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Tuesday, August 30, 2011

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.

Wednesday, August 24, 2011

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:

Friday, August 12, 2011

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:

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:

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:

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!

Tuesday, August 09, 2011

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
Here's a link to the opinion:

Saturday, August 06, 2011

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).

Tuesday, August 02, 2011


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: