10 Things Your Hopsital Won't Tell You

I found this on MSN. It's an interesting read.

http://articles.moneycentral.msn.com/Insurance/InsureYourHealth/10ThingsYourHospitalWontTellYou.aspx

Delay in Serving Summonses Causes Dismissal of WD Case

The Court of Appeals just held that a wrongful death claim was barred by the statute of limitations because the plaintiffs waited eleven months to serve summonses upon the defendants. This delay was a deliberate decision by the plaintiffs. The Court of Appeals held that the plaintiffs intentionally caused a delay of prompt service of the summonses, which violates the Rules of Civil Procedure. See Tenn. R. Civ. P. 4.01(3).

The case is Estate of Butler v. Lamplighter Apartments, No. M2007-02508-COA-R3-CV (Tenn. Ct. App. Aug. 20, 2008).

Here's the link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/083/ButlerRobynOPN.pdf

TN S. Ct. Issues New NIED Opinion

A few days ago the Tennessee Supreme Court issued an opinion in Eskin v. Bartee, No. W2006-01336-SC-R11-CV (Tenn. Aug. 14, 2008). Justice Koch authored the opinion. It traces the origins of the tort of negligent infliction of emotional distress ("NIED") to the present. It's a good read and provides insight to this often confused tort.

In Eskin the Court held that a person who observes an injured family member shortly after an injury producing accident may pursue a claim for NIED. It is worth noting that the Court did not overrule its prior holdings in Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996) or Lourcey v. Estate of Scarlett, 146 S.W.3d 48 (Tenn. 2004). Eskin, No. No. W2006-01336-SC-R11-CV, slip op. at 12.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/083/EskinMOPN.pdf

Resolving Medicare Liens: Part 3

Here are steps 5 & 6:

5. As soon as your case is resolved you must fax a letter to Medicare at (734) 957-0998. The letter should state: (1) the date the case was resolved; (2) the amount involved; (3) the attorney's fee; and (4) an itemized list of expenses. Call them a few days after the letter has been sent to verify that it was received and request a final demand letter. Again, it will take 30 to 45 days for you to receive the letter. You will also receive another itemization from Medicare and a demand for payment. Be sure to check for unrelated charges. YOU ONLY HAVE 60 DAYS TO SATISFY THE LIEN (unless the the final demand letter states otherwise). You must file an appeal to get rid of the unrelated charges on the final demand letter. This takes approximately 150 days to decide. You must still satisfy the lien while the appeal is pending. Mail the check to: Medicare: MSPRC Liability, P.O. Box 33828, Detroit, MI 48232-3828.

6. This is the easiest step. Wait for Medicare to send you a letter confirming that the lien has been released and that they are closing their file.

Resolving Medicare Liens: Part 2

Here are steps 3 & 4, to wit:

3. Once the Consent to Release Form has been filed with Medicare, you will get an itemization of their lien within 30 to 45 days. Review this very carefully to ensure all charges are related. If any unrelated charges are discovered, send a letter to Medicare immediately asking that the charges be removed. You can fax the request to (734) 957-0998. You won't get a response for another 30 to 45 days. You may also call Medicare at 866-677-7220 a few days after you fax your letter to verify that they received it.

4. Before you make a demand, go to mediation, or to trial, request a conditional payment letter. This can be done by calling 866-677-7220. They will generally not give lien information out over the phone. Also, this will take another 30 to 45 days before you receive the letter.

Steps 5 & 6 to follow.

Resolving Medicare Liens: Part 1

Resolving Medicare liens can be a real hassle. As of October 2006 there is one national recovery contractor for Medicare. It's the Medicare Secondary Payer Recovery Contractor ("MSPRC"). Here is MSPRC's Web site http://www.msprc.info/.

There is a six-step process for resolving Medicare liens through MSPRC. Here are steps 1 & 2:

1. Send a letter of representation that includes details of your client's injuries (be specific). The address is: Medicare: Coordination of Benefits, MSP Claims Investigation Project, P.O. Box 33847, Detroit, MI 48232.

2. Medicare will send you a reply letter; enclosed will be a Medicare Secondary Payer Development Form. Complete the applicable portions of the form, have your client sign it, and return it to Medicare. Medicare will also send you a Consent to Release Form for your client's signature. The Consent to Release Form must be on file before Medicare will speak to you about the claim.

Please make sure all forms are compete or they will be returned.

The remaining four steps will be posted later.

Good luck!

Flax v. DaimlerChrysler

Yesterday the Tennessee Supreme Court relased its opinions (yes, there's four in all) in Flax v. DaimlerChrysler, M2005-01768-SC-R11-cv (Tenn. July 24, 2008).

Here's the link to the opinions:

http://www.tsc.state.tn.us/OPINIONS/TSC/sc3qtr2008.shtml

Justice Holder authored the majority opinion.

FAQs About EMTALA

Ever have a question about the Emergency Medical Treatment and Active Labor Act ("EMTALA"). I do. Here's a link with answers to EMTALA FAQs:

http://www.emtala.com/faq.htm

The Word "Shall"

Every lawyer I know has heard that the word "shall" means something is mandatory. However, do you have a cite to support that statement? You do in Tennessee, to wit: Stubbs v. State, 393 S.W.2d 150, 154 (Tenn. 1965) (citing Louisville & N.R. Co. v. Hammer, 236 S.W.2d 971, 973 (Tenn. 1951)).

Hope this helps.

More Medical Research Sites

Here's some research sites from the American College of Surgeons ("ACS"). The ACS's Web site is a valuable resource for researching surgery-related questions and related matters.

Here's the link: http://www.facs.org/tsi/journals.html

Hope this helps. Good luck!

Patient Dies in Psychiatric ER

This is the reason that trial lawyers are needed. If hospitals are not held accountable for actions like this -- in court -- they won't do anything about it.

Here's what I am writing about:

http://www.msnbc.msn.com/id/25475759/?GT1=43001

May the Courthouse Doors Always Remain Open

I read this article on Sunday and was amazed at how much is spent by big business to try to close the courthouse doors to the injured or wronged (it's on page 2 of the article). In fact, I was shocked. A jury is an integral part of our civil justice system; and big business wants to limit a jury's right to decide a matter and the remedy that can be provided. (As a reminder, one of the reasons we declared our independence from England was because we had been denied the right to a jury trial in some instances.)

I'm fond of saying there are no Atheists in foxholes, and there are no injured persons who are pro-tort deform.

Yes, I am biased. I think American citizens should have the right to decide when another has been injured or wronged, and to determine the amount of damages incurred. Others do not agree with me (as can be determined by reading the article). You make up your own mind on the issue.

Here's the link:

http://www.nytimes.com/2008/06/22/business/22tort.html?_r=1&ref=business&oref=slogin

May the Courthouse Doors ALWAYS remain open to those who have been injured or wronged.

Is a Lawyer Allowed to Tape Record a Court Proceeding in Tennessee?

A lawyer may tape record a judicial proceeding in Tennessee. This is per statute, to wit: "It is lawful for attorneys representing parties in proceedings in any of the courts of this state to use tape recorders as an aid in making notes of the proceedings." T.C.A. § 20-9-104. Here's a link to the Tennessee Code: http://michie.lexisnexis.com/

Hope this helps.

Service by Facsimile under the Tenn. R. Civ. P.

Did you know that you can effectuate service of some documents via facsimile under the Tennessee Rules of Civil Procedure? I didn't till today; Rule 5 allows this form of service. See Tenn. R. Civ. P. 5.02 ("Items that may be filed by facsimile transmission pursuant to Rule 5A may be served via facsimile transmission."). Tenn. R. Civ. P. 5A.02(4) lists the documents that can't be filed (or served) via facsimile (e.g., complaints, summonses, wills, affidavits, etc.). Therefore, any document that can be filed with the clerk via facsimile can also be served via facsimile. See Tenn. R. Civ. P. 5.02 & 5A.02(4).

Useful information, huh?

New Med Mal Opinion on Apparent Agency

Today the Court of Appeals issued an opinion in Thomas v. Oldfield, No. M2007-01693-COA-R3-CV (Tenn. Ct. App. June 2, 2008). Judge Clement authored the opinion.

The Court of Appeals reversed the trial court's grant of summary judgment to the defendant hospital based upon apparent agency. This ruling is in line with the Tennessee Supreme Court's rulings in Boren v. Weeks and Dewald v. HCA Health Services of Tennessee (both are the subject of my May 7, 2008 post). For purposes of explanation, Boren and Dewald adopted the Restatement (Second) of Torts § 429 as the controlling law in the analysis of whether apparent agency exists.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/082/thomasjamesOPN.pdf

FYI: This is the second appeal that I know of in this case; the other is the subject of my Nov. 8, 2007 post.

New Opinion on Comparative Fault and the Discovery Rule

The Court of Appeals (Eastern Section) recently issued an opinion in a car-wreck case analyzing comparative fault and the discovery rule. Judge Susano authored the opinion. The style of the case is Grindstaff v. Bowman, No. E2007-00135-COA-R3-CV (Tenn. Ct. App. May 29, 2008). I think it is a must-read opinion.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/082/GrindstaffbfOPN.pdf

Tennessee Amends Med Mal Law

Here's the link to the recent amendments to Tennessee's med mal law:

http://state.tn.us/sos/acts/105/pub/pc0919.pdf

I'll have an analysis of this in a few days.

Thanks.

P.S. Please note that the amendments will take effect Oct. 1, 2008.

How a Bill Becomes a Law in Tennessee

Here's a guide on how a bill becomes a law in Tennessee (see link below). It came from the Tennessee General Assembly's Web site.

http://www.capitol.tn.gov/about/billtolaw.html

Another New Book

Here's another new book, How to Try a Jury Case: Trial Tactics, by John F. Kimberling. I have not read it yet. I have friends, however, who have; and they say it's great.

It's available from the National Institute for Trial Advocacy at http://www.nita.org/page.asp?id=7&catid=14&prodid=439

Tennessee Supreme Court Issues Two Opinions on Apparent Agency

Yesterday the Tennessee Supreme Court issued two opinions on apparent agency. The first was Boren ex rel. Boren v. Weeks, No. M2007-00628-SC-R11-CV (Tenn. May 6, 2008); the second was Dewald v. HCA Health Services of Tennessee, No. M2006-02369-SC-R11-CV (Tenn. May 6, 2008). They were consolidated for appeal. The issue on appeal was whether the defendant hospitals could be held liable for the acts of physicians who were allegedly independent contractors.

The Court overruled the Court of Appeals (which had reversed the trial court in both cases) and held that genuine issues of material fact remain that prevent the granting of summary judgment on that common issue. The Court adopted an analysis for the determination of apparent agency as set forth in the Restatement (Second) of Torts § 429. Boren, No. M2007-00628-SC-R11-CV, slip op. at 10-11; Dewald, No. M2006-02369-SC-R11-CV, slip op. at 3-4.

Here's the link to the AOC's Web site: http://www.tsc.state.tn.us/