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