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Thursday, November 29, 2007

New Locality Rule Decision

The Tennessee Court of Appeals issued an opinion that discusses the locality rule in Hill v. Giddens, No. W2006-02496-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2007).

Here's the link to the case:

This case is a good reminder of what an expert in a medical malpractice case needs to know to be qualified to testify.

Tuesday, November 27, 2007

Rhode Island Hospital Fined for THIRD Wrong-Site Surgery

A Rhode Island hospital has been fined for its THIRD wrong-site surgery this year. The wrong side of a patient's head.

Here's the link to the story:

I want to leave you with this one question (and/or thought): Why should the healthcare industry not be held responsible for its negligent acts? Tort reform proponents believe that it shouldn't be; they want to limit the healthcare industry's liability (even when the negligence is clear). Is that fair? Is it just? Is it right? You decide.

Tuesday, November 20, 2007

New Products Case

The Court of Appeals released an opinion yesterday in Maino v. The Southern Co. Inc. W2007-00225-COA-R9-CV (Tenn. Ct. App. Nov. 19, 2007). This case deals with the interplay among the savings statute, the statute of limitation (to a small extent), and the ten-year statute of repose for products liability cases.

We accordingly hold that a plaintiff who commences a products liability action within the products liability statute of limitations and ten-year statute of repose, voluntarily non-suits, and refiles within one year of the non-suit, may rely on the savings statute notwithstanding the expiration of the ten-year statute of repose.

, slip op. at 7.

Here's the link to the case:

P.S. This case is similar to Cronin v. Howe, 906 S.W.2d 910, 914-15 (Tenn. 1995) (holding that the savings statute will allow a timely filed medical negligence action to be re-filed outside the statute of repose).

Tuesday, November 13, 2007

New England Journal of Medicine On-Line

The New England Journal of Medicine ("NEJM") is considered a reliable authority among those in the medical and legal community. One can find some great information in the NEJM.

Did you know you can buy an on-line subscription for $99 a year? You can. It's a great deal. Here's the link to its Web site:

Hope this helps.

Sunday, November 11, 2007

Veterans Day

I have the highest respect for our veterans. My dad was in the Army and served in Korea. He saw what it was like to be shot at and have friends be there one day and dead the next.

Some soldiers and seamen gave the ultimate sacrifice for all of us. No matter what political affiliation you belong to, you can't ignore that fact. For that, we all owe a debt of gratitude.

Thank you to our veterans. This is your day.

Friday, November 09, 2007

Need a Form?

The Tennessee Administrative Office of the Courts' Web site has some useful forms for the Tennessee state-court practitioner. Here's the link to the site:

Thursday, November 08, 2007

New Opinion Regarding Defendant Liability Insurance Information

The Court of Appeals issued an opinion yesterday in Thomas v. Oldfield, No. M2006-02767-COA-R9-CV (Tenn. Ct. App. Nov. 7, 2007) holding that a defendant's liability insurance information is not discoverable.

Here's the link to the opinion:

Defense Medical Expert's Deposition

Need some help preparing for the defense medical expert's deposition? Here's an article from Attorney's Medical Serv's Inc. ("AMS") that will help:

AMS does a great job of showing what to look for and where in order to properly prepare for the deposition.

Good luck!

Monday, November 05, 2007

Tort Law Tip

In 1992 the Tennessee Supreme Court adopted a system of modified comparative fault in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992) (adopting the "49 percent" rule where a plaintiff must be found to be no more than 49 percent at fault to recover).

Based upon McIntyre, we all know that the trier of fact determines damages and assigns a percentage of fault to parties in the lawsuit. Here's the all-important question: Can fault be assigned to an unknown, or "phantom," tortfeasor? The answer is no, with one exception.

In Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000) the Court wrote:

[W]e conclude that a defendant may not attribute fault to a nonparty who is not identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-1-119, even if the defendant establishes the nonparty's existence by clear and convincing evidence...."

at 789.

As such, a defendant is not permitted to blame an "empty chair" at trial. Fault can only be assigned to those who have been properly identified under the Rules of Civil Procedure. See Tenn. R. Civ. P. 8.03 (to invoke comparative fault as an affirmative defense a defendant must plead facts and state the identity of any alleged tortfeasor).

The one exception to this proscription is in the underinsured motorsist context. See Marler v. Scoggins, 105 S.W.3d 596 (Tenn. Ct. App. 2002) (allowing for fault to be allocated to a "phantom tortfeasor" in an underinsured motorist context).

Bottom line: if a defendant attempts to plead the fault of nonparties insufficiently (i.e., his or her answer doesn't comply with Rule 8.03's requirement of stating both facts and identity) file a motion to strike under Rule 12.06. See Tenn. R. Civ. P. 8.03, 12.06. Do this after the answer has been on file for fifteen but less than thirty days. See Tenn. R. Civ. P. 15.01.

Here's the link to the slip opinion in Brown from the Tennessee Administrative Office of the Courts' Web site:

Thursday, November 01, 2007

New GTLA Case

The Middle Section of the Tennessee Court of Appeals rendered a GTLA opinion yesterday in a case styled Jones v. Bedford County, No. M2006-02710-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2007).

The opinion is a good refresher on some areas of governmental tort liability.

Here's a link to the case: