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Thursday, January 27, 2011

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:

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).

Wednesday, January 26, 2011

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:

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

Thursday, January 20, 2011

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:

Friday, January 07, 2011

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:

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.