New Tennessee Court of Appeals Opinion on Voir Dire, Remittitur, and Damages

The Court of Appeals recently issued its opinion in Borne v. Celadon Trucking Servs., Inc., No. W2013-01949-COA-R3-CV (Tenn. Ct. App. Jul. 31, 2014).  The summary from the majority opinion states as follows:

Plaintiff was injured in an accident involving three tractor-trailer trucks. Plaintiff, who was driving a tractor-trailer, sued the other truck drivers and the trucking company owners of the vehicles. However, prior to trial, Plaintiff entered into an agreement with one of the trucking companies whereby Plaintiff and the agreeing defendant agreed to cooperate regarding the litigation and to work together to expose the defenses asserted by the non-agreeing defendant. The jury returned an itemized verdict of $3,705,000 for the Plaintiff against the non-agreeing defendant. The trial court denied the non-agreeing defendant’s motion for a new trial, but it suggested a remittitur of $1,605,000, for a total award of $2,100,000.  Plaintiff accepted the remittitur under protest and the non-agreeing defendant appealed to this Court. For the following reasons, we affirm in part and we reverse in part. Specifically, we affirm the physical pain and mental anguish and permanent injury awards as reduced by the trial court; we reverse the trial court’s suggested remittitur of the loss of earning capacity award and we instead reinstate the jury verdict of $1,455,000; and we further reduce the loss of enjoyment of life award to $50,000. Thus, we approve a total award to Plaintiff of $2,105,000.

Here's a link to the majority opinion:

https://www.tba.org/sites/default/files/borned_073114.pdf

Here's a link to the partial dissent by Judge Stafford:

https://www.tba.org/sites/default/files/bornd_DIS_073114.pdf

NOTE: look for a Tenn. R. App. P. 11 application to be filed in this case.  I suspect the Tennessee Supreme Court might take it up given the very good points Judge Stafford made in his partial dissent.

New Health Care Liability Action Opinion

Yesterday the Tennessee Court of Appeals released its opinion in Johnson v. Parkwest Med. Ctr., No. E2013-01228-COA-R3-CV (Tenn. Ct. App. Jul. 31, 2014).  The summary from the opinion states as follows:

Eric Johnson, acting individually and as next of kin of the decedent,Jana Lanell Johnson, and the Estate of Jana Lanelle Johnson (“Plaintiffs”), filed the instant action on April 27, 2010, regarding Ms. Johnson’s death. The action alleged health care liability claims pursuant to Tennessee Code Annotated § 29-26-115, as well as other claims, including ordinary negligence and intentional infliction of emotional distress. An agreed order granting partial summary judgment to Parkwest Medical Center (“Parkwest”) was entered with regard toPlaintiffs’ non-medical claims. Parkwest subsequently filed a motion to dismiss, alleging that Plaintiffs failed to comply with all of the requirements of Tennessee Code Annotated § 29-26-121 regarding the health care liability claim. Upon hearing, the trial court granted the motion. Plaintiffs filed additional motions regarding newly discovered evidence, including a motion seeking to set aside the prior order granting partial summary judgment or to amend the complaint, a motion to amend the certificate of good faith, and a motion seeking sanctions. The trial court denied Plaintiffs’ motion seeking to set aside the prior order granting partial summary judgment or to amend the complaint, as well as Plaintiffs’ motion to amend the certificate of good faith. The trial court failed to rule on Plaintiffs’ motion seeking sanctions. Plaintiffs have appealed to this Court. We affirm the trial court’s dismissal of Plaintiffs’ health care liability claim based on Plaintiffs’ failure to substantially comply with the requirements of Tennessee Code Annotated § 29-26-121. We vacate the trial court’s rulings with regard to Plaintiffs’ motions to amend and motion to set aside the partial summary judgment order. We remand for further proceedings consistent with this opinion.

Here is a link to the opinion:

https://www.tba.org/sites/default/files/johnsone_073114.pdf

Flowchart of the Medicare Recovery Process (2.01.14)

https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Attorney-Services/Downloads/Beneficiary-NGHP-Recovery-Process-Flowchart.pdf

Case Dismissed Due to Plaintiff's Counsel's Failure to Effect Proper Service of Process

The Court of Appeals issued its opinion today in Doyle v. Town of Oakland, No. W2013-02078-COA-R3-CV (Tenn. Ct. App. Jul. 28, 2014).  The summary from the opinion states as follows:

This is an appeal from a dismissal for improper service of process. The plaintiff filed a complaint against the defendant municipality. The summons and complaint were served on the municipality’s finance director. In its answer, the municipality asserted improper service of process for failure to serve either the municipality’s chief executive or its city attorney.  Later, the municipality filed a motion for summary judgment. The motion asserted that, because service of process was insufficient under Tenn. R. Civ. P. 4.04, the complaint was time-barred under the applicable statute of limitations. The trial court granted summary judgment in favor of the municipality. The plaintiff appeals. Discerning no error, we affirm.

Here is a link to the opinion:

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

Six Children Injured in Crash on I-24

http://www.wsmv.com/story/26121545/6-children-injured-in-crash-along-i-24

New Medical Malpractice Case: Expert's Failure to Disclose Financial Information Leads to Disqualification

The Court of Appeals just issued its opinion in Lasseter v. Estate of Fernando Herrera, M.D., No. W2013-02105-COA-R3-CV (Tenn. Ct. App. Jul. 24, 2014).  The summary from the opinion states as follows:

This appeal involves a defendant’s attempts to discover certain financial information from the plaintiff’s medical expert in order to facilitate an inquiry into potential bias. The trial court entered several orders requiring the expert witness to provide the requested financial information, which related to his income and compensation, but the expert witness repeatedly failed to comply with the trial court’s orders. The trial court also ruled that the defendant would be permitted to question the expert witness about certain financial information during cross-examination at trial, and the expert witness communicated to the trial judge that he would refuse to answer any such questions. The trial court eventually excluded the medical expert as a witness and allowed the plaintiff time to find a replacement expert. When the plaintiff failed to identify another expert witness within the time allowed, the trial court dismissed the complaint. The plaintiff appeals. We affirm.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/laseterl_072414.pdf

Deadly Crash Shuts Down Briley Pkwy.

http://www.wsmv.com/story/26088923/deadly-crash-shuts-down-briley-pkwy

Are More Drivers Obeying the State's Move-over Law?

I thought this story might be of interest to you.  See link below.

http://www.wsmv.com/story/26087035/are-more-drivers-obeying-the-states-move-over-law

New Health Care Liability Opinion on Ex Parte Communications with a Plaintiff's Treating Physicians

The Tennessee Court of Appeals just released its opinion in Hall v. Crenshaw, No. W2013-00662-COA-R9-CV (Tenn. Ct. App. Jul. 18, 2014).  The summary from the opinion states as follows:

This interlocutory appeal involves ex parte communications between defense counsel for a defendant medical entity and non-party physicians who treated the plaintiff’s decedent and are employed by the defendant medical entity. The plaintiff filed this healthcare liability action against the defendant medical entity arising out of treatment of the plaintiff’s decedent. The trial court held that the attorneys for the defendant medical entity are barred under Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn. 2006), from conferring ex parte with treating physicians employed by the defendant medical entity who are not named as defendants in the lawsuit. The defendant medical entity was granted permission for this interlocutory appeal. We hold that the defendant medical entity has an independent right to communicate privately with its employees, and this right is not abrogated by the filing of the plaintiff’s healthcare liability lawsuit. Therefore, Alsip does not bar the medical entity’s attorneys from communicating ex parte with physicians employed by the medical entity about the physician employee’s medical treatment of the plaintiff’s decedent.  Accordingly, we reverse. 

(Bolding and italics in original.)

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/hallcopn_0.pdf

Vehicle Speed Calculator

I found this Web site this morning and thought I'd share.  See link below.

http://www.atlantaeng.com/calculatormultiple.html

New Tennessee Supreme Court Opinion on Summary Judgments: Trial Courts Must Explain Reasoning When Ruling on Summary Judgment Motions and Can't Delegate that Function to Counsel

The Tennessee Supreme Court just issued its opinion in Smith v. UHS Lakeside, Inc., No. W2011-02405-SC-R11-CV (Tenn. Jul. 15, 2014).  The summary from the opinion states as follows:

This appeal involves the manner in which a trial court granted motions for summary judgment in a proceeding involving the death of a patient whose treatment for viral encephalitis was delayed because he was also being assessed for involuntary commitment to a psychiatric hospital. The widow of the deceased patient filed suit against three health care providers in the Circuit Court for Shelby County. In her original complaint and four subsequent amended complaints, the widow asserted eight causes of action against one or more of the providers. The trial court eventually granted a series of summary judgments dismissing all the claims against one of the providers without explaining the grounds for its decisions and requested counsel for the provider to prepare appropriate orders “establish[ing] the rationale for the [c]ourt’s ruling in quite specific detail.” The provider’s counsel prepared detailed orders adopting all the arguments the provider had made in favor of its summary judgment motions, and the trial court signed these orders over the widow’s objections. The widow appealed, arguing that the trial court had failed to provide reasons for its decisions and that the orders did not accurately reflect what had occurred at the summary judgment hearings. The Court of Appeals vacated the disputed orders because the trial court had failed to state the legal grounds for its decisions as required by Tenn. R. Civ. P. 56.04 and remanded the case to the trial court. Smith v. UHS of Lakeside, Inc., No. W2011-02405-COA-R3-CV, 2013 WL 210250, at *12-13 (Tenn. Ct. App. Jan. 18, 2013). We granted the provider’s application for permission to appeal. We have determined that the record establishes that the contested orders were not the product of the trial court’s independent judgment, and therefore, we hold that the trial court failed to comply with Tenn. R. Civ. P. 56.04.

Here is a link to the slip opinion:

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

New Medical Malpractice Case (n.k.a. Health Care Liability Action): Plaintiff's Claim Against Additional Defendants Held to Be Time-barred

The Tennessee Court of Appeals issued its opinion today in Robinson v. Baptist Memorial Hospital, No. W2013-01198-COA-R3-CV (Tenn. Ct. App. Jul. 11, 2014).  Here is the summary from the opinion:

This is a medical negligence/wrongful death case. Following their mother’s death, Appellants’ filed the instant lawsuit against several doctors who provided treatment to their mother. During discovery, Appellants allegedly learned that the Appellee physician had amended his original consultation report to correct a mis-diagnosis of the Decedent’s condition. Appellants were granted leave to amend their complaint to add the Appellee and his medical practice as defendants to the lawsuit. The amended complaint naming the Appellees was filed some five years after the filing of the original lawsuit. Appellees moved for summary judgment on the ground that the statutes of limitations and repose barred Appellants’ case. The trial court granted summary judgment, finding that the Appellants had not shown facts sufficient to establish fraudulent concealment on the part of the Appellee physician so as to toll the applicable one-year statute of limitations and three-year statute of repose under Tennessee Code Annotated Section 29-26-116. The trial court also found that Appellants had failed to exercise due diligence in discovering the alleged fraudulent concealment. Appellants appeal. For the reasons stated herein, we affirm and remand.

Here is a link to the slip opinion:

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

Note: This case was decided under the old law in Tennessee before cases were referred to by statute as "health care liability actions."  This does not, however, appear to affect the holding of this case.

New Medical Malpractice Case (n.k.a. Health Care Liability Action): Plaintiff Allowed to Nonsuit Case to Cure Allegedly Defective Certificate of Good Faith

The Tennessee Court of Appeals just issued its opinion in Davis v. Ibach, No. W2013-02514-COA-R3-CV (Tenn. Ct. App. Jul. 9, 2014).  The summary from the opinion states as follows:

This is a medical malpractice wrongful death action. After the plaintiff filed this lawsuit, he timely filed a certificate of good faith, as required by the medical malpractice statute. The certificate did not include a statement that the executing party had “zero” violations of the statute. The defendants filed a motion to dismiss based on this omission. The plaintiff in turn filed a notice of voluntary nonsuit without prejudice. The defendants objected to a dismissal without prejudice. The defendants argued that, if the certificate of good faith does not strictly comply with the statutes, the trial court must dismiss the case with prejudice. The trial court granted the voluntary nonsuit without prejudice, and the defendants now appeal that decision.
Discerning no error, we affirm.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/davistopn_0.pdf

Note: this opinion deals with some law that is no longer in effect.  However, that does not appear to affect the holding of this case.

Another Health Care Liability Action Opinion: Plaintiff's Case Dismissed Due to Running of Statute of Limitations That Was Not Extended by Presuit Notice That Was Transmitted in a Manner Proscribed by Statute

The Tennessee Court of Appeals recently issued its opinion in Arden v. Kozawa, No. E2013-01598-COA-R3-CV (Tenn. Ct. App. Jun. 18, 2014).  The summary from the opinion states as follows:

The plaintiff, as surviving spouse, appeals the trial court’s dismissal of his health care liability action against the defendant doctor who treated the plaintiff’s wife prior to her death and the hospital wherein the treatment occurred. The trial court granted the defendants’motions for summary judgment based upon the plaintiff’s failure to strictly comply with the pre-suit notice requirements of Tennessee Code Annotated § 29-26-121 (Supp. 2013). We reverse the trial court’s ruling that the plaintiff had to strictly comply with the provisions of the notice requirement and conclude that the plaintiff substantially complied with said requirement. We affirm, however, the trial court’s ruling that the plaintiff could not rely upon the statutory 120-day extension of the statute of limitations due to his failure to properly serve the notice. We therefore affirm the trial court’s dismissal of the plaintiff’s claims as barred by the statute of limitations.

Here is a link to the opinion:

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

The Declaration of Independence

Every Independence Day ("Fourth of July"), or around that time, I post this video on my blog.  Here it is again: 

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

Happy Independence Day everyone!

New Health Care Liability Action Opinion: Trial Court Erred in Excluding One of Plaintiff's Expert Witnesses; Error, However, Was Harmless under the Circumstances

The Tennessee Court of Appeals issued its opinion today in Evans v. Williams, No. W2013-02051-COA-R3-CV (Tenn. Ct. App. Jun. 30, 2014).  The summary from the opinion states as follows:

This is a health care liability action appeal.[]  The case was tried before a jury, resulting in a judgment for the defendant physicians. The trial court excluded the testimony of one of the plaintiff’s expert witnesses on the applicable standard of care after finding that he was not qualified under the locality rule. The plaintiff appealed to this Court arguing, among other things, that the trial court erred in its application of the locality rule. We hold that it was error for the trial court to exclude the witness, but find that any error was harmless under the facts of this case. We therefore affirm.

(Footnote omitted.)

Here is a link to the opinion:

https://www.tba.org/sites/default/files/evansb_063014.pdf

New Laws Effective in Tennessee in 2014

January 1, 2014:

http://www.capitol.tn.gov/legislation/publications/effective%2001-01-2014.pdf

July 1, 2014:

http://www.capitol.tn.gov/legislation/publications/Effective%207-1-2014.pdf

New Health Care Liability Opinion: Court Holds Plaintiffs Failed to Comply with the Onerous Presuit Notice Requirements; Lawsuit Dimisssed

The Tennessee Court of Appeals from the Eastern Section just released its opinion in Roberts v. Prill, No. E2013-02202-COA-R3-CV (Tenn. Ct. App. Jun. 26, 2014).  The summary from the opinion states as follows:

This is a health care liability[] action arising from the death of Decedent. Defendants moved to dismiss the action for failure to comply with the notice requirements set out in Tennessee Code Annotated section 29-26-121(a)(2)(E). The trial court agreed and dismissed the action without prejudice. Plaintiff appeals the dismissal to this court. We affirm the trial court’s dismissal. 

Here is a link to the opinion:

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

Lawyers May Look at What Jurors Post Online, But Only If It’s Available to the Public

If you have a trial practice, criminal or civil, the following article will be of interest to you, to wit:

http://www.abajournal.com/magazine/article/lawyers_may_look_at_what_jurors_post_online_but_only_if_its_available_to_th/?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly

New "Premises Liability" Case: Directed Verdict for the Defense Reversed on Appeal; Court Reminds Us That Causation and Fault Are Generally Questions for the Jury

The Tennessee Court of Appeals just issued its opinion in Wilson v. TMBC, LLC,  No. 2013-01907-COA-R3-CV (Tenn. Ct. App. May 27, 2014).  The summary from the opinion states as follows:

The plaintiff took his bass fishing boat to defendant’s business for it to repair a “rodbox lid” that did not fit properly. While the boat was there, defendant replaced the lid. Subsequently, plaintiff went to the defendant’s store and got in the boat, which was on a trailer in the parking lot, in order to examine the new lid. While attempting to exit the boat, plaintiff caught his foot on something, tripped, and fell out of the boat. Plaintiff’s theory was that an employee of the defendant had negligently left the old rodbox lid inside the boat and that plaintiff tripped over the old lid. At the close of plaintiff’s proof, defendant moved for a directed verdict, arguing that (1) plaintiff failed to prove breach of duty because, according to defendant, he offered no evidence of the object that caused his fall; and (2) defendant could not, as a matter of law, be liable because plaintiff was at least 50% at fault for his injuries. The trial court directed a verdict for defendant. We hold that plaintiff presented sufficient proof that the old lid caused him to trip and fall, and that a reasonable trier of fact could conclude that the employee had negligently caused plaintiff’s injury. We further hold that the question of comparative fault is properly for the jury to decide under the proof presented at this trial. We therefore vacate the directed verdict and remand for further proceedings. 

Here is a link to the opinion:

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

NOTE: in this case, at trial, a directed verdict was granted to the defense.  The Court of Appeals does a good job analyzing the law on this subject, and, again, reminds us that causation and fault are generally questions for the jury.

Memorial Day 2014

Please have a safe holiday weekend.  And remember our fallen soldiers.  They paid the ultimate sacrifice for you, me, and our posterity.

Help Keep the Tennessee Supreme Court Fair and Impartial: Vote to "RETAIN" Justices Clark, Lee, and Wade on Aug. 7, 2014

Members of the Tennessee Supreme Court are under attack by our state's Lt. Gov.  The attack is unfair, unwarranted, and just flat-out wrong.  See the news story at the following link below:

http://www.newschannel5.com/story/25446548/ramseys-supreme-court-claims-called-misleading

Further, the Lt. Gov. appears to be leading this attack for no other reason than his own political gain (think about it, he "wins" this one, he then gains favor from interests such as Big Money and Big Business, etc., which will help him run for governor---again!).

As such, if you are a registered voter in Tennessee, I am asking for your help.  Please Vote to "RETAIN" all three justices on August 7, 2014.  

Further, donations may be sent to the following, to wit:

Committee to Retain Justice Clark
918 Fair St.
Franklin, TN 37064
www.keepconnieclark.com

Committee to Retain Sharon Lee
P.O. Box 584
Knoxville, TN 37901
www.justicesharonlee.com

Friends of Gary Wade
P.O. Box 32676
Knoxville, TN 37930
www.friendsofgarywade.com

New Medical Malpractice Opinion on Presuit Notice to the State of Tennessee

The Tennessee Court of Appeals just released its opinion in Brown v. Samples, No. E2013-00799-COA-R9-CV (Tenn. Ct. App. Apr. 29, 2014).  The summary states as follows:

This is a medical malpractice action brought against the State of Tennessee and others. The issue as to the appealing State is whether the plaintiffs complied with the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121 (2012 & Supp. 2013). The State argues that the plaintiffs were required to send the pre-suit notice applicable to their claim against the State to either (1) the Attorney General of Tennessee or an Assistant Attorney General, or (2) the Division of Claims Administration of the State. The Tennessee Claims Commission denied the State’s motion to dismiss, finding (1) no statutory authority requiring that pre-suit notice as to the State be served upon one of the parties alluded to by the State, and (2) that the State received adequate pre-suit notice in this case. We affirm and hold that the plaintiffs complied with Section 121’s pre-suit notice requirements by providing notice to the University of Tennessee Graduate School of Medicine, a health care provider, which entity is a division of an agency of the State of Tennessee and also a named defendant in this case. 

Here is a link to the opinion:

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

NOTE: Please note that this case was filed before the statutory name change (from medical malpractice actions to health care liability actions), which is noted in footnote 1 of this opinion.

New Tennessee Supreme Court Opinion on Substantial Compliance as It Relates to the Filing of Affidavits Demonstrating Presuit Notice in a Health Care Liability Action

The Tennessee Supreme Court just released its opinion in Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLLC, No. M2012-02270-SC-R11-CV (Tenn. Apr. 24, 2014).  The summary from the opinion states as follows:

Sixty days prior to filing his complaint, the plaintiff in this health care liability action sent written notice of his potential claim to each of the health care providers that would be named as defendants. Tenn. Code Ann. § 29-26-121(a)(1) (2012 & Supp. 2013). The plaintiff served the pre-suit notice by certified mail, return receipt requested, as permitted by statute.  Id. § 29-26-121(a)(3)(B). In his subsequent complaint, the plaintiff alleged that he had complied with the statutory requirement of pre-suit notice, id. § 29-26-121(b), but the plaintiff failed to file with the complaint “an affidavit of the party mailing the [pre-suit] notice establishing that the specified notice was timely mailed by certified mail, return receipt requested,” id. § 29-26-121(a)(4). The defendants moved for dismissal of the lawsuit, citing the plaintiff’s failure to file with the complaint an affidavit of the person who had sent the pre-suit notice by certified mail. The defendants did not allege that the lack of the affidavit resulted in prejudice. Instead, the defendants contended that the pre-suit notice statute demands strict compliance with all its requirements and that dismissal is the mandatory remedy for noncompliance. The trial court “reluctantly” agreed with the defendants and dismissed the complaint. The Court of Appeals affirmed but noted the “harsh results” strict compliance produces in cases, such as this one, where no prejudice is alleged. We granted the plaintiff’s application for permission to appeal. We hold that the statutory requirement of an affidavit of the person who sent pre-suit notice by certified mail may be satisfied by substantial compliance. We also hold that the plaintiff substantially complied with the statute. Accordingly, the judgment of the Court of Appeals affirming the trial court’s dismissal of the complaint is reversed; the complaint is reinstated; and this matter is remanded to the trial court for further proceedings.

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/thurmondr_opn_1.pdf

Trial Court Ruling Allowing Plaintiff to File an Amended Certificate of Good Faith and Denying Defense Motion to Dismiss Upheld on Appeal

The Court of Appeals recently released its opinion in Stovall v. UHS of Lakeside, LLC, No. W2013-01504-COA-R9-CV (Tenn. Ct. App. Apr. 22, 2014).  The summary of the opinion states as follows:

Appellant medical providers appeal the trial court’s denial of their motions to dismiss a medical malpractice complaint for failure to strictly comply with Tennessee Code Annotated Section 29-26-122(d)(4). Because we conclude that the trial court had good cause to grant an extension, within which to file a certificate of good faith, we affirm the decision of the trial court. 

Here's a link to the opinion:

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

Health Care Liability Action: Court Reiterates That Statute of Repose Bars a Minor's Claim After Three Years; No Tolling Due to Minority in Such Cases

The Tennessee Court of Appeals just released its opinion in Bentley v. Wellmont Health Sys., No. E2013-01956-COA-R3-CV (Tenn. Ct. App. Apr. 10, 2014).  The summary from the opinion states as follows:

This is a health care liability action in which Defendants sought dismissal, claiming that the action was barred by the three-year statute of repose, codified at Tennessee Code Annotated section 29-26-116, as interpreted by Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005). Plaintiff alleged that the Court’s interpretation of the statute was unconstitutional as applied to his case. The trial court disagreed and dismissed the case. Plaintiff appeals. We affirm the decision of the trial court.

Here's a link to the opinion:

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

Video: Deposing Experts with Daubert in Mind

Here is a video from the ABA that I found informative on deposing expert witnesses.  It is available at the link below:

https://www.youtube.com/watch?v=Zk_jRK4tocg

New Medical Malpractice Opinion: Court Holds That Case Was Not Subject to Dismissal Due to an Omitted Affidavit at Filing

The Tennessee Court of appeals just issued its opinion in Chambers ex rel. Chambers v. Bradley Cnty., No. E2013-01064-COA-R10-CV (Tenn. Ct. App. Mar. 28, 2014).   

In this medical malpractice[] case, the defendants moved to dismiss the complaint with prejudice on the grounds that plaintiff failed to file, with his complaint, the affidavit of the person who mailed pre-suit notice to the defendants. The trial court, noting that plaintiff complied with Tenn. Code Ann. § 29-26-121 (Supp. 2013) in every respect except for filing the affidavit, and that he filed the affidavit shortly after the complaint, denied the motion to dismiss on the ground that plaintiff had substantially complied with the statute. We affirm the judgment of the trial court. 

Here's a link to the opinion, to wit:

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

NOTE: Medical malpractice actions are now known as "health care liability actions" for cases that accrued on or after April 23, 2012.  This case, however, accrued before that date, which is why it is referred to by the old name as explained by footnote 1 of the opinion.

New Medical Malpractice Opinion: Court of Appeals Holds That Case Refiled under the Saving Statute Was Not Subject to Dismissal Because Plaintiffs Did Not Resend Presuit Notices Before Refiling the Case

The Tennessee Court of Appeals recently released its opinion in Potter v. Perrigan, No. E2013-01442-COA-R3-CV (Tenn. Ct. App. Mar. 27, 2014).  The summary from the opinion states as follows:

This is a medical malpractice[] action. Plaintiffs timely filed a complaint after properly sending pre-suit notices to Defendants. After voluntarily dismissing the initial complaint, Plaintiffs filed a second complaint pursuant to the saving statute with an attached certificate of good faith and a copy of the original pre-suit notices. Defendants moved to dismiss the second complaint for failure to comply with the notice requirements set out in Tennessee Code Annotated section 29-26-121(a). The trial court agreed and dismissed the action. Plaintiffs appeal. We reverse the decision of the trial court. 

Here is a link to the opinion, to wit:

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

NOTE: Medical malpractice actions are now known as "health care liability actions" for cases that accrued on or after April 23, 2012.  This case, however, accrued before that date, which is why it is referred to by the old name as explained by footnote 1 of the opinion.

Florida Supreme Court Declares Caps on Noneconomic Damages Unconstitutional

In an opinion released today (see link below), the Florida Supreme Court declared caps on noneconomic damages to be unconstitutional in wrongful death, medical malpractice cases on equal protection grounds under the Florida Constitution.  The case is Estate of McCall v. United States, No. SC11-1148 (Fla. Mar. 13, 2014).  It was a certified question from the Eleventh Circuit Court of Appeals.

http://www.floridasupremecourt.org/decisions/2014/sc11-1148.pdf

New Tennessee Supreme Court Opinion on Tennessee Code Annotated section 20-1-119

The Tennessee Supreme Court issued its opinion today in Becker v. Ford Motor Co., No. M2013-02546-SC-R23-CV (Tenn. Mar. 7, 2014).  The summary from the slip opinion states as follows:

This appeal involves a question of law concerning the interpretation and application of Tenn. Code Ann. § 20-1-119 (2009) certified by the United States District Court for the Eastern District of Tennessee. Based on the undisputed facts, the District Court has asked this Court to determine whether, after a defendant asserts a comparative fault claim against a non-party tortfeasor who was known to the plaintiff when the original suit was filed, Tenn. Code Ann. § 20-1-119 permits the plaintiff to amend its complaint to assert a claim directly against the tortfeasor named by the defendant, even though the statute of limitations on that claim has expired. We hold that the application of Tenn. Code Ann. § 20-1-119 is not restricted to tortfeasors who were unknown to the plaintiff when its original complaint was filed.  Therefore, Tenn. Code Ann. § 20-1-119 permits a plaintiff to file an amended complaint against the tortfeasor named by the defendant within ninety days after the filing of the answer or amended answer in which the defendant first asserts a comparative fault claim against the tortfeasor.

Here's a link to the opinion:

https://www.tncourts.gov/sites/default/files/beckermichaelopnorder.pdf

This opinion is no real surprise as far as Tennessee's law of comparative fault is concerned.  It is a more current version of another reported decision on this issue.  See generally Townes v. Sunbeam Oster Co., 50 S.W.3d 446 (Tenn. Ct. App. 2001).  However, as the Tennessee Supreme Court pointed out, this certified question was taken to clarify Tennessee's substantive law of comparative fault for the federal courts (which have, respectfully, misinterpreted Tennessee's law of comparative fault for a long time now).

Plaintiffs Capped by the Ad Damnum in The Complaint

The Tennessee Court of Appeals just issued its opinion in Wilson v. Americare Systems, Inc., No. M2013-00690-COA-RM-CV (Tenn. Ct. App. Feb. 25, 2014).  The summary in the slip opinion states as follows:

A defendant appeals the award of punitive damages arising from the death of a patient at an assisted living facility, which the defendant managed. We affirm the trial court’s review of the Hodges factors and the due process analysis relating to the punitive damage award. We also affirm the trial court’s directed verdict making the defendant liable for the actions of the assisted living facility’s employees. We must modify the amount of the punitive damage award by reducing it to comply with the amount the plaintiff requested in the ad damnum clause of their complaint.

Here is a link to the opinion:

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

This opinion is a harsh reminder that a plaintiff is limited by the ad damnum in the complaint in a Tennessee state court civil action, which is contrary to the rule in federal court.

New Opinion on Tennessee Code Annotated section 20-1-119; the Governmental Tort Liability Act; and the Claims Commission

The Tennessee Court of Appeals just issued its opinion in Moreno v. City of Clarksville, No. M2013-01465-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2014).  The summary from the slip opinion reads as follows:

Plaintiff filed a timely claim with the Division of Claims Administration, which did not resolve the claim within the statutory period. The claim was transferred to the Claims Commission, and Plaintiff filed a complaint pursuant to the Claims Commission Rules. Much later, the State amended its answer to allege fault by the City of Clarksville. Plaintiff filed suit against the City. The suit was dismissed because the trial court found that the “original complaint” under Tenn. Code Ann. § 20-1-119 was not filed within a year of the alleged
injury. Plaintiff appealed. We reverse.

Here is a link to the opinion:

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

This opinion offers a very good discussion of Tenn. Code Ann. sec. 20-1-119; the Governmental Tort Liability Act; and the Claims Commission.  It is a must-read for any Tennessee trial lawyer.

Court of Appeals Upholds Trial Court's Dismissal of Plaintiff's Medical Malpractice Case Due to a Failure to Comply with Relatively New Tort Reform Statute That Required Sixty-day Presuit Notice

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Blankenship v. Anesthesiology Consultants Exchange, P.C., No. E2013-01674-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2014).  The summary from the slip opinion states as follows:

Kristine Blankenship (“Plaintiff”) sued Anesthesiology Consultants Exchange, P.C. (“Defendant”) alleging, in part, that as a result of Defendant’s failure to properly treat a surgical patient Plaintiff suffered injuries including “a severe and disabling injury to her back.” Defendant filed a motion for summary judgment. After a hearing, the Trial Court granted Defendant summary judgment after finding that Plaintiff had failed to comply with Tenn. Code Ann. § 29-26-121 by filing her complaint less than 60 days after sending the notice letter. Plaintiff appeals to this Court raising issues regarding whether Defendant waived the defense of failure to state a claim upon which relief can be granted based upon Plaintiff’s failure to comply with Tenn. Code Ann. § 29-26-121 and whether Tenn. Code Ann. § 29-26-121 conflicts with Rule 18.01 of the Tennessee Rules of Civil Procedure as applied to this case. We hold, as did the Trial Court, that Defendant did not waive the defense of failure to state a claim upon which relief can be granted based upon Plaintiff’s failure to comply with Tenn. Code Ann. § 29-26-121, and that Plaintiff waived her second issue by not raising it in the Trial Court. We affirm.

Here is a link to the opinion:

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

Needless to say, this is an unusual case that is muddled by the fact that it seems to sound in both medical negligence and ordinary negligence.  For the reader of this post, please be mindful of the timing of recent tort reform legislation as it applies to this case.

Health Care Liability Reports for the State of Tennessee from 2005-13

The State of Tennessee's Department of Commerce & Insurance publishes reports on health care liability actions (f.k.a. medical malpractice actions).  These reports have been published since 2005.  They are below:

• 2013 Report
• 2012 Report
• 2011 Report
• 2010 Report
• 2009 Report
• 2008 Report
• 2007 Report
• 2006 Report
• 2005 Report

These reports offer a lot of information on "med mal" claims in Tennessee.  Most importantly, the reports show that the number of med mal claims being filed each year are trending down; the amount of money paid to claimants is trending down; etc.  

Medical Malpractice Suits Drop in Tennessee; 2008 Reforms Praised, Panned

Here is a link to an article by Todd South from the Chattanooga Times Free Press.  It's worth the read. (Pay attention to the charts, too.)  To wit:

http://www.timesfreepress.com/news/2013/dec/03/medical-malpractice-suits-drop-reforms-that/

New Health Care Liability Action Regarding an Unavailable Expert Witness: New Trial Ordered

The Court of Appeals released its opinion in Cullum v. Baptist Hosp. Sys., Inc., No. M2012-02640-COA-R3-CV (Tenn. Ct. App. Feb. 12, 2014).  Here is the summary from the slip opinion:

The trial court prohibited the use of taped testimony from a prior trial when a doctor exercised his statutory right not to appear at trial, ordering that the doctor “needs to testify live or not at all.” Efforts of the defendants’ counsel to secure the doctor’s live testimony were successful, only to have the plaintiffs’ counsel argue that counsel was being ambushed.  The trial court finally determined not to allow the doctor to testify. The issues relating to prohibiting the doctor’s taped testimony and then prohibiting the doctor’s live testimony were appealed, along with other issues that arose during the trial. We find these two testimonial issues dispositive. We reverse the trial court on both issues and remand for a new trial.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/cullumj_021314.pdf

This will be the fourth trial of this case upon remand.

Child Safety Issues: Lion Force Recalls Boys' Puffer Coats Due to Strangulation Hazard; Sold Exclusively at Burlington Coat Factory

Here is a link that information:

http://www.prnewswire.com/news-releases/lion-force-recalls-boys-puffer-coats-due-to-strangulation-hazard-sold-exclusively-at-burlington-coat-factory-243532321.html

3T Design Recalls Cervelo Bicycles with Aduro Aero Handlebars Due to Risk of Injury

See link below:

http://www.prnewswire.com/news-releases/3t-design-recalls-cervelo-bicycles-with-aduro-aero-handlebars-due-to-risk-of-injury-243542191.html

New Health Care Liability Action Opinion: Saving Statute Extended in "Transitional Case" by Presuit Notice Being Given

Upon mandate from the Tennessee Supreme Court, the Tennessee Court of Appeals just issued its opinion in Johnson v. Floyd, No. W2012-00207-COA-R3-CV (Tenn. Ct. App. Feb. 6, 2014).  The summary from the opinion states as follows:

This case is before us upon mandate from the Tennessee Supreme Court for reconsideration of our previous opinion, Johnson v. Floyd, No. W2012-00207-COA-R3-CV, 2012 WL 2500900 (Tenn. Ct. App. June 29, 2012), in light of the Tennessee Supreme Court’s decision in Rajvongs v. Wright, --- S.W.3d ----, 2013 WL 6504425 (Tenn. 2013). Based on the Tennessee Supreme Court’s decision, we reverse the decision of the trial court and remand for further proceedings.

Here's a link to the slip opinion:

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

NOTE: In a nutshell, this opinion allowed a one-hundred-twenty-day extension to the saving statute because this case is a "transitional case."  This post, however, should be read in conjunction with my June 30, 2012 post to gain a better understanding of the issues at hand.

DepositionOnline.com

I came across this service the other day.  I have no idea if it works well or not (haven't used it) but it looks pretty interesting.  Please see link below:

http://depositiononline.com/

Child Safety Issues: Strollers Recalled by Britax Due to Partial Fingertip Amputation Hazard

Here's a link to the information about the recall:

http://www.prnewswire.com/news-releases/strollers-recalled-by-britax-due-to-partial-fingertip-amputation-hazard-242777071.html

Tennessee Court of Appeals Holds That Plaintiff's Failure to Effect Proper Presuit Notice Prevents Initial Action from Being Timely Filed, Which Prevents Case from Being Refiled under the Saving Statute

The Tennessee Court of Appeals released its opinion in Byrge v. Parkwest Med. Ctr., No. E2013-00927-COA-R3-CV (Jan. 30, 2014).  The summary from the slip opinion states as follows:

After taking a non-suit, Bobby J. Byrge, individually and as next of kin for the decedent Julia Kay Byrge, and the Estate of Julia Kay Byrge (“Plaintiff”) filed a second healthcare liability suit against Parkwest Medical Center (“Parkwest”) and Dr. John C. Showalter, M.D.[] Parkwest filed a motion to dismiss, and after a hearing, the Trial Court granted Parkwest’s motion finding and holding that Plaintiff’s suit was barred by the statute of limitations.  Plaintiff appeals to this Court asserting that his suit was not barred as he was entitled to rely upon Tenn. Code Ann. § 28-1-105, the saving statute. We affirm finding and holding, as did the Trial Court, that Plaintiff’s first suit was not timely filed because Plaintiff did not comply with Tenn. Code Ann. § 29-26-121, and, therefore, Plaintiff could not rely upon Tenn. Code Ann. § 28-1-105 to save his second suit.

Here's a link to the opinion:

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

New Tennessee Supreme Court Opinion: Health Care Liability Action Allowed to Proceed

The Tennessee Supreme Court released its opinion today in Cannon ex rel. Good v. Reddy, No. M2012-01332-SC-S10-CV (Tenn. Jan. 29, 2014).  The summary from the slip opinion reads as follows:

The plaintiff filed a health care liability action against the defendant. During the pendency of her action, the General Assembly enacted the pre-suit notice and certificate of good faith requirements of Tennessee Code Annotated sections 29-26-121 and -122. The plaintiff voluntarily dismissed her original action. The plaintiff then filed two successive actions.  First, the plaintiff filed a second action that did not comply with the pre-suit notice and certificate of good faith statutes. The plaintiff then filed a third action that complied with Tennessee Code Annotated sections 29-26-121 and -122. The plaintiff moved to consolidate her second and third actions, and the defendant moved to dismiss. The defendant contended that the plaintiff’s second action should be dismissed for failure to comply with the pre-suit notice and certificate of good faith requirements and that her third action should be dismissed based on the doctrine of prior suit pending. The trial court consolidated the lawsuits and denied the defendant’s motions to dismiss. The defendant moved for permission to file an interlocutory appeal, which the trial court denied. We granted the defendant’s  application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure.  During the pendency of the appeal, the plaintiff voluntarily dismissed her second action. As a result of the plaintiff’s voluntary dismissal and our recent holding in Rajvongs v. Wright, ___ S.W.3d ___, 2013 WL 6504425 (Tenn. Dec. 12, 2013), we hold that the plaintiff, who properly provided pre-suit notice of her claim prior to filing her third action, was entitled to a 120-day extension in which to refile her complaint pursuant to Tennessee Code Annotated section 29-26-121(c). The plaintiff’s third complaint was therefore timely filed. We affirm the judgment of the trial court and remand this case for further proceedings.

Here's a link to that opinion: http://www.tsc.state.tn.us/sites/default/files/cannonopn.pdf

Remembering Why We Stand Up for What Is Right

Today I attended a luncheon at the Gordon Jewish Community Center ("GJCC") here in Nashville (here is the GJCC's Web site: www.nashvillejcc.org).  (As an aside, the GJCC is a wonderful place.)

John Seigenthaler spoke about civil rights since the death of President John F. Kennedy, and, or course, about Dr. Martin Luther King Jr. in particular.  It was a very moving speech; one that reminded me why we must stand up for what is right.  What I took away from the speech, in part, is this: discrimination---in any form (especially coupled with ignorance)---is evil.  It has led to slavery, to the Holocaust, etc.  But I also took this way from his speech: things can change; and with a little help from regular people---folks like you and me---we can make a difference.  Now, it might not be easy; in fact, it might be really difficult at times. But if we stand up for the right thing, the world we live in (and the world we leave to our children) will be a much better place.  

I want to leave you all with this thought.  My son, who is three, loves a Dr. Seuss movie called The Lorax. There is a quote from the movie that states as follows: “Unless someone like you cares a whole awful lot, nothing is going to get better. It's not.” 

I'm extremely glad we had people like JFK and MLK who cared; and that we have people like Mr. Seigenthaler who cared---and still cares.  It does my heart good.

"Patient Harm: When An Attorney Won’t Take Your Case"

This article is very interesting.  See link below.

http://www.propublica.org/article/patient-harm-when-an-attorney-wont-take-your-case?utm_source=et&utm_medium=email&utm_campaign=dailynewsletter

GLOSSARY OF LEGAL TERMS

At this link:

http://www.tsc.state.tn.us/media/glossary-legal-terms

Holiday Message from TDL

Merry (belated) Christmas!  Happy New Year too!

I hope 2014 is your best year yet.  May it bring you much joy and happiness.

Lastly, please enjoy the holidays with your family and friends.  You won't regret it.

Understanding Your Court System: A Guide to the Judicial Branch

The link below leads to a booklet in pdf format published by the Tennessee Supreme Court and the Tennessee Administrative Office of the Courts that explains the judiciary branch on the federal and state levels, to wit:

http://www.tsc.state.tn.us/sites/default/files/citizenbook-revised.pdf

New Opinion on Tennessee Code Annotated section 20-1-119, Which Is the Comparative Fault Joinder Statute

The Tennessee Court of Appeals just issued its opinion in Morris v. Phillips, No. M2013-00417-COA-R9-CV (Tenn. Ct. App. Dec. 17, 2013).  The summary from the opinion states as follows:

A multi-vehicle accident occurred in August 2010. The plaintiff initially named only one of the drivers involved in the accident along with the record owner of the driver’s vehicle. The record owner filed an answer identifying three other drivers/tortfeasors involved in the accident in December 2011, and the driver identified the same three individuals as tortfeasors in his answer that was filed seven months later, in July 2012. The plaintiff did not file an amended complaint adding the individuals identified as defendants until August 2012, which was more than 90 days after the first answer was filed. One of the individuals named as a defendant filed a motion to dismiss, arguing the plaintiff waited too late to add her as a defendant. The trial court denied the motion. The late-added defendant appealed, and we reverse the trial court’s judgment.

Here is a link to the opinion:

http://www.tba.org/sites/default/files/morrisk_121813.pdf

New Tennessee Supreme Court Opinion: Element of Duty in a Premises Liability Case

The Tennessee Supreme Court released its opinion in Cullum v. McCool, No. E2012-00991-SC-R11-CV (Tenn. Dec. 18, 2013).  The summary from the slip opinion states as follows:

The issue presented in this premises liability case is whether a store owes a duty to protect its customer from a visibly intoxicated customer who was ordered to leave the store by store employees. A store patron sued a store for negligence after she was struck and injured in the store’s parking lot by a vehicle driven by another store patron. Store employees had refused to fill the other patron’s medical prescriptions because they believed she was intoxicated; she became belligerent, and store employees ordered her to leave the store knowing that she was alone and would be driving her vehicle. In response to the lawsuit, the store filed a motion to dismiss, contending that it did not have a legal duty to control the intoxicated patron after she left the store. The trial judge granted the store’s motion to dismiss. The Court of Appeals reversed, finding that the store owed the injured patron a duty of care to protect her from the intoxicated patron. Taking the plaintiffs’ allegations as true and drawing all reasonable inferences in her favor, we hold that the foreseeability of harm and the gravity of harm to the injured patron outweighed the burden placed on the store to protect the patron against that harm. Therefore, the store patron’s complaint contains sufficient allegations which, taken as true, establish that the store owed a duty of care to the injured patron. The trial court erred by granting the motion to dismiss.

Here's a link to the majority opinion:

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

Justice Holder issued a separate opinion concurring in part and dissenting in part.  Here is a link to that opinion:

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

New Tennessee Supreme Court Opinion: Presuit Notices Extend Saving Statute in This Particular Health Care Liability Action

The Tennessee Supreme Court just released its opinion in Rajvongs v. Wright, No. M2011-01889-SC-S09-CV (Tenn. Dec. 12, 2013).  The summary from the slip opinion states as follows:

The plaintiff filed his initial health care liability action against the defendant prior to the enactment of the pre-suit notice requirements of Tennessee Code Annotated section 29-26-121. The plaintiff voluntarily dismissed his original action. More than one year later, the plaintiff refiled his action after the effective date of section 29-26-121. The defendant moved for summary judgment, alleging that the plaintiff’s second action was barred by the statute of limitations. The plaintiff countered that his pre-suit notice commenced his new action prior to the expiration of the one-year saving statute. Alternatively, the plaintiff argued that Tennessee Code Annotated section 29-26-121 extended the saving statute by 120 days. The trial court denied the defendant’s motion for summary judgment but granted permission to file an interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Appeals granted the application for permission to appeal and affirmed the trial court’s denial of the motion for summary judgment. We hold that the plaintiff’s action was commenced by the filing of a second health care liability complaint rather than by providing pre-suit notice. We further hold that a plaintiff who files his initial action prior to the effective date of Tennessee Code Annotated section 29-26-121, dismisses his original action, properly provides pre-suit notice, and refiles his action after the effective date of the statute, is entitled to the 120-day extension. We therefore affirm the judgment of the Court of Appeals and remand this case to the trial court for further proceedings.

Here is a link to the unanimous opinion:

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

Practice tip: Pay close attention to page 7 of this opinion.

This post is related to two prior posts: one from June 21, 2012; and the other from June 30, 2012.  Links to both are below:

http://theduncanlawfirm.blogspot.com/2012/06/medical-malpractice-saving-statute.html

http://theduncanlawfirm.blogspot.com/2012/06/medical-malpractice-saving-statute-not.html

Tony Duncan Named a 2013 Mid-South Super Lawyer

For the third year in a row, I have been named a Mid-South Super Lawyer.  I am on page 38 of the link below:

http://digital.superlawyers.com/superlawyers/taslrs13#pg20

I am humbled that I have been selected again.  It is truly an honor.

New Tennessee Supreme Court Case on Presuit Notices in a Health Care Liability Action

The Tennessee Supreme Court just issued its opinion in Stevens ex rel. Stevens v. Hickman Community Health Care Servs., Inc., No. M2012-00582-SC-S09-CV (Tenn. Nov. 25, 2013).  The summary from the opinion states as follows:

More than sixty days before filing suit, the plaintiff gave written notice to the potential defendants of her healthcare liability claim against them. Tenn. Code Ann. § 29-26-121(a)(2)(E) (2012) requires that a plaintiff’s pre-suit notice include a HIPAA compliant medical authorization that permits the healthcare provider receiving the notice to obtain complete medical records from every other provider that is being sent a notice. Contrary to the statute, the plaintiff provided a non-HIPAA compliant medical authorization that only permitted the release of medical records to plaintiff’s counsel. After the plaintiff filed suit, the defendants moved to dismiss the complaint based on noncompliance with Tenn. Code Ann. § 29-26-121(a)(2)(E). The trial court denied the motion, ruling that plaintiff’s noncompliance was excused by extraordinary cause. We hold that the plaintiff was required to substantially comply with Tenn. Code Ann. § 29-26-121(a)(2)(E) and failed to do so, and that her failure to comply is not excused by extraordinary cause. We dismiss the plaintiff’s case without prejudice.

Here's a link to majority opinion:

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

Justices Wade and Holder issued a separate partial concurrence and dissent.  That opinion is here:

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

Medical Malpractice Case: Another Case Dismissed for Failure to Comply with New Filing Requirements, Etc.

The Tennessee Court of Appeals recently released its opinion in Hailey v. Wesley of the South, Inc., No. W2012-01629-COA-R3-CV (Tenn. Ct. App. Nov. 19, 2013).  The summary of the opinion states as follows:

Plaintiff’s Complaint was dismissed for failure to comply with the requirements of the Medical Malpractice Act. The trial court denied Plaintiff’s second Motion to Alter or Amend, and Plaintiff appealed to this Court. We dismissed the appeal for lack of subject matter jurisdiction due to Plaintiff’s failure to timely file an appropriate notice of appeal.  Plaintiff then filed a third Motion to Alter or Amend in the trial court, which the trial court dismissed for lack of subject matter jurisdiction. Plaintiff filed a second appeal to this Court.  We dismiss the appeal for lack of subject matter jurisdiction.

Here's a link to the opinion:

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

This case also stresses the importance of appellate practice.

Federal Rule of Civil Procedure 45 Changes December 1, 2013

http://www.americanbar.org/newsletter/publications/youraba/201212article10.html

Health Care Liability Action (f.k.a. Medical Malpractice Action): New Opinion on Contiguous State Rule

The Tennessee Court of Appeals just released its opinion in Gilbert v. Wessels, No. E2013-00255-COA-R10-CV (Tenn. Ct. App. Nov. 18, 2013).  Here is the summary from the opinion:

This Court granted an extraordinary appeal in this health care liability action to determine whether the trial court abused its discretion in declining to waive the contiguous state requirement for a testifying expert witness set forth in Tennessee Code Annotated §29-26-115(b). Discerning no error, we affirm.

Here's a link to the opinion:

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

New Medical Malpractice Opinion on Presuit Notices

The Tennessee Court of Appeals just released its opinion in Shockley v. Mental Health Coop., Inc., No. M2013-00494-COA-R3-CV (Tenn. Ct. App. Nov. 4, 2013).  The summary from the opinion reads as follows:

The trial court dismissed Appellant’s medical malpractice and wrongful death case for failure to comply with the pre-suit notice requirement found in Tennessee Code Annotated Section 29-26-121(a). Appellant’s pre-suit notice contained a misnomer, naming the Appellee’s fundraising entity, rather than Appellee, as the proper defendant. The trial court determined that under the Tennessee Supreme Court’s holding in Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012), substantial compliance was not effective to satisfy the statutory requirement for pre-suit notice. Furthermore, because the type of notice required under Section 29-26-121 precedes the filing of the lawsuit, it is not the same type of notice as required for correction of misnomers in pleadings under Tennessee Rule of Civil Procedure 15.03; thus, this rule will not operate to cure the misnomer in the pre-suit notice. Because the Appellant failed to show extraordinary cause for failure to comply with the pre-suit notice, we affirm the trial court’s order dismissing this matter. Affirmed and remanded.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/shockleyt_110513.pdf

New Health Care Liability Action (f.k.a Medical Malpractice) Opinion

The Tennessee Court of Appeals issued its opinion today in Burchfield v. Renfree, No. E2012-01582-COA-R3-CV (Tenn. Ct. App. Oct. 18, 2013).  Here's the summary from the slip opinion:

This is a health care liability action wherein the trial by jury resulted in a judgment for the Defendant, Dr. Timothy Renfree. Plaintiffs, Larry and Dinnie Burchfield, filed this lawsuit against Dr. Renfree alleging that he negligently performed surgery on Mr. Burchfield’s right arm and caused nerve damage. After the jury returned its verdict in favor of Dr. Renfree, the Burchfields filed post-trial motions seeking relief from the judgment and alleging numerous errors in the administration of the trial. The trial court denied the post-trial motions and affirmed the jury’s verdict as thirteenth juror. The Burchfields appealed. We vacate the jury’s verdict, finding reversible error in the administration of the trial, and remand this matter to the trial court for further proceedings.

Here's a link to the forty-six-page opinion:

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

New Wrongful Death Case

The Tennessee Court of Appeals just issued its opinion in Rickman v. Rickman, No. M2013-00251-COA-R3-CV (Tenn. Ct. App. Oct. 14, 2013).  The summary of the opinion states as follows:

This case concerns whether the widow of a deceased man may share in the wrongful death settlement obtained by his personal representative. We conclude that the postnuptial agreement entered into by the widow prevents her from benefitting from the wrongful death settlement. Affirmed and remanded.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/rickmang_101613.pdf

New Health Care Liability Action (f.k.a. Medical Malpractice Case)

For some reason, I haven't posted this case yet; I'm not sure why other than I've just been busy.  On June 27, 2013, the Tennessee Court of Appeals, Eastern Section, issued its opinion in Foster v. Chiles, No. E2012-01780-COA-R3-CV (Tenn. Ct. App. Jun. 27, 2013).  The summary states as follows:

This is a health care liability case. Samuel E. Foster and his wife, Mary Foster,[] timely filed a complaint after properly sending pre-suit notices to the potential defendants as required by Tenn. Code Ann. § 29-26-121(a) (2012). After nonsuiting their first lawsuit, they timely filed a second complaint in which they alleged the same cause of action against the same defendants. The second complaint alleged compliance with section 121(a), citing the notices already properly sent before the first complaint was filed. The trial court dismissed the second complaint with prejudice based upon the court’s determination that plaintiffs failed to satisfy the notice requirement of section 121(a). We hold that plaintiffs complied with section 121(a)’s notice requirement by giving a written notice of their potential health care liability claim to each defendant at least 60 days prior to the filing of their second complaint.  We further hold that section 121 does not mandate dismissal with prejudice for noncompliance with its terms, and that plaintiffs’ inadvertent failure to file – with the second complaint – proof of their service of the subject notices does not warrant dismissal with prejudice. We vacate the trial court’s order of dismissal and remand for further proceedings.

(Footnote omitted.)

Here is a link to that slip opinion:

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

The Appellants-Defendants in the trial court filed an application for permission to appeal with the Tennessee Supreme Court on August 26, 2013.  Appellees-Plaintiffs filed their answer to same on Sept. 5, 2013.  Currently the case is before the Tennessee Supreme Court under Docket No. E2012-01780-SC-R11-CV.  The case history can be viewed at this link:

 http://www2.tncourts.gov/PublicCaseHistory/CaseDetails.aspx?id=57381&Party=True.

UPDATE: the Tennessee Supreme Court reversed the Tennessee Court of Appeals in this case on Jan. 27, 2015.  You can read about it at my Jan. 27, 2015 post, to wit:

 http://theduncanlawfirm.blogspot.com/2015/01/new-tennessee-supreme-court-opinion-on.html

New Medical Malpractice Opinion

Today the Tennessee Court of Appeals issued its opinion in Haley v. State of Tennessee, No. E2012-02484-COA-R3-CV (Tenn. Ct. App. Sept. 25, 2013).  The summary from the opinion states as follows:

This is a medical malpractice case.[] The plaintiff filed a claim with the Division of Claims administration, as the resident physician alleged to have engaged in negligence was purportedly connected to a University of Tennessee training program at Erlanger Hospital in Chattanooga, Tennessee. The State moved the Commissioner to dismiss the plaintiff’s action for failure to comply with the requirements set out in Tennessee Code Annotated section 29-26-121(a). The Commissioner reluctantly agreed with the State’s position. We hold that the plaintiff complied with section 121(a)’s notice requirement by complying with the claim notice requirements of Tennessee Code Annotated section 9-8-402. We further hold that section 121 does not mandate dismissal with prejudice for noncompliance with its terms, and that the plaintiff’s failure to provide all the items denoted in section 121(a) does not warrant dismissal with prejudice under the facts of this case. We vacate the dismissal order and remand for further proceedings.

(Footnote omitted.)

Here's a link to the opinion:

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

How Many Die from Medical Mistakes in U.S. Hospitals?

It's estimated to be nearly 210,000 a year.  Please see link to the article below.

http://www.scientificamerican.com/article.cfm?id=how-many-die-from-medical-mistakes-in-us-hospitals

New Tennessee Supreme Court Opinion on Service of Process: Lack of Prompt Return of Proof of Service Does Not Require Dismissal of a Civil Action

The Tennessee Supreme Court issued its opinion today in Fair v. Cochran, No. E2011-00831-SC-R11-CV (Tenn. Sept. 12, 2013).  The summary from the opinion states as follows:

We granted this appeal to determine whether the return of proof of service of process 412 days after issuance of a summons precludes a plaintiff from relying upon the original commencement of the lawsuit to toll the running of the statute of limitations. We hold that the plain language of Tennessee Rules of Civil Procedure 3 and 4.03 does not condition the effectiveness of the original commencement to toll the statute of limitations upon the prompt return of proof of service. We reverse the judgment of the Court of Appeals affirming the trial court’s dismissal of the plaintiff’s lawsuit. We remand this case to the trial court to determine whether service of process occurred within ninety days of issuance of the summons. If so, the plaintiff may rely upon the original commencement of the lawsuit to toll the statute of limitations.

Here is a link to the majority opinion:

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

Here is a link to Justice Holder's concurrence:

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

In all candor, the plaintiff's lawyer in this appeal was nice enough to let me write the supplemental brief and argue this case before the Tennessee Supreme Court (which I asked him to let me do).  I wanted to take this opportunity to thank him.  Thanks Mike!

September 11, 2001

Twelve years ago today we were attacked by cowards who killed our fellow Americans.  Never---never!---forget what happened.  

May God continue to bless America!

New Tennessee Supreme Court Products Liability Case: Jury Verdict for Minor Plaintiff Reinstated

Yesterday the Tennessee Supreme Court issued its opinion in Meals ex rel. Meals v. Ford Motor Co., No. W2010-01493-SC-R11-CV (Tenn. Aug. 30, 2013).  The summary from the opinion reads as follows:

A six-year-old boy’s spine was fractured in a car wreck when the force of the impact caused him to jackknife over his lap seatbelt and pushed the seatbelt into his stomach and against his spine. The child’s mother filed suit on his behalf against Ford Motor Company (“Ford”), alleging that the defective design of the seatbelt and Ford’s failure to warn of a potential danger caused the child’s permanent paralysis and other enhanced injuries. A jury returned a $43.8 million verdict for compensatory damages, finding Ford to be 15% at fault and two non-parties 85% at fault. Ford’s share of the verdict, based on its degree of fault, was $6,570,000. The jury awarded no punitive damages. Ford moved for a new trial, arguing that the verdict was excessive. The trial court denied the motion for new trial and affirmed the verdict in its capacity as thirteenth juror. The Court of Appeals, in a divided opinion, ruled that the verdict was excessive and remanded to the trial court with a suggestion of remittitur from $43.8 million to $12.9 million, a 70.55% reduction. The suggested remittitur, if the plaintiff accepted it, would reduce Ford’s share of the verdict to $1,935,000. Meals ex rel. Meals v. Ford Motor Co., No. W2010-01493-COA-R3-CV, 2012 WL 1264454, at *18- 21 (Tenn. Ct. App. Apr. 13, 2012). We hold that the Court of Appeals had the authority to suggest a remittitur even though Ford did not request a remittitur. We further hold that the Court of Appeals erred in remitting the verdict to $12.9 million. Having taken the strongest legitimate view of all the material evidence in favor of the verdict, assuming the truth of all that supports it, allowing all reasonable inferences, and discarding any to the contrary, we hold that the jury’s verdict was supported by material evidence and was within the range of reasonableness. The judgment of the Court of Appeals is reversed and the jury’s verdict is reinstated.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/mealsaundreyopn_0.pdf

Medical Malpractice: Toledo Hospital Threw Out Donor Kidney, Now Denies Negligence

http://abcnews.go.com/Health/toledo-hospital-threw-donor-kidney-now-denies-negligence/story?id=20110334

Premises Liability: Summary Judgment for Defense Reversed!

The Tennessee Court of Appeals recently issued its opinion in Parker v. Holiday Hospitality Franchising, Inc., No. E2013-00727-COA-R3-CV (Tenn. Ct. App. Aug. 27, 2013).  The summary from the slip opinion states as follows:

This is a premises liability case in which Plaintiffs alleged that a shower bench in Hotel collapsed, causing Husband to fall and sustain injuries. Plaintiffs filed suit against Defendant, claiming negligence. Defendant filed a motion for summary judgment, asserting that he did not install the bench and did not have actual or constructive notice of the independent contractor’s negligent installation of the bench. The trial court granted the motion for summary judgment and dismissed the case. Plaintiffs appeal. We reverse the decision of the trial court and remand for further proceedings.

Here's a link to the opinion:

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

New Medical Malpractice Opinion

The Tennessee Court of Appeals issued its opinion today in Young v. Kennedy, No. W2012-00836-COA-R3-CV (Tenn. Ct. App. Aug. 13, 2013).  The summary from the opinion states as follows:

This case involves the application of the medical malpractice statute of limitations. The trial court granted summary judgment to the defendant doctor, finding that the statute of limitations defense was not waived by her failure to raise it in her first pre-answer motion, that the defense was sufficiently pleaded, and that the undisputed facts in the record supported a finding that the statute of limitations had expired at the time of filing the initial complaint. Affirmed and remanded.

Here is a link to the opinion:

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

53 Rules to Help Witnesses Survive a Deposition

I like the suggestions at the link below.  Hope you do too.

http://cleblog.nbi-sems.com/2012/06/how-to-help-witnesses-survive-a-deposition/

No link between tort reform, reduced defensive medicine.

Study: No link between tort reform, reduced defensive medicine.

The Insurance Journal (8/7, 18K) reports that a study in the August Health Affairs "found no consistent relationships" between "physicians' level of malpractice concern with objective state-level indicators of malpractice liability risk." Instead, "physicians' perception of their risk...predicts their practice of defensive medicine," suggesting "that traditional malpractice reforms, such as caps on damages, don't change how physicians practice." Unlike previous studies that "focused on physician self-reports of how they would treat hypothetical patients," this study used Medicare claims data to examine doctor's actual behavior.

This article just reaffirms the fact that a one-size-fits-all "remedy" (i.e., caps on damages) is contrary to our Constitutional principles and is nothing more than another corporate bailout for insurors and big business that don't want to be called out on the rug in front of a jury to answer for something they did wrong.

New Tennessee Medical Malpractice Case

The Tennessee Court of Appeals just issued its decision in Groves v. Colburn, No. M2012-01834-COA-R3-CV (Tenn. Ct. App. Jul. 30, 2013).  The summary reads as follows:

Plaintiff filed a complaint against a hospital in which she asserted claims for medical malpractice and wrongful death. She later amended her complaint to add a party and did not contemporaneously file a certificate of good faith. The trial court dismissed the second complaint with prejudice based upon the court’s determination that plaintiff failed to satisfy the requirements of Tenn. Code Ann. § 29-26-122. We affirm the trial court.

Here is a link to the opinion:

https://www.tba.org/sites/default/files/grovesa_073113.pdf

Data Bank Guide for Reporting Medical Malpractice Payments to the NPDB

Here is a very helpful link on the subject, to wit:

http://www.npdb-hipdb.hrsa.gov/resources/brochures/mmprGuidance.jsp

Here is a very helpful flowchart, too, to wit:

http://www.npdb-hipdb.hrsa.gov/resources/brochures/ReportingGuidance-MedicalMalpracticePayments.pdf

Study: TN Holds Highest Percentage of Cell Phone Driving Deaths

http://www.wbir.com/news/article/281774/2/Study-TN-holds-highest-percentage-of-cell-phone-driving-deaths

Firm News: Here Is a Story About a Case Tony Duncan Law Just Filed in Knox County, Tennessee

http://northknox.wbir.com/news/news/615812-12-million-lawsuit-filed-cable-workers-death

Medicare Recovery Process as to Personal Injury Claims

https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Attorney-Services/Downloads/Beneficiary-NGHP-Recovery-Process-Flowchart.pdf
.

Lawyers Protect Us All!

This is a YouTube clip from the Georgia Trial Lawyers Association.  It shows why lawyers are needed to keep us all safe.  Here's the clip:

http://www.youtube.com/v/kKQUmvKrrms?fs=1

Tennessee Hospital Costs per Inpatient Services

This article is from the The Tennessean this morning, to wit:

http://data3.tennessean.com/view-database/tennessee-hospital-costs-per-inpatient-services-943.html

It has some useful information on there.  I just thought I'd share.

George Zimmerman Found to Be Not Guilty!

My wife and I just watched the verdict on CNN.  I must admit I didn't watch a lot of the trial (been too busy), but I did tell my wife that I thought the jury would acquit him.  Here's a link to CNN's story on the verdict: http://www.cnn.com/2013/07/13/justice/zimmerman-trial/index.html?hpt=hp_t1.

Keep in mind that the verdict doesn't mean he's "innocent" per se, it just means the jury found him to be "not guilty" because the State of Florida did not prove its case beyond a reasonable doubt (which is a constitutional check in place to protect all citizens accused of a crime: you, me, family members, friends, etc.). 

However, I predict Mr. Zimmerman's legal troubles are not over, either.  He will most certainly face a wrongful death lawsuit by the family of Trayvon Martin.  And in that case, which will be for a money judgment only, the burden of proof will be by a preponderance of the evidence, which is a lower burden than beyond a reasonable doubt in his criminal case. 

Keep a watch and see what happens; and see if my prediction about the wrongful death suit is correct.  However, if Mr. Zimmerman doesn't have a lot of assets---or if he doesn't get any money from a book deal or interviews---the wrongful death lawsuit may not be filed; only time will tell.

Thanks for reading.

Tractor Trailer Cases

Tractor trailer cases are different than motor vehicle collision cases where noncommercial vehicles are involved (i.e., cars, trucks, motorcycles, etc.).  Does that matter?  Of course!  You need a lawyer familiar with the applicable law (which are federal and state laws).  Lawyers who do not focus their practice on tractor trailer cases are just not familiar with the applicable laws; what to look for; what questions to ask defendants, etc.  That's why it's important to select a competent lawyer to handle your tractor trailer case.  Here at Tony Duncan Law, we focus part of our practice on tractor trailer cases.  If we can ever assist you, please don't hesitate to contact us at www.tonydlaw.com.

The Declaration of Independence

Every Fourth of July (or around this time), I post this video to my blog.  Here it is again:

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

Happy Fourth everyone!