Civil Procedure: The Motion to Revise

Q: How do you go about making changes to an interlocutory order in a Tennessee state court civil action?

A: File a motion to revise. Tenn. R. Civ. P. 54.02 (stating that interlocutory orders are subject to revision at any time prior to entry of judgment).

Please note that final orders are subject to revision under different rules. Tenn. R. Civ. P. 59 & 60.

Here's a link to the Tennessee Rules of Civil Procedure:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/TNRulesOfCourt/civlproindex.htm

Medical Malpractice: Summary Judgment for Defendants Reversed on Appeal

The Western Section of the Tennessee Court of Appeals just released its opinion in Nabors v. Adams, No. W2008-02418-COA-R3-CV (Tenn. Ct. App. July 23, 2009). The trial court granted the defendants' motion for summary judgment due to the plaintiff's expert's unfamiliarity with the Memphis, Tennessee medical community (as was required by the locality rule) during his deposition. The plaintiff moved to amend the trial court's judgment under Rule 59.04 of the Tennessee Rules of Civil Procedure with a curative affidavit from her expert, which was denied by the trial court. The appeal followed.

The Court of Appeals held that the affidavit cured the problems with the plaintiff's expert's testimony and that the trial court abused its discretion in not reversing the grant of summary judgment to the defendants.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Samantha%20Nabors%20v%20William%20M%20Adams,%20MD%20OPN.pdf

Walter Cronkite

This post has nothing to do with the law and everything to do with a kid who grew up in the '70s and '80s watching Walter Cronkite on television (i.e., me). He was THE news for my family and me.

I once heard someone say, "If Walter didn't say it happened, it didn't happen!" He would come into our living room every night and talk to us about the news and we took what he said as dead-on accurate --- because it was! After all, he was "the most trusted man in America."

Good bye, Mr. Cronkite. You'll be missed. I wish there were more out there like you.

More on Out-of-state Depositions

http://www.abanet.org/yld/litigation/lit101pdf/Wilkins.pdf

Out-of-State Depositions

Here's an interesting article that I found while doing some research over the weekend, to wit:

Victoria C. Fitlow, How to Take an Out-of-State Deposition, Utah B.J., Feb./Mar. 2001.

I apologize for the cite not being complete in that there's no page number for the first page of the article. I couldn't find one in the online version; nor could I find one in PDF or another version that had been scanned and placed online from the actual magazine (which would have shown a beginning page number).

While it's written from the perspective of a Utah lawyer, there's some good information in there (even though it might be a little dated because it was written in 2001). Even if you don't practice in Utah, it can help point you in the right direction.

Here's the link to the article:

http://www.utahbar.org/sites/litigation/how_to_take_out_of_state_depositions.html

The Declaration of Independence

I watch this every year at this time, to wit:

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

http://www.youtube.com/watch?v=ZxTvS-kyHzs

Turn the volume up and have a great Fourth!

Medical Malpractice: New Legislation III

The new medical malpractice legislation goes into effect today. Here's an article from the Tennessee Bar Journal, which is authored by John Day, that explains the ins and outs of the new law. The article is a must-read for the medical malpractice practitioner.

Here's the link:
http://www.tba.org/journal_new/index.php/component/content/article/300?ed=20

Tennessee Legislative History

Oftentimes, when a statute is ambiguous, a determination must be made as to the legislative intent behind it to construe the law. This link provides you with information needed to research legislative history in Tennessee, which will assist you in determining the legislative intent behind a law.

Here's the link:

http://state.tn.us/tsla/legislative.htm

More Problems at a VA Hospital

Here's a link to a story from yesterday's New York Times, to wit:

http://www.nytimes.com/2009/06/21/health/21radiation.html?pagewanted=1&_r=1&ref=todayspaper

Medical Malpractice, Wrongful Death & Bankruptcy

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Gordon ex rel. Gordon v. Draughn, No. M2008-02224-COA-R10-CV (Tenn. Ct. App. June 16, 2009).

The opinion offers an excellent analysis of appellate court jurisdiction during an extraordinary appeal, judicial estoppel, and related civil procedure matters, among other things. Specifically, it addresses the issue of a parent's standing to bring a claim for the wrongful death of his or her child due to medical malpractice after the parent has filed for bankruptcy.

Here's the link to the opinion:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/Gordon%20v%20Draughn%20OPN.pdf

Tennessee Evidence Law: Four New Amendments Effective July 1, 2009

Tennessee evidence law will have four new amendments effective July 1, 2009. Rules 404(a)(1), 703, 803(26), and 804(b)(2) are the subjects of those amendments. You can read about them at this link, to wit:

http://www.tba2.org/journal_new/index.php/component/content/article/294?ed=19

Medical Malpractice: New Legislation II

Governor Bredesen signed the new medical malpractice legalisation into effect on June 11, 2009. Here is a link to the summary of the bill. I will have a link to the actual bill he signed later on.

http://wapp.capitol.tn.gov/apps/billinfo/BillSummaryArchive.aspx?BillNumber=HB2233&ga=106

Free Legal Research

http://www.plol.org/Pages/Search.aspx

Medical Malpractice: New Legislation

Tennessee's Medical Malpractice Act has just been recently amended, again, by the General Assembly. The bill is on its way to the Governor. It is anticipated that he will sign it. Once he does, I will have more information for you.

For purposes of information, the bill clears up some of the uncertainties from the prior amendments (Act of Apr. 24, 2008, ch. 919, 2008 Tenn. Pub. Acts 93, codified at Tenn. Code Ann. §§ 29-26-121 to -122) having to do with notice, extension of the statutes of limitations and repose, etc.

Appellate Practice in Tennessee

My friends Donald Capparella and Amy Farrar wrote these two articles on appellate practice. They are excellent articles that will help out a lot if you have an appeal coming up.

Here's the links:

http://www.dodsonparker.com/publications/Tips%20for%20Becoming%20a%20Better%20Appellate%20Advocate-%20Writing%20the%20Brief.pdf

http://www.dodsonparker.com/publications/Tips%20for%20Becoming%20a%20Better%20Appellate%20Advocate-%20The%20Oral%20Argument.pdf

Medical Malpractice: Court of Appeals Holds Plaintiffs' Appeal to Be Frivilous

The Eastern Section of the Tennessee Court of Appeals just held that the plaintiffs' appeal of a grant of summary judgment in the defendants' favor was frivolous. The case is Peters v. Lamb, E2008-00997-COA-R3-CV (Tenn. Ct. App. May 27, 2009).

The plaintiffs attempted to nonsuit the case without "filing" the notice of dismissal, which is required by Rule 41.01 of the Tennessee Rules of Civil Procedure.

There's some good old law from the nineteenth century in this opinion on what constitutes "filing" with the court, etc.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/Rick%20Peters%20v%20Ray%20Lamb%20MD%20OPN.pdf

U.S. Healthcare System Fails to Protect Patients from Deadly Medical Errors

http://www.consumersunion.org/pub/core_health_care/011324.html

SCOTUS Denies Cert in TN Products Case

Yesterday the United States Supreme Court denied certiorari ("cert") in the Flax case. (This case was the subject a July 25, 2008 post on this blog.)

The jury had assessed substantial punitive damages against Chrysler, which the Tennessee Supreme Court upheld after a substantial reduction. The United States Supreme Court (at least no more than a few of the justices) apparently thought the decision did not need to be disturbed.

As a reminder, a little boy died because of a defective seat in a Chrylser minivan that failed, fell back on him, and killed him in a car accident. The link in the July 5, 2008 post referenced above has all of the necessary background information about the case.

Here's a link showing the denial of cert:

http://origin.www.supremecourtus.gov/docket/08-1010.htm.

This is a very tragic case. However, at least the family was not denied some justice for their loss.

Tennessee Supreme Court Construes T.C.A. § 24-5-113(a)

The Tennessee Supreme Court just issued its opinion in Borner v. Autry, W2007-00731-SC-R11-CV (Tenn. May 26, 2009). The opinion construes Tennessee Code Annotated section 24-5-113(a), which is the statute that supplies a presumption of reasonableness and necessity of medical bills up to $4,000.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/092/Helen%20Borner%20v%20Danny%20Autry%20Opn.pdf

Memorial Day

This is a somber holiday where we honor fallen American soldiers. They made the ultimate sacrifice, and for that, I am eternally grateful.

Medical Malpractice: Plaintiff' Fails to Survive Summary Judgment

The Middle Section of the Tennessee Court of Appeals just held that the plaintiff's expert's affidavit was insufficient to survive summary judgment. While this is an unfortunate result, it demonstrates the importance of complying with Tennessee Code Annotated section 29-26-115, which is part of Tennessee's Medical Malpractice Act.

The style of the case is Mettes v. John, M2008-00901-COA-R3-CV (Tenn. Ct. App. May 20, 2009). Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/Rebecca%20Mettes%20v%20J%20Thomas%20John%20Jr%20MD%20OPN.pdf

Trial Court Abuses Its Discretion By Denying Motion to Amend

The Court of Appeals held that the trial court abused its discretion by not allowing an amendment to a pleading in Daniels v. Wray, No. 2008-M01781-COA-R3-CV (Tenn. Ct. App. May 22, 2008). This opinion offers a good analysis of the law of amendments, especially as it applies to counterclaims.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/Robt%20and%20Peggy%20Daniels%20v%20Michael%20D%20Wray%20Opn.pdf

Tennessee Pattern Jury Instructions -- Criminal

Here's a link to the Tennessee Pattern Jury Instructions -- Criminal, to wit: http://www.tncrimlaw.com/TPI_Crim/index.htm.

New Nursing Home Case

The Western Section of the Tennessee Court of Appeals just issued its opinion in Johnsey v. Northbrooke Manor, Inc., No. W2008-01118-COA-R3-CV (Tenn. C.t App. May 14, 2009). The opinion offers a good discussion on summary judgment standards and the difference between ordinary negligence in a healthcare setting and medical malpractice.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/JohnseyRoseOPN.pdf

Defendant Liability Insurance Information

Want to find out about or verify a defendant's liability insurance information? If so, MEA Services, Inc. can help. Here's MEA's Web site: http://www.measervicesinc.com/.

Hope this information helps.

Medical Malpractice: Expert Qualifications

The Western Section of the Tennessee Court of Appeals just issued a new opinion relating to the proper qualifications of a plaintiff's expert in a medical malpractice case. In this case, the plaintiff's expert did not practice in the same area as the defendants, which is not per se fatal to this type of claim. However, the opinion stresses the importance of an expert being familiar with the defendants' area of practice. The Court found that the plaintiff's expert was not familiar with the defendants' area of practice and granted summary judgment to the defendants.

The style of the case is McDaniel v. Rustom, No. W2008-00674-COA-R3-CV (Tenn. Ct. App. May 5, 2009).

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/McDanielTommyOPN.pdf

New Case on Causation

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Robbins ex rel. Robbins v. Perry County, Tennessee, No. M2008-00548-COA-R3-CV (Tenn. Ct. App. Apr. 28, 2009). The opinion has a good discussion of causation in Tennessee.

The opinion also discusses the standard of review for a Rule 12 motion to dismiss. The Court's discussion is a good refresher to the Tennessee practitioner.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/RobbinsDOPN.pdf

Pozner & Dodd's Book

Get this book, to wit: Larry S. Pozner & Roger J. Dodd, Cross-Examination: Science & Techniques (2nd ed. 2004). It's a very useful tool for your trial practice.

Here's their Web site: http://www.pozneranddodd.com/index.html

Why I Do What I Do

I'm a trial lawyer. And I am very proud of what I do. I help people who for one reason or another can't help themselves. I believe the law is a learned profession, which must be respected. Traditionally, law, religion, and medicine have always been "learned professions." Looking back on this history of human kind, lawyers, religious leaders, and doctors have made things better for us all.

I have heard others say that the only difference between a lawsuit and a back-alley brawl is the law. The law gives someone --- anyone --- who has been wronged, or charged with a crime, the right to go before twelve of his or her peers who will decide what should be done according to the law. This system prevents people from taking the law into their own hands; it prevents anarchy and injustice; and it prevents the few from being oppressed by the many or the strong from oppressing the weak. This right to a jury trial --- to justice --- is sacred. That is why I so strongly oppose those who would do away with it --- and with justice.

This is why I do what I do.

Lastly, I want to leave you with these two verses from the Bible:

1 Woe to those who make unjust laws,

to those who issue oppressive decrees,
2 to deprive the poor of their rights

and withhold justice from the oppressed of my people,

making widows their prey

and robbing the fatherless.

Isaiah 10:1-2 (NIV).

Happy Easter or Passover!

I hope you all have a great holiday.

New Med Mal Opinion

The Western Section of the Tennessee Court of Appeals just issued its opinion in Jackson v. Joyner, No. W2008-00906-COA-R3-CV (Tenn. C.t App. Apr. 7, 2009). It offers a good discussion on expert opinions and their admissibility.

Here's a link to the opinion:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/JacksonJackieOPN.pdf

Becky Mungai, RN, BA, CLNC

Need a nurse consultant who can get the job done? Contact Becky Mungai. She can help you out.

Here's the link to her Web site:

http://www.mungaiassociates.com/index.html

Speak-Write

Do you use Speak-Write? Have you even heard of it? It's a Web-based dictation service that can save you a lot of time and money.

Here's the Web site: http://www.speak-write.com/web/

Hope this helps!

New Court of Appeals Opinion on Agency

The Western Section of the Tennessee Court of Appeals just released its opinion in Abshure v. Upshaw, No. W2008-01486-COA-R3-CV (Tenn. Ct. App. Mar. 17, 2009).

The opinion holds that a second nonsuit of an agent after the saving statute has ran bars any claim against the principal based upon respondeat superior. Abshure, No. No. 2008-01486-COA-R3-CV, slip. op. at 8-12.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/091/AbshureJoannOPN.pdf

Tri-Star Health Systems

Here's a link to Tri-Star Health Systems Web site:

http://www.tristarhealth.com/

This site is useful because it gives you the number of beds a facility has and doctor contact information, among other things.

Another Uninsured Motorist Case

Here is another uninsured motorist case that discusses service of process under Tennessee Code Annotated section 56-7-1206. The case is Kirby v. Wooley, No. E2008-00916-COA-R3-CV (Feb. 27, 2009).

The case discusses how service of process is governed by section 56-7-1206 and not Rule 3 of the Tennessee Rules of Civil Procedure in uninsured motorist cases.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/091/KirbylcOPN.pdf

This case should be read with my post of June 8, 2007, which also discusses service of process in a uninsured motorist context in Buck v. Scalf.

I hope this helps.

New Premises Liability Case

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Freemon v. Logan's Roadhouse, Inc., No. M2007-01796-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2009).

The opinion does a great job of explaining (1) the proper standard for granting summary judgment after Hannan and Martin; (2) when a duty arises in the context of a premises liability case; and (3) determining if a plaintiff's degree of negligence is, as a matter of law, greater than that of a defendant (which would prevent a plaintiff from recovering under out system of modified comparative fault).

Here's the link to the slip opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/091/Freemon%20v%20LogansOPN.pdf

Sentinel Event Statistics

This link will take you to a document of the Joint Commission on the Accreditation of Healthcare Organizations that contains sentinel event statistics through last year. There's some pretty interesting stuff there.

Here's the link:

http://www.jointcommission.org/NR/rdonlyres/241CD6F3-6EF0-4E9C-90AD-7FEAE5EDCEA5/0/SE_Stats12_08.pdf

Firm News

It the interests of full disclosure, I wrote the Amicus Curiae Brief for the Tennessee Association for Justice in Thomas v. Oldfield, which is the subject of my Feb. 2, 2009 post.

Phil Campbell of Memphis, Tennessee helped a great deal with editing the brief. Phil's sharp intellect and keen eye were a blessing. Thanks Phil!

Totally Unrelated to the Law...

This post has NOTHING to do with the law. It does, however, have something to do with the enjoyment of life thought art. Clifford Bailey is one of my favorite artists. Here's a link to his Web site: http://www.cliffordbailey.com/. Check it out. I think you'll like his work.

Firm News

We won yesterday! We got a favorable jury verdict at trial for our clients in the Bedford County Circuit Court in Shelbyville, Tennessee. The jury did a great job of listening to the issues and coming up with a verdict.

Yesterday also reaffirmed my faith in the civil justice system and juries. The jury heard all the evidence, weighed it, and rendered a verdict after carefully deliberating over the issues. The system works.

Additionally, defense counsel and I proved that you can disagree with each other and still get along, which is how it should be.

Lastly, I want to congratulate everyone who worked on this case. It was truly a team effort. Thanks to all.

Another Locality Rule Opinion

The Middle Section of the Tennessee Court of Appeals just issued another medical malpractice opinion concerning the locality rule. The case is Grisham v. McLaughlin, No. M2008-00393-COA-R3-CV (Tenn. Ct. App. Feb. 4, 2008). The Court of Appeals affirmed the trial court's grant of summary judgment due to the plaintiffs failure to comply with the locality rule, which is codified at Tennessee Code Annotated section 29-26-115(a).

The parties' names may ring a bell to some of you. They should. This is the second time this case has been to the Court of Appeals over a summary judgment issue. The first time the trial court was reversed for not giving the plaintiff enough time to respond to the defendants' motion for summary judgment.

This new opinion stresses the importance of complying with the locality rule. which may be done by showing the the proffered expert practices in the same community or a similar community as the defendant. A community may be proven to be similar by showing the size of the community, the existence or non-existence of teaching hospitals, etc. Grisham, No. M2008-00393-COA-R3-CV, slip op. at 4.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/091/GrishamLOPN.pdf

The Discovery of a Defendant's Liability Insurance Information in Tennessee State Court

The Tennessee Supreme Court issued its much-awaited opinion today in Thomas v. Oldfield, M2006-02767-SC-R11-CF (Tenn. Feb. 2, 2009). With a few exceptions, the Court held that a defendant's liability insurance information is not discoverable.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/091/ThomasJGOpn.pdf

New Med Mal Case

The Middle Section of the Tennessee Court of Appeals recently issued a new med mal opinion. The case is Cox v. M.A. Primary and Urgent Care Clinic, No. M2007-01840-COA-CV (Tenn. Ct. App. Jan. 30, 2009).

The case is noteworthy because it offers a post-Hannan analysis of summary judgments in a medical malpractice context. (For the uninitiated, Hannan v. Alltel Publ'g Co., which is discussed in my Nov. 8, 2008 post, is the case that recently reaffirmed Tennessee's standard for granting summary judgments).

The Cox case also held that: "[t]he standard of care applicable to a physician assistant is that of the supervising physician in the community in which the supervising physician practices." Cox, M2007-01840-COA-CV, slip. op. at 6.

Here's the link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/091/Cox%20v%20MA%20PrimaryOPN.pdf

Another Post-Hannan Summary Judgment Case

The Court of Appeals recently decided Condra v. Bradley County, Tenn., No. E2007-01290-COA-R3-CV (Tenn. Ct. App. Jan. 28, 2009). This case offers an analysis of when a court is to grant summary judgment to a party, particularly in a GTLA case.

Here's the link to the case:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/091/condrajopn.pdf

New Case on Hospital Lien Statute

The Court of Appeals has held that a hospital's lien is not reduced by one-third for plaintiff's attorney's fee when the recovery is sufficient to pay the hospital's lien and the attorney's fee. The case is Breazeale v. Hensley, E2008-00234-COA-R3-CV (Tenn. Ct. App. Jan. 28, 2009).

Here's the link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/091/breazealewrOPN.pdf

Inauguration Day

This is a proud and hopeful day for all Americans. Whether you voted for Mr. Obama or not, he is now our president. We need to support him as best we can.

May God continue to bless America.

Frivolous Medical Malpractice Cases Don't Make It To Trial

Here is a great article by Gerry Spence. This may be a re-post, but it's worth reading again.

http://www.chattanoogan.com/articles/article_64607.asp

A Great Web Site

The Traffic Accident Reconstruction Origin's Web site has many useful tools and a lot of information. I discovered it today.

Here's the link: http://www.tarorigin.com/index.html

Third Anniversary!

Wow! This blog is three years old. I started it in January 2006.  Thanks to all of you who read this blog on a regular basis. I appreciate it.

ABA Principles for Juries and Jury Trials

The American Jury Project, on behalf of the American Bar Association, promulgated the Principles for Juries and Jury Trials. This information -- especially Principle 11 -- might help improve the trial process, if it is shared with the judge before trial.

Here's the link, to wit:

http://www.abanet.org/juryprojectstandards/principles.pdf

New Med Mal Opinion

I spoke too soon about not posting anything till January. The Court of Appeals issued a medical malpractice opinion in Geesling v. Livingston Reg'l Hosp., LLC, No. M2007-02726-COA-R3-CV (Tenn. Ct. App. Dec. 18, 2008).

The opinion stresses the importance of complying with the locality rule, which is codified at Tennessee Code Annotated section 29-26-115.

Here's the link to the opinion:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/Geesling%20v%20Livingston%20OPN.pdf

Happy Holidays!

Folks,

I'm not going to post anything till early January unless something major comes up. This is because I'm going to enjoy the holidays with my family and friends. I hope you can do the same.

Tony

Summary Judgment & Comparative Fault

The Middle Section of the Tennessee Court of Appeals issued its opinion in Allen v. Historic Hotels of Nashville, LLC, No. M2007-02423-COA-R3-CV (Tenn. Ct. App. Dec. 9, 2008).

This opinion does an excellent job of describing the proper standard for granting summary judgment in Tennessee as recently refined by our Supreme Court in Hannan v. Alltel Publ'g Co., E2006-01353-SC-R11-CV (Tenn. Oct. 31, 2008) (see Nov. 8, 2008 post).

The opinion also does an excellent job of describing the interplay between comparative fault and Tennessee Code Annotated section 20-1-119.

This is a must-read opinion for any Tennessee litigator.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/AllenElmer.OPN.pdf

New Saving Statute Case

Talk about dodging a bullet!! Whew!

Plaintiff in this case originally filed suit in general session court and then voluntarily dismissed her lawsuit. Plaintiff's counsel sent two orders dismissing the case, one via facsimile and the other via U.S. mail. The judge signed both orders and both orders were entered by the clerk. However, only the order that was sent via U.S. mail, which was entered AFTER the order that was sent via facsimile, was returned to Plaintiff's counsel. Plaintiff's counsel relied upon the order he received for purposes of refiling the lawsuit under the saving statute, Tennessee Code Annotated section 28-1-105. The second lawsuit was refiled in circuit court. The trial court dismissed it as being time-barred under 28-1-105. The Court of Appeals reversed.

The case is styled Williams v. Cliburn, No. M2007-01763-COA-R3-CV (Tenn. Ct. App. Dec. 1, 2008). Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/Williams%20v%20CliburnOPN.pdf

P.S. Please note the precedential value of the case, which is noted in footnote 1 on page 2 of the slip opinion.

A Legal Citation Web Site

Here's a site to use if you don't have your Bluebook handy, to wit:

http://www.law.cornell.edu/citation/

Hope this helps. Good luck!

Medical Malpractice v. Common Law Negligence

The Court of Appeals recently issued its opinion in Cannon v. McKendree Village, Inc., No. M2008-00456-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2008). The opinion was written by Justice Lee, who was sitting as a special judge for this matter. It offers a good explanation of when a cause of action or claim sounds in medical malpractice or common law negligence. It also touches upon claims made under the Tennessee Adult Protection Act and res ipsa loquitur.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/CannonEugeneOPN.pdf

Happy Thanksgiving!

Happy Thanksgiving to you all. I hope you all have a great holiday.

Thanks for reading my blog.

An Unfortunate Result

The Tennessee Court of Appeals recently issued its opinion in Gilchrist v. Aristorenas, No. W2007-01919-COA-R3-CV (Tenn. Ct. App. Nov. 24, 2008). The Court of Appeals upheld the trial court's grant of summary judgment in favor of the defendant.

This case demonstrates the dangers and pitfalls of handling medical malpractice cases. The plaintiff's expert recanted an earlier plaintiff-friendly opinion during his deposition. This resulted, in part, in the plaintiff not having the necessary expert testimony to rebut the defendant's motion for summary judgment. Therefore, the motion for summary judgment was granted.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/GilchristEEopn.pdf

Pretrial Discovery under the Tennessee Rules of Civil Procedure in General Sessions Court

Everyone knows that the Tennessee Rules of Civil Procedure do not apply in general session court, right? In fact, subject to three exceptions, Rule 1 says they do not apply. See Tenn. R. Civ. P. 1 (stating that the rules shall not apply to general sessions courts). But is there ever an occasion when the rules do apply, even if one of the three exceptions listed in Rule 1 aren't operative? The answer is yes. Discovery under Rules 26-34 and 36-37 may be had if a motion is filed and granted, to wit:

24-9-102. General sessions cases. —

(a) Discovery pursuant to Rules 26-37 of the Tennessee Rules of Civil Procedure, excluding physical and mental examinations under Rule 35 of such rules, may be taken in all civil cases pending in the courts of general sessions in the discretion of the court after motion showing both good cause and exceptional circumstances and pursuant to an order describing the extent and conditions of such discovery.

(b) Depositions of custodians of hospital and medical records may be taken in all cases pending before the judges of the courts of general sessions, under the same rules, regulations, and restrictions as in cases pending in the courts of record.

[Acts 1986, ch. 750, § 1; 1988, ch. 943, § 1.]

Hope this helps. Good luck!

Nashville/Davidson County Juror Info.

Here's a link to juror information from the Metro. Nashville & Davidson County Circuit Court Clerk's Office:

http://juryduty.nashville.gov/portal/page/portal/juryDuty/home

No Credit to Nonsettling Defendants

Are nonsettling defendants entitled to a credit for amounts paid by former defendants or non-parties? Short answer: no. So long as uninsured or underinsured motorist coverage is not in play, defendants receive no such credit. See generally Varner v. Perryman, 969 S.W.2d 410 (Tenn. Ct. App. 1997); Williams Holding Co. v. Willis, 166 S.W.3d 707 (Tenn. 2005); see also 17 John A. Day et al., Tennessee Practice Series: Tennessee Law of Comparative Fault § 11:3, at 213 (2nd ed. 2002); id. § 11:6, at 49 (Supp. 2007-08).

Another Summary Judgment Case

The Tennessee Supreme Court recently issued another opinion (with a separate concurring opinion) regarding summary judgment practice in this state. The case is Martin v. Norfolk Southern Ry. Co., E2006-01021-SC-R11-CV (Tenn. Nov. 14, 2008). The Court in Martin reiterates and reaffirms its recent holding in Hannan (see previous post), which is that summary judgment should only be granted when (1) the movant affirmatively negates an essential element of the non-movant's claim; or (2) the movant shows that the non-movant cannot prove an essential element of its claim at trial. Martin, E2006-01021-SC-R11-CV, slip op. at 6.

Here is a link to the majority opinion that was written by Chief Justice Holder:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/084/MartinTOPN.pdf.

Here is a link to Justice Koch's separate concurring opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/084/MartinTConcurOPN.pdf.

Summary Judgment in Tennessee

The Tennessee Supreme Court recently issued an important opinion on summary judgment in Hannan v. Alltel Publ'g Co., E2006-01353-SC-R11-CV (Tenn. Oct. 31, 2008). Justice Koch filed a dissenting opinion.

Here is a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/084/HannanOPN.pdf

Here is a link to Justice Koch's dissent:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/084/HannanOPN.pdf

Election 2008

This election has been one of the most interesting in recent years (and that says a lot when you consider what happened in 2000). I have seen more yard signs, TV ads, and campaign buttons than I have in a while, too. My former high-school Civics teacher, who is now deceased, would be loving the current atmosphere (in fact, I do too).

We all know how important it is to vote; people died so we could have this way of a life, this democracy. A democracy, however, cannot -- and will not -- function properly unless people exercise their right to vote. So, please, no matter who you support, get out today and exercise your right to vote.

Gerry Spence's Blog

Gerry Spence has a blog. There should be some interesting stuff on it every now and then.

Here's the link: http://gerryspence.wordpress.com/.

Crespo Opinion

Yesterday, the Tennessee Court of Appeals released its opinion in Crespo v. McCullough, No. M2007-02601-COA-R3-CV (Tenn. Ct. App., Oct. 29, 2008). This case is a medical malpractice case involving an alleged medical injury to a child. It held that the three-year statute of repose contained in Tennessee Code Annotated section 29-26-116(a) (2000) was unconstitutional as applied to these particular plaintiffs because it violated their due process and equal protection rights.

The majority's opinion addresses and reconciles any perceived conflict between this opinion and Calaway v. Schucker, 93 S.W.3d 509 (Tenn. 2005). Calaway held that the three-year statute of repose for medical malpractice actions applied to all cases filed after December 9, 2005 (i.e., when Calaway was issued). For purposes of information, the complaint in Crespo, which complained of an injury to a minor more than three years before, was filed on August 2, 2007. Crespo, M2007-02601-COA-R3-CV, slip op. at 10. The plaintiffs in Crespo had relied on the long-established precedents that had held that a minor's claim was tolled until majority.

Judge Swiney issued a brief dissent. He would hold that the Crespo's claim is time-barred under Calaway.

Here's the majority opinion: http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/CrespoKOPN.pdf

Here's Judge Swiney's dissent:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/CrespoKOPNDissent.pdf

Medical Battery

Medical battery is sometimes overlooked as a potential cause of action when one is reviewing a potential medical malpractice claim. It shouldn't be. It is viable in Tennessee.

Here is a good case that explains the elements of medical battery in Tennessee: Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn. 1998). It is also worth noting that expert testimony is not required in these types of cases. Id. at 523.

Hope this helps. Good luck!

Thanks

To all who read this blog on a regular basis (including those who have their own blog), thank you. I truly appreciate the kind e-mails and comments I get from you all.

I consider myself truly blessed to be practicing law in Tennessee. I hope I never become one of those self-centered types who think the world revolves around them. If I do, please knock me off my high horse.

Thanks, again, for reading.

Tony

Excusable Neglect

The Tennessee Court of Appeals recently issued an opinion that further defines what constitutes excusable neglect. The case is Ferguson v. Brown, No. M2007-02590-COA-R3-CV (Tenn. Ct. App., Oct. 21, 2008).

Here's the link to the opinion: http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/Ferguson.O.OPN.pdf

Certificates of Good Faith: Forms

The Tennessee Administrative Office of the Courts ("AOC") now has form certificates of good faith on its Web site, which are required by statute to be filed in medical malpractice actions. They are to be filed by a plaintiff to commence an action and by a defendant when the fault of a nonparty is pled as an affirmative defense. Tenn. Code Ann. § 29-26-122 (Supp. 2008).

Here's the link to the AOC's site with both forms:

http://www.tsc.state.tn.us/geninfo/Publications/Forms/TrialCourtForms.htm.

The forms are available in Word or PDF.

Railroad Crossing Accidents

Our firm handles railroad crossing accidents. This area of the law is not that well-known. Here's the Web site for the Federal Railroad Administration ("FRA"): http://www.fra.dot.gov/. The FRA's site can help with research on safety regulations, etc.

Please do not hesitate to contact us if you have a railroad crossing accident that you would like us to look at, whether you're a potential client or another lawyer. Our firm e-mail is info@tonydlaw.com.

Firm News: Medical Malpractice Case Settles

We just recently settled a medical malpractice lawsuit in the Nashville, Tennessee area. This was done within ten months of filing suit.

I'd like to thank our office staff, experts, and nurses who worked really hard to accomplish this goal. It is appreciated.

Another Case on the Element of Duty

A day after the Tennessee Supreme Court decided Satterfield (see first post of Sept. 11, 2008) , which is also a case involving the element of duty, it decided Downs ex rel. Downs v. Bush, M2005-01498-SC-R11-CV (Tenn. Sept. 10, 2008).

As in Satterfield, Chief Justice Holder issued a separate concurring and dissenting opinion. She disagrees with the majority about whether foreseeability should be considered in determining the existence of a duty (majority approach) or whether it should be considered only in determining the breach of a duty (Justice Holder's approach).

This case, along with Satterfield, offers a fascinating look into how the Supreme Court views the element of duty. Both cases should be read by Tennessee practitioners.

Here is the link to the majority opinion in that case: http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/083/DownsOPN.pdf.

Here is Chief Justice Holder's opinion: http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/083/DownsConDissOPN.pdf.

Medical Records in 10 Days

Yes, you read the title of this post correctly. According to Tennessee Code Annotated section 63-2-101(a), when a patient or a patient's authorized representative requests in writing his or her medical records from a healthcare provider, the records must be supplied within ten days. The provider's failure to comply with the request may lead to disciplinary action.

Here's the link to the online version of the Tennessee Code:
http://www.tncourts.gov/geninfo/michie.htm

Lesser Included Offenses in Tennessee

Here's a useful link I found listing the lesser included offenses in Tennessee.

Here it is: http://www.tsc.state.tn.us/geninfo/Courts/lesserinc.pdf

Please note that it is not an exclusive list.

Tennessee's Newest Supreme Court Justice: Sharon Lee

Today I had the pleasure of attending the investiture ceremony for our newest justice, Sharon Lee. Congratulations, Justice Lee! I hope your tenure on the Tennessee Supreme Court is a long one.

Here's the press release about her appointment: http://www.tsc.state.tn.us/geninfo/PRESSREL/2008/083pr.htm

Resources for Teachers

Those who know me know that I'm partial to teachers. In fact, I love them. My grandmother was my third grade teacher; my younger sister is a teacher. And I will do anything I can for teachers. That's why I'm posting this link. It's a great resource for teachers -- or anyone -- looking for information about our government.

Here's the link: http://thomas.loc.gov/teachers/

Letterman Busts McCain

No matter what political party you are affiliated with, this is funny. Watch what happened on Letterman last night. It's 9 minutes long, but well worth the wait.

http://www.americablog.com/2008/09/david-letterman-blasts-mccain-after.html

The Warrior

Gerry Spence's Trial Lawyers College ("TLC") publishes a magazine called The Warrior. I subscribed to it a while back. It has made me a better lawyer. The magazine has some useful articles and inspiring stories. If you're reading this blog you'd enjoy a subscription too. Here's the link to the TLC's Web site: http://www.triallawyerscollege.com/publicat/warrior.html

Hospital Information

Do you need hospital information? For example, how many beds a facility has, etc. Here is a great resource for locating this kind of information: The Hospital Blue Book. It's published by Billian's Health Data. It comes in a national edition and regional editions.

Here's the link to Billian's site:

http://www.billianshealthdata.com/store/products/hospitals/

September 11, 2001

May we never forget.

New TN S. Ct. Case on the Element of Duty

Among the elements of negligence, duty is important. If no duty arises, there can be no breach of a duty, and thus, no negligence. The Tennessee Supreme Court discusses the element of duty in Satterfield v. Breeding Insulation Co., No. E2006-00903-SC-R11-CV (Tenn. Sept. 9, 2008). Justice Koch authored the majority opinion of the Court. Here's the link to that opinion: http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/083/SatterfieldDopn.pdf.

Chief Justice Holder issued a separate concurring and dissenting opinion. She disagrees with the remainder of the Court on how foreseeability figures into their analysis. Here's the link to that opinion: http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/083/SatterfieldDissOpn.pdf

Tennessee's New Chief Justice

Yesterday I attended the investiture ceremony for Justice Janice Holder. She is only the third woman to serve on the Tennessee Supreme Court. And now she is the first woman to serve as its chief justice.

Congratulations, Chief Justice Holder!

Read more about her at this link:

http://www.tsc.state.tn.us/geninfo/PRESSREL/2008/083pr.htm

10 Things Your Hopsital Won't Tell You

I found this on MSN. It's an interesting read.

http://articles.moneycentral.msn.com/Insurance/InsureYourHealth/10ThingsYourHospitalWontTellYou.aspx

Delay in Serving Summonses Causes Dismissal of WD Case

The Court of Appeals just held that a wrongful death claim was barred by the statute of limitations because the plaintiffs waited eleven months to serve summonses upon the defendants. This delay was a deliberate decision by the plaintiffs. The Court of Appeals held that the plaintiffs intentionally caused a delay of prompt service of the summonses, which violates the Rules of Civil Procedure. See Tenn. R. Civ. P. 4.01(3).

The case is Estate of Butler v. Lamplighter Apartments, No. M2007-02508-COA-R3-CV (Tenn. Ct. App. Aug. 20, 2008).

Here's the link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/083/ButlerRobynOPN.pdf

TN S. Ct. Issues New NIED Opinion

A few days ago the Tennessee Supreme Court issued an opinion in Eskin v. Bartee, No. W2006-01336-SC-R11-CV (Tenn. Aug. 14, 2008). Justice Koch authored the opinion. It traces the origins of the tort of negligent infliction of emotional distress ("NIED") to the present. It's a good read and provides insight to this often confused tort.

In Eskin the Court held that a person who observes an injured family member shortly after an injury producing accident may pursue a claim for NIED. It is worth noting that the Court did not overrule its prior holdings in Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996) or Lourcey v. Estate of Scarlett, 146 S.W.3d 48 (Tenn. 2004). Eskin, No. No. W2006-01336-SC-R11-CV, slip op. at 12.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/083/EskinMOPN.pdf

Resolving Medicare Liens: Part 3

Here are steps 5 & 6:

5. As soon as your case is resolved you must fax a letter to Medicare at (734) 957-0998. The letter should state: (1) the date the case was resolved; (2) the amount involved; (3) the attorney's fee; and (4) an itemized list of expenses. Call them a few days after the letter has been sent to verify that it was received and request a final demand letter. Again, it will take 30 to 45 days for you to receive the letter. You will also receive another itemization from Medicare and a demand for payment. Be sure to check for unrelated charges. YOU ONLY HAVE 60 DAYS TO SATISFY THE LIEN (unless the the final demand letter states otherwise). You must file an appeal to get rid of the unrelated charges on the final demand letter. This takes approximately 150 days to decide. You must still satisfy the lien while the appeal is pending. Mail the check to: Medicare: MSPRC Liability, P.O. Box 33828, Detroit, MI 48232-3828.

6. This is the easiest step. Wait for Medicare to send you a letter confirming that the lien has been released and that they are closing their file.

Resolving Medicare Liens: Part 2

Here are steps 3 & 4, to wit:

3. Once the Consent to Release Form has been filed with Medicare, you will get an itemization of their lien within 30 to 45 days. Review this very carefully to ensure all charges are related. If any unrelated charges are discovered, send a letter to Medicare immediately asking that the charges be removed. You can fax the request to (734) 957-0998. You won't get a response for another 30 to 45 days. You may also call Medicare at 866-677-7220 a few days after you fax your letter to verify that they received it.

4. Before you make a demand, go to mediation, or to trial, request a conditional payment letter. This can be done by calling 866-677-7220. They will generally not give lien information out over the phone. Also, this will take another 30 to 45 days before you receive the letter.

Steps 5 & 6 to follow.

Resolving Medicare Liens: Part 1

Resolving Medicare liens can be a real hassle. As of October 2006 there is one national recovery contractor for Medicare. It's the Medicare Secondary Payer Recovery Contractor ("MSPRC"). Here is MSPRC's Web site http://www.msprc.info/.

There is a six-step process for resolving Medicare liens through MSPRC. Here are steps 1 & 2:

1. Send a letter of representation that includes details of your client's injuries (be specific). The address is: Medicare: Coordination of Benefits, MSP Claims Investigation Project, P.O. Box 33847, Detroit, MI 48232.

2. Medicare will send you a reply letter; enclosed will be a Medicare Secondary Payer Development Form. Complete the applicable portions of the form, have your client sign it, and return it to Medicare. Medicare will also send you a Consent to Release Form for your client's signature. The Consent to Release Form must be on file before Medicare will speak to you about the claim.

Please make sure all forms are compete or they will be returned.

The remaining four steps will be posted later.

Good luck!

Flax v. DaimlerChrysler

Yesterday the Tennessee Supreme Court relased its opinions (yes, there's four in all) in Flax v. DaimlerChrysler, M2005-01768-SC-R11-cv (Tenn. July 24, 2008).

Here's the link to the opinions:

http://www.tsc.state.tn.us/OPINIONS/TSC/sc3qtr2008.shtml

Justice Holder authored the majority opinion.

FAQs About EMTALA

Ever have a question about the Emergency Medical Treatment and Active Labor Act ("EMTALA"). I do. Here's a link with answers to EMTALA FAQs:

http://www.emtala.com/faq.htm

The Word "Shall"

Every lawyer I know has heard that the word "shall" means something is mandatory. However, do you have a cite to support that statement? You do in Tennessee, to wit: Stubbs v. State, 393 S.W.2d 150, 154 (Tenn. 1965) (citing Louisville & N.R. Co. v. Hammer, 236 S.W.2d 971, 973 (Tenn. 1951)).

Hope this helps.

More Medical Research Sites

Here's some research sites from the American College of Surgeons ("ACS"). The ACS's Web site is a valuable resource for researching surgery-related questions and related matters.

Here's the link: http://www.facs.org/tsi/journals.html

Hope this helps. Good luck!

Patient Dies in Psychiatric ER

This is the reason that trial lawyers are needed. If hospitals are not held accountable for actions like this -- in court -- they won't do anything about it.

Here's what I am writing about:

http://www.msnbc.msn.com/id/25475759/?GT1=43001

May the Courthouse Doors Always Remain Open

I read this article on Sunday and was amazed at how much is spent by big business to try to close the courthouse doors to the injured or wronged (it's on page 2 of the article). In fact, I was shocked. A jury is an integral part of our civil justice system; and big business wants to limit a jury's right to decide a matter and the remedy that can be provided. (As a reminder, one of the reasons we declared our independence from England was because we had been denied the right to a jury trial in some instances.)

I'm fond of saying there are no Atheists in foxholes, and there are no injured persons who are pro-tort deform.

Yes, I am biased. I think American citizens should have the right to decide when another has been injured or wronged, and to determine the amount of damages incurred. Others do not agree with me (as can be determined by reading the article). You make up your own mind on the issue.

Here's the link:

http://www.nytimes.com/2008/06/22/business/22tort.html?_r=1&ref=business&oref=slogin

May the Courthouse Doors ALWAYS remain open to those who have been injured or wronged.

Is a Lawyer Allowed to Tape Record a Court Proceeding in Tennessee?

A lawyer may tape record a judicial proceeding in Tennessee. This is per statute, to wit: "It is lawful for attorneys representing parties in proceedings in any of the courts of this state to use tape recorders as an aid in making notes of the proceedings." T.C.A. § 20-9-104. Here's a link to the Tennessee Code: http://michie.lexisnexis.com/

Hope this helps.

Service by Facsimile under the Tenn. R. Civ. P.

Did you know that you can effectuate service of some documents via facsimile under the Tennessee Rules of Civil Procedure? I didn't till today; Rule 5 allows this form of service. See Tenn. R. Civ. P. 5.02 ("Items that may be filed by facsimile transmission pursuant to Rule 5A may be served via facsimile transmission."). Tenn. R. Civ. P. 5A.02(4) lists the documents that can't be filed (or served) via facsimile (e.g., complaints, summonses, wills, affidavits, etc.). Therefore, any document that can be filed with the clerk via facsimile can also be served via facsimile. See Tenn. R. Civ. P. 5.02 & 5A.02(4).

Useful information, huh?

New Med Mal Opinion on Apparent Agency

Today the Court of Appeals issued an opinion in Thomas v. Oldfield, No. M2007-01693-COA-R3-CV (Tenn. Ct. App. June 2, 2008). Judge Clement authored the opinion.

The Court of Appeals reversed the trial court's grant of summary judgment to the defendant hospital based upon apparent agency. This ruling is in line with the Tennessee Supreme Court's rulings in Boren v. Weeks and Dewald v. HCA Health Services of Tennessee (both are the subject of my May 7, 2008 post). For purposes of explanation, Boren and Dewald adopted the Restatement (Second) of Torts § 429 as the controlling law in the analysis of whether apparent agency exists.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/082/thomasjamesOPN.pdf

FYI: This is the second appeal that I know of in this case; the other is the subject of my Nov. 8, 2007 post.

New Opinion on Comparative Fault and the Discovery Rule

The Court of Appeals (Eastern Section) recently issued an opinion in a car-wreck case analyzing comparative fault and the discovery rule. Judge Susano authored the opinion. The style of the case is Grindstaff v. Bowman, No. E2007-00135-COA-R3-CV (Tenn. Ct. App. May 29, 2008). I think it is a must-read opinion.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/082/GrindstaffbfOPN.pdf