New Med Mal Opinion

I spoke too soon about not posting anything till January. The Court of Appeals issued a medical malpractice opinion in Geesling v. Livingston Reg'l Hosp., LLC, No. M2007-02726-COA-R3-CV (Tenn. Ct. App. Dec. 18, 2008).

The opinion stresses the importance of complying with the locality rule, which is codified at Tennessee Code Annotated section 29-26-115.

Here's the link to the opinion:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/Geesling%20v%20Livingston%20OPN.pdf

Happy Holidays!

Folks,

I'm not going to post anything till early January unless something major comes up. This is because I'm going to enjoy the holidays with my family and friends. I hope you can do the same.

Tony

Summary Judgment & Comparative Fault

The Middle Section of the Tennessee Court of Appeals issued its opinion in Allen v. Historic Hotels of Nashville, LLC, No. M2007-02423-COA-R3-CV (Tenn. Ct. App. Dec. 9, 2008).

This opinion does an excellent job of describing the proper standard for granting summary judgment in Tennessee as recently refined by our Supreme Court in Hannan v. Alltel Publ'g Co., E2006-01353-SC-R11-CV (Tenn. Oct. 31, 2008) (see Nov. 8, 2008 post).

The opinion also does an excellent job of describing the interplay between comparative fault and Tennessee Code Annotated section 20-1-119.

This is a must-read opinion for any Tennessee litigator.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/AllenElmer.OPN.pdf

New Saving Statute Case

Talk about dodging a bullet!! Whew!

Plaintiff in this case originally filed suit in general session court and then voluntarily dismissed her lawsuit. Plaintiff's counsel sent two orders dismissing the case, one via facsimile and the other via U.S. mail. The judge signed both orders and both orders were entered by the clerk. However, only the order that was sent via U.S. mail, which was entered AFTER the order that was sent via facsimile, was returned to Plaintiff's counsel. Plaintiff's counsel relied upon the order he received for purposes of refiling the lawsuit under the saving statute, Tennessee Code Annotated section 28-1-105. The second lawsuit was refiled in circuit court. The trial court dismissed it as being time-barred under 28-1-105. The Court of Appeals reversed.

The case is styled Williams v. Cliburn, No. M2007-01763-COA-R3-CV (Tenn. Ct. App. Dec. 1, 2008). Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/Williams%20v%20CliburnOPN.pdf

P.S. Please note the precedential value of the case, which is noted in footnote 1 on page 2 of the slip opinion.

A Legal Citation Web Site

Here's a site to use if you don't have your Bluebook handy, to wit:

http://www.law.cornell.edu/citation/

Hope this helps. Good luck!

Medical Malpractice v. Common Law Negligence

The Court of Appeals recently issued its opinion in Cannon v. McKendree Village, Inc., No. M2008-00456-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2008). The opinion was written by Justice Lee, who was sitting as a special judge for this matter. It offers a good explanation of when a cause of action or claim sounds in medical malpractice or common law negligence. It also touches upon claims made under the Tennessee Adult Protection Act and res ipsa loquitur.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/CannonEugeneOPN.pdf

Happy Thanksgiving!

Happy Thanksgiving to you all. I hope you all have a great holiday.

Thanks for reading my blog.

An Unfortunate Result

The Tennessee Court of Appeals recently issued its opinion in Gilchrist v. Aristorenas, No. W2007-01919-COA-R3-CV (Tenn. Ct. App. Nov. 24, 2008). The Court of Appeals upheld the trial court's grant of summary judgment in favor of the defendant.

This case demonstrates the dangers and pitfalls of handling medical malpractice cases. The plaintiff's expert recanted an earlier plaintiff-friendly opinion during his deposition. This resulted, in part, in the plaintiff not having the necessary expert testimony to rebut the defendant's motion for summary judgment. Therefore, the motion for summary judgment was granted.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/GilchristEEopn.pdf

Pretrial Discovery under the Tennessee Rules of Civil Procedure in General Sessions Court

Everyone knows that the Tennessee Rules of Civil Procedure do not apply in general session court, right? In fact, subject to three exceptions, Rule 1 says they do not apply. See Tenn. R. Civ. P. 1 (stating that the rules shall not apply to general sessions courts). But is there ever an occasion when the rules do apply, even if one of the three exceptions listed in Rule 1 aren't operative? The answer is yes. Discovery under Rules 26-34 and 36-37 may be had if a motion is filed and granted, to wit:

24-9-102. General sessions cases. —

(a) Discovery pursuant to Rules 26-37 of the Tennessee Rules of Civil Procedure, excluding physical and mental examinations under Rule 35 of such rules, may be taken in all civil cases pending in the courts of general sessions in the discretion of the court after motion showing both good cause and exceptional circumstances and pursuant to an order describing the extent and conditions of such discovery.

(b) Depositions of custodians of hospital and medical records may be taken in all cases pending before the judges of the courts of general sessions, under the same rules, regulations, and restrictions as in cases pending in the courts of record.

[Acts 1986, ch. 750, § 1; 1988, ch. 943, § 1.]

Hope this helps. Good luck!

Nashville/Davidson County Juror Info.

Here's a link to juror information from the Metro. Nashville & Davidson County Circuit Court Clerk's Office:

http://juryduty.nashville.gov/portal/page/portal/juryDuty/home

No Credit to Nonsettling Defendants

Are nonsettling defendants entitled to a credit for amounts paid by former defendants or non-parties? Short answer: no. So long as uninsured or underinsured motorist coverage is not in play, defendants receive no such credit. See generally Varner v. Perryman, 969 S.W.2d 410 (Tenn. Ct. App. 1997); Williams Holding Co. v. Willis, 166 S.W.3d 707 (Tenn. 2005); see also 17 John A. Day et al., Tennessee Practice Series: Tennessee Law of Comparative Fault § 11:3, at 213 (2nd ed. 2002); id. § 11:6, at 49 (Supp. 2007-08).

Another Summary Judgment Case

The Tennessee Supreme Court recently issued another opinion (with a separate concurring opinion) regarding summary judgment practice in this state. The case is Martin v. Norfolk Southern Ry. Co., E2006-01021-SC-R11-CV (Tenn. Nov. 14, 2008). The Court in Martin reiterates and reaffirms its recent holding in Hannan (see previous post), which is that summary judgment should only be granted when (1) the movant affirmatively negates an essential element of the non-movant's claim; or (2) the movant shows that the non-movant cannot prove an essential element of its claim at trial. Martin, E2006-01021-SC-R11-CV, slip op. at 6.

Here is a link to the majority opinion that was written by Chief Justice Holder:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/084/MartinTOPN.pdf.

Here is a link to Justice Koch's separate concurring opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/084/MartinTConcurOPN.pdf.

Summary Judgment in Tennessee

The Tennessee Supreme Court recently issued an important opinion on summary judgment in Hannan v. Alltel Publ'g Co., E2006-01353-SC-R11-CV (Tenn. Oct. 31, 2008). Justice Koch filed a dissenting opinion.

Here is a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/084/HannanOPN.pdf

Here is a link to Justice Koch's dissent:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/084/HannanOPN.pdf

Election 2008

This election has been one of the most interesting in recent years (and that says a lot when you consider what happened in 2000). I have seen more yard signs, TV ads, and campaign buttons than I have in a while, too. My former high-school Civics teacher, who is now deceased, would be loving the current atmosphere (in fact, I do too).

We all know how important it is to vote; people died so we could have this way of a life, this democracy. A democracy, however, cannot -- and will not -- function properly unless people exercise their right to vote. So, please, no matter who you support, get out today and exercise your right to vote.

Gerry Spence's Blog

Gerry Spence has a blog. There should be some interesting stuff on it every now and then.

Here's the link: http://gerryspence.wordpress.com/.

Crespo Opinion

Yesterday, the Tennessee Court of Appeals released its opinion in Crespo v. McCullough, No. M2007-02601-COA-R3-CV (Tenn. Ct. App., Oct. 29, 2008). This case is a medical malpractice case involving an alleged medical injury to a child. It held that the three-year statute of repose contained in Tennessee Code Annotated section 29-26-116(a) (2000) was unconstitutional as applied to these particular plaintiffs because it violated their due process and equal protection rights.

The majority's opinion addresses and reconciles any perceived conflict between this opinion and Calaway v. Schucker, 93 S.W.3d 509 (Tenn. 2005). Calaway held that the three-year statute of repose for medical malpractice actions applied to all cases filed after December 9, 2005 (i.e., when Calaway was issued). For purposes of information, the complaint in Crespo, which complained of an injury to a minor more than three years before, was filed on August 2, 2007. Crespo, M2007-02601-COA-R3-CV, slip op. at 10. The plaintiffs in Crespo had relied on the long-established precedents that had held that a minor's claim was tolled until majority.

Judge Swiney issued a brief dissent. He would hold that the Crespo's claim is time-barred under Calaway.

Here's the majority opinion: http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/CrespoKOPN.pdf

Here's Judge Swiney's dissent:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/CrespoKOPNDissent.pdf

Medical Battery

Medical battery is sometimes overlooked as a potential cause of action when one is reviewing a potential medical malpractice claim. It shouldn't be. It is viable in Tennessee.

Here is a good case that explains the elements of medical battery in Tennessee: Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn. 1998). It is also worth noting that expert testimony is not required in these types of cases. Id. at 523.

Hope this helps. Good luck!

Thanks

To all who read this blog on a regular basis (including those who have their own blog), thank you. I truly appreciate the kind e-mails and comments I get from you all.

I consider myself truly blessed to be practicing law in Tennessee. I hope I never become one of those self-centered types who think the world revolves around them. If I do, please knock me off my high horse.

Thanks, again, for reading.

Tony

Excusable Neglect

The Tennessee Court of Appeals recently issued an opinion that further defines what constitutes excusable neglect. The case is Ferguson v. Brown, No. M2007-02590-COA-R3-CV (Tenn. Ct. App., Oct. 21, 2008).

Here's the link to the opinion: http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/Ferguson.O.OPN.pdf

Certificates of Good Faith: Forms

The Tennessee Administrative Office of the Courts ("AOC") now has form certificates of good faith on its Web site, which are required by statute to be filed in medical malpractice actions. They are to be filed by a plaintiff to commence an action and by a defendant when the fault of a nonparty is pled as an affirmative defense. Tenn. Code Ann. § 29-26-122 (Supp. 2008).

Here's the link to the AOC's site with both forms:

http://www.tsc.state.tn.us/geninfo/Publications/Forms/TrialCourtForms.htm.

The forms are available in Word or PDF.

Railroad Crossing Accidents

Our firm handles railroad crossing accidents. This area of the law is not that well-known. Here's the Web site for the Federal Railroad Administration ("FRA"): http://www.fra.dot.gov/. The FRA's site can help with research on safety regulations, etc.

Please do not hesitate to contact us if you have a railroad crossing accident that you would like us to look at, whether you're a potential client or another lawyer. Our firm e-mail is info@tonydlaw.com.

Firm News: Medical Malpractice Case Settles

We just recently settled a medical malpractice lawsuit in the Nashville, Tennessee area. This was done within ten months of filing suit.

I'd like to thank our office staff, experts, and nurses who worked really hard to accomplish this goal. It is appreciated.

Another Case on the Element of Duty

A day after the Tennessee Supreme Court decided Satterfield (see first post of Sept. 11, 2008) , which is also a case involving the element of duty, it decided Downs ex rel. Downs v. Bush, M2005-01498-SC-R11-CV (Tenn. Sept. 10, 2008).

As in Satterfield, Chief Justice Holder issued a separate concurring and dissenting opinion. She disagrees with the majority about whether foreseeability should be considered in determining the existence of a duty (majority approach) or whether it should be considered only in determining the breach of a duty (Justice Holder's approach).

This case, along with Satterfield, offers a fascinating look into how the Supreme Court views the element of duty. Both cases should be read by Tennessee practitioners.

Here is the link to the majority opinion in that case: http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/083/DownsOPN.pdf.

Here is Chief Justice Holder's opinion: http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/083/DownsConDissOPN.pdf.

Medical Records in 10 Days

Yes, you read the title of this post correctly. According to Tennessee Code Annotated section 63-2-101(a), when a patient or a patient's authorized representative requests in writing his or her medical records from a healthcare provider, the records must be supplied within ten days. The provider's failure to comply with the request may lead to disciplinary action.

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

Lesser Included Offenses in Tennessee

Here's a useful link I found listing the lesser included offenses in Tennessee.

Here it is: http://www.tsc.state.tn.us/geninfo/Courts/lesserinc.pdf

Please note that it is not an exclusive list.

Tennessee's Newest Supreme Court Justice: Sharon Lee

Today I had the pleasure of attending the investiture ceremony for our newest justice, Sharon Lee. Congratulations, Justice Lee! I hope your tenure on the Tennessee Supreme Court is a long one.

Here's the press release about her appointment: http://www.tsc.state.tn.us/geninfo/PRESSREL/2008/083pr.htm

Resources for Teachers

Those who know me know that I'm partial to teachers. In fact, I love them. My grandmother was my third grade teacher; my younger sister is a teacher. And I will do anything I can for teachers. That's why I'm posting this link. It's a great resource for teachers -- or anyone -- looking for information about our government.

Here's the link: http://thomas.loc.gov/teachers/

Letterman Busts McCain

No matter what political party you are affiliated with, this is funny. Watch what happened on Letterman last night. It's 9 minutes long, but well worth the wait.

http://www.americablog.com/2008/09/david-letterman-blasts-mccain-after.html

The Warrior

Gerry Spence's Trial Lawyers College ("TLC") publishes a magazine called The Warrior. I subscribed to it a while back. It has made me a better lawyer. The magazine has some useful articles and inspiring stories. If you're reading this blog you'd enjoy a subscription too. Here's the link to the TLC's Web site: http://www.triallawyerscollege.com/publicat/warrior.html

Hospital Information

Do you need hospital information? For example, how many beds a facility has, etc. Here is a great resource for locating this kind of information: The Hospital Blue Book. It's published by Billian's Health Data. It comes in a national edition and regional editions.

Here's the link to Billian's site:

http://www.billianshealthdata.com/store/products/hospitals/

September 11, 2001

May we never forget.

New TN S. Ct. Case on the Element of Duty

Among the elements of negligence, duty is important. If no duty arises, there can be no breach of a duty, and thus, no negligence. The Tennessee Supreme Court discusses the element of duty in Satterfield v. Breeding Insulation Co., No. E2006-00903-SC-R11-CV (Tenn. Sept. 9, 2008). Justice Koch authored the majority opinion of the Court. Here's the link to that opinion: http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/083/SatterfieldDopn.pdf.

Chief Justice Holder issued a separate concurring and dissenting opinion. She disagrees with the remainder of the Court on how foreseeability figures into their analysis. Here's the link to that opinion: http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/083/SatterfieldDissOpn.pdf

Tennessee's New Chief Justice

Yesterday I attended the investiture ceremony for Justice Janice Holder. She is only the third woman to serve on the Tennessee Supreme Court. And now she is the first woman to serve as its chief justice.

Congratulations, Chief Justice Holder!

Read more about her at this link:

http://www.tsc.state.tn.us/geninfo/PRESSREL/2008/083pr.htm

10 Things Your Hopsital Won't Tell You

I found this on MSN. It's an interesting read.

http://articles.moneycentral.msn.com/Insurance/InsureYourHealth/10ThingsYourHospitalWontTellYou.aspx

Delay in Serving Summonses Causes Dismissal of WD Case

The Court of Appeals just held that a wrongful death claim was barred by the statute of limitations because the plaintiffs waited eleven months to serve summonses upon the defendants. This delay was a deliberate decision by the plaintiffs. The Court of Appeals held that the plaintiffs intentionally caused a delay of prompt service of the summonses, which violates the Rules of Civil Procedure. See Tenn. R. Civ. P. 4.01(3).

The case is Estate of Butler v. Lamplighter Apartments, No. M2007-02508-COA-R3-CV (Tenn. Ct. App. Aug. 20, 2008).

Here's the link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/083/ButlerRobynOPN.pdf

TN S. Ct. Issues New NIED Opinion

A few days ago the Tennessee Supreme Court issued an opinion in Eskin v. Bartee, No. W2006-01336-SC-R11-CV (Tenn. Aug. 14, 2008). Justice Koch authored the opinion. It traces the origins of the tort of negligent infliction of emotional distress ("NIED") to the present. It's a good read and provides insight to this often confused tort.

In Eskin the Court held that a person who observes an injured family member shortly after an injury producing accident may pursue a claim for NIED. It is worth noting that the Court did not overrule its prior holdings in Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996) or Lourcey v. Estate of Scarlett, 146 S.W.3d 48 (Tenn. 2004). Eskin, No. No. W2006-01336-SC-R11-CV, slip op. at 12.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/083/EskinMOPN.pdf

Resolving Medicare Liens: Part 3

Here are steps 5 & 6:

5. As soon as your case is resolved you must fax a letter to Medicare at (734) 957-0998. The letter should state: (1) the date the case was resolved; (2) the amount involved; (3) the attorney's fee; and (4) an itemized list of expenses. Call them a few days after the letter has been sent to verify that it was received and request a final demand letter. Again, it will take 30 to 45 days for you to receive the letter. You will also receive another itemization from Medicare and a demand for payment. Be sure to check for unrelated charges. YOU ONLY HAVE 60 DAYS TO SATISFY THE LIEN (unless the the final demand letter states otherwise). You must file an appeal to get rid of the unrelated charges on the final demand letter. This takes approximately 150 days to decide. You must still satisfy the lien while the appeal is pending. Mail the check to: Medicare: MSPRC Liability, P.O. Box 33828, Detroit, MI 48232-3828.

6. This is the easiest step. Wait for Medicare to send you a letter confirming that the lien has been released and that they are closing their file.

Resolving Medicare Liens: Part 2

Here are steps 3 & 4, to wit:

3. Once the Consent to Release Form has been filed with Medicare, you will get an itemization of their lien within 30 to 45 days. Review this very carefully to ensure all charges are related. If any unrelated charges are discovered, send a letter to Medicare immediately asking that the charges be removed. You can fax the request to (734) 957-0998. You won't get a response for another 30 to 45 days. You may also call Medicare at 866-677-7220 a few days after you fax your letter to verify that they received it.

4. Before you make a demand, go to mediation, or to trial, request a conditional payment letter. This can be done by calling 866-677-7220. They will generally not give lien information out over the phone. Also, this will take another 30 to 45 days before you receive the letter.

Steps 5 & 6 to follow.

Resolving Medicare Liens: Part 1

Resolving Medicare liens can be a real hassle. As of October 2006 there is one national recovery contractor for Medicare. It's the Medicare Secondary Payer Recovery Contractor ("MSPRC"). Here is MSPRC's Web site http://www.msprc.info/.

There is a six-step process for resolving Medicare liens through MSPRC. Here are steps 1 & 2:

1. Send a letter of representation that includes details of your client's injuries (be specific). The address is: Medicare: Coordination of Benefits, MSP Claims Investigation Project, P.O. Box 33847, Detroit, MI 48232.

2. Medicare will send you a reply letter; enclosed will be a Medicare Secondary Payer Development Form. Complete the applicable portions of the form, have your client sign it, and return it to Medicare. Medicare will also send you a Consent to Release Form for your client's signature. The Consent to Release Form must be on file before Medicare will speak to you about the claim.

Please make sure all forms are compete or they will be returned.

The remaining four steps will be posted later.

Good luck!

Flax v. DaimlerChrysler

Yesterday the Tennessee Supreme Court relased its opinions (yes, there's four in all) in Flax v. DaimlerChrysler, M2005-01768-SC-R11-cv (Tenn. July 24, 2008).

Here's the link to the opinions:

http://www.tsc.state.tn.us/OPINIONS/TSC/sc3qtr2008.shtml

Justice Holder authored the majority opinion.

FAQs About EMTALA

Ever have a question about the Emergency Medical Treatment and Active Labor Act ("EMTALA"). I do. Here's a link with answers to EMTALA FAQs:

http://www.emtala.com/faq.htm

The Word "Shall"

Every lawyer I know has heard that the word "shall" means something is mandatory. However, do you have a cite to support that statement? You do in Tennessee, to wit: Stubbs v. State, 393 S.W.2d 150, 154 (Tenn. 1965) (citing Louisville & N.R. Co. v. Hammer, 236 S.W.2d 971, 973 (Tenn. 1951)).

Hope this helps.

More Medical Research Sites

Here's some research sites from the American College of Surgeons ("ACS"). The ACS's Web site is a valuable resource for researching surgery-related questions and related matters.

Here's the link: http://www.facs.org/tsi/journals.html

Hope this helps. Good luck!

Patient Dies in Psychiatric ER

This is the reason that trial lawyers are needed. If hospitals are not held accountable for actions like this -- in court -- they won't do anything about it.

Here's what I am writing about:

http://www.msnbc.msn.com/id/25475759/?GT1=43001

May the Courthouse Doors Always Remain Open

I read this article on Sunday and was amazed at how much is spent by big business to try to close the courthouse doors to the injured or wronged (it's on page 2 of the article). In fact, I was shocked. A jury is an integral part of our civil justice system; and big business wants to limit a jury's right to decide a matter and the remedy that can be provided. (As a reminder, one of the reasons we declared our independence from England was because we had been denied the right to a jury trial in some instances.)

I'm fond of saying there are no Atheists in foxholes, and there are no injured persons who are pro-tort deform.

Yes, I am biased. I think American citizens should have the right to decide when another has been injured or wronged, and to determine the amount of damages incurred. Others do not agree with me (as can be determined by reading the article). You make up your own mind on the issue.

Here's the link:

http://www.nytimes.com/2008/06/22/business/22tort.html?_r=1&ref=business&oref=slogin

May the Courthouse Doors ALWAYS remain open to those who have been injured or wronged.

Is a Lawyer Allowed to Tape Record a Court Proceeding in Tennessee?

A lawyer may tape record a judicial proceeding in Tennessee. This is per statute, to wit: "It is lawful for attorneys representing parties in proceedings in any of the courts of this state to use tape recorders as an aid in making notes of the proceedings." T.C.A. § 20-9-104. Here's a link to the Tennessee Code: http://michie.lexisnexis.com/

Hope this helps.

Service by Facsimile under the Tenn. R. Civ. P.

Did you know that you can effectuate service of some documents via facsimile under the Tennessee Rules of Civil Procedure? I didn't till today; Rule 5 allows this form of service. See Tenn. R. Civ. P. 5.02 ("Items that may be filed by facsimile transmission pursuant to Rule 5A may be served via facsimile transmission."). Tenn. R. Civ. P. 5A.02(4) lists the documents that can't be filed (or served) via facsimile (e.g., complaints, summonses, wills, affidavits, etc.). Therefore, any document that can be filed with the clerk via facsimile can also be served via facsimile. See Tenn. R. Civ. P. 5.02 & 5A.02(4).

Useful information, huh?

New Med Mal Opinion on Apparent Agency

Today the Court of Appeals issued an opinion in Thomas v. Oldfield, No. M2007-01693-COA-R3-CV (Tenn. Ct. App. June 2, 2008). Judge Clement authored the opinion.

The Court of Appeals reversed the trial court's grant of summary judgment to the defendant hospital based upon apparent agency. This ruling is in line with the Tennessee Supreme Court's rulings in Boren v. Weeks and Dewald v. HCA Health Services of Tennessee (both are the subject of my May 7, 2008 post). For purposes of explanation, Boren and Dewald adopted the Restatement (Second) of Torts § 429 as the controlling law in the analysis of whether apparent agency exists.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/082/thomasjamesOPN.pdf

FYI: This is the second appeal that I know of in this case; the other is the subject of my Nov. 8, 2007 post.

New Opinion on Comparative Fault and the Discovery Rule

The Court of Appeals (Eastern Section) recently issued an opinion in a car-wreck case analyzing comparative fault and the discovery rule. Judge Susano authored the opinion. The style of the case is Grindstaff v. Bowman, No. E2007-00135-COA-R3-CV (Tenn. Ct. App. May 29, 2008). I think it is a must-read opinion.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/082/GrindstaffbfOPN.pdf

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.

Directed Verdicts in Tennessee State Courts

If a plaintiff has made out his or her case and no evidence tending to contradict it is offered, the trial court has a duty to direct a verdict. Robert E. Burch, Trial Handbook for Tennessee Lawyers §32:3, at 562 n.4 (2007-08 Thomson-West) (citing numerous sources).

Under the proper circumstances, the court may direct a verdict in favor of either party, even though the effect of the grant is to deprive a party of his or her right to a jury trial. Id. § 32:1, at 561 n.1 (citing Tenn. R. Civ. P. 50.01).

This is a great tool that may be at used at trial when you find that your proof is uncontroverted. See id.

Thanks to Judge Burch who has authored an invaluable book. This book is a must-have for every attorney in Tennessee.

General Sessions Court and Attorney's Fees

It's a well-known fact that the monetary jurisdictional limit of Tennessee's general sessions courts is $25,000. But did you know that attorney's do not count against that limit and can be added to a $25,000 award in general sessions court? Here's the statute: Tennessee Code Annotated section 16-15-501(d).

Here's a link to the Tennessee Code Annotated so you can look it up for free:

http://www.michie.com/

Tennessee Code Annotated section 16-15-710 and Process in Tennessee General Sessions Court

What do you do if you have filed suit in general sessions court and not gotten service upon the defendant? Tennessee Code Annotated section 16-15-710 states what needs to be done to keep your lawsuit from becoming time-barred, to wit:

The suing out of a warrant is the commencement of a civil action, within the meaning of this title, whether it is served or not; but if the process is returned unserved, plaintiff, if plaintiff wishes to rely on the original commencement as a bar to the running of a statute of limitations, must either prosecute and continue the action by applying for and obtaining new process from time to time, each new process to be obtained within nine (9) months from return unserved of the previous one (1), or plaintiff must recommence the action within one year after return of the initial process not served.

I  would like to thank my friend David Cooper for pointing this out to me.