Also, here's a copy of the final version of the new rules from the Tennessee Bar Association, to wit:
http://www.tba.org/ethics/2011_TRPC.pdf
This is an appeal from the grant of Appellees/Defendants’ Tenn. R Civ. P 12.02 motion to dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens. In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a customer of Walgreens. A co-worker of Ms. Doe’s accessed Ms. Doe’s prescription history in the Walgreens’ database, and then disseminated her medical information to other coworkers and to Ms. Doe’s fiancé. Ms. Doe and her fiancé filed suit. The trial court dismissed the lawsuit, finding that the Does’ exclusive remedy was under the workers’ compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her employment with Walgreens, and that she has sufficiently pled causes of action outside workers’ compensation law, we reverse the order of dismissal and remand.Here's a link to the opinion:
Katrina B. Martins and her husband filed suit against Williamson Medical Center for injuries sustained when Ms. Martins fell in her hospital room. The trial court held that the complaint stated a claim based on medical malpractice and dismissed the lawsuit for failure to comply with the Tennessee Medical Malpractice Act. Plaintiffs appeal, asserting that the complaint sounded in common law negligence. We affirm.
Here'a a link to the opinion:In this medical negligence case, we review a jury verdict against a hospital based on the hospital’s failure to enforce its policies and procedures in patient care. Tennessee law has long recognized that a hospital has a duty to its patients to exercise that degree of care, skill, and diligence used by hospitals generally in its community. After reviewing the record, we hold that material evidence supports the jury’s determination that the hospital was 100% at fault for the patient’s death. We therefore reverse the Court of Appeals and reinstate the verdict of the jury.
This appeal involves a vicarious liability claim against a hospital based on the conduct of an emergency room physician. A patient and her husband filed a medical malpractice suit in the Circuit Court for Shelby County against a hospital and two physicians, one of whom had treated the patient in the hospital’s emergency room. Among other things, the complaint broadly alleged that the hospital was vicariously liable for the conduct of its agents. After the plaintiffs voluntarily dismissed their claims against both physicians for the second time, the hospital sought the dismissal of the vicarious liability claims on the ground that the plaintiffs’ claims against its apparent agent, the emergency room physician, were barred by operation of law. The trial court granted the hospital’s motion, and the Court of Appeals affirmed the dismissal of the vicarious liability claims against the hospital. Abshure v. Upshaw, No. W2008-01486-COA-R3-CV, 2009 WL 690804, at *5 (Tenn. Ct. App. Mar. 17, 2009). We granted the Tenn. R. App. P. 11 application filed by the patient and her husband to determine whether their vicarious liability claims against the hospital should be dismissed under the facts of this case. We have determined that the lower courts erred by dismissing the vicarious liability claims against the hospital.
Here's a link to the opinion:
http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/AbshureJ.opn.pdf
Practice tip: when applicable, plead respondeat superior in a medical malpractice claim in a timely manner.
Kevin L. Holt, injured in an automobile accident in Arkansas, was first taken by ambulance to an Arkansas hospital and then transported to the Regional Medical Center in Memphis, where he incurred $33,823.02 in expenses. Shelby County Health Care Corporation, the operator of the Regional Medical Center, filed affidavits for a lien as prescribed by statute. Thereafter, Nationwide Mutual Insurance Company, which had medical coverage for Holt with limits of $5,000, paid $1,290 for ambulance services and $3,710 to the Arkansas hospital. Shelby County Health Care Corporation sued Nationwide for impairment of its lien, seeking as recovery the entire amount due for its medical services to Holt. The trial court awarded $5,000 in damages. The Court of Appeals revised the amount of the judgment to $33,823.02. Because we have determined that liens under the Hospital Lien Act do not attach to medical payment benefits paid pursuant to an insurance policy, the judgment of the Court of Appeals is reversed and the cause is dismissed.
The Tennessee Supreme Court issued its opinion today in Elliott v. Cobb, No. W2009-00961-SC-S09-CV (Tenn. 2010). Here is what part of the syllabus states:
The issue presented in this interlocutory appeal is whether a plaintiff in a medical malpractice action is prohibited from arguing or suggesting to the jury any monetary amounts for noneconomic damages. We hold that the language of Tennessee Code Annotated section 29-26-117 (2000) prohibits the plaintiff from disclosing the amount of damages requested in the plaintiff’s pleading, but does not preclude the plaintiff from arguing or suggesting monetary amounts for non-economic damages to jurors at trial. The judgment of the trial court is reversed, and this case is remanded for further proceedings.
Here is a link to the majority opinion:
http://www.tsc.state.tn.us/OPINIONS/CURRENT/SC%20Amanda%20Elliott%20v%20R%20Michael%20Cobb%20opn.pdf
Justice Koch wrote a seperate concurring opinion. Here's the link to it:
http://www.tsc.state.tn.us/OPINIONS/CURRENT/SC%20Amanda%20Elliott%20v%20R%20Michael%20Cobb%20CON.pdf
http://today.msnbc.msn.com/id/39191277/ns/today-today_health/
The sad thing about this sort of thing is this: IT'S ABSOLUTELY PREVENTABLE! All it takes is a little bit of care by the surgeon(s) and the support staff; all of which share blame for this sort of thing generally. A surgeon, however, should share the lion's share of the blame tough.
This sort of thing, which happens regularly, is known as a "Never Event" because it should never happen. However, a lot of surgeons are being encouraged by their malpractice insurance carriers to call sewing up a sponge in a patient (which the surgeon did) a "Hospital Acquired Condition." Why? Because it makes it look like it's something the hospital alone did wrong and not the surgeon. This is when you really need to be concerned---as a patient---that your surgeon, if he or she sews a sponge up in you during surgery, will refuse to accept responsibility and pawn it off on the hospital as a "Hospital Acquired Condition." Is that really the "right thing to do"?
Today the Tennessee Supreme Court released its opinion in Hall v. Haynes, No. W2007-02611-SC-R11-CV (Tenn. Aug. 26, 2010). The issue on appeal had to do with service of process under Rule 4 of the Tennessee Rules of Civil Procedure. The Court held that plaintiff failed to comply with Rule 4.
Here's a link to the opinion:
http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/103/SC%20Billie%20Gail%20Hall%20Administratrix%20Estate%20Billy%20R%20Hall%20v%20Dr%20Douglas%20B%20Haynes%20Jr%20OPN.pdfHere's a link to the slip opinion:This is a medical malpractice case involving res ipsa loquitur. The defendant physician performed surgery on the plaintiff’s husband. Sponges were used in the patient’s abdomen during the procedure. Nurses in the operating room counted the sponges used in the surgery. The nurses erred in counting the sponges, and the defendant physician closed the surgical incision with a sponge remaining inside. The retained sponge was later discovered and removed in a second surgery. The plaintiff’s husband subsequently died of causes unrelated to the retained sponge. The widow sued the physician and his employer for medical malpractice, asserting that the doctrine of res ipsa loquitur applied, as well as the common knowledge exception to the requirement of expert medical proof. The physician filed a motion for summary judgment, and the plaintiff filed a cross-motion for summary judgment as to liability. The defendant physician filed two medical expert affidavits, both of which stated that the defendant physician had complied with the applicable standard of care by relying on the nurses’ sponge count. Initially, the plaintiff filed an expert affidavit stating that the defendant physician did not comply with the applicable standard of care, but later filed a notice stating that she intended to proceed to trial with no expert proof to support her medical malpractice claim. The trial court determined that neither res ipsa loquitur nor the common knowledge exception applied, and granted summary judgment in favor of the defendant physician. The plaintiff now appeals. We reverse the grant of summary judgment in favor of the defendant physician, and affirm the denial of the plaintiff’s motion for partial summary judgment. We find that, under both the common knowledge exception and the doctrine of res ipsa loquitur, the plaintiff was not required to submit expert proof to rebut the physician’s expert testimony that he was not negligent by relying on the nurses’ sponge count. However, application of neither res ipsa loquitur nor the common knowledge exception results in a conclusive presumption of negligence by the defendant physician. Therefore, a fact issue as to the physician’s negligence remains for trial.
This is a medical malpractice case. Plaintiff/Appellant appeals from the trial court’s disqualification of her expert witness and grant of the Defendant/Appellee’s motion for directed verdict. Finding that the Appellant failed to show that her expert was familiar with the standard of care in a community similar to the defendant’s community, we affirm the decision of the trial court.
Did the trial court err when it granted a new trial on the basis that the court improperly allowed defense counsel to project portions of trial testimony during closing argument without establishing a proper foundation or providing prior notice to the plaintiff?
On April 10, 2000, William D. Chapman, II (“the Deceased”) was involved in a motor vehicle accident. As a result of his injuries, he was admitted to Holston Valley Hospital and Medical Center in Kingsport where he came under the care of trauma surgeons, the defendants, James V. Lewis, M.D., and George M. Testerman, Jr., M.D., as well as other physicians and medical personnel. The plaintiff, Cathy L. Chapman, brought this wrongful death action against the defendants based upon her allegation that they were guilty of medical malpractice in the treatment of her husband; she claims that their malpractice caused the death of the Deceased on April 15, 2000. Following eight days of a jury trial in July 2008, counsel for the parties made their closing arguments. During the defense’s argument, counsel for the plaintiff objected when counsel for Dr. Testerman projected on a video screen what purported to be the Q. and A. trial testimony of the plaintiff’s medical expert, Dr. Philip Witorsch. The trial court overruled the objection and thereafter the jury returned a verdict in favor of both defendants. Later, the trial court, acting on the plaintiff’s motion, reversed itself and held that the defendants failed to lay a proper foundation for the use of the projected testimony. The court also pointed out that the defendants failed to give the plaintiff prior notice of their intention to use portions of the trial transcript in closing argument. As a consequence, the court granted the plaintiff a new trial. The defendants appeal. We reverse the trial court’s grant of a new trial and reinstate the court’s judgment in favor of the defendants.
Party A obtained a default judgment in general sessions court against Party B. The general sessions court subsequently granted Party B’s motion to set aside the default judgment. Party A appealed to circuit court. The circuit court reversed the general sessions court’s decision to set aside the default judgment. Party B appeals to this court. We affirm the decision of the circuit court.
As pointed out in this opinion, the general sessions court did not have jurisdiction to entertain a motion to set aside its prior judgment because the 10 days for doing so had passed. Here's a link to the opinion:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/tennprotectionagencyOPN.pdf
Practice pointer: Party B should have filed a petition in the circuit court for a writ of supersedeas and certiorari. See my June 29, 2010 post for more information on this subject.
Plaintiff sustained personal injuries resulting from a fall on defendant's premises and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.
The Court of Appeals just issued its opinion in Jacobs v. Nashville Ear, Nose & Throat Clinic, No. M2009-01594-COA-R3-CV (July 15, 2010). Here's what the syllabus states:
This is a medical malpractice case. Vicki P. Jacobs (“the Plaintiff”) alleges that the failure of Stephen A. Mitchell, M.D., an otolaryngologist, and K. James Schumacher, M.D., a neuroradiologist, to diagnose cancer in the left sinus of her late husband, Harris N. Jacobs (“the Decedent”), in May 2000 caused his death in November 2001. The trial court granted all defendants summary judgment. The court held that the Plaintiff, in the face of the defendants’ motions for summary judgment, failed to demonstrate a genuine issue of material fact as to the element of causation. The court’s ruling was premised, in part, on the court’s holding that the affidavit of one of the experts was not timely filed and also because,according to the court, the Plaintiff’s experts gave deposition testimony that superseded and canceled out their assertions in affidavits. Plaintiff appeals, challenging the court’s grant of summary judgment and an earlier order allowing the defendants to conduct ex parte interviews of treating physicians of the Decedent. We vacate both orders and remand for further proceedings.
Here's a link to the opinion:
Here's a link to the opinion:Plaintiff husband alleged that he suffered an injury in the course of undergoing a cardiac catheterization procedure. Plaintiffs filed suit against the treating physician, alleging medical malpractice, lack of informed consent, and medical battery; against the hospital, alleging medical malpractice based on an actual or apparent agency with the physician; and against the manufacturer of the medical device used in the procedure, alleging that the manufacturer was vicariously liable for medical battery committed by its employee. The trial court granted summary judgment to the defendants on all claims, holding that plaintiffs failed to establish that the use of the medical device to close the site where the catheter was inserted was the cause of husband’s injury. Finding that the defendants negated the element of causation essential to each cause of action, the trial court’s judgment is affirmed.
New changes to certain Tennessee Rules of Court that are effective today:
Tenn. R. Civ. P., to wit:
http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2010/Order-TRCivPamendments.pdf
Tenn. R. Evid., to wit:
http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2010/Order-TREamendments.pdf
Tenn. R. App. P. , to wit:
http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2010/Order-TRAPamendments.pdf
AOC’s Web site (which explains that everything passed EXCEPT the amendments to Rule 26 regarding the discoverability of insurance (near the bottom of the page)), to wit:
http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2010/scrule2010.htm
This is a medical malpractice action. Appellant originally filed a claim in 2007 in the name of an estate. The original claim was subsequently non-suited. Less than one year later, the claim was then re-filed, also in the name of an estate. With permission of the court, the Appellant later amended the complaint to name the administrator of the estate as the plaintiff. However, upon the Appellee’s motion, the trial court dismissed the complaint finding: (1) the complaint was barred by the statute of limitations as there were no allegations in the complaint which would invoke the savings statute; (2) the complaint failed to state with particularity the specific acts of negligence; and (3) that the Appellant failed to comply with the notice requirements for a medical malpractice action found in Tenn. Code. Ann. § 29-26-121. Finding that the trial court erred, we reverse the decision of the trial court and remand for further proceedings.
Here's a link to the opinion:This appeal involves the application of the Tennessee Governmental Tort Liability Act to an action for damages filed against a defendant that was not covered by the Act when the injury producing events occurred. The defendant filed a motion for partial summary judgment in the Circuit Court for Shelby County seeking the benefit of the claims and defenses available to government entities under the Act. The plaintiffs responded by challenging the constitutionality of legislation extending the coverage of the Act to the defendant on the ground that the legislation had been enacted after the plaintiffs had sustained their injuries. The trial court held that the Act applied to the defendant but granted the plaintiffs permission to pursue an interlocutory appeal. We granted the plaintiffs’ application for permission to appeal after the Court of Appeals declined to consider the case. We have determined that applying the substantive amendment to the Tennessee Governmental Tort Liability Act enacted after the injury-producing events occurred to the plaintiffs’ damage claims violates the prohibition against retrospective laws in Article I, Section 20 of the Constitution of Tennessee.
This appeal involves claims for medical malpractice against three doctors. The doctors each filed a motion for summary judgment. The trial court denied all three motions. After reviewing the record, we find that there are no material issues of fact in dispute. The defendant-doctors affirmatively negated an essential element of the Plaintiff’s claim — causation. Plaintiff failed to come forward with expert proof to demonstrate that there was a material issue of fact in dispute. Accordingly, the doctors are entitled to summary judgment. Consequently, this Court finds that the trial court erred in denying the motions for summary judgment. Reversed and remanded.
Here's a link to the opinion:
We granted permission to appeal in this case to address the standard of care that applies to a physician assistant in a medical malpractice case. The plaintiff sued for injuries she allegedly suffered as a result of physician assistant Michael Maddox’s failure to diagnose her condition accurately. The plaintiff did not sue Maddox, but sued the clinic which he owned and in which he practiced and Dr. Austin Adams, Maddox’s supervising physician. The defendants filed a joint motion for summary judgment, supported by their testimony that (1) Maddox did not violate the standard of care applicable to physician assistants and (2) Dr. Adams did not violate the standard of care applicable to physicians. The plaintiff responded with her cardiologist’s testimony that Maddox violated the standard of care applicable to primary care physicians. The cardiologist testified that he was not familiar with physician assistants or their supervision. The trial court granted the defendants’ motion for summary judgment on the basis that the plaintiff had failed to establish that Maddox violated the professional standard of care applicable to him. The Court of Appeals reversed the trial court, holding that the standard of care applicable to physician assistants is the same as that applicable to physicians. We reverse the Court of Appeals and hold that the standard of care applicable to physician assistants is distinct from that applicable to physicians. The trial court’s summary judgment in favor of the defendants is reinstated, and the case is dismissed.
Here's a link to the opinion:
http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Melissa%20Michelle%20Cox%20vs%20MA%20Primary%20and%20Urgent%20Care%20Clinic%20et%20al.pdf
The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Luna v. Deversa, No. E2009-01198-COA-R3-CV (Tenn. Ct. App. Jun. 17, 2010). The plaintiff was pro se and failed to obtain expert testimony to rebut the summary judgment motions that were filed on behalf of the defendants. The trial court granted the defendants' motions and its ruling was upheld on appeal.
Here's a link to the opinion:
The Western Section of the Tennessee Court of Appeals issued its opinion today in Winn v. Welch Farm, LLC, No. M2009-01595-COA-R3-CV (Tenn. Ct. App. June 4, 2010).
As many of you know, Tenn. R. Civ. P. 56.04 was amended in 2007 to require a trial court to state in its order the legal grounds for granting or denying a motion for summary judgment; this was done to assist in appellate review. In Winn, the Court of Appeals reversed a grant of summary judgment for the defendant because the order did not comply with Rule 56.04. Below is the syllabus of the opinion, to wit:
This is an appeal from the trial court’s decision to grant summary judgment to the appellees. After reviewing the record, we find that the order granting summary judgment fails to comply with Tenn. R. Civ. P. 56.04, as it does not “state the legal grounds upon which the court denies or grants the motion.” Consequently, this Court cannot proceed with our review and must vacate the judgment of the trial court.
Here's the link to the opinion:
[S]afety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy civil and political rights. To be more safe, they at length become willing to run the risk of being less free.
Here's a link to the concurring opinion of Justice Wade, which Chief Justice Holder joined, to wit:
http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Terrance%20Lavar%20Davis%20v%20State%20CON1.pdf
Here's a link to the concurring opinion of Justice Lee, to wit:
http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Terrance%20Lavar%20Davis%20v%20State%20CON2.pdf
[T]ort reform is the equivalent of choosing not to prosecute criminals so they can remain on the streets to do more crime. We all suffer and pay as a society while the wrongdoers continue to make more profits without penalty....http://www.freep.com/article/20100406/OPINION05/100405056/1336/Opinion/Tort-reform-made-simple
This post is related to two previous posts of mine: one on December 15, 2009 and the other on December 29, 2009. It has to do with the following case: Harris v. Horton, No. M2008-02142-COA-R3-CV, 2009 WL 4801719 (Tenn. Ct. App. Dec. 14, 2009), reh'g denied (Feb. 2, 2010).
An application for permission to appeal the Court of Appeals' ruling was filed on Thursday. This means that the current cite to the case is now: Harris v. Horton, No. M2008-02142-COA-R3-CV, 2009 WL 4801719 (Tenn. Ct. App. Dec. 14, 2009) ) (Tenn. R. App. P. 11 application for permission to appeal filed Apr. 1, 2010).
The Court of Appeals just issued its opinion in Tigrett v. Linn, No. W2009-00205-COA-R9-CV (Tenn. Ct. App. Mar. 31, 2010). The opinion offers a good discussion on the law of fraudulent concealment in medical malpractice cases.
Here's a link to the opinion:
Here is another medical malpractice opinion regarding the proper standard for granting summary judgment under Hannan. The case is Turner v. Steriltek, Inc., No. M2009-00325-COA-R3-CV (Tenn. Ct. App. Mar. 4, 2010).
Here's a link to opinion:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Sandra%20Yvette%20Turner%20v%20Steriltek%20et%20al%20OPN.pdf
Here's a link to the opinion:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/101/James%20Crowley%20et%20al%20v%20Wendy%20Thomas%20OPN.pdf
Practice point: if you are the prevailing party in general sessions court, and your adversary appeals, it would be wise for you to file an appeal too. That way, your claim cannot be dismissed by your adversary's dismissal of its appeal.
[T]he doctrine of joint and several liability no longer applies to circumstances in which separate, independent negligent acts of more than one tortfeasor combine to cause a single, indivisible injury. We hold that an actor whose tortious conduct causes physical harm to another is liable for any enhanced harm the other suffers due to the efforts of third persons to render aid reasonably required by the other’s injury, as long as the enhanced harm arises from a risk that inheres in the effort to render aid. In light of our consistent holding that the doctrine of joint and several liability no longer applies to circumstances in which separate, independent negligent acts of more than one tortfeasor combine to cause a single, indivisible injury, it is improper to maintain joint and several liability in cases involving subsequent medical negligence where there is even less cause....
Id., slip op. at 17.
