Comparative Fault: New Opinion on Tenn. Code Ann. § 20-1-119

The Tennessee Court of Appeals (Western Section) recently released its opinion in Mann v. Alpha Tau Omega Fraternity, No. W2010-02316-COA-R3-CV, 2011 WL 3276233 (Tenn. Ct. App. Aug. 2, 2011). Here's the summary from the opinion:

Plaintiffs sued Defendants in an amended complaint following the expiration of the statute of limitations. Defendants moved for summary judgment/judgment on the pleadings based on the expiration of the statute of limitations. Subsequently, co-defendants alleged Defendants’ comparative fault in an amended answer. Defendants’ motions for summary judgment and for judgment on the pleadings were granted, but were not made final. Based on co-defendants’ answer, Plaintiffs again amended their complaint to name Defendants pursuant to Tennessee Code Annotated section 20-1-119. However, Defendants claimed that section 20-1-119 could not be utilized as they were already parties to the lawsuit, and they moved for summary judgment and to dismiss. The trial court granted said motions, and we
affirm.

Here's a link to the opinion:

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

Release of Property-damage Claim Not a Release of Personal-injury Claim

When confronted with whether a release of a property-damage claim effects a release of a concurrent personal-injury claim, take a look at Cross v. Earls, 517 S.W.2d 751 (Tenn. 1975).

Depositions

Miller and Zois have a Web site where there are links to various depositions that might be helpful to a new lawyer. Here's the link:

http://www.millerandzois.com/Sample_Depositions.html

Medical Malpractice: Jury Verdict of $500K in a Retained Sponge Case

http://www.phillyburbs.com/news/local/courier_times_news/woman-awarded-k-after-nurses-left-sponge-in-her-abdomen/article_f7c781bd-b429-5ae9-a15c-79d771ff1669.html

Civil Procedure: New Tennessee Supreme Court Case on Motions to Dismiss

The Tennessee Supreme Court released its opinion today in Webb v. Nashville Area Habitat for Humanity, Inc., No. M2009-01552-SC-R11-CV, (Tenn. Jul. 11, 2011). The summary of the opinion reads as follows:

In this action alleging retaliatory discharge, the trial court granted the defendant’s motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Tennessee Rule of Civil Procedure 12.02(6). The Court of Appeals vacated the trial court’s judgment, holding that the amended complaint sufficiently stated a cause of action for retaliatory discharge. We address the issue of the proper standard for Tennessee courts to apply in ruling on a Rule 12.02(6) motion to dismiss in light of the United States Supreme Court’s recent decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009). We decline to adopt the new Twombly/Iqbal "plausibility" pleading standard and affirm the judgment of the Court of Appeals.

(Underlining of case titles omitted.)

Here is a link to the opinion:

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

Happy Fourth of July!

I watch these links every year before the Fourth. And I enjoy them a great deal. I hope you all enjoy them too.

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

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

Turn the volume up and have a great Fourth!

New Opinion on Comparative Fault

The Court of Appeals issued its opinion in Bellsouth Tel., Inc. v. Young, No. W2010-01825-COA-R3-CV (Tenn. Ct. App. Jun. 21, 2011). The opinion discusses unknown tortfeasors in the context of a motor-vehicle collision. Here's the summary from the opinion:

Plaintiff sued Defendants for damages arising from a motor vehicle accident. The trial court struck, from Defendants’ answers, allegations regarding the comparative fault of an unidentified nonparty. However, the trial court allowed references to such nonparty at trial, and the jury assigned no fault to Defendants. Finding no error in the trial court’s allowance, we affirm the judgment of the trial court.

Here's a link to the opinion:

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

New Opinion: Medical Malpractice vs. Ordinary Negligence

The Court of Appeals just issued its opinion in Brister v. HCA Health Serv's of Tenn., No. M2010-01996-COA-R3-CV (Tenn. Ct. App. Jun. 8, 2011). The opinion offers a good analysis of the distinction between medical malpractice and ordinary negligence. Here is a summary of the case from the opinion:

This is an appeal from the trial court’s grant of a hospital’s motion to dismiss for failure to state a claim upon which relief can be granted. The trial court determined that plaintiff’s claim sounded in medical malpractice and dismissed plaintiff’s claim for failure to comply with the written notice and certificate of good faith requirements of the Tennessee Medical Malpractice Act. Finding that Plaintiff’s complaint states claim for ordinary negligence and premises liability, we reverse the trial court and remand the case for further proceedings.

Here's a link to the opinion:

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

Medical Malpractice: The Locality Rule

Here's a recent opinion from the Tennessee Court of Appeals dealing with the locality rule in medical malpractice cases: Kirk v. Chavin, No. E2010-02139-COA-R3-CV (Tenn. Ct. App. June 3, 2011). The synopsis of the case from the opinion states as follows:

Brande Kirk and Amanda Jordan, as children of Barbara Jordan, (“Plaintiffs”) sued Michael A. Chavin, M.D. alleging medical malpractice in his treatment of Barbara Jordan. Dr. Chavin filed a motion for summary judgment. After a hearing, the Trial Court entered its order on August 30, 2010 finding and holding that Plaintiffs’ expert was not qualified to testify in accordance with Tenn. Code Ann. § 29-26-115, and granting Defendant’s motion for summary judgment. Plaintiffs appeal to this Court. We affirm.

Here's a link to the opinion:

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

Is the Tort Action Time-Barred?

Assume you have a potential new client come to you to pursue a personal-injury tort action after the one-year statute of limitations has run. Is the claim time-barred? It might not be if the plaintiff was induced not to file suit by the defendant. See Jackson v. Kemp, 365 S.W.2d 437, 440-41 (Tenn. 1963) (holding that a plaintiff was induced not to sue defendant within the one-year limitations period applicable to personal-injury actions and that such an inducement prevented the defendant from availing himself of said limitation as a defense to plaintiff’s later-filed action); see generally Whitehead v. Davidson, 522 S.W.2d 865 (Tenn. 1975) (holding contra to Jackson under the facts of the case because they were distinguishable but acknowleding Jackson as good authority).

Medical Malpractice: Another Case on Certificates of Good Faith

The Tennessee Court of Appeals issued its opinion yesterday in Robles v. Vanderbilt Univ. Med. Ctr., No. M2010-01771-COA-R3-CV (Tenn. Ct. App. Apr. 19, 2010). Here's the summary from the opinion:

Defendants in medical malpractice action appeal the denial of their motion to set aside order entered on plaintiff’s Tenn. R. Civ. P. 41.01 notice of voluntary dismissal without prejudice. Defendants contend that, because the certificate of good faith required by Tenn. Code Ann. § 29-26-122 was not filed with the complaint, dismissal should have been with prejudice. Finding that Tenn. Code Ann. § 29-26-122 does not limit plaintiff’s right to voluntarily dismiss an action without prejudice under the circumstances presented, we affirm the judgment of the trial court.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/CURRENT/Estate%20of%20Miguel%20Robles%20v%20Vanderbilt%20University%20Medical%20Center%20Opn.pdf

Medical Malpractice: New Opinion on the Locality Rule

The Tennessee Court of Appeals recently issued its opinion in Kennard v. Townsend, No. W2010-00461-COA-R3-CV (Tenn. Ct. App. Apr. 14, 2011).

This is a medical malpractice case. The trial court granted summary judgment in favor of Appellee healthcare provider after its determination that Appellant patient’s medical expert did not meet the locality requirement, Tennessee Code Annotated Section 29-26-115(a)(1). Discerning no error, we affirm and remand.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/112/Vivian%20Kennard%20vs%20Arthur%20M%20Townsend%20IV%20MD%20OPN.pdf

New Opinion: Medical Negligence vs. Ordinary Negligence

The Tennessee Court of Appeals recently issued its opinion in Mathes v. DRD Knoxville Medical Clinic, No. E2010-01809-COA-R3-CV (Tenn. Ct. App. Apr. 13, 2011). Here's a summary of the opinion from its synopsis, to wit:

This is an appeal from the trial court’s grant of separate motions to dismiss for failure to state a claim upon which relief can be granted. The trial court determined that Appellants had failed to comply with the written notice and certificate of good faith requirements of the Tennessee Medical Malpractice Act, and had failed to state a claim for vicarious liability based on theories of agency or joint venture. We affirm in part, reverse in part, and remand, concluding that Appellants’ claims of direct negligence do not sound in medical malpractice, but that Appellants failed to state a claim upon which relief can be granted with respect to vicarious liability based on agency or joint venture.

(Emphasis added.)

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/112/Alicia%20Mathes%20et%20al%20v%20DRD%20Knoxville%20Medical%20Clinic%20et%20al.pdf

New Case on Tennessee's Saving Statute

The Tennessee Court of Appeals recently issued its opinion in Freeman v. CSX Transp., Inc., No. M2010-01833-COA-R9-CV (Tenn. Ct. App. Apr. 7, 2011). Here's the summary from the opinion, to wit:

In this interlocutory appeal, we are asked to determine: (1) whether the Tennessee saving[] statute, Tenn. Code Ann. § 28-1-105(a), may be invoked twice within the one-year savings period to save otherwise untimely actions; and (2) whether the Appellee acted with the diligence and good faith necessary to invoke the protection of the saving[] statute. We conclude that Appellee’s suit was properly brought within the protection of the Tennessee saving[] statute. Consequently, we affirm the judgment of the trial court.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/112/Patsy%20Freeman%20Personal%20Representative%20and%20Administratrix%20of%20the%20Estate%20of%20John%20R%20Freeman%20Deceased%20v%20CSX%20Transportation%20Inc%20OPN.pdf

Medical Malpractice: The Term "Injury" Defined

How is an "injury" defined for purposes of medical malpractice? Here is the definition, to wit:

An injury is defined as any want of skillful care or diligence on a physician's part that sets back a patient's recovery, prolongs the patient's illness, increases the plaintiff's suffering, or, in short, makes the patient's condition worse than if due skill, care, and diligence had been used.

Church v. Perales, 39 S.W.3d 149, 171 (Tenn. Ct. App. 2000) (defining injury for purposes of medical malpractice actions).

New Tennessee Supreme Court Decision: Calculating a Reasonable Attorney's Fee for Counsel When Representing a Minor

Yesterday the Tennessee Supreme Court released its opinion in Wright ex rel. Wright v. Wright, No. M2008-01181-SC-R11-CV (Tenn. Mar. 29, 2011). Here's the summary from the opinion, to wit:

We granted this appeal to determine the proper method for computing a reasonable attorney’s fee when the attorney represents a minor. In this case, after the attorney obtained a $425,000 settlement for a minor injured in an automobile accident, the trial court awarded the attorney $141,666.66, or one-third of the recovery, pursuant to the terms of the attorney’s contingent fee agreement with the minor’s father. The court-appointed guardian ad litem appealed the fee award, and the Court of Appeals reversed. Upon remand, the trial court conducted an evidentiary hearing and determined that $131,000 would be a reasonable attorney’s fee, and the Court of Appeals affirmed. Reviewing for an abuse of discretion, we hold that the trial court applied the correct legal standard by analyzing the ten factors set forth in Tennessee Supreme Court Rule 8, Rule of Professional Conduct 1.5(a). We further hold that the fee award was neither illogical, based on an erroneous assessment of the evidence, nor an injustice to the minor. We therefore affirm the judgment of the trial court.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/111/SC%20David%20Lee%20Wright%20ex%20rel%20Kaitlyn%20Lee%20Wright%20v%20Anita%20J%20Wright%20OPN.pdf

Medical Malpracitce: Respondeat Superior & Amended Pleadings

Yesterday the Tennessee Court of Appeals issued its opinion in Randolph ex rel. Randolph v. Meduri, No. W2010-01224-COA-R3-CV (Tenn. Ct. App. Mar. 2, 2010). Here's the summary from the opinion:

This appeal arises out of an action to hold UT Medical Group, Inc. vicariously liable for the alleged negligence of its employees. In 1997, the original plaintiff filed an amended complaint for medical malpractice and wrongful death which specifically named two doctors as employees of the defendant who negligently caused the death of a patient. As trial approached, a substitute plaintiff attempted to add new allegations concerning the negligence of a third doctor. The trial court denied the motion to amend and later granted a motion in limine to exclude evidence concerning the alleged negligence of the third doctor as beyond the scope of the 1997 amended complaint. The plaintiff consequently was unable to offer expert testimony at trial to prove an employee of the defendant negligently caused the patient’s death, and the trial court granted judgment in favor of the defendant. We affirm.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Jamie%20Randolph%20on%20behalf%20of%20her%20deceased%20mother%20Carolyn%20Randolph%20v%20Gianfranco%20Meduri%20MD%20OPN.pdf

The opinion offers a discussion on the doctrine of respondeat superior; the pleading of the doctrine and its effects; and how a delay in an amendment to a pleading can affect a case.

Medical Malpractice: Plaintiff's Case Dimissed for Failure to Follow Recent Changes to Medical Malpractice Act

The Tennessee Court of Appeals issued its opinion today in Myers v. AMISUB (SFH), Inc. , No. W2010-00837-COA-R3-CV (Feb. 24, 2011). Here's the summary from the opinion:

The trial court denied Defendants’ motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff’s failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Curtis%20Myers%20v%20AMISUB%20SFH%20Inc%20dba%20St%20Francis%20Hospital%20

This opinion is incorrect in my humble opinion because it fails to consider in its analysis that the plaintiff's tort claim vested in the law that existed when the claim accrued as a matter of constitutional law. See Estate of Bell v. Shelby Cnty. Health Care Corp., 318 S.W.3d 823, 830 (Tenn. 2010) (recognizing that as to tort cases the law in effect at the time of the accrual of the action is the applicable law per Article One, Section 20 of the Tennessee Constitution). The law that existed when Plaintiff's claim accrued did not require pre-suit notices to be mailed out to potential defendants or certificates of good faith to be filed. However, it doesn't look like the litigants brought this issue up before the trial court or the appellate court, which probably affected the outcome.

Long v. Hillcrest Healthcare - West Update

This post is a follow-up to my April 16, 2010 post about Long v. Hillcrest Healthcare - West, No. E2009-01405-COA-R3-CV (Tenn. Ct. App. Apr. 16, 2010).

Here's a link to the post on Long:

http://theduncanlawfirm.blogspot.com/2010/04/medical-malpractice-court-upholds.html.

The Tennessee Supreme Court recently granted the Tenn. R. App. P. 11 application in Long only to remand the case back to the trial court for reconsideration in light of its ruling in Estate of French v. Stratford House, --- S.W.3d ----, 2011 WL 238819, No. E2008-00539-SC-R11-CV (Tenn. Jan. 26, 2011).

Here's a link to the post on French:

http://theduncanlawfirm.blogspot.com/2011/01/new-nursing-home-case.html.

Here's a link to the Tennessee Supreme Court's orders, which are on pages 19-20 at this link (Justice Koch did his own concurring order):

http://www.tsc.state.tn.us/OPINIONS/TSC/certiorari/2011/Certlist20110222.pdf.

Medical Malpractice: Summary Judgment for Defendants Vacated; Case Remanded; and Judge Must Recuse Herself

The Court of Appeals recently issued its opinion in Olerud v. Morgan, No. M2010-01248-COA-R3-CV (Tenn. Ct. App. Feb. 18, 2010). Here's the summary from the opinion, to wit:

This is an appeal of a grant of summary judgment to a hospital and physician in a medical malpractice case. Plaintiffs also appeal the denial of their motion that the trial court recuse itself due to the court’s membership on the board of directors of the defendant hospital and the court’s denial of their motion for default judgment based on spoliation of evidence. We reverse.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Gilbert%20Olerud%20v%20Dr%20Walter%20M%20Morgan%20III%20Opn.pdf

Think You Know About the McDonald's Coffee Case?

Think Again! People are slowly giving up their rights to a fair trial by PR campaigns by big money and business that don't want you to have your day in court. Watch the link below from the American Bar Association for more information:

http://www.abajournal.com/magazine/article/a_cup_of_joe_hot_coffee_sundance_film_festival/

Medical Malpractice: Quotient Verdict Results in Reversal on Appeal; Case Remanded for Re-Trial

The Tennessee Court of Appeals just issued its opinion in Cullum v. Baptist Hosp. Sys., Inc., No. M2009-01980-COA-R3-CV (Tenn. Ct. App. Feb. 16, 2011). Here's the summary from the opinion, to wit:

This is an appeal from a jury verdict in a medical malpractice case. Plaintiffs, parents of child who suffered severe, permanent brain injuries during the course of his labor and delivery, filed suit against their physician, physician’s employer, and related hospitals. The physician and her employer settled prior to trial, leaving the related hospitals as the only defendants. This case has been tried twice. Following the first trial, the jury returned a verdict in favor of defendants, which the trial court set aside pursuant to the thirteenth juror rule. The second trial resulted in a verdict for plaintiffs, with the jury assigning 3.75 percent of fault to the defendants and 96.25 percent of fault to the nonparty physician. Because the evidence shows that the members of the jury agreed to be bound by the result of a predetermined averaging process, we have concluded that the jury reached a quotient verdict, which is impermissible. Consequently, we reverse and remand the case for a new trial.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/James%20and%20Patricia%20Cullum%20v%20Baptist%20Hospital%20Systems%20Inc%20Opn.pdf

The case also discusses the effect of a settlement between one defendant and the plaintiff and how that is to be handled at trial with any remaining nonsettling defendants. Specifically, it discusses how this sort of evidence is very limited by Tenn. R. Evid. 408 and how it should not be improperly brought before the jury's attention by the nonsettling defendants during the re-trial of this case.

Medical Malpractice: Plaintiffs' Failure to Comply with Notice Statute Proves Fatal to Their Claim

The Tennessee Court of Appeals issued its opinion today in DePue v. Schroeder, No. E2010-00504-COA-R9-CV (Tenn. Ct. App. Feb. 15, 2011). The summary from the opinion's synopsis is as follows:

Plaintiffs filed their Complaint alleging medical malpractice against numerous healthcare providers on May 26, 2009. They alleged that they had given the notice requirements of Tenn. Code Ann. §29-26-121(a) prior to April 8, 2009 to the defendants. The defendants filed several motions, including motions for summary judgment, stating that plaintiffs failed to comply with the notice requirements of Tenn. Code Ann. § 29-26-121. The record establishes that plaintiffs did not give the requisite notice, "at least 60 days before the filing of their Complaint[."] In response to the motions for summary judgment the Trial Court excused compliance with the code section and defendants appealed. On appeal, we reverse the holding of the Trial Court on the grounds that non-compliance with the code section could only be excused upon the showing of extraordinary cause.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Karah%20and%20Ryan%20DePue%20et%20al%20v%20Charles%20D%20Schroeder%20et%20al.pdf


Here's a link to the dissenting opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Karah%20and%20Ryan%20DePue%20et%20al%20v%20Charles%20D%20Schroeder%20et%20al%20Dissent.pdf

Medical Malpractice: Trial Court's Striking of Plaintiffs' Only Expert Upheld on Appeal

The Middle Section of the Tennessee Court of Appeals recently issued its opinion in Westmoreland v. Bacon, No. M2009-02643-COA-R3-CV (Tenn. Ct. App. Jan. 31, 2011). Here's the summary from the majority opinion, to wit:

Plaintiffs appeal the summary dismissal of their medical malpractice claims against three physicians, an orthopedic surgeon, and two hematologists. In December 2004, Plaintiffs’ mother, who suffered from several medical conditions, underwent a total hip replacement and remained in the hospital under the care of several doctors for ten days. Nine days after surgery, her condition dramatically declined; she died the following day from a severe diffuse pulmonary and gastrointestinal hemorrhage. Plaintiffs filed suit alleging the physicians breached the standard of care for their respective specialties in the care of their mother. Each defendant filed a motion for summary judgment and each motion was supported by the affidavit of the defendant as an expert witness. Plaintiffs submitted an affidavit of their expert witness in response. The trial court ruled that Plaintiffs’ only expert was not a qualified witness under Tenn. Code Ann. § 29-26-115 and granted summary judgment to all three defendants. On appeal, Plaintiffs claim the trial court abused its discretion in finding that their expert witness was not qualified to testify. We affirm the trial court’s ruling that Plaintiffs’ expert was not qualified to testify under Tenn. Code Ann. § 29-26-115 and the summary dismissal of Plaintiffs’ claims.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Markina%20Westmoreland%20v%20William%20L%20Bacon%20MD%20OPN.pdf

Judge Dinkins wrote a dissenting opinion. Here's a link to it:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Markina%20Westmoreland%20v%20William%20L%20Bacon%20MD%20DIS%20Opn.pdf

Howell v. Claiborne and Hughes Health Ctr.: Appeal Voluntarily Dismissed

This post is related to my posts of Dec. 14 and June 25, 2010. The Tennessee Supreme Court recently granted a Tenn. R. App. P. 11 application for permission to appeal in Howell v. Claiborne and Hughes Health Ctr., No. M2009-01683-COA-R3-CV (Tenn. Ct. App. June 24, 2010). However, the motion to voluntarily dismiss the appeal was filed on Jan. 13, 2011. This can be viewed on page 8 at this link:

http://www.tsc.state.tn.us/geninfo/Courts/Supreme%20Court/SupremeCourtAppealsPendingCasesCURRENTREPORT.pdf

The order granting the motion was entered on Jan. 19, 2011. (I called the clerk's office to find this out.)

Medical Records

This post is a follow-up one to my Oct. 6, 2008 post that cited Tenn. Code Ann. sec. 63-2-101(a). Here's a link to that post:

http://theduncanlawfirm.blogspot.com/search?q=ten+days.

Here is the reason for this follow-up post:

Under the same Title and Chapter as the statute cited in the above-referenced post, an affidavit must be provided upon request from the provider's custodian of records, T.C.A. § 63-2-102(c)(1); and the records so obtained and the affidavit (which can be obtained for a fee of no more than $20.00) qualifies as a business record and is excepted from being barred as hearsay, id. § 63-2-102(c)(2). And lastly, the records must be provided without delay once they have been paid for. Id. § 63-2-102(e).

New Nursing Home Case

The Tennessee Supreme Court just released its opinion in Estate of French v. Stratford House, No. E2008-00539-SC-R11-CV (Tenn. Jan. 26, 2011). Here's the synopsis from the opinion's syllabus, to wit:

The administratrix of the estate of the deceased brought this wrongful death suit against the defendant nursing home and its controlling entities, alleging damages as the result of ordinary negligence, negligence per se, and violations of the Tennessee Adult Protection Act. The trial court granted the defendants’ motion for partial summary judgment, holding that the Tennessee Medical Malpractice Act applied to the ordinary negligence claims, thereby precluding allegations of negligence per se or violations of the Tennessee Adult Protection Act. The trial court also dismissed a claim for punitive damages. The Court of Appeals affirmed, but vacated the portion of the order dismissing the punitive damages claim. This Court granted the administratix’s application for permission to appeal in an effort to clarify the standards governing nursing home liability and to resolve a conflict in the decisions rendered by the Court of Appeals. We hold that, because the administratrix of the estate of the deceased has alleged violations of the standard of care pertaining to both medical treatment and routine care, she has made claims based upon both medical malpractice and ordinary negligence. Further, she may offer proof of negligence per se and violations of the Tennessee Adult Protection Act as support for her ordinary negligence claims. We affirm the Court of Appeals’ reinstatement of the punitive damages claim. The judgment of the Court of Appeals is, therefore, affirmed in part and reversed in part. The cause is remanded to the trial court.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/111/SC%20Estate%20Martha%20S%20French%20v%20Stratford%20House%20opn.pdf

Here's a link to Justice Koch's dissent:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/111/SC%20Estate%20Martha%20S%20French%20v%20Stratford%20House%20DIS%20opn.pdf

New Medical Battery Case

The Court of Appeals recently issued its opinion in Urlaub v. Select Specialty Hosp.-Memphis, No. W2010-00732-COA-R3-CV (Tenn. Ct. App. Jan. 20, 2011). It offers a good discussion on medical battery claims and how they relate to claims for vicarious liability based upon a principal-agent relationship.

Here's a link to the opinion, to wit:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Mark%20W%20Urlaub%20Executor%20Estate%20Bertha%20Worley%20Orlaub%20v%20Select%20Specialty%20Hosp-Memphis%20Inc%20OPN.pdf

Medical Mistakes Claim Lives in Tennessee

http://www.publicnewsservice.org/index.php?/content/article/17820-1

Pray for Rep. Giffords and Others!

http://online.wsj.com/article/SB10001424052748704030704576070010694650214.html?mod=WSJ_WSJ_News_BlogsModule

May God be with them and their families.

Medical Malpractice: Summary Judgment Against Pro Se Plaintiff Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Partee v. Vasquez, No. M2009-01287-COA-R3-CV (Jan. 5, 2011). The plaintiff in this case brought a pro se medical malpractice action against her former doctor. Her case was was ultimately dismissed via summary judgment because she was unable to obtain expert testimony to rebut the doctor's affidavit given in support of his motion for summary judgment.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Kathy%20D%20Partee%20v%20Jaime%20Vasquez%20MD%20Opn.pdf

Sadly, this case demonstrates how important it is for a plaintiff to obtain counsel who is familiar with the law of medical malpractice. While I'm not saying that competent counsel would have won this case for the plaintiff, she certainly would have stood a much better chance had she been represented by competent counsel.

Happy New Year!

I hope 2011 is your best year yet.

Law School Lectures

Here are a few short lectures from Vanderbilt University Law School's Web site:

http://law.vanderbilt.edu/faculty/listen-to-lectures/index.aspx

Pay attention to the second one about half-truths of tort law.

Medical Malpractice: New Case on Certificates of Good Faith

The Tennessee Court of Appeals issued its opinion on Friday in Barnett v. Elite Sports Med., No. M2010-00619-COA-R3-CV (Tenn. Ct. App. Dec. 17, 2010). The opinion addresses our state's relatively new law on certificates of good faith. The summary from the opinion states as follows:

In this case, we are asked to decide whether an amendment to Tenn. Code Ann. § 29-26-122, which became effective July 1, 2009, and requires the plaintiff in a medical malpractice action to file a certificate of good faith at the time of filing suit, was properly applied to an action initiated prior to the effective date of the amendment, voluntarily dismissed and refiled after the effective date. We also consider whether the requirement that the plaintiff file a certificate of good faith applies to an action for medical battery. We affirm the judgment in part, reverse in part, and remand the case for further proceedings.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/104/Pamela%20Ann%20Barnett%20v%20Elite%20Sports%20Medicine%20Opn.pdf

Comparative Fault & Jury Verdicts

The Tennessee Court of Appeals released its opinion yesterday in Gray v. Bednarz, No. M2010-00010-COA-R3-CV (Tenn. Ct. App. Dec. 16, 2010). While not that long of an opinion, it offers a good discussion on jury verdicts and the assessment of fault; the discussion is set out on pages 3-4 of the opinion. Here's a link to it:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/104/Zula%20Gray%20v%20Joe%20Bednarz%20Jr%20OPN.pdf

Medical Malpractice: Defense Verdict in Claims Commission Upheld on Appeal

bThe Court of Appeals released its opinion in Brown ex rel. Anderson v. State, No. W2010-01036-COA-R3-CV (Tenn. Ct. App. Dec. 15, 2010). Here's the summary from the synopsis:

Appellant, who was not placed on fall observations until after his fall, suffered a fall while under the care of the Western Mental Health Institute. A CAT scan performed three days after the fall revealed no hemorrhaging, however, a repeat scan performed approximately one month later revealed a subdural hematoma for which Appellant subsequently underwent two surgeries. Appellant, by and through his next friend, filed suit against the State in the Claims Commission alleging medical negligence. Following a trial, the Claims Commission found that a Western nurse breached the standard of care in completing the initial fall risk assessment, but that Appellant had failed to prove that such breach was a proximate cause of his fall. Additionally, the Commission found that Appellant had failed to prove that Western’s failure to later place Appellant on fall observations was a proximate cause of his fall. Finally, the Commission found that Appellant had failed to prove by a preponderance of the evidence that Western’s failure to order repeat brain imaging prior to January 26, 2006, was a breach of the standard of care. We affirm the judgment of the Commission.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/104/BrownRobertOPN.pdf

Medical Malpractice: Tennessee Supreme Court Grants an Appeal and Denies Another

This post has to do with two prior posts.

First, the Tennessee Supreme Court recently granted the application for permission to appeal filed in Howell v. Claiborne and Hughes Health Ctr., No. M2009-01683-COA-R3-CV (Tenn. Ct. App. June 24, 2010), appeal granted, (Dec. 10, 2010). Here's a link to the Court's list of discretionary appeals showing the grant of the appeal:

http://www.tsc.state.tn.us/OPINIONS/TSC/certiorari/2010/Certlist20101213.pdf.

Howell was the subject of my June 25, 2010 post, to wit:

http://theduncanlawfirm.blogspot.com/2010/06/medical-malpractice-court-of-appeals_25.html#links

Second, the Tennessee Supreme Court recently denied the application for permission to appeal filed in Jacobs v. Nashville Ear, Nose & Throat Clinic, No. M2009-01594-COA-R3-CV (July 15, 2010), appeal denied, (Dec. 7, 2010). Here's a link to the Court's list of discretionary appeals showing the denial of the appeal:

http://www.tsc.state.tn.us/OPINIONS/TSC/certiorari/2010/Certlist20101213.pdf.

Jacobs is the subject of my July 16, 2010 post, to wit:

http://theduncanlawfirm.blogspot.com/2010/07/medical-malpractice-court-of-appeals_16.html#links

More on the Recent Changes to the Tennessee Rules of Professional Conduct

Here's an article written by Lucian Pera that was recently published in the Tennessee Bar Journal. It outlines the recent changes to Tenn. Sup. Ct. 8, which contains the new Rules of Professional Conduct.

http://tba.org/journal_new/index.php/component/content/article/525?ed=36

Recent Changes to the Fed. R. Civ. P.

Here's an article written by Professor Don Paine on the changes from the Tennessee Bar Journal, to wit:

http://tba.org/journal_new/index.php/component/content/article/534?ed=36

The changes became effective on December 1, 2010.

Medical Malpractice: Petition to Rehear Denied in Barkes v. River Park Hosp., Inc.

This post is a follow-up from my Oct. 20, 2010 post. That post dealt with the recent Tennessee Supreme Court decision in Barkes v. River Park Hosp., Inc. The defendant filed a petition to rehear with the Tennessee Supreme Court, which was denied. Here's a link to the denial, to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/SC%20Debra%20M%20Barkes%20v%20River%20Park%20Hospital%20Inc.pdf

Police Stops, Etc.

I'm often asked "What do I do if the police stop me while I'm walking down the street?" or "What do I do if the police stop me while I'm driving?" I found the following document on the Nashville Public Defender's Web site, which I think is helpful, to wit:

http://publicdefender.nashville.gov/portal/page/portal/publicdefender/pdDownloadsMain/downloads/KnowYourRights.pdf

New Rules of Professional Conduct: Effective Jan. 1, 2011

The Tennessee Rules of Professional Conduct will change at the first of the year. Here is a link to the Tennessee Supreme Court's Order adopting the changes with a copy of the new rules appended to it, to wit: http://www.tba.org/ethics/TSC_Order_Adopting_TRPC.pdf.

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

What Is My Purpose?

I can't think of a better way to put it, to wit:

https://www.tnaj.org/index.cfm?pg=Purpose

A Wrongful Disclosure of Medical Information Held to Be Actionable

The Tennessee Court of Appeals recently issued its opinion in Doe v. Walgreens Co., No. W2009-02235-COA-R3-CV (Tenn. Ct. App. Nov. 24, 2010). The case deals with the disclosure a customer's medical information; the customer was also an employee of Walgreens at the time of the wrongful disclosure and HIV positive. Here's the summary from the opinion's syllabus, to wit:

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:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/104/Jane%20and%20John%20Doe%20v%20Walgreens%20Co%20OPN.pdf

Medical Malpractice: Plaintiffs' Claim Dismissed Due to Failure to Comply with New Law on Notice and Certificates of Good Faith

The Tennessee Court of Appeals released its opinion today in Martins v. Williamson Cnty. Med. Ctr., No. M2010-00258-COA-R3-CV (Tenn. Ct. App. Nov. 22, 2010). Here's a summary of the case from the syllabus, to wit:

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's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/104/Katrina%20Martins%20v%20Williamson%20Medical%20Center%20Opn.pdf

Have a Question About Tennessee Appellate Practice?

This work might help, to wit:

APPELLATE PRACTICE COMM., NASHVILLE BAR ASS’N, APPELLATE ADVOCACY: A HANDBOOK ON APPELLATE PRACTICE IN TENNESSEE (Donald Capparella et al. eds., 4th ed. 2010).

Here's a link to the handbook:

http://www.nashvillebar.org/Publications/AppellateHandbook/Handbook_currentEdition.pdf

Firm News: Tony Duncan Selected to Mid-South Super Lawyers as a "Rising Star"

The firm is pleased to announce that Tony Duncan has been selected as a "Rising Star" as part of the class of 2010 Mid-South Super Lawyers. Here's a link to his profile, to wit:

http://www.superlawyers.com/tennessee/lawyer/Tony-Duncan/cc552432-29b5-4f60-a913-198fec274ced.html

The selection process for becoming a Mid-South Super Lawyer is explained at the following link:

http://www.superlawyers.com/about/selection_process.html

Congratulations to Tony!

Tony Duncan

online at

visit superlawyers.com

Veterans Day: Thanks to Vets

To all our veterans, thank you for your service to our country. It is greatly apprecited.

May God bless America.

Surgical Errors

Here's an interesting article on surgical errors, to wit:

http://www.msnbc.msn.com/id/40096673/ns/health-health_care/?gt1=43001

Surgery Videos

http://www.nlm.nih.gov/medlineplus/surgeryvideos.html

New Tennessee Supreme Court Opinion on Summary Judgment

The Tennessee Supreme Court issued an opinion yesterday regarding summary judgment in Davis v. McGuigan, No. M2007-02242-SC-R11-CV (Tenn. Oct. 26, 2010). This opinion offers a good analysis of Tennessee's recently clarified summary judgment standard; and, by the dissent, how the Tennessee Supreme Court is fractured on this issue.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/SC%20Joseph%20Davis%20v%20Patrick%20J%20McGuigan%20Opn.pdf

Here's a link to the dissent:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/SC%20Joseph%20Davis%20v%20Patrick%20J%20McGuigan%20opn%20DIS.pdf

Medical Malpractice: Direct Claim Against Hospital Upheld on Appeal

The Tennessee Supreme Court issued its opinion today in Barkes v. River Park Hosp., Inc., No. M2006-01214-SC-R11-CV (October 20, 2010). Here's the summary from the opinion's synopsis, to wit:

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.

Here'a a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/BarkesDebra.opn.pdf

Medical Malpractice: Respondeat Superior Saves the Day for Plaintiffs

The Tennessee Supreme Court issued its opinion today in Abshure v. Methodist Healthcare-Memphis Hosp., No. W2008-01486-SC-R11-CV (October 20, 2010). Here's the summary from the opinion's synopsis:

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.

Tennessee Pattern Jury Instructions -- Criminal

Here is a link to the Tennessee Pattern Jury Instructions -- Criminal that are available on the Tennessee Administrative Office of the Courts' ("AOC") Web Site:

http://www.tsc.state.tn.us/geninfo/Courts/LCI_Inst.shtml

P.S. I posted the criminal instructions previously in my May 20, 2009 post. They were , however, not from the AOC.

New Tennessee Supreme Court Decision on Hospital Liens

The Tennessee Supreme Court recently released its opinion in Shelby County Health Care Corp. v. Nationwide Mut. Ins. Co., No. W2008-01922-SC-R11-CV (Tenn. Oct. 13, 2010). A portion of the opinion's synopsis, which summarizes the Court's holding, is as follows:

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.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/SC%20Shelby%20Co%20Health%20Care%20Corp%20dba%20Regional%20Medical%20Center%20v%20Nationwide%20Mutual%20Insurance%20Co%20OPN.pdf

Equine Activities Act: Summary Judgment for the Defendants Reversed

The Middle Section of the Tennessee Court of Appeals offers a good discussion of the Equine Activities Act in Jordan v. YMCA of Mid. Tenn. , No. M2009-02369-COA-R3-CV (Tenn. Ct. App. Sept. 30, 2010).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Kerry%20Jordan%20v%20YMCA%20of%20Middle%20TN%20Opn.pdf

Medical Malpractice: Tennessee Supreme Court Holds Plaintiffs May Argue the Value of Non-Economic Monetary Damages to Jury

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

Medical Malpractice: 12-by-12 Sponge Sewn Up in a Patient---Who's a Judge!

This post is a sister post to my August 17, 2010 post below. My client had a large sponge sewn up in him during surgery in 2006. This story (see link below) is about a Florida judge who had the same thing happen to him.

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"?

September 11, 2001

Please honor those who died that day. They were innocent victims of a cowardly attack. God rest their souls.

Please also remember the families of those who died. May God be with them.

Medical Malpractice: Petition to Rehear Denied in Estate of Bell v. Shelby County Health Care Corp.

This post is related to my June 24, 2010 post about the Tennessee Supreme Court case of Estate of Bell v. Shelby County Health Care Corp. The Tennessee Supreme Court denied the petition to rehear the case, which was filed by Shelby County Health Care Corp.

Here's a link to the opinion denying the petition to rehear, to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/103/SC%20Estate%20Joyce%20Bell%20v%20Shelby%20Co%20Health%20Care%20Corp%20dba%20the%20Med%20opn.pdf

Medical Malpractice: Plaintiff's Claim Fails Due to Ineffective Service of Process

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.pdf

Medical Malpractice: Grant of Summary Judgment for Defense Reversed Due to the Common Knowledge Exception and Res Ipsa Loquitur, Etc.

Here is the opinion from the Middle Section of the Tennessee Court of Appeals in Deuel v. Surgical Clinic, PLLC, No. M2009-01551-COA-R3-CV (Tenn. Ct. App. Aug. 16, 2010). The opinion's syllabus reads:

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.

Here's a link to the slip opinion:

  http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Lorraine%20Deuel%20Administratrix%20Estate%20Clyde%20Deuel%20v%20The%20Surgical%20Clinic%20&%20Richard%20J%20Geer%20MD%20opn.pdf.

As a matter of disclosure, this is my case. It was the subject of my January 1, 2010 post. http://theduncanlawfirm.blogspot.com/search?q=sponge

Medical Malpractice: Plaintiff's Expert Fails to Satisfy Locality Rule

The Western Section of the Tennessee Court of Appeals just issued its opinion in Johnson v. Richardson, No. W2009-02626-COA-R3-Cv (Tenn. Ct. App. Aug. 12, 2010). Here's part of the syllabus from the majority opinion, to wit:

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.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Tina%20Johnson%20vs%20David%20J%20Richardson%20MD%20OPN.pdf

Here's a link to the concurring opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Tina%20Johnson%20vs%20David%20J%20Richardson%20MD%20CON%20opn.pdf

Medical Malpractice: Use of Transcribed Trial Testimony During Closing Argument

The Eastern Section of the Tennessee Coourt of Appeals issued its opinion in Chapman v. Lewis, No. E2009-01496-COA-R9-CV (Tenn. Ct. App. Jul. 28, 2010). The sole issue on appeal was set forth by the court as follows:

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?

The court held that the trial court erred and reversed the trial court's grant of a new trial to the plaintiff. Below is the syllabus from the opinion:

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.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Cathy%20L%20Chapman%20vs%20James%20V%20Lewis%20MD%20OPN.pdf

Trial Practice: Effecting a Review of a General Sessions Court Judgment in Circuit Court

The Middle Section of the Tennessee Court of Appeals issued its opinion in Tennessee Protection Agency, Inc., v. Mathies, No. M2009-01775-COA-R3-CV (July 23, 2010). Here's the syllabus from the opinion:

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.

Trial Practice: Hearsay & Expert Opinion Testimony

The Eastern Section of the Tennessee Court of Appeals issued its opinion in Holder v. Westgate Resorts Ltd., No. E2009-01313-COA-R3-CV (Tenn. Ct. App. Jul. 23, 2010). Here's the syllabus from the majority opinion, to wit:

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.

Here's a link to that opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/James%20Q%20Holder%20vs%20Westgate%20Resorts%20Ltd%20dba%20Westgate%20Smoky%20Mountain%20Resort%20at%20Gatlinburg.pdf

Judge Susano issued a separate concurring and dissenting opinion where he opined that the trial court did not err in sustaining the plaintiff's counsel's objection to the proffered testimony. In my very humble opinion, I think Judge Susano's opinion is accurate.

Here's a link to that opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/James%20Q%20Holder%20vs%20Westgate%20Resorts%20Ltd%20dba%20Westgate%20Smoky%20Mountain%20Resort%20at%20Gatlinburg%20CON%20opn.pdf

Medical Malpractice: Court of Appeals Reverses Trial Court's Grant of Summary Judgment Against Plaintiff, Etc.

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:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Vickie%20P%20Jacobs%20and%20Harris%20N%20Jacobs%20Deceased%20v%20Nashville%20Ear%20Nose%20&%20Throat%20Clinic%20OPN.pdf

Personal Injury: New Case on Causation & Damages

The Western Section of the Tennessee Court of Appeals just issued its opinion in Hampton v. Northwest Tenn. Human. Resource Agency, No. W2009-02668-COA-R3-CV (Tenn. Ct. App. Jul. 13, 2010). The opinion offers up a good discussion on the elements of causation and damages in a personal-injury case.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/hamptongOPN.pdf

New GTLA Opinion: Notice

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Bivins v. City of Murfreesboro, No. M2009-01590-COA-R3-CV (Jul. 9, 2010). The opinion offers a good discussion of notice under the GTLA.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Jennifer%20Bivins%20et%20al%20v%20City%20of%20Murfreesboro%20OPN.pdf

Medical Malpractice: Court of Appeals Upholds Trial Court's Grant of Summary Judgment for Defendants

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Clifford v. Tacogue, No. M2009-01703-COA-R3-CV (Tenn. Ct. App. Jul. 18, 2010). The syllabus from the opinion is as follows:

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.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Clifford%20v.%20Tacogue%20Opinion.pdf

The Declaration of Independence

This is a re-post. I watch these two clips this time every year. Hope you enjoy them. See below.

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

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

Changes to the Tennessee Rules of Court Effective Today

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

Trial Practice: Writ of Certiorari

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Stechebare v. Deere & Co., No. E2009-01514-COA-R3-Cv (Jun. 29, 2010). It does a good job of explaining the writ of certiorari.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Charles%20D%20Stechebar%20vs%20Deere%20&%20Co%20&%20John%20Doe%20opn.pdf

Medical Malpractice: Court of Appeals Reverses Trial Court

The Middle Section of the Tennessee Court of Appeals Just released its opinion in Howell v. Claiborne and Hughes Health Ctr., No. M2009-01683-COA-R3-CV (Tenn. Ct. App. June 24, 2010). The syllabus from the opinion states as follows:

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:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Shawn%20Howell%20for%20Jesse%20Franklin%20Browning%20Jr%20Estate%20vs%20Claiborne%20&%20Hughes%20Health%20Cntr%20OPN.pdf

Medical Malpractice: New Tennessee Supreme Court Decision

The Tennessee Supreme Court issued its opinion in Estate of Bell v. Shelby County Health Care Corp., No. W2008-02213-SC-S09-CV (June 24, 2010). Here's the syllabus from the first page of 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.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Estate%20of%20Joyce%20Bell%20v%20Shelby%20Co%20Health%20Care%20Corp%20DBA%20The%20Regional%20Medical%20Cntr.pdf

Medical Malpractice: Denial of Summary Judgement in the Plaintiff's Favor Reversed on Appeal

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Miller v. Birdwell, No. M2009-01730-COA-R3-CV (Tenn. Ct. App. Jun. 23, 2010).

The syllabus from the beginning of the opinion states as follows:

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:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Carol%20E%20Miller%20vs%20Joel%20S%20Birdwell%20MD%20OPN.pdf

Medical Malpractice: Tennessee Supreme Court Reverses Court of Appeals

The Tennessee Supreme Court issued its opinion today in Cox v. Primary and Urgent Care Clinic, M2007-01840-SC-R11-CV (Tenn. Jun. 21. 2010). The syllabus of the opinion states as follows:

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

Medical Malpractice: Pro Se Plaintiff's Case Dismissed Via Summary Judgment

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:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Nancy%20Luna%20vs%20Roger%20Deversa%20MD%20&%20Hamilton%20Co%20Hospital%20Auth%20opn.pdf

Surgery Centers & Infections

Here's an online article from MSNBC on the subject, to wit:

http://www.msnbc.msn.com/id/37577363/ns/health-health_care

Summary Judgment for Defendant Reversed Due to Failure to Comply with Tenn. R. Civ. P. 56.04

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:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Jerry%20A%20Winn%20v%20Welch%20Farm%20LLC%20and%20Richard%20Tucker%20OPN.pdf

Medical Malpractice: Court of Appeals Upholds Defense Verdict

The Western Section of the Tennessee Court of Appeals just released its opinion in Stanfield v. Neblett, No. W2009-01891-COA-R3-CV (Tenn. Ct. App. June 4, 2010). Among the issues raised were the following: (1) whether an expert may testify outside his or her Rule 26 disclosure; (2) expert qualifications; (3) cross-examining experts; and (4) the use of exhibits in opening statements and closing arguments. The Court of Appeals came down on the side of the defendants.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Teresa%20L%20Stanfield%20v%20John%20Neblett%20Jr%20MD%20etal%20OPN.pdf

UPDATE: As of June 20, 2010, this opinion has been withdrawn by the Western Section. A revised opinion was released July 23, 2010. Here is a link to the revised opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Teresa%20Lynn%20Stanfield%20v%20John%20Neblett%20Jr%20MD%20OPN.pdf

Jurors and the Internet, Etc.

I found this article to be very interesting, to wit: Douglas L. Keene & Rita R. Handrich, Online and Wired for Justice: Why Jurors Turn to the Internet, The Jury Expert, Nov. 2009, at 14. If you do any trial work, it is a must-read item.

Here's a link to the article:

http://www.astcweb.org/public/publication/documents/Keene%20Online%20&%20Wired%20TJE%20Nov20091.pdf

Memorial Day

Same gave all. Please remember them this weekend.

The Federalist Papers

Here's a link to an online version of The Federalist Papers (a.k.a. The Federalist), to wit:

http://usgovinfo.about.com/library/fed/blfedindex.htm##5

Peer-Review Privilege in Tennessee

The Tennessee Supreme Court issued opinions today concerning the peer-review privilege and its effects, to wit:

Lee Med., Inc. v. Beecher, No. M2008-02496-SC-S09-CV (Tenn. May 24, 2010):

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Lee%20Medical%20v%20Paula%20Beecher%20etal%20opn.pdf

Here’s the dissent by Justice Wade and Chief Justice Holder:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Lee%20Medical%20v%20Paula%20Beecher%20etal%20dis.pdf


Powell v. Cmty. Health Sys., Inc., No. E2008-00535-SC-R11-CV (Tenn. May 24, 2010):

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Kimberly%20Powell%20v%20Community%20Health%20Sys%20etal%20opn.pdf

Here’s the separate opinion by Justice Wade where he concurs in part and dissents in part:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Kimberly%20Powell%20v%20Community%20Health%20Sys%20etal%20con.pdf

Discretionary Costs

The Western Section of the Tennessee Court of Appeals just issued its opinion in Wade v. Vabnick, No. W2009-02273-COA-R3-Cv (Tenn. Ct. App. May, 24, 2010). This case is a medical malpractice case that was non-suited in state court and re-filed in federal court. One of the defendants, a physician, filed a motion seeking over $30,000 in discretionary costs with the state trial court, which was granted. The Court of Appeals winnowed the costs down to $3,851.15 because some of the costs sought by the defendant are not allowed under Rule 54.04 of the Tennessee Rules of Civil Procedure.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Wlla%20G%20A%20Wade%20v%20Felice%20A%20Vabnick%20MD%20OPN.pdf

Our Liberty or Our Safety?

It was true over 200 years ago, and it still is today, to wit:

[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.

The Federalist No. 8 (A. Hamilton).

I would prefer to give up neither. That is the tricky part.

Tennessee Healthcare Facility Information

Do you need an address or other information about a healthcare facility in Tennessee? If so, this link will help you out:

http://health.state.tn.us/HCF/Facilities_Listings/facilities.htm

Model Voir Dire Questions

Below is a link to model voir dire questions from the State of New Jersey. They offer a good outline for coming up with your own voir dire questions. 

To wit: <https://tinyurl.com/yknbjcfa>.

NOTE: I discovered that the link was broken and updated it on February 3, 2026. It should work now.