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!