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.