Thursday, October 28, 2010

TN Supreme Court reviews whether the trial court properly dismissed a medical malpractice suit involving negligent prescription of drugs.

LOU ELLA SHERRILL ET AL. v. BOB T. SOUDER, M.D. ET AL. (Tenn. October 28, 2010)

This litigation involves a claim of medical malpractice against the two defendants, a physician and the corporation operating his clinical practice, alleging negligence in the prescription of a drug. The trial court granted the defendants' motion for summary judgment on grounds that the suit was barred by the one-year statute of limitations. The Court of Appeals affirmed.

The question before the Court is the propriety of summary judgment on statute of limitations grounds. Although the trial court properly concluded that the cause of action accrued more than a year before the suit was filed, there is a genuine issue of material fact regarding whether the plaintiff was of unsound mind on the date the cause of action accrued, thus tolling the limitations period. Because the suit was not time-barred as a matter of law, the grant of summary judgment must be reversed. The cause is remanded to the trial court for proceedings consistent with this opinion.

Opinion may be found at:

Court reviews the dismissal of a motor vehicle-related personal injury suit based on the failure to provide prompt service of process to the Defendant.

ROBERT G. CRABTREE, JR., ET AL. v. JENNIFER L. LUND (Tenn. Ct. App. October 28, 2010)

Robert G. Crabtree, Jr., and Bonnie K. Hakey (collectively "the plaintiffs") filed suit against Jennifer L. Lund ("the defendant") seeking compensation for personal injuries and property damage arising out of a April 22, 2005, multiple-vehicle accident in Carter County.

With her answer, the defendant coupled a motion to dismiss under Tenn. R. Civ. P. 12.02 "on the basis of insufficiency of process and insufficiency of service of process." Following a hearing, the trial court dismissed the plaintiffs' suit with prejudice finding "that the Plaintiffs have not provided to the Court any valid reason for the delay in obtaining prompt service of process upon the Defendant." Plaintiffs appeal. We (1) vacate the trial court's judgment dismissing the plaintiffs' complaint and (2) remand for further proceedings.

Opinion may be found at:

SWINEY concurring

Tennessee Supreme Court rules whether liens under the Hospital Lien Act attach to medical payment benefits paid pursuant to an insurance policy.


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.

Opinion may be found at:

Monday, October 25, 2010

Court reviews the denial of a motion for relief in a case involving a car accident.

STEPHEN BALL v. THEODORE SHOCKLEY (Tenn. Ct. App. October 25, 2010)

This is an appeal from the denial of a Rule 60.02 motion. The plaintiff sued the defendant for injuries arising out of a car accident. Several months later, the defendant filed a motion for summary judgment. The motion was not opposed, and was granted. The plaintiff later retained new counsel and filed a motion for relief pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. The trial court denied the plaintiff's motion for relief, commenting that even if the order were set aside, it would nevertheless grant the motion. The plaintiff now appeals. We affirm, finding no abuse of discretion by the trial court.

Opinion may be found at:

Friday, October 22, 2010

TWCA reviews compensability of injuries employees incurred while traveling from one job site to another

CALVIN D. ERVIN v. JONES BROS., INC., ET AL. (TWCA October 22, 2010)

This consolidated appeal involves two employees who were injured while traveling in a personal vehicle during lunchtime while going from one job site to another. The trial court held that the injuries were compensable and awarded permanent partial disability benefits. The employer has appealed. We affirm the trial court's holding on the issue of compensability. However, we modify the trial court's ruling on the extent of disability.

Opinion may be found at:

Thursday, October 21, 2010

TWCA reviews findings of concurrent injuries and the burden of proof under TCA §50-6-242 in a Worker's Compensation Case


After a plant closure, employee sought reconsideration of a prior workers'compensation settlement for right shoulder and elbow injuries in accordance with Tenn. Code Ann. section 50-6-241(a)(2) (2008). Employer denied that he was entitled to reconsideration of the elbow injury because it was a separate injury to a scheduled member. Id. section 50-6-241(a)(1).

The trial court found that the two injuries were concurrent and that employee was entitled to receive reconsideration as to both. It further found that employee had proven three of the four factors set out in Tenn. Code Ann. section 50-6-242(a) (2008) by clear and convincing evidence and was therefore not limited by the six times impairment cap. The trial court awarded 57.5% permanent partial disability to the body as a whole.

On appeal, employer contends that the trial court erred by finding the injuries to be concurrent and by finding that employee had satisfied the requirements of Tenn. Code Ann. section 50-6-242(a). We affirm the holding that the injuries were concurrent but find that employee did not satisfy his burden of proof under Tenn. Code Ann. section 50-6-242(a). We modify the judgment accordingly.

Opinion may be found at:

TN Supreme Court reviews whether the lower courts properly dismissed vicarious liability claims against a hospital in a medical malpractice case.


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.

Opinion may be found at:

Court reviews a ruling about insurance coverage of a van involved in an accident.

ALLSTATE INSURANCE COMPANY, v. DIANA LYNN TARRANT, et al. (Tenn. Ct. App. October 21, 2010)

Plaintiff insurer brought this declaratory judgment action to determine which of the two policies issued to defendants insured and their corporation, covered a van which had been involved in an accident. Plaintiff named the insureds as defendants, as well as the third party who had filed a tort action against the insureds for personal injuries.

The Trial Court conducted an evidentiary hearing and ruled that the insureds had told the agency plaintiff to keep the van in dispute on the commercial policy, but it had transferred the van to the insureds' personal policy. The Court further ruled that a notice of the transfer was sent to the insureds by plaintiff, and plaintiff sent at least five bills to the insureds that reflected the van was then insured under the personal policy and not the commercial policy. The Court concluded that the insureds ratified the change and ruled that the van was insured under the insureds personal policy. On appeal, we reverse and dismiss the action.

Opinion may be found at:

Wednesday, October 6, 2010

Court Reviews a Slip and Fall Case

KATHY GORDON v. BY-LO MARKETS, INC., D/B/A/ BY-LO #10 (Tenn. Ct. App. October 6, 2010)

Plaintiff, while delivering pizza to customers in the By-Lo grocery store, slipped and fell. She filed suit against By-Lo, claiming negligence. By-Lo moved for summary judgment and after a hearing on the matter, the trial court entered summary judgment in favor of By-Lo and dismissed the suit. Plaintiff appeals. We affirm.

Opinion available at:

SUSANO, concurring:

Court Reviews Whether Neutral Assaults Qualify an Employee for Benefits under TN Workers’ Compensation Laws.


This appeal involves the workers' compensation liability of an employer for the unsolved fatal shooting of an employee on the employer's premises. The employee's surviving spouse filed suit in the Chancery Court for Davidson County seeking death benefits under Tennessee's Workers' Compensation Law.

Following a bench trial, the trial court denied the widow's claim for workers' compensation benefits. The court concluded that the employee's death was the result of a neutral assault and that the "street risk" doctrine was inapplicable because the employer's premises were not open to the public.

On appeal, the Special Workers' Compensation Appeals Panel declined to presume that neutral assaults on an employer's premises were compensable and affirmed the trial court's judgment. We granted the surviving spouse's petition for full court review. Like the Special Workers' Compensation Appeals Panel, we decline to engraft a non-statutory presumption favoring compensability in cases involving neutral assaults on the employer's premises. Accordingly, we affirm the judgment of the Special Workers' Compensation Appeals Panel and the trial court.

Opinion available at:

WADE dissenting opinion:

Monday, October 4, 2010

Court reviews whether state or federal law protects hospital records from disclosure.


This is the second time this case, filed by John P. Konvalinka ("the Petitioner") to force disclosure of public documents, has been before us. In the trial court's order that generated the first appeal, the court held that the records the Petitioner requested from Chattanooga-Hamilton County Hospital Authority ("the Hospital" or "Erlanger") were exempt from disclosure under state law, and pretermitted the question of whether they were exempt from disclosure under federal law.

On appeal, we held that the records were not protected from disclosure by state law and remanded for a determination of whether they were protected from disclosure by federal law. The Hospital attempted on remand to assert additional state law defenses to disclosure. The trial court held that the new state law defenses were outside the scope of the remand. It also held that federal law did not protect the documents at issue from disclosure. Accordingly, it ordered the Hospital to produce the documents. The Hospital appeals challenging both aspects of the trial court's judgment. We affirm.

Opinion may be found at:

Friday, October 1, 2010

Court Reviews Whether Plaintiff Established the Elements of her Medical Malpractice Claim


Plaintiff appeals the summary dismissal of her medical malpractice complaint against Winifred Lassiter, M.D. Plaintiff alleges that Dr. Lassiter breached her duty of care by negligently performing a physical Fitness for Duty Examination. The trial court summarily dismissed the complaint finding that Plaintiff failed to establish the elements of her claim or show a genuine issue of material fact. We affirm.

Opinion available at:

Court Reviews Immunity from Liability under the Tennessee Equine Activities Act

KERRY JORDAN v. YMCA OF MIDDLE TENNESSEE, ET AL. (Tenn. Ct. App. October 1, 2010)

A young woman was thrown from a horse at a camp operated by the YMCA of Middle Tennessee, breaking her arm. Unbeknownst to the woman, the same horse had thrown two experienced riders ten days earlier. She filed a suit for negligence against the YMCA and the camp, alleging that their employees and volunteers knew the horse to be dangerous, but that they nonetheless failed to ascertain whether she was sufficiently experienced to handle such an animal. The defendants filed a motion for summary judgment, claiming that they were immune from liability under the provisions of the Equine Activities Act, Tenn. Code Ann. section 44-20-101 et seq. The trial court granted the motion. We reverse.

Opinion available at: