants and for further proceedings consistent with this opinion.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/dobbswandaopn.pdf

Caveat: As noted in Footnote 4, this opinion only affects claims that accrued before October 1, 2011, which was the effective date of the Tennessee Civil Justice Act of 2011 (which is the furthest thing from justice one could imagine, in my humble opinion).  See T.C.A. § 29-26-101(c) (Westlaw 2012) (making all "health care liability actions" subject to Tennessee's Medical Malpractice Act).  A "health care liability action" is any civil action filed against a "health care provider" who provides "health care services." Id.  

September 11, 2011

Never forget.  Never.

Medical Malpractice: New Case on Presuit Notice and Certificates of Good Faith

The Middle Section for the Tennessee Court of Appeals recently issued its opinion in Hinkle v. Kindred Hosp., No. M2010-02499-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2012).  The summary of the opinion is as follows:

The widow of a man who suffered a devastating injury while undergoing a medical procedure in the defendant hospital filed suit against the hospital and the doctor who ordered the procedure, claiming medical malpractice, failure to obtain informed consent, and battery.  The defendant hospital filed a motion for summary judgment, and the defendant doctor filed a motion to dismiss, both arguing that the plaintiff’s malpractice claims had to be dismissed because she failed to strictly comply with requirements of the Medical Malpractice Act, specifically Tenn. Code Ann. § 29-26-121 (a)(1) (60-day notice) and §29-26-122(a) (certificate of good faith). The trial court granted both motions in part and denied them in part. We reverse the trial court’s dismissal of the medical malpractice claims against both defendants as well as the related claims. We also reverse the trial court’s dismissal of the claim against the defendant doctor for failure to obtain the patient’s informed consent, but we affirm its dismissal of the medical battery claim against the defendant doctor.

Here's a link to the majority opinion:

https://www.tba.org/sites/default/files/hinkled_090412.pdf

Here's a link to the partial concurrence and dissent by Judge Dinkins:

https://www.tba.org/sites/default/files/hinkled_DIS_090412.pdf

Medical Malpractice: Another Opinion on Presuit Notice and the Saving Statute

The Tennessee Court of Appeals (Western Section) recently issued its opinion in Childs v. UT Medical Group, Inc., No. W2011-01901-COA-R3-CV (Tenn. Ct. App. August 8, 2012).  The opinion discusses the interplay between the newly enacted presuit notice provisions to medical malpractice claims and the saving statute.  Here's the summary from the slip opinion:

Plaintiffs filed a voluntary notice of nonsuit in this medical malpractice action in July 2009.  They refiled their claim in September 2010. The trial court dismissed Plaintiffs’ claim for failure to comply with Tennessee Code Annotated § 29-26-121 Plaintiffs appeal. We affirm.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/childsanthonydopn.pdf

New Opinion on Service of Process, Default Judgments, Appellate Practice, Etc.

The Court of Appeals (Middle Section (panel from the Eastern Section)) issued its opinion in Ramsay v. Custer, No. M2011-02490-COA-R3-CV (Tenn. Ct. App. Jul. 31, 2011).  The summary from the opinion states as follows:

In this case, the Trial Court initially granted plaintiff a default judgment against the defendant, and set a trial on the issue of damages. Defendant was given notice of the subsequent hearing, and defendant's attorney moved to set aside the default judgment, which the Trial Court granted and dismissed plaintiff's case. Plaintiff has appealed. We affirm the Judgment of the Trial Court.

 Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/ramsaya_opn.pdf

Missouri Supreme Court Strikes Down Caps on Noneconomic Damages as Unconstitutional

On July 31, 2012, the Missouri Supreme Court released its opinion in Watts ex rel. Watts v. Lester E. Cox Med. Ctrs., No. SC91867 (Mo. Jul. 31, 2012) (en banc).  The opinion holds, inter alia, that Missouri's cap on noneconomic damages is unconstitutional. 

Here's a link to the slip opinion:

http://www.courts.mo.gov/file.jsp?id=55761

Medical Malpractice: New Opinion on the Locality Rule Post-Shipley

Today, the Tennessee Court of Appeals, Eastern Section, issued its opinion in Meares v. Traylor, No. E2011-02187-COA-R3-CV (Tenn. Ct. App. Jul. 27, 2012).  

Plaintiffs charged defendant with medical malpractice. The case was tried before a jury, resulting in a judgment for the defendant. An out-of-state medical doctor testified on behalf of the defendant, over the objection of plaintiffs. Plaintiffs have appealed to this Court, insisting that it was reversible error for the Trial Court to allow that expert to testify in violation of the "Locality Rule". On appeal, we affirm the Judgment of the Trial Court.

Here's a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/mearsgopn.pdf

Medical Malpractice: Summary Judgment for Defense Reversed and Trial Court Order to Exercise Its Discretion to Determine If "Extraordinary Cause" Exists Upon Remand

Yesterday, the Western Section of the Tennessee Court of Appeals issued its opinion in Hawkins v. Martin, No. W2011-02318-R3-CV (Tenn. Ct. App. Jul. 24, 2012).  The summary from the opinion states as follows:

The trial court granted Defendants’ motion to dismiss in this medical malpractice action where Plaintiff failed to attach a HIPPA compliant medical authorization to her notice to Defendants prior to filing her complaint as required by Tennessee Code Annotated § 29-26-121. Plaintiff appeals. We vacate and remand for further proceedings.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/hawkinsdeborahmasonopn.pdf

Pray for the People in Colorado

Please pray for the people affected by the senseless act in Aurora, Colorado. Keep them in your thoughts, too.

There but for the grace of God, go I.  

:-(

Tennessee Legal Resources

Below is the list I bring with me when I go to the library.  It's a work-in-progress, and by no means perfect, but it's what I use.  (The numbering for the print resources is, of course, per the L.C.C., to wit: http://en.wikipedia.org/wiki/Library_of_Congress_Classification.)

TENNESSEE LEGAL RESOURCES

I. Statutory Materials

Print

Acts of the State of Tennessee passed by the General Assembly, KFT 25 .A23; Microfiche 266
West’s Tennessee Code Annotated, KFT 30 2001 .A44
West's Tennessee Code Annotated. Constitution volume, KFT 30 2001 .A44 vol. 1
Hein’s Superseded State Statutes and Codes, Microfiche 3093 (1831 -present)

Online

Michie’s Tennessee Code & Constitution (powered by Lexis)

LexisNexis


Tennessee Constitution (TNCNST)
Tennessee Code Annotated (CODE)
Tennessee Advance Legislative Service (TNALS)

Westlaw

West's Tennessee Statutes - Annotated (TN-ST-ANN)
Tennessee Statutes (West's) - Unannotated (TN-ST)
Tennessee Statutes - Annotated (TN-STANN01 - TN-STANNO8; TN-STMANN86 - TN-STMANN07) (1986 - present)

II. Legislative Materials

Print

Tennessee. General Assembly. House. Journal, KFT 18 .T2 yr.c
Tennessee. General Assembly. Senate. Journal, KFT 18 .T2 yr.b

Online

Legislation
Legislative Search
Senate Journal
House Journal

Additional digitized volumes of the legislative journals may be available through the following sources:

Google Books
Hathi Trust

LexisNexis

Tennessee Full-Text Bills (TNTEXT)
Tennessee Bill Tracking Reports (TNTRCK)
Tennessee Legislative Bill History (TNLH) (1999 - present)

Westlaw

Tennessee Legislative Service (TN-LEGIS)
Tennessee Bill Tracking - Summaries & Full Text Combined (TN-BILLS)
Tennessee Bill Tracking (TN-BILLTRK)
Tennessee Bill Tracking - Full Text (TN-BILLTXT)
Tennessee Bill Archives (TN-BILLS-OLD)
Tennessee Legislative History (TN-LH)
Tennessee Historical Legislative Service (TN-LEGIS-OLD) (1990 - present)

III. Administrative Regulations &  Materials


Print

Official Compilation Rules & Regulations of the State of Tennessee, KFT 35 1975 .A22
Tennessee Administrative Register, KFT 36 .T4

Online

Rules & Regulations
The Tennessee Administrative Register (T.A.R.)

LexisNexis

Rules and Regulations of the State of Tennessee (TNADMN)
Tennessee Administrative Register (TNRGST) (1999 - present)
Tennessee Bulletins & Notices (TNBLTN) (1983 - present)
Tennessee State Net Regulatory Text (TNRTXT) (1999 - present)
Tennessee State Regulation Tracking (TNRGTR) (recent two years)

Westlaw


Tennessee Administrative Code (TN-ADC)
Tennessee Administrative Code (TN-ADCO02 - TN-ADCO08)
Tennessee Regulation Tracking (TN-REGTRK)
Tennessee Regulation Tracking - Full Text (TN-REGTXT)
Tennessee Administrative Hearing Procedure Rules (TNWC-ADCAH)

IV. Administrative Decisions

Print

Opinions of the Attorney General of Tennessee, KFT 440 .A556

Online

Attorney General Opinions (2000 – present)

LexisNexis

Tennessee Attorney General Opinions (TNAG) (1977 - present)
Tennessee Regulatory Utility Commission Decisions (TNPUC) (1996 - present)
Tennessee Special Workers' Compensation Appeals Panel (TNSWCA) (1992 - present)

Westlaw

Environmental Law Administrative Decisions (TNENV-ADMIN)
Public Utilities Reports (TN-PUR)
Tennessee Workers' Compensation Administrative Code (TNWC-ADC)
Tennessee Administraive Hearing Procedure Rules (TNWC-ADCAH)
Tennessee Attorney General Opinions (TN-AG)

V. State Cases & Judicial Materials

Print

West’s South Western Reporter (S.W., S.W.2d, S.W.3d), KF 135 .S7
Tennessee Appeals Reports, KFT 48 .A2
Tennessee Criminal Appeals Reports, KFT 49 .C7 1969
Tennessee Reports, KFT 45 .A2

Finding Aids

West’s Tennessee Digest 2d, KFT 57 .T4 1986

Online

Supreme Court (1995 – present)
Court of Appeals (1995 – present)
Court of Criminal Appeals (1995 – present)

LexisNexis

Tennessee Supreme Court Cases (TENN) (1791 - present)
Tennessee Court of Appeals Cases (APP) (1925 - present)
Tennessee Court of Criminal Appeals Cases (1967 - present)
Tennessee Chancery Appeals Cases (CHAPP) (1895 - 1901)

Westlaw

State Courts (TN-CS) (Superior Court of the Territory South of the River Ohio: 1791 - 1796; Superior Court of Law and Equity: 1799 - 1809; Supreme Court of Errors and Appeals: 1811 - 1835; Supreme Court: 1835 - present; Court of Appeals: 1925 - present; Court of Criminal Appeals: 1967 - present; Court of Chancery Appeals: 1895 - 1901)
Tennessee Supreme Court Briefs (TN-SCT-BRIEF) (select coverage 2003 - present)
Tennessee Court of Appeals Briefs (TN-APP-BRIEF) (select coverage 2003 - present)

VI. Court Rules (State)

Print

Tennessee Rules of Court: Local, KFT 529 .A197 Local
Tennessee Rules of Court: State, KFT 529 .A197 State

Online

Court Rules

LexisNexis

TN - Tennessee State & Federal Court Rules (TNRULE)

Westlaw

Tennessee Court Rules (TN-RULES)
Tennessee Rules Update Orders (TN-RULESUPDATES)
Criminal Justice - Tennessee Court Rules (TNCJ-RULES)

VII. Jury Instructions (State)

Print

Tennessee Pattern Jury Instructions. Civil, KFT 80 .T4 1967 v. 8
Tennessee Jury Instructions: Criminal Cases, KFT 583 .S45

Online

Pattern Jury Instructions (Not official ones)
Criminal Pattern Jury Instructions (Not official ones)

LexisNexis

Tennessee Civil Jury Instructions - TBD
Tennessee Criminal Jury Instructions - TBD

Westlaw

Tennessee Practice Series Tennessee Pattern Jury Instructions - Civil (TINPRACJIC)
Tennessee Practice Series Tennessee Pattern Jury Instructions - Criminal (TNPRACJICR)
Tennessee Civil Jury Instruction Filings (TN-JIF-CIV)
Tennessee Jury Verdicts Combined (TN-JV)
Jury Verdict and Settlement Summaries - Tennessee (LRPTN-JV)

VIII. Forms (State)


Print

Tennessee Divorce, Alimony & Child Custody with Forms, KFT 80 .T4 1967 vol. 19
Legal Forms, KFT 80 .T4 1967 vols. 12 - 15
Civil Procedure Forms, KFT 80 .T4 1967 vols. 5 - 6

Online

http://www.tsc.state.tn.us/node/431 (Tennessee state trial court forms)

LexisNexis

All TN LexisNexis Forms (LFTNAL)
Tennessee Forms for Business Transactions (TNFBUS)
Tennessee Forms for Civil Litigation (TNFCIV)
Tennessee Forms for Criminal Law (TNFCRM)
Tennessee Forms for Estate Practice (TNFEST)
Tennessee Forms for Real Estate (TNFRE)

Westlaw

Tennessee Form Finder (TN-FORMFINDER)
Tennessee Forms (TN-FORMS)
Tennessee Practice Series Civil Procedure Forms (TNPRAC-CPF)
Tennessee Practice Series Legal Forms (TNPRAC-LF)

IX. Federal Cases & Judicial Materials

Print

U.S. Reports (U.S.), KF 101 .U2
Supreme Court Reporter (S.Ct.), KF 101 .S9
United States Supreme Court Reports, Lawyer’s Edition (L.Ed., L.Ed.2d), KF 101 .U58
Federal Reporter (F., F.2d, F.3d), KF 105 .F4
Federal Supplement (F.Supp., F.Supp.2d), KF 120 .F4
Federal Rules Decisions (F.R.D.), KF 120 .F45
West’s Bankruptcy Reporter (B.R.), KF 1515 .A2 W47

Finding Aids

West's Federal Practice Digest, KF 127 .F4
West’s Bankruptcy Digest, KF 1515.3 .W475

Online

U.S. Supreme Court
U.S. Court of Appeals for the Sixth Circuit (1999 – present published; 2004 – present unpublished)
U.S. District Court for the Eastern District of Tennessee
U.S. District Court for the Middle District of Tennessee (PACER subscription)
U.S. District Court for the Western District of Tennessee
U.S. Bankruptcy Court for the Eastern District of Tennessee (by Judge)
U.S. Bankruptcy Court for the Middle District of Tennessee
U.S. Bankruptcy Court for the Western District of Tennessee (ECF Database)

LexisNexis (Federal Cases)

U.S. Supreme Court Briefs (BRIEFS) (1936 - present)
U.S. Supreme Court Cases, Lawyers' Edition (USLED) (1790 - present)
United States Court of Federal Claims, Claims Court & Court of Claims Cases (1856 - present)
Federal Circuit - U.S. Court of Appeals Cases (CAFC) (1982 - present)
U.S. Bankruptcy Court Cases (BANKR) (1979 - present)
Federal Civil Procedure Cases (FEDCIV) (varies by court)

Local Federal Case

Sixth Circuit - U.S. Court of Appeals Cases (6CIR) (1912 - present)
TN Federal District Courts (TNDIST) (1832 - present)

Westlaw (Federal Cases)

All U.S. Supreme Court Cases (SCT) (1790 - present)
U.S. Supreme Court Briefs Multibase (SCT-BRIEF-ALL) (1870 - present)
U.S. Court of Appeals Cases (CTA) (1891 - present)
U.S. Court of Appeals Briefs (CTA-BRIEF) (1972 - present)
Federal Rules Decisions Cases (FRD-CS) (1938 - present)
U.S. Court of Federal Claims Cases (FEDCL) (1945 - present)
U.S. Court of Claims - Before 1945 (FEDCL-OLD) (1856 - 1944)


Local Federal Cases

U.S. Court of Appeals for the Sixth Circuit Cases (CTA6) (1945 - present)
Federal Bankruptcy Cases - Sixth Circuit States (FBKR-CS6) (1797 - present)
U.S. District Court Cases for Tennessee (DCTTN) (1945 - present)
U.S. District Court Cases for Tennessee - Before 1945 (DCTTN-OLD) (1807 - 1944)

X. Court Rules (Federal)

Print

Federal Civil Judicial Procedure and Rules, KF 8816 .A193 [year] Reserve
Federal Criminal Code and Rules, KF 9607.523 .A19 F4 [year] Reserve
Federal Local Court Rules 3d, KF 8820 .A2 2001 Reserve
Local Rules of the Bankruptcy Courts. Sixth Circuit, KF 1527 .A4 6th
Tennessee Rules of Court: Federal, KFT 529 .A197 Federal

Online

Supreme Court Rules
Federal Rules of Civil Procedure
Federal Rules of Criminal Procedure
Federal Rules of Evidence
Federal Rules of Appellate Procedure
Federal Rules of Bankruptcy Procedure

U.S. Court of Appeals for the Sixth Circuit 

U.S. Bankruptcy Appellate Panel for the Sixth Circuit
U.S. District Court for the Eastern District of Tennessee
U.S. District Court for the Middle District of Tennessee
U.S. District Court for the Western District of Tennessee
U.S. Bankruptcy Court for the Eastern District of Tennessee
U.S. Bankruptcy Court for the Middle District of Tennessee
U.S. Bankruptcy Court for the Western District of Tennessee

LexisNexis

USCS - Federal Rules of Civil Procedure (FRCP)
USCS - Federal Rules of Criminal Procedure (FRCRP)
USCS - Federal Rules of Evidence (FRE)
USCS - Federal Rules of Appellate Procedure (FRAP)
USCS - Bankruptcy Rules and Official Bankruptcy Forms (BKRULE)
USCS - Rules of the Supreme Court of the United States (SUPRUL)
LocSixth Circuit - USCS - Court of Appeals Rules (6CRUL)
TN - Tennessee State & Federal Court Rules (TNRULE)

Westlaw

Federal Rules (US-RULES)

KeyRules - Tennessee - U.S. District Court (KEYRULES-TN-DCT)

XI. Jury Instructions (Federal)

Print

Sixth Circuit Manual of Model Jury Instructions — Civil, KF 8884 .M27 2005 Reserve
Sixth Circuit Manual of Model Jury Instructions — Criminal, KF 9682 .A65 U58 2007 Reserve
Pattern Jury Instructions, Criminal Cases, KF 9682 .A65 U61
Pattern Jury Instructions, Civil Cases, KF 8984 .A65 U61 Reserve
Federal Jury Practice and Instructions 6th [Jury Trial], KF 8984 .M3 2006
Federal Jury Practice and Instructions 5th [Civil and Criminal], KF 8984 .M3 2000

Online

Sixth Circuit Criminal Pattern Jury Instructions

LexisNexis

Modern Federal Jury Instructions - Civil (MOFCIV)
Modern Federal Jury Instructions - Criminal (MOFEJI)
USCS Federal Sentencing Guidelines (GLINE)

Westlaw

Federal Jury Practice and Instructions - Civil (FED-JICIV)
Federal Jury Practice and Instructions - Criminal (FED-JICRIM)
Federal Criminal Justice - Federal Sentencing Guidelines (FCJ-FSG)

XII. Forms (Federal)

Print

Federal Local Court Forms 3d, KF 8836 .H58 2002 Reserve
Am.Jur. Pleading and Practice Forms, KF 8836 .A45 1967
Bender's Federal Practice Forms, KF 8836 .B45
Federal Procedural Forms, L.Ed., KF 8836 .F4
West's Federal Forms, KF 8836 .W4 1969
Complete Manual of Criminal Forms, KF 9616 .B3 1993

Online

U.S. Court of Appeals for the Sixth Circuit
U.S. District Court for the Eastern District of Tennessee
U.S. District Court for the Middle District of Tennessee
U.S. District Court for the Western District of Tennessee
U.S. Bankruptcy Court for the Eastern District of Tennessee
U.S. Bankruptcy Court for the Middle District of Tennessee
U.S. Bankruptcy Court for the Western District of Tennessee

LexisNexis

Bender's Federal Practice Forms (FDPRAC)

Westlaw

West's Federal Forms (FEDFORMS) (Supreme Court, Courts of Appeals, District Courts, Bankruptcy    
Court, Admirality Court, National Court & Tax Court)
Federal Procedural Forms (FEDPROF)

XIII. State Government Resources

Official Web Site of the State of Tennessee
Office of the Governor
Tennessee Frequently Used Forms
Tennessee State Library and Archives

Westlaw

Sourcebook Tennessee State Agencies (SB-TN-AGENCY)

XIV. Local Government Resources

Municode
Counties & Cities

XV. Ethics

Rules of Professional Conduct
Ethics Opinions
Code of Judicial Conduct

LexisNexis

Tennessee Judicial Ethics Committee Opinions (TNJETH) (1997 - present)
National Reporter on Legal Ethics and Professional Responsiblity - TN Opinions (1992 - present)


Westlaw

Ethics Opinions (Board of Professional Responsibility (TNETH-EO)

XVI. Practice Materials

Print

Tennessee Jurisprudence: an Encyclopedia of Tennessee Law, KFT 65 .T46 1982
Tennessee Legal Research, KFT 75 .M37 2007
Tennessee Practice, KFT 80 .T4 1967

Online

Tennessee Commission on Continuing Legal Education & Specialization
TennBarU (CLE from the Tennessee Bar Association)

XVII. Bar Associations & Law Schools


Print

Tennessee Bar Association
The Tennessee Bar Journal [KF 200 .T4]
Journal of Copyright, Entertainment and Sports Law [KF 200 .J612]
Chattanooga Bar Association
Knoxville Bar Association
Memphis Bar Association
Nashville Bar Association
University of Memphis Cecil C. Humphreys School of Law
Law Library
The Tennessee Journal of Practice & Procedure [The University of Iowa Libraries InfoLink]
University of Memphis Law Review [K 13 .E572]
Nashville School of Law
University of Tennessee College of Law
Law Library
Tennessee Law Review [K 24 .E663]
Vanderbilt University Law School
The Alyne Queener Massey Law Library
Vanderbilt Journal of Entertainment & Technology Law [K 26 .A54]
Vanderbilt Journal of Transnational Law [JX 1 .V36]
Vanderbilt Law Review [K 26 .A627]

LexisNexis


Tennessee Bar Journal (TNBARJ) (2002 - present)
Tennessee Journal of Law & Policy (TNJOLP) (2004 - present)
The Tennessee Journal of Practice & Procedure (TNJPP) (1997 - present)
Tennessee Law Review (TENLR) (1970 - present)
Transactions: The Tennessee Journal of Business Law (TRTJBL) (1999 - present)
University of Memphis Law Review (MSULR) (1994 - present)
Vanderbilt Journal of Entertainment and Technology Law (VJELP) (1999 - present)
Vanderbilt Journal of Transnational Law (VJTL) (1994 - present)
Vanderbilt Law Review (VANDLR) (1982 - present)

Westlaw

Tennessee Bar Journal (TNBJ) (1983 - present)
Tennessee Law Review (TNLR) (select coverage 1983 - 1992; full coverage 1993 - present)
Transactions: Tennessee Journal of Business Law (TTNJBL) (1999 - present)
University of Memphis Law Review (UMPSLR) (1983 - present)
Vanderbilt Journal of Entertainment and Technology Law (VNJETL) (1999 - present)
Vanderbilt Journal of Transnational Law (VNJTL) (select coverage 1983 - 1993; full coverage 1993 - present)
Vanderbilt Law Review (VNLR) (select coverage 1981 - 1984; full coverage 1984 - present)

Comparative Fault: New Tennessee Supreme Court Case on Tenn. Code Ann. sec. 20-1-119

The Tennessee Supreme Court just issued its opinion in Mann v. Alpha Tau Omega Fraternity, No. W2010-02316-SC-R11-CV (Tenn. July 3, 2012).  The summary of the Court's opinion is a s follows:

We accepted this appeal of a personal injury action to determine whether the dismissal of a defendant pursuant to a written order not made final under Tennessee Rule of Civil Procedure 54.02 renders that defendant “not a party to the suit” for purposes of Tennessee Code Annotated section 20-1-119. We answer this question in the affirmative. Because the Court of Appeals upheld the judgment of the trial court dismissing the appellees from the Manns’ second amended complaint as time-barred, we reverse the Court of Appeals and remand to the trial court for further proceedings.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/mannd_opn.pdf

The Declaration of Independence

Please watch this link: http://www.youtube.com/watch?v=jYyttEu_NLU.

Have a great and happy Fourth of July, folks!

Medical Malpractice: Saving Statute NOT Extended by Presuit Notice Letters

Yesterday, the Western Section of the Tennessee Court of Appeals held that Tennessee's saving statute is not extend by presuit notice letters in medical malpractice cases.  The opinion is Johnson v. Floyd, No. W2012-00207-COA-R3-CV (Tenn. Ct. App. Jun. 29, 2012).  The syllabus of the opinion states as follows:

This case concerns the application of the medical malpractice notice requirement to a lawsuit that was previously nonsuited and then re-filed pursuant to the saving statute. The children of a woman who died due to alleged medical negligence filed suit against the defendant medical providers. The children subsequently nonsuited the lawsuit. Within one-year of the nonsuit, the children sent notice of a potential claim to the medical providers. Within one year and 120 days from the nonsuit, the children re-filed their claim. The medical providers moved to dismiss on the ground that the claim was not filed within the one-year period provided by the saving statute and, as such, was barred by the applicable statute of limitations. The trial court dismissed the action and the children appealed. Concluding that the saving statute, Tennessee Code Annotated Section 28-1-105(a) is not an “applicable statute[] of limitations or repose,” we hold that the saving statute is not extended by compliance with the medical malpractice notice requirement, Tennessee Code Annotated Section 29-26-121(c). Affirmed and remanded.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/johnsondopn.pdf

This opinion is in direct conflict with one issued by the Middle Section of the Tennessee Court of Appeals in Rajvongs v. Wright, No. 2011- 01889-COA-R9-CV (Tenn. Ct. App. Jun.  18, 2012), which held that presuit notice letters did extend the saving statute.  (Rajvong was the subject of my June 21 post, which can be viewed at this link: Tony Duncan Law: Medical Malpractice: Saving Statute Extended by Notice Letters.)

UPDATE: Please see my Feb. 6, 2014 post where the Court of Appeals issued a new opinion in this case upon mandate from the Tennessee Supreme Court.

Medical Malpractice: Defense Verdict Reversed on Appeal Due to Errors in Trial Court Below

The other day, the Tennessee Court of Appeals for the Eastern Section released its opinion in Mayo v. Shine, No. E2011-01745-COA-R3-CV (Tenn. Ct. App. Jun. 25, 2012).  The opinion is a must-read for all trial lawyers who practice in the area of medical malpractice (plaintiff or defense) because it discusses topics such as opening statements, cross-examining of a defendant, and trial judge conduct. The summary of the opinion reads as follows:

Zona Mayo (“Plaintiff”) sued Donna L. Shine, M.D., Fort Sanders Obstetrical and Gynecological Group, P.C., and Fort Sanders Regional Medical Center (“the Hospital”) alleging medical malpractice in connection with Plaintiff’s birth. After a jury trial, the Trial Court entered judgment on the jury’s verdict finding and holding that neither Dr. Shine nor the Hospital were legally responsible for any harm suffered by Plaintiff. Plaintiff appeals raising issues regarding alleged jury misconduct and alleged errors with regard to admission of evidence, among other things. We find and hold that Plaintiff is entitled to a new trial due to errors in the admission of specific evidence and the improper limitation of Plaintiff’s cross-examination of Dr. Shine, among other things. We vacate the Trial Court’s judgment and remand this case to the Trial Court for a new trial in compliance with this Opinion.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/mayozopn.pdf 

Medical Malpractice: Saving Statute Extended by Presuit Notice Letters

This week, the Tennessee Court of Appeals (Middle Section) issued an opinion holding that Tennessee's saving statute was extended by the statutorily required notice letters to healthcare providers in medical malpractice cases.  The case is Rajvongs v. Wright, No. M2011-01889-COA-R9-CV (Tenn. Ct. App. Jun.  18, 2012).  The summary from the slip opinion reads as follows:

A patient who alleged that he had been negligently injured by his podiatrist filed a complaint against him for malpractice, and then voluntary dismissed the complaint without prejudice. Less than a year later, he furnished the defendant podiatrist with the sixty day notice of potential claim required by a recently enacted statute, Tenn. Code Ann. § 29-26-121(a). He subsequently refiled his complaint in reliance on his rights under the saving statute, Tenn. Code Ann. § 28-1-105. The defendant filed a motion for summary judgment, arguing that the complaint was time-barred under the saving statute because it was filed more than one year after the dismissal of the original complaint. The plaintiff contended, however, that he was entitled to the benefit of Tenn. Code Ann. § 29-26-121(c), which extends the statute of limitations on medical malpractice claims by 120 days if the plaintiff has complied with the sixty day notice requirement. The defendant responded by arguing that Tenn. Code Ann. § 29-26-121(c) does not apply to complaints filed under the saving statute. The trial court dismissed the defendant’s motion for summary judgment, but allowed him to file an application for interlocutory appeal because of the novelty of the legal question involved.  After careful consideration of the relevant statutes, we hold that Tenn. Code Ann. § 29-26-121(c) does apply to the saving statute, and we affirm.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/rajvongsh.opn_.pdf

This is a good case for patients and people in general in Tennessee. Our state has a policy of resolving cases on the merits and not on procedural technicalities, which is only fair.  It's nice to see a trial court and an appellate court step up and do the right thing for the people of Tennessee.  

Service of Process and Commencement of a Civil Action

A while back the Court of Appeals issued its opinion in Fair v. Cochran, No. E2011-00831-COA-R3-CV (Tenn. Ct. App. Mar. 30, 2012).  The Court held as follows:

The Trial Court dismissed this case based upon its finding that although plaintiff’s Summons was issued the day she filed her Complaint, proof of service was not made to the clerk until 412 days later, and, because plaintiff had failed to comply with Tenn. R. Civ. P. 4, plaintiff was not entitled to rely on Tenn. R. Civ. P. 3 to toll the statute of limitations. Plaintiff appeals. We affirm.

Here's a link to the majority opinion:

http://www.tncourts.gov/sites/default/files/fairciopn.pdf

Here's a link to the dissent by Judge Susano:

http://www.tncourts.gov/sites/default/files/faircidis.pdf

Respectfully, I think the majority got it wrong and the dissent got it right.  The policy of this state is to decide cases on their merits and not on procedural technicalities (which this case turned on in my opinion).  See Branch v. Warren, 527 S.W.2d 89, 91 (Tenn. 1975); Karash v. Piggott, 530 S.W.2d 775, 777; Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn. 1996); Doyle v. Frost, 49 S.W.3d 853, 856 (Tenn. 201); Foster v. St. Joseph Hosp., 158 S.W.3d 418, 420 (Tenn. Ct. App. 2004).

Medical Malpractice: Jury Verdict Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Gaw v. The Vanderbilt University, No. M2011-00306-COA-R3-CV (Tenn. Ct. App. Apr. 19, 2012).  Here's the summary from the slip opinion, to wit:

This is an appeal from a jury verdict in a medical malpractice case. A surgeon performed a procedure on an infant to repair a birth defect at the defendant hospital. The infant sustained permanent injuries after the surgery. The parents filed suit on the infant’s behalf against the hospital for failing to adhere to the expected standard of care. At the conclusion of trial, the hospital moved for a directed verdict on all claims, with only the claims for informed consent and post-operative negligence being denied. The jury entered a judgment in favor of the infant. The hospital has appealed. We affirm the trial court’s judgment.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/gawmichaelopn.pdf

Medical Malpractice: New Opinion on Certificates of Good Faith

The Tennessee Court of Appeals, Middle Section, recently issued its opinion in Jackson v. HCA Health Serv's of Tenn., Inc., No. M2011-00582-COA-R3-CV (Tenn. Ct. App. Apr. 18, 2012).  The summary from the opinion reads as follows:

This appeal arises from the dismissal of a medical malpractice action due to the plaintiff’s failure to provide a certificate of good faith. All defendants filed Tennessee Rule of Civil Procedure 12.02(6) motions to dismiss the medical malpractice action based upon Tennessee Code Annotated § 29-26-122(a), which provides: “If the certificate is not filed with the complaint, the complaint shall be dismissed, as provided in subsection (c), absent a showing that the failure was due to the failure of the provider to timely provide copies of the claimant’s records requested as provided in § 29-26-121 or demonstrated extraordinary cause.” Because the plaintiff failed to make a showing that the omission was due to the failure of any healthcare provider to provide records or demonstrate extraordinary cause, the trial court granted the motions and dismissed the case. The plaintiff asserts on appeal that the statutory requirement violates the separation of powers clause and that it violates the due process and equal protection guarantees of the constitution of Tennessee by treating plaintiffs in suits for medical negligence differently from plaintiffs in other civil litigation and by allegedly restricting access to the courts. Finding no constitutional infirmities, we affirm.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/jacksonsandi_opn.pdf

What is perplexing about this opinion is the fact that the portion of it that deals with the separation-of-powers issue lacks any citation to any law on the subject.  It is noteworthy that other states have found such a law clearly unconstitutional based upon a violation of separation of powers.  And I don't know if those other decisions were brought to the court's attention or not; or if they were just ignored by the court.  

Medical Malpracitce: The Term "Injury" Defined

This is a re-post from a year ago (Apr. 5, 2011). It is good to remind ourselves of what an "injury" is for purposes of medical negligence or malpractice lawsuits.

How is an "injury" defined for purposes of medical malpractice? Here is the definition, to wit:

An injury is defined as any want of skillful care or diligence on a physician's part that sets back a patient's recovery, prolongs the patient's illness, increases the plaintiff's suffering, or, in short, makes the patient's condition worse than if due skill, care, and diligence had been used.

Church v. Perales, 39 S.W.3d 149, 171 (Tenn. Ct. App. 2000) (defining injury for purposes of medical malpractice actions).

Expert Witness Research

Here's a link to an expert witness research firm's Web site, to wit:

http://www.expertwitnessprofiler.com/
I got this link from the following blog:
http://www.dayontorts.com/expert-witnesses-new-expert-witness-background-search-service.html

Medical Malpractice: Yet Another Opinion on the Locality Rule Post-Shipley

The Tennessee Court of Appeals from the Western Section recently issued its opinion in Kennard v. Townsend, No. W2011-01843-COA-RM-CV (Tenn. Ct. App. Mar. 2, 2012). The summary from the opinion is as follows:

This case is before us upon mandate from the Tennessee Supreme Court for reconsideration of our previous opinion, Kennard v. Townsend, No. W2010–00461–COA–R3C, 2011 WL 1434625 (Tenn. Ct. App. April 14, 2011), in light of the Tennessee Supreme Court's decision in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). In our previous review of this medical malpractice case, we upheld the trial court’s exclusion of Appellant’s medical expert under the locality rule, and further affirmed the trial court’s grant of summary judgment against the Appellant. Because the qualifications of Appellant’s expert were not considered in light of Shipley, and because the admission of expert testimony is a matter of discretion in the trial court, we vacate the orders excluding the testimony of the Appellant’s expert and the grant of summary judgment, and remand for reconsideration in light of the Shipley decision. Vacated and remanded.

(Emphasis and bolding in original.)

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/kennardviopn.pdf

Comparative Fault: Another New Opinion on Tenn. Code Ann. § 20-1-119

The Tennessee Supreme Court recently issued its opinion in Mills v. Fulmarque, Inc., No. W2010-00933-SC-R11-CV (Tenn. Feb. 24, 2012). The summary of the case form the slip opinion is as follows:

We accepted this appeal to determine whether the phrase “a defendant named . . . within the applicable statute of limitations” in Tennessee Code Annotated section 20-1-119(a) (2009) refers only to a defendant sued within the statute of limitations applicable to the plaintiff’s claim or also refers to defendants not sued within the statute of limitations applicable to the plaintiff’s claim, but added to the lawsuit during the ninety-day period provided by section 20-1-119(a). Whether section 20-1-119(a) affords successive ninety-day windows during which a plaintiff may amend a complaint to add a new nonparty defendant as a comparative tortfeasor is an issue of first impression. Because we answer that question in the negative, we reverse the Court of Appeals and reinstate the judgment of the trial court granting Fulmarque’s motion for summary judgment and dismissing this action.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/sites/default/files/millscg_opn.pdf

Justice Wade issued a dissent, which can be found at this link:

http://www.tsc.state.tn.us/sites/default/files/millscg_dis.pdf

Oral Argument in Florida Supreme Court Case on Non-economic Damages

On February 9, 2012 the Florida Supreme Court heard oral arguments in Estate of McCall v. United States of America, Case No. SC11-1148. Here's a link to the oral argument:

http://wfsu.org/gavel2gavel/archives/flash/viewcase.php?case=11-1148

Medical Malpracitce: New Case on the Locality Rule Post-Shipley, Etc.

The Tennessee Court of Appeal (Western Section) recently released its opinion in McDonald v. Shea, No. W2010-02317-COA-R3-CV (Feb. 16, 2012). The opinion, among other things, addresses the qualification of an expert witness in a medical malpractice case under the locality rule post Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). The summary from the opinion is as follows:

This is a medical malpractice appeal. The plaintiff patient was treated by the defendant physician for ear problems. After the treatment, she had a complete loss of hearing in one ear. The plaintiff patient filed this lawsuit against the physician, alleging medical malpractice and lack of informed consent. After potential experts in Tennessee and contiguous states declined to testify against the defendant physician, the trial court permitted the plaintiff to use an expert physician witness from a non-contiguous state. At the jury trial, after the jury was sworn and counsel gave opening statements, a juror notified the trial judge of the her concern about an upcoming social event she planned to attend, at which a relative of the defendant physician would be present. After voir dire, the trial judge noted that the plaintiff patient had unused remaining peremptory challenges and excused the juror. The trial court denied the defendant physician’s motion for directed verdict on informed consent. the jury awarded the plaintiff substantial compensatory damages. The defendant physician now appeals, arguing that the trial court erred in permitting the plaintiff to obtain an expert from a non-contiguous state, in allowing the plaintiff to exercise a peremptory challenge after trial was underway, in permitting the informed consent claim to go to the jury, and in denying the defendants’ motion to exclude the expert retained by the plaintiff. We affirm on all issues except the dismissal of the juror. We hold it would be error to permit the exercise of a peremptory challenge after the trial is underway, but find that any error was harmless under the facts of this case. Therefore, we affirm.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/sites/default/files/mcdonaldmopn.pdf

Here's a link to Judge Highers's separate concurring and dissenting opinion:

http://www.tsc.state.tn.us/sites/default/files/mcdonaldcon.pdf

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:

http://www.tsc.state.tn.us/sites/default/files/dicksonleonopn.pdf

Sixth Anniversary!

This month marks the sixth anniversary of this blog. It is hard to believe that six years have gone by so quickly. Wow! I want to take this opportunity to thank my readers for, of course, reading this blog; and for their nice comments and e-mails over the years. It is appreciated. I also want to look back at 2011, which was a good year. I was honored (and humbled) to have been selected to be a Mid-South Super Lawyer (which is a very prestigious honor) and a member in the invitation-only group known as The National Trial Lawyers. Thanks, again, to the readers of this blog. You make doing this very rewarding and fun for a boy from East Tennessee who likes to keep his nose in a book and go to court to help people out.

Medical Malpractice: Verdict for Plaintiffs Reversed Due to Lack of Proof of Proximate Cause

The Middle Section of the Tennessee Court of Appeals recently released its opinion in Wilson v. Americare Sys., Inc., No. M2011-COA-R3-CV (Tenn. Ct. App. Jan. 5, 2012). Here's the summary from the opinion:

Decedent’s next of kin filed this wrongful death action against an assisted living facility, two nurses, and the facility’s management company for failure to provide proper care and treatment. This appeal concerns only the jury verdict and judgment finding the management company directly liable for failure to provide adequate staff at the assisted living facility. We find no material evidence to support a conclusion that any staffing deficiency proximately caused the decedent’s death. We therefore reverse the judgment finding direct liability on the part of the management company.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/wilsonropn.pdf

The lead lawyer for the plaintiffs, C.J. Gideon Jr., rarely does plainitffs' work; he mostly defends cases. Here's the link to his firm's Web site:

http://www.gideoncooper.com/.

He is also an adjunct professor of law at Vanderbilt University Law School, which makes you wonder why he didn't prove such an elementary thing as causation as the Court of Appeals found in this case.

New Tennessee Supreme Court Decision: Products Liabilty

Yesterday the Tennessee Supreme Court released its opinion in Lind v. Beaman Dodge, Inc., No. M2010-01680-SC-S09-CV (Tenn. Dec. 15, 2011). Here's the summary from the majority opinion:

The plaintiff, who had purchased a truck from an automobile dealership, filed a products liability suit in 2007 against not only the manufacturer, but also the dealership, as seller. Later, the plaintiff entered a voluntary nonsuit as to the seller and proceeded only against the manufacturer. Over one year after the order granting nonsuit, the manufacturer declared bankruptcy, and, in 2009, the plaintiff again sued the seller, alleging both negligence and strict liability in tort. The seller filed a motion to dismiss, contending that the suit was barred by the statute of limitations. The trial court denied the motion but granted an interlocutory appeal. The Court of Appeals denied the appeal. This Court granted the seller’s application for permission to appeal to consider the application of the saving statute to these unique circumstances. We hold that the plaintiff may proceed under the strict liability claim because that cause of action did not accrue until the manufacturer was judicially declared insolvent. because, however, the second suit alleged acts of negligence on the part of the seller, an exception to the statutory rule prohibiting products liability suits against sellers, and could have been brought in 2007, the statute of limitations is a bar to recovery under that theory. The judgment of the trial court is, therefore, affirmed in part and reversed in part, and the cause is remanded for trial.

Here's a link to that opinion:

http://www.tsc.state.tn.us/sites/default/files/lindmichael_opn.pdf

Justice Clark wrote a separate concurring opinion. Here it is:

http://www.tsc.state.tn.us/sites/default/files/lindm_con.pdf

New Tennessee Supreme Court Opinion: Expert Testimony

This is a follow-up post to one I did on June 25, 2010 on this same case; that opinion was from the Tennessee Court of Appeals. The day before yesterday, the Tennessee Supreme Court released its opinion in Holder v. Westgate Resorts Ltd., No. E2009-01312-SC-R11-CV (Tenn. Dec. 12, 2011). The summary of the opinion is as follows:

During a trial of the plaintiffs’ premises liability claim, the trial court excluded as hearsay a portion of the testimony of the defendant’s expert. The expert would have testified that he consulted an authoritative source whose interpretation of the applicable building code was consistent with that of the testifying expert. The jury returned a verdict for the plaintiff, and the defendant appealed. The Court of Appeals held that the trial court erred because the expert’s testimony was admissible pursuant to Tennessee Rule of Evidence 703. The Court of Appeals concluded that the trial court’s error was harmless, however, and affirmed the judgment. We hold that the Court of Appeals improperly applied an amended version of Rule 703 that was not in effect at the time of trial. We hold that the trial court properly excluded as hearsay portions of the proffered testimony of the testifying expert. We vacate the judgment of the Court of Appeals and affirm the judgment of the trial court.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/holderjopn.pdf

Summary Judgment and Proximate Cause

The Western Section of the Tennessee Court of Appeals recently issued its opinion in Moore v. Butler, No. W2010-02374-COA-R3-CV (Tenn. Ct. App. Dec. 1, 2011). Here's the summary of the opinion:

This appeal involves summary judgment in a vehicular accident case. In a line of vehicles, the defendant service vehicle was first, followed by the plaintiff’s tractor-trailer, and then bythe co-defendant’s tractor-trailer. The defendant’s service vehicle allegedly made a left turn without braking or using a turn signal, forcing the plaintiff’s tractor-trailer to brake quickly. This resulted in the co-defendant’s tractor-trailer rear-ending the plaintiff’s tractor-trailer. The plaintiff filed a personal injury lawsuit against the defendant tractor-trailer for rear-ending him, and against the defendant service vehicle that turned in front of him. The defendant service vehicle owner filed a motion for summary judgment. The trial court granted the motion, finding that the defendant service vehicle owner had negated the element of proximate cause. The defendant tractor-trailer owner appeals. We reverse under the summary judgment standard in Hannan v. Alltel Publ’g Co., 270 S.W.3d 1 (Tenn. 2008).

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/mooretaopn.pdf

Medical Malpractice: Statutorily Required Presuit Notice Provides 120-day Extension of One-year Statute of Limitations Against Governmental Entity

The Tennessee Court of Appeals released its opinion yesterday in Cunningham ex rel. Cunningham v. Williamson Cnty. Hosp. Dist., No. M2011-00554-COA-R9-CV (Tenn. Ct. App. Nov. 30, 2011). The summary of the opinion reads as follows:

Defendants, Williamson Medical Center and five of its employees, appeal from the denial of their motion to dismiss this medical malpractice action. They contend the action is time barred because it was filed more than one year after the cause of action accrued, in violation of the one year statute of limitations applicable to Tennessee Governmental Tort Liability Act actions, codified at Tennessee Code Annotated § 29-20-305(b). The trial court, however, found that the action was timely filed because it was commenced within the 120-day extension afforded to the plaintiffs pursuant to an amendment to the Tennessee Medical Malpractice Act, codified at Tennessee Code Annotated § 29-26-121(c) (2009). We have determined that the amendment codified at Tennessee Code Annotated § 29-26-121(a)-(c) applies, notwithstanding the one-year statute of limitations provision under the Governmental Tort Liability Act, that the plaintiffs’ compliance with the pre-suit notification provision in Tennessee Code Annotate § 29-26-121(a) extended the statute of limitations by 120 days, and that this action was timely filed within the 120-day extension. Therefore,were affirm.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/cunninghamwopn.pdf

New Case on the Element of Duty in a Negligence Case

The Middle Section of the Tennessee Court of Appeals recently issued its opinion in Norfleet v. Pulte Homes Tenn. Ltd. P'ship., No. M2011-01362-COA-R3-CV (Tenn. Ct. App. Nov. 9, 2011). The summary of the opinion is as follows:

While touring a model home in a new residential home development, the plaintiff fell when she failed to see a four-inch step as she walked from the foyer into the sunken living room. This premises liability action followed. The defendant constructed, owned, and managed the model home in which the plaintiff fell. Upon motion of the defendant, the trial court summarily dismissed the complaint upon two findings: that the defendant did not owe a legal duty to the plaintiff and that the plaintiff was more than fifty percent at fault. We affirm upon the finding that the plaintiff cannot establish that a duty was owed to her by the defendant.

Here's a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/norfleetmopn.pdf

Medical Malpractice: Yet Another Case on Certificates of Good Faith

The Tennessee Court of Appeals issued its opinion today in Crawford v. Kavanaugh, No. E2011-00696-COA-R3-Cv (Tenn. Ct. App. Nov. 21, 2011). Here's the summary of the case from the opinion:

This is a medical malpractice case in which Pauletta C. Crawford (“Wife”) and James Crawford (“Husband”) filed suit against Eugene Kavanaugh, M.D. (“Doctor”). While the suit was pending, Tennessee Code Annotated section 29-26-122 was amended to require the contemporaneous filing of a certificate of good faith with complaints alleging medical malpractice. Husband and Wife (collectively the “Crawfords”) dismissed their suit and filed a new complaint that did not include a certificate of good faith. Doctor filed a motion to dismiss, and the court dismissed the case. The Crawfords appeal. We affirm the trial court.

Here's a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/crawfordopn.pdf

Tony Duncan Named 2011 Mid-South Super Lawyer

I'm pleased to announce that I have been selected as a 2011 Mid-South Super Lawyer. I'm greatly honored and humbled by this, which is due in part to the selection process. That process is explained at this link:

http://digital.superlawyers.com/superlawyers/2011midsouth?pg=27#pg11

My listing is on page 29, which can be viewed at the following link:

http://digital.superlawyers.com/superlawyers/2011midsouth?pg=27#pg29

"Hot Coffee"

Here's a link to a site about the movie Hot Coffee. It's a documentary about the McDonald's coffee case.

If you've taken the time to look at this blog, please take the extra time to look at this link: http://hotcoffeethemovie.com/. Please get around to actually watching the movie, too.

"The Medical Malpractice Myth," by Tom Baker

Think medical malpractice lawsuits are a problem? You're wrong.

Please read The Medical Malpractice Myth by Professor Tom Baker (a law professor whose father and father-in-law are physicians). The book can be purchased at this link:

http://www.press.uchicago.edu/Misc/Chicago/036480.html

Getting Ready to Start Trial

I usually say the Serentiy Prayer before trial (and many other things), as you all know, it goes (in part) like this: "God grant me the serenity to accept the things I cannot change; courage to change the things I can; and wisdom to know the difference. Amen."

Medical Malpractice: Court Holds Re-filed Case Subject to New Laws and Dismisses It Because They Weren't Complied with by the Plaintiff

The Court of Appeals recently issued its opinion in Cude v. Herren, No. W2010-01425-COA-R3-CV (Tenn. Ct. App. Sept. 26, 2011). The court held that the plainitff had to comply with the new medical malpractice laws on pre-suit notice and certificates of good faith in a case re-filed under the saving statute, even though those laws did not apply when the case accrued.

Here's the summary of the case from the opinion:

The trial court dismissed Plaintiff’s re-filed suit for failure to comply with the 60-day notice and certificate of good faith requirements set out in the Medical Malpractice Act. Because we find such requirements applicable to Plaintiff’s suit and no extraordinary cause to excuse her non-compliance, we affirm the trial court’s dismissal.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/cudeelizabethopn.pdf

New Tennessee Supreme Court Opinion on the Family Purpose Doctrine

The Tennessee Supreme Court issued its opinion in Starr v. Hill, No. W2009-00524-SC-R11-CV (Tenn. Aug. 31, 2011). The opinion is a must-read if you are doing research on the family purpose doctrine in Tennessee.

Here is the summary of the opinion:

A father and his sixteen-year-old son were sued after the son was involved in an accident while driving a vehicle owned, insured, and provided to him by his father. The basis for the suit against the father was the family purpose doctrine, which imposes vicarious liability on the owner of a vehicle for the negligent operation of the vehicle by a family member. Whether the family purpose doctrine applies to the father requires us to address these issues: (1) whether the father, who does not reside in the same household as the son, was a head of the household under the family purpose doctrine; (2) whether the vehicle was maintained for the comfort or pleasure of the family or solely for use by the son; and (3) whether the vehicle was being driven with the father’s permission such that he had control over its use. The essential elements of the family purpose doctrine are that the owner must be a head of the household who furnishes and maintains the vehicle for the purpose of providing pleasure or comfort for the family, and at the time of the injury, the vehicle must have been driven in furtherance of that purpose with the head of the household’s express or implied permission. The trial court granted summary judgment to the father, finding that the family purpose doctrine did not apply. The Court of Appeals reversed, ruling that the family purpose doctrine applied to the father as a matter of law. We hold that the father was a head of the household because he had a family relationship with his son and a duty to support his son and the father furnished and maintained the vehicle for the purpose of providing pleasure or comfort to the family. However, a genuine issue of material fact remains as to whether the father had sufficient control over the vehicle. We vacate the decision of the Court of Appeals and remand for trial.

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/starrarleneopn.pdf

Proposed Rule Changes That May Affect the Tennessee Practitioner

At this link are some proposed rule changes to the Tennessee Rules of Civil Procedure, Evidence, and Juvenile Procedure.

http://www.tba2.org/tbatoday/news/2011/2012rulespackage_commentorder_082611.pdf

Ordinary Negligence Claim in a Healthcare Setting

Monday the Tennessee Court of Appeals (Middle Section) released its opinion in Vice v. Elmcroft of Hendersonville, No. M2010-01148-COA-R3-CV (Tenn. Ct. App. Aug. 22, 2011). The summary at the beginning of the opinion states as follows:

The daughter of an eighty-seven year old woman was looking for an assisted living facility for her mother, who was suffering from dementia. Elmcroft of Hendersonville assured the daughter that it could care for her mother and admitted her after the daughter informed it of her concern about her mother’s risk for falls. Three weeks following her admission the mother fell, and then fell three more times before the daughter moved her out of Elmcroft. The final fall resulted in a broken clavicle, which caused the mother pain and decreased mobility for the rest of her life. The daughter, as her mother’s representative, sued Elmcroft and its administrator for negligence and negligent admission and retention of her mother. A jury awarded a judgment against the defendants for $250,000. There was evidence the Elmcroft staff did not follow Elmcroft’s fall prevention policies and procedures. Elmcroft argued that all claims filed against it involved matters of medical science or art requiring specialized skills not ordinarily possessed by lay persons, and, therefore, this was a medical malpractice which should have been dismissed since the statutory requirements for such a claim had not been met. We conclude, based on the evidence herein, that the claims were ordinary negligence claims. Elmcroft also argued (1) the trial court erred in refusing to instruct the jury on the negligence of the daughter and a physician from another state who indicated the mother may be cared for by an assisted living facility and (2) that the jury award was excessive, contained a punitive component, and was the result of passion, prejudice and caprice. We conclude the court did not err in refusing to charge the jury on the physician’s comparative fault or the daughter’s comparative negligence. We also conclude there was material evidence to support the jury’s award of damages. Consequently, we affirm.

Here's a link to the slip opinion:

http://www.tsc.state.tn.us/sites/default/files/vicecopn.pdf

Medical Malpractice: New Tenn. Sup. Ct. Opinion on the Locality Rule

The Tennessee Supreme Court just issued its opinion in Shipley v. Williams, No. M2007-01217-SC-R11-CV (Tenn. Aug. 11, 2011). Here's the summary from the opinion:

In medical malpractice actions, Tennessee adheres to a locality rule for expert medical witnesses. Claimants are required by statute to prove by expert testimony the recognized standard of acceptable professional practice in the community where the defendant medical provider practices or a similar community. Tenn. Code Ann. § 29-26-115 (2000 & Supp. 2010). Since the locality rule was enacted in 1975, Tennessee courts have reached different conclusions in interpreting it. The rule does not define “similar community,” nor does it provide guidance as to how a community is determined to be “similar” to the defendant’s community. In this case, we address and clarify the applicable standards that courts should use in determining whether a medical expert is qualified to testify as an expert witness in a medical malpractice case. Applying these standards, we hold that the trial court’s exclusion of the claimant’s two proffered medical experts under the locality rule was error. The
trial court’s grant of summary judgment is affirmed in part and vacated in part.

Here's a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/shipleydonna.opn_.pdf

The opinion is a must-read for the medical malpractice lawyer in Tennessee.

Also, there is a separate concurrence and dissent by Justice Koch. Here's the link to it:

http://www.tncourts.gov/sites/default/files/shipleydonna.dis_.pdf

And, interstingly enough, immediate past Chief Justice Janice Holder wrote a separate concurrence to address Justice Koch's opinion. That opinion can be found at this link:

http://www.tncourts.gov/sites/default/files/shipleydonna.con_.pdf

A Quote from Teddy Roosevelt

My mentor shared this quote with me earlier this year. I like it and thought I'd share too. Here it is:

It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.

Dare greatly, my friends. Dare greatly!

Comparative Fault: New Opinion on Tenn. Code Ann. § 20-1-119

The Tennessee Court of Appeals (Western Section) recently released its opinion in Mann v. Alpha Tau Omega Fraternity, No. W2010-02316-COA-R3-CV, 2011 WL 3276233 (Tenn. Ct. App. Aug. 2, 2011). Here's the summary from the opinion:

Plaintiffs sued Defendants in an amended complaint following the expiration of the statute of limitations. Defendants moved for summary judgment/judgment on the pleadings based on the expiration of the statute of limitations. Subsequently, co-defendants alleged Defendants’ comparative fault in an amended answer. Defendants’ motions for summary judgment and for judgment on the pleadings were granted, but were not made final. Based on co-defendants’ answer, Plaintiffs again amended their complaint to name Defendants pursuant to Tennessee Code Annotated section 20-1-119. However, Defendants claimed that section 20-1-119 could not be utilized as they were already parties to the lawsuit, and they moved for summary judgment and to dismiss. The trial court granted said motions, and we
affirm.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/davey_mann_and_wife_teresa_mann_v_alpha_tau_omega_fraternity.pdf

Release of Property-damage Claim Not a Release of Personal-injury Claim

When confronted with whether a release of a property-damage claim effects a release of a concurrent personal-injury claim, take a look at Cross v. Earls, 517 S.W.2d 751 (Tenn. 1975).

Depositions

Miller and Zois have a Web site where there are links to various depositions that might be helpful to a new lawyer. Here's the link:

http://www.millerandzois.com/Sample_Depositions.html