Here'a a link to the opinion:In this medical negligence case, we review a jury verdict against a hospital based on the hospital’s failure to enforce its policies and procedures in patient care. Tennessee law has long recognized that a hospital has a duty to its patients to exercise that degree of care, skill, and diligence used by hospitals generally in its community. After reviewing the record, we hold that material evidence supports the jury’s determination that the hospital was 100% at fault for the patient’s death. We therefore reverse the Court of Appeals and reinstate the verdict of the jury.
This appeal involves a vicarious liability claim against a hospital based on the conduct of an emergency room physician. A patient and her husband filed a medical malpractice suit in the Circuit Court for Shelby County against a hospital and two physicians, one of whom had treated the patient in the hospital’s emergency room. Among other things, the complaint broadly alleged that the hospital was vicariously liable for the conduct of its agents. After the plaintiffs voluntarily dismissed their claims against both physicians for the second time, the hospital sought the dismissal of the vicarious liability claims on the ground that the plaintiffs’ claims against its apparent agent, the emergency room physician, were barred by operation of law. The trial court granted the hospital’s motion, and the Court of Appeals affirmed the dismissal of the vicarious liability claims against the hospital. Abshure v. Upshaw, No. W2008-01486-COA-R3-CV, 2009 WL 690804, at *5 (Tenn. Ct. App. Mar. 17, 2009). We granted the Tenn. R. App. P. 11 application filed by the patient and her husband to determine whether their vicarious liability claims against the hospital should be dismissed under the facts of this case. We have determined that the lower courts erred by dismissing the vicarious liability claims against the hospital.
Here's a link to the opinion:
http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/AbshureJ.opn.pdf
Practice tip: when applicable, plead respondeat superior in a medical malpractice claim in a timely manner.
Kevin L. Holt, injured in an automobile accident in Arkansas, was first taken by ambulance to an Arkansas hospital and then transported to the Regional Medical Center in Memphis, where he incurred $33,823.02 in expenses. Shelby County Health Care Corporation, the operator of the Regional Medical Center, filed affidavits for a lien as prescribed by statute. Thereafter, Nationwide Mutual Insurance Company, which had medical coverage for Holt with limits of $5,000, paid $1,290 for ambulance services and $3,710 to the Arkansas hospital. Shelby County Health Care Corporation sued Nationwide for impairment of its lien, seeking as recovery the entire amount due for its medical services to Holt. The trial court awarded $5,000 in damages. The Court of Appeals revised the amount of the judgment to $33,823.02. Because we have determined that liens under the Hospital Lien Act do not attach to medical payment benefits paid pursuant to an insurance policy, the judgment of the Court of Appeals is reversed and the cause is dismissed.
The Tennessee Supreme Court issued its opinion today in Elliott v. Cobb, No. W2009-00961-SC-S09-CV (Tenn. 2010). Here is what part of the syllabus states:
The issue presented in this interlocutory appeal is whether a plaintiff in a medical malpractice action is prohibited from arguing or suggesting to the jury any monetary amounts for noneconomic damages. We hold that the language of Tennessee Code Annotated section 29-26-117 (2000) prohibits the plaintiff from disclosing the amount of damages requested in the plaintiff’s pleading, but does not preclude the plaintiff from arguing or suggesting monetary amounts for non-economic damages to jurors at trial. The judgment of the trial court is reversed, and this case is remanded for further proceedings.
Here is a link to the majority opinion:
http://www.tsc.state.tn.us/OPINIONS/CURRENT/SC%20Amanda%20Elliott%20v%20R%20Michael%20Cobb%20opn.pdf
Justice Koch wrote a seperate concurring opinion. Here's the link to it:
http://www.tsc.state.tn.us/OPINIONS/CURRENT/SC%20Amanda%20Elliott%20v%20R%20Michael%20Cobb%20CON.pdf
http://today.msnbc.msn.com/id/39191277/ns/today-today_health/
The sad thing about this sort of thing is this: IT'S ABSOLUTELY PREVENTABLE! All it takes is a little bit of care by the surgeon(s) and the support staff; all of which share blame for this sort of thing generally. A surgeon, however, should share the lion's share of the blame tough.
This sort of thing, which happens regularly, is known as a "Never Event" because it should never happen. However, a lot of surgeons are being encouraged by their malpractice insurance carriers to call sewing up a sponge in a patient (which the surgeon did) a "Hospital Acquired Condition." Why? Because it makes it look like it's something the hospital alone did wrong and not the surgeon. This is when you really need to be concerned---as a patient---that your surgeon, if he or she sews a sponge up in you during surgery, will refuse to accept responsibility and pawn it off on the hospital as a "Hospital Acquired Condition." Is that really the "right thing to do"?
Today the Tennessee Supreme Court released its opinion in Hall v. Haynes, No. W2007-02611-SC-R11-CV (Tenn. Aug. 26, 2010). The issue on appeal had to do with service of process under Rule 4 of the Tennessee Rules of Civil Procedure. The Court held that plaintiff failed to comply with Rule 4.
Here's a link to the opinion:
http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/103/SC%20Billie%20Gail%20Hall%20Administratrix%20Estate%20Billy%20R%20Hall%20v%20Dr%20Douglas%20B%20Haynes%20Jr%20OPN.pdfHere's a link to the slip opinion:This is a medical malpractice case involving res ipsa loquitur. The defendant physician performed surgery on the plaintiff’s husband. Sponges were used in the patient’s abdomen during the procedure. Nurses in the operating room counted the sponges used in the surgery. The nurses erred in counting the sponges, and the defendant physician closed the surgical incision with a sponge remaining inside. The retained sponge was later discovered and removed in a second surgery. The plaintiff’s husband subsequently died of causes unrelated to the retained sponge. The widow sued the physician and his employer for medical malpractice, asserting that the doctrine of res ipsa loquitur applied, as well as the common knowledge exception to the requirement of expert medical proof. The physician filed a motion for summary judgment, and the plaintiff filed a cross-motion for summary judgment as to liability. The defendant physician filed two medical expert affidavits, both of which stated that the defendant physician had complied with the applicable standard of care by relying on the nurses’ sponge count. Initially, the plaintiff filed an expert affidavit stating that the defendant physician did not comply with the applicable standard of care, but later filed a notice stating that she intended to proceed to trial with no expert proof to support her medical malpractice claim. The trial court determined that neither res ipsa loquitur nor the common knowledge exception applied, and granted summary judgment in favor of the defendant physician. The plaintiff now appeals. We reverse the grant of summary judgment in favor of the defendant physician, and affirm the denial of the plaintiff’s motion for partial summary judgment. We find that, under both the common knowledge exception and the doctrine of res ipsa loquitur, the plaintiff was not required to submit expert proof to rebut the physician’s expert testimony that he was not negligent by relying on the nurses’ sponge count. However, application of neither res ipsa loquitur nor the common knowledge exception results in a conclusive presumption of negligence by the defendant physician. Therefore, a fact issue as to the physician’s negligence remains for trial.
This is a medical malpractice case. Plaintiff/Appellant appeals from the trial court’s disqualification of her expert witness and grant of the Defendant/Appellee’s motion for directed verdict. Finding that the Appellant failed to show that her expert was familiar with the standard of care in a community similar to the defendant’s community, we affirm the decision of the trial court.
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?
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.
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.
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.
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:
Here's a link to the opinion: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.
