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!

New Laws Effective in Tennessee on July 1, 2013

Here is a list of the new laws that go into effect at midnight tonight, to wit:

http://www.capitol.tn.gov/legislation/publications/effective%207_1_2013.pdf

New Tennessee Supreme Court Opinion: Affirmative Defense of Statute of Repose Must Be Pleaded in a Timely Manner or It Is Waived

The Tennessee Supreme Court released its opinion yesterday in Pratcher v. Methodist Healthcare Memphis Hosp., No. W2011-01576-SC-S09-CV (Jun. 28, 2013).  The summary of the opinion states as follows:

The primary issue in this interlocutory appeal is whether the Tennessee health care liability statute of repose, Tenn. Code Ann. § 29-26-116(a)(3) (2012) (“the statute of repose”), is an affirmative defense under Tenn. R. Civ. P. 8.03, that is waived if not raised in a timely manner. Sandra Y. Jones Pratcher died following complications that arose on December 4, 1999, when she received anesthesia before undergoing a cesarean section. On December 1, 2000, her husband, Eddie C. Pratcher, Jr., (“Plaintiff”) filed suit against various health care providers, including Consultants in Anesthesia, Inc. (“Defendant”) and one of its nurse anesthetists. Plaintiff alleged that Defendant, which contracted with the hospital to provide anesthesia services to its obstetric patients, was vicariously liable for the negligent acts of its nurse anesthetist. Plaintiff amended his complaint on March 3, 2006, to assert that Defendant was also vicariously liable for the negligent actions of its corporate owner and president, Dr. Chauhan, who was on call on December 4, 1999, but failed to come to the hospital to administer anesthesia to Plaintiff’s wife. Plaintiff amended his complaint two more times and each time asserted that Defendant was vicariously liable for the negligent acts of Dr. Chauhan. Defendant did not raise the statute of repose as a defense to the vicarious liability claim based on Dr. Chauhan’s alleged negligence. After the jury returned a verdict for all defendants, the trial court set aside the verdict based on an error in the verdict form and its disapproval of the verdict as thirteenth juror. After the trial court granted a new trial as to all parties, Defendant moved to dismiss the case based on the statute of repose and to amend its answer to assert a statute of repose defense. The trial court ruled that Defendant had waived the statute of repose defense and denied the motions. We hold that (1) the running of the statute of repose does not deprive the trial court of subject matter jurisdiction; and (2) as Rule 8.03 explicitly states, the statute of repose is an affirmative defense. Defendant failed to timely raise the statute of repose as an affirmative defense. Therefore, the trial court did not abuse its discretion by denying Defendant’s posttrial motion to amend its answer to assert the statute of repose as a defense. The judgment of the trial court is affirmed.

Here is a link to the majority opinion:

http://www.tncourts.gov/sites/default/files/pratchereddie.opn_1.pdf

Here is a link to the dissent:

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

Expert Qualifications in a Medical Malpractice Case: Another Post-Shipley Opinion

The Court of Appeals issued its opinion in Ray v. Southern Tennessee Medical Center, LLC, No. M2012-01227-COA-R3-CV (Jun. 25, 2013).  The summary states as follows, to wit:

 In this medical malpractice action, the jury entered a verdict in favor of the defendant doctor. On appeal, the plaintiff argues that the trial court erred in allowing a medical expert witness [(for the recently released defendant)] to testify [(for another defendant)]. We find no error in the trial court’s decision.

(Editorial comment added in bracketed parentheticals.) 

This opinion offers a good discussion of expert-witness qualifications in a medical malpractice case post-Shipley.  It is a must-read for the practitioner in my opinion.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/rayw_062613.pdf

Please keep in mind, too, that these types of cases are now called "health care liability actions" instead of "medical malpractice action."  See Tenn. Code Ann. § 29-26-101 (Westlaw 2013).  This case, however, was not affected by that change (because the change in the law happened after this case arose or "accrued").

Tennessee State Court Rule Changes Effective July 1, 2013

The rule changes below, which affect the Tennessee Rules of Civil Procedure, Evidence, and Appellate Procedure go into effect July 1, 2013, to wit:

Tenn. R. Civ. P.:

http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_tn_rules_of_civil_procedure_-_effective_7-1-2013.pdf

Tenn. R. Evid.:

http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_tn_rules_of_evidence_-_effective_7-1-2013.pdf

Tenn. R. App. P.:

http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_tn_rules_of_appellate_procedure_revised_-_effective_7-1-2013_0.pdf

http://www.tncourts.gov/sites/default/files/order_revising_amendment_to_tenn_r_app_p_3.pdf

And it is customary (although not required per se) for the General Assembly to approve the Tennessee Supreme Court's proposed rule changes.  Below is a link to the General Assembly's Resolutions that approve the rule changes referenced above, to wit:

Tenn. R. Civ. P.:

http://tnsos.org/acts/108/resolutions/sr0012.pdf

http://tnsos.org/acts/108/resolutions/hr0036.pdf

 Tenn.  R.  Evid.:

http://tnsos.org/acts/108/resolutions/sr0010.pdf

http://tnsos.org/acts/108/resolutions/hr0032.pdf

Tenn. R. App. P.:

http://tnsos.org/acts/108/resolutions/sr0013.pdf

http://tnsos.org/acts/108/resolutions/hr0035.pdf

Tennessee Wrongful Death Cases

Wrongful death cases can be difficult (aside from the family's obvious loss) because they are not "typical" personal injury claims.  They are a creature of statute (Tennessee's version of an English law called Lord Campbell's Act). And they are handled differently under the law.

Further, was the loss caused by a motor-vehicle collision?  Was a tractor-trailer involved?  (This changes things a little.)  Was it due to medical malpractice (n.k.a. a health care liability action)? 

All these questions and many more are why you need to hire a lawyer who has handled cases like this before.  We have at Tony Duncan Law.  If you have any questions about a possible wrongful death claim, please, do not hesitate to contact us at (615) 620-4471 or info@tonydlaw.com.

Here's a link to the firm Web site, too, to wit:

 http://www.tonydlaw.com

Thanks!

Oklahoma Supreme Court Strikes Down Affidavits of Merit as Unconstitutional

The Oklahoma Supreme Court struck down affidavits of merit in professional negligence cases as unconstitutional in Wall v. Marouk, No. 109, 005 (Okla. Jun. 4, 2013).  Here's a link to the PDF slip opinion, to wit:

 http://sm-oklaw.com/sm-oklaw/assets/File/20130604092009671.pdf.

Or view it at this alternate link:

 http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=469531.