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.)