Medical Malpractice: Another Summary Judgment for Defendants Reveresed on Appeal

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Lane v. McCartney, No. E2008-02640-R3-CV (Tenn. Ct. App. July 30, 2009). The Court of Appeals reversed the trial court's ruling, which held that the plaintiff's expert had not demonstrated that the community he practiced in when the alleged tort occurred and the defendants' community were similar (which is required under the locality rule).

The opinion offers a good analysis of what is sufficient to qualify an expert under the locality rule. The Court of Appeals also mentions how similar this case is to Nabors v. Adams, which is the subject of my July 23, 2009 post. See infra.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Nancy%20L%20Lane%20v%20Jodi%20D%20McCartney%20MD%20et%20al%20OPN.pdf

Civil Procedure: The Motion to Revise

Q: How do you go about making changes to an interlocutory order in a Tennessee state court civil action?

A: File a motion to revise. Tenn. R. Civ. P. 54.02 (stating that interlocutory orders are subject to revision at any time prior to entry of judgment).

Please note that final orders are subject to revision under different rules. Tenn. R. Civ. P. 59 & 60.

Here's a link to the Tennessee Rules of Civil Procedure:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/TNRulesOfCourt/civlproindex.htm

Medical Malpractice: Summary Judgment for Defendants Reversed on Appeal

The Western Section of the Tennessee Court of Appeals just released its opinion in Nabors v. Adams, No. W2008-02418-COA-R3-CV (Tenn. Ct. App. July 23, 2009). The trial court granted the defendants' motion for summary judgment due to the plaintiff's expert's unfamiliarity with the Memphis, Tennessee medical community (as was required by the locality rule) during his deposition. The plaintiff moved to amend the trial court's judgment under Rule 59.04 of the Tennessee Rules of Civil Procedure with a curative affidavit from her expert, which was denied by the trial court. The appeal followed.

The Court of Appeals held that the affidavit cured the problems with the plaintiff's expert's testimony and that the trial court abused its discretion in not reversing the grant of summary judgment to the defendants.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Samantha%20Nabors%20v%20William%20M%20Adams,%20MD%20OPN.pdf

Walter Cronkite

This post has nothing to do with the law and everything to do with a kid who grew up in the '70s and '80s watching Walter Cronkite on television (i.e., me). He was THE news for my family and me.

I once heard someone say, "If Walter didn't say it happened, it didn't happen!" He would come into our living room every night and talk to us about the news and we took what he said as dead-on accurate --- because it was! After all, he was "the most trusted man in America."

Good bye, Mr. Cronkite. You'll be missed. I wish there were more out there like you.

More on Out-of-state Depositions

http://www.abanet.org/yld/litigation/lit101pdf/Wilkins.pdf

Out-of-State Depositions

Here's an interesting article that I found while doing some research over the weekend, to wit:

Victoria C. Fitlow, How to Take an Out-of-State Deposition, Utah B.J., Feb./Mar. 2001.

I apologize for the cite not being complete in that there's no page number for the first page of the article. I couldn't find one in the online version; nor could I find one in PDF or another version that had been scanned and placed online from the actual magazine (which would have shown a beginning page number).

While it's written from the perspective of a Utah lawyer, there's some good information in there (even though it might be a little dated because it was written in 2001). Even if you don't practice in Utah, it can help point you in the right direction.

Here's the link to the article:

http://www.utahbar.org/sites/litigation/how_to_take_out_of_state_depositions.html

The Declaration of Independence

I watch this every year at this time, to wit:

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

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

Turn the volume up and have a great Fourth!

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