Other Blogs: Part II

Here is a link to another good blog that I follow that is published by David Randolph Smith:

http://www.drslawfirm.com/lexscientia.html

Other Blogs

There is a very interesting blog on the subject of tort law that I thought you all would like to know about. It's called Torts Prof Blog. It is located at: http://lawprofessors.typepad.com/tortsprof/.

John Day brought this blog to my attention a while back. I want to thank John for that. By the way, John's blog it is at: http://www.dayontorts.com/.

Check out both blogs. They are informative and have useful content.

General Sessions Court: Appellant Has Right to Dismiss Appeal Any Time Before Trial

The Tennessee Court of Appeals for the Middle Section issued its opinion yesterday in Crowley v. Thomas, M2009-01336-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2010). The case dealt with an appeal from general sessions court to circuit court. It held that an appellant (in this case the defendant in general sessions court) had a right to dismiss the appeal --- and the whole case --- any time before trial.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/101/James%20Crowley%20et%20al%20v%20Wendy%20Thomas%20OPN.pdf

Practice point: if you are the prevailing party in general sessions court, and your adversary appeals, it would be wise for you to file an appeal too. That way, your claim cannot be dismissed by your adversary's dismissal of its appeal.

Firm News: Practice Areas

Someone asked me the other day if I would post what areas of the law that I practice in on my blog. That is the reason for this post. Below is a list of the areas that I focus my practice on:

Medical Malpractice
Motor-vehicle/Tractor-trailer Accidents
Personal Injury
Wrongful Death
Product Liability
Criminal Defense

New Trial Not Allowed Under Rule 606(b)

The Tennessee Court of Appeals just issued an opinion that discusses when a new trial is allowed under Rule 606(b) of the Tennessee Rules of Evidence. The case is Gaines v. Tenney, E2008-02323-COA-R3-CV (Tenn. Ct. App. Jan. 21, 2010). Rule 606(b) generally makes juror testimony as to what occurred during deliberations inadmissible except under certain circumstances, which are listed in the rule. See Tenn. R. Evid. 606(b).

Here's a link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Linda%20Kay%20Gaines%20etux%20v%20Leslie%20McCarter%20Tenney%20et%20al.pdf

Medical Malpractice: Doctor Removes Wrong Kidney

This "never event" (euphemistically called a "hospital acquired condition" by some in the healthcare industry) should never happen, which is why it's called a never event. Here's a link to the story from MSNBC:

http://www.msnbc.msn.com/id/34906847.

Here's a link to a publication that lists certain serious reportable events in healthcare, i.e., never events, to wit: Serious Reportable Events in Healthcare – 2006 Update. Notice that the number 1 never event is surgery on the wrong body part.

New Tennessee Supreme Court Opinion on Comparative Fault: The Original Tortfeasor Rule "Tweaked"

Today, the Tennessee Supreme Court released its opinion in Banks v. Elks Club Pride of Tenn. 1102. No. M2008-01894-SC-S09-CV (Tenn. Jan. 13, 2010). Regarding the original tortfeasor rule, it held that joint and several liability no longer applies, to wit:

[T]he doctrine of joint and several liability no longer applies to circumstances in which separate, independent negligent acts of more than one tortfeasor combine to cause a single, indivisible injury. We hold that an actor whose tortious conduct causes physical harm to another is liable for any enhanced harm the other suffers due to the efforts of third persons to render aid reasonably required by the other’s injury, as long as the enhanced harm arises from a risk that inheres in the effort to render aid. In light of our consistent holding that the doctrine of joint and several liability no longer applies to circumstances in which separate, independent negligent acts of more than one tortfeasor combine to cause a single, indivisible injury, it is improper to maintain joint and several liability in cases involving subsequent medical negligence where there is even less cause....

Id., slip op. at 17.

However, consistent with our state's system of comparative fault, the original tortfeasors' fault is to be compared with the fault of subsequent tortfeasors as described in the opinion. Here's a link to it:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/101/SC%20Alice%20J%20Banks%20v%20Elks%20Club%20Pride%20of%20TN%20opn.pdf

Negligence: Summary Judgment Upheld on Appeal Via a Duty Analysis

The Court of Appeals issued its opinion in Greene v. Titi, No. M2008-02788-COA-R3-CV (Tenn. Ct. App. Jan. 11, 2010). This case dealt with negligent security at a night club. The Court of Appeals held, inter alia, that the security company owed no duty to the plaintiff, which was fatal to the plaintiff's claim. Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Corey%20Greene%20v%20Yaseen%20Kamleh%20Titi%20dba%20Crush%20OPN.pdf

Judge Swiney concurred in the result but disagreed with the majority as to whether a duty was in fact owed to the plaintiff. Here's a link to that opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Corey%20Greene%20v%20Yaseen%20Kamleh%20Titi%20dba%20Crush%20CON.pdf

Fourth Anniversary!

Wow! This month marks the fourth anniversary of this blog. I cannot believe it. Four years have gone by so quickly. Thank you all for reading my blog. I really appreciate it. I hope it helps.

Medical Malpractice: A Surgeon's Nondelegable Duty to Remove a Sponge from a Patient's Body Following Surgery

This is a photograph of a laparotomy sponge that was sewn up in my client's abdomen during a surgery that was performed upon him by Richard Geer, M.D. in 2006. At present, this case is up on appeal to determine, among other things, whether a surgeon has a nondelegable duty to remove foreign objects from a patient that were introduced into the wound during surgery. My clients contend that such a duty exists in Tennessee. Their position is supported by the following authorities:

1. 61 Am. Jur. 2d Physicians, Surgeons, etc. § 240, at 343 (2002); id. § 242, at 345-46;

2. 70 C.J.S. Physicians and Surgeons § 99, at 587 (2005);

3. 21 R.C.L. § 33, at 388-89 (1918) (Note: "R.C.L." stands for "Ruling Case Law"); and

4. Tutton v. Patterson, 714 S.W.2d 268, 270 (Tenn. 1986) (citations omitted).

Happy New Year!!

I hope you have a great 2010.

Medical Malpractice: Plaintiff Survives Summary Judgment with a Negligence Per Se Claim

The Tennessee Court of Appeals just issued its opinion in Watkins ex rel. Watkins v. Affiliated Internists, P.C. No. M2008-01205-COA-R3-CV (Tenn. Ct. App. Dec. 29, 2009). The plaintiff was able to survive summary judgment with a negligence per se claim. The court held as follows:

Thus, we must respectfully disagree with the trial court’s finding that TENN. COMP. R. & REGS. 0880-2-.18(7) cannot support the Plaintiff’s claim of negligence per se. We find that it constitutes a standard of care, and that the trial court erred in denying the Plaintiff’s motion to amend the complaint to allege a claim of negligence or negligence per se based on the breach of that standard.

Id., slip op. at 31 (emphasis added). As you can surmise, the defendant failed to comply with the above-referenced rule/regulation. See id.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/John%20Mark%20Watkins%20v%20Affiliated%20Internists%20and%20TK%20Pardue%20MD%20OPN.pdf

Harris v. Horton: Petition to Rehear Filed

I posted about Harris v. Horton on December 15, 2009. A petition to rehear under Rule 39(a) of the Tennessee Rules of Appellate Procedure was filed yesterday.

The current cite to the case, as of December 28, 2009, is as follows: Harris v. Horton, No. M2008-02142-COA-R3-CV, 2009 WL 4801719 (Tenn. Ct. App. Dec. 14, 2009), petition for reh'g filed (Dec. 28, 2009).

Municipal Codes in Tennessee

Here is a link to Tennessee municipal codes, which has been updated as of December 12, 2009, to wit:

http://mtas-notes.ips.utk.edu/public/web.nsf/Web/View+Codes

Merry Christmas!

I hope you all have a great Christmas. I'm looking forward to spending this one with my family.

Interference with and Mishandling of Human Remains; Invasion of Privacy; and Reckless Infliction of Emotional Distress

The Court of Appeals released its opinion yesterday in Harris v. Horton, No. M2008-02142-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2009). The opinion has to do with the causes of action of interference with and mishandling of human remains under the Restatement (Second) of Torts section 868 (1979); invasion of privacy under the Restatement (Second) of Torts sections 652B & 652D (1977); and reckless infliction of emotional distress under the Restatement (Second) of Torts section 46 (1965).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/Debbie%20Harris%20et%20al%20v%20Don%20Horton%20and%20Robertson%20County%20opn.pdf

Summary Judgment: Another Post-Hannan Tennessee Supreme Court Case

Yesterday the Tennessee Supreme Court issued its opinion in Mills v. CSX Transp., Inc., No. E2006-01933-SC-R11-Cv (Tenn. Dec. 7, 2009). While this is a FELA case, it offers further explanation and clarification of when summary judgment is appropriate in a Tennessee state court action. Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/094/SC%20Charles%20D%20Mills%20v%20CSX%20Transportation.pdf

Miranda Rights

The United States Supreme Court recently heard a case from Florida regarding an accused's Miranda rights. The case is Florida v. Powell. Here's a link to a story about that case:

http://news.yahoo.com/s/ap/20091207/ap_on_go_su_co/us_supreme_court_miranda

Summary Judgment: New Tennessee Supreme Court Case

The Tennessee Supreme Court issued its opinion in Stanfill v. Mountain, M2006-01072-SC-R11-CV (Tenn. Dec. 3, 2009). The opinion offers a good discussion of our state's recently clarified summary judgment standard, which is discussed in my November 8 and 15, 2008 posts to this blog.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/094/SC%20Robin%20Lee%20Stanfill%20et%20al%20v%20John%20T%20Mountain%20et%20al%20OPN.pdf

Chief Justice Holder wrote a separate opinion, which concurs in part and dissents in part with the majority opinion, to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/094/SC%20Robin%20Lee%20Stanfill%20et%20al%20v%20John%20T%20Mountain%20et%20al%20DIS.pdf

Computation of Time Under the Federal Rules of Civil Procedure to Change December 1, 2009

Here's a link to an article written by Professor Paine on the matter, to wit:

http://www.tba2.org/journal_new/index.php/component/content/article/369?ed=24