Medical Malpractice: New Legislation III

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

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

Tennessee Legislative History

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

Here's the link:

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

More Problems at a VA Hospital

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

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

Medical Malpractice, Wrongful Death & Bankruptcy

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

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

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

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

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

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

Medical Malpractice: New Legislation II

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

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

Free Legal Research

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

Medical Malpractice: New Legislation

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

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

Appellate Practice in Tennessee

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

Here's the links:

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

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

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

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

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

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

Here's the link to the opinion:

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

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

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

SCOTUS Denies Cert in TN Products Case

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

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

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

Here's a link showing the denial of cert:

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

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

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

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

Here's a link to the opinion:

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

Memorial Day

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

Medical Malpractice: Plaintiff' Fails to Survive Summary Judgment

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

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

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

Trial Court Abuses Its Discretion By Denying Motion to Amend

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

Here's the link to the opinion:

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

Tennessee Pattern Jury Instructions -- Criminal

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

New Nursing Home Case

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

Here's the link to the opinion:

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

Defendant Liability Insurance Information

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

Hope this information helps.

Medical Malpractice: Expert Qualifications

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

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

Here's the link to the opinion:

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