New Tennessee Supreme Court Decision: Products Liabilty

Yesterday the Tennessee Supreme Court released its opinion in Lind v. Beaman Dodge, Inc., No. M2010-01680-SC-S09-CV (Tenn. Dec. 15, 2011). Here's the summary from the majority opinion:

The plaintiff, who had purchased a truck from an automobile dealership, filed a products liability suit in 2007 against not only the manufacturer, but also the dealership, as seller. Later, the plaintiff entered a voluntary nonsuit as to the seller and proceeded only against the manufacturer. Over one year after the order granting nonsuit, the manufacturer declared bankruptcy, and, in 2009, the plaintiff again sued the seller, alleging both negligence and strict liability in tort. The seller filed a motion to dismiss, contending that the suit was barred by the statute of limitations. The trial court denied the motion but granted an interlocutory appeal. The Court of Appeals denied the appeal. This Court granted the seller’s application for permission to appeal to consider the application of the saving statute to these unique circumstances. We hold that the plaintiff may proceed under the strict liability claim because that cause of action did not accrue until the manufacturer was judicially declared insolvent. because, however, the second suit alleged acts of negligence on the part of the seller, an exception to the statutory rule prohibiting products liability suits against sellers, and could have been brought in 2007, the statute of limitations is a bar to recovery under that theory. The judgment of the trial court is, therefore, affirmed in part and reversed in part, and the cause is remanded for trial.

Here's a link to that opinion:

http://www.tsc.state.tn.us/sites/default/files/lindmichael_opn.pdf

Justice Clark wrote a separate concurring opinion. Here it is:

http://www.tsc.state.tn.us/sites/default/files/lindm_con.pdf

New Tennessee Supreme Court Opinion: Expert Testimony

This is a follow-up post to one I did on June 25, 2010 on this same case; that opinion was from the Tennessee Court of Appeals. The day before yesterday, the Tennessee Supreme Court released its opinion in Holder v. Westgate Resorts Ltd., No. E2009-01312-SC-R11-CV (Tenn. Dec. 12, 2011). The summary of the opinion is as follows:

During a trial of the plaintiffs’ premises liability claim, the trial court excluded as hearsay a portion of the testimony of the defendant’s expert. The expert would have testified that he consulted an authoritative source whose interpretation of the applicable building code was consistent with that of the testifying expert. The jury returned a verdict for the plaintiff, and the defendant appealed. The Court of Appeals held that the trial court erred because the expert’s testimony was admissible pursuant to Tennessee Rule of Evidence 703. The Court of Appeals concluded that the trial court’s error was harmless, however, and affirmed the judgment. We hold that the Court of Appeals improperly applied an amended version of Rule 703 that was not in effect at the time of trial. We hold that the trial court properly excluded as hearsay portions of the proffered testimony of the testifying expert. We vacate the judgment of the Court of Appeals and affirm the judgment of the trial court.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/holderjopn.pdf

Summary Judgment and Proximate Cause

The Western Section of the Tennessee Court of Appeals recently issued its opinion in Moore v. Butler, No. W2010-02374-COA-R3-CV (Tenn. Ct. App. Dec. 1, 2011). Here's the summary of the opinion:

This appeal involves summary judgment in a vehicular accident case. In a line of vehicles, the defendant service vehicle was first, followed by the plaintiff’s tractor-trailer, and then bythe co-defendant’s tractor-trailer. The defendant’s service vehicle allegedly made a left turn without braking or using a turn signal, forcing the plaintiff’s tractor-trailer to brake quickly. This resulted in the co-defendant’s tractor-trailer rear-ending the plaintiff’s tractor-trailer. The plaintiff filed a personal injury lawsuit against the defendant tractor-trailer for rear-ending him, and against the defendant service vehicle that turned in front of him. The defendant service vehicle owner filed a motion for summary judgment. The trial court granted the motion, finding that the defendant service vehicle owner had negated the element of proximate cause. The defendant tractor-trailer owner appeals. We reverse under the summary judgment standard in Hannan v. Alltel Publ’g Co., 270 S.W.3d 1 (Tenn. 2008).

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/mooretaopn.pdf

Medical Malpractice: Statutorily Required Presuit Notice Provides 120-day Extension of One-year Statute of Limitations Against Governmental Entity

The Tennessee Court of Appeals released its opinion yesterday in Cunningham ex rel. Cunningham v. Williamson Cnty. Hosp. Dist., No. M2011-00554-COA-R9-CV (Tenn. Ct. App. Nov. 30, 2011). The summary of the opinion reads as follows:

Defendants, Williamson Medical Center and five of its employees, appeal from the denial of their motion to dismiss this medical malpractice action. They contend the action is time barred because it was filed more than one year after the cause of action accrued, in violation of the one year statute of limitations applicable to Tennessee Governmental Tort Liability Act actions, codified at Tennessee Code Annotated § 29-20-305(b). The trial court, however, found that the action was timely filed because it was commenced within the 120-day extension afforded to the plaintiffs pursuant to an amendment to the Tennessee Medical Malpractice Act, codified at Tennessee Code Annotated § 29-26-121(c) (2009). We have determined that the amendment codified at Tennessee Code Annotated § 29-26-121(a)-(c) applies, notwithstanding the one-year statute of limitations provision under the Governmental Tort Liability Act, that the plaintiffs’ compliance with the pre-suit notification provision in Tennessee Code Annotate § 29-26-121(a) extended the statute of limitations by 120 days, and that this action was timely filed within the 120-day extension. Therefore,were affirm.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/cunninghamwopn.pdf

New Case on the Element of Duty in a Negligence Case

The Middle Section of the Tennessee Court of Appeals recently issued its opinion in Norfleet v. Pulte Homes Tenn. Ltd. P'ship., No. M2011-01362-COA-R3-CV (Tenn. Ct. App. Nov. 9, 2011). The summary of the opinion is as follows:

While touring a model home in a new residential home development, the plaintiff fell when she failed to see a four-inch step as she walked from the foyer into the sunken living room. This premises liability action followed. The defendant constructed, owned, and managed the model home in which the plaintiff fell. Upon motion of the defendant, the trial court summarily dismissed the complaint upon two findings: that the defendant did not owe a legal duty to the plaintiff and that the plaintiff was more than fifty percent at fault. We affirm upon the finding that the plaintiff cannot establish that a duty was owed to her by the defendant.

Here's a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/norfleetmopn.pdf

Medical Malpractice: Yet Another Case on Certificates of Good Faith

The Tennessee Court of Appeals issued its opinion today in Crawford v. Kavanaugh, No. E2011-00696-COA-R3-Cv (Tenn. Ct. App. Nov. 21, 2011). Here's the summary of the case from the opinion:

This is a medical malpractice case in which Pauletta C. Crawford (“Wife”) and James Crawford (“Husband”) filed suit against Eugene Kavanaugh, M.D. (“Doctor”). While the suit was pending, Tennessee Code Annotated section 29-26-122 was amended to require the contemporaneous filing of a certificate of good faith with complaints alleging medical malpractice. Husband and Wife (collectively the “Crawfords”) dismissed their suit and filed a new complaint that did not include a certificate of good faith. Doctor filed a motion to dismiss, and the court dismissed the case. The Crawfords appeal. We affirm the trial court.

Here's a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/crawfordopn.pdf

Tony Duncan Named 2011 Mid-South Super Lawyer

I'm pleased to announce that I have been selected as a 2011 Mid-South Super Lawyer. I'm greatly honored and humbled by this, which is due in part to the selection process. That process is explained at this link:

http://digital.superlawyers.com/superlawyers/2011midsouth?pg=27#pg11

My listing is on page 29, which can be viewed at the following link:

http://digital.superlawyers.com/superlawyers/2011midsouth?pg=27#pg29

"Hot Coffee"

Here's a link to a site about the movie Hot Coffee. It's a documentary about the McDonald's coffee case.

If you've taken the time to look at this blog, please take the extra time to look at this link: http://hotcoffeethemovie.com/. Please get around to actually watching the movie, too.

"The Medical Malpractice Myth," by Tom Baker

Think medical malpractice lawsuits are a problem? You're wrong.

Please read The Medical Malpractice Myth by Professor Tom Baker (a law professor whose father and father-in-law are physicians). The book can be purchased at this link:

http://www.press.uchicago.edu/Misc/Chicago/036480.html

Getting Ready to Start Trial

I usually say the Serentiy Prayer before trial (and many other things), as you all know, it goes (in part) like this: "God grant me the serenity to accept the things I cannot change; courage to change the things I can; and wisdom to know the difference. Amen."

Medical Malpractice: Court Holds Re-filed Case Subject to New Laws and Dismisses It Because They Weren't Complied with by the Plaintiff

The Court of Appeals recently issued its opinion in Cude v. Herren, No. W2010-01425-COA-R3-CV (Tenn. Ct. App. Sept. 26, 2011). The court held that the plainitff had to comply with the new medical malpractice laws on pre-suit notice and certificates of good faith in a case re-filed under the saving statute, even though those laws did not apply when the case accrued.

Here's the summary of the case from the opinion:

The trial court dismissed Plaintiff’s re-filed suit for failure to comply with the 60-day notice and certificate of good faith requirements set out in the Medical Malpractice Act. Because we find such requirements applicable to Plaintiff’s suit and no extraordinary cause to excuse her non-compliance, we affirm the trial court’s dismissal.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/cudeelizabethopn.pdf

New Tennessee Supreme Court Opinion on the Family Purpose Doctrine

The Tennessee Supreme Court issued its opinion in Starr v. Hill, No. W2009-00524-SC-R11-CV (Tenn. Aug. 31, 2011). The opinion is a must-read if you are doing research on the family purpose doctrine in Tennessee.

Here is the summary of the opinion:

A father and his sixteen-year-old son were sued after the son was involved in an accident while driving a vehicle owned, insured, and provided to him by his father. The basis for the suit against the father was the family purpose doctrine, which imposes vicarious liability on the owner of a vehicle for the negligent operation of the vehicle by a family member. Whether the family purpose doctrine applies to the father requires us to address these issues: (1) whether the father, who does not reside in the same household as the son, was a head of the household under the family purpose doctrine; (2) whether the vehicle was maintained for the comfort or pleasure of the family or solely for use by the son; and (3) whether the vehicle was being driven with the father’s permission such that he had control over its use. The essential elements of the family purpose doctrine are that the owner must be a head of the household who furnishes and maintains the vehicle for the purpose of providing pleasure or comfort for the family, and at the time of the injury, the vehicle must have been driven in furtherance of that purpose with the head of the household’s express or implied permission. The trial court granted summary judgment to the father, finding that the family purpose doctrine did not apply. The Court of Appeals reversed, ruling that the family purpose doctrine applied to the father as a matter of law. We hold that the father was a head of the household because he had a family relationship with his son and a duty to support his son and the father furnished and maintained the vehicle for the purpose of providing pleasure or comfort to the family. However, a genuine issue of material fact remains as to whether the father had sufficient control over the vehicle. We vacate the decision of the Court of Appeals and remand for trial.

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/starrarleneopn.pdf

Proposed Rule Changes That May Affect the Tennessee Practitioner

At this link are some proposed rule changes to the Tennessee Rules of Civil Procedure, Evidence, and Juvenile Procedure.

http://www.tba2.org/tbatoday/news/2011/2012rulespackage_commentorder_082611.pdf

Ordinary Negligence Claim in a Healthcare Setting

Monday the Tennessee Court of Appeals (Middle Section) released its opinion in Vice v. Elmcroft of Hendersonville, No. M2010-01148-COA-R3-CV (Tenn. Ct. App. Aug. 22, 2011). The summary at the beginning of the opinion states as follows:

The daughter of an eighty-seven year old woman was looking for an assisted living facility for her mother, who was suffering from dementia. Elmcroft of Hendersonville assured the daughter that it could care for her mother and admitted her after the daughter informed it of her concern about her mother’s risk for falls. Three weeks following her admission the mother fell, and then fell three more times before the daughter moved her out of Elmcroft. The final fall resulted in a broken clavicle, which caused the mother pain and decreased mobility for the rest of her life. The daughter, as her mother’s representative, sued Elmcroft and its administrator for negligence and negligent admission and retention of her mother. A jury awarded a judgment against the defendants for $250,000. There was evidence the Elmcroft staff did not follow Elmcroft’s fall prevention policies and procedures. Elmcroft argued that all claims filed against it involved matters of medical science or art requiring specialized skills not ordinarily possessed by lay persons, and, therefore, this was a medical malpractice which should have been dismissed since the statutory requirements for such a claim had not been met. We conclude, based on the evidence herein, that the claims were ordinary negligence claims. Elmcroft also argued (1) the trial court erred in refusing to instruct the jury on the negligence of the daughter and a physician from another state who indicated the mother may be cared for by an assisted living facility and (2) that the jury award was excessive, contained a punitive component, and was the result of passion, prejudice and caprice. We conclude the court did not err in refusing to charge the jury on the physician’s comparative fault or the daughter’s comparative negligence. We also conclude there was material evidence to support the jury’s award of damages. Consequently, we affirm.

Here's a link to the slip opinion:

http://www.tsc.state.tn.us/sites/default/files/vicecopn.pdf

Medical Malpractice: New Tenn. Sup. Ct. Opinion on the Locality Rule

The Tennessee Supreme Court just issued its opinion in Shipley v. Williams, No. M2007-01217-SC-R11-CV (Tenn. Aug. 11, 2011). Here's the summary from the opinion:

In medical malpractice actions, Tennessee adheres to a locality rule for expert medical witnesses. Claimants are required by statute to prove by expert testimony the recognized standard of acceptable professional practice in the community where the defendant medical provider practices or a similar community. Tenn. Code Ann. § 29-26-115 (2000 & Supp. 2010). Since the locality rule was enacted in 1975, Tennessee courts have reached different conclusions in interpreting it. The rule does not define “similar community,” nor does it provide guidance as to how a community is determined to be “similar” to the defendant’s community. In this case, we address and clarify the applicable standards that courts should use in determining whether a medical expert is qualified to testify as an expert witness in a medical malpractice case. Applying these standards, we hold that the trial court’s exclusion of the claimant’s two proffered medical experts under the locality rule was error. The
trial court’s grant of summary judgment is affirmed in part and vacated in part.

Here's a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/shipleydonna.opn_.pdf

The opinion is a must-read for the medical malpractice lawyer in Tennessee.

Also, there is a separate concurrence and dissent by Justice Koch. Here's the link to it:

http://www.tncourts.gov/sites/default/files/shipleydonna.dis_.pdf

And, interstingly enough, immediate past Chief Justice Janice Holder wrote a separate concurrence to address Justice Koch's opinion. That opinion can be found at this link:

http://www.tncourts.gov/sites/default/files/shipleydonna.con_.pdf

A Quote from Teddy Roosevelt

My mentor shared this quote with me earlier this year. I like it and thought I'd share too. Here it is:

It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.

Dare greatly, my friends. Dare greatly!

Comparative Fault: New Opinion on Tenn. Code Ann. § 20-1-119

The Tennessee Court of Appeals (Western Section) recently released its opinion in Mann v. Alpha Tau Omega Fraternity, No. W2010-02316-COA-R3-CV, 2011 WL 3276233 (Tenn. Ct. App. Aug. 2, 2011). Here's the summary from the opinion:

Plaintiffs sued Defendants in an amended complaint following the expiration of the statute of limitations. Defendants moved for summary judgment/judgment on the pleadings based on the expiration of the statute of limitations. Subsequently, co-defendants alleged Defendants’ comparative fault in an amended answer. Defendants’ motions for summary judgment and for judgment on the pleadings were granted, but were not made final. Based on co-defendants’ answer, Plaintiffs again amended their complaint to name Defendants pursuant to Tennessee Code Annotated section 20-1-119. However, Defendants claimed that section 20-1-119 could not be utilized as they were already parties to the lawsuit, and they moved for summary judgment and to dismiss. The trial court granted said motions, and we
affirm.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/davey_mann_and_wife_teresa_mann_v_alpha_tau_omega_fraternity.pdf

Release of Property-damage Claim Not a Release of Personal-injury Claim

When confronted with whether a release of a property-damage claim effects a release of a concurrent personal-injury claim, take a look at Cross v. Earls, 517 S.W.2d 751 (Tenn. 1975).

Depositions

Miller and Zois have a Web site where there are links to various depositions that might be helpful to a new lawyer. Here's the link:

http://www.millerandzois.com/Sample_Depositions.html

Medical Malpractice: Jury Verdict of $500K in a Retained Sponge Case

http://www.phillyburbs.com/news/local/courier_times_news/woman-awarded-k-after-nurses-left-sponge-in-her-abdomen/article_f7c781bd-b429-5ae9-a15c-79d771ff1669.html

Civil Procedure: New Tennessee Supreme Court Case on Motions to Dismiss

The Tennessee Supreme Court released its opinion today in Webb v. Nashville Area Habitat for Humanity, Inc., No. M2009-01552-SC-R11-CV, (Tenn. Jul. 11, 2011). The summary of the opinion reads as follows:

In this action alleging retaliatory discharge, the trial court granted the defendant’s motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Tennessee Rule of Civil Procedure 12.02(6). The Court of Appeals vacated the trial court’s judgment, holding that the amended complaint sufficiently stated a cause of action for retaliatory discharge. We address the issue of the proper standard for Tennessee courts to apply in ruling on a Rule 12.02(6) motion to dismiss in light of the United States Supreme Court’s recent decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009). We decline to adopt the new Twombly/Iqbal "plausibility" pleading standard and affirm the judgment of the Court of Appeals.

(Underlining of case titles omitted.)

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/pam_webb_v_nashville_area_habitat_for_humanity_inc.pdf

Happy Fourth of July!

I watch these links every year before the Fourth. And I enjoy them a great deal. I hope you all enjoy them too.

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

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

Turn the volume up and have a great Fourth!

New Opinion on Comparative Fault

The Court of Appeals issued its opinion in Bellsouth Tel., Inc. v. Young, No. W2010-01825-COA-R3-CV (Tenn. Ct. App. Jun. 21, 2011). The opinion discusses unknown tortfeasors in the context of a motor-vehicle collision. Here's the summary from the opinion:

Plaintiff sued Defendants for damages arising from a motor vehicle accident. The trial court struck, from Defendants’ answers, allegations regarding the comparative fault of an unidentified nonparty. However, the trial court allowed references to such nonparty at trial, and the jury assigned no fault to Defendants. Finding no error in the trial court’s allowance, we affirm the judgment of the trial court.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/bellsouth_telecommunications_inc_dba_att_tn_v_shundra_y_young_and_maureen_f_kinsella_.pdf

New Opinion: Medical Malpractice vs. Ordinary Negligence

The Court of Appeals just issued its opinion in Brister v. HCA Health Serv's of Tenn., No. M2010-01996-COA-R3-CV (Tenn. Ct. App. Jun. 8, 2011). The opinion offers a good analysis of the distinction between medical malpractice and ordinary negligence. Here is a summary of the case from the opinion:

This is an appeal from the trial court’s grant of a hospital’s motion to dismiss for failure to state a claim upon which relief can be granted. The trial court determined that plaintiff’s claim sounded in medical malpractice and dismissed plaintiff’s claim for failure to comply with the written notice and certificate of good faith requirements of the Tennessee Medical Malpractice Act. Finding that Plaintiff’s complaint states claim for ordinary negligence and premises liability, we reverse the trial court and remand the case for further proceedings.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/mccall_brister_v_hca_health_services_of_tennessee_inc.pdf

Medical Malpractice: The Locality Rule

Here's a recent opinion from the Tennessee Court of Appeals dealing with the locality rule in medical malpractice cases: Kirk v. Chavin, No. E2010-02139-COA-R3-CV (Tenn. Ct. App. June 3, 2011). The synopsis of the case from the opinion states as follows:

Brande Kirk and Amanda Jordan, as children of Barbara Jordan, (“Plaintiffs”) sued Michael A. Chavin, M.D. alleging medical malpractice in his treatment of Barbara Jordan. Dr. Chavin filed a motion for summary judgment. After a hearing, the Trial Court entered its order on August 30, 2010 finding and holding that Plaintiffs’ expert was not qualified to testify in accordance with Tenn. Code Ann. § 29-26-115, and granting Defendant’s motion for summary judgment. Plaintiffs appeal to this Court. We affirm.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/brande_kirk_v_michael_a_chavin_md.pdf

Is the Tort Action Time-Barred?

Assume you have a potential new client come to you to pursue a personal-injury tort action after the one-year statute of limitations has run. Is the claim time-barred? It might not be if the plaintiff was induced not to file suit by the defendant. See Jackson v. Kemp, 365 S.W.2d 437, 440-41 (Tenn. 1963) (holding that a plaintiff was induced not to sue defendant within the one-year limitations period applicable to personal-injury actions and that such an inducement prevented the defendant from availing himself of said limitation as a defense to plaintiff’s later-filed action); see generally Whitehead v. Davidson, 522 S.W.2d 865 (Tenn. 1975) (holding contra to Jackson under the facts of the case because they were distinguishable but acknowleding Jackson as good authority).

Medical Malpractice: Another Case on Certificates of Good Faith

The Tennessee Court of Appeals issued its opinion yesterday in Robles v. Vanderbilt Univ. Med. Ctr., No. M2010-01771-COA-R3-CV (Tenn. Ct. App. Apr. 19, 2010). Here's the summary from the opinion:

Defendants in medical malpractice action appeal the denial of their motion to set aside order entered on plaintiff’s Tenn. R. Civ. P. 41.01 notice of voluntary dismissal without prejudice. Defendants contend that, because the certificate of good faith required by Tenn. Code Ann. § 29-26-122 was not filed with the complaint, dismissal should have been with prejudice. Finding that Tenn. Code Ann. § 29-26-122 does not limit plaintiff’s right to voluntarily dismiss an action without prejudice under the circumstances presented, we affirm the judgment of the trial court.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/CURRENT/Estate%20of%20Miguel%20Robles%20v%20Vanderbilt%20University%20Medical%20Center%20Opn.pdf

Medical Malpractice: New Opinion on the Locality Rule

The Tennessee Court of Appeals recently issued its opinion in Kennard v. Townsend, No. W2010-00461-COA-R3-CV (Tenn. Ct. App. Apr. 14, 2011).

This is a medical malpractice case. The trial court granted summary judgment in favor of Appellee healthcare provider after its determination that Appellant patient’s medical expert did not meet the locality requirement, Tennessee Code Annotated Section 29-26-115(a)(1). Discerning no error, we affirm and remand.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/112/Vivian%20Kennard%20vs%20Arthur%20M%20Townsend%20IV%20MD%20OPN.pdf

New Opinion: Medical Negligence vs. Ordinary Negligence

The Tennessee Court of Appeals recently issued its opinion in Mathes v. DRD Knoxville Medical Clinic, No. E2010-01809-COA-R3-CV (Tenn. Ct. App. Apr. 13, 2011). Here's a summary of the opinion from its synopsis, to wit:

This is an appeal from the trial court’s grant of separate motions to dismiss for failure to state a claim upon which relief can be granted. The trial court determined that Appellants had failed to comply with the written notice and certificate of good faith requirements of the Tennessee Medical Malpractice Act, and had failed to state a claim for vicarious liability based on theories of agency or joint venture. We affirm in part, reverse in part, and remand, concluding that Appellants’ claims of direct negligence do not sound in medical malpractice, but that Appellants failed to state a claim upon which relief can be granted with respect to vicarious liability based on agency or joint venture.

(Emphasis added.)

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/112/Alicia%20Mathes%20et%20al%20v%20DRD%20Knoxville%20Medical%20Clinic%20et%20al.pdf

New Case on Tennessee's Saving Statute

The Tennessee Court of Appeals recently issued its opinion in Freeman v. CSX Transp., Inc., No. M2010-01833-COA-R9-CV (Tenn. Ct. App. Apr. 7, 2011). Here's the summary from the opinion, to wit:

In this interlocutory appeal, we are asked to determine: (1) whether the Tennessee saving[] statute, Tenn. Code Ann. § 28-1-105(a), may be invoked twice within the one-year savings period to save otherwise untimely actions; and (2) whether the Appellee acted with the diligence and good faith necessary to invoke the protection of the saving[] statute. We conclude that Appellee’s suit was properly brought within the protection of the Tennessee saving[] statute. Consequently, we affirm the judgment of the trial court.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/112/Patsy%20Freeman%20Personal%20Representative%20and%20Administratrix%20of%20the%20Estate%20of%20John%20R%20Freeman%20Deceased%20v%20CSX%20Transportation%20Inc%20OPN.pdf

Medical Malpractice: The Term "Injury" Defined

How is an "injury" defined for purposes of medical malpractice? Here is the definition, to wit:

An injury is defined as any want of skillful care or diligence on a physician's part that sets back a patient's recovery, prolongs the patient's illness, increases the plaintiff's suffering, or, in short, makes the patient's condition worse than if due skill, care, and diligence had been used.

Church v. Perales, 39 S.W.3d 149, 171 (Tenn. Ct. App. 2000) (defining injury for purposes of medical malpractice actions).

New Tennessee Supreme Court Decision: Calculating a Reasonable Attorney's Fee for Counsel When Representing a Minor

Yesterday the Tennessee Supreme Court released its opinion in Wright ex rel. Wright v. Wright, No. M2008-01181-SC-R11-CV (Tenn. Mar. 29, 2011). Here's the summary from the opinion, to wit:

We granted this appeal to determine the proper method for computing a reasonable attorney’s fee when the attorney represents a minor. In this case, after the attorney obtained a $425,000 settlement for a minor injured in an automobile accident, the trial court awarded the attorney $141,666.66, or one-third of the recovery, pursuant to the terms of the attorney’s contingent fee agreement with the minor’s father. The court-appointed guardian ad litem appealed the fee award, and the Court of Appeals reversed. Upon remand, the trial court conducted an evidentiary hearing and determined that $131,000 would be a reasonable attorney’s fee, and the Court of Appeals affirmed. Reviewing for an abuse of discretion, we hold that the trial court applied the correct legal standard by analyzing the ten factors set forth in Tennessee Supreme Court Rule 8, Rule of Professional Conduct 1.5(a). We further hold that the fee award was neither illogical, based on an erroneous assessment of the evidence, nor an injustice to the minor. We therefore affirm the judgment of the trial court.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/111/SC%20David%20Lee%20Wright%20ex%20rel%20Kaitlyn%20Lee%20Wright%20v%20Anita%20J%20Wright%20OPN.pdf

Medical Malpracitce: Respondeat Superior & Amended Pleadings

Yesterday the Tennessee Court of Appeals issued its opinion in Randolph ex rel. Randolph v. Meduri, No. W2010-01224-COA-R3-CV (Tenn. Ct. App. Mar. 2, 2010). Here's the summary from the opinion:

This appeal arises out of an action to hold UT Medical Group, Inc. vicariously liable for the alleged negligence of its employees. In 1997, the original plaintiff filed an amended complaint for medical malpractice and wrongful death which specifically named two doctors as employees of the defendant who negligently caused the death of a patient. As trial approached, a substitute plaintiff attempted to add new allegations concerning the negligence of a third doctor. The trial court denied the motion to amend and later granted a motion in limine to exclude evidence concerning the alleged negligence of the third doctor as beyond the scope of the 1997 amended complaint. The plaintiff consequently was unable to offer expert testimony at trial to prove an employee of the defendant negligently caused the patient’s death, and the trial court granted judgment in favor of the defendant. We affirm.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Jamie%20Randolph%20on%20behalf%20of%20her%20deceased%20mother%20Carolyn%20Randolph%20v%20Gianfranco%20Meduri%20MD%20OPN.pdf

The opinion offers a discussion on the doctrine of respondeat superior; the pleading of the doctrine and its effects; and how a delay in an amendment to a pleading can affect a case.

Medical Malpractice: Plaintiff's Case Dimissed for Failure to Follow Recent Changes to Medical Malpractice Act

The Tennessee Court of Appeals issued its opinion today in Myers v. AMISUB (SFH), Inc. , No. W2010-00837-COA-R3-CV (Feb. 24, 2011). Here's the summary from the opinion:

The trial court denied Defendants’ motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff’s failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Curtis%20Myers%20v%20AMISUB%20SFH%20Inc%20dba%20St%20Francis%20Hospital%20

This opinion is incorrect in my humble opinion because it fails to consider in its analysis that the plaintiff's tort claim vested in the law that existed when the claim accrued as a matter of constitutional law. See Estate of Bell v. Shelby Cnty. Health Care Corp., 318 S.W.3d 823, 830 (Tenn. 2010) (recognizing that as to tort cases the law in effect at the time of the accrual of the action is the applicable law per Article One, Section 20 of the Tennessee Constitution). The law that existed when Plaintiff's claim accrued did not require pre-suit notices to be mailed out to potential defendants or certificates of good faith to be filed. However, it doesn't look like the litigants brought this issue up before the trial court or the appellate court, which probably affected the outcome.

Long v. Hillcrest Healthcare - West Update

This post is a follow-up to my April 16, 2010 post about Long v. Hillcrest Healthcare - West, No. E2009-01405-COA-R3-CV (Tenn. Ct. App. Apr. 16, 2010).

Here's a link to the post on Long:

http://theduncanlawfirm.blogspot.com/2010/04/medical-malpractice-court-upholds.html.

The Tennessee Supreme Court recently granted the Tenn. R. App. P. 11 application in Long only to remand the case back to the trial court for reconsideration in light of its ruling in Estate of French v. Stratford House, --- S.W.3d ----, 2011 WL 238819, No. E2008-00539-SC-R11-CV (Tenn. Jan. 26, 2011).

Here's a link to the post on French:

http://theduncanlawfirm.blogspot.com/2011/01/new-nursing-home-case.html.

Here's a link to the Tennessee Supreme Court's orders, which are on pages 19-20 at this link (Justice Koch did his own concurring order):

http://www.tsc.state.tn.us/OPINIONS/TSC/certiorari/2011/Certlist20110222.pdf.

Medical Malpractice: Summary Judgment for Defendants Vacated; Case Remanded; and Judge Must Recuse Herself

The Court of Appeals recently issued its opinion in Olerud v. Morgan, No. M2010-01248-COA-R3-CV (Tenn. Ct. App. Feb. 18, 2010). Here's the summary from the opinion, to wit:

This is an appeal of a grant of summary judgment to a hospital and physician in a medical malpractice case. Plaintiffs also appeal the denial of their motion that the trial court recuse itself due to the court’s membership on the board of directors of the defendant hospital and the court’s denial of their motion for default judgment based on spoliation of evidence. We reverse.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Gilbert%20Olerud%20v%20Dr%20Walter%20M%20Morgan%20III%20Opn.pdf

Think You Know About the McDonald's Coffee Case?

Think Again! People are slowly giving up their rights to a fair trial by PR campaigns by big money and business that don't want you to have your day in court. Watch the link below from the American Bar Association for more information:

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

Medical Malpractice: Quotient Verdict Results in Reversal on Appeal; Case Remanded for Re-Trial

The Tennessee Court of Appeals just issued its opinion in Cullum v. Baptist Hosp. Sys., Inc., No. M2009-01980-COA-R3-CV (Tenn. Ct. App. Feb. 16, 2011). Here's the summary from the opinion, to wit:

This is an appeal from a jury verdict in a medical malpractice case. Plaintiffs, parents of child who suffered severe, permanent brain injuries during the course of his labor and delivery, filed suit against their physician, physician’s employer, and related hospitals. The physician and her employer settled prior to trial, leaving the related hospitals as the only defendants. This case has been tried twice. Following the first trial, the jury returned a verdict in favor of defendants, which the trial court set aside pursuant to the thirteenth juror rule. The second trial resulted in a verdict for plaintiffs, with the jury assigning 3.75 percent of fault to the defendants and 96.25 percent of fault to the nonparty physician. Because the evidence shows that the members of the jury agreed to be bound by the result of a predetermined averaging process, we have concluded that the jury reached a quotient verdict, which is impermissible. Consequently, we reverse and remand the case for a new trial.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/James%20and%20Patricia%20Cullum%20v%20Baptist%20Hospital%20Systems%20Inc%20Opn.pdf

The case also discusses the effect of a settlement between one defendant and the plaintiff and how that is to be handled at trial with any remaining nonsettling defendants. Specifically, it discusses how this sort of evidence is very limited by Tenn. R. Evid. 408 and how it should not be improperly brought before the jury's attention by the nonsettling defendants during the re-trial of this case.

Medical Malpractice: Plaintiffs' Failure to Comply with Notice Statute Proves Fatal to Their Claim

The Tennessee Court of Appeals issued its opinion today in DePue v. Schroeder, No. E2010-00504-COA-R9-CV (Tenn. Ct. App. Feb. 15, 2011). The summary from the opinion's synopsis is as follows:

Plaintiffs filed their Complaint alleging medical malpractice against numerous healthcare providers on May 26, 2009. They alleged that they had given the notice requirements of Tenn. Code Ann. §29-26-121(a) prior to April 8, 2009 to the defendants. The defendants filed several motions, including motions for summary judgment, stating that plaintiffs failed to comply with the notice requirements of Tenn. Code Ann. § 29-26-121. The record establishes that plaintiffs did not give the requisite notice, "at least 60 days before the filing of their Complaint[."] In response to the motions for summary judgment the Trial Court excused compliance with the code section and defendants appealed. On appeal, we reverse the holding of the Trial Court on the grounds that non-compliance with the code section could only be excused upon the showing of extraordinary cause.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Karah%20and%20Ryan%20DePue%20et%20al%20v%20Charles%20D%20Schroeder%20et%20al.pdf


Here's a link to the dissenting opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Karah%20and%20Ryan%20DePue%20et%20al%20v%20Charles%20D%20Schroeder%20et%20al%20Dissent.pdf

Medical Malpractice: Trial Court's Striking of Plaintiffs' Only Expert Upheld on Appeal

The Middle Section of the Tennessee Court of Appeals recently issued its opinion in Westmoreland v. Bacon, No. M2009-02643-COA-R3-CV (Tenn. Ct. App. Jan. 31, 2011). Here's the summary from the majority opinion, to wit:

Plaintiffs appeal the summary dismissal of their medical malpractice claims against three physicians, an orthopedic surgeon, and two hematologists. In December 2004, Plaintiffs’ mother, who suffered from several medical conditions, underwent a total hip replacement and remained in the hospital under the care of several doctors for ten days. Nine days after surgery, her condition dramatically declined; she died the following day from a severe diffuse pulmonary and gastrointestinal hemorrhage. Plaintiffs filed suit alleging the physicians breached the standard of care for their respective specialties in the care of their mother. Each defendant filed a motion for summary judgment and each motion was supported by the affidavit of the defendant as an expert witness. Plaintiffs submitted an affidavit of their expert witness in response. The trial court ruled that Plaintiffs’ only expert was not a qualified witness under Tenn. Code Ann. § 29-26-115 and granted summary judgment to all three defendants. On appeal, Plaintiffs claim the trial court abused its discretion in finding that their expert witness was not qualified to testify. We affirm the trial court’s ruling that Plaintiffs’ expert was not qualified to testify under Tenn. Code Ann. § 29-26-115 and the summary dismissal of Plaintiffs’ claims.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Markina%20Westmoreland%20v%20William%20L%20Bacon%20MD%20OPN.pdf

Judge Dinkins wrote a dissenting opinion. Here's a link to it:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Markina%20Westmoreland%20v%20William%20L%20Bacon%20MD%20DIS%20Opn.pdf

Howell v. Claiborne and Hughes Health Ctr.: Appeal Voluntarily Dismissed

This post is related to my posts of Dec. 14 and June 25, 2010. The Tennessee Supreme Court recently granted a Tenn. R. App. P. 11 application for permission to appeal in Howell v. Claiborne and Hughes Health Ctr., No. M2009-01683-COA-R3-CV (Tenn. Ct. App. June 24, 2010). However, the motion to voluntarily dismiss the appeal was filed on Jan. 13, 2011. This can be viewed on page 8 at this link:

http://www.tsc.state.tn.us/geninfo/Courts/Supreme%20Court/SupremeCourtAppealsPendingCasesCURRENTREPORT.pdf

The order granting the motion was entered on Jan. 19, 2011. (I called the clerk's office to find this out.)

Medical Records

This post is a follow-up one to my Oct. 6, 2008 post that cited Tenn. Code Ann. sec. 63-2-101(a). Here's a link to that post:

http://theduncanlawfirm.blogspot.com/search?q=ten+days.

Here is the reason for this follow-up post:

Under the same Title and Chapter as the statute cited in the above-referenced post, an affidavit must be provided upon request from the provider's custodian of records, T.C.A. § 63-2-102(c)(1); and the records so obtained and the affidavit (which can be obtained for a fee of no more than $20.00) qualifies as a business record and is excepted from being barred as hearsay, id. § 63-2-102(c)(2). And lastly, the records must be provided without delay once they have been paid for. Id. § 63-2-102(e).

New Nursing Home Case

The Tennessee Supreme Court just released its opinion in Estate of French v. Stratford House, No. E2008-00539-SC-R11-CV (Tenn. Jan. 26, 2011). Here's the synopsis from the opinion's syllabus, to wit:

The administratrix of the estate of the deceased brought this wrongful death suit against the defendant nursing home and its controlling entities, alleging damages as the result of ordinary negligence, negligence per se, and violations of the Tennessee Adult Protection Act. The trial court granted the defendants’ motion for partial summary judgment, holding that the Tennessee Medical Malpractice Act applied to the ordinary negligence claims, thereby precluding allegations of negligence per se or violations of the Tennessee Adult Protection Act. The trial court also dismissed a claim for punitive damages. The Court of Appeals affirmed, but vacated the portion of the order dismissing the punitive damages claim. This Court granted the administratix’s application for permission to appeal in an effort to clarify the standards governing nursing home liability and to resolve a conflict in the decisions rendered by the Court of Appeals. We hold that, because the administratrix of the estate of the deceased has alleged violations of the standard of care pertaining to both medical treatment and routine care, she has made claims based upon both medical malpractice and ordinary negligence. Further, she may offer proof of negligence per se and violations of the Tennessee Adult Protection Act as support for her ordinary negligence claims. We affirm the Court of Appeals’ reinstatement of the punitive damages claim. The judgment of the Court of Appeals is, therefore, affirmed in part and reversed in part. The cause is remanded to the trial court.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/111/SC%20Estate%20Martha%20S%20French%20v%20Stratford%20House%20opn.pdf

Here's a link to Justice Koch's dissent:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/111/SC%20Estate%20Martha%20S%20French%20v%20Stratford%20House%20DIS%20opn.pdf

New Medical Battery Case

The Court of Appeals recently issued its opinion in Urlaub v. Select Specialty Hosp.-Memphis, No. W2010-00732-COA-R3-CV (Tenn. Ct. App. Jan. 20, 2011). It offers a good discussion on medical battery claims and how they relate to claims for vicarious liability based upon a principal-agent relationship.

Here's a link to the opinion, to wit:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Mark%20W%20Urlaub%20Executor%20Estate%20Bertha%20Worley%20Orlaub%20v%20Select%20Specialty%20Hosp-Memphis%20Inc%20OPN.pdf

Medical Mistakes Claim Lives in Tennessee

http://www.publicnewsservice.org/index.php?/content/article/17820-1

Pray for Rep. Giffords and Others!

http://online.wsj.com/article/SB10001424052748704030704576070010694650214.html?mod=WSJ_WSJ_News_BlogsModule

May God be with them and their families.

Medical Malpractice: Summary Judgment Against Pro Se Plaintiff Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Partee v. Vasquez, No. M2009-01287-COA-R3-CV (Jan. 5, 2011). The plaintiff in this case brought a pro se medical malpractice action against her former doctor. Her case was was ultimately dismissed via summary judgment because she was unable to obtain expert testimony to rebut the doctor's affidavit given in support of his motion for summary judgment.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Kathy%20D%20Partee%20v%20Jaime%20Vasquez%20MD%20Opn.pdf

Sadly, this case demonstrates how important it is for a plaintiff to obtain counsel who is familiar with the law of medical malpractice. While I'm not saying that competent counsel would have won this case for the plaintiff, she certainly would have stood a much better chance had she been represented by competent counsel.