Thursday, September 29, 2011

TN Nursing Homes Get Early Christmas with New Tort "Reform"

On October 1, 2011, Tennessee's nursing homes get their first Christmas present of the year from the Republican-controlled Legislature and Governor Haslam.  That's when the state's much-less-than-stellar nursing home industry will become protected by new limits on lawsuits by those injured or killed as result of nursing home neglect.

The Tennessean accurately reports that Tennessee nursing homes rank near the bottom nationally in many key areas ranked by both the Centers for Medicare & Medicaid Services and the GAO.  Despite these rankings, and despite recent suits highlighting substandard care for nursing home patients, Republicans pushed through limits on the amount of damages patients can recover in cases of nuring home neglect.  The limits were part of Governor Haslam's "jobs-based" tort reform agenda.  It remains unclear - in fact unimagineable - how making nursing homes less accountable for patient neglect will create jobs or improve care.  But then jobs and better care for nursing home patients were not what the industry had in mind when it lobbied for the limits.  

For more information on Tennessee's nursing homes and the new reforms see The Tennessean and GAO studies.

Wednesday, September 28, 2011

Court reviews a dismissal based on failure to comply with the requirements of the Medical Malpractice Act

ELIZABETH CUDE v. GILBERT E. HERREN, M.D., ET AL. (Tenn. Ct. App. September 26, 2011)

The trial court dismissed Plaintiff's re-filed suit for failure to comply with the 60-day notice and certificate of good faith requirements set out in the Medical Malpractice Act. Because we find such requirements applicable to Plaintiff's suit and no extraordinary cause to excuse her non-compliance, we affirm the trial court's dismissal.

Opinion available at:

Tuesday, September 27, 2011

Court reviews a motor vehicle accident case involving a professional driver hired to perform at an exhibition

GINNY BETH KING, ET AL. v. FLOWMASTER, INC. (Tenn. Ct. App. September 27, 2011)

Flowmaster invited a professional driver to attend an exhibition in which such driver allegedly lost control of his vehicle, killing or injuring many spectators. The plaintiffs sued numerous defendants, including Flowmaster, and the trial court granted Flowmaster's motion for summary judgment.

We affirm the trial court's finding that Flowmaster was not a member of a joint venture. However, we find that Flowmaster failed to negate the duty element of the plaintiffs' negligence claim, and that genuine issues of material fact exist as to whether Flowmaster "engaged" in an ultrahazardous activity or "participated" in a "drag race," and we remand on these issues.

Opinion available at:

Friday, September 9, 2011

TWCA reviews whether a claim for death benefits is barred by the prior settlement of a benefits claim


This case involves a claim for workers' compensation benefits by the dependent spouse of a deceased employee. The decedent was exposed to asbestos in the course of his employment and contracted asbestosis as a result. His claim for benefits was settled in 1991. He died in December 2007, and his widow filed this action seeking death benefits under the workers' compensation law. The trial court awarded benefits, and the employer has appealed, contending that the widow's claim was barred by the terms of the 1991 settlement. The widow contends that the trial court incorrectly set the rate at which benefits are to be paid. We affirm the judgment.

Opinion available at:

Thursday, September 8, 2011

TWCA reviews whether employee suffered a compensable injury


Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee suffered an episode of serious breathing difficulty after work while at home. He was transported by ambulance to a hospital where an emergency tracheotomy was performed to allow him to breathe. He alleged that this episode was caused by exposure to airborne contaminants in his workplace. His employer denied the claim.

The trial court found that the employee had sustained a compensable injury and awarded permanent total disability benefits. The employer has appealed, contending that the trial court erred by finding that employee had a compensable injury, and by finding him to be permanently and totally disabled. We affirm the judgment.

Opinion available at:

TWCA reviews whether both of employee's surgeries were caused by a work-related injury


In this workers' compensation case, the employee injured her lower back at work in May 2006. She received medical treatment for a short period of time and was then released by her doctor. In July 2007, she consulted a neurosurgeon for continuing lower back pain. Around the same time, she accepted a voluntary layoff from her employer, then retired. She later had two surgeries on her lower back: a discectomy in October 2007, and a fusion in April 2008.

She filed this action, alleging that the surgeries and resulting disability were caused by her employment. Her employer denied the claim. The trial court found that the October 2007 surgery was caused by her May 2006 injury, but the April 2008 surgery was not. It further found that her award of permanent disability benefits was "capped" at one and one-half times her anatomical impairment due to her voluntary retirement. Her employer has appealed, contending that the trial court erred by finding her claim was not barred by the statute of limitations, and by using an incorrect impairment rating as the basis of its award. Employee contends that the trial court erred by failing to find that she was permanently and totally disabled. We affirm the judgment.

Opinion available at: