Happy New Year!

I hope 2011 is your best year yet.

Law School Lectures

Here are a few short lectures from Vanderbilt University Law School's Web site:

http://law.vanderbilt.edu/faculty/listen-to-lectures/index.aspx

Pay attention to the second one about half-truths of tort law.

Medical Malpractice: New Case on Certificates of Good Faith

The Tennessee Court of Appeals issued its opinion on Friday in Barnett v. Elite Sports Med., No. M2010-00619-COA-R3-CV (Tenn. Ct. App. Dec. 17, 2010). The opinion addresses our state's relatively new law on certificates of good faith. The summary from the opinion states as follows:

In this case, we are asked to decide whether an amendment to Tenn. Code Ann. § 29-26-122, which became effective July 1, 2009, and requires the plaintiff in a medical malpractice action to file a certificate of good faith at the time of filing suit, was properly applied to an action initiated prior to the effective date of the amendment, voluntarily dismissed and refiled after the effective date. We also consider whether the requirement that the plaintiff file a certificate of good faith applies to an action for medical battery. We affirm the judgment in part, reverse in part, and remand the case for further proceedings.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/104/Pamela%20Ann%20Barnett%20v%20Elite%20Sports%20Medicine%20Opn.pdf

Comparative Fault & Jury Verdicts

The Tennessee Court of Appeals released its opinion yesterday in Gray v. Bednarz, No. M2010-00010-COA-R3-CV (Tenn. Ct. App. Dec. 16, 2010). While not that long of an opinion, it offers a good discussion on jury verdicts and the assessment of fault; the discussion is set out on pages 3-4 of the opinion. Here's a link to it:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/104/Zula%20Gray%20v%20Joe%20Bednarz%20Jr%20OPN.pdf

Medical Malpractice: Defense Verdict in Claims Commission Upheld on Appeal

bThe Court of Appeals released its opinion in Brown ex rel. Anderson v. State, No. W2010-01036-COA-R3-CV (Tenn. Ct. App. Dec. 15, 2010). Here's the summary from the synopsis:

Appellant, who was not placed on fall observations until after his fall, suffered a fall while under the care of the Western Mental Health Institute. A CAT scan performed three days after the fall revealed no hemorrhaging, however, a repeat scan performed approximately one month later revealed a subdural hematoma for which Appellant subsequently underwent two surgeries. Appellant, by and through his next friend, filed suit against the State in the Claims Commission alleging medical negligence. Following a trial, the Claims Commission found that a Western nurse breached the standard of care in completing the initial fall risk assessment, but that Appellant had failed to prove that such breach was a proximate cause of his fall. Additionally, the Commission found that Appellant had failed to prove that Western’s failure to later place Appellant on fall observations was a proximate cause of his fall. Finally, the Commission found that Appellant had failed to prove by a preponderance of the evidence that Western’s failure to order repeat brain imaging prior to January 26, 2006, was a breach of the standard of care. We affirm the judgment of the Commission.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/104/BrownRobertOPN.pdf

Medical Malpractice: Tennessee Supreme Court Grants an Appeal and Denies Another

This post has to do with two prior posts.

First, the Tennessee Supreme Court recently granted the application for permission to appeal filed in Howell v. Claiborne and Hughes Health Ctr., No. M2009-01683-COA-R3-CV (Tenn. Ct. App. June 24, 2010), appeal granted, (Dec. 10, 2010). Here's a link to the Court's list of discretionary appeals showing the grant of the appeal:

http://www.tsc.state.tn.us/OPINIONS/TSC/certiorari/2010/Certlist20101213.pdf.

Howell was the subject of my June 25, 2010 post, to wit:

http://theduncanlawfirm.blogspot.com/2010/06/medical-malpractice-court-of-appeals_25.html#links

Second, the Tennessee Supreme Court recently denied the application for permission to appeal filed in Jacobs v. Nashville Ear, Nose & Throat Clinic, No. M2009-01594-COA-R3-CV (July 15, 2010), appeal denied, (Dec. 7, 2010). Here's a link to the Court's list of discretionary appeals showing the denial of the appeal:

http://www.tsc.state.tn.us/OPINIONS/TSC/certiorari/2010/Certlist20101213.pdf.

Jacobs is the subject of my July 16, 2010 post, to wit:

http://theduncanlawfirm.blogspot.com/2010/07/medical-malpractice-court-of-appeals_16.html#links

More on the Recent Changes to the Tennessee Rules of Professional Conduct

Here's an article written by Lucian Pera that was recently published in the Tennessee Bar Journal. It outlines the recent changes to Tenn. Sup. Ct. 8, which contains the new Rules of Professional Conduct.

http://tba.org/journal_new/index.php/component/content/article/525?ed=36

Recent Changes to the Fed. R. Civ. P.

Here's an article written by Professor Don Paine on the changes from the Tennessee Bar Journal, to wit:

http://tba.org/journal_new/index.php/component/content/article/534?ed=36

The changes became effective on December 1, 2010.

Medical Malpractice: Petition to Rehear Denied in Barkes v. River Park Hosp., Inc.

This post is a follow-up from my Oct. 20, 2010 post. That post dealt with the recent Tennessee Supreme Court decision in Barkes v. River Park Hosp., Inc. The defendant filed a petition to rehear with the Tennessee Supreme Court, which was denied. Here's a link to the denial, to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/SC%20Debra%20M%20Barkes%20v%20River%20Park%20Hospital%20Inc.pdf

Police Stops, Etc.

I'm often asked "What do I do if the police stop me while I'm walking down the street?" or "What do I do if the police stop me while I'm driving?" I found the following document on the Nashville Public Defender's Web site, which I think is helpful, to wit:

http://publicdefender.nashville.gov/portal/page/portal/publicdefender/pdDownloadsMain/downloads/KnowYourRights.pdf

New Rules of Professional Conduct: Effective Jan. 1, 2011

The Tennessee Rules of Professional Conduct will change at the first of the year. Here is a link to the Tennessee Supreme Court's Order adopting the changes with a copy of the new rules appended to it, to wit: http://www.tba.org/ethics/TSC_Order_Adopting_TRPC.pdf.

Also, here's a copy of the final version of the new rules from the Tennessee Bar Association, to wit:

http://www.tba.org/ethics/2011_TRPC.pdf

What Is My Purpose?

I can't think of a better way to put it, to wit:

https://www.tnaj.org/index.cfm?pg=Purpose

A Wrongful Disclosure of Medical Information Held to Be Actionable

The Tennessee Court of Appeals recently issued its opinion in Doe v. Walgreens Co., No. W2009-02235-COA-R3-CV (Tenn. Ct. App. Nov. 24, 2010). The case deals with the disclosure a customer's medical information; the customer was also an employee of Walgreens at the time of the wrongful disclosure and HIV positive. Here's the summary from the opinion's syllabus, to wit:

This is an appeal from the grant of Appellees/Defendants’ Tenn. R Civ. P 12.02 motion to dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens. In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a customer of Walgreens. A co-worker of Ms. Doe’s accessed Ms. Doe’s prescription history in the Walgreens’ database, and then disseminated her medical information to other coworkers and to Ms. Doe’s fiancé. Ms. Doe and her fiancé filed suit. The trial court dismissed the lawsuit, finding that the Does’ exclusive remedy was under the workers’ compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her employment with Walgreens, and that she has sufficiently pled causes of action outside workers’ compensation law, we reverse the order of dismissal and remand.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/104/Jane%20and%20John%20Doe%20v%20Walgreens%20Co%20OPN.pdf

Medical Malpractice: Plaintiffs' Claim Dismissed Due to Failure to Comply with New Law on Notice and Certificates of Good Faith

The Tennessee Court of Appeals released its opinion today in Martins v. Williamson Cnty. Med. Ctr., No. M2010-00258-COA-R3-CV (Tenn. Ct. App. Nov. 22, 2010). Here's a summary of the case from the syllabus, to wit:

Katrina B. Martins and her husband filed suit against Williamson Medical Center for injuries sustained when Ms. Martins fell in her hospital room. The trial court held that the complaint stated a claim based on medical malpractice and dismissed the lawsuit for failure to comply with the Tennessee Medical Malpractice Act. Plaintiffs appeal, asserting that the complaint sounded in common law negligence. We affirm.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/104/Katrina%20Martins%20v%20Williamson%20Medical%20Center%20Opn.pdf

Have a Question About Tennessee Appellate Practice?

This work might help, to wit:

APPELLATE PRACTICE COMM., NASHVILLE BAR ASS’N, APPELLATE ADVOCACY: A HANDBOOK ON APPELLATE PRACTICE IN TENNESSEE (Donald Capparella et al. eds., 4th ed. 2010).

Here's a link to the handbook:

http://www.nashvillebar.org/Publications/AppellateHandbook/Handbook_currentEdition.pdf

Firm News: Tony Duncan Selected to Mid-South Super Lawyers as a "Rising Star"

The firm is pleased to announce that Tony Duncan has been selected as a "Rising Star" as part of the class of 2010 Mid-South Super Lawyers. Here's a link to his profile, to wit:

http://www.superlawyers.com/tennessee/lawyer/Tony-Duncan/cc552432-29b5-4f60-a913-198fec274ced.html

The selection process for becoming a Mid-South Super Lawyer is explained at the following link:

http://www.superlawyers.com/about/selection_process.html

Congratulations to Tony!

Tony Duncan

online at

visit superlawyers.com

Veterans Day: Thanks to Vets

To all our veterans, thank you for your service to our country. It is greatly apprecited.

May God bless America.

Surgical Errors

Here's an interesting article on surgical errors, to wit:

http://www.msnbc.msn.com/id/40096673/ns/health-health_care/?gt1=43001

Surgery Videos

http://www.nlm.nih.gov/medlineplus/surgeryvideos.html

New Tennessee Supreme Court Opinion on Summary Judgment

The Tennessee Supreme Court issued an opinion yesterday regarding summary judgment in Davis v. McGuigan, No. M2007-02242-SC-R11-CV (Tenn. Oct. 26, 2010). This opinion offers a good analysis of Tennessee's recently clarified summary judgment standard; and, by the dissent, how the Tennessee Supreme Court is fractured on this issue.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/SC%20Joseph%20Davis%20v%20Patrick%20J%20McGuigan%20Opn.pdf

Here's a link to the dissent:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/SC%20Joseph%20Davis%20v%20Patrick%20J%20McGuigan%20opn%20DIS.pdf

Medical Malpractice: Direct Claim Against Hospital Upheld on Appeal

The Tennessee Supreme Court issued its opinion today in Barkes v. River Park Hosp., Inc., No. M2006-01214-SC-R11-CV (October 20, 2010). Here's the summary from the opinion's synopsis, to wit:

In this medical negligence case, we review a jury verdict against a hospital based on the hospital’s failure to enforce its policies and procedures in patient care. Tennessee law has long recognized that a hospital has a duty to its patients to exercise that degree of care, skill, and diligence used by hospitals generally in its community. After reviewing the record, we hold that material evidence supports the jury’s determination that the hospital was 100% at fault for the patient’s death. We therefore reverse the Court of Appeals and reinstate the verdict of the jury.

Here'a a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/BarkesDebra.opn.pdf

Medical Malpractice: Respondeat Superior Saves the Day for Plaintiffs

The Tennessee Supreme Court issued its opinion today in Abshure v. Methodist Healthcare-Memphis Hosp., No. W2008-01486-SC-R11-CV (October 20, 2010). Here's the summary from the opinion's synopsis:

This appeal involves a vicarious liability claim against a hospital based on the conduct of an emergency room physician. A patient and her husband filed a medical malpractice suit in the Circuit Court for Shelby County against a hospital and two physicians, one of whom had treated the patient in the hospital’s emergency room. Among other things, the complaint broadly alleged that the hospital was vicariously liable for the conduct of its agents. After the plaintiffs voluntarily dismissed their claims against both physicians for the second time, the hospital sought the dismissal of the vicarious liability claims on the ground that the plaintiffs’ claims against its apparent agent, the emergency room physician, were barred by operation of law. The trial court granted the hospital’s motion, and the Court of Appeals affirmed the dismissal of the vicarious liability claims against the hospital. Abshure v. Upshaw, No. W2008-01486-COA-R3-CV, 2009 WL 690804, at *5 (Tenn. Ct. App. Mar. 17, 2009). We granted the Tenn. R. App. P. 11 application filed by the patient and her husband to determine whether their vicarious liability claims against the hospital should be dismissed under the facts of this case. We have determined that the lower courts erred by dismissing the vicarious liability claims against the hospital.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/AbshureJ.opn.pdf

Practice tip: when applicable, plead respondeat superior in a medical malpractice claim in a timely manner.

Tennessee Pattern Jury Instructions -- Criminal

Here is a link to the Tennessee Pattern Jury Instructions -- Criminal that are available on the Tennessee Administrative Office of the Courts' ("AOC") Web Site:

http://www.tsc.state.tn.us/geninfo/Courts/LCI_Inst.shtml

P.S. I posted the criminal instructions previously in my May 20, 2009 post. They were , however, not from the AOC.

New Tennessee Supreme Court Decision on Hospital Liens

The Tennessee Supreme Court recently released its opinion in Shelby County Health Care Corp. v. Nationwide Mut. Ins. Co., No. W2008-01922-SC-R11-CV (Tenn. Oct. 13, 2010). A portion of the opinion's synopsis, which summarizes the Court's holding, is as follows:

Kevin L. Holt, injured in an automobile accident in Arkansas, was first taken by ambulance to an Arkansas hospital and then transported to the Regional Medical Center in Memphis, where he incurred $33,823.02 in expenses. Shelby County Health Care Corporation, the operator of the Regional Medical Center, filed affidavits for a lien as prescribed by statute. Thereafter, Nationwide Mutual Insurance Company, which had medical coverage for Holt with limits of $5,000, paid $1,290 for ambulance services and $3,710 to the Arkansas hospital. Shelby County Health Care Corporation sued Nationwide for impairment of its lien, seeking as recovery the entire amount due for its medical services to Holt. The trial court awarded $5,000 in damages. The Court of Appeals revised the amount of the judgment to $33,823.02. Because we have determined that liens under the Hospital Lien Act do not attach to medical payment benefits paid pursuant to an insurance policy, the judgment of the Court of Appeals is reversed and the cause is dismissed.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/SC%20Shelby%20Co%20Health%20Care%20Corp%20dba%20Regional%20Medical%20Center%20v%20Nationwide%20Mutual%20Insurance%20Co%20OPN.pdf

Equine Activities Act: Summary Judgment for the Defendants Reversed

The Middle Section of the Tennessee Court of Appeals offers a good discussion of the Equine Activities Act in Jordan v. YMCA of Mid. Tenn. , No. M2009-02369-COA-R3-CV (Tenn. Ct. App. Sept. 30, 2010).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Kerry%20Jordan%20v%20YMCA%20of%20Middle%20TN%20Opn.pdf

Medical Malpractice: Tennessee Supreme Court Holds Plaintiffs May Argue the Value of Non-Economic Monetary Damages to Jury

The Tennessee Supreme Court issued its opinion today in Elliott v. Cobb, No. W2009-00961-SC-S09-CV (Tenn. 2010). Here is what part of the syllabus states:

The issue presented in this interlocutory appeal is whether a plaintiff in a medical malpractice action is prohibited from arguing or suggesting to the jury any monetary amounts for noneconomic damages. We hold that the language of Tennessee Code Annotated section 29-26-117 (2000) prohibits the plaintiff from disclosing the amount of damages requested in the plaintiff’s pleading, but does not preclude the plaintiff from arguing or suggesting monetary amounts for non-economic damages to jurors at trial. The judgment of the trial court is reversed, and this case is remanded for further proceedings.

Here is a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/CURRENT/SC%20Amanda%20Elliott%20v%20R%20Michael%20Cobb%20opn.pdf

Justice Koch wrote a seperate concurring opinion. Here's the link to it:

http://www.tsc.state.tn.us/OPINIONS/CURRENT/SC%20Amanda%20Elliott%20v%20R%20Michael%20Cobb%20CON.pdf

Medical Malpractice: 12-by-12 Sponge Sewn Up in a Patient---Who's a Judge!

This post is a sister post to my August 17, 2010 post below. My client had a large sponge sewn up in him during surgery in 2006. This story (see link below) is about a Florida judge who had the same thing happen to him.

http://today.msnbc.msn.com/id/39191277/ns/today-today_health/

The sad thing about this sort of thing is this: IT'S ABSOLUTELY PREVENTABLE! All it takes is a little bit of care by the surgeon(s) and the support staff; all of which share blame for this sort of thing generally. A surgeon, however, should share the lion's share of the blame tough.

This sort of thing, which happens regularly, is known as a "Never Event" because it should never happen. However, a lot of surgeons are being encouraged by their malpractice insurance carriers to call sewing up a sponge in a patient (which the surgeon did) a "Hospital Acquired Condition." Why? Because it makes it look like it's something the hospital alone did wrong and not the surgeon. This is when you really need to be concerned---as a patient---that your surgeon, if he or she sews a sponge up in you during surgery, will refuse to accept responsibility and pawn it off on the hospital as a "Hospital Acquired Condition." Is that really the "right thing to do"?

September 11, 2001

Please honor those who died that day. They were innocent victims of a cowardly attack. God rest their souls.

Please also remember the families of those who died. May God be with them.

Medical Malpractice: Petition to Rehear Denied in Estate of Bell v. Shelby County Health Care Corp.

This post is related to my June 24, 2010 post about the Tennessee Supreme Court case of Estate of Bell v. Shelby County Health Care Corp. The Tennessee Supreme Court denied the petition to rehear the case, which was filed by Shelby County Health Care Corp.

Here's a link to the opinion denying the petition to rehear, to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/103/SC%20Estate%20Joyce%20Bell%20v%20Shelby%20Co%20Health%20Care%20Corp%20dba%20the%20Med%20opn.pdf

Medical Malpractice: Plaintiff's Claim Fails Due to Ineffective Service of Process

Today the Tennessee Supreme Court released its opinion in Hall v. Haynes, No. W2007-02611-SC-R11-CV (Tenn. Aug. 26, 2010). The issue on appeal had to do with service of process under Rule 4 of the Tennessee Rules of Civil Procedure. The Court held that plaintiff failed to comply with Rule 4.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/103/SC%20Billie%20Gail%20Hall%20Administratrix%20Estate%20Billy%20R%20Hall%20v%20Dr%20Douglas%20B%20Haynes%20Jr%20OPN.pdf

Medical Malpractice: Grant of Summary Judgment for Defense Reversed Due to the Common Knowledge Exception and Res Ipsa Loquitur, Etc.

Here is the opinion from the Middle Section of the Tennessee Court of Appeals in Deuel v. Surgical Clinic, PLLC, No. M2009-01551-COA-R3-CV (Tenn. Ct. App. Aug. 16, 2010). The opinion's syllabus reads:

This is a medical malpractice case involving res ipsa loquitur. The defendant physician performed surgery on the plaintiff’s husband. Sponges were used in the patient’s abdomen during the procedure. Nurses in the operating room counted the sponges used in the surgery. The nurses erred in counting the sponges, and the defendant physician closed the surgical incision with a sponge remaining inside. The retained sponge was later discovered and removed in a second surgery. The plaintiff’s husband subsequently died of causes unrelated to the retained sponge. The widow sued the physician and his employer for medical malpractice, asserting that the doctrine of res ipsa loquitur applied, as well as the common knowledge exception to the requirement of expert medical proof. The physician filed a motion for summary judgment, and the plaintiff filed a cross-motion for summary judgment as to liability. The defendant physician filed two medical expert affidavits, both of which stated that the defendant physician had complied with the applicable standard of care by relying on the nurses’ sponge count. Initially, the plaintiff filed an expert affidavit stating that the defendant physician did not comply with the applicable standard of care, but later filed a notice stating that she intended to proceed to trial with no expert proof to support her medical malpractice claim. The trial court determined that neither res ipsa loquitur nor the common knowledge exception applied, and granted summary judgment in favor of the defendant physician. The plaintiff now appeals. We reverse the grant of summary judgment in favor of the defendant physician, and affirm the denial of the plaintiff’s motion for partial summary judgment. We find that, under both the common knowledge exception and the doctrine of res ipsa loquitur, the plaintiff was not required to submit expert proof to rebut the physician’s expert testimony that he was not negligent by relying on the nurses’ sponge count. However, application of neither res ipsa loquitur nor the common knowledge exception results in a conclusive presumption of negligence by the defendant physician. Therefore, a fact issue as to the physician’s negligence remains for trial.

Here's a link to the slip opinion:

  http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Lorraine%20Deuel%20Administratrix%20Estate%20Clyde%20Deuel%20v%20The%20Surgical%20Clinic%20&%20Richard%20J%20Geer%20MD%20opn.pdf.

As a matter of disclosure, this is my case. It was the subject of my January 1, 2010 post. http://theduncanlawfirm.blogspot.com/search?q=sponge

Medical Malpractice: Plaintiff's Expert Fails to Satisfy Locality Rule

The Western Section of the Tennessee Court of Appeals just issued its opinion in Johnson v. Richardson, No. W2009-02626-COA-R3-Cv (Tenn. Ct. App. Aug. 12, 2010). Here's part of the syllabus from the majority opinion, to wit:

This is a medical malpractice case. Plaintiff/Appellant appeals from the trial court’s disqualification of her expert witness and grant of the Defendant/Appellee’s motion for directed verdict. Finding that the Appellant failed to show that her expert was familiar with the standard of care in a community similar to the defendant’s community, we affirm the decision of the trial court.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Tina%20Johnson%20vs%20David%20J%20Richardson%20MD%20OPN.pdf

Here's a link to the concurring opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Tina%20Johnson%20vs%20David%20J%20Richardson%20MD%20CON%20opn.pdf

Medical Malpractice: Use of Transcribed Trial Testimony During Closing Argument

The Eastern Section of the Tennessee Coourt of Appeals issued its opinion in Chapman v. Lewis, No. E2009-01496-COA-R9-CV (Tenn. Ct. App. Jul. 28, 2010). The sole issue on appeal was set forth by the court as follows:

Did the trial court err when it granted a new trial on the basis that the court improperly allowed defense counsel to project portions of trial testimony during closing argument without establishing a proper foundation or providing prior notice to the plaintiff?

The court held that the trial court erred and reversed the trial court's grant of a new trial to the plaintiff. Below is the syllabus from the opinion:

On April 10, 2000, William D. Chapman, II (“the Deceased”) was involved in a motor vehicle accident. As a result of his injuries, he was admitted to Holston Valley Hospital and Medical Center in Kingsport where he came under the care of trauma surgeons, the defendants, James V. Lewis, M.D., and George M. Testerman, Jr., M.D., as well as other physicians and medical personnel. The plaintiff, Cathy L. Chapman, brought this wrongful death action against the defendants based upon her allegation that they were guilty of medical malpractice in the treatment of her husband; she claims that their malpractice caused the death of the Deceased on April 15, 2000. Following eight days of a jury trial in July 2008, counsel for the parties made their closing arguments. During the defense’s argument, counsel for the plaintiff objected when counsel for Dr. Testerman projected on a video screen what purported to be the Q. and A. trial testimony of the plaintiff’s medical expert, Dr. Philip Witorsch. The trial court overruled the objection and thereafter the jury returned a verdict in favor of both defendants. Later, the trial court, acting on the plaintiff’s motion, reversed itself and held that the defendants failed to lay a proper foundation for the use of the projected testimony. The court also pointed out that the defendants failed to give the plaintiff prior notice of their intention to use portions of the trial transcript in closing argument. As a consequence, the court granted the plaintiff a new trial. The defendants appeal. We reverse the trial court’s grant of a new trial and reinstate the court’s judgment in favor of the defendants.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Cathy%20L%20Chapman%20vs%20James%20V%20Lewis%20MD%20OPN.pdf

Trial Practice: Effecting a Review of a General Sessions Court Judgment in Circuit Court

The Middle Section of the Tennessee Court of Appeals issued its opinion in Tennessee Protection Agency, Inc., v. Mathies, No. M2009-01775-COA-R3-CV (July 23, 2010). Here's the syllabus from the opinion:

Party A obtained a default judgment in general sessions court against Party B. The general sessions court subsequently granted Party B’s motion to set aside the default judgment. Party A appealed to circuit court. The circuit court reversed the general sessions court’s decision to set aside the default judgment. Party B appeals to this court. We affirm the decision of the circuit court.

As pointed out in this opinion, the general sessions court did not have jurisdiction to entertain a motion to set aside its prior judgment because the 10 days for doing so had passed. Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/tennprotectionagencyOPN.pdf

Practice pointer: Party B should have filed a petition in the circuit court for a writ of supersedeas and certiorari. See my June 29, 2010 post for more information on this subject.

Trial Practice: Hearsay & Expert Opinion Testimony

The Eastern Section of the Tennessee Court of Appeals issued its opinion in Holder v. Westgate Resorts Ltd., No. E2009-01313-COA-R3-CV (Tenn. Ct. App. Jul. 23, 2010). Here's the syllabus from the majority opinion, to wit:

Plaintiff sustained personal injuries resulting from a fall on defendant's premises and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.

Here's a link to that opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/James%20Q%20Holder%20vs%20Westgate%20Resorts%20Ltd%20dba%20Westgate%20Smoky%20Mountain%20Resort%20at%20Gatlinburg.pdf

Judge Susano issued a separate concurring and dissenting opinion where he opined that the trial court did not err in sustaining the plaintiff's counsel's objection to the proffered testimony. In my very humble opinion, I think Judge Susano's opinion is accurate.

Here's a link to that opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/James%20Q%20Holder%20vs%20Westgate%20Resorts%20Ltd%20dba%20Westgate%20Smoky%20Mountain%20Resort%20at%20Gatlinburg%20CON%20opn.pdf

Medical Malpractice: Court of Appeals Reverses Trial Court's Grant of Summary Judgment Against Plaintiff, Etc.

The Court of Appeals just issued its opinion in Jacobs v. Nashville Ear, Nose & Throat Clinic, No. M2009-01594-COA-R3-CV (July 15, 2010). Here's what the syllabus states:

This is a medical malpractice case. Vicki P. Jacobs (“the Plaintiff”) alleges that the failure of Stephen A. Mitchell, M.D., an otolaryngologist, and K. James Schumacher, M.D., a neuroradiologist, to diagnose cancer in the left sinus of her late husband, Harris N. Jacobs (“the Decedent”), in May 2000 caused his death in November 2001. The trial court granted all defendants summary judgment. The court held that the Plaintiff, in the face of the defendants’ motions for summary judgment, failed to demonstrate a genuine issue of material fact as to the element of causation. The court’s ruling was premised, in part, on the court’s holding that the affidavit of one of the experts was not timely filed and also because,according to the court, the Plaintiff’s experts gave deposition testimony that superseded and canceled out their assertions in affidavits. Plaintiff appeals, challenging the court’s grant of summary judgment and an earlier order allowing the defendants to conduct ex parte interviews of treating physicians of the Decedent. We vacate both orders and remand for further proceedings.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Vickie%20P%20Jacobs%20and%20Harris%20N%20Jacobs%20Deceased%20v%20Nashville%20Ear%20Nose%20&%20Throat%20Clinic%20OPN.pdf

Personal Injury: New Case on Causation & Damages

The Western Section of the Tennessee Court of Appeals just issued its opinion in Hampton v. Northwest Tenn. Human. Resource Agency, No. W2009-02668-COA-R3-CV (Tenn. Ct. App. Jul. 13, 2010). The opinion offers up a good discussion on the elements of causation and damages in a personal-injury case.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/hamptongOPN.pdf

New GTLA Opinion: Notice

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Bivins v. City of Murfreesboro, No. M2009-01590-COA-R3-CV (Jul. 9, 2010). The opinion offers a good discussion of notice under the GTLA.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Jennifer%20Bivins%20et%20al%20v%20City%20of%20Murfreesboro%20OPN.pdf

Medical Malpractice: Court of Appeals Upholds Trial Court's Grant of Summary Judgment for Defendants

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Clifford v. Tacogue, No. M2009-01703-COA-R3-CV (Tenn. Ct. App. Jul. 18, 2010). The syllabus from the opinion is as follows:

Plaintiff husband alleged that he suffered an injury in the course of undergoing a cardiac catheterization procedure. Plaintiffs filed suit against the treating physician, alleging medical malpractice, lack of informed consent, and medical battery; against the hospital, alleging medical malpractice based on an actual or apparent agency with the physician; and against the manufacturer of the medical device used in the procedure, alleging that the manufacturer was vicariously liable for medical battery committed by its employee. The trial court granted summary judgment to the defendants on all claims, holding that plaintiffs failed to establish that the use of the medical device to close the site where the catheter was inserted was the cause of husband’s injury. Finding that the defendants negated the element of causation essential to each cause of action, the trial court’s judgment is affirmed.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Clifford%20v.%20Tacogue%20Opinion.pdf

The Declaration of Independence

This is a re-post. I watch these two clips this time every year. Hope you enjoy them. See below.

http://www.youtube.com/watch?v=rMaAtNHAtNI

http://www.youtube.com/watch?v=ZxTvS-kyHzs

Changes to the Tennessee Rules of Court Effective Today

New changes to certain Tennessee Rules of Court that are effective today:

Tenn. R. Civ. P., to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2010/Order-TRCivPamendments.pdf

Tenn. R. Evid., to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2010/Order-TREamendments.pdf

Tenn. R. App. P. , to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2010/Order-TRAPamendments.pdf

AOC’s Web site (which explains that everything passed EXCEPT the amendments to Rule 26 regarding the discoverability of insurance (near the bottom of the page)), to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2010/scrule2010.htm

Trial Practice: Writ of Certiorari

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Stechebare v. Deere & Co., No. E2009-01514-COA-R3-Cv (Jun. 29, 2010). It does a good job of explaining the writ of certiorari.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Charles%20D%20Stechebar%20vs%20Deere%20&%20Co%20&%20John%20Doe%20opn.pdf

Medical Malpractice: Court of Appeals Reverses Trial Court

The Middle Section of the Tennessee Court of Appeals Just released its opinion in Howell v. Claiborne and Hughes Health Ctr., No. M2009-01683-COA-R3-CV (Tenn. Ct. App. June 24, 2010). The syllabus from the opinion states as follows:

This is a medical malpractice action. Appellant originally filed a claim in 2007 in the name of an estate. The original claim was subsequently non-suited. Less than one year later, the claim was then re-filed, also in the name of an estate. With permission of the court, the Appellant later amended the complaint to name the administrator of the estate as the plaintiff. However, upon the Appellee’s motion, the trial court dismissed the complaint finding: (1) the complaint was barred by the statute of limitations as there were no allegations in the complaint which would invoke the savings statute; (2) the complaint failed to state with particularity the specific acts of negligence; and (3) that the Appellant failed to comply with the notice requirements for a medical malpractice action found in Tenn. Code. Ann. § 29-26-121. Finding that the trial court erred, we reverse the decision of the trial court and remand for further proceedings.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Shawn%20Howell%20for%20Jesse%20Franklin%20Browning%20Jr%20Estate%20vs%20Claiborne%20&%20Hughes%20Health%20Cntr%20OPN.pdf

Medical Malpractice: New Tennessee Supreme Court Decision

The Tennessee Supreme Court issued its opinion in Estate of Bell v. Shelby County Health Care Corp., No. W2008-02213-SC-S09-CV (June 24, 2010). Here's the syllabus from the first page of the opinion:

This appeal involves the application of the Tennessee Governmental Tort Liability Act to an action for damages filed against a defendant that was not covered by the Act when the injury producing events occurred. The defendant filed a motion for partial summary judgment in the Circuit Court for Shelby County seeking the benefit of the claims and defenses available to government entities under the Act. The plaintiffs responded by challenging the constitutionality of legislation extending the coverage of the Act to the defendant on the ground that the legislation had been enacted after the plaintiffs had sustained their injuries. The trial court held that the Act applied to the defendant but granted the plaintiffs permission to pursue an interlocutory appeal. We granted the plaintiffs’ application for permission to appeal after the Court of Appeals declined to consider the case. We have determined that applying the substantive amendment to the Tennessee Governmental Tort Liability Act enacted after the injury-producing events occurred to the plaintiffs’ damage claims violates the prohibition against retrospective laws in Article I, Section 20 of the Constitution of Tennessee.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Estate%20of%20Joyce%20Bell%20v%20Shelby%20Co%20Health%20Care%20Corp%20DBA%20The%20Regional%20Medical%20Cntr.pdf

Medical Malpractice: Denial of Summary Judgement in the Plaintiff's Favor Reversed on Appeal

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Miller v. Birdwell, No. M2009-01730-COA-R3-CV (Tenn. Ct. App. Jun. 23, 2010).

The syllabus from the beginning of the opinion states as follows:

This appeal involves claims for medical malpractice against three doctors. The doctors each filed a motion for summary judgment. The trial court denied all three motions. After reviewing the record, we find that there are no material issues of fact in dispute. The defendant-doctors affirmatively negated an essential element of the Plaintiff’s claim — causation. Plaintiff failed to come forward with expert proof to demonstrate that there was a material issue of fact in dispute. Accordingly, the doctors are entitled to summary judgment. Consequently, this Court finds that the trial court erred in denying the motions for summary judgment. Reversed and remanded.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Carol%20E%20Miller%20vs%20Joel%20S%20Birdwell%20MD%20OPN.pdf

Medical Malpractice: Tennessee Supreme Court Reverses Court of Appeals

The Tennessee Supreme Court issued its opinion today in Cox v. Primary and Urgent Care Clinic, M2007-01840-SC-R11-CV (Tenn. Jun. 21. 2010). The syllabus of the opinion states as follows:

We granted permission to appeal in this case to address the standard of care that applies to a physician assistant in a medical malpractice case. The plaintiff sued for injuries she allegedly suffered as a result of physician assistant Michael Maddox’s failure to diagnose her condition accurately. The plaintiff did not sue Maddox, but sued the clinic which he owned and in which he practiced and Dr. Austin Adams, Maddox’s supervising physician. The defendants filed a joint motion for summary judgment, supported by their testimony that (1) Maddox did not violate the standard of care applicable to physician assistants and (2) Dr. Adams did not violate the standard of care applicable to physicians. The plaintiff responded with her cardiologist’s testimony that Maddox violated the standard of care applicable to primary care physicians. The cardiologist testified that he was not familiar with physician assistants or their supervision. The trial court granted the defendants’ motion for summary judgment on the basis that the plaintiff had failed to establish that Maddox violated the professional standard of care applicable to him. The Court of Appeals reversed the trial court, holding that the standard of care applicable to physician assistants is the same as that applicable to physicians. We reverse the Court of Appeals and hold that the standard of care applicable to physician assistants is distinct from that applicable to physicians. The trial court’s summary judgment in favor of the defendants is reinstated, and the case is dismissed.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Melissa%20Michelle%20Cox%20vs%20MA%20Primary%20and%20Urgent%20Care%20Clinic%20et%20al.pdf

Medical Malpractice: Pro Se Plaintiff's Case Dismissed Via Summary Judgment

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Luna v. Deversa, No. E2009-01198-COA-R3-CV (Tenn. Ct. App. Jun. 17, 2010). The plaintiff was pro se and failed to obtain expert testimony to rebut the summary judgment motions that were filed on behalf of the defendants. The trial court granted the defendants' motions and its ruling was upheld on appeal.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Nancy%20Luna%20vs%20Roger%20Deversa%20MD%20&%20Hamilton%20Co%20Hospital%20Auth%20opn.pdf

Surgery Centers & Infections

Here's an online article from MSNBC on the subject, to wit:

http://www.msnbc.msn.com/id/37577363/ns/health-health_care

Summary Judgment for Defendant Reversed Due to Failure to Comply with Tenn. R. Civ. P. 56.04

The Western Section of the Tennessee Court of Appeals issued its opinion today in Winn v. Welch Farm, LLC, No. M2009-01595-COA-R3-CV (Tenn. Ct. App. June 4, 2010).

As many of you know, Tenn. R. Civ. P. 56.04 was amended in 2007 to require a trial court to state in its order the legal grounds for granting or denying a motion for summary judgment; this was done to assist in appellate review. In Winn, the Court of Appeals reversed a grant of summary judgment for the defendant because the order did not comply with Rule 56.04. Below is the syllabus of the opinion, to wit:

This is an appeal from the trial court’s decision to grant summary judgment to the appellees. After reviewing the record, we find that the order granting summary judgment fails to comply with Tenn. R. Civ. P. 56.04, as it does not “state the legal grounds upon which the court denies or grants the motion.” Consequently, this Court cannot proceed with our review and must vacate the judgment of the trial court.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Jerry%20A%20Winn%20v%20Welch%20Farm%20LLC%20and%20Richard%20Tucker%20OPN.pdf

Medical Malpractice: Court of Appeals Upholds Defense Verdict

The Western Section of the Tennessee Court of Appeals just released its opinion in Stanfield v. Neblett, No. W2009-01891-COA-R3-CV (Tenn. Ct. App. June 4, 2010). Among the issues raised were the following: (1) whether an expert may testify outside his or her Rule 26 disclosure; (2) expert qualifications; (3) cross-examining experts; and (4) the use of exhibits in opening statements and closing arguments. The Court of Appeals came down on the side of the defendants.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Teresa%20L%20Stanfield%20v%20John%20Neblett%20Jr%20MD%20etal%20OPN.pdf

UPDATE: As of June 20, 2010, this opinion has been withdrawn by the Western Section. A revised opinion was released July 23, 2010. Here is a link to the revised opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Teresa%20Lynn%20Stanfield%20v%20John%20Neblett%20Jr%20MD%20OPN.pdf

Jurors and the Internet, Etc.

I found this article to be very interesting, to wit: Douglas L. Keene & Rita R. Handrich, Online and Wired for Justice: Why Jurors Turn to the Internet, The Jury Expert, Nov. 2009, at 14. If you do any trial work, it is a must-read item.

Here's a link to the article:

http://www.astcweb.org/public/publication/documents/Keene%20Online%20&%20Wired%20TJE%20Nov20091.pdf

Memorial Day

Same gave all. Please remember them this weekend.

The Federalist Papers

Here's a link to an online version of The Federalist Papers (a.k.a. The Federalist), to wit:

http://usgovinfo.about.com/library/fed/blfedindex.htm##5

Peer-Review Privilege in Tennessee

The Tennessee Supreme Court issued opinions today concerning the peer-review privilege and its effects, to wit:

Lee Med., Inc. v. Beecher, No. M2008-02496-SC-S09-CV (Tenn. May 24, 2010):

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Lee%20Medical%20v%20Paula%20Beecher%20etal%20opn.pdf

Here’s the dissent by Justice Wade and Chief Justice Holder:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Lee%20Medical%20v%20Paula%20Beecher%20etal%20dis.pdf


Powell v. Cmty. Health Sys., Inc., No. E2008-00535-SC-R11-CV (Tenn. May 24, 2010):

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Kimberly%20Powell%20v%20Community%20Health%20Sys%20etal%20opn.pdf

Here’s the separate opinion by Justice Wade where he concurs in part and dissents in part:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Kimberly%20Powell%20v%20Community%20Health%20Sys%20etal%20con.pdf

Discretionary Costs

The Western Section of the Tennessee Court of Appeals just issued its opinion in Wade v. Vabnick, No. W2009-02273-COA-R3-Cv (Tenn. Ct. App. May, 24, 2010). This case is a medical malpractice case that was non-suited in state court and re-filed in federal court. One of the defendants, a physician, filed a motion seeking over $30,000 in discretionary costs with the state trial court, which was granted. The Court of Appeals winnowed the costs down to $3,851.15 because some of the costs sought by the defendant are not allowed under Rule 54.04 of the Tennessee Rules of Civil Procedure.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Wlla%20G%20A%20Wade%20v%20Felice%20A%20Vabnick%20MD%20OPN.pdf

Our Liberty or Our Safety?

It was true over 200 years ago, and it still is today, to wit:

[S]afety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy civil and political rights. To be more safe, they at length become willing to run the risk of being less free.

The Federalist No. 8 (A. Hamilton).

I would prefer to give up neither. That is the tricky part.

Tennessee Healthcare Facility Information

Do you need an address or other information about a healthcare facility in Tennessee? If so, this link will help you out:

http://health.state.tn.us/HCF/Facilities_Listings/facilities.htm

Model Voir Dire Questions

Below is a link to model voir dire questions from the State of New Jersey. While I'd change the questions a little bit, overall, they are sufficient. I think they offer a good outline for coming up with your own voir dire questions.

https://www.judiciary.state.nj.us/attorneys/assets/attyresources/jurorselectionquestions.pdf

Criminal Law: Sentencing in Tennessee

The Tennessee Supreme Court recently issued its opinion in Davis v. State, No. M2009-00011-SC-R11-HC (Tenn. May 7, 2010). The opinion contains a good analysis of criminal sentencing in Tennessee state courts among other things.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Terrance%20Lavar%20Davis%20v%20State%20OPN.pdf

Here's a link to the concurring opinion of Justice Wade, which Chief Justice Holder joined, to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Terrance%20Lavar%20Davis%20v%20State%20CON1.pdf

Here's a link to the concurring opinion of Justice Lee, to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Terrance%20Lavar%20Davis%20v%20State%20CON2.pdf

An Interesting Case: Violation of a City Ordinance

This appeal discusses the violation of a city ordinance and the law governing it. It's an interesting read (I don't want to give it away). The case is City of Murfreesboro v. Norton, No. M2009-02105-COA-R3-CV (Tenn. Ct. App. May 6, 2010).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Murfreesboro%20v%20Thomas%20L%20Norton%20OPN.pdf

Criminal Law: Sentencing in Tennessee

The Tennessee Court of Criminal Appeals recently issued its opinion in State v. Davis, No. M2008-01216-CCA-R3-CD (Tenn. Crim. App. Apr. 19, 2010). It offers a good discussion on criminal sentencing in Tennessee.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/tcca/PDF/102/State%20v%20Christopher%20Lee%20Davis.pdf

Say a Prayer for Nashville

We received more rain in a two-day period this past weekend than we have ever received. The flooding and its effects are having a huge impact on our city. Here's a link to a story from MSNBC about what has happened, to wit:

http://www.msnbc.msn.com/id/36891589/ns/weather/

Say a prayer for Nashville, folks. We need it.

Stats on Tennessee State Court Judges

Interested in the number of cases appealed from a particular Tennessee state court? Interested in a judge's case load? Here's a link to a site that has this information, to wit:

http://www.tncourts.gov/JudgeStats/Default.aspx

Nursing Homes: Court of Appeals Holds Arbitration Agreement Unconscionable

The Middle Section of the Tennessee Court of Appeals just released its opinion in McGregor v. Christian Care Ctr. of Springfield, LLC, No. M2009-01008-COA-R3-CV (Tenn. Ct. App. Apr. 29, 2010). The Court held that the arbitration agreement in question was unconscionable.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Lula%20McGregor%20v%20Christian%20Care%20Center%20Opn.pdf

Criminal Law: Helpful Video for Defendants

Here's a video that covers a defendant's basic rights and responsibilities. While it is not a substitute for competent legal advice, it is very helpful in covering basic information.

http://www.tsc.state.tn.us/programs/self-help-center/what-should-i-expect-court-video

Torts: Summary Judgment for Defendant Reversed

The Eastern Section of the Tennessee Court of Appeals issued its opinion in Phillips v. Mullins, No. E2009-01930-COA-R3-CV (Tenn. Ct. App. Apr. 26, 2010). The trial court granted the defendant's motion for summary judgment; the Court of Appeals reversed, finding the genuine issues of material fact existed.

I agree with the Court of Appeals one-hundred percent. In my humble opinion, the trial court misapplied the standard of review that is required to be applied in determining whether or not to grant a motion for summary judgment. We must remember that the right to a trial by jury remains inviolate and that genuine issues of material fact must be decided by juries (assuming one is properly requested by the parties, of course).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Danny%20J%20Phillips%20v%20Wm%20T%20Mullins%20OPN.pdf

An Interesting Case

The Tennessee Supreme Court just issued its opinion in In re Estate of Davis, No. M2009-00660-SC-S09-CV (Tenn. Apr. 23, 2010). While this case involves the probate of a will, the opinion offers a good discussion of (1) statutes of limitations vs. statutes of repose; (2) statutory construction; and (3) fraudulent concealment and how it tolls the limitations period.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Inre%20Estate%20of%20Mary%20Reeves%20Davis%20opn.pdf

Medical Malpractice: Delay in Service Proves Fatal for Plaintiffs' Lawsuit

The Western Section for the Tennessee Court of Appeals just issued its opinion in Jones v. Vasu, No. W2009-01873-COA-R10-CV (Tenn. Ct. App. Apr. 22, 2010). The Court of Appeals reversed the trial court and dismissed the plaintiffs' lawsuit due to their delay in effecting service upon the defendants.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Stephanie%20and%20Howard%20Jones%20v%20Renga%20Vasu%20MD%20etal%20OPN.pdf

Trial Practice: Damages & Remittitur

The Tennessee Court of Appeals just issued its opinion in Riley v. Orr, No. M2009-01215-COA-R3-CV (Tenn. Ct. App. Apr. 19, 2010). The opinion offers a good discussion of damages recoverable in a personal-injury action, remittitur, etc.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Bobby%20G%20Riley%20and%20wife%20for%20Hunter%20Riley%20v%20James%20Orr%20opn.pdf

Torts & Affirmative Defenses: Tenn. R. App. P. 11 Application for Permission to Appeal in Allgood Denied

This post is related to my post of September 24, 2009 having to do with Allgood v. Gateway Health Sys., No. M2008-01779-COA-R3-CV (Tenn. Ct. App. Sept. 22, 2009). The Tennessee Supreme Court denied Defendant Christopher Hoffman, M.D.'s application for permission to appeal under Tenn. R. App. 11 by an order dated April 14, 2010.

Here's a link to my September 24, 2009 post:

http://theduncanlawfirm.blogspot.com/search?q=affirmative+defenses.

Medical Malpractice: Court Upholds Dismissal of Plaintiff's Lawsuit for Failure to Comply with Pre-filing Notice Requirements

Today the Eastern Section of the Tennessee Court of Appeals issued its opinion in Long v. Hillcrest Healthcare - West, No. E2009-01405-COA-R3-CV (Tenn. Ct. App. Apr. 16, 2010). Plaintiff contended that the claim sounded in general negligence. However, the trial court and the Court of Appeals held that it sounded in medical negligence, which required its dismissal due to the Plaintiff's failure to comply with the statutorily required pre-filing notice requirements, inter alia.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Opal%20Hughes%20estate%20Medlinda%20Long%20Admin%20v%20Hillcrest%20HC%20west%20etal%20opn.pdf

Here's a link to the concurring and dissenting opinion filed by Judge Susano:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Opal%20Hughes%20estate%20Medlinda%20Long%20Admin%20v%20Hillcrest%20HC%20west%20etal%20DIS.pdf

A Message to Garcia

I'd like to thank my friend Morgan Adams from Chattanooga, Tennessee for reminding me of this story, to wit:

http://www.birdsnest.com/garcia.htm

Wrongful Death: New Opinion

The Court of Appeals just released its opinion in Wilburn v. City of Memphis, No. W2009-00923-COA-R3-CV (Tenn. Ct. App. Apr. 9, 2010). The opinion offers a good discussion of the damages recoverable in a wrongful death case. Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/WilburnLauraOPN.pdf

Justice Stevens to Retire

Supreme Court Justice John Paul Stevens to retire this summer. Here's a link to the story from MSNBC.com:

http://www.msnbc.msn.com/id/36317045/ns/politics.

Medical Malpractice: Trial Court Upheld in Ruling for the Defense

The Court of Appeals issued its opinion today in Flatt v. Claiborne County Hosp. and Nursing Home, No. E2009-01341-COA-R3-CV (Tenn. Ct. App. Apr. 8, 2010). The case was tried to the bench because it was a GTLA case. The trial court held for the defense; it did so based upon the issue of standard of care.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Alvin%20Flatt%20re%20Falnetta%20Nobel%20v%20Claiborne%20Co%20Hospital%20opn.pdf

Latin Pronunciation

In the law, although not so much lately, you need to be able to pronounce Latin words or phrases, e.g., fiat justia ruat caelum (which is the motto of the Tennessee Supreme Court); ejusdem generis, or res ipsa loquitur. I found this paper written by Michael A. Covington, which is entitled Latin Pronunciation Demystified, to be helpful in this endeavor. Here's a link to it: http://www.ai.uga.edu/mc/latinpro.pdf

Straight Talk on Torts

Below is a link to an article written by Jim Marcinkowski entitled Tort reform made simple. It's from Freep.com. Here's a quote from page 3 of the article:

[T]ort reform is the equivalent of choosing not to prosecute criminals so they can remain on the streets to do more crime. We all suffer and pay as a society while the wrongdoers continue to make more profits without penalty....

http://www.freep.com/article/20100406/OPINION05/100405056/1336/Opinion/Tort-reform-made-simple

Happy Easter and Passover!

I hope you have a great holiday weekend.

Firm News: Tenn. R. App. P. 11 Application for Permission to Appeal Filed in Harris v. Horton

This post is related to two previous posts of mine: one on December 15, 2009 and the other on December 29, 2009. It has to do with the following case: Harris v. Horton, No. M2008-02142-COA-R3-CV, 2009 WL 4801719 (Tenn. Ct. App. Dec. 14, 2009), reh'g denied (Feb. 2, 2010).

An application for permission to appeal the Court of Appeals' ruling was filed on Thursday. This means that the current cite to the case is now: Harris v. Horton, No. M2008-02142-COA-R3-CV, 2009 WL 4801719 (Tenn. Ct. App. Dec. 14, 2009) ) (Tenn. R. App. P. 11 application for permission to appeal filed Apr. 1, 2010).

Medical Malpractice: Fraudulent Concealment

The Court of Appeals just issued its opinion in Tigrett v. Linn, No. W2009-00205-COA-R9-CV (Tenn. Ct. App. Mar. 31, 2010). The opinion offers a good discussion on the law of fraudulent concealment in medical malpractice cases.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/101/Harrison%20Kerr%20Tigrett%20v%20John%20E%20Linn%20MD%20OPN.pdf

Jury Finds Lawyer Committed Malpractice

Below is a link to an article from Law.com. The link takes you to a story about a case where a jury found a lawyer liable for malpractice because he didn't tell his clients about a settlement offer before a verdict came in lower than the settlement offer.

http://www.law.com/jsp/article.jsp?id=1202447050876&thepage=1

Practice Tip: Questioning a Liar

If you haven't encountered this yet you will, i.e., questioning a liar in a deposition or during trial. A liar's worst enemy is cross-examination. However, can you just declare the witness a liar and expect the jury to believe you? Of course not. So, one may ask: how are you supposed to successfully question a liar? The best way --- the only way --- that I've found to be successful at it is to be prepared. I don't mean know your case inside and out like you're supposed to, you have to have go beyond that and have concrete proof that the witness is lying. You can't attack a witness if you don't have the proof, no matter how bad you want to. Below is a link to an article from the ABA about Bobby Lee Cook. Read the part about his cross-examination of Ms. Kidd in a federal habeas corpus proceeding. This is what I'm referring to when I say that you must be prepared. Here's the link:

http://www.abajournal.com/magazine/article/bobby_lee_cook/

GA Supreme Court Strikes Down Caps in Tort Cases

For anyone who has studied the law and knows how important juries are --- and how valued our founding fathers knew them to be --- they will recognize this as a just result. Below is a link to the online version of The Atlanta Journal-Constitution with the story:

http://www.ajc.com/news/georgia-politics-elections/state-high-court-overturns-392119.html?cxtype=rss_news_128746

A Decedent's Medical Records and HIPAA

Here's a link to a page on the AHIMA's Web site that discusses the proper ways to obtain a decedent's medical records in compliance with HIPAA, to wit: http://journal.ahima.org/2009/08/04/rights-to-deceased-patient-records/.

In Tennessee, medical records must be supplied to a patient or his or her representative within 10 days of a written request seeking them. See T.C.A. § 63-2-101(a) (requiring medical records to be delivered within 10 days of a written request). A small estate can be opened up to have a personal representative appointed to sign the HIPAA authorization to accompany such a request. See id. at §§ 30-4-101 to -105 (the Tennessee Small Estates Act).

Practice Tip: The Importance of an Order Being Final for Purposes of Appeal

Here is Chook v. Jones, No. W2008-02276-COA-R3-CV (Tenn. Ct. App. Mar. 17, 2010). It's a case from the Western Section of the Tennessee Court of Appeals that highlights how important it is to have a final order down for an appeals court to have jurisdiction. Here's a link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/101/Barry%20I%20Chook%20v%20Tashawn%20Pirela%20Jones%20and%20Kenneth%20Jones%20OPN.pdf

Medical Malpractice: Dismissal in Favor of Defendant Reversed

The Western Section of the Tennessee Court of Appeals just released its opinion in Taylor v. Lakeside Behavioral Health Sys., No. W2009-00914-COA-R3-CV (Tenn. Ct. App. Mar. 15, 2010). The Court reversed the trial court's dismissal of the plaintiffs' claims because it found that the amended complaint complied with applicable law as to notice pleading, among other things.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/101/Tina%20Taylor%20v%20Lakeside%20BHS%20OPN.pdf

Products Liability Case: Plaintiffs' Claims Preempted

The Western Section of the Tennessee Court of Appeals just issued its opinion in Lake v. Memphis Landsmen, LLC, No. W2009-00526-COA-R3-CV (Tenn. Ct. App. Mar. 15, 2010). The Court held that the plaintiffs' claims, inter alia, were preempted by federal law. Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/101/Clifton%20Lake%20etal%20v%20Memphis%20Landsmen%20OOC%20etal%20OPN.pdf

Need a Court Reporter?

This Web site will help you find one, to wit:

http://psl.ncraonline.org/index.asp.

Summary Judgment for Defendants Reversed

The Tennessee Court of Appeals just released its opinion in Landry v. S. Cumberland Amoco, No. E2009-01354-COA-R3-CV (Tenn. Ct. App. Mar. 10, 2010). The opinion discusses the proper standard for granting summary judgment and how the "cancellation rule" figures into the analysis.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Edward%20P%20Landry%20et%20al%20v%20South%20Cumberland%20Amoco%20et%20al%20opn.pdf

Medical Malpractice: Summary Judgment for One Defendant Reversed on Appeal

Here is another medical malpractice opinion regarding the proper standard for granting summary judgment under Hannan. The case is Turner v. Steriltek, Inc., No. M2009-00325-COA-R3-CV (Tenn. Ct. App. Mar. 4, 2010).

Here's a link to opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Sandra%20Yvette%20Turner%20v%20Steriltek%20et%20al%20OPN.pdf

Useful Web Site on Differential Diagnoses

http://en.diagnosispro.com/

Parliamentary Procedure

Have a question about parliamentary procedure? These two links might have some answers for you.

http://www.tmaa.us/pdfs/plan_meetings_guide.pdf

http://www.tmaa.us/pdfs/motions_guide.pdf

Practice Tip: Correct Result Based Upon Erroneous Grounds

Do you need a case that says even if the trial court's ruling is based upon erroneous grounds it will be allowed to stand because the court reached a correct result? You're in luck! Here are two, to wit:

Continental Cas. Co. v. Smith, 720 S.W.2d 48, 50 (Tenn. 1986) ("[we] will affirm a decree correct in result, but rendered upon different, incomplete, or erroneous grounds"); Shutt v. Blount, 249 S.W.2d 904, 907 (Tenn. 1952) ("if the Trial Judge reached the right result for the wrong reason, there is no reversible error").

Another Summary Judgment Case

Here is another post-Hannan and -Martin summary judgment case from the Eastern Section of the Tennessee Court of Appeals, to wit: Dykes v. City of Oneida, No. E2009-00717-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2010).

This case stresses the importance of complying with our state's recently clarified summary judgment standard under Hannan and Martin (Nov 8 & 15, 2008 posts, respectively).

Here's a link to Dykes:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Wanda%20F%20Dykes%20et%20al%20v%20City%20of%20Oneida%20et%20al%20OPN.pdf

New Case on Retaliatory Discharge & Whistleblowing

The case is Burnett v. America's Collectibles Network, Inc., No. E2009-00591-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2010). Here is a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Ambrose%20C%20Burnett%20Jr%20v%20Americas%20Collectibles%20Network%20Inc%20opn.pdf

Criminal Law: Certified Questions

Here is an opinion from the Tennessee Court of Criminal Appeals that discusses the importance of doing certified questions properly, to wit:

http://www.tsc.state.tn.us/OPINIONS/tcca/PDF/A01/State%20v%20Bradley%20Hawks.pdf

The case is State v. Hawks, No. W2008-02657-CCA-R3-CD (Tenn. Crim App. Feb. 19, 2010).

This case stands for the proposition that Tenn. R. Crim. P. 37 appeals must form the certified question presented to the court in a very specific and not overly broad manner.

Torts: Family Purpose Doctrine

Here is a new case from the Western Section of the Tennessee Court of Appeals on the Family Purpose Doctrine, to wit:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Arlene%20R%20Starr%20v%20Paul%20B%20Hill%20Sr%20and%20Paul%20B%20Hill%20Jr%20OPN.pdf

The case is Starr v. Hill, No. W2009-00524-COA-R3-CV (Tenn. Ct. App. Feb. 18, 2010).

Medical Malpracitce Redefined?

Here's an article from The Tennessean about a new bill in the Tennessee General Assembly that seeks to make it easier for ER doctors to get away with medical malpractice, to wit:

http://www.tennessean.com/article/20100217/COLUMNIST0304/2170359/1003/BUSINESS.

Please read the article.

The bill is bad policy, and worse, it's not supported by the numbers or facts. For example: (1) we have more doctors moving to Tennessee each year due to climate, lack of state income tax, etc.; (2) there have been fewer medical malpractice claim filed in the last two years due to recent legislation that went into effect in 2008 and 2009; and (3) lastly, medical malpractice claims are only a small part of healthcare costs (sometime less than one percent): reducing medical malpractice claims will do little to nothing to reduce healthcare costs.

How a Bill Becomes a Law in the U.S. Congress

I remember watching this clip on TV when I was just a boy. I think it aired in the mid-to-late '70s and early 80s. It is how I first learned how a bill becomes a law in Congress. Here it is:

http://www.youtube.com/watch?v=mEJL2Uuv-oQ

P.S. You'll catch yourself humming the the tune from this clip after you watch it.

Illinois Supreme Court Strikes Down Caps in Medical Malpractice Cases

http://www.bloomberg.com/apps/news?pid=newsarchive&sid=ar0E3Dg14ajo

Other Blogs: Part II

Here is a link to another good blog that I follow that is published by David Randolph Smith:

http://www.drslawfirm.com/lexscientia.html

Other Blogs

There is a very interesting blog on the subject of tort law that I thought you all would like to know about. It's called Torts Prof Blog. It is located at: http://lawprofessors.typepad.com/tortsprof/.

John Day brought this blog to my attention a while back. I want to thank John for that. By the way, John's blog it is at: http://www.dayontorts.com/.

Check out both blogs. They are informative and have useful content.

General Sessions Court: Appellant Has Right to Dismiss Appeal Any Time Before Trial

The Tennessee Court of Appeals for the Middle Section issued its opinion yesterday in Crowley v. Thomas, M2009-01336-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2010). The case dealt with an appeal from general sessions court to circuit court. It held that an appellant (in this case the defendant in general sessions court) had a right to dismiss the appeal --- and the whole case --- any time before trial.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/101/James%20Crowley%20et%20al%20v%20Wendy%20Thomas%20OPN.pdf

Practice point: if you are the prevailing party in general sessions court, and your adversary appeals, it would be wise for you to file an appeal too. That way, your claim cannot be dismissed by your adversary's dismissal of its appeal.

Firm News: Practice Areas

Someone asked me the other day if I would post what areas of the law that I practice in on my blog. That is the reason for this post. Below is a list of the areas that I focus my practice on:

Medical Malpractice
Motor-vehicle/Tractor-trailer Accidents
Personal Injury
Wrongful Death
Product Liability
Criminal Defense

New Trial Not Allowed Under Rule 606(b)

The Tennessee Court of Appeals just issued an opinion that discusses when a new trial is allowed under Rule 606(b) of the Tennessee Rules of Evidence. The case is Gaines v. Tenney, E2008-02323-COA-R3-CV (Tenn. Ct. App. Jan. 21, 2010). Rule 606(b) generally makes juror testimony as to what occurred during deliberations inadmissible except under certain circumstances, which are listed in the rule. See Tenn. R. Evid. 606(b).

Here's a link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Linda%20Kay%20Gaines%20etux%20v%20Leslie%20McCarter%20Tenney%20et%20al.pdf

Medical Malpractice: Doctor Removes Wrong Kidney

This "never event" (euphemistically called a "hospital acquired condition" by some in the healthcare industry) should never happen, which is why it's called a never event. Here's a link to the story from MSNBC:

http://www.msnbc.msn.com/id/34906847.

Here's a link to a publication that lists certain serious reportable events in healthcare, i.e., never events, to wit: Serious Reportable Events in Healthcare – 2006 Update. Notice that the number 1 never event is surgery on the wrong body part.

New Tennessee Supreme Court Opinion on Comparative Fault: The Original Tortfeasor Rule "Tweaked"

Today, the Tennessee Supreme Court released its opinion in Banks v. Elks Club Pride of Tenn. 1102. No. M2008-01894-SC-S09-CV (Tenn. Jan. 13, 2010). Regarding the original tortfeasor rule, it held that joint and several liability no longer applies, to wit:

[T]he doctrine of joint and several liability no longer applies to circumstances in which separate, independent negligent acts of more than one tortfeasor combine to cause a single, indivisible injury. We hold that an actor whose tortious conduct causes physical harm to another is liable for any enhanced harm the other suffers due to the efforts of third persons to render aid reasonably required by the other’s injury, as long as the enhanced harm arises from a risk that inheres in the effort to render aid. In light of our consistent holding that the doctrine of joint and several liability no longer applies to circumstances in which separate, independent negligent acts of more than one tortfeasor combine to cause a single, indivisible injury, it is improper to maintain joint and several liability in cases involving subsequent medical negligence where there is even less cause....

Id., slip op. at 17.

However, consistent with our state's system of comparative fault, the original tortfeasors' fault is to be compared with the fault of subsequent tortfeasors as described in the opinion. Here's a link to it:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/101/SC%20Alice%20J%20Banks%20v%20Elks%20Club%20Pride%20of%20TN%20opn.pdf

Negligence: Summary Judgment Upheld on Appeal Via a Duty Analysis

The Court of Appeals issued its opinion in Greene v. Titi, No. M2008-02788-COA-R3-CV (Tenn. Ct. App. Jan. 11, 2010). This case dealt with negligent security at a night club. The Court of Appeals held, inter alia, that the security company owed no duty to the plaintiff, which was fatal to the plaintiff's claim. Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Corey%20Greene%20v%20Yaseen%20Kamleh%20Titi%20dba%20Crush%20OPN.pdf

Judge Swiney concurred in the result but disagreed with the majority as to whether a duty was in fact owed to the plaintiff. Here's a link to that opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Corey%20Greene%20v%20Yaseen%20Kamleh%20Titi%20dba%20Crush%20CON.pdf

Fourth Anniversary!

Wow! This month marks the fourth anniversary of this blog. I cannot believe it. Four years have gone by so quickly. Thank you all for reading my blog. I really appreciate it. I hope it helps.

Medical Malpractice: A Surgeon's Nondelegable Duty to Remove a Sponge from a Patient's Body Following Surgery

This is a photograph of a laparotomy sponge that was sewn up in my client's abdomen during a surgery that was performed upon him by Richard Geer, M.D. in 2006. At present, this case is up on appeal to determine, among other things, whether a surgeon has a nondelegable duty to remove foreign objects from a patient that were introduced into the wound during surgery. My clients contend that such a duty exists in Tennessee. Their position is supported by the following authorities:

1. 61 Am. Jur. 2d Physicians, Surgeons, etc. § 240, at 343 (2002); id. § 242, at 345-46;

2. 70 C.J.S. Physicians and Surgeons § 99, at 587 (2005);

3. 21 R.C.L. § 33, at 388-89 (1918) (Note: "R.C.L." stands for "Ruling Case Law"); and

4. Tutton v. Patterson, 714 S.W.2d 268, 270 (Tenn. 1986) (citations omitted).