Another Summary Judgment Case

Here is another post-Hannan and -Martin summary judgment case from the Eastern Section of the Tennessee Court of Appeals, to wit: Dykes v. City of Oneida, No. E2009-00717-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2010).

This case stresses the importance of complying with our state's recently clarified summary judgment standard under Hannan and Martin (Nov 8 & 15, 2008 posts, respectively).

Here's a link to Dykes:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Wanda%20F%20Dykes%20et%20al%20v%20City%20of%20Oneida%20et%20al%20OPN.pdf

New Case on Retaliatory Discharge & Whistleblowing

The case is Burnett v. America's Collectibles Network, Inc., No. E2009-00591-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2010). Here is a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Ambrose%20C%20Burnett%20Jr%20v%20Americas%20Collectibles%20Network%20Inc%20opn.pdf

Criminal Law: Certified Questions

Here is an opinion from the Tennessee Court of Criminal Appeals that discusses the importance of doing certified questions properly, to wit:

http://www.tsc.state.tn.us/OPINIONS/tcca/PDF/A01/State%20v%20Bradley%20Hawks.pdf

The case is State v. Hawks, No. W2008-02657-CCA-R3-CD (Tenn. Crim App. Feb. 19, 2010).

This case stands for the proposition that Tenn. R. Crim. P. 37 appeals must form the certified question presented to the court in a very specific and not overly broad manner.

Torts: Family Purpose Doctrine

Here is a new case from the Western Section of the Tennessee Court of Appeals on the Family Purpose Doctrine, to wit:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Arlene%20R%20Starr%20v%20Paul%20B%20Hill%20Sr%20and%20Paul%20B%20Hill%20Jr%20OPN.pdf

The case is Starr v. Hill, No. W2009-00524-COA-R3-CV (Tenn. Ct. App. Feb. 18, 2010).

Medical Malpracitce Redefined?

Here's an article from The Tennessean about a new bill in the Tennessee General Assembly that seeks to make it easier for ER doctors to get away with medical malpractice, to wit:

http://www.tennessean.com/article/20100217/COLUMNIST0304/2170359/1003/BUSINESS.

Please read the article.

The bill is bad policy, and worse, it's not supported by the numbers or facts. For example: (1) we have more doctors moving to Tennessee each year due to climate, lack of state income tax, etc.; (2) there have been fewer medical malpractice claim filed in the last two years due to recent legislation that went into effect in 2008 and 2009; and (3) lastly, medical malpractice claims are only a small part of healthcare costs (sometime less than one percent): reducing medical malpractice claims will do little to nothing to reduce healthcare costs.

How a Bill Becomes a Law in the U.S. Congress

I remember watching this clip on TV when I was just a boy. I think it aired in the mid-to-late '70s and early 80s. It is how I first learned how a bill becomes a law in Congress. Here it is:

http://www.youtube.com/watch?v=mEJL2Uuv-oQ

P.S. You'll catch yourself humming the the tune from this clip after you watch it.

Illinois Supreme Court Strikes Down Caps in Medical Malpractice Cases

http://www.bloomberg.com/apps/news?pid=newsarchive&sid=ar0E3Dg14ajo

Other Blogs: Part II

Here is a link to another good blog that I follow that is published by David Randolph Smith:

http://www.drslawfirm.com/lexscientia.html

Other Blogs

There is a very interesting blog on the subject of tort law that I thought you all would like to know about. It's called Torts Prof Blog. It is located at: http://lawprofessors.typepad.com/tortsprof/.

John Day brought this blog to my attention a while back. I want to thank John for that. By the way, John's blog it is at: http://www.dayontorts.com/.

Check out both blogs. They are informative and have useful content.

General Sessions Court: Appellant Has Right to Dismiss Appeal Any Time Before Trial

The Tennessee Court of Appeals for the Middle Section issued its opinion yesterday in Crowley v. Thomas, M2009-01336-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2010). The case dealt with an appeal from general sessions court to circuit court. It held that an appellant (in this case the defendant in general sessions court) had a right to dismiss the appeal --- and the whole case --- any time before trial.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/101/James%20Crowley%20et%20al%20v%20Wendy%20Thomas%20OPN.pdf

Practice point: if you are the prevailing party in general sessions court, and your adversary appeals, it would be wise for you to file an appeal too. That way, your claim cannot be dismissed by your adversary's dismissal of its appeal.

Firm News: Practice Areas

Someone asked me the other day if I would post what areas of the law that I practice in on my blog. That is the reason for this post. Below is a list of the areas that I focus my practice on:

Medical Malpractice
Motor-vehicle/Tractor-trailer Accidents
Personal Injury
Wrongful Death
Product Liability
Criminal Defense

New Trial Not Allowed Under Rule 606(b)

The Tennessee Court of Appeals just issued an opinion that discusses when a new trial is allowed under Rule 606(b) of the Tennessee Rules of Evidence. The case is Gaines v. Tenney, E2008-02323-COA-R3-CV (Tenn. Ct. App. Jan. 21, 2010). Rule 606(b) generally makes juror testimony as to what occurred during deliberations inadmissible except under certain circumstances, which are listed in the rule. See Tenn. R. Evid. 606(b).

Here's a link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Linda%20Kay%20Gaines%20etux%20v%20Leslie%20McCarter%20Tenney%20et%20al.pdf

Medical Malpractice: Doctor Removes Wrong Kidney

This "never event" (euphemistically called a "hospital acquired condition" by some in the healthcare industry) should never happen, which is why it's called a never event. Here's a link to the story from MSNBC:

http://www.msnbc.msn.com/id/34906847.

Here's a link to a publication that lists certain serious reportable events in healthcare, i.e., never events, to wit: Serious Reportable Events in Healthcare – 2006 Update. Notice that the number 1 never event is surgery on the wrong body part.

New Tennessee Supreme Court Opinion on Comparative Fault: The Original Tortfeasor Rule "Tweaked"

Today, the Tennessee Supreme Court released its opinion in Banks v. Elks Club Pride of Tenn. 1102. No. M2008-01894-SC-S09-CV (Tenn. Jan. 13, 2010). Regarding the original tortfeasor rule, it held that joint and several liability no longer applies, to wit:

[T]he doctrine of joint and several liability no longer applies to circumstances in which separate, independent negligent acts of more than one tortfeasor combine to cause a single, indivisible injury. We hold that an actor whose tortious conduct causes physical harm to another is liable for any enhanced harm the other suffers due to the efforts of third persons to render aid reasonably required by the other’s injury, as long as the enhanced harm arises from a risk that inheres in the effort to render aid. In light of our consistent holding that the doctrine of joint and several liability no longer applies to circumstances in which separate, independent negligent acts of more than one tortfeasor combine to cause a single, indivisible injury, it is improper to maintain joint and several liability in cases involving subsequent medical negligence where there is even less cause....

Id., slip op. at 17.

However, consistent with our state's system of comparative fault, the original tortfeasors' fault is to be compared with the fault of subsequent tortfeasors as described in the opinion. Here's a link to it:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/101/SC%20Alice%20J%20Banks%20v%20Elks%20Club%20Pride%20of%20TN%20opn.pdf

Negligence: Summary Judgment Upheld on Appeal Via a Duty Analysis

The Court of Appeals issued its opinion in Greene v. Titi, No. M2008-02788-COA-R3-CV (Tenn. Ct. App. Jan. 11, 2010). This case dealt with negligent security at a night club. The Court of Appeals held, inter alia, that the security company owed no duty to the plaintiff, which was fatal to the plaintiff's claim. Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Corey%20Greene%20v%20Yaseen%20Kamleh%20Titi%20dba%20Crush%20OPN.pdf

Judge Swiney concurred in the result but disagreed with the majority as to whether a duty was in fact owed to the plaintiff. Here's a link to that opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Corey%20Greene%20v%20Yaseen%20Kamleh%20Titi%20dba%20Crush%20CON.pdf

Fourth Anniversary!

Wow! This month marks the fourth anniversary of this blog. I cannot believe it. Four years have gone by so quickly. Thank you all for reading my blog. I really appreciate it. I hope it helps.

Medical Malpractice: A Surgeon's Nondelegable Duty to Remove a Sponge from a Patient's Body Following Surgery

This is a photograph of a laparotomy sponge that was sewn up in my client's abdomen during a surgery that was performed upon him by Richard Geer, M.D. in 2006. At present, this case is up on appeal to determine, among other things, whether a surgeon has a nondelegable duty to remove foreign objects from a patient that were introduced into the wound during surgery. My clients contend that such a duty exists in Tennessee. Their position is supported by the following authorities:

1. 61 Am. Jur. 2d Physicians, Surgeons, etc. § 240, at 343 (2002); id. § 242, at 345-46;

2. 70 C.J.S. Physicians and Surgeons § 99, at 587 (2005);

3. 21 R.C.L. § 33, at 388-89 (1918) (Note: "R.C.L." stands for "Ruling Case Law"); and

4. Tutton v. Patterson, 714 S.W.2d 268, 270 (Tenn. 1986) (citations omitted).

Happy New Year!!

I hope you have a great 2010.

Medical Malpractice: Plaintiff Survives Summary Judgment with a Negligence Per Se Claim

The Tennessee Court of Appeals just issued its opinion in Watkins ex rel. Watkins v. Affiliated Internists, P.C. No. M2008-01205-COA-R3-CV (Tenn. Ct. App. Dec. 29, 2009). The plaintiff was able to survive summary judgment with a negligence per se claim. The court held as follows:

Thus, we must respectfully disagree with the trial court’s finding that TENN. COMP. R. & REGS. 0880-2-.18(7) cannot support the Plaintiff’s claim of negligence per se. We find that it constitutes a standard of care, and that the trial court erred in denying the Plaintiff’s motion to amend the complaint to allege a claim of negligence or negligence per se based on the breach of that standard.

Id., slip op. at 31 (emphasis added). As you can surmise, the defendant failed to comply with the above-referenced rule/regulation. See id.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/John%20Mark%20Watkins%20v%20Affiliated%20Internists%20and%20TK%20Pardue%20MD%20OPN.pdf

Harris v. Horton: Petition to Rehear Filed

I posted about Harris v. Horton on December 15, 2009. A petition to rehear under Rule 39(a) of the Tennessee Rules of Appellate Procedure was filed yesterday.

The current cite to the case, as of December 28, 2009, is as follows: Harris v. Horton, No. M2008-02142-COA-R3-CV, 2009 WL 4801719 (Tenn. Ct. App. Dec. 14, 2009), petition for reh'g filed (Dec. 28, 2009).