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.

New Opinion on Personal-injury Claims in Bankruptcy

Today the Tennessee Court of Appeals, Western Section, issued its opinion in Lane v. Daniel, No. W2012-01684-COA-R3-CV (Tenn. Ct. App. May 29, 2013).  The summary from the opinion reads as follows:

This case involves the application of the statute of limitations to an intervening personal injury complaint filed by a bankruptcy trustee after the defendants asserted that the original plaintiff, the debtor in the bankruptcy proceeding, lacked standing to bring the claim. Once the bankruptcy trustee became aware of the claim, he filed a motion for intervention, or in the alternative, for substitution pursuant to Rule 17.01 of the Tennessee Rules of Civil Procedure. The trial court granted the trustee’s motion and the trustee later filed an intervening complaint. The trial court, however, later dismissed the case, reasoning that because the first complaint was filed by a party without standing, the original complaint was a nullity. Under this theory, the trial court concluded that the action was commenced upon the filing of the trustee’s intervening complaint, which was undisputedly outside the applicable statute of limitations. Having determined that the plaintiff’s original complaint was not a nullity, we conclude that the trustee’s intervening complaint relates back to the original complaint and, thus, was filed within the applicable statute of limitations.  Accordingly, we reverse and remand.

Here's a link to the opinion:

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

Medical Malpractice (n.k.a. Health Care Liability Action): Tennessee Supreme Court Holds That 120-day Extension of the Statute of Limitations Does Not Apply to Governmental Entities

The Tennessee Supreme Court just decided Cunningham v. Williamson Cnty. Hosp. Dist., No. M2011-00554-SC-S09-CV (Tenn. May 9, 2013).  The summary of the opinion reads as follows:

A husband and wife filed a claim against a county hospital alleging that the negligence of the hospital and its employees caused the death of their son. The claim was filed approximately fifteen months after their son’s death in accordance with the provisions of the Tennessee Medical Malpractice Act. See Tenn. Code Ann. § 29-26-121 (2012). The county hospital, a governmental entity, filed a motion to dismiss, arguing that the claim was filed outside the one-year statute of limitations of the Governmental Tort Liability Act (“GTLA”). Tenn. Code Ann. § 29-20-305(b) (2012). The couple responded that their complaint was timely filed because Tennessee Code Annotated section 29-26-121(c) extended the GTLA statute of limitations by 120 days. The trial court denied the hospital’s motion to dismiss but granted an interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Appeals granted the Rule 9 application and affirmed the trial court’s denial of the hospital’s motion to dismiss. We granted the hospital permission to appeal. We hold that the 120-day extension provided by Tennessee Code Annotated section 29-26-121(c) does not apply to the plaintiffs’ claim brought under the GTLA. We therefore reverse the judgment of the trial court denying the hospital’s motion to dismiss and remand the case to the trial court for entry of an order dismissing Mr. and Mrs. Cunningham’s complaint.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/cunninghamwopn_0.pdf

NOTE: This is a follow-up post to my Dec. 1, 2012 one.  Please see that one too.

Moreover, this is a must-read opinion for any lawyer who handles health care liability actions (f.k.a. medical malpractice actions) against governmental entities.  It may, however, only be applicable to cases that accrued before October 1, 2011, which can be discerned from a careful reading of the opinion.  

Medical Malpractice (a.k.a. Health Care Liability Action): Plaintiff's Case Dismissed Due to Insufficiency of Service of Process

The Tennessee Court of Appeals just issued its opinion in Milton v. Etezadi, No. E2012-00777-COA-R3-CV (Tenn. Ct. App. May 3, 2013). The summary from the opinion states as follows:

This case presents the issue of whether proper service of process was accomplished regarding the defendant, Saeed Etezadi, M.D. Plaintiff, Will J. Milton, filed a medical malpractice action against Dr. Etezadi on April 14, 2003. The complaint and summons were served upon Dr. Etezadi’s office manager, with a notation appearing on the summons that service was accepted as “agent.” Dr. Etezadi filed an answer which, inter alia, raised the affirmative defense of insufficiency of service of process. Mr. Milton voluntarily dismissed that action and subsequently re-filed within one year of the non-suit. In connection with the second action, the complaint and summons were allegedly served upon Dr. Etezadi at his office. Dr. Etezadi filed an Answer, again raising the affirmative defense of insufficiency of service of process. Dr. Etezadi also asserted that all applicable statutes of limitation and repose had expired. He later filed a motion to dismiss. Following the hearing, the trial court dismissed the claims against Dr. Etezadi, finding that there was no service of process in either action.  Mr. Milton appeals. We affirm.

Here's a link to the opinion:

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

Medical Malpractice: Pre-suit Notice Provision Held to Be Constitutional by Tennessee Court of Appeals, Part II

This post should be read in conjunction with my April 17, 2013 post.  The Tennessee Court of Appeals, Western Section, has once again held that Tennessee's statutory pre-suit notice requirement in medical malpractice actions (n.k.a. health care liability actions) is constitutional, inter alia, in Williams v. SMZ Specialists, P.C., No. W2012-00740-COA-R9-CV (Tenn. Ct. App. Apr. 19, 2013). The summary of the opinion states as follows:

This appeal involves a constitutional challenge to T.C.A. § 29-26-121, which requires notice to defendants prior to the commencement of a health care liability lawsuit. The plaintiff filed a lawsuit asserting health care liability against the defendant health care providers within the applicable statute of limitations, but without providing the defendants with prior notice as required under Section 29-26-121. In ruling on the defendants’ motion for summary judgment, the trial court held that Section 29-26-121 conflicted with Rule 3 of the Tennessee Rules of Civil Procedure. On this basis, it held that the statute infringed upon the authority of the judicial branch to enact rules governing the procedures for commencing a lawsuit, and thus violated the separation of powers clause of the Tennessee Constitution. the defendant health care providers were granted permission for this interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. We reverse, holding that pre-lawsuit notice requirement in Section 29-26-121 does not contravene the separation of powers clause of the Tennessee Constitution.

Here's a link to the opinion:

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