Tony Duncan Named a 2013 Mid-South Super Lawyer

For the third year in a row, I have been named a Mid-South Super Lawyer.  I am on page 38 of the link below:

http://digital.superlawyers.com/superlawyers/taslrs13#pg20

I am humbled that I have been selected again.  It is truly an honor.

New Tennessee Supreme Court Case on Presuit Notices in a Health Care Liability Action

The Tennessee Supreme Court just issued its opinion in Stevens ex rel. Stevens v. Hickman Community Health Care Servs., Inc., No. M2012-00582-SC-S09-CV (Tenn. Nov. 25, 2013).  The summary from the opinion states as follows:

More than sixty days before filing suit, the plaintiff gave written notice to the potential defendants of her healthcare liability claim against them. Tenn. Code Ann. § 29-26-121(a)(2)(E) (2012) requires that a plaintiff’s pre-suit notice include a HIPAA compliant medical authorization that permits the healthcare provider receiving the notice to obtain complete medical records from every other provider that is being sent a notice. Contrary to the statute, the plaintiff provided a non-HIPAA compliant medical authorization that only permitted the release of medical records to plaintiff’s counsel. After the plaintiff filed suit, the defendants moved to dismiss the complaint based on noncompliance with Tenn. Code Ann. § 29-26-121(a)(2)(E). The trial court denied the motion, ruling that plaintiff’s noncompliance was excused by extraordinary cause. We hold that the plaintiff was required to substantially comply with Tenn. Code Ann. § 29-26-121(a)(2)(E) and failed to do so, and that her failure to comply is not excused by extraordinary cause. We dismiss the plaintiff’s case without prejudice.

Here's a link to majority opinion:

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

Justices Wade and Holder issued a separate partial concurrence and dissent.  That opinion is here:

http://www.tsc.state.tn.us/sites/default/files/stevenschristinedis.pdf

Medical Malpractice Case: Another Case Dismissed for Failure to Comply with New Filing Requirements, Etc.

The Tennessee Court of Appeals recently released its opinion in Hailey v. Wesley of the South, Inc., No. W2012-01629-COA-R3-CV (Tenn. Ct. App. Nov. 19, 2013).  The summary of the opinion states as follows:

Plaintiff’s Complaint was dismissed for failure to comply with the requirements of the Medical Malpractice Act. The trial court denied Plaintiff’s second Motion to Alter or Amend, and Plaintiff appealed to this Court. We dismissed the appeal for lack of subject matter jurisdiction due to Plaintiff’s failure to timely file an appropriate notice of appeal.  Plaintiff then filed a third Motion to Alter or Amend in the trial court, which the trial court dismissed for lack of subject matter jurisdiction. Plaintiff filed a second appeal to this Court.  We dismiss the appeal for lack of subject matter jurisdiction.

Here's a link to the opinion:

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

This case also stresses the importance of appellate practice.

Federal Rule of Civil Procedure 45 Changes December 1, 2013

http://www.americanbar.org/newsletter/publications/youraba/201212article10.html

Health Care Liability Action (f.k.a. Medical Malpractice Action): New Opinion on Contiguous State Rule

The Tennessee Court of Appeals just released its opinion in Gilbert v. Wessels, No. E2013-00255-COA-R10-CV (Tenn. Ct. App. Nov. 18, 2013).  Here is the summary from the opinion:

This Court granted an extraordinary appeal in this health care liability action to determine whether the trial court abused its discretion in declining to waive the contiguous state requirement for a testifying expert witness set forth in Tennessee Code Annotated §29-26-115(b). Discerning no error, we affirm.

Here's a link to the opinion:

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

New Medical Malpractice Opinion on Presuit Notices

The Tennessee Court of Appeals just released its opinion in Shockley v. Mental Health Coop., Inc., No. M2013-00494-COA-R3-CV (Tenn. Ct. App. Nov. 4, 2013).  The summary from the opinion reads as follows:

The trial court dismissed Appellant’s medical malpractice and wrongful death case for failure to comply with the pre-suit notice requirement found in Tennessee Code Annotated Section 29-26-121(a). Appellant’s pre-suit notice contained a misnomer, naming the Appellee’s fundraising entity, rather than Appellee, as the proper defendant. The trial court determined that under the Tennessee Supreme Court’s holding in Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012), substantial compliance was not effective to satisfy the statutory requirement for pre-suit notice. Furthermore, because the type of notice required under Section 29-26-121 precedes the filing of the lawsuit, it is not the same type of notice as required for correction of misnomers in pleadings under Tennessee Rule of Civil Procedure 15.03; thus, this rule will not operate to cure the misnomer in the pre-suit notice. Because the Appellant failed to show extraordinary cause for failure to comply with the pre-suit notice, we affirm the trial court’s order dismissing this matter. Affirmed and remanded.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/shockleyt_110513.pdf

New Health Care Liability Action (f.k.a Medical Malpractice) Opinion

The Tennessee Court of Appeals issued its opinion today in Burchfield v. Renfree, No. E2012-01582-COA-R3-CV (Tenn. Ct. App. Oct. 18, 2013).  Here's the summary from the slip opinion:

This is a health care liability action wherein the trial by jury resulted in a judgment for the Defendant, Dr. Timothy Renfree. Plaintiffs, Larry and Dinnie Burchfield, filed this lawsuit against Dr. Renfree alleging that he negligently performed surgery on Mr. Burchfield’s right arm and caused nerve damage. After the jury returned its verdict in favor of Dr. Renfree, the Burchfields filed post-trial motions seeking relief from the judgment and alleging numerous errors in the administration of the trial. The trial court denied the post-trial motions and affirmed the jury’s verdict as thirteenth juror. The Burchfields appealed. We vacate the jury’s verdict, finding reversible error in the administration of the trial, and remand this matter to the trial court for further proceedings.

Here's a link to the forty-six-page opinion:

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

New Wrongful Death Case

The Tennessee Court of Appeals just issued its opinion in Rickman v. Rickman, No. M2013-00251-COA-R3-CV (Tenn. Ct. App. Oct. 14, 2013).  The summary of the opinion states as follows:

This case concerns whether the widow of a deceased man may share in the wrongful death settlement obtained by his personal representative. We conclude that the postnuptial agreement entered into by the widow prevents her from benefitting from the wrongful death settlement. Affirmed and remanded.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/rickmang_101613.pdf

New Health Care Liability Action (f.k.a. Medical Malpractice Case)

For some reason, I haven't posted this case yet; I'm not sure why other than I've just been busy.  On June 27, 2013, the Tennessee Court of Appeals, Eastern Section, issued its opinion in Foster v. Chiles, No. E2012-01780-COA-R3-CV (Tenn. Ct. App. Jun. 27, 2013).  The summary states as follows:

This is a health care liability case. Samuel E. Foster and his wife, Mary Foster,[] timely filed a complaint after properly sending pre-suit notices to the potential defendants as required by Tenn. Code Ann. § 29-26-121(a) (2012). After nonsuiting their first lawsuit, they timely filed a second complaint in which they alleged the same cause of action against the same defendants. The second complaint alleged compliance with section 121(a), citing the notices already properly sent before the first complaint was filed. The trial court dismissed the second complaint with prejudice based upon the court’s determination that plaintiffs failed to satisfy the notice requirement of section 121(a). We hold that plaintiffs complied with section 121(a)’s notice requirement by giving a written notice of their potential health care liability claim to each defendant at least 60 days prior to the filing of their second complaint.  We further hold that section 121 does not mandate dismissal with prejudice for noncompliance with its terms, and that plaintiffs’ inadvertent failure to file – with the second complaint – proof of their service of the subject notices does not warrant dismissal with prejudice. We vacate the trial court’s order of dismissal and remand for further proceedings.

(Footnote omitted.)

Here is a link to that slip opinion:

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

The Appellants-Defendants in the trial court filed an application for permission to appeal with the Tennessee Supreme Court on August 26, 2013.  Appellees-Plaintiffs filed their answer to same on Sept. 5, 2013.  Currently the case is before the Tennessee Supreme Court under Docket No. E2012-01780-SC-R11-CV.  The case history can be viewed at this link:

 http://www2.tncourts.gov/PublicCaseHistory/CaseDetails.aspx?id=57381&Party=True.

UPDATE: the Tennessee Supreme Court reversed the Tennessee Court of Appeals in this case on Jan. 27, 2015.  You can read about it at my Jan. 27, 2015 post, to wit:

 http://theduncanlawfirm.blogspot.com/2015/01/new-tennessee-supreme-court-opinion-on.html

New Medical Malpractice Opinion

Today the Tennessee Court of Appeals issued its opinion in Haley v. State of Tennessee, No. E2012-02484-COA-R3-CV (Tenn. Ct. App. Sept. 25, 2013).  The summary from the opinion states as follows:

This is a medical malpractice case.[] The plaintiff filed a claim with the Division of Claims administration, as the resident physician alleged to have engaged in negligence was purportedly connected to a University of Tennessee training program at Erlanger Hospital in Chattanooga, Tennessee. The State moved the Commissioner to dismiss the plaintiff’s action for failure to comply with the requirements set out in Tennessee Code Annotated section 29-26-121(a). The Commissioner reluctantly agreed with the State’s position. We hold that the plaintiff complied with section 121(a)’s notice requirement by complying with the claim notice requirements of Tennessee Code Annotated section 9-8-402. We further hold that section 121 does not mandate dismissal with prejudice for noncompliance with its terms, and that the plaintiff’s failure to provide all the items denoted in section 121(a) does not warrant dismissal with prejudice under the facts of this case. We vacate the dismissal order and remand for further proceedings.

(Footnote omitted.)

Here's a link to the opinion:

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

How Many Die from Medical Mistakes in U.S. Hospitals?

It's estimated to be nearly 210,000 a year.  Please see link to the article below.

http://www.scientificamerican.com/article.cfm?id=how-many-die-from-medical-mistakes-in-us-hospitals

New Tennessee Supreme Court Opinion on Service of Process: Lack of Prompt Return of Proof of Service Does Not Require Dismissal of a Civil Action

The Tennessee Supreme Court issued its opinion today in Fair v. Cochran, No. E2011-00831-SC-R11-CV (Tenn. Sept. 12, 2013).  The summary from the opinion states as follows:

We granted this appeal to determine whether the return of proof of service of process 412 days after issuance of a summons precludes a plaintiff from relying upon the original commencement of the lawsuit to toll the running of the statute of limitations. We hold that the plain language of Tennessee Rules of Civil Procedure 3 and 4.03 does not condition the effectiveness of the original commencement to toll the statute of limitations upon the prompt return of proof of service. We reverse the judgment of the Court of Appeals affirming the trial court’s dismissal of the plaintiff’s lawsuit. We remand this case to the trial court to determine whether service of process occurred within ninety days of issuance of the summons. If so, the plaintiff may rely upon the original commencement of the lawsuit to toll the statute of limitations.

Here is a link to the majority opinion:

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

Here is a link to Justice Holder's concurrence:

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

In all candor, the plaintiff's lawyer in this appeal was nice enough to let me write the supplemental brief and argue this case before the Tennessee Supreme Court (which I asked him to let me do).  I wanted to take this opportunity to thank him.  Thanks Mike!

September 11, 2001

Twelve years ago today we were attacked by cowards who killed our fellow Americans.  Never---never!---forget what happened.  

May God continue to bless America!

New Tennessee Supreme Court Products Liability Case: Jury Verdict for Minor Plaintiff Reinstated

Yesterday the Tennessee Supreme Court issued its opinion in Meals ex rel. Meals v. Ford Motor Co., No. W2010-01493-SC-R11-CV (Tenn. Aug. 30, 2013).  The summary from the opinion reads as follows:

A six-year-old boy’s spine was fractured in a car wreck when the force of the impact caused him to jackknife over his lap seatbelt and pushed the seatbelt into his stomach and against his spine. The child’s mother filed suit on his behalf against Ford Motor Company (“Ford”), alleging that the defective design of the seatbelt and Ford’s failure to warn of a potential danger caused the child’s permanent paralysis and other enhanced injuries. A jury returned a $43.8 million verdict for compensatory damages, finding Ford to be 15% at fault and two non-parties 85% at fault. Ford’s share of the verdict, based on its degree of fault, was $6,570,000. The jury awarded no punitive damages. Ford moved for a new trial, arguing that the verdict was excessive. The trial court denied the motion for new trial and affirmed the verdict in its capacity as thirteenth juror. The Court of Appeals, in a divided opinion, ruled that the verdict was excessive and remanded to the trial court with a suggestion of remittitur from $43.8 million to $12.9 million, a 70.55% reduction. The suggested remittitur, if the plaintiff accepted it, would reduce Ford’s share of the verdict to $1,935,000. Meals ex rel. Meals v. Ford Motor Co., No. W2010-01493-COA-R3-CV, 2012 WL 1264454, at *18- 21 (Tenn. Ct. App. Apr. 13, 2012). We hold that the Court of Appeals had the authority to suggest a remittitur even though Ford did not request a remittitur. We further hold that the Court of Appeals erred in remitting the verdict to $12.9 million. Having taken the strongest legitimate view of all the material evidence in favor of the verdict, assuming the truth of all that supports it, allowing all reasonable inferences, and discarding any to the contrary, we hold that the jury’s verdict was supported by material evidence and was within the range of reasonableness. The judgment of the Court of Appeals is reversed and the jury’s verdict is reinstated.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/mealsaundreyopn_0.pdf

Medical Malpractice: Toledo Hospital Threw Out Donor Kidney, Now Denies Negligence

http://abcnews.go.com/Health/toledo-hospital-threw-donor-kidney-now-denies-negligence/story?id=20110334

Premises Liability: Summary Judgment for Defense Reversed!

The Tennessee Court of Appeals recently issued its opinion in Parker v. Holiday Hospitality Franchising, Inc., No. E2013-00727-COA-R3-CV (Tenn. Ct. App. Aug. 27, 2013).  The summary from the slip opinion states as follows:

This is a premises liability case in which Plaintiffs alleged that a shower bench in Hotel collapsed, causing Husband to fall and sustain injuries. Plaintiffs filed suit against Defendant, claiming negligence. Defendant filed a motion for summary judgment, asserting that he did not install the bench and did not have actual or constructive notice of the independent contractor’s negligent installation of the bench. The trial court granted the motion for summary judgment and dismissed the case. Plaintiffs appeal. We reverse the decision of the trial court and remand for further proceedings.

Here's a link to the opinion:

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

New Medical Malpractice Opinion

The Tennessee Court of Appeals issued its opinion today in Young v. Kennedy, No. W2012-00836-COA-R3-CV (Tenn. Ct. App. Aug. 13, 2013).  The summary from the opinion states as follows:

This case involves the application of the medical malpractice statute of limitations. The trial court granted summary judgment to the defendant doctor, finding that the statute of limitations defense was not waived by her failure to raise it in her first pre-answer motion, that the defense was sufficiently pleaded, and that the undisputed facts in the record supported a finding that the statute of limitations had expired at the time of filing the initial complaint. Affirmed and remanded.

Here is a link to the opinion:

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

53 Rules to Help Witnesses Survive a Deposition

I like the suggestions at the link below.  Hope you do too.

http://cleblog.nbi-sems.com/2012/06/how-to-help-witnesses-survive-a-deposition/

No link between tort reform, reduced defensive medicine.

Study: No link between tort reform, reduced defensive medicine.

The Insurance Journal (8/7, 18K) reports that a study in the August Health Affairs "found no consistent relationships" between "physicians' level of malpractice concern with objective state-level indicators of malpractice liability risk." Instead, "physicians' perception of their risk...predicts their practice of defensive medicine," suggesting "that traditional malpractice reforms, such as caps on damages, don't change how physicians practice." Unlike previous studies that "focused on physician self-reports of how they would treat hypothetical patients," this study used Medicare claims data to examine doctor's actual behavior.

This article just reaffirms the fact that a one-size-fits-all "remedy" (i.e., caps on damages) is contrary to our Constitutional principles and is nothing more than another corporate bailout for insurors and big business that don't want to be called out on the rug in front of a jury to answer for something they did wrong.

New Tennessee Medical Malpractice Case

The Tennessee Court of Appeals just issued its decision in Groves v. Colburn, No. M2012-01834-COA-R3-CV (Tenn. Ct. App. Jul. 30, 2013).  The summary reads as follows:

Plaintiff filed a complaint against a hospital in which she asserted claims for medical malpractice and wrongful death. She later amended her complaint to add a party and did not contemporaneously file a certificate of good faith. The trial court dismissed the second complaint with prejudice based upon the court’s determination that plaintiff failed to satisfy the requirements of Tenn. Code Ann. § 29-26-122. We affirm the trial court.

Here is a link to the opinion:

https://www.tba.org/sites/default/files/grovesa_073113.pdf