Tennessee State Court Rule Changes Effective July 1, 2013

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

Tenn. R. Civ. P.:

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

Tenn. R. Evid.:

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

Tenn. R. App. P.:

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

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

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

Tenn. R. Civ. P.:

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

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

 Tenn.  R.  Evid.:

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

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

Tenn. R. App. P.:

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

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

Tennessee Wrongful Death Cases

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

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

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

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

 http://www.tonydlaw.com

Thanks!

Oklahoma Supreme Court Strikes Down Affidavits of Merit as Unconstitutional

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

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

Or view it at this alternate link:

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

New Opinion on Personal-injury Claims in Bankruptcy

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

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

Here's a link to the opinion:

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

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

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

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

Here's a link to the opinion:

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

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

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

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

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

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

Here's a link to the opinion:

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

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

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

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

Here's a link to the opinion:

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

Representing Badly Injured Children in Personal Injury Cases

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

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

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

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

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

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

Here's a link to the opinion:

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

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

A Good Federal Resource: United States Attorneys' Manual

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

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

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

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

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

(Footnote omitted.)

Here's a link to the slip opinion:

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

A HIPAA Resource

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

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

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

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

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

Here's a link to the opinion:

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

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

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

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

Here's a link to the opinion:

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

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

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

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

Here is a link to the opinion, to wit:

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

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

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

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

Here's a link to the opinion:

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

Facebook Fights in Court to Protect User Content

Please read story at this link:

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

Seventh Anniversary!

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

The SMART Act

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

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

Online Basic Legal Citation Primer

Here's a link to an online basic legal citation primer, to wit:

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

Health Care Liability Action (f.k.a. Medical Malpractice Action): New Case on Sanctions under Tenn. Code Ann. sec. 29-26-122

The Tennessee Court of Appeals, Middle Section, recently issued its opinion in Kerby v. Haws, No. M2011-01943-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2012).  The summary from the slip opinion states as follows:

A woman who suffered a series of persistent infections after surgery filed a malpractice complaint against the defendant surgeon. Her complaint alleged that the infections were cause by a small metal object that the defendant had negligently left in her body during the surgery. The plaintiff attached to her complaint the statutorily required certificate of good faith, which certified that she had consulted with an expert, who provided a signed statement confirming that he believed, on the basis of the medical records, that there was a good faith basis to maintain the action. See Tenn. Code Ann. § 29-26-122. After the object was discovered to be a surgical clip of a type that was designed to be retained by the patient’s body, the defendant filed a motion for summary judgment, which the plaintiff did not oppose.  The defendant surgeon subsequently filed a motion for sanctions against the plaintiff under Tenn. Code Ann. § 29-26-122 (d)(3), which gives the court the authority to punish violations related to the certificate of good faith. The trial court granted the motion, and awarded the defendant doctor over $22,000 in attorney fees. We reverse.

Here's a link to the opinion:

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

Medical Malpractice: Statutorily Required Presuit Notice Does Not Provide 120-day Extension of One-year Statute of Limitations Against Governmental Entity

The Tennessee Court of Appeals released its opinion yesterday in Lawring v. Green Cnty. EMS, No. E2011-1201-COA-R9-CV (Tenn. Ct. App. Dec. 17, 2012). The summary of the opinion reads as follows:

In this action the defendants filed a Motion for Summary Judgment on the grounds the statute of limitation had run on plaintiff's cause of action. The Trial Court overruled the Motion on the grounds that the tolling provisions in Tenn. Code Ann. § 29-20-201(c) was applicable to GTLA actions and granted permission to appeal pursuant to Tenn. R. App. P. 9. On appeal, we hold that the tolling provision does not apply because the statute did not expressly extend it to GTLA actions.

The issue on appeal was stated on page 3 of the opinion as follows: 

Does the medical malpractice pre-suit notice requirement contained in Tennessee Code Annotated §29-26-121(a) operate to toll the one year statute of limitations for bringing suit against a governmental entity under the GTLA?

Here's a link to the opinion:

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

This opinion, which was issued by the Eastern Section Court of Appeals, is in direct contradiction to the opinion released by the Middle Section Court of Appeals in Cunningham ex rel. Cunningham v. Williamson Cnty. Hosp. Dist., which was the subject of my December 1, 2011 post, to wit:

http://theduncanlawfirm.blogspot.com/2011/12/medical-malpractice-statutorily.html

The Tennessee Supreme Court granted permission to appeal in Cunningham on April 16, 2012.  It was argued on October 3, 2012.  To state the obvious, the decision in that case will affect the outcome of this case.  

The Importance of Uninsured/Underinsured Motorist Coverage

This post is a lot like a public service announcement.  To any and all persons out there who own and drive a care, please contact your insurance agent and make sure you have uninsured/underinsured ("UM/UIM") coverage.  And if you are in Tennessee, get no less that fifty thousand in coverage (of course the more coverage you have, the better).

Making sure you have enough UM/UIM coverage might be the best decision you ever make.  This is because UM/UIM might be the only source of a monetary recovery you will have if a person hits you who doesn't have liability insurance (an uninsured situation); and it might provide additional monies as further compensation if the person who hits you doesn't have enough coverage (an underinsured situation).

Tony Duncan Named a 2012 Mid-South Super Lawyer

I want to begin by saying that I am sorry for not posting anything in a while.  I have been busy (like all of us); I've got two jury trials coming up in December that have been taking up a lot of my time.

Anyway, I did want to post that I have been selected to as a 2012 Mid-South Super Lawyer again, which is a great honor; I am truly humbled.  Below is a link to the digital edition to Mid-South Super Lawyers (2012).  I am on Page 33.

http://digital.superlawyers.com/superlawyers/midsouth2012?pg=33#pg1

News from CDC on Fungal Meningitis

Please read the information from the CDC at this link:

http://www.cdc.gov/meningitis/fungal.html

If you have any questions about this issue, please, do not hesitate to call my law firm to discuss.

Civil Procedure: Substitution of a Representative Plaintiff Who Died During Pendency of Wrongful Death Action

The Tennessee Court of Appeals, Western Section, just issued its opinion in Holley ex rel. Holley v. Blackett, No. W2011-02115-COA-R3-CV (Tenn. Ct. App. Oct. 10, 2012).  The summary from the opinion states as follows:

This appeal involves an attempt to substitute parties after the original plaintiff in this wrongful death case died. The trial court struck the motion to substitute parties and dismissed the case. We reverse and remand for further proceedings.

Here's a link to the opinion:

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

Medical Malpractice: New Tenn. Sup. Ct. Opinion on Presuit Notice and Certificates of Good Faith

The Tennessee Supreme Court recently issued its opinion in Myers v. AMISUB (SFH), Inc., No. W2010-00837-SC-R11-CV (Tenn. Oct. 4, 2012).  Here's the summary from the slip opinion, to wit:

The plaintiff filed a medical malpractice action against several health care providers and subsequently dismissed the lawsuit. He re-filed the action after the legislature enacted Tennessee Code Annotated section 29-26-121, which requires a plaintiff who files a medical malpractice suit to give health care providers who are to be named in the suit notice of the claim sixty days before filing the suit; and Tennessee Code Annotated section 29-26-122, which requires a plaintiff to file with the medical malpractice complaint a certificate of good faith confirming that the plaintiff has consulted with an expert who has provided a signed written statement that there is a good-faith basis to maintain the action. The defendants moved to dismiss the complaint based on the plaintiff’s failure to comply with Tennessee Code Annotated sections 29-26-121 and 122. The trial court denied the motion, finding that the plaintiff’s original suit constituted substantial compliance with the statutes’ requirements and that extraordinary cause existed to excuse compliance with the requirements of Tennessee Code Annotated section 29-26-121. Upon interlocutory appeal, the Court of Appeals reversed. We hold that the statutory requirements that a plaintiff give sixty days presuit notice and file a certificate of good faith with the complaint are mandatory requirements and not subject to substantial compliance. The plaintiff’s failure to comply with Tennessee Code Annotated section 29-26-122 by filing a certificate of good faith with his complaint requires a dismissal with prejudice.

Here's a link to the unanimous opinion:

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

Medical Malpractice & Concurrent Common-law Negligence Claims

The Middle Section of the Tennessee Court of Appeals recently issued its opinion Parker v. Portland Nursing & Nursing Rehab., No. M2011-02633-COA-R9-CV (Tenn. Ct. App. Aug. 30, 2012).  The summary of the opinion states as follows:

In this action, the plaintiff has attempted to assert claims for ordinary negligence and medical malpractice against nursing home defendants by filing two separate actions and then seeking to consolidate the cases or to amend the complaint to assert both types of claims in one case.  The first complaint filed only asserted claims for ordinary negligence against the nursing home defendants. Sixty days after having given the statutory notice to the healthcare providers of her intent to file medical malpractice claims, the plaintiff commenced a separate action against the same nursing home defendants and an additional defendant, a physician who treated the nursing home patient, by filing a complaint for medical malpractice. Upon motions of the nursing home defendants, the trial court refused to consolidate the cases, dismissed the medical malpractice claims against the nursing home defendants upon the ground of a prior suit pending, and denied the plaintiff’s motion to amend the complaint in the first case to add claims for medical malpractice against the nursing home defendants.  Having determined that the plaintiff complied with Tennessee Code Annotated § 29-26-121(a) by giving the requisite 60 days notice to the medical providers and that the statute of limitations had not run, we have concluded that the trial court erred in denying the plaintiff’s Tennessee Rule of Civil Procedure 15.01 motion to amend the complaint. Accordingly, we reverse and remand with instructions to grant the plaintiff’s motion to amend the complaint for ordinary negligence against the nursing home defendants thus allowing the plaintiff to assert medical malpractice claims against the nursing home defendants and for further proceedings consistent with this opinion.

Here's a link to the opinion:

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

Caveat: As noted in Footnote 4, this opinion only affects claims that accrued before October 1, 2011, which was the effective date of the Tennessee Civil Justice Act of 2011 (which is the furthest thing from justice one could imagine, in my humble opinion).  See T.C.A. § 29-26-101(c) (Westlaw 2012) (making all "health care liability actions" subject to Tennessee's Medical Malpractice Act).  A "health care liability action" is any civil action filed against a "health care provider" who provides "health care services." Id.  

September 11, 2011

Never forget.  Never.

Medical Malpractice: New Case on Presuit Notice and Certificates of Good Faith

The Middle Section for the Tennessee Court of Appeals recently issued its opinion in Hinkle v. Kindred Hosp., No. M2010-02499-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2012).  The summary of the opinion is as follows:

The widow of a man who suffered a devastating injury while undergoing a medical procedure in the defendant hospital filed suit against the hospital and the doctor who ordered the procedure, claiming medical malpractice, failure to obtain informed consent, and battery.  The defendant hospital filed a motion for summary judgment, and the defendant doctor filed a motion to dismiss, both arguing that the plaintiff’s malpractice claims had to be dismissed because she failed to strictly comply with requirements of the Medical Malpractice Act, specifically Tenn. Code Ann. § 29-26-121 (a)(1) (60-day notice) and §29-26-122(a) (certificate of good faith). The trial court granted both motions in part and denied them in part. We reverse the trial court’s dismissal of the medical malpractice claims against both defendants as well as the related claims. We also reverse the trial court’s dismissal of the claim against the defendant doctor for failure to obtain the patient’s informed consent, but we affirm its dismissal of the medical battery claim against the defendant doctor.

Here's a link to the majority opinion:

https://www.tba.org/sites/default/files/hinkled_090412.pdf

Here's a link to the partial concurrence and dissent by Judge Dinkins:

https://www.tba.org/sites/default/files/hinkled_DIS_090412.pdf

Medical Malpractice: Another Opinion on Presuit Notice and the Saving Statute

The Tennessee Court of Appeals (Western Section) recently issued its opinion in Childs v. UT Medical Group, Inc., No. W2011-01901-COA-R3-CV (Tenn. Ct. App. August 8, 2012).  The opinion discusses the interplay between the newly enacted presuit notice provisions to medical malpractice claims and the saving statute.  Here's the summary from the slip opinion:

Plaintiffs filed a voluntary notice of nonsuit in this medical malpractice action in July 2009.  They refiled their claim in September 2010. The trial court dismissed Plaintiffs’ claim for failure to comply with Tennessee Code Annotated § 29-26-121 Plaintiffs appeal. We affirm.

Here's a link to the opinion:

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

New Opinion on Service of Process, Default Judgments, Appellate Practice, Etc.

The Court of Appeals (Middle Section (panel from the Eastern Section)) issued its opinion in Ramsay v. Custer, No. M2011-02490-COA-R3-CV (Tenn. Ct. App. Jul. 31, 2011).  The summary from the opinion states as follows:

In this case, the Trial Court initially granted plaintiff a default judgment against the defendant, and set a trial on the issue of damages. Defendant was given notice of the subsequent hearing, and defendant's attorney moved to set aside the default judgment, which the Trial Court granted and dismissed plaintiff's case. Plaintiff has appealed. We affirm the Judgment of the Trial Court.

 Here is a link to the opinion:

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

Missouri Supreme Court Strikes Down Caps on Noneconomic Damages as Unconstitutional

On July 31, 2012, the Missouri Supreme Court released its opinion in Watts ex rel. Watts v. Lester E. Cox Med. Ctrs., No. SC91867 (Mo. Jul. 31, 2012) (en banc).  The opinion holds, inter alia, that Missouri's cap on noneconomic damages is unconstitutional. 

Here's a link to the slip opinion:

http://www.courts.mo.gov/file.jsp?id=55761

Medical Malpractice: New Opinion on the Locality Rule Post-Shipley

Today, the Tennessee Court of Appeals, Eastern Section, issued its opinion in Meares v. Traylor, No. E2011-02187-COA-R3-CV (Tenn. Ct. App. Jul. 27, 2012).  

Plaintiffs charged defendant with medical malpractice. The case was tried before a jury, resulting in a judgment for the defendant. An out-of-state medical doctor testified on behalf of the defendant, over the objection of plaintiffs. Plaintiffs have appealed to this Court, insisting that it was reversible error for the Trial Court to allow that expert to testify in violation of the "Locality Rule". On appeal, we affirm the Judgment of the Trial Court.

Here's a link to the opinion:

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

Medical Malpractice: Summary Judgment for Defense Reversed and Trial Court Order to Exercise Its Discretion to Determine If "Extraordinary Cause" Exists Upon Remand

Yesterday, the Western Section of the Tennessee Court of Appeals issued its opinion in Hawkins v. Martin, No. W2011-02318-R3-CV (Tenn. Ct. App. Jul. 24, 2012).  The summary from the opinion states as follows:

The trial court granted Defendants’ motion to dismiss in this medical malpractice action where Plaintiff failed to attach a HIPPA compliant medical authorization to her notice to Defendants prior to filing her complaint as required by Tennessee Code Annotated § 29-26-121. Plaintiff appeals. We vacate and remand for further proceedings.

Here's a link to the opinion:

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

Pray for the People in Colorado

Please pray for the people affected by the senseless act in Aurora, Colorado. Keep them in your thoughts, too.

There but for the grace of God, go I.  

:-(

Tennessee Legal Resources

Below is the list I bring with me when I go to the library.  It's a work-in-progress, and by no means perfect, but it's what I use.  (The numbering for the print resources is, of course, per the L.C.C., to wit: http://en.wikipedia.org/wiki/Library_of_Congress_Classification.)

TENNESSEE LEGAL RESOURCES

I. Statutory Materials

Print

Acts of the State of Tennessee passed by the General Assembly, KFT 25 .A23; Microfiche 266
West’s Tennessee Code Annotated, KFT 30 2001 .A44
West's Tennessee Code Annotated. Constitution volume, KFT 30 2001 .A44 vol. 1
Hein’s Superseded State Statutes and Codes, Microfiche 3093 (1831 -present)

Online

Michie’s Tennessee Code & Constitution (powered by Lexis)

LexisNexis


Tennessee Constitution (TNCNST)
Tennessee Code Annotated (CODE)
Tennessee Advance Legislative Service (TNALS)

Westlaw

West's Tennessee Statutes - Annotated (TN-ST-ANN)
Tennessee Statutes (West's) - Unannotated (TN-ST)
Tennessee Statutes - Annotated (TN-STANN01 - TN-STANNO8; TN-STMANN86 - TN-STMANN07) (1986 - present)

II. Legislative Materials

Print

Tennessee. General Assembly. House. Journal, KFT 18 .T2 yr.c
Tennessee. General Assembly. Senate. Journal, KFT 18 .T2 yr.b

Online

Legislation
Legislative Search
Senate Journal
House Journal

Additional digitized volumes of the legislative journals may be available through the following sources:

Google Books
Hathi Trust

LexisNexis

Tennessee Full-Text Bills (TNTEXT)
Tennessee Bill Tracking Reports (TNTRCK)
Tennessee Legislative Bill History (TNLH) (1999 - present)

Westlaw

Tennessee Legislative Service (TN-LEGIS)
Tennessee Bill Tracking - Summaries & Full Text Combined (TN-BILLS)
Tennessee Bill Tracking (TN-BILLTRK)
Tennessee Bill Tracking - Full Text (TN-BILLTXT)
Tennessee Bill Archives (TN-BILLS-OLD)
Tennessee Legislative History (TN-LH)
Tennessee Historical Legislative Service (TN-LEGIS-OLD) (1990 - present)

III. Administrative Regulations &  Materials


Print

Official Compilation Rules & Regulations of the State of Tennessee, KFT 35 1975 .A22
Tennessee Administrative Register, KFT 36 .T4

Online

Rules & Regulations
The Tennessee Administrative Register (T.A.R.)

LexisNexis

Rules and Regulations of the State of Tennessee (TNADMN)
Tennessee Administrative Register (TNRGST) (1999 - present)
Tennessee Bulletins & Notices (TNBLTN) (1983 - present)
Tennessee State Net Regulatory Text (TNRTXT) (1999 - present)
Tennessee State Regulation Tracking (TNRGTR) (recent two years)

Westlaw


Tennessee Administrative Code (TN-ADC)
Tennessee Administrative Code (TN-ADCO02 - TN-ADCO08)
Tennessee Regulation Tracking (TN-REGTRK)
Tennessee Regulation Tracking - Full Text (TN-REGTXT)
Tennessee Administrative Hearing Procedure Rules (TNWC-ADCAH)

IV. Administrative Decisions

Print

Opinions of the Attorney General of Tennessee, KFT 440 .A556

Online

Attorney General Opinions (2000 – present)

LexisNexis

Tennessee Attorney General Opinions (TNAG) (1977 - present)
Tennessee Regulatory Utility Commission Decisions (TNPUC) (1996 - present)
Tennessee Special Workers' Compensation Appeals Panel (TNSWCA) (1992 - present)

Westlaw

Environmental Law Administrative Decisions (TNENV-ADMIN)
Public Utilities Reports (TN-PUR)
Tennessee Workers' Compensation Administrative Code (TNWC-ADC)
Tennessee Administraive Hearing Procedure Rules (TNWC-ADCAH)
Tennessee Attorney General Opinions (TN-AG)

V. State Cases & Judicial Materials

Print

West’s South Western Reporter (S.W., S.W.2d, S.W.3d), KF 135 .S7
Tennessee Appeals Reports, KFT 48 .A2
Tennessee Criminal Appeals Reports, KFT 49 .C7 1969
Tennessee Reports, KFT 45 .A2

Finding Aids

West’s Tennessee Digest 2d, KFT 57 .T4 1986

Online

Supreme Court (1995 – present)
Court of Appeals (1995 – present)
Court of Criminal Appeals (1995 – present)

LexisNexis

Tennessee Supreme Court Cases (TENN) (1791 - present)
Tennessee Court of Appeals Cases (APP) (1925 - present)
Tennessee Court of Criminal Appeals Cases (1967 - present)
Tennessee Chancery Appeals Cases (CHAPP) (1895 - 1901)

Westlaw

State Courts (TN-CS) (Superior Court of the Territory South of the River Ohio: 1791 - 1796; Superior Court of Law and Equity: 1799 - 1809; Supreme Court of Errors and Appeals: 1811 - 1835; Supreme Court: 1835 - present; Court of Appeals: 1925 - present; Court of Criminal Appeals: 1967 - present; Court of Chancery Appeals: 1895 - 1901)
Tennessee Supreme Court Briefs (TN-SCT-BRIEF) (select coverage 2003 - present)
Tennessee Court of Appeals Briefs (TN-APP-BRIEF) (select coverage 2003 - present)

VI. Court Rules (State)

Print

Tennessee Rules of Court: Local, KFT 529 .A197 Local
Tennessee Rules of Court: State, KFT 529 .A197 State

Online

Court Rules

LexisNexis

TN - Tennessee State & Federal Court Rules (TNRULE)

Westlaw

Tennessee Court Rules (TN-RULES)
Tennessee Rules Update Orders (TN-RULESUPDATES)
Criminal Justice - Tennessee Court Rules (TNCJ-RULES)

VII. Jury Instructions (State)

Print

Tennessee Pattern Jury Instructions. Civil, KFT 80 .T4 1967 v. 8
Tennessee Jury Instructions: Criminal Cases, KFT 583 .S45

Online

Pattern Jury Instructions (Not official ones)
Criminal Pattern Jury Instructions (Not official ones)

LexisNexis

Tennessee Civil Jury Instructions - TBD
Tennessee Criminal Jury Instructions - TBD

Westlaw

Tennessee Practice Series Tennessee Pattern Jury Instructions - Civil (TINPRACJIC)
Tennessee Practice Series Tennessee Pattern Jury Instructions - Criminal (TNPRACJICR)
Tennessee Civil Jury Instruction Filings (TN-JIF-CIV)
Tennessee Jury Verdicts Combined (TN-JV)
Jury Verdict and Settlement Summaries - Tennessee (LRPTN-JV)

VIII. Forms (State)


Print

Tennessee Divorce, Alimony & Child Custody with Forms, KFT 80 .T4 1967 vol. 19
Legal Forms, KFT 80 .T4 1967 vols. 12 - 15
Civil Procedure Forms, KFT 80 .T4 1967 vols. 5 - 6

Online

http://www.tsc.state.tn.us/node/431 (Tennessee state trial court forms)

LexisNexis

All TN LexisNexis Forms (LFTNAL)
Tennessee Forms for Business Transactions (TNFBUS)
Tennessee Forms for Civil Litigation (TNFCIV)
Tennessee Forms for Criminal Law (TNFCRM)
Tennessee Forms for Estate Practice (TNFEST)
Tennessee Forms for Real Estate (TNFRE)

Westlaw

Tennessee Form Finder (TN-FORMFINDER)
Tennessee Forms (TN-FORMS)
Tennessee Practice Series Civil Procedure Forms (TNPRAC-CPF)
Tennessee Practice Series Legal Forms (TNPRAC-LF)

IX. Federal Cases & Judicial Materials

Print

U.S. Reports (U.S.), KF 101 .U2
Supreme Court Reporter (S.Ct.), KF 101 .S9
United States Supreme Court Reports, Lawyer’s Edition (L.Ed., L.Ed.2d), KF 101 .U58
Federal Reporter (F., F.2d, F.3d), KF 105 .F4
Federal Supplement (F.Supp., F.Supp.2d), KF 120 .F4
Federal Rules Decisions (F.R.D.), KF 120 .F45
West’s Bankruptcy Reporter (B.R.), KF 1515 .A2 W47

Finding Aids

West's Federal Practice Digest, KF 127 .F4
West’s Bankruptcy Digest, KF 1515.3 .W475

Online

U.S. Supreme Court
U.S. Court of Appeals for the Sixth Circuit (1999 – present published; 2004 – present unpublished)
U.S. District Court for the Eastern District of Tennessee
U.S. District Court for the Middle District of Tennessee (PACER subscription)
U.S. District Court for the Western District of Tennessee
U.S. Bankruptcy Court for the Eastern District of Tennessee (by Judge)
U.S. Bankruptcy Court for the Middle District of Tennessee
U.S. Bankruptcy Court for the Western District of Tennessee (ECF Database)

LexisNexis (Federal Cases)

U.S. Supreme Court Briefs (BRIEFS) (1936 - present)
U.S. Supreme Court Cases, Lawyers' Edition (USLED) (1790 - present)
United States Court of Federal Claims, Claims Court & Court of Claims Cases (1856 - present)
Federal Circuit - U.S. Court of Appeals Cases (CAFC) (1982 - present)
U.S. Bankruptcy Court Cases (BANKR) (1979 - present)
Federal Civil Procedure Cases (FEDCIV) (varies by court)

Local Federal Case

Sixth Circuit - U.S. Court of Appeals Cases (6CIR) (1912 - present)
TN Federal District Courts (TNDIST) (1832 - present)

Westlaw (Federal Cases)

All U.S. Supreme Court Cases (SCT) (1790 - present)
U.S. Supreme Court Briefs Multibase (SCT-BRIEF-ALL) (1870 - present)
U.S. Court of Appeals Cases (CTA) (1891 - present)
U.S. Court of Appeals Briefs (CTA-BRIEF) (1972 - present)
Federal Rules Decisions Cases (FRD-CS) (1938 - present)
U.S. Court of Federal Claims Cases (FEDCL) (1945 - present)
U.S. Court of Claims - Before 1945 (FEDCL-OLD) (1856 - 1944)


Local Federal Cases

U.S. Court of Appeals for the Sixth Circuit Cases (CTA6) (1945 - present)
Federal Bankruptcy Cases - Sixth Circuit States (FBKR-CS6) (1797 - present)
U.S. District Court Cases for Tennessee (DCTTN) (1945 - present)
U.S. District Court Cases for Tennessee - Before 1945 (DCTTN-OLD) (1807 - 1944)

X. Court Rules (Federal)

Print

Federal Civil Judicial Procedure and Rules, KF 8816 .A193 [year] Reserve
Federal Criminal Code and Rules, KF 9607.523 .A19 F4 [year] Reserve
Federal Local Court Rules 3d, KF 8820 .A2 2001 Reserve
Local Rules of the Bankruptcy Courts. Sixth Circuit, KF 1527 .A4 6th
Tennessee Rules of Court: Federal, KFT 529 .A197 Federal

Online

Supreme Court Rules
Federal Rules of Civil Procedure
Federal Rules of Criminal Procedure
Federal Rules of Evidence
Federal Rules of Appellate Procedure
Federal Rules of Bankruptcy Procedure

U.S. Court of Appeals for the Sixth Circuit 

U.S. Bankruptcy Appellate Panel for the Sixth Circuit
U.S. District Court for the Eastern District of Tennessee
U.S. District Court for the Middle District of Tennessee
U.S. District Court for the Western District of Tennessee
U.S. Bankruptcy Court for the Eastern District of Tennessee
U.S. Bankruptcy Court for the Middle District of Tennessee
U.S. Bankruptcy Court for the Western District of Tennessee

LexisNexis

USCS - Federal Rules of Civil Procedure (FRCP)
USCS - Federal Rules of Criminal Procedure (FRCRP)
USCS - Federal Rules of Evidence (FRE)
USCS - Federal Rules of Appellate Procedure (FRAP)
USCS - Bankruptcy Rules and Official Bankruptcy Forms (BKRULE)
USCS - Rules of the Supreme Court of the United States (SUPRUL)
LocSixth Circuit - USCS - Court of Appeals Rules (6CRUL)
TN - Tennessee State & Federal Court Rules (TNRULE)

Westlaw

Federal Rules (US-RULES)

KeyRules - Tennessee - U.S. District Court (KEYRULES-TN-DCT)

XI. Jury Instructions (Federal)

Print

Sixth Circuit Manual of Model Jury Instructions — Civil, KF 8884 .M27 2005 Reserve
Sixth Circuit Manual of Model Jury Instructions — Criminal, KF 9682 .A65 U58 2007 Reserve
Pattern Jury Instructions, Criminal Cases, KF 9682 .A65 U61
Pattern Jury Instructions, Civil Cases, KF 8984 .A65 U61 Reserve
Federal Jury Practice and Instructions 6th [Jury Trial], KF 8984 .M3 2006
Federal Jury Practice and Instructions 5th [Civil and Criminal], KF 8984 .M3 2000

Online

Sixth Circuit Criminal Pattern Jury Instructions

LexisNexis

Modern Federal Jury Instructions - Civil (MOFCIV)
Modern Federal Jury Instructions - Criminal (MOFEJI)
USCS Federal Sentencing Guidelines (GLINE)

Westlaw

Federal Jury Practice and Instructions - Civil (FED-JICIV)
Federal Jury Practice and Instructions - Criminal (FED-JICRIM)
Federal Criminal Justice - Federal Sentencing Guidelines (FCJ-FSG)

XII. Forms (Federal)

Print

Federal Local Court Forms 3d, KF 8836 .H58 2002 Reserve
Am.Jur. Pleading and Practice Forms, KF 8836 .A45 1967
Bender's Federal Practice Forms, KF 8836 .B45
Federal Procedural Forms, L.Ed., KF 8836 .F4
West's Federal Forms, KF 8836 .W4 1969
Complete Manual of Criminal Forms, KF 9616 .B3 1993

Online

U.S. Court of Appeals for the Sixth Circuit
U.S. District Court for the Eastern District of Tennessee
U.S. District Court for the Middle District of Tennessee
U.S. District Court for the Western District of Tennessee
U.S. Bankruptcy Court for the Eastern District of Tennessee
U.S. Bankruptcy Court for the Middle District of Tennessee
U.S. Bankruptcy Court for the Western District of Tennessee

LexisNexis

Bender's Federal Practice Forms (FDPRAC)

Westlaw

West's Federal Forms (FEDFORMS) (Supreme Court, Courts of Appeals, District Courts, Bankruptcy    
Court, Admirality Court, National Court & Tax Court)
Federal Procedural Forms (FEDPROF)

XIII. State Government Resources

Official Web Site of the State of Tennessee
Office of the Governor
Tennessee Frequently Used Forms
Tennessee State Library and Archives

Westlaw

Sourcebook Tennessee State Agencies (SB-TN-AGENCY)

XIV. Local Government Resources

Municode
Counties & Cities

XV. Ethics

Rules of Professional Conduct
Ethics Opinions
Code of Judicial Conduct

LexisNexis

Tennessee Judicial Ethics Committee Opinions (TNJETH) (1997 - present)
National Reporter on Legal Ethics and Professional Responsiblity - TN Opinions (1992 - present)


Westlaw

Ethics Opinions (Board of Professional Responsibility (TNETH-EO)

XVI. Practice Materials

Print

Tennessee Jurisprudence: an Encyclopedia of Tennessee Law, KFT 65 .T46 1982
Tennessee Legal Research, KFT 75 .M37 2007
Tennessee Practice, KFT 80 .T4 1967

Online

Tennessee Commission on Continuing Legal Education & Specialization
TennBarU (CLE from the Tennessee Bar Association)

XVII. Bar Associations & Law Schools


Print

Tennessee Bar Association
The Tennessee Bar Journal [KF 200 .T4]
Journal of Copyright, Entertainment and Sports Law [KF 200 .J612]
Chattanooga Bar Association
Knoxville Bar Association
Memphis Bar Association
Nashville Bar Association
University of Memphis Cecil C. Humphreys School of Law
Law Library
The Tennessee Journal of Practice & Procedure [The University of Iowa Libraries InfoLink]
University of Memphis Law Review [K 13 .E572]
Nashville School of Law
University of Tennessee College of Law
Law Library
Tennessee Law Review [K 24 .E663]
Vanderbilt University Law School
The Alyne Queener Massey Law Library
Vanderbilt Journal of Entertainment & Technology Law [K 26 .A54]
Vanderbilt Journal of Transnational Law [JX 1 .V36]
Vanderbilt Law Review [K 26 .A627]

LexisNexis


Tennessee Bar Journal (TNBARJ) (2002 - present)
Tennessee Journal of Law & Policy (TNJOLP) (2004 - present)
The Tennessee Journal of Practice & Procedure (TNJPP) (1997 - present)
Tennessee Law Review (TENLR) (1970 - present)
Transactions: The Tennessee Journal of Business Law (TRTJBL) (1999 - present)
University of Memphis Law Review (MSULR) (1994 - present)
Vanderbilt Journal of Entertainment and Technology Law (VJELP) (1999 - present)
Vanderbilt Journal of Transnational Law (VJTL) (1994 - present)
Vanderbilt Law Review (VANDLR) (1982 - present)

Westlaw

Tennessee Bar Journal (TNBJ) (1983 - present)
Tennessee Law Review (TNLR) (select coverage 1983 - 1992; full coverage 1993 - present)
Transactions: Tennessee Journal of Business Law (TTNJBL) (1999 - present)
University of Memphis Law Review (UMPSLR) (1983 - present)
Vanderbilt Journal of Entertainment and Technology Law (VNJETL) (1999 - present)
Vanderbilt Journal of Transnational Law (VNJTL) (select coverage 1983 - 1993; full coverage 1993 - present)
Vanderbilt Law Review (VNLR) (select coverage 1981 - 1984; full coverage 1984 - present)

Comparative Fault: New Tennessee Supreme Court Case on Tenn. Code Ann. sec. 20-1-119

The Tennessee Supreme Court just issued its opinion in Mann v. Alpha Tau Omega Fraternity, No. W2010-02316-SC-R11-CV (Tenn. July 3, 2012).  The summary of the Court's opinion is a s follows:

We accepted this appeal of a personal injury action to determine whether the dismissal of a defendant pursuant to a written order not made final under Tennessee Rule of Civil Procedure 54.02 renders that defendant “not a party to the suit” for purposes of Tennessee Code Annotated section 20-1-119. We answer this question in the affirmative. Because the Court of Appeals upheld the judgment of the trial court dismissing the appellees from the Manns’ second amended complaint as time-barred, we reverse the Court of Appeals and remand to the trial court for further proceedings.

Here's a link to the opinion:

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

The Declaration of Independence

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

Have a great and happy Fourth of July, folks!

Medical Malpractice: Saving Statute NOT Extended by Presuit Notice Letters

Yesterday, the Western Section of the Tennessee Court of Appeals held that Tennessee's saving statute is not extend by presuit notice letters in medical malpractice cases.  The opinion is Johnson v. Floyd, No. W2012-00207-COA-R3-CV (Tenn. Ct. App. Jun. 29, 2012).  The syllabus of the opinion states as follows:

This case concerns the application of the medical malpractice notice requirement to a lawsuit that was previously nonsuited and then re-filed pursuant to the saving statute. The children of a woman who died due to alleged medical negligence filed suit against the defendant medical providers. The children subsequently nonsuited the lawsuit. Within one-year of the nonsuit, the children sent notice of a potential claim to the medical providers. Within one year and 120 days from the nonsuit, the children re-filed their claim. The medical providers moved to dismiss on the ground that the claim was not filed within the one-year period provided by the saving statute and, as such, was barred by the applicable statute of limitations. The trial court dismissed the action and the children appealed. Concluding that the saving statute, Tennessee Code Annotated Section 28-1-105(a) is not an “applicable statute[] of limitations or repose,” we hold that the saving statute is not extended by compliance with the medical malpractice notice requirement, Tennessee Code Annotated Section 29-26-121(c). Affirmed and remanded.

Here's a link to the opinion:

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

This opinion is in direct conflict with one issued by the Middle Section of the Tennessee Court of Appeals in Rajvongs v. Wright, No. 2011- 01889-COA-R9-CV (Tenn. Ct. App. Jun.  18, 2012), which held that presuit notice letters did extend the saving statute.  (Rajvong was the subject of my June 21 post, which can be viewed at this link: Tony Duncan Law: Medical Malpractice: Saving Statute Extended by Notice Letters.)

UPDATE: Please see my Feb. 6, 2014 post where the Court of Appeals issued a new opinion in this case upon mandate from the Tennessee Supreme Court.

Medical Malpractice: Defense Verdict Reversed on Appeal Due to Errors in Trial Court Below

The other day, the Tennessee Court of Appeals for the Eastern Section released its opinion in Mayo v. Shine, No. E2011-01745-COA-R3-CV (Tenn. Ct. App. Jun. 25, 2012).  The opinion is a must-read for all trial lawyers who practice in the area of medical malpractice (plaintiff or defense) because it discusses topics such as opening statements, cross-examining of a defendant, and trial judge conduct. The summary of the opinion reads as follows:

Zona Mayo (“Plaintiff”) sued Donna L. Shine, M.D., Fort Sanders Obstetrical and Gynecological Group, P.C., and Fort Sanders Regional Medical Center (“the Hospital”) alleging medical malpractice in connection with Plaintiff’s birth. After a jury trial, the Trial Court entered judgment on the jury’s verdict finding and holding that neither Dr. Shine nor the Hospital were legally responsible for any harm suffered by Plaintiff. Plaintiff appeals raising issues regarding alleged jury misconduct and alleged errors with regard to admission of evidence, among other things. We find and hold that Plaintiff is entitled to a new trial due to errors in the admission of specific evidence and the improper limitation of Plaintiff’s cross-examination of Dr. Shine, among other things. We vacate the Trial Court’s judgment and remand this case to the Trial Court for a new trial in compliance with this Opinion.

Here's a link to the opinion:

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

Medical Malpractice: Saving Statute Extended by Presuit Notice Letters

This week, the Tennessee Court of Appeals (Middle Section) issued an opinion holding that Tennessee's saving statute was extended by the statutorily required notice letters to healthcare providers in medical malpractice cases.  The case is Rajvongs v. Wright, No. M2011-01889-COA-R9-CV (Tenn. Ct. App. Jun.  18, 2012).  The summary from the slip opinion reads as follows:

A patient who alleged that he had been negligently injured by his podiatrist filed a complaint against him for malpractice, and then voluntary dismissed the complaint without prejudice. Less than a year later, he furnished the defendant podiatrist with the sixty day notice of potential claim required by a recently enacted statute, Tenn. Code Ann. § 29-26-121(a). He subsequently refiled his complaint in reliance on his rights under the saving statute, Tenn. Code Ann. § 28-1-105. The defendant filed a motion for summary judgment, arguing that the complaint was time-barred under the saving statute because it was filed more than one year after the dismissal of the original complaint. The plaintiff contended, however, that he was entitled to the benefit of Tenn. Code Ann. § 29-26-121(c), which extends the statute of limitations on medical malpractice claims by 120 days if the plaintiff has complied with the sixty day notice requirement. The defendant responded by arguing that Tenn. Code Ann. § 29-26-121(c) does not apply to complaints filed under the saving statute. The trial court dismissed the defendant’s motion for summary judgment, but allowed him to file an application for interlocutory appeal because of the novelty of the legal question involved.  After careful consideration of the relevant statutes, we hold that Tenn. Code Ann. § 29-26-121(c) does apply to the saving statute, and we affirm.

Here's a link to the opinion:

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

This is a good case for patients and people in general in Tennessee. Our state has a policy of resolving cases on the merits and not on procedural technicalities, which is only fair.  It's nice to see a trial court and an appellate court step up and do the right thing for the people of Tennessee.  

Service of Process and Commencement of a Civil Action

A while back the Court of Appeals issued its opinion in Fair v. Cochran, No. E2011-00831-COA-R3-CV (Tenn. Ct. App. Mar. 30, 2012).  The Court held as follows:

The Trial Court dismissed this case based upon its finding that although plaintiff’s Summons was issued the day she filed her Complaint, proof of service was not made to the clerk until 412 days later, and, because plaintiff had failed to comply with Tenn. R. Civ. P. 4, plaintiff was not entitled to rely on Tenn. R. Civ. P. 3 to toll the statute of limitations. Plaintiff appeals. We affirm.

Here's a link to the majority opinion:

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

Here's a link to the dissent by Judge Susano:

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

Respectfully, I think the majority got it wrong and the dissent got it right.  The policy of this state is to decide cases on their merits and not on procedural technicalities (which this case turned on in my opinion).  See Branch v. Warren, 527 S.W.2d 89, 91 (Tenn. 1975); Karash v. Piggott, 530 S.W.2d 775, 777; Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn. 1996); Doyle v. Frost, 49 S.W.3d 853, 856 (Tenn. 201); Foster v. St. Joseph Hosp., 158 S.W.3d 418, 420 (Tenn. Ct. App. 2004).

Medical Malpractice: Jury Verdict Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Gaw v. The Vanderbilt University, No. M2011-00306-COA-R3-CV (Tenn. Ct. App. Apr. 19, 2012).  Here's the summary from the slip opinion, to wit:

This is an appeal from a jury verdict in a medical malpractice case. A surgeon performed a procedure on an infant to repair a birth defect at the defendant hospital. The infant sustained permanent injuries after the surgery. The parents filed suit on the infant’s behalf against the hospital for failing to adhere to the expected standard of care. At the conclusion of trial, the hospital moved for a directed verdict on all claims, with only the claims for informed consent and post-operative negligence being denied. The jury entered a judgment in favor of the infant. The hospital has appealed. We affirm the trial court’s judgment.

Here's a link to the opinion:

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

Medical Malpractice: New Opinion on Certificates of Good Faith

The Tennessee Court of Appeals, Middle Section, recently issued its opinion in Jackson v. HCA Health Serv's of Tenn., Inc., No. M2011-00582-COA-R3-CV (Tenn. Ct. App. Apr. 18, 2012).  The summary from the opinion reads as follows:

This appeal arises from the dismissal of a medical malpractice action due to the plaintiff’s failure to provide a certificate of good faith. All defendants filed Tennessee Rule of Civil Procedure 12.02(6) motions to dismiss the medical malpractice action based upon Tennessee Code Annotated § 29-26-122(a), which provides: “If the certificate is not filed with the complaint, the complaint shall be dismissed, as provided in subsection (c), absent a showing that the failure was due to the failure of the provider to timely provide copies of the claimant’s records requested as provided in § 29-26-121 or demonstrated extraordinary cause.” Because the plaintiff failed to make a showing that the omission was due to the failure of any healthcare provider to provide records or demonstrate extraordinary cause, the trial court granted the motions and dismissed the case. The plaintiff asserts on appeal that the statutory requirement violates the separation of powers clause and that it violates the due process and equal protection guarantees of the constitution of Tennessee by treating plaintiffs in suits for medical negligence differently from plaintiffs in other civil litigation and by allegedly restricting access to the courts. Finding no constitutional infirmities, we affirm.

Here's a link to the opinion:

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

What is perplexing about this opinion is the fact that the portion of it that deals with the separation-of-powers issue lacks any citation to any law on the subject.  It is noteworthy that other states have found such a law clearly unconstitutional based upon a violation of separation of powers.  And I don't know if those other decisions were brought to the court's attention or not; or if they were just ignored by the court.  

Medical Malpracitce: The Term "Injury" Defined

This is a re-post from a year ago (Apr. 5, 2011). It is good to remind ourselves of what an "injury" is for purposes of medical negligence or malpractice lawsuits.

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).

Expert Witness Research

Here's a link to an expert witness research firm's Web site, to wit:

http://www.expertwitnessprofiler.com/
I got this link from the following blog:
http://www.dayontorts.com/expert-witnesses-new-expert-witness-background-search-service.html

Medical Malpractice: Yet Another Opinion on the Locality Rule Post-Shipley

The Tennessee Court of Appeals from the Western Section recently issued its opinion in Kennard v. Townsend, No. W2011-01843-COA-RM-CV (Tenn. Ct. App. Mar. 2, 2012). The summary from the opinion is as follows:

This case is before us upon mandate from the Tennessee Supreme Court for reconsideration of our previous opinion, Kennard v. Townsend, No. W2010–00461–COA–R3C, 2011 WL 1434625 (Tenn. Ct. App. April 14, 2011), in light of the Tennessee Supreme Court's decision in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). In our previous review of this medical malpractice case, we upheld the trial court’s exclusion of Appellant’s medical expert under the locality rule, and further affirmed the trial court’s grant of summary judgment against the Appellant. Because the qualifications of Appellant’s expert were not considered in light of Shipley, and because the admission of expert testimony is a matter of discretion in the trial court, we vacate the orders excluding the testimony of the Appellant’s expert and the grant of summary judgment, and remand for reconsideration in light of the Shipley decision. Vacated and remanded.

(Emphasis and bolding in original.)

Here's a link to the opinion:

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

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

The Tennessee Supreme Court recently issued its opinion in Mills v. Fulmarque, Inc., No. W2010-00933-SC-R11-CV (Tenn. Feb. 24, 2012). The summary of the case form the slip opinion is as follows:

We accepted this appeal to determine whether the phrase “a defendant named . . . within the applicable statute of limitations” in Tennessee Code Annotated section 20-1-119(a) (2009) refers only to a defendant sued within the statute of limitations applicable to the plaintiff’s claim or also refers to defendants not sued within the statute of limitations applicable to the plaintiff’s claim, but added to the lawsuit during the ninety-day period provided by section 20-1-119(a). Whether section 20-1-119(a) affords successive ninety-day windows during which a plaintiff may amend a complaint to add a new nonparty defendant as a comparative tortfeasor is an issue of first impression. Because we answer that question in the negative, we reverse the Court of Appeals and reinstate the judgment of the trial court granting Fulmarque’s motion for summary judgment and dismissing this action.

Here's a link to the majority opinion:

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

Justice Wade issued a dissent, which can be found at this link:

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

Oral Argument in Florida Supreme Court Case on Non-economic Damages

On February 9, 2012 the Florida Supreme Court heard oral arguments in Estate of McCall v. United States of America, Case No. SC11-1148. Here's a link to the oral argument:

http://wfsu.org/gavel2gavel/archives/flash/viewcase.php?case=11-1148

Medical Malpracitce: New Case on the Locality Rule Post-Shipley, Etc.

The Tennessee Court of Appeal (Western Section) recently released its opinion in McDonald v. Shea, No. W2010-02317-COA-R3-CV (Feb. 16, 2012). The opinion, among other things, addresses the qualification of an expert witness in a medical malpractice case under the locality rule post Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). The summary from the opinion is as follows:

This is a medical malpractice appeal. The plaintiff patient was treated by the defendant physician for ear problems. After the treatment, she had a complete loss of hearing in one ear. The plaintiff patient filed this lawsuit against the physician, alleging medical malpractice and lack of informed consent. After potential experts in Tennessee and contiguous states declined to testify against the defendant physician, the trial court permitted the plaintiff to use an expert physician witness from a non-contiguous state. At the jury trial, after the jury was sworn and counsel gave opening statements, a juror notified the trial judge of the her concern about an upcoming social event she planned to attend, at which a relative of the defendant physician would be present. After voir dire, the trial judge noted that the plaintiff patient had unused remaining peremptory challenges and excused the juror. The trial court denied the defendant physician’s motion for directed verdict on informed consent. the jury awarded the plaintiff substantial compensatory damages. The defendant physician now appeals, arguing that the trial court erred in permitting the plaintiff to obtain an expert from a non-contiguous state, in allowing the plaintiff to exercise a peremptory challenge after trial was underway, in permitting the informed consent claim to go to the jury, and in denying the defendants’ motion to exclude the expert retained by the plaintiff. We affirm on all issues except the dismissal of the juror. We hold it would be error to permit the exercise of a peremptory challenge after the trial is underway, but find that any error was harmless under the facts of this case. Therefore, we affirm.

Here's a link to the majority opinion:

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

Here's a link to Judge Highers's separate concurring and dissenting opinion:

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

Medical Malpracitce: New Opinion on Comparative Fault

The Western Section of the Tennessee Court of Appeals recently released its opinion in Dickson v. Kriger, No. W2011-00379-COA-R9-CV (Tenn. Ct. App. Feb. 10, 2012). The summary from the opinion states as follows:

This appeal arises from injuries Plaintiff sustained after undergoing laser corrective eye surgery. Plaintiff filed a complaint against Defendant alleging medical negligence. Subsequently, Defendant filed an amended answer alleging, inter alia, the affirmative defense of comparative fault. Plaintiff filed a motion to atrike portions of Defendant’s amended answer, and following a hearing on the motion, Defendant agreed to the entry of a consent order waiving the defense of comparative fault. Thereafter, Plaintiff filed motions in limine to preclude the testimony of two of Defendant’s experts. Plaintiff argued that, because Defendant waived comparative fault, he could not use the causation testimony of the two experts to shift blame away from himself unless he first plead comparative fault under Rule 8.03 of the Tennessee Rules of Civil Procedure. The trial court denied both motions. We granted permission for interlocutory appeal. We affirm in part, reverse in part, and remand for further proceedings.

Here's a link to the opinion:

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