A Wrongful Disclosure of Medical Information Held to Be Actionable

The Tennessee Court of Appeals recently issued its opinion in Doe v. Walgreens Co., No. W2009-02235-COA-R3-CV (Tenn. Ct. App. Nov. 24, 2010). The case deals with the disclosure a customer's medical information; the customer was also an employee of Walgreens at the time of the wrongful disclosure and HIV positive. Here's the summary from the opinion's syllabus, to wit:

This is an appeal from the grant of Appellees/Defendants’ Tenn. R Civ. P 12.02 motion to dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens. In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a customer of Walgreens. A co-worker of Ms. Doe’s accessed Ms. Doe’s prescription history in the Walgreens’ database, and then disseminated her medical information to other coworkers and to Ms. Doe’s fiancé. Ms. Doe and her fiancé filed suit. The trial court dismissed the lawsuit, finding that the Does’ exclusive remedy was under the workers’ compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her employment with Walgreens, and that she has sufficiently pled causes of action outside workers’ compensation law, we reverse the order of dismissal and remand.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/104/Jane%20and%20John%20Doe%20v%20Walgreens%20Co%20OPN.pdf

Medical Malpractice: Plaintiffs' Claim Dismissed Due to Failure to Comply with New Law on Notice and Certificates of Good Faith

The Tennessee Court of Appeals released its opinion today in Martins v. Williamson Cnty. Med. Ctr., No. M2010-00258-COA-R3-CV (Tenn. Ct. App. Nov. 22, 2010). Here's a summary of the case from the syllabus, to wit:

Katrina B. Martins and her husband filed suit against Williamson Medical Center for injuries sustained when Ms. Martins fell in her hospital room. The trial court held that the complaint stated a claim based on medical malpractice and dismissed the lawsuit for failure to comply with the Tennessee Medical Malpractice Act. Plaintiffs appeal, asserting that the complaint sounded in common law negligence. We affirm.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/104/Katrina%20Martins%20v%20Williamson%20Medical%20Center%20Opn.pdf

Have a Question About Tennessee Appellate Practice?

This work might help, to wit:

APPELLATE PRACTICE COMM., NASHVILLE BAR ASS’N, APPELLATE ADVOCACY: A HANDBOOK ON APPELLATE PRACTICE IN TENNESSEE (Donald Capparella et al. eds., 4th ed. 2010).

Here's a link to the handbook:

http://www.nashvillebar.org/Publications/AppellateHandbook/Handbook_currentEdition.pdf

Firm News: Tony Duncan Selected to Mid-South Super Lawyers as a "Rising Star"

The firm is pleased to announce that Tony Duncan has been selected as a "Rising Star" as part of the class of 2010 Mid-South Super Lawyers. Here's a link to his profile, to wit:

http://www.superlawyers.com/tennessee/lawyer/Tony-Duncan/cc552432-29b5-4f60-a913-198fec274ced.html

The selection process for becoming a Mid-South Super Lawyer is explained at the following link:

http://www.superlawyers.com/about/selection_process.html

Congratulations to Tony!

Tony Duncan

online at

visit superlawyers.com

Veterans Day: Thanks to Vets

To all our veterans, thank you for your service to our country. It is greatly apprecited.

May God bless America.

Surgical Errors

Here's an interesting article on surgical errors, to wit:

http://www.msnbc.msn.com/id/40096673/ns/health-health_care/?gt1=43001

Surgery Videos

http://www.nlm.nih.gov/medlineplus/surgeryvideos.html

New Tennessee Supreme Court Opinion on Summary Judgment

The Tennessee Supreme Court issued an opinion yesterday regarding summary judgment in Davis v. McGuigan, No. M2007-02242-SC-R11-CV (Tenn. Oct. 26, 2010). This opinion offers a good analysis of Tennessee's recently clarified summary judgment standard; and, by the dissent, how the Tennessee Supreme Court is fractured on this issue.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/SC%20Joseph%20Davis%20v%20Patrick%20J%20McGuigan%20Opn.pdf

Here's a link to the dissent:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/SC%20Joseph%20Davis%20v%20Patrick%20J%20McGuigan%20opn%20DIS.pdf

Medical Malpractice: Direct Claim Against Hospital Upheld on Appeal

The Tennessee Supreme Court issued its opinion today in Barkes v. River Park Hosp., Inc., No. M2006-01214-SC-R11-CV (October 20, 2010). Here's the summary from the opinion's synopsis, to wit:

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.

Here'a a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/BarkesDebra.opn.pdf

Medical Malpractice: Respondeat Superior Saves the Day for Plaintiffs

The Tennessee Supreme Court issued its opinion today in Abshure v. Methodist Healthcare-Memphis Hosp., No. W2008-01486-SC-R11-CV (October 20, 2010). Here's the summary from the opinion's synopsis:

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.

Tennessee Pattern Jury Instructions -- Criminal

Here is a link to the Tennessee Pattern Jury Instructions -- Criminal that are available on the Tennessee Administrative Office of the Courts' ("AOC") Web Site:

http://www.tsc.state.tn.us/geninfo/Courts/LCI_Inst.shtml

P.S. I posted the criminal instructions previously in my May 20, 2009 post. They were , however, not from the AOC.

New Tennessee Supreme Court Decision on Hospital Liens

The Tennessee Supreme Court recently released its opinion in Shelby County Health Care Corp. v. Nationwide Mut. Ins. Co., No. W2008-01922-SC-R11-CV (Tenn. Oct. 13, 2010). A portion of the opinion's synopsis, which summarizes the Court's holding, is as follows:

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.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/104/SC%20Shelby%20Co%20Health%20Care%20Corp%20dba%20Regional%20Medical%20Center%20v%20Nationwide%20Mutual%20Insurance%20Co%20OPN.pdf

Equine Activities Act: Summary Judgment for the Defendants Reversed

The Middle Section of the Tennessee Court of Appeals offers a good discussion of the Equine Activities Act in Jordan v. YMCA of Mid. Tenn. , No. M2009-02369-COA-R3-CV (Tenn. Ct. App. Sept. 30, 2010).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Kerry%20Jordan%20v%20YMCA%20of%20Middle%20TN%20Opn.pdf

Medical Malpractice: Tennessee Supreme Court Holds Plaintiffs May Argue the Value of Non-Economic Monetary Damages to Jury

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

Medical Malpractice: 12-by-12 Sponge Sewn Up in a Patient---Who's a Judge!

This post is a sister post to my August 17, 2010 post below. My client had a large sponge sewn up in him during surgery in 2006. This story (see link below) is about a Florida judge who had the same thing happen to him.

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"?

September 11, 2001

Please honor those who died that day. They were innocent victims of a cowardly attack. God rest their souls.

Please also remember the families of those who died. May God be with them.

Medical Malpractice: Petition to Rehear Denied in Estate of Bell v. Shelby County Health Care Corp.

This post is related to my June 24, 2010 post about the Tennessee Supreme Court case of Estate of Bell v. Shelby County Health Care Corp. The Tennessee Supreme Court denied the petition to rehear the case, which was filed by Shelby County Health Care Corp.

Here's a link to the opinion denying the petition to rehear, to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/103/SC%20Estate%20Joyce%20Bell%20v%20Shelby%20Co%20Health%20Care%20Corp%20dba%20the%20Med%20opn.pdf

Medical Malpractice: Plaintiff's Claim Fails Due to Ineffective Service of Process

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.pdf

Medical Malpractice: Grant of Summary Judgment for Defense Reversed Due to the Common Knowledge Exception and Res Ipsa Loquitur, Etc.

Here is the opinion from the Middle Section of the Tennessee Court of Appeals in Deuel v. Surgical Clinic, PLLC, No. M2009-01551-COA-R3-CV (Tenn. Ct. App. Aug. 16, 2010). The opinion's syllabus reads:

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.

Here's a link to the slip opinion:

  http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Lorraine%20Deuel%20Administratrix%20Estate%20Clyde%20Deuel%20v%20The%20Surgical%20Clinic%20&%20Richard%20J%20Geer%20MD%20opn.pdf.

As a matter of disclosure, this is my case. It was the subject of my January 1, 2010 post. http://theduncanlawfirm.blogspot.com/search?q=sponge

Medical Malpractice: Plaintiff's Expert Fails to Satisfy Locality Rule

The Western Section of the Tennessee Court of Appeals just issued its opinion in Johnson v. Richardson, No. W2009-02626-COA-R3-Cv (Tenn. Ct. App. Aug. 12, 2010). Here's part of the syllabus from the majority opinion, to wit:

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.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Tina%20Johnson%20vs%20David%20J%20Richardson%20MD%20OPN.pdf

Here's a link to the concurring opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Tina%20Johnson%20vs%20David%20J%20Richardson%20MD%20CON%20opn.pdf