Wednesday, December 30, 2009

Court reviews whether regulations requiring physicians to review medical charts constitute a standard of care on which a plaintiff may rely in a negligence suit


This is a medical malpractice wrongful death action. The plaintiff's decedent underwent surgery and developed an infection after the surgery. The decedent visited the defendant medical clinic, the office of the defendant primary care physician, to treat the pain from the infection. The defendant physician was the supervising physician at the clinic. The decedent was seen by a physician assistant at the clinic, but not by the defendant physician. The physician assistant prescribed the decedent nausea medicine and enough Demerol to take four pills a day for three weeks. The physician assistant did not schedule a follow-up visit. After about two weeks, the decedent called the defendant clinic complaining of nausea and vomiting. The decedent was told to go to the emergency room if she felt dehydrated; she did not go to the emergency room. That same day the decedent died as a result of acute combined drug intoxication.

The decedent's husband filed this lawsuit against the defendant medical clinic and the defendant physician, alleging medical malpractice and wrongful death. During the pendency of the litigation, the defendant physician was disciplined administratively for failing to comply with medical regulations that required, inter alia, that the physician review the physician assistant's prescription of controlled medication to the decedent. The plaintiff then sought to amend the complaint to include a claim of negligence per se against the physician based on the regulatory infraction; his motion was denied. After much discovery, the defendants filed a motion for summary judgment, arguing that the expert testimony adduced by the plaintiff was insufficient to establish the standard of care or that the alleged negligence caused the decedent's death. The trial court granted the motion. The plaintiff now appeals. We affirm the trial court's decision in part and reverse in part. We find that the regulation requiring the physician to review the decedent's chart and data within a certain time period constitutes a standard of care, and that the trial court erred in denying part of the plaintiff's motion to amend the complaint to assert a claim of negligence per se. We affirm the grant of summary judgment on the remaining claims.

Full opinion may be found at:

Wednesday, December 23, 2009

Court reviews prisoner's claims for medical malpractice, negligence, and violation of the right to be free from cruel and unusual punishment

JOE HENRY MOORE v. STATE OF TENNESSEE (Tenn. Ct. App. December 23, 2009)

This case arises out of a prisoner's claims for medical malpractice, negligence, and violation of his right to be free from cruel and unusual punishment under the state and federal constitutions. The claims commission, in two separate orders, wholly resolved the prisoner's claims in favor of the State of Tennessee. Because the prisoner has not argued or otherwise provided any basis for this Court to determine the alleged errors in the judgment of the claims commission, we affirm.

Opinion may be found at:

TWCA reviews whether an injury covered by workers' compensation necessitated later surgery that should be covered by the workers' compensation benefits


Employee received an award of workers' compensation benefits for a 1994 injury that aggravated a pre-existing condition, Legg-Perthes disease. He received medical care for the condition thereafter through workers' compensation. In 2007, his treating physician recommended hip replacement surgery. The trial court found that the necessity for surgery was not caused by the original injury. Employee has appealed. We affirm the judgment.

Opinion may be found at:

Tuesday, December 22, 2009

Court reviews whether a general consent to medical care covers dental work performed without obtaining consent from a patient or patient's attorney-in-fact

KATHERINE RANGE, ET AL. v. C. M. SOWELL, JR., D.D.S. (Tenn. Ct. App. December 22, 2009)

The son of a nursing home patient claimed that the defendant dentist committed battery against his mother by performing dental work on her without obtaining proper consent from either the mother or from the son in his capacity as her attorney-in-fact. The dentist argued that he had operated under a general consent to medical care that the son executed at the time of his mother's admission to the nursing home, that the mother was not injured by the care he provided, and that the statute of limitations barred the son's claims. The trial court granted summary judgment to the dentist. We affirm the summary judgment, but modify that part of the trial court's award of discretionary costs which held the son personally liable for those costs.

Opinion may be found at:

Thursday, December 17, 2009

Court reviews the proper vehicle for reviewing a Board of Appeal injury classification


A teacher was injured when she tried to break up a fight among students. The BOE classified her injury as resulting from an accident rather than from a physical attack, and that determination was upheld by the Board of Appeal, whose determination was final. The teacher filed suit in the chancery court alleging breach of contract, but her complaint was dismissed after the trial court found that no breach had occurred and that it lacked subject matter jurisdiction. The proper vehicle for reviewing the Board of Appeal's classification was a writ of certiorari. Because the teacher failed to file such a petition, we affirm the trial court's dismissal.

Opinion may be found at:

Court reviews whether it can properly exercise personal jurisdiction over a Kentucky corporation in a medical malpractice suit


This appeal involves the propriety of Tennessee's courts exercising general personal jurisdiction over a Kentucky corporation. The Kentucky corporation and other Tennessee parties were named as defendants in a medical malpractice action filed in the Circuit Court for Davidson County. The trial court granted the Kentucky corporation's motion for summary judgment on the ground of lack of personal jurisdiction, and the Court of Appeals affirmed. Gordon v. Greenview Hosp., Inc., No. M2007-00633-COA-R3-CV, 2008 WL 802463 (Tenn. Ct. App. Mar. 24, 2008). We granted the plaintiffs' application for permission to appeal to determine whether the courts of Tennessee, consistent with the due process clause, may exercise personal jurisdiction over the Kentucky corporation. We have determined that (1) the Kentucky corporation's corporate filings in Kentucky listing the Tennessee address of the legal department of its parent corporation as its current principal office, (2) the fact that many of the corporation's officers and directors maintain offices in Tennessee, and (3) the fact that the Kentucky corporation is a subsidiary and remote subsidiary of two corporations whose primary places of business are in Tennessee are insufficient, individually and collectively, to provide a basis for exercising general personal jurisdiction over the Kentucky corporation.

Opinion may be found at:

Tuesday, December 15, 2009

Court reviews whether photographs of a corpse at an automobile accident scene amounts to an invasion of privacy.

DEBBIE HARRIS, individually and as next of kin to her son JEREMY WOOTEN; CHRISTOPHER HARRIS, individually and as next of kin to his brother, JEREMY WOOTEN; CHASITY BROWN, individually and as next of kin to her brother JEREMY WOOTEN v. DON HORTON and ROBERTSON COUNTY (Tenn. Ct. App. December 15, 2009)

A young man died in a motor vehicle accident on a public highway. The defendant county's emergency medical services unit, including the defendant paramedic, responded to the accident. Photographs were taken of the accident scene, including photographs of the young man's body. Three months later, the defendant paramedic gave a presentation to a high school driver's education class. To aid his presentation, he circulated among the students photo albums containing photographs of automobile accident scenes. The albums included accident scene photographs of the young man's corpse. The young man's family then filed a lawsuit against the paramedic and the county, asserting claims for, inter alia, interference with and mishandling of human remains, invasion of privacy based on intrusion upon seclusion, invasion of privacy for publicizing private facts, and infliction of emotional distress. The trial court dismissed the claim for interference with human remains for failure to state a claim and granted summary judgment to the paramedic and the county on the other claims. The family now appeals. We affirm.

The full text of this opinion may be found at: