Medical Malpractice: Use of Transcribed Trial Testimony During Closing Argument

The Eastern Section of the Tennessee Coourt of Appeals issued its opinion in Chapman v. Lewis, No. E2009-01496-COA-R9-CV (Tenn. Ct. App. Jul. 28, 2010). The sole issue on appeal was set forth by the court as follows:

Did the trial court err when it granted a new trial on the basis that the court improperly allowed defense counsel to project portions of trial testimony during closing argument without establishing a proper foundation or providing prior notice to the plaintiff?

The court held that the trial court erred and reversed the trial court's grant of a new trial to the plaintiff. Below is the syllabus from the opinion:

On April 10, 2000, William D. Chapman, II (“the Deceased”) was involved in a motor vehicle accident. As a result of his injuries, he was admitted to Holston Valley Hospital and Medical Center in Kingsport where he came under the care of trauma surgeons, the defendants, James V. Lewis, M.D., and George M. Testerman, Jr., M.D., as well as other physicians and medical personnel. The plaintiff, Cathy L. Chapman, brought this wrongful death action against the defendants based upon her allegation that they were guilty of medical malpractice in the treatment of her husband; she claims that their malpractice caused the death of the Deceased on April 15, 2000. Following eight days of a jury trial in July 2008, counsel for the parties made their closing arguments. During the defense’s argument, counsel for the plaintiff objected when counsel for Dr. Testerman projected on a video screen what purported to be the Q. and A. trial testimony of the plaintiff’s medical expert, Dr. Philip Witorsch. The trial court overruled the objection and thereafter the jury returned a verdict in favor of both defendants. Later, the trial court, acting on the plaintiff’s motion, reversed itself and held that the defendants failed to lay a proper foundation for the use of the projected testimony. The court also pointed out that the defendants failed to give the plaintiff prior notice of their intention to use portions of the trial transcript in closing argument. As a consequence, the court granted the plaintiff a new trial. The defendants appeal. We reverse the trial court’s grant of a new trial and reinstate the court’s judgment in favor of the defendants.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Cathy%20L%20Chapman%20vs%20James%20V%20Lewis%20MD%20OPN.pdf

Trial Practice: Effecting a Review of a General Sessions Court Judgment in Circuit Court

The Middle Section of the Tennessee Court of Appeals issued its opinion in Tennessee Protection Agency, Inc., v. Mathies, No. M2009-01775-COA-R3-CV (July 23, 2010). Here's the syllabus from the opinion:

Party A obtained a default judgment in general sessions court against Party B. The general sessions court subsequently granted Party B’s motion to set aside the default judgment. Party A appealed to circuit court. The circuit court reversed the general sessions court’s decision to set aside the default judgment. Party B appeals to this court. We affirm the decision of the circuit court.

As pointed out in this opinion, the general sessions court did not have jurisdiction to entertain a motion to set aside its prior judgment because the 10 days for doing so had passed. Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/tennprotectionagencyOPN.pdf

Practice pointer: Party B should have filed a petition in the circuit court for a writ of supersedeas and certiorari. See my June 29, 2010 post for more information on this subject.

Trial Practice: Hearsay & Expert Opinion Testimony

The Eastern Section of the Tennessee Court of Appeals issued its opinion in Holder v. Westgate Resorts Ltd., No. E2009-01313-COA-R3-CV (Tenn. Ct. App. Jul. 23, 2010). Here's the syllabus from the majority opinion, to wit:

Plaintiff sustained personal injuries resulting from a fall on defendant's premises and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.

Here's a link to that opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/James%20Q%20Holder%20vs%20Westgate%20Resorts%20Ltd%20dba%20Westgate%20Smoky%20Mountain%20Resort%20at%20Gatlinburg.pdf

Judge Susano issued a separate concurring and dissenting opinion where he opined that the trial court did not err in sustaining the plaintiff's counsel's objection to the proffered testimony. In my very humble opinion, I think Judge Susano's opinion is accurate.

Here's a link to that opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/James%20Q%20Holder%20vs%20Westgate%20Resorts%20Ltd%20dba%20Westgate%20Smoky%20Mountain%20Resort%20at%20Gatlinburg%20CON%20opn.pdf

Medical Malpractice: Court of Appeals Reverses Trial Court's Grant of Summary Judgment Against Plaintiff, Etc.

The Court of Appeals just issued its opinion in Jacobs v. Nashville Ear, Nose & Throat Clinic, No. M2009-01594-COA-R3-CV (July 15, 2010). Here's what the syllabus states:

This is a medical malpractice case. Vicki P. Jacobs (“the Plaintiff”) alleges that the failure of Stephen A. Mitchell, M.D., an otolaryngologist, and K. James Schumacher, M.D., a neuroradiologist, to diagnose cancer in the left sinus of her late husband, Harris N. Jacobs (“the Decedent”), in May 2000 caused his death in November 2001. The trial court granted all defendants summary judgment. The court held that the Plaintiff, in the face of the defendants’ motions for summary judgment, failed to demonstrate a genuine issue of material fact as to the element of causation. The court’s ruling was premised, in part, on the court’s holding that the affidavit of one of the experts was not timely filed and also because,according to the court, the Plaintiff’s experts gave deposition testimony that superseded and canceled out their assertions in affidavits. Plaintiff appeals, challenging the court’s grant of summary judgment and an earlier order allowing the defendants to conduct ex parte interviews of treating physicians of the Decedent. We vacate both orders and remand for further proceedings.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Vickie%20P%20Jacobs%20and%20Harris%20N%20Jacobs%20Deceased%20v%20Nashville%20Ear%20Nose%20&%20Throat%20Clinic%20OPN.pdf

Personal Injury: New Case on Causation & Damages

The Western Section of the Tennessee Court of Appeals just issued its opinion in Hampton v. Northwest Tenn. Human. Resource Agency, No. W2009-02668-COA-R3-CV (Tenn. Ct. App. Jul. 13, 2010). The opinion offers up a good discussion on the elements of causation and damages in a personal-injury case.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/hamptongOPN.pdf

New GTLA Opinion: Notice

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Bivins v. City of Murfreesboro, No. M2009-01590-COA-R3-CV (Jul. 9, 2010). The opinion offers a good discussion of notice under the GTLA.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Jennifer%20Bivins%20et%20al%20v%20City%20of%20Murfreesboro%20OPN.pdf

Medical Malpractice: Court of Appeals Upholds Trial Court's Grant of Summary Judgment for Defendants

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Clifford v. Tacogue, No. M2009-01703-COA-R3-CV (Tenn. Ct. App. Jul. 18, 2010). The syllabus from the opinion is as follows:

Plaintiff husband alleged that he suffered an injury in the course of undergoing a cardiac catheterization procedure. Plaintiffs filed suit against the treating physician, alleging medical malpractice, lack of informed consent, and medical battery; against the hospital, alleging medical malpractice based on an actual or apparent agency with the physician; and against the manufacturer of the medical device used in the procedure, alleging that the manufacturer was vicariously liable for medical battery committed by its employee. The trial court granted summary judgment to the defendants on all claims, holding that plaintiffs failed to establish that the use of the medical device to close the site where the catheter was inserted was the cause of husband’s injury. Finding that the defendants negated the element of causation essential to each cause of action, the trial court’s judgment is affirmed.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Clifford%20v.%20Tacogue%20Opinion.pdf

The Declaration of Independence

This is a re-post. I watch these two clips this time every year. Hope you enjoy them. See below.

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

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

Changes to the Tennessee Rules of Court Effective Today

New changes to certain Tennessee Rules of Court that are effective today:

Tenn. R. Civ. P., to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2010/Order-TRCivPamendments.pdf

Tenn. R. Evid., to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2010/Order-TREamendments.pdf

Tenn. R. App. P. , to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2010/Order-TRAPamendments.pdf

AOC’s Web site (which explains that everything passed EXCEPT the amendments to Rule 26 regarding the discoverability of insurance (near the bottom of the page)), to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2010/scrule2010.htm

Trial Practice: Writ of Certiorari

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Stechebare v. Deere & Co., No. E2009-01514-COA-R3-Cv (Jun. 29, 2010). It does a good job of explaining the writ of certiorari.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Charles%20D%20Stechebar%20vs%20Deere%20&%20Co%20&%20John%20Doe%20opn.pdf

Medical Malpractice: Court of Appeals Reverses Trial Court

The Middle Section of the Tennessee Court of Appeals Just released its opinion in Howell v. Claiborne and Hughes Health Ctr., No. M2009-01683-COA-R3-CV (Tenn. Ct. App. June 24, 2010). The syllabus from the opinion states as follows:

This is a medical malpractice action. Appellant originally filed a claim in 2007 in the name of an estate. The original claim was subsequently non-suited. Less than one year later, the claim was then re-filed, also in the name of an estate. With permission of the court, the Appellant later amended the complaint to name the administrator of the estate as the plaintiff. However, upon the Appellee’s motion, the trial court dismissed the complaint finding: (1) the complaint was barred by the statute of limitations as there were no allegations in the complaint which would invoke the savings statute; (2) the complaint failed to state with particularity the specific acts of negligence; and (3) that the Appellant failed to comply with the notice requirements for a medical malpractice action found in Tenn. Code. Ann. § 29-26-121. Finding that the trial court erred, we reverse the decision of the trial court and remand for further proceedings.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Shawn%20Howell%20for%20Jesse%20Franklin%20Browning%20Jr%20Estate%20vs%20Claiborne%20&%20Hughes%20Health%20Cntr%20OPN.pdf

Medical Malpractice: New Tennessee Supreme Court Decision

The Tennessee Supreme Court issued its opinion in Estate of Bell v. Shelby County Health Care Corp., No. W2008-02213-SC-S09-CV (June 24, 2010). Here's the syllabus from the first page of the opinion:

This appeal involves the application of the Tennessee Governmental Tort Liability Act to an action for damages filed against a defendant that was not covered by the Act when the injury producing events occurred. The defendant filed a motion for partial summary judgment in the Circuit Court for Shelby County seeking the benefit of the claims and defenses available to government entities under the Act. The plaintiffs responded by challenging the constitutionality of legislation extending the coverage of the Act to the defendant on the ground that the legislation had been enacted after the plaintiffs had sustained their injuries. The trial court held that the Act applied to the defendant but granted the plaintiffs permission to pursue an interlocutory appeal. We granted the plaintiffs’ application for permission to appeal after the Court of Appeals declined to consider the case. We have determined that applying the substantive amendment to the Tennessee Governmental Tort Liability Act enacted after the injury-producing events occurred to the plaintiffs’ damage claims violates the prohibition against retrospective laws in Article I, Section 20 of the Constitution of Tennessee.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Estate%20of%20Joyce%20Bell%20v%20Shelby%20Co%20Health%20Care%20Corp%20DBA%20The%20Regional%20Medical%20Cntr.pdf

Medical Malpractice: Denial of Summary Judgement in the Plaintiff's Favor Reversed on Appeal

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Miller v. Birdwell, No. M2009-01730-COA-R3-CV (Tenn. Ct. App. Jun. 23, 2010).

The syllabus from the beginning of the opinion states as follows:

This appeal involves claims for medical malpractice against three doctors. The doctors each filed a motion for summary judgment. The trial court denied all three motions. After reviewing the record, we find that there are no material issues of fact in dispute. The defendant-doctors affirmatively negated an essential element of the Plaintiff’s claim — causation. Plaintiff failed to come forward with expert proof to demonstrate that there was a material issue of fact in dispute. Accordingly, the doctors are entitled to summary judgment. Consequently, this Court finds that the trial court erred in denying the motions for summary judgment. Reversed and remanded.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Carol%20E%20Miller%20vs%20Joel%20S%20Birdwell%20MD%20OPN.pdf

Medical Malpractice: Tennessee Supreme Court Reverses Court of Appeals

The Tennessee Supreme Court issued its opinion today in Cox v. Primary and Urgent Care Clinic, M2007-01840-SC-R11-CV (Tenn. Jun. 21. 2010). The syllabus of the opinion states as follows:

We granted permission to appeal in this case to address the standard of care that applies to a physician assistant in a medical malpractice case. The plaintiff sued for injuries she allegedly suffered as a result of physician assistant Michael Maddox’s failure to diagnose her condition accurately. The plaintiff did not sue Maddox, but sued the clinic which he owned and in which he practiced and Dr. Austin Adams, Maddox’s supervising physician. The defendants filed a joint motion for summary judgment, supported by their testimony that (1) Maddox did not violate the standard of care applicable to physician assistants and (2) Dr. Adams did not violate the standard of care applicable to physicians. The plaintiff responded with her cardiologist’s testimony that Maddox violated the standard of care applicable to primary care physicians. The cardiologist testified that he was not familiar with physician assistants or their supervision. The trial court granted the defendants’ motion for summary judgment on the basis that the plaintiff had failed to establish that Maddox violated the professional standard of care applicable to him. The Court of Appeals reversed the trial court, holding that the standard of care applicable to physician assistants is the same as that applicable to physicians. We reverse the Court of Appeals and hold that the standard of care applicable to physician assistants is distinct from that applicable to physicians. The trial court’s summary judgment in favor of the defendants is reinstated, and the case is dismissed.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Melissa%20Michelle%20Cox%20vs%20MA%20Primary%20and%20Urgent%20Care%20Clinic%20et%20al.pdf

Medical Malpractice: Pro Se Plaintiff's Case Dismissed Via Summary Judgment

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Luna v. Deversa, No. E2009-01198-COA-R3-CV (Tenn. Ct. App. Jun. 17, 2010). The plaintiff was pro se and failed to obtain expert testimony to rebut the summary judgment motions that were filed on behalf of the defendants. The trial court granted the defendants' motions and its ruling was upheld on appeal.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Nancy%20Luna%20vs%20Roger%20Deversa%20MD%20&%20Hamilton%20Co%20Hospital%20Auth%20opn.pdf

Surgery Centers & Infections

Here's an online article from MSNBC on the subject, to wit:

http://www.msnbc.msn.com/id/37577363/ns/health-health_care

Summary Judgment for Defendant Reversed Due to Failure to Comply with Tenn. R. Civ. P. 56.04

The Western Section of the Tennessee Court of Appeals issued its opinion today in Winn v. Welch Farm, LLC, No. M2009-01595-COA-R3-CV (Tenn. Ct. App. June 4, 2010).

As many of you know, Tenn. R. Civ. P. 56.04 was amended in 2007 to require a trial court to state in its order the legal grounds for granting or denying a motion for summary judgment; this was done to assist in appellate review. In Winn, the Court of Appeals reversed a grant of summary judgment for the defendant because the order did not comply with Rule 56.04. Below is the syllabus of the opinion, to wit:

This is an appeal from the trial court’s decision to grant summary judgment to the appellees. After reviewing the record, we find that the order granting summary judgment fails to comply with Tenn. R. Civ. P. 56.04, as it does not “state the legal grounds upon which the court denies or grants the motion.” Consequently, this Court cannot proceed with our review and must vacate the judgment of the trial court.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Jerry%20A%20Winn%20v%20Welch%20Farm%20LLC%20and%20Richard%20Tucker%20OPN.pdf

Medical Malpractice: Court of Appeals Upholds Defense Verdict

The Western Section of the Tennessee Court of Appeals just released its opinion in Stanfield v. Neblett, No. W2009-01891-COA-R3-CV (Tenn. Ct. App. June 4, 2010). Among the issues raised were the following: (1) whether an expert may testify outside his or her Rule 26 disclosure; (2) expert qualifications; (3) cross-examining experts; and (4) the use of exhibits in opening statements and closing arguments. The Court of Appeals came down on the side of the defendants.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Teresa%20L%20Stanfield%20v%20John%20Neblett%20Jr%20MD%20etal%20OPN.pdf

UPDATE: As of June 20, 2010, this opinion has been withdrawn by the Western Section. A revised opinion was released July 23, 2010. Here is a link to the revised opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Teresa%20Lynn%20Stanfield%20v%20John%20Neblett%20Jr%20MD%20OPN.pdf

Jurors and the Internet, Etc.

I found this article to be very interesting, to wit: Douglas L. Keene & Rita R. Handrich, Online and Wired for Justice: Why Jurors Turn to the Internet, The Jury Expert, Nov. 2009, at 14. If you do any trial work, it is a must-read item.

Here's a link to the article:

http://www.astcweb.org/public/publication/documents/Keene%20Online%20&%20Wired%20TJE%20Nov20091.pdf

Memorial Day

Same gave all. Please remember them this weekend.