Holiday Message from TDL

Merry (belated) Christmas!  Happy New Year too!

I hope 2014 is your best year yet.  May it bring you much joy and happiness.

Lastly, please enjoy the holidays with your family and friends.  You won't regret it.

Understanding Your Court System: A Guide to the Judicial Branch

The link below leads to a booklet in pdf format published by the Tennessee Supreme Court and the Tennessee Administrative Office of the Courts that explains the judiciary branch on the federal and state levels, to wit:

http://www.tsc.state.tn.us/sites/default/files/citizenbook-revised.pdf

New Opinion on Tennessee Code Annotated section 20-1-119, Which Is the Comparative Fault Joinder Statute

The Tennessee Court of Appeals just issued its opinion in Morris v. Phillips, No. M2013-00417-COA-R9-CV (Tenn. Ct. App. Dec. 17, 2013).  The summary from the opinion states as follows:

A multi-vehicle accident occurred in August 2010. The plaintiff initially named only one of the drivers involved in the accident along with the record owner of the driver’s vehicle. The record owner filed an answer identifying three other drivers/tortfeasors involved in the accident in December 2011, and the driver identified the same three individuals as tortfeasors in his answer that was filed seven months later, in July 2012. The plaintiff did not file an amended complaint adding the individuals identified as defendants until August 2012, which was more than 90 days after the first answer was filed. One of the individuals named as a defendant filed a motion to dismiss, arguing the plaintiff waited too late to add her as a defendant. The trial court denied the motion. The late-added defendant appealed, and we reverse the trial court’s judgment.

Here is a link to the opinion:

http://www.tba.org/sites/default/files/morrisk_121813.pdf

New Tennessee Supreme Court Opinion: Element of Duty in a Premises Liability Case

The Tennessee Supreme Court released its opinion in Cullum v. McCool, No. E2012-00991-SC-R11-CV (Tenn. Dec. 18, 2013).  The summary from the slip opinion states as follows:

The issue presented in this premises liability case is whether a store owes a duty to protect its customer from a visibly intoxicated customer who was ordered to leave the store by store employees. A store patron sued a store for negligence after she was struck and injured in the store’s parking lot by a vehicle driven by another store patron. Store employees had refused to fill the other patron’s medical prescriptions because they believed she was intoxicated; she became belligerent, and store employees ordered her to leave the store knowing that she was alone and would be driving her vehicle. In response to the lawsuit, the store filed a motion to dismiss, contending that it did not have a legal duty to control the intoxicated patron after she left the store. The trial judge granted the store’s motion to dismiss. The Court of Appeals reversed, finding that the store owed the injured patron a duty of care to protect her from the intoxicated patron. Taking the plaintiffs’ allegations as true and drawing all reasonable inferences in her favor, we hold that the foreseeability of harm and the gravity of harm to the injured patron outweighed the burden placed on the store to protect the patron against that harm. Therefore, the store patron’s complaint contains sufficient allegations which, taken as true, establish that the store owed a duty of care to the injured patron. The trial court erred by granting the motion to dismiss.

Here's a link to the majority opinion:

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

Justice Holder issued a separate opinion concurring in part and dissenting in part.  Here is a link to that opinion:

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

New Tennessee Supreme Court Opinion: Presuit Notices Extend Saving Statute in This Particular Health Care Liability Action

The Tennessee Supreme Court just released its opinion in Rajvongs v. Wright, No. M2011-01889-SC-S09-CV (Tenn. Dec. 12, 2013).  The summary from the slip opinion states as follows:

The plaintiff filed his initial health care liability action against the defendant prior to the enactment of the pre-suit notice requirements of Tennessee Code Annotated section 29-26-121. The plaintiff voluntarily dismissed his original action. More than one year later, the plaintiff refiled his action after the effective date of section 29-26-121. The defendant moved for summary judgment, alleging that the plaintiff’s second action was barred by the statute of limitations. The plaintiff countered that his pre-suit notice commenced his new action prior to the expiration of the one-year saving statute. Alternatively, the plaintiff argued that Tennessee Code Annotated section 29-26-121 extended the saving statute by 120 days. The trial court denied the defendant’s motion for summary judgment but granted permission to file an interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Appeals granted the application for permission to appeal and affirmed the trial court’s denial of the motion for summary judgment. We hold that the plaintiff’s action was commenced by the filing of a second health care liability complaint rather than by providing pre-suit notice. We further hold that a plaintiff who files his initial action prior to the effective date of Tennessee Code Annotated section 29-26-121, dismisses his original action, properly provides pre-suit notice, and refiles his action after the effective date of the statute, is entitled to the 120-day extension. We therefore affirm the judgment of the Court of Appeals and remand this case to the trial court for further proceedings.

Here is a link to the unanimous opinion:

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

Practice tip: Pay close attention to page 7 of this opinion.

This post is related to two prior posts: one from June 21, 2012; and the other from June 30, 2012.  Links to both are below:

http://theduncanlawfirm.blogspot.com/2012/06/medical-malpractice-saving-statute.html

http://theduncanlawfirm.blogspot.com/2012/06/medical-malpractice-saving-statute-not.html

Tony Duncan Named a 2013 Mid-South Super Lawyer

For the third year in a row, I have been named a Mid-South Super Lawyer.  I am on page 38 of the link below:

http://digital.superlawyers.com/superlawyers/taslrs13#pg20

I am humbled that I have been selected again.  It is truly an honor.

New Tennessee Supreme Court Case on Presuit Notices in a Health Care Liability Action

The Tennessee Supreme Court just issued its opinion in Stevens ex rel. Stevens v. Hickman Community Health Care Servs., Inc., No. M2012-00582-SC-S09-CV (Tenn. Nov. 25, 2013).  The summary from the opinion states as follows:

More than sixty days before filing suit, the plaintiff gave written notice to the potential defendants of her healthcare liability claim against them. Tenn. Code Ann. § 29-26-121(a)(2)(E) (2012) requires that a plaintiff’s pre-suit notice include a HIPAA compliant medical authorization that permits the healthcare provider receiving the notice to obtain complete medical records from every other provider that is being sent a notice. Contrary to the statute, the plaintiff provided a non-HIPAA compliant medical authorization that only permitted the release of medical records to plaintiff’s counsel. After the plaintiff filed suit, the defendants moved to dismiss the complaint based on noncompliance with Tenn. Code Ann. § 29-26-121(a)(2)(E). The trial court denied the motion, ruling that plaintiff’s noncompliance was excused by extraordinary cause. We hold that the plaintiff was required to substantially comply with Tenn. Code Ann. § 29-26-121(a)(2)(E) and failed to do so, and that her failure to comply is not excused by extraordinary cause. We dismiss the plaintiff’s case without prejudice.

Here's a link to majority opinion:

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

Justices Wade and Holder issued a separate partial concurrence and dissent.  That opinion is here:

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

Medical Malpractice Case: Another Case Dismissed for Failure to Comply with New Filing Requirements, Etc.

The Tennessee Court of Appeals recently released its opinion in Hailey v. Wesley of the South, Inc., No. W2012-01629-COA-R3-CV (Tenn. Ct. App. Nov. 19, 2013).  The summary of the opinion states as follows:

Plaintiff’s Complaint was dismissed for failure to comply with the requirements of the Medical Malpractice Act. The trial court denied Plaintiff’s second Motion to Alter or Amend, and Plaintiff appealed to this Court. We dismissed the appeal for lack of subject matter jurisdiction due to Plaintiff’s failure to timely file an appropriate notice of appeal.  Plaintiff then filed a third Motion to Alter or Amend in the trial court, which the trial court dismissed for lack of subject matter jurisdiction. Plaintiff filed a second appeal to this Court.  We dismiss the appeal for lack of subject matter jurisdiction.

Here's a link to the opinion:

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

This case also stresses the importance of appellate practice.

Federal Rule of Civil Procedure 45 Changes December 1, 2013

http://www.americanbar.org/newsletter/publications/youraba/201212article10.html

Health Care Liability Action (f.k.a. Medical Malpractice Action): New Opinion on Contiguous State Rule

The Tennessee Court of Appeals just released its opinion in Gilbert v. Wessels, No. E2013-00255-COA-R10-CV (Tenn. Ct. App. Nov. 18, 2013).  Here is the summary from the opinion:

This Court granted an extraordinary appeal in this health care liability action to determine whether the trial court abused its discretion in declining to waive the contiguous state requirement for a testifying expert witness set forth in Tennessee Code Annotated §29-26-115(b). Discerning no error, we affirm.

Here's a link to the opinion:

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

New Medical Malpractice Opinion on Presuit Notices

The Tennessee Court of Appeals just released its opinion in Shockley v. Mental Health Coop., Inc., No. M2013-00494-COA-R3-CV (Tenn. Ct. App. Nov. 4, 2013).  The summary from the opinion reads as follows:

The trial court dismissed Appellant’s medical malpractice and wrongful death case for failure to comply with the pre-suit notice requirement found in Tennessee Code Annotated Section 29-26-121(a). Appellant’s pre-suit notice contained a misnomer, naming the Appellee’s fundraising entity, rather than Appellee, as the proper defendant. The trial court determined that under the Tennessee Supreme Court’s holding in Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012), substantial compliance was not effective to satisfy the statutory requirement for pre-suit notice. Furthermore, because the type of notice required under Section 29-26-121 precedes the filing of the lawsuit, it is not the same type of notice as required for correction of misnomers in pleadings under Tennessee Rule of Civil Procedure 15.03; thus, this rule will not operate to cure the misnomer in the pre-suit notice. Because the Appellant failed to show extraordinary cause for failure to comply with the pre-suit notice, we affirm the trial court’s order dismissing this matter. Affirmed and remanded.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/shockleyt_110513.pdf

New Health Care Liability Action (f.k.a Medical Malpractice) Opinion

The Tennessee Court of Appeals issued its opinion today in Burchfield v. Renfree, No. E2012-01582-COA-R3-CV (Tenn. Ct. App. Oct. 18, 2013).  Here's the summary from the slip opinion:

This is a health care liability action wherein the trial by jury resulted in a judgment for the Defendant, Dr. Timothy Renfree. Plaintiffs, Larry and Dinnie Burchfield, filed this lawsuit against Dr. Renfree alleging that he negligently performed surgery on Mr. Burchfield’s right arm and caused nerve damage. After the jury returned its verdict in favor of Dr. Renfree, the Burchfields filed post-trial motions seeking relief from the judgment and alleging numerous errors in the administration of the trial. The trial court denied the post-trial motions and affirmed the jury’s verdict as thirteenth juror. The Burchfields appealed. We vacate the jury’s verdict, finding reversible error in the administration of the trial, and remand this matter to the trial court for further proceedings.

Here's a link to the forty-six-page opinion:

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

New Wrongful Death Case

The Tennessee Court of Appeals just issued its opinion in Rickman v. Rickman, No. M2013-00251-COA-R3-CV (Tenn. Ct. App. Oct. 14, 2013).  The summary of the opinion states as follows:

This case concerns whether the widow of a deceased man may share in the wrongful death settlement obtained by his personal representative. We conclude that the postnuptial agreement entered into by the widow prevents her from benefitting from the wrongful death settlement. Affirmed and remanded.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/rickmang_101613.pdf

New Health Care Liability Action (f.k.a. Medical Malpractice Case)

For some reason, I haven't posted this case yet; I'm not sure why other than I've just been busy.  On June 27, 2013, the Tennessee Court of Appeals, Eastern Section, issued its opinion in Foster v. Chiles, No. E2012-01780-COA-R3-CV (Tenn. Ct. App. Jun. 27, 2013).  The summary states as follows:

This is a health care liability case. Samuel E. Foster and his wife, Mary Foster,[] timely filed a complaint after properly sending pre-suit notices to the potential defendants as required by Tenn. Code Ann. § 29-26-121(a) (2012). After nonsuiting their first lawsuit, they timely filed a second complaint in which they alleged the same cause of action against the same defendants. The second complaint alleged compliance with section 121(a), citing the notices already properly sent before the first complaint was filed. The trial court dismissed the second complaint with prejudice based upon the court’s determination that plaintiffs failed to satisfy the notice requirement of section 121(a). We hold that plaintiffs complied with section 121(a)’s notice requirement by giving a written notice of their potential health care liability claim to each defendant at least 60 days prior to the filing of their second complaint.  We further hold that section 121 does not mandate dismissal with prejudice for noncompliance with its terms, and that plaintiffs’ inadvertent failure to file – with the second complaint – proof of their service of the subject notices does not warrant dismissal with prejudice. We vacate the trial court’s order of dismissal and remand for further proceedings.

(Footnote omitted.)

Here is a link to that slip opinion:

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

The Appellants-Defendants in the trial court filed an application for permission to appeal with the Tennessee Supreme Court on August 26, 2013.  Appellees-Plaintiffs filed their answer to same on Sept. 5, 2013.  Currently the case is before the Tennessee Supreme Court under Docket No. E2012-01780-SC-R11-CV.  The case history can be viewed at this link:

 http://www2.tncourts.gov/PublicCaseHistory/CaseDetails.aspx?id=57381&Party=True.

UPDATE: the Tennessee Supreme Court reversed the Tennessee Court of Appeals in this case on Jan. 27, 2015.  You can read about it at my Jan. 27, 2015 post, to wit:

 http://theduncanlawfirm.blogspot.com/2015/01/new-tennessee-supreme-court-opinion-on.html

New Medical Malpractice Opinion

Today the Tennessee Court of Appeals issued its opinion in Haley v. State of Tennessee, No. E2012-02484-COA-R3-CV (Tenn. Ct. App. Sept. 25, 2013).  The summary from the opinion states as follows:

This is a medical malpractice case.[] The plaintiff filed a claim with the Division of Claims administration, as the resident physician alleged to have engaged in negligence was purportedly connected to a University of Tennessee training program at Erlanger Hospital in Chattanooga, Tennessee. The State moved the Commissioner to dismiss the plaintiff’s action for failure to comply with the requirements set out in Tennessee Code Annotated section 29-26-121(a). The Commissioner reluctantly agreed with the State’s position. We hold that the plaintiff complied with section 121(a)’s notice requirement by complying with the claim notice requirements of Tennessee Code Annotated section 9-8-402. We further hold that section 121 does not mandate dismissal with prejudice for noncompliance with its terms, and that the plaintiff’s failure to provide all the items denoted in section 121(a) does not warrant dismissal with prejudice under the facts of this case. We vacate the dismissal order and remand for further proceedings.

(Footnote omitted.)

Here's a link to the opinion:

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

How Many Die from Medical Mistakes in U.S. Hospitals?

It's estimated to be nearly 210,000 a year.  Please see link to the article below.

http://www.scientificamerican.com/article.cfm?id=how-many-die-from-medical-mistakes-in-us-hospitals

New Tennessee Supreme Court Opinion on Service of Process: Lack of Prompt Return of Proof of Service Does Not Require Dismissal of a Civil Action

The Tennessee Supreme Court issued its opinion today in Fair v. Cochran, No. E2011-00831-SC-R11-CV (Tenn. Sept. 12, 2013).  The summary from the opinion states as follows:

We granted this appeal to determine whether the return of proof of service of process 412 days after issuance of a summons precludes a plaintiff from relying upon the original commencement of the lawsuit to toll the running of the statute of limitations. We hold that the plain language of Tennessee Rules of Civil Procedure 3 and 4.03 does not condition the effectiveness of the original commencement to toll the statute of limitations upon the prompt return of proof of service. We reverse the judgment of the Court of Appeals affirming the trial court’s dismissal of the plaintiff’s lawsuit. We remand this case to the trial court to determine whether service of process occurred within ninety days of issuance of the summons. If so, the plaintiff may rely upon the original commencement of the lawsuit to toll the statute of limitations.

Here is a link to the majority opinion:

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

Here is a link to Justice Holder's concurrence:

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

In all candor, the plaintiff's lawyer in this appeal was nice enough to let me write the supplemental brief and argue this case before the Tennessee Supreme Court (which I asked him to let me do).  I wanted to take this opportunity to thank him.  Thanks Mike!

September 11, 2001

Twelve years ago today we were attacked by cowards who killed our fellow Americans.  Never---never!---forget what happened.  

May God continue to bless America!

New Tennessee Supreme Court Products Liability Case: Jury Verdict for Minor Plaintiff Reinstated

Yesterday the Tennessee Supreme Court issued its opinion in Meals ex rel. Meals v. Ford Motor Co., No. W2010-01493-SC-R11-CV (Tenn. Aug. 30, 2013).  The summary from the opinion reads as follows:

A six-year-old boy’s spine was fractured in a car wreck when the force of the impact caused him to jackknife over his lap seatbelt and pushed the seatbelt into his stomach and against his spine. The child’s mother filed suit on his behalf against Ford Motor Company (“Ford”), alleging that the defective design of the seatbelt and Ford’s failure to warn of a potential danger caused the child’s permanent paralysis and other enhanced injuries. A jury returned a $43.8 million verdict for compensatory damages, finding Ford to be 15% at fault and two non-parties 85% at fault. Ford’s share of the verdict, based on its degree of fault, was $6,570,000. The jury awarded no punitive damages. Ford moved for a new trial, arguing that the verdict was excessive. The trial court denied the motion for new trial and affirmed the verdict in its capacity as thirteenth juror. The Court of Appeals, in a divided opinion, ruled that the verdict was excessive and remanded to the trial court with a suggestion of remittitur from $43.8 million to $12.9 million, a 70.55% reduction. The suggested remittitur, if the plaintiff accepted it, would reduce Ford’s share of the verdict to $1,935,000. Meals ex rel. Meals v. Ford Motor Co., No. W2010-01493-COA-R3-CV, 2012 WL 1264454, at *18- 21 (Tenn. Ct. App. Apr. 13, 2012). We hold that the Court of Appeals had the authority to suggest a remittitur even though Ford did not request a remittitur. We further hold that the Court of Appeals erred in remitting the verdict to $12.9 million. Having taken the strongest legitimate view of all the material evidence in favor of the verdict, assuming the truth of all that supports it, allowing all reasonable inferences, and discarding any to the contrary, we hold that the jury’s verdict was supported by material evidence and was within the range of reasonableness. The judgment of the Court of Appeals is reversed and the jury’s verdict is reinstated.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/mealsaundreyopn_0.pdf

Medical Malpractice: Toledo Hospital Threw Out Donor Kidney, Now Denies Negligence

http://abcnews.go.com/Health/toledo-hospital-threw-donor-kidney-now-denies-negligence/story?id=20110334

Premises Liability: Summary Judgment for Defense Reversed!

The Tennessee Court of Appeals recently issued its opinion in Parker v. Holiday Hospitality Franchising, Inc., No. E2013-00727-COA-R3-CV (Tenn. Ct. App. Aug. 27, 2013).  The summary from the slip opinion states as follows:

This is a premises liability case in which Plaintiffs alleged that a shower bench in Hotel collapsed, causing Husband to fall and sustain injuries. Plaintiffs filed suit against Defendant, claiming negligence. Defendant filed a motion for summary judgment, asserting that he did not install the bench and did not have actual or constructive notice of the independent contractor’s negligent installation of the bench. The trial court granted the motion for summary judgment and dismissed the case. Plaintiffs appeal. We reverse the decision of the trial court and remand for further proceedings.

Here's a link to the opinion:

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

New Medical Malpractice Opinion

The Tennessee Court of Appeals issued its opinion today in Young v. Kennedy, No. W2012-00836-COA-R3-CV (Tenn. Ct. App. Aug. 13, 2013).  The summary from the opinion states as follows:

This case involves the application of the medical malpractice statute of limitations. The trial court granted summary judgment to the defendant doctor, finding that the statute of limitations defense was not waived by her failure to raise it in her first pre-answer motion, that the defense was sufficiently pleaded, and that the undisputed facts in the record supported a finding that the statute of limitations had expired at the time of filing the initial complaint. Affirmed and remanded.

Here is a link to the opinion:

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

53 Rules to Help Witnesses Survive a Deposition

I like the suggestions at the link below.  Hope you do too.

http://cleblog.nbi-sems.com/2012/06/how-to-help-witnesses-survive-a-deposition/

No link between tort reform, reduced defensive medicine.

Study: No link between tort reform, reduced defensive medicine.

The Insurance Journal (8/7, 18K) reports that a study in the August Health Affairs "found no consistent relationships" between "physicians' level of malpractice concern with objective state-level indicators of malpractice liability risk." Instead, "physicians' perception of their risk...predicts their practice of defensive medicine," suggesting "that traditional malpractice reforms, such as caps on damages, don't change how physicians practice." Unlike previous studies that "focused on physician self-reports of how they would treat hypothetical patients," this study used Medicare claims data to examine doctor's actual behavior.

This article just reaffirms the fact that a one-size-fits-all "remedy" (i.e., caps on damages) is contrary to our Constitutional principles and is nothing more than another corporate bailout for insurors and big business that don't want to be called out on the rug in front of a jury to answer for something they did wrong.

New Tennessee Medical Malpractice Case

The Tennessee Court of Appeals just issued its decision in Groves v. Colburn, No. M2012-01834-COA-R3-CV (Tenn. Ct. App. Jul. 30, 2013).  The summary reads as follows:

Plaintiff filed a complaint against a hospital in which she asserted claims for medical malpractice and wrongful death. She later amended her complaint to add a party and did not contemporaneously file a certificate of good faith. The trial court dismissed the second complaint with prejudice based upon the court’s determination that plaintiff failed to satisfy the requirements of Tenn. Code Ann. § 29-26-122. We affirm the trial court.

Here is a link to the opinion:

https://www.tba.org/sites/default/files/grovesa_073113.pdf

Data Bank Guide for Reporting Medical Malpractice Payments to the NPDB

Here is a very helpful link on the subject, to wit:

http://www.npdb-hipdb.hrsa.gov/resources/brochures/mmprGuidance.jsp

Here is a very helpful flowchart, too, to wit:

http://www.npdb-hipdb.hrsa.gov/resources/brochures/ReportingGuidance-MedicalMalpracticePayments.pdf

Study: TN Holds Highest Percentage of Cell Phone Driving Deaths

http://www.wbir.com/news/article/281774/2/Study-TN-holds-highest-percentage-of-cell-phone-driving-deaths

Firm News: Here Is a Story About a Case Tony Duncan Law Just Filed in Knox County, Tennessee

http://northknox.wbir.com/news/news/615812-12-million-lawsuit-filed-cable-workers-death

Medicare Recovery Process as to Personal Injury Claims

https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Attorney-Services/Downloads/Beneficiary-NGHP-Recovery-Process-Flowchart.pdf
.

Lawyers Protect Us All!

This is a YouTube clip from the Georgia Trial Lawyers Association.  It shows why lawyers are needed to keep us all safe.  Here's the clip:

http://www.youtube.com/v/kKQUmvKrrms?fs=1

Tennessee Hospital Costs per Inpatient Services

This article is from the The Tennessean this morning, to wit:

http://data3.tennessean.com/view-database/tennessee-hospital-costs-per-inpatient-services-943.html

It has some useful information on there.  I just thought I'd share.

George Zimmerman Found to Be Not Guilty!

My wife and I just watched the verdict on CNN.  I must admit I didn't watch a lot of the trial (been too busy), but I did tell my wife that I thought the jury would acquit him.  Here's a link to CNN's story on the verdict: http://www.cnn.com/2013/07/13/justice/zimmerman-trial/index.html?hpt=hp_t1.

Keep in mind that the verdict doesn't mean he's "innocent" per se, it just means the jury found him to be "not guilty" because the State of Florida did not prove its case beyond a reasonable doubt (which is a constitutional check in place to protect all citizens accused of a crime: you, me, family members, friends, etc.). 

However, I predict Mr. Zimmerman's legal troubles are not over, either.  He will most certainly face a wrongful death lawsuit by the family of Trayvon Martin.  And in that case, which will be for a money judgment only, the burden of proof will be by a preponderance of the evidence, which is a lower burden than beyond a reasonable doubt in his criminal case. 

Keep a watch and see what happens; and see if my prediction about the wrongful death suit is correct.  However, if Mr. Zimmerman doesn't have a lot of assets---or if he doesn't get any money from a book deal or interviews---the wrongful death lawsuit may not be filed; only time will tell.

Thanks for reading.

Tractor Trailer Cases

Tractor trailer cases are different than motor vehicle collision cases where noncommercial vehicles are involved (i.e., cars, trucks, motorcycles, etc.).  Does that matter?  Of course!  You need a lawyer familiar with the applicable law (which are federal and state laws).  Lawyers who do not focus their practice on tractor trailer cases are just not familiar with the applicable laws; what to look for; what questions to ask defendants, etc.  That's why it's important to select a competent lawyer to handle your tractor trailer case.  Here at Tony Duncan Law, we focus part of our practice on tractor trailer cases.  If we can ever assist you, please don't hesitate to contact us at www.tonydlaw.com.

The Declaration of Independence

Every Fourth of July (or around this time), I post this video to my blog.  Here it is again:

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

Happy Fourth everyone!

New Laws Effective in Tennessee on July 1, 2013

Here is a list of the new laws that go into effect at midnight tonight, to wit:

http://www.capitol.tn.gov/legislation/publications/effective%207_1_2013.pdf

New Tennessee Supreme Court Opinion: Affirmative Defense of Statute of Repose Must Be Pleaded in a Timely Manner or It Is Waived

The Tennessee Supreme Court released its opinion yesterday in Pratcher v. Methodist Healthcare Memphis Hosp., No. W2011-01576-SC-S09-CV (Jun. 28, 2013).  The summary of the opinion states as follows:

The primary issue in this interlocutory appeal is whether the Tennessee health care liability statute of repose, Tenn. Code Ann. § 29-26-116(a)(3) (2012) (“the statute of repose”), is an affirmative defense under Tenn. R. Civ. P. 8.03, that is waived if not raised in a timely manner. Sandra Y. Jones Pratcher died following complications that arose on December 4, 1999, when she received anesthesia before undergoing a cesarean section. On December 1, 2000, her husband, Eddie C. Pratcher, Jr., (“Plaintiff”) filed suit against various health care providers, including Consultants in Anesthesia, Inc. (“Defendant”) and one of its nurse anesthetists. Plaintiff alleged that Defendant, which contracted with the hospital to provide anesthesia services to its obstetric patients, was vicariously liable for the negligent acts of its nurse anesthetist. Plaintiff amended his complaint on March 3, 2006, to assert that Defendant was also vicariously liable for the negligent actions of its corporate owner and president, Dr. Chauhan, who was on call on December 4, 1999, but failed to come to the hospital to administer anesthesia to Plaintiff’s wife. Plaintiff amended his complaint two more times and each time asserted that Defendant was vicariously liable for the negligent acts of Dr. Chauhan. Defendant did not raise the statute of repose as a defense to the vicarious liability claim based on Dr. Chauhan’s alleged negligence. After the jury returned a verdict for all defendants, the trial court set aside the verdict based on an error in the verdict form and its disapproval of the verdict as thirteenth juror. After the trial court granted a new trial as to all parties, Defendant moved to dismiss the case based on the statute of repose and to amend its answer to assert a statute of repose defense. The trial court ruled that Defendant had waived the statute of repose defense and denied the motions. We hold that (1) the running of the statute of repose does not deprive the trial court of subject matter jurisdiction; and (2) as Rule 8.03 explicitly states, the statute of repose is an affirmative defense. Defendant failed to timely raise the statute of repose as an affirmative defense. Therefore, the trial court did not abuse its discretion by denying Defendant’s posttrial motion to amend its answer to assert the statute of repose as a defense. The judgment of the trial court is affirmed.

Here is a link to the majority opinion:

http://www.tncourts.gov/sites/default/files/pratchereddie.opn_1.pdf

Here is a link to the dissent:

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

Expert Qualifications in a Medical Malpractice Case: Another Post-Shipley Opinion

The Court of Appeals issued its opinion in Ray v. Southern Tennessee Medical Center, LLC, No. M2012-01227-COA-R3-CV (Jun. 25, 2013).  The summary states as follows, to wit:

 In this medical malpractice action, the jury entered a verdict in favor of the defendant doctor. On appeal, the plaintiff argues that the trial court erred in allowing a medical expert witness [(for the recently released defendant)] to testify [(for another defendant)]. We find no error in the trial court’s decision.

(Editorial comment added in bracketed parentheticals.) 

This opinion offers a good discussion of expert-witness qualifications in a medical malpractice case post-Shipley.  It is a must-read for the practitioner in my opinion.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/rayw_062613.pdf

Please keep in mind, too, that these types of cases are now called "health care liability actions" instead of "medical malpractice action."  See Tenn. Code Ann. § 29-26-101 (Westlaw 2013).  This case, however, was not affected by that change (because the change in the law happened after this case arose or "accrued").

Tennessee State Court Rule Changes Effective July 1, 2013

The rule changes below, which affect the Tennessee Rules of Civil Procedure, Evidence, and Appellate Procedure go into effect July 1, 2013, to wit:

Tenn. R. Civ. P.:

http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_tn_rules_of_civil_procedure_-_effective_7-1-2013.pdf

Tenn. R. Evid.:

http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_tn_rules_of_evidence_-_effective_7-1-2013.pdf

Tenn. R. App. P.:

http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_tn_rules_of_appellate_procedure_revised_-_effective_7-1-2013_0.pdf

http://www.tncourts.gov/sites/default/files/order_revising_amendment_to_tenn_r_app_p_3.pdf

And it is customary (although not required per se) for the General Assembly to approve the Tennessee Supreme Court's proposed rule changes.  Below is a link to the General Assembly's Resolutions that approve the rule changes referenced above, to wit:

Tenn. R. Civ. P.:

http://tnsos.org/acts/108/resolutions/sr0012.pdf

http://tnsos.org/acts/108/resolutions/hr0036.pdf

 Tenn.  R.  Evid.:

http://tnsos.org/acts/108/resolutions/sr0010.pdf

http://tnsos.org/acts/108/resolutions/hr0032.pdf

Tenn. R. App. P.:

http://tnsos.org/acts/108/resolutions/sr0013.pdf

http://tnsos.org/acts/108/resolutions/hr0035.pdf

Tennessee Wrongful Death Cases

Wrongful death cases can be difficult (aside from the family's obvious loss) because they are not "typical" personal injury claims.  They are a creature of statute (Tennessee's version of an English law called Lord Campbell's Act). And they are handled differently under the law.

Further, was the loss caused by a motor-vehicle collision?  Was a tractor-trailer involved?  (This changes things a little.)  Was it due to medical malpractice (n.k.a. a health care liability action)? 

All these questions and many more are why you need to hire a lawyer who has handled cases like this before.  We have at Tony Duncan Law.  If you have any questions about a possible wrongful death claim, please, do not hesitate to contact us at (615) 620-4471 or info@tonydlaw.com.

Here's a link to the firm Web site, too, to wit:

 http://www.tonydlaw.com

Thanks!

Oklahoma Supreme Court Strikes Down Affidavits of Merit as Unconstitutional

The Oklahoma Supreme Court struck down affidavits of merit in professional negligence cases as unconstitutional in Wall v. Marouk, No. 109, 005 (Okla. Jun. 4, 2013).  Here's a link to the PDF slip opinion, to wit:

 http://sm-oklaw.com/sm-oklaw/assets/File/20130604092009671.pdf.

Or view it at this alternate link:

 http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=469531.

New Opinion on Personal-injury Claims in Bankruptcy

Today the Tennessee Court of Appeals, Western Section, issued its opinion in Lane v. Daniel, No. W2012-01684-COA-R3-CV (Tenn. Ct. App. May 29, 2013).  The summary from the opinion reads as follows:

This case involves the application of the statute of limitations to an intervening personal injury complaint filed by a bankruptcy trustee after the defendants asserted that the original plaintiff, the debtor in the bankruptcy proceeding, lacked standing to bring the claim. Once the bankruptcy trustee became aware of the claim, he filed a motion for intervention, or in the alternative, for substitution pursuant to Rule 17.01 of the Tennessee Rules of Civil Procedure. The trial court granted the trustee’s motion and the trustee later filed an intervening complaint. The trial court, however, later dismissed the case, reasoning that because the first complaint was filed by a party without standing, the original complaint was a nullity. Under this theory, the trial court concluded that the action was commenced upon the filing of the trustee’s intervening complaint, which was undisputedly outside the applicable statute of limitations. Having determined that the plaintiff’s original complaint was not a nullity, we conclude that the trustee’s intervening complaint relates back to the original complaint and, thus, was filed within the applicable statute of limitations.  Accordingly, we reverse and remand.

Here's a link to the opinion:

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

Medical Malpractice (n.k.a. Health Care Liability Action): Tennessee Supreme Court Holds That 120-day Extension of the Statute of Limitations Does Not Apply to Governmental Entities

The Tennessee Supreme Court just decided Cunningham v. Williamson Cnty. Hosp. Dist., No. M2011-00554-SC-S09-CV (Tenn. May 9, 2013).  The summary of the opinion reads as follows:

A husband and wife filed a claim against a county hospital alleging that the negligence of the hospital and its employees caused the death of their son. The claim was filed approximately fifteen months after their son’s death in accordance with the provisions of the Tennessee Medical Malpractice Act. See Tenn. Code Ann. § 29-26-121 (2012). The county hospital, a governmental entity, filed a motion to dismiss, arguing that the claim was filed outside the one-year statute of limitations of the Governmental Tort Liability Act (“GTLA”). Tenn. Code Ann. § 29-20-305(b) (2012). The couple responded that their complaint was timely filed because Tennessee Code Annotated section 29-26-121(c) extended the GTLA statute of limitations by 120 days. The trial court denied the hospital’s motion to dismiss but granted an interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Appeals granted the Rule 9 application and affirmed the trial court’s denial of the hospital’s motion to dismiss. We granted the hospital permission to appeal. We hold that the 120-day extension provided by Tennessee Code Annotated section 29-26-121(c) does not apply to the plaintiffs’ claim brought under the GTLA. We therefore reverse the judgment of the trial court denying the hospital’s motion to dismiss and remand the case to the trial court for entry of an order dismissing Mr. and Mrs. Cunningham’s complaint.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/cunninghamwopn_0.pdf

NOTE: This is a follow-up post to my Dec. 1, 2012 one.  Please see that one too.

Moreover, this is a must-read opinion for any lawyer who handles health care liability actions (f.k.a. medical malpractice actions) against governmental entities.  It may, however, only be applicable to cases that accrued before October 1, 2011, which can be discerned from a careful reading of the opinion.  

Medical Malpractice (a.k.a. Health Care Liability Action): Plaintiff's Case Dismissed Due to Insufficiency of Service of Process

The Tennessee Court of Appeals just issued its opinion in Milton v. Etezadi, No. E2012-00777-COA-R3-CV (Tenn. Ct. App. May 3, 2013). The summary from the opinion states as follows:

This case presents the issue of whether proper service of process was accomplished regarding the defendant, Saeed Etezadi, M.D. Plaintiff, Will J. Milton, filed a medical malpractice action against Dr. Etezadi on April 14, 2003. The complaint and summons were served upon Dr. Etezadi’s office manager, with a notation appearing on the summons that service was accepted as “agent.” Dr. Etezadi filed an answer which, inter alia, raised the affirmative defense of insufficiency of service of process. Mr. Milton voluntarily dismissed that action and subsequently re-filed within one year of the non-suit. In connection with the second action, the complaint and summons were allegedly served upon Dr. Etezadi at his office. Dr. Etezadi filed an Answer, again raising the affirmative defense of insufficiency of service of process. Dr. Etezadi also asserted that all applicable statutes of limitation and repose had expired. He later filed a motion to dismiss. Following the hearing, the trial court dismissed the claims against Dr. Etezadi, finding that there was no service of process in either action.  Mr. Milton appeals. We affirm.

Here's a link to the opinion:

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

Medical Malpractice: Pre-suit Notice Provision Held to Be Constitutional by Tennessee Court of Appeals, Part II

This post should be read in conjunction with my April 17, 2013 post.  The Tennessee Court of Appeals, Western Section, has once again held that Tennessee's statutory pre-suit notice requirement in medical malpractice actions (n.k.a. health care liability actions) is constitutional, inter alia, in Williams v. SMZ Specialists, P.C., No. W2012-00740-COA-R9-CV (Tenn. Ct. App. Apr. 19, 2013). The summary of the opinion states as follows:

This appeal involves a constitutional challenge to T.C.A. § 29-26-121, which requires notice to defendants prior to the commencement of a health care liability lawsuit. The plaintiff filed a lawsuit asserting health care liability against the defendant health care providers within the applicable statute of limitations, but without providing the defendants with prior notice as required under Section 29-26-121. In ruling on the defendants’ motion for summary judgment, the trial court held that Section 29-26-121 conflicted with Rule 3 of the Tennessee Rules of Civil Procedure. On this basis, it held that the statute infringed upon the authority of the judicial branch to enact rules governing the procedures for commencing a lawsuit, and thus violated the separation of powers clause of the Tennessee Constitution. the defendant health care providers were granted permission for this interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. We reverse, holding that pre-lawsuit notice requirement in Section 29-26-121 does not contravene the separation of powers clause of the Tennessee Constitution.

Here's a link to the opinion:

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

Representing Badly Injured Children in Personal Injury Cases

Representing badly injured children is no easy task.  These types of cases are not "cookie-cutter" type cases and must be handled by a competent attorney.  Our firm enjoys helping injured children; and some of the methods we employ in representing badly injured children is as follows:

• Age progression technology to demonstrate how a child's injuries will affect him or her in the future (this can be used at mediation or trial);
• We work closely with other professionals to ensure that any settlement or award we obtain for a child will not disqualify him or her for any form of governmental assistance; and
• We know the law as it relates to children's personal injury claims and how it affects them.

We can be reach at (615) 620-4471 to discuss, free-of-charge, an injury to your child.  Please call us if you have any questions.

Medical Malpractice: Pre-suit Notice Provision Held to Be Constitutional by Tennessee Court of Appeals

The Tennessee Court of Appeals, Western Section, has held that Tennessee's statutory pre-suit notice requirement in medical malpractice actions (n.k.a. health care liability actions) is constitutional, inter alia, in Webb v. Roberson, No. W2012-01230-COA-R9-CV (Tenn. Ct. App. Apr. 17, 2013).  The summary of the opinion states as follows:

In this interlocutory appeal, Plaintiffs challenge the constitutionality of Tennessee Code Annotated section 29-26-121, which requires a medical malpractice claimant to provide certain notice sixty days prior to filing suit. We conclude that Tennessee Code Annotated section 29-26-121 is not an unconstitutional infringement upon the courts’ rule-making authority, that it is not preempted by HIPAA, and that it does not violate the equal protection and due process provisions of state and federal law. Affirmed and Remanded.

Here's a link to the opinion:

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

You can bet that a Tenn. R. App. P. 11 application for permission to appeal will be filed with the Tennessee Supreme Court within sixty days; and that the Court will probably take it up.

A Good Federal Resource: United States Attorneys' Manual

I found this while working on a federal case.  It's a useful tool on the civil and criminal side of the docket in federal courts.  See link below:

http://www.justice.gov/usao/eousa/foia_reading_room/usam/

Plaintiffs' Case Dismissed via Summary Judgment Because Their Expert Did Not Meet the Newly Defined Expert Witness Requirements Announced by the Tennessee Supreme Court in Shipley v. Williams

The Tennessee Court of Appeals, Western Section, just issued its opinion in Mitchell ex rel. Mitchell v. The Jackson Clinic, P.A., No. W2012-00983-COA-R3-CV (Tenn. Ct. App. Apr. 9, 2013).  The summary states as follows:

This is a medical malpractice case. The trial court granted summary judgment to Appellees, the doctors and clinic, on the basis that the Appellants’ only expert witness was not competent to testify pursuant to the Tennessee Medical Malpractice Act, Tennessee Code Annotated Section 29–26–115. Appellants appeal, arguing that the trial court erred in excluding their expert. Under the Tennessee Supreme Court’s holding in Shipley v.Williams, 350 S.W.3d 527 (Tenn. 2011), we affirm the trial court’s exclusion of the expert’s testimony and its grant of summary judgment. Affirmed and remanded.

(Footnote omitted.)

Here's a link to the slip opinion:

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

A HIPAA Resource

I found this will looking on CMS's Web site and thought it would be helpful to share.  See the link below:

http://www.cms.gov/Regulations-and-Guidance/HIPAA-Administrative-Simplification/HIPAAGenInfo/Downloads/HIPAALaw.pdf

Tennessee Court of Appeals Affirms Trial Court's Dismissal of Medical Malpractice Case Due to Plaintiff's Counsel's Failure to Comply with New Tort "Deform" Law

The Tennessee Court of Appeals recently affirmed a trial court's dismissal of a plaintiff's medical malpractice case (n.k.a. a "health care liability action") due to the plaintiff's counsel's failure to comply with the new tort "deform" law.  The case is Vaughn v. Mountain States Health Alliance, No. E2012-01042-COA-R3-CV (Tenn. Ct. App. Mar. 5, 2013).  The summary from the slip opinion states as follows:

The plaintiff filed a medical malpractice action against numerous healthcare providers. The defendants moved to dismiss the complaint based on the plaintiff’s failure to comply with Tennessee Code Annotated sections 29-26-121 and -122. The trial court granted the motions and dismissed the action with prejudice. The plaintiff appeals. We affirm.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/vaughnp_030513.pdf

New Tennessee Supreme Court Case: Jury Verdict Against Assisted Living Facility Reinstated on Appeal

The Tennessee Supreme Court issued its opinion in Wilson v. Americare Sys., Inc., No. M2011-00240-SC-R11-CV (Tenn. Feb. 25, 2013).  The summary of the opinion goes as follows:

The issue presented is whether the jury verdict against the management company of an assisted living facility for negligence based on understaffing is supported by material evidence. Mable Farrar’s physician prescribed Ms. Farrar a dailydose of an over-the-counter medicine for constipation. The nursing staff at the assisted living facility where Ms. Farrar lived did not give the medicine to her as often as prescribed. As a result, Ms. Farrar became constipated and returned to see her doctor. Ms. Farrar’s doctor notified the nursing staff at the assisted living facilityto give Ms. Farrar three to four enemas each day beginning on May 27, 2004. A facility nurse gave Ms. Farrar one enema on the evening of May 27, none on May 28, and one enema on the evening of May 29. Very soon after receiving the last enema on May 29, Ms. Farrar died from a perforated colon. Her daughters filed a wrongful death action against the nurse who gave the enema, the director of nursing at the assisted living facility, the owner of the facility, and its management company. The suit alleged that the negligence of the staff, the owner, and its management company caused Ms. Farrar’s death. The jury returned a verdict finding the nurse thirty percent at fault, the director of nursing twenty percent at fault, and the management company fifty percent at fault based on its failure to provide sufficient personnel at the facility. The management company appealed. The Court of Appeals reversed the jury verdict against the management company, finding that there was no material evidence that staffing deficiencies proximately caused Ms.Farrar’s death. We hold that the jury’s verdict was supported by material evidence. Accordingly, we reverse the decision of the Court of Appeals and remand the case to the Court of Appeals for review of the award of punitive damages.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/wilsonrheaetta.opn_.pdf

Medical Malpractice: Claim Against Hospital Dismissed Due to Plaintiff's Counsel's Failure to Comply with Tennessee Medical Malpractice Act

The Tennessee Court of Appeals issued its opinion in Caldwell v. Vanderbilt Univ., No. M2012-00328-COA-R3-CV (Tenn. Ct. App. Feb. 20, 2013).  The summary from the slip opinion states as follows:

Plaintiff filed suit against Vanderbilt University Medical Center for injuries she sustained during an MRI scan. The trial court held that the complaint stated a claim for medical malpractice and dismissed the complaint for failure to comply with the Tennessee Medical Malpractice Act (“TMMA”). Plaintiff appeals, asserting the complaint sounded in common law negligence and, alternatively, that the documents she filed complied with the TMMA.  We affirm the trial court

Here is a link to the opinion, to wit:

 https://www.tba.org/sites/default/files/caldwellj_022113.pdf 

Comparative Fault: Discovery Responses Do Not Trigger Tenn. Code Ann. § 20-1-119

The Tennessee Court of Appeals (Western Section) recently released its opinion in Shaffer v. Memphis Airport Auth., No. W2012-00237-COA-R9-CV (Tenn. Ct. App. Jan. 18, 2013).  The summary from the slip opinion states as follows:

This interlocutory appeal involves comparative fault and amending to add a defendant.  The plaintiff suffered slip-and-fall injuries at the defendant airport. The day before the statute of limitations ran, the plaintiff filed this lawsuit against the airport, alleging negligence. The airport’s answer asserted comparative fault but did not identify an additional tortfeasor. In later discovery, the airport identified its janitorial service. The plaintiff amended her complaint to add the janitorial service as a defendant, citing T.C.A.§ 20-1-119. The defendant janitorial service filed a motion to dismiss, citing the statute of limitations. The trial court declined to dismiss the claims against the janitorial service, holding that the disclosure of the identity of the janitorial service in discovery triggered the 90-day statutory period under Section 20-1-119 in which the plaintiff is permitted to amend the complaint to add a defendant. We reverse, holding that, by the express terms of Section 20-1-119, the statutory 90-day period is not triggered by a defendant’s response to a discovery request.

Here's a link to the opinion:

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

Facebook Fights in Court to Protect User Content

Please read story at this link:

http://www.oregonlive.com/portland/index.ssf/2013/01/facebook_argues_to_protect_use.html#incart_m-rpt-2

Seventh Anniversary!

This month marks the seventh anniversary of this blog (first post was in January 2006).  I want to say thank you to all of my readers.  Your patronage, along with your nice comments and emails, are greatly appreciate.

The SMART Act

Here's a link to the new SMART Act, to wit:

http://images.magnetmail.net/images/clients/ATLA/attach/SMARTAct_final.pdf