Medical Malpractice: Jury Verdict of $500K in a Retained Sponge Case

http://www.phillyburbs.com/news/local/courier_times_news/woman-awarded-k-after-nurses-left-sponge-in-her-abdomen/article_f7c781bd-b429-5ae9-a15c-79d771ff1669.html

Civil Procedure: New Tennessee Supreme Court Case on Motions to Dismiss

The Tennessee Supreme Court released its opinion today in Webb v. Nashville Area Habitat for Humanity, Inc., No. M2009-01552-SC-R11-CV, (Tenn. Jul. 11, 2011). The summary of the opinion reads as follows:

In this action alleging retaliatory discharge, the trial court granted the defendant’s motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Tennessee Rule of Civil Procedure 12.02(6). The Court of Appeals vacated the trial court’s judgment, holding that the amended complaint sufficiently stated a cause of action for retaliatory discharge. We address the issue of the proper standard for Tennessee courts to apply in ruling on a Rule 12.02(6) motion to dismiss in light of the United States Supreme Court’s recent decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009). We decline to adopt the new Twombly/Iqbal "plausibility" pleading standard and affirm the judgment of the Court of Appeals.

(Underlining of case titles omitted.)

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/pam_webb_v_nashville_area_habitat_for_humanity_inc.pdf

Happy Fourth of July!

I watch these links every year before the Fourth. And I enjoy them a great deal. I hope you all enjoy them too.

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

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

Turn the volume up and have a great Fourth!

New Opinion on Comparative Fault

The Court of Appeals issued its opinion in Bellsouth Tel., Inc. v. Young, No. W2010-01825-COA-R3-CV (Tenn. Ct. App. Jun. 21, 2011). The opinion discusses unknown tortfeasors in the context of a motor-vehicle collision. Here's the summary from the opinion:

Plaintiff sued Defendants for damages arising from a motor vehicle accident. The trial court struck, from Defendants’ answers, allegations regarding the comparative fault of an unidentified nonparty. However, the trial court allowed references to such nonparty at trial, and the jury assigned no fault to Defendants. Finding no error in the trial court’s allowance, we affirm the judgment of the trial court.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/bellsouth_telecommunications_inc_dba_att_tn_v_shundra_y_young_and_maureen_f_kinsella_.pdf

New Opinion: Medical Malpractice vs. Ordinary Negligence

The Court of Appeals just issued its opinion in Brister v. HCA Health Serv's of Tenn., No. M2010-01996-COA-R3-CV (Tenn. Ct. App. Jun. 8, 2011). The opinion offers a good analysis of the distinction between medical malpractice and ordinary negligence. Here is a summary of the case from the opinion:

This is an appeal from the trial court’s grant of a hospital’s motion to dismiss for failure to state a claim upon which relief can be granted. The trial court determined that plaintiff’s claim sounded in medical malpractice and dismissed plaintiff’s claim for failure to comply with the written notice and certificate of good faith requirements of the Tennessee Medical Malpractice Act. Finding that Plaintiff’s complaint states claim for ordinary negligence and premises liability, we reverse the trial court and remand the case for further proceedings.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/mccall_brister_v_hca_health_services_of_tennessee_inc.pdf

Medical Malpractice: The Locality Rule

Here's a recent opinion from the Tennessee Court of Appeals dealing with the locality rule in medical malpractice cases: Kirk v. Chavin, No. E2010-02139-COA-R3-CV (Tenn. Ct. App. June 3, 2011). The synopsis of the case from the opinion states as follows:

Brande Kirk and Amanda Jordan, as children of Barbara Jordan, (“Plaintiffs”) sued Michael A. Chavin, M.D. alleging medical malpractice in his treatment of Barbara Jordan. Dr. Chavin filed a motion for summary judgment. After a hearing, the Trial Court entered its order on August 30, 2010 finding and holding that Plaintiffs’ expert was not qualified to testify in accordance with Tenn. Code Ann. § 29-26-115, and granting Defendant’s motion for summary judgment. Plaintiffs appeal to this Court. We affirm.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/brande_kirk_v_michael_a_chavin_md.pdf

Is the Tort Action Time-Barred?

Assume you have a potential new client come to you to pursue a personal-injury tort action after the one-year statute of limitations has run. Is the claim time-barred? It might not be if the plaintiff was induced not to file suit by the defendant. See Jackson v. Kemp, 365 S.W.2d 437, 440-41 (Tenn. 1963) (holding that a plaintiff was induced not to sue defendant within the one-year limitations period applicable to personal-injury actions and that such an inducement prevented the defendant from availing himself of said limitation as a defense to plaintiff’s later-filed action); see generally Whitehead v. Davidson, 522 S.W.2d 865 (Tenn. 1975) (holding contra to Jackson under the facts of the case because they were distinguishable but acknowleding Jackson as good authority).

Medical Malpractice: Another Case on Certificates of Good Faith

The Tennessee Court of Appeals issued its opinion yesterday in Robles v. Vanderbilt Univ. Med. Ctr., No. M2010-01771-COA-R3-CV (Tenn. Ct. App. Apr. 19, 2010). Here's the summary from the opinion:

Defendants in medical malpractice action appeal the denial of their motion to set aside order entered on plaintiff’s Tenn. R. Civ. P. 41.01 notice of voluntary dismissal without prejudice. Defendants contend that, because the certificate of good faith required by Tenn. Code Ann. § 29-26-122 was not filed with the complaint, dismissal should have been with prejudice. Finding that Tenn. Code Ann. § 29-26-122 does not limit plaintiff’s right to voluntarily dismiss an action without prejudice under the circumstances presented, we affirm the judgment of the trial court.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/CURRENT/Estate%20of%20Miguel%20Robles%20v%20Vanderbilt%20University%20Medical%20Center%20Opn.pdf

Medical Malpractice: New Opinion on the Locality Rule

The Tennessee Court of Appeals recently issued its opinion in Kennard v. Townsend, No. W2010-00461-COA-R3-CV (Tenn. Ct. App. Apr. 14, 2011).

This is a medical malpractice case. The trial court granted summary judgment in favor of Appellee healthcare provider after its determination that Appellant patient’s medical expert did not meet the locality requirement, Tennessee Code Annotated Section 29-26-115(a)(1). Discerning no error, we affirm and remand.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/112/Vivian%20Kennard%20vs%20Arthur%20M%20Townsend%20IV%20MD%20OPN.pdf

New Opinion: Medical Negligence vs. Ordinary Negligence

The Tennessee Court of Appeals recently issued its opinion in Mathes v. DRD Knoxville Medical Clinic, No. E2010-01809-COA-R3-CV (Tenn. Ct. App. Apr. 13, 2011). Here's a summary of the opinion from its synopsis, to wit:

This is an appeal from the trial court’s grant of separate motions to dismiss for failure to state a claim upon which relief can be granted. The trial court determined that Appellants had failed to comply with the written notice and certificate of good faith requirements of the Tennessee Medical Malpractice Act, and had failed to state a claim for vicarious liability based on theories of agency or joint venture. We affirm in part, reverse in part, and remand, concluding that Appellants’ claims of direct negligence do not sound in medical malpractice, but that Appellants failed to state a claim upon which relief can be granted with respect to vicarious liability based on agency or joint venture.

(Emphasis added.)

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/112/Alicia%20Mathes%20et%20al%20v%20DRD%20Knoxville%20Medical%20Clinic%20et%20al.pdf

New Case on Tennessee's Saving Statute

The Tennessee Court of Appeals recently issued its opinion in Freeman v. CSX Transp., Inc., No. M2010-01833-COA-R9-CV (Tenn. Ct. App. Apr. 7, 2011). Here's the summary from the opinion, to wit:

In this interlocutory appeal, we are asked to determine: (1) whether the Tennessee saving[] statute, Tenn. Code Ann. § 28-1-105(a), may be invoked twice within the one-year savings period to save otherwise untimely actions; and (2) whether the Appellee acted with the diligence and good faith necessary to invoke the protection of the saving[] statute. We conclude that Appellee’s suit was properly brought within the protection of the Tennessee saving[] statute. Consequently, we affirm the judgment of the trial court.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/112/Patsy%20Freeman%20Personal%20Representative%20and%20Administratrix%20of%20the%20Estate%20of%20John%20R%20Freeman%20Deceased%20v%20CSX%20Transportation%20Inc%20OPN.pdf

Medical Malpractice: The Term "Injury" Defined

How is an "injury" defined for purposes of medical malpractice? Here is the definition, to wit:

An injury is defined as any want of skillful care or diligence on a physician's part that sets back a patient's recovery, prolongs the patient's illness, increases the plaintiff's suffering, or, in short, makes the patient's condition worse than if due skill, care, and diligence had been used.

Church v. Perales, 39 S.W.3d 149, 171 (Tenn. Ct. App. 2000) (defining injury for purposes of medical malpractice actions).

New Tennessee Supreme Court Decision: Calculating a Reasonable Attorney's Fee for Counsel When Representing a Minor

Yesterday the Tennessee Supreme Court released its opinion in Wright ex rel. Wright v. Wright, No. M2008-01181-SC-R11-CV (Tenn. Mar. 29, 2011). Here's the summary from the opinion, to wit:

We granted this appeal to determine the proper method for computing a reasonable attorney’s fee when the attorney represents a minor. In this case, after the attorney obtained a $425,000 settlement for a minor injured in an automobile accident, the trial court awarded the attorney $141,666.66, or one-third of the recovery, pursuant to the terms of the attorney’s contingent fee agreement with the minor’s father. The court-appointed guardian ad litem appealed the fee award, and the Court of Appeals reversed. Upon remand, the trial court conducted an evidentiary hearing and determined that $131,000 would be a reasonable attorney’s fee, and the Court of Appeals affirmed. Reviewing for an abuse of discretion, we hold that the trial court applied the correct legal standard by analyzing the ten factors set forth in Tennessee Supreme Court Rule 8, Rule of Professional Conduct 1.5(a). We further hold that the fee award was neither illogical, based on an erroneous assessment of the evidence, nor an injustice to the minor. We therefore affirm the judgment of the trial court.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/111/SC%20David%20Lee%20Wright%20ex%20rel%20Kaitlyn%20Lee%20Wright%20v%20Anita%20J%20Wright%20OPN.pdf

Medical Malpracitce: Respondeat Superior & Amended Pleadings

Yesterday the Tennessee Court of Appeals issued its opinion in Randolph ex rel. Randolph v. Meduri, No. W2010-01224-COA-R3-CV (Tenn. Ct. App. Mar. 2, 2010). Here's the summary from the opinion:

This appeal arises out of an action to hold UT Medical Group, Inc. vicariously liable for the alleged negligence of its employees. In 1997, the original plaintiff filed an amended complaint for medical malpractice and wrongful death which specifically named two doctors as employees of the defendant who negligently caused the death of a patient. As trial approached, a substitute plaintiff attempted to add new allegations concerning the negligence of a third doctor. The trial court denied the motion to amend and later granted a motion in limine to exclude evidence concerning the alleged negligence of the third doctor as beyond the scope of the 1997 amended complaint. The plaintiff consequently was unable to offer expert testimony at trial to prove an employee of the defendant negligently caused the patient’s death, and the trial court granted judgment in favor of the defendant. We affirm.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Jamie%20Randolph%20on%20behalf%20of%20her%20deceased%20mother%20Carolyn%20Randolph%20v%20Gianfranco%20Meduri%20MD%20OPN.pdf

The opinion offers a discussion on the doctrine of respondeat superior; the pleading of the doctrine and its effects; and how a delay in an amendment to a pleading can affect a case.

Medical Malpractice: Plaintiff's Case Dimissed for Failure to Follow Recent Changes to Medical Malpractice Act

The Tennessee Court of Appeals issued its opinion today in Myers v. AMISUB (SFH), Inc. , No. W2010-00837-COA-R3-CV (Feb. 24, 2011). Here's the summary from the opinion:

The trial court denied Defendants’ motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff’s failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Curtis%20Myers%20v%20AMISUB%20SFH%20Inc%20dba%20St%20Francis%20Hospital%20

This opinion is incorrect in my humble opinion because it fails to consider in its analysis that the plaintiff's tort claim vested in the law that existed when the claim accrued as a matter of constitutional law. See Estate of Bell v. Shelby Cnty. Health Care Corp., 318 S.W.3d 823, 830 (Tenn. 2010) (recognizing that as to tort cases the law in effect at the time of the accrual of the action is the applicable law per Article One, Section 20 of the Tennessee Constitution). The law that existed when Plaintiff's claim accrued did not require pre-suit notices to be mailed out to potential defendants or certificates of good faith to be filed. However, it doesn't look like the litigants brought this issue up before the trial court or the appellate court, which probably affected the outcome.

Long v. Hillcrest Healthcare - West Update

This post is a follow-up to my April 16, 2010 post about Long v. Hillcrest Healthcare - West, No. E2009-01405-COA-R3-CV (Tenn. Ct. App. Apr. 16, 2010).

Here's a link to the post on Long:

http://theduncanlawfirm.blogspot.com/2010/04/medical-malpractice-court-upholds.html.

The Tennessee Supreme Court recently granted the Tenn. R. App. P. 11 application in Long only to remand the case back to the trial court for reconsideration in light of its ruling in Estate of French v. Stratford House, --- S.W.3d ----, 2011 WL 238819, No. E2008-00539-SC-R11-CV (Tenn. Jan. 26, 2011).

Here's a link to the post on French:

http://theduncanlawfirm.blogspot.com/2011/01/new-nursing-home-case.html.

Here's a link to the Tennessee Supreme Court's orders, which are on pages 19-20 at this link (Justice Koch did his own concurring order):

http://www.tsc.state.tn.us/OPINIONS/TSC/certiorari/2011/Certlist20110222.pdf.

Medical Malpractice: Summary Judgment for Defendants Vacated; Case Remanded; and Judge Must Recuse Herself

The Court of Appeals recently issued its opinion in Olerud v. Morgan, No. M2010-01248-COA-R3-CV (Tenn. Ct. App. Feb. 18, 2010). Here's the summary from the opinion, to wit:

This is an appeal of a grant of summary judgment to a hospital and physician in a medical malpractice case. Plaintiffs also appeal the denial of their motion that the trial court recuse itself due to the court’s membership on the board of directors of the defendant hospital and the court’s denial of their motion for default judgment based on spoliation of evidence. We reverse.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Gilbert%20Olerud%20v%20Dr%20Walter%20M%20Morgan%20III%20Opn.pdf

Think You Know About the McDonald's Coffee Case?

Think Again! People are slowly giving up their rights to a fair trial by PR campaigns by big money and business that don't want you to have your day in court. Watch the link below from the American Bar Association for more information:

http://www.abajournal.com/magazine/article/a_cup_of_joe_hot_coffee_sundance_film_festival/

Medical Malpractice: Quotient Verdict Results in Reversal on Appeal; Case Remanded for Re-Trial

The Tennessee Court of Appeals just issued its opinion in Cullum v. Baptist Hosp. Sys., Inc., No. M2009-01980-COA-R3-CV (Tenn. Ct. App. Feb. 16, 2011). Here's the summary from the opinion, to wit:

This is an appeal from a jury verdict in a medical malpractice case. Plaintiffs, parents of child who suffered severe, permanent brain injuries during the course of his labor and delivery, filed suit against their physician, physician’s employer, and related hospitals. The physician and her employer settled prior to trial, leaving the related hospitals as the only defendants. This case has been tried twice. Following the first trial, the jury returned a verdict in favor of defendants, which the trial court set aside pursuant to the thirteenth juror rule. The second trial resulted in a verdict for plaintiffs, with the jury assigning 3.75 percent of fault to the defendants and 96.25 percent of fault to the nonparty physician. Because the evidence shows that the members of the jury agreed to be bound by the result of a predetermined averaging process, we have concluded that the jury reached a quotient verdict, which is impermissible. Consequently, we reverse and remand the case for a new trial.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/James%20and%20Patricia%20Cullum%20v%20Baptist%20Hospital%20Systems%20Inc%20Opn.pdf

The case also discusses the effect of a settlement between one defendant and the plaintiff and how that is to be handled at trial with any remaining nonsettling defendants. Specifically, it discusses how this sort of evidence is very limited by Tenn. R. Evid. 408 and how it should not be improperly brought before the jury's attention by the nonsettling defendants during the re-trial of this case.

Medical Malpractice: Plaintiffs' Failure to Comply with Notice Statute Proves Fatal to Their Claim

The Tennessee Court of Appeals issued its opinion today in DePue v. Schroeder, No. E2010-00504-COA-R9-CV (Tenn. Ct. App. Feb. 15, 2011). The summary from the opinion's synopsis is as follows:

Plaintiffs filed their Complaint alleging medical malpractice against numerous healthcare providers on May 26, 2009. They alleged that they had given the notice requirements of Tenn. Code Ann. §29-26-121(a) prior to April 8, 2009 to the defendants. The defendants filed several motions, including motions for summary judgment, stating that plaintiffs failed to comply with the notice requirements of Tenn. Code Ann. § 29-26-121. The record establishes that plaintiffs did not give the requisite notice, "at least 60 days before the filing of their Complaint[."] In response to the motions for summary judgment the Trial Court excused compliance with the code section and defendants appealed. On appeal, we reverse the holding of the Trial Court on the grounds that non-compliance with the code section could only be excused upon the showing of extraordinary cause.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Karah%20and%20Ryan%20DePue%20et%20al%20v%20Charles%20D%20Schroeder%20et%20al.pdf


Here's a link to the dissenting opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/111/Karah%20and%20Ryan%20DePue%20et%20al%20v%20Charles%20D%20Schroeder%20et%20al%20Dissent.pdf