Tennessee Amends Med Mal Law

Here's the link to the recent amendments to Tennessee's med mal law:

http://state.tn.us/sos/acts/105/pub/pc0919.pdf

I'll have an analysis of this in a few days.

Thanks.

P.S. Please note that the amendments will take effect Oct. 1, 2008.

How a Bill Becomes a Law in Tennessee

Here's a guide on how a bill becomes a law in Tennessee (see link below). It came from the Tennessee General Assembly's Web site.

http://www.capitol.tn.gov/about/billtolaw.html

Another New Book

Here's another new book, How to Try a Jury Case: Trial Tactics, by John F. Kimberling. I have not read it yet. I have friends, however, who have; and they say it's great.

It's available from the National Institute for Trial Advocacy at http://www.nita.org/page.asp?id=7&catid=14&prodid=439

Tennessee Supreme Court Issues Two Opinions on Apparent Agency

Yesterday the Tennessee Supreme Court issued two opinions on apparent agency. The first was Boren ex rel. Boren v. Weeks, No. M2007-00628-SC-R11-CV (Tenn. May 6, 2008); the second was Dewald v. HCA Health Services of Tennessee, No. M2006-02369-SC-R11-CV (Tenn. May 6, 2008). They were consolidated for appeal. The issue on appeal was whether the defendant hospitals could be held liable for the acts of physicians who were allegedly independent contractors.

The Court overruled the Court of Appeals (which had reversed the trial court in both cases) and held that genuine issues of material fact remain that prevent the granting of summary judgment on that common issue. The Court adopted an analysis for the determination of apparent agency as set forth in the Restatement (Second) of Torts § 429. Boren, No. M2007-00628-SC-R11-CV, slip op. at 10-11; Dewald, No. M2006-02369-SC-R11-CV, slip op. at 3-4.

Here's the link to the AOC's Web site: http://www.tsc.state.tn.us/

The Bluebook Online

The Bluebook is a very useful tool to a legal writer. It's easy to use and offers quick answers to legal citation questions. Did you know that you can get free online updates? You can.

Here's the link to the website:

http://www.legalbluebook.com/Public/Updates.aspx.

You can also purchase an online subscription at the above-referenced link. With the online subscription you can access the Bluebook anywhere you have Internet access.

Hope this helps. Good luck!

Another New Book

Here is another very useful book: Susan L. Kay & Glen Weissenberger, Tennessee Evidence 2007-2008 Courtroom Manual (2007).

It's published by LexisNexis, and can be purchased at this website:

http://bookstore.lexis.com/bookstore/product/46273.html

I carry this book with me to court nearly every time I go (along with a few others). It offers quick, easy-to-find answers to evidentiary matters that come up during a hearing or trial.

Need Anatomical Charts or Models?

Here's a link to a website that has a lot of useful anatomical information. For example, the site sells charts and models that can be very useful during a deposition or trial.

Here's the link to the website:

http://www.anatomical.com/Default.asp?bhcd2=1208432419

Comparative Fault in General Sessions Court in Tennessee

In a general sessions tort case, a defendant must notify the plaintiff and the clerk if he or she thinks that fault should be shared or that another is solely at fault. Tenn. Code. Ann. § 16-15-735. Here's a link to statute: http://www.michie.com/

A defendant must also identify the allegedly at-fault party sufficiently so that a plaintiff may serve process on him or her. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn. 2000).

How do you deal with a defendant's attempt to shift blame improperly (i.e., by not identifying the other at-fault party) in a general sessions court tort case? File a motion to strike and cite Brown.

Good luck.

Profanity a Crime?

Common sense ought to tell you that you shouldn't use profanity in a courtroom. That's a given.

But did you know that it was illegal to use profanity in a courtroom? I didn't till today. Tennessee Code Annotated section 29-9-107 states that "A person who profanely swears or curses in the presence of any court of record commits a Class C misdemeanor."

Here's the link to the Tennessee Code: http://www.tncourts.gov/geninfo/michie.htm

Medical Malpractice in Tennessee

In 2004 Tennessee adopted a law that required the Department of Commerce and Insurance to keep track of medical malpractice claims for four years. Here's the third of the four reports:

http://state.tn.us/commerce/documents/MedMalReportPR_11012007.pdf

As you can see, there is no "problem" with medical malpractice litigation. Moreover, medical malpractice insurors are doing well financially.

New UM Case from Tennessee Supreme Court

The Tennessee Supreme Court issued an opinion yesterday in Green v. Johnson, No. E2006-02666-SC-R11-CV (Tenn. Mar. 13, 2008). Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/081/GreenLOPNCorr.pdf

The issue in Green was whether an uninsured motorist carrier may reduce its liability under an uninsured motorist provision of an automoblie insurance policy by the amount of settlement proceeds received by the insured from a non-motorist defendant, who is alleged to share responsibility for the bodily injury of the insured. The Court held that it could.

New TN Court of Appeals Decision

The Tennessee Court of Appeals issued an opinion yesterday in Small ex rel. Small v. Shelby County Schools, No. W2007-00045-COA-R3-CV (Tenn. Ct. App. Feb. 12, 2008). In Small, the Court of Appeals addressed the issues of sovereign immunity, the need for expert witness disclosure, comparative fault, and discretionary costs. Id., slip op., at 11-23.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/081/SmallEmmanualOPN.pdf

I'm not sure, however, that Small, as it relates to comparative fault, can be reconciled with George v. Alexander, 931 S.W.2d 517 (Tenn. 1996) and Rule 8.03 of the Tennessee Rules of Civil Procedure. I want to do some more research on this matter; but for informational purposes, I thought I'd bring it to your attention at this time.

Update on Mississippi Med Mal Case

Remember my posts in October 2007 about the Mississippi med mal case where the court of appeals held that evidence of liability insurance was not unfairly prejudicial? The court denied the request for a rehearing in this case on January 29, 2008.

The case is styled Wells v. Jackson Healthcare for Women, P.A. It's status of the case can be checked here:

http://www.mssc.state.ms.us/GeneralDocket/default.asp

The "Case Year:" is 2006 and the "Case Seq:" is 00385.

FYI: Mississippi's Rule 411 of Evidence is substantially similar to Tennessee's Rule 411. Therefore, this case offers persuasive authority for a similar ruling in Tennessee.

An Oath

I _______________ do solemnly swear (or affirm) that as a member of this General Assembly, I will, in all appointments, vote without favor, affection, partiality, or prejudice; and that I will not propose or assent to any bill, vote or resolution, which shall appear to me injurious to the people, or consent to any act or thing, whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this state.

Tenn. Const. art. X, § 2 (emphasis added).

This is the oath that a member of the Tennessee General Assembly is administered before she or he takes office.

You'd think this oath alone (if meant when sworn to or affirmed) would prevent a member of the General Assembly from voting for any bill supporting caps on a citizens's right to damages or a citizen's right to sue a corporation (with a jury). After all, who does the legislature represent, corporations or the people?

Food for thought.

Link to Federal Forms

Need a federal form? Here's a link that might help you out:

http://www.uscourts.gov/rules/cvforms2.htm

Tractor Trailer Accidents

Someone asked me yesterday if we did tractor trailer accidents. Yes, we do.

I just thought I'd throw that out there.

Thanks.

Tony

New Spoliation Case

The Court of Appeals for the Middle Section just issued an opinion regarding the spoliation of evidence in Cincinnati Ins. Co. v. Mid-South Drillers Supply Inc., M2007-00024-R3-CV (Tenn. Ct. App. Jan. 25, 2008). The Court of Appeals held that a trial court may sanction a plaintiff by dismissing the case irrespective of whether the destruction was inadvertent or intentional. Id., slip op. at 1.

Here's a link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/081/CincinattiInsurCoOPN.pdf

False Light Invasion of Privacy Claims and the SOL

Tennessee recognizes the tort of false light invasion of privacy as primarily set out in the Restatement (Second) of Torts section 652E (1977). West v. Media Convergence Inc., 53 S.W.3d 640, 641 (Tenn. 2001). Do you know what the applicable statutes of limitations are? They are six months or one year depending on the form of publicity. Id. at 648 (citing Tenn. Code Ann. §§ 28-3-103 and -104(a)(1) ).

Allstate's in Trouble in Florida

Allstate can't issue policies in Florida until it complies with a subpoena issued by Insurance Commissioner Kevin McCarty. Here's the link to MSNBC's story on the matter:

http://www.msnbc.msn.com/id/22712275/

New Name, Same Blog

FYI: As of today this blog will operate under the name "Tony Duncan Law" instead of "The Duncan Law Firm." Everything else will remain the same.

Thanks for reading.