Court reviews denial of summary judgment and tolling of the statute of limitations in a medical malpractice case

HARRISON KERR TIGRETT v. JOHN E. LINN, M. D, ET AL. (Tenn. Ct. App. March 31, 2010)

This is a Tenn. R. App. P. 9 appeal of the denial of a motion for summary judgment in a medical malpractice case. The trial court denied Appellants/Defendants' motions for summary judgment, finding that the statute of repose, Tenn. Code Ann.section 29-26-116(a)(3), was tolled as a result of fraudulent concealment on the part of Appellants/Defendants. Finding that there are material issues of fact in dispute, we affirm the trial court's denial of Appellants' motions for summary judgment. We, however, vacate any decision that the statute of limitations was tolled as a result of fraudulent concealment.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/tigretth_033110.pdf

TWCA reviews whether the trial court properly awarded permanent partial disability benefits where employee's employer was sold to another entity

REGINA DAY v. ZURICH AMERICAN INSURANCE (TWCA March 31, 2010)

In this workers' compensation action, the employee, Regina Day, sustained compensable injuries to both of her shoulders. She returned to her pre-injury job, but the holding company which owned her employer had been sold to another entity. The employer, which had been a corporation, became a limited liability company (LLC). The trial court, applying existing case law, held that she had not returned to work for her pre-injury employer and awarded permanent partial disability benefits in excess of the statutory cap contained in Tennessee Code Annotated section 50-6-241(d)(1)(A). Her employer has appealed, contending that the trial court erred by failing to apply the cap or, in the alternative, that the award is excessive. We affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/dayr_033110.pdf

Court reviews summary judgment ruling based on the Equine Activities Act

LOWELL SMITH ET AL. v. STEPHEN DOUGLAS PHILLIPS, ET AL. (Tenn. Ct. App. March 30, 2010)

A man was bitten by a horse while on a trail ride with friends. He sued the owner of the horse that bit him, claiming that the owner had failed to properly restrain or control his animal. The trial court granted summary judgment to the owner, ruling that he was entitled to immunity under the Equine Activities Act, Tenn. Code Ann. section 44-20-101 et seq. The Act must be strictly construed, since it is in derogation of common law. We hold that under a strict construction of the act, the defendant is not entitled to immunity, and we accordingly reverse the trial court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/smithl_033010.pdf

Memphis Daily News: Tenn. Doctors Continue Pursuit of Malpractice Caps

Tenn. doctors shift focus on malpractice caps (March 26, 2010)

Tennessee doctors pushed for Congress to cap malpractice awards in the new national health care law, but the final bill included no such limits. The Memphis Daily News reports they now are turning their attention to the next General Assembly. The incoming president of the Tennessee Medical Association says the group will poll state legislative candidates about their position on malpractice caps and post responses on its web site. While the association argues that Tennessee is losing talented doctors to states that have malpractice caps, a number of those states are dealing with court challenges to the laws, making the legal landscape uncertain for lawyers and physicians alike.

Court reviews an employer's petition to intervene in employee's tort case.

EDUARDO SANTANDER, Plaintiff-Appellee, AMERICAN HOME ASSURANCE CO., Intervenor-Appellant, v. OSCAR R. LOPEZ, Defendant (Tenn. Ct. App. March 25, 2010)

Plaintiff was involved in a motor vehicle accident during the course and scope of his employment. Plaintiff brought a tort action against the driver of the other vehicle, and subsequently entered into a settlement with his employer and the workers' compensation carrier. Plaintiff then reached a settlement in the tort case, but before Judgment was entered his employer filed a Petition to Intervene in that case, asserting a subrogation lien on the tort recovery. The Trial Judge refused to allow intervention on the grounds that the Petition to Intervene was not timely filed. On appeal, we reverse and remand.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/santandere_032510.pdf

Knoxville News Sentinel: Physicians, lawyers watching for law to impact premiums

Medical malpractice law has mixed results (March 15, 2010)

Changes in Tennessee's medical malpractice laws has produced a dramatic drop in the number of lawsuits filed according to data released by the Tennessee Administrative Office of the Courts. Anecdotal reports by doctors, however, indicate little relief in malpractice insurance premiums. Under legislation passed in 2008, patients must give a 60-day notice before filing a malpractice lawsuit and get documentation that the claim has merit. Data shows a 59 percent drop in suits since the law went into effect. By contrast, physicians report they have not seen a dramatic decrease in insurance premiums; but have not had dramatic increases either.

Court reviews trial court's rulings on the sufficiency of an amended complaint and its dismissal of wrongful death and loss of consortium claims in a medical malpractice case.

TINA TAYLOR, ET AL. v. LAKESIDE BEHAVIORAL HEALTH SYSTEM (Tenn. Ct. App. March 15, 2010)

This is a medical malpractice case. Appellant filed suit against Appellee Hospital after Appellant's decedent suffered several falls and a broken hip while a patient at Appellee Hospital.

The trial court granted Appellee Hospital's Tenn. R. Civ. P. 12.02(6) motion, thereby dismissing Appellant's amended complaint. Specifically, the trial court held: (1) that the amended complaint was ineffective to give notice to Appellee Hospital because it did not reference the date(s) of decedent's falls, (2) that the medical malpractice claim and hedonic damages of the widow arising therefrom were dismissed by previous orders of the court, and (3) that the proof did not support the averments made in the amended complaint.

After review, we conclude: (1) that the amended complaint is sufficiently specific to satisfy Tenn. R. Civ. P. 8, and to state a claim for medical malpractice against the Appellee Hospital, (2) that the previous orders of the trial court only dismissed the wrongful death claims and widow's loss of consortium claims arising therefrom, and not the medical malpractice claims, and (3) that the trial court reviewed matters outside the pleadings so as to trigger summary judgment analysis under Tenn. R. Civ. P. 12.03, and (4) that there are disputes of material fact in this case so as to necessitate a full evidentiary hearing on the medical malpractice claim. Reversed and remanded for an evidentiary hearing on the medical malpractice claim against Appellee Hospital and on the widow's loss of consortium claims arising from the alleged medical malpractice.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/taylort_031510.pdf

Court reviews products liability and negligence claims in a case about a bus accident

CLIFTON LAKE, ET AL. v. THE MEMPHIS LANDSMEN, L.L.C., ET AL. (Tenn. Ct. App March 15, 2010)

This is an appeal from a jury verdict in a negligence and products liability case. Appellant-Husband was injured when the bus, on which he was a passenger, collided with a concrete truck. Appellant-Husband and Appellant-Wife filed suit against Appellees- the bus manufacturer, the bus owner, and the franchisor.

Following trial, the jury found that the Appellants had suffered $8,543,630.00 in damages, but found that none of the Appellees were at fault and apportioned one hundred percent of the fault to a non-party. Appellants appeal.

We find that Appellants' claims based on the use of tempered glass in the side windows of the bus, and the lack of passenger seatbelts in the bus are preempted by the National Traffic and Motor Vehicle Safety Act, 49 U.S.C. section 30101 et seq. Further, we find that the Appellants failed to present evidence that the use of perimeter seating in the bus caused the injuries. Consequently, we find that the trial court erred in not granting Appellees' motions for directed verdict on the Appellants' claims based on the use of perimeter seating. Reversed and remanded.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/lakec_031510.pdf

Standards for Nursing Services in Residential Hospices

Standards for Nursing Services in Residential Hospices (TN Attorney General Opinions March 12, 2010)

In this opinion, the Attorney General examines whether a federal interpretive guideline contained in the recent interim final Hospice Program Interpretive Guidance preempts or modifies the applicable Tennessee Department of Health rule
regarding nursing services in residential hospices. He determined that the federal guideline does not modify the Tennessee rule because the federal guideline requires that hospice staff comply with both state and federal laws and that in the case of a difference in licensing requirements between the state law and federal law, the regulation requires the hospice to meet the more stringent of the two requirements.

The full opinion may be found at:
http://www.tba2.org/tba_files/AG/2010/ag_10_32.pdf

TWCA reviews award of benefits for hearing loss in worker's compensation case

ARETIES McKAMEY v. LOCKHEED MARTIN ENERGY SYSTEMS, INC., ET AL. (TWCA March 12, 2010)

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The trial court found that the employee had sustained a hearing loss as a result of exposure to noise during her work from 1944 to 1989 as a telephone operator for her employer, and awarded 50% permanent partial disability ("PPD") of the hearing of both ears. The employer has appealed, contending that the evidence preponderates against the trial court's finding on the issue of causation. Alternatively, it argues that the award is excessive. We reverse the judgment and dismiss the complaint.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/mckameya_031210.pdf

TCA affirms Summary Judgment finding Plaintiff's expert witness did not meet statutory requirements

GEORGE H. BADGETT, ET AL. v. ADVENTIST HEALTH SYSTEMS SUNBELT, INC. d/b/a TENNESSEE CHRISTIAN MEDICAL CENTER (Tenn. Ct. App. July 31, 2009)

In this action concerning alleged malpractice by hospital staff, the trial court found plaintiff's expert affidavit failed to meet the locality test of Tenn. Code Ann. section 29-26-115 where the only similarities proven between the medical communities were population, existence of feeder hospitals and existence of medical school. Finding the trial court did not abuse its discretion, we affirm.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/badgettg_080309.pdf

Court holds that amended medical expert afffidavit met Tenn. Code requirements

NANCY L. LANE v. JODI D. MCCARTNEY, M.D., ET AL. (Tenn. Ct. App. July 31, 2009)

Nancy L. Lane ("Plaintiff") sued Karen K. Lauer-Silva, M.D. and Medical Education Assistance Corporation d/b/a ETSU Physicians & Associates ("Defendants") alleging medical malpractice. Defendants filed a motion for summary judgment. After a hearing on Defendants' motion, the Trial Court entered an order finding and holding, inter alia, that Plaintiff's expert witness did not meet the requirements of Tenn. Code Ann. section 29-26-115, and granting Defendants summary judgment. Plaintiff filed a motion to alter or amend along with a Second Supplemental Affidavit from Plaintiff's expert. The Trial Court considered the Second Supplemental Affidavit and found that Plaintiff's expert still did not satisfy the requirements of Tenn. Code Ann. section 29-26-115, and again granted Defendants summary judgment. Plaintiff appeals to this Court. We reverse.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/lanen_073109.pdf

Michigan hospital reduces lawsuits by admitting mistakes

University of Michigan Hospital has reduced lawsuits by admitting mistakes.

Admitting mistakes reduces suits at Michigan hospital At the University of Michigan Health System, doctors and lawyers say admitting mistakes up front and offering compensation before being sued have brought about remarkable savings in money, time and feelings. "What we are doing is common decency," said Richard Boothman, a veteran malpractice defense lawyer and chief risk officer for a health system with 18,000 employees and a $1.5 billion annual budget.

The right of injured patients to sue health care providers and force them to open up their internal records is a crucial part of reducing medical mistakes and improving care, said Matthew Gaier, co-chairman of the New York State Trial Lawyers Association’s medical malpractice committee.

For “saying sorry” to work, doctors need protection from having their own honesty used against them in court, said Jim Copland, director of the Manhattan Institute’s Center for Legal Policy and an advocate of curbs on damage suits. Protection could take the form of a shield law that would exclude an apology from admission as evidence in a malpractice suit. A number of states have or are considering such laws.
“If you go out and say, ‘Oh, we messed up, are you going to lose the lawsuit? You need to give them some protection,” Copland said.

The full text of this article may be found by following the link below:
http://www.nwtntoday.com/news.php?viewStory=29312

Court reviews summary judgment finding in alcohol-related wrongful death case

EDWARD P. LANDRY, et al., v. SOUTH CUMBERLAND AMOCO, et al. (Tenn. Ct. App. March 11, 2010)

Plaintiffs brought this wrongful death action against defendants for the wrongful death of Brandi Coyle, who died as a result of a motor vehicle accident allegedly caused by an underage intoxicated driver who had purchased intoxicating beverages from South Cumberland Amoco. Defendants moved for summary judgment on the grounds that plaintiffs would be unable to prove essential elements of their claim. The Trial Court held that the alleged underage driver had stated initially that he was over the age of 21, but later, in another statement, represented that he was a minor at the time of the accident. The Trial Judge held that his statements cancelled each other and there was no evidence to establish that he was a minor at the time of the accident. The Court also held that plaintiffs could not prove that the South Cumberland Amoco cashier had "knowingly sold intoxicating beverages to a minor". On appeal, we vacate the summary judgment and remand for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/landrye_031110.pdf

Court reviews summary judgment ruling in invasion of privacy and defamation case.

TERESA GARD v. DENNIS HARRIS, M.D., ET AL. (Tenn. Ct. App March 11, 2010)

Plaintiff filed a complaint alleging false light invasion of privacy and defamation after her physician sent a letter she considered defamatory. After finding that plaintiff consented to the disclosure by signing a consent form, the trial court granted summary judgment in favor of the defendants. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/gardt_031110.pdf

TWCA reviews finding of work-related cause of employee's hearing loss in worker's compensation case

GEORGE CECIL RESH v. BUILDING MATERIALS CORPORATION d/b/a GAF FIBERGLASS CORPORATION (TWCA March 11, 2010)

In this workers' compensation case, the employee, George Cecil Resh, alleged that he sustained hearing loss due to exposure to a harmful level of noise in his workplace. The employer, Building Materials Corporation, denied that the employee's hearing loss was work-related. The trial court found in favor of the employee and awarded 50% permanent partial disability of the hearing of both ears. The employer has appealed, contending that the evidence preponderates against the trial court's finding. Because we find that the expert medical evidence failed to establish that Mr. Resh's hearing loss was work-related, we agree and reverse the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/reshg_031110.pdf

TCA examines insurer liability for uninsured motorist after automobile crash.

ANDREA S. MARTIN v. PATRICIA L. WILLIAMS, ET AL. (Tenn. Ct. App. July 30, 2009)

The central issue in this case is which of two insurance companies is required to provide uninsured motorist coverage to the Plaintiff, who was injured in an automobile accident. The trial court granted summary judgment to the company through which Plaintiff had automobile insurance, finding that the company insuring the automobile in which Plaintiff was a passenger held the primary policy. We reverse and remand.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/martina_073009.pdf

Court reviews whether an expert witness cured a deficiency in order to satisfy the locality rule

SAMANTHA NABORS v. WILLIAM M. ADAMS, M.D., ET AL. (Tenn. Ct. App. July 23, 2009)

This appeal involves a medical malpractice action. In a motion for summary judgment, defendant physician asserted that plaintiff's expert witness failed to satisfy the requirements of the locality rule. The trial court granted the motion finding that plaintiff's expert failed to demonstrate a familiarity with the standard of care in defendant's community or a similar community. In a motion to alter or amend the judgment, plaintiff attached a supplemental affidavit of the same expert in order to cure the deficiency. The trial court considered the expert's supplemental affidavit and denied the motion because the new affidavit still failed to satisfy the locality rule. Plaintiff appeals. Reviewing the record, we find that the expert's supplemental affidavit cured the initial deficiency by relating facts which showed the similarity of the two communities. Accordingly, we reverse the judgment of the trial court.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/naborss_072309.pdf

Court upholds lower court verdict and judgment award

ROBERT NICELY v. BERKLINE, LLC. (Tenn. Ct. App. July 7, 2009)

Robert Nicely ("Plaintiff") was employed as a truck driver for Evinco Professional Services, Inc. ("Evinco"). Evinco contracted with Blue Mountain Trucking Corporation for the delivery of various goods. In March 2004, Plaintiff was injured while unloading furniture that had been loaded onto his truck by employees of Berkline, LLC. Plaintiff sued Berkline, LLC, ("Defendant") for personal injuries. Defendant filed a motion for summary judgment claiming that an employment agreement signed by Plaintiff barred this lawsuit. The Trial Court disagreed and allowed the case to go to the jury. The jury returned a verdict for Plaintiff in the amount of $500,000. Because the jury found Plaintiff 20 percent at fault for his own injuries, the judgment was reduced to $400,000. Defendant thereafter filed a motion for a new trial or for a remittitur, both of which the Trial Court denied. Defendant appeals. Finding no error, we affirm the judgment of the Trial Court.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/nicelyr_070709.pdf

TCA reverses Trial Court in wrongful death action

KAMARJAH GORDON, DECEASED, BY AND THROUGH HER NEXT OF KIN, TOSHA GORDON AND TOSHA GORDON, INDIVIDUALLY v. JEFFREY D. DRAUGHN, M.D.; TENNESSEE WOMAN'S CARE, P.C.; AND HCA HEALTH SERVICES OF TENNESSEE D/B/A CENTENNIAL MEDICAL CENTER (Tenn. Ct. App. June 9, 2009)

The parents of a deceased child and the mother's trustee in bankruptcy appeal rulings of the trial court in this medical malpractice and wrongful death action which (1) found that the mother was judicially estopped from pursuing the action; (2) denied the father's motion to substitute as plaintiff; and (3) limited the bankruptcy trustee's recoverable damages to the amount of debts listed on the mother's bankruptcy petition. Finding that the mother was not judicially estopped from pursuing her claims and that the trustee in bankruptcy succeeded to her claims, we reverse the trial court's dismissal of her medical malpractice claim and the limitation of recoverable damages on the wrongful death claim. Further, we reverse the trial court's holding that father's action is barred by the statute of limitations, vacate the denial of the father's motion to substitute and remand the case to allow the father to file a motion to intervene and intervening complaint.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/gordonk_061709.pdf

TCA examines issues regarding the Govenrmental Tort Liability Act

RONALD TIMMONS v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE (Tenn. Ct. App. June 15, 2009)

Plaintiff filed this Governmental Tort Liability Act action against the Metropolitan Government of Nashville and Davidson County for injuries sustained during his arrest for driving under the influence following a vehicular accident. Plaintiff contends the police officers who arrested him were negligent in failing to recognize that he was not intoxicated but in diabetic shock, in failing to recognize that he could be restrained and handcuffed while standing, instead of in the prone position, and that he sustained a spiral, comminuted fracture of the humerus while an officer was pulling his right arm behind his back in an effort to cuff his hands.

Following a bench trial, the trial court found the officers were negligent in the manner in which they assessed the threat posed by Plaintiff and were negligent in the decision to handcuff him in the prone position, which caused his injuries. The trial court, therefore, held the Metropolitan Government liable for the officers negligence, assessed 100% of the fault to the officers, and awarded Plaintiff $140,000 in damages. On appeal, the Metropolitan Government insists it is immune from liability because the officers' actions were not the result of negligence but, it contends, the officers consciously and volitionally used an excessive amount of force that constituted the intentional tort of battery. Alternatively, the Government contends, if it is liable under a negligence theory, the trial court erred by apportioning no fault to Plaintiff.

We have determined the evidence does not preponderate against the trial court's findings that Plaintiff's injuries resulted from the officers' negligent acts and omissions, that the Metropolitan Government is liable for the officers' negligence, that Plaintiff was not contributorily negligent, and that Plaintiff is entitled to recover damages in the amount of $140,000. Accordingly, we affirm the trial court in all respects.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/timmonsr_061609.pdf

Court looks at insurance policy exclusions for liability

TENNESSEE FARMERS MUTUAL INSURANCE COMPANY v. MICHAEL NEILL (Tenn. Ct. App. June 2, 2009)

Insurance company filed suit for a declaration that the policy exclusion for intentional acts applied to an injury arising from a paintball game. The trial court ruled for the insured. We affirm.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/neillm_060309.pdf

TWCA affirms lower court ruling that employee did not sustain his burden of proof

WALTER WIGGINS, JR. v. DAL-TILE CORPORATION (Tenn. SWCAP, May 28, 2009)

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee sought benefits for a right shoulder injury, which occurred after he had ceased working for Employer. He contended that his employment had caused a weakening of the structures of his shoulder, which contributed to his eventual injury. The trial court ruled that he did not sustain his burden of proof and entered judgment for Employer. On appeal, Employee asserts that the trial court erred in its ruling. We affirm the judgment.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC_WCP/2009/wigginsw_052809.pdf

TCA looks at issues determining permanent total disability

CHARLIE D. EVANS, JR. v. CHEROKEE INSURANCE COMPANY ET AL. (Tenn. Ct. App. May 28, 2009)

In 2005, the employee, a truck driver, sustained a compensable injury to his right leg that also aggravated a pre-existing low back condition. As a result of childhood polio, the employee's left leg and foot were substantially smaller and weaker than his right leg and foot. The employee reported this pre-existing condition to the employer when hired in 2003. Medical proof established the employee's combined anatomical impairment at 14% to the body as a whole. The trial court found that the employee was permanently and totally disabled. The trial court assigned 84% of the award to the employer's workers' compensation insurance carrier, Cherokee Insurance Company, and 16% to the Second Injury Fund. The employer appealed, arguing that the trial court erred by finding the employee to be permanently and totally disabled. The Second Injury Fund appealed, arguing that it is without liability because the employee performed his truck-driving duties without restrictions or accommodations, thus, the employer did not have "actual knowledge" of the employee's prior disability. Alternatively, the Second Injury Fund contends that the trial court's award of permanent and total disability is not supported by the evidence. After review, the judgment of the trial court is affirmed.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC_WCP/2009/evansc_052809.pdf

TWCA reviews award of benefits for mental injuries in worker's compensation case

JOE TURNER v. BRIDGESTONE/FIRESTONE NORTH AMERICAN TIRE, LLC, ET AL. (TWCA March 5, 2010)

Employee sustained a compensable injury to his lower back. He alleged that he also sustained a mental injury as a result of chronic pain. His employer contended that the chronic pain and any mental conditions arising from it were the result of several previous injuries and surgeries. The trial court awarded benefits for the mental injury. The employer contends that the trial court erred by doing so. We disagree and affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/turnerj_030510.pdf

TWCA reviews findings of causation and compliance with the notice statute in worker's compensation case

KATHY MELISSA CANTRELL v. NISSAN NORTH AMERICA, INC., ET AL. (TWCA March 5, 2010)

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 trial court awarded workers' compensation benefits for gradual injuries to the employee's hands, arms, shoulders and left knee. On appeal, her employer asserts that the trial court erred by finding that she had complied with the notice statute, Tenn. Code Ann. section 50-6-201(b), and also by finding that she had sustained her burden of proof on the issue of causation.

We conclude that sufficient notice was given. In addition, we conclude that the evidence preponderates against the trial court's finding of a causal relationship between the employee's work and her left knee injury. We affirm the findings of causation concerning her other injuries.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/cantrellk_030510.pdf

Appeal denied as frivolous based on TN Rules of Civil Procedure 41.01, Voluntary Dismissals

RICK PETERS, ET AL. v. RAY LAMB, M.D., ET AL. (Tenn. Ct. App. May 27, 2009)

This is a medical malpractice action by Rick Peters and Rob Watts ("Plaintiffs"), the surviving spouse and child respectively of Elizabeth Peters, deceased, filed against Dr. Ray Lamb and his practice group, McLeod Cancer and Blood Center of East Tennessee (collectively "Defendants"). Mrs. Peters unexpectedly died shortly after Defendants began treating her for her recently-diagnosed anal cancer. Pre-trial, Plaintiffs lodged a proposed motion and order of nonsuit by placing it in the trial judge's "in-box." By the time the judge discovered the document, a motion for summary judgment had been filed by Defendants and was pending. The trial court did not sign the order of nonsuit. Following a summary judgment hearing seven months later, the trial court entered an order denying the motion for nonsuit and granting Defendants summary judgment. Plaintiffs appeal. The sole question Plaintiffs raise is whether the trial court erred in ruling that the lodging of the motion and order for nonsuit was ineffectual to dismiss their action without prejudice. Defendants claim this appeal is frivolous and seek an award of damages pursuant to the provisions of Tenn. Code Ann. section 27-1-122 (2000).

We conclude that the appeal is frivolous because the issue Plaintiffs raised had no reasonable chance of success. We affirm the judgment of the trial court and remand for a determination as to the damages due Defendants.

The full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/petersr_052709.pdf

Case remanded to determine if employer is entitled to subrogation when beneficiary settles with third party for identical expenses

GARY HARRIS v. ALCOA, INC., ET AL. (Tenn. Ct. App. May 27, 2009).

The plaintiff, Gary Harris, was injured in a work-related accident. As a result of the accident, his right arm was amputated below the elbow. His employer, the defendant Alcoa, Inc., paid workers' compensation benefits to and for the plaintiff, including a payment of $33,776.83 to the co-defendant, Hanger Prosthetics & Orthotics, Inc., for a prosthetic arm known as a "myoelectric arm." Following a jury trial in federal court, the plaintiff entered into a confidential settlement of his claim against a third party which arose out of the accident. Thereafter, he filed a complaint, as amended, against the two defendants, averring that, out of the settlement proceeds, he had escrowed with his attorney the sum of $33,776.83. He claims that he did not receive the prosthetic arm for which Alcoa paid. He seeks a declaratory judgment that the escrowed funds rightfully belong to him and not his employer. Alcoa filed a motion for judgment on the pleadings. The trial court granted the motion. The plaintiff appeals. We vacate the trial court's judgment and remand for further proceedings.

Full text of this opinion is available at the TBA website.
http://www.tba2.org/tba_files/TCA/2009/harrisg_052709.pdf

Court reviews summary judgment ruling in medical malpractice and ordinary negligence case

SANDRA YEVETTE TURNER v. STERILTEK, INC. ET AL. (Tenn. Ct. App. March 4, 2010)

Mother of deceased patient brought suit for ordinary negligence and medical malpractice against hospital and company that sterilized its surgical instruments and equipment. In this second appeal, the issue is whether the trial court erred in granting summary judgment in favor of both defendants. We conclude that the trial court properly granted summary judgment as to the sterilization company, but we reverse the grant of summary judgment as to the hospital because the hospital failed to negate an element of the plaintiff's negligence claim.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/turners_030410.pdf

Court reviews jury verdict in case based on the Federal Employer's Liability Act

LAURA JAN MELTON v. BNSF RAILWAY COMPANY (Tenn. Ct. App. March 3, 2010)

This is an appeal from a jury verdict in favor of the Appellee in a case based on the Federal Employer's Liability Act, 45 U.S.C. section 51 et seq. Appellee filed this case as the widow and personal representative of her husband, who died as a result of injuries he sustained while working for the Appellant. Appellant appeals, arguing that the trial court erred in not granting it a directed verdict, in not granting its motion for new trial, in making several evidentiary rulings during the trial, and in not granting its motions for mistrial.

We affirm the trial court's denial of the Appellant's motions for directed verdict, finding that the Appellee presented sufficient proof to create a question for the jury. However, finding that the trial court erred in allowing the Appellant's expert to be questioned on a non-testifying expert's deposition, and that the jury was more likely than not guided by prejudice, passion, and bias, we reverse the trial court's decision denying Appellant's motion for new trial. Further, finding material facts in dispute, we reverse in part and affirm in part the trial court's decision on Appellant's motion for summary judgment. Reversed in part, affirmed in part and remanded.

Full opinion is available at:
http://www.tba2.org/tba_files/TCA/2010/meltonl_CORR_030310.pdf

TSC reviews Tenn. Code Ann. 24-5-113(a) plaintiff's presumption of necessary and reasonable medical bills in complaint

HELEN M. BORNER ET AL. v. DANNY R. AUTRY (Tenn. May 26, 2009)

This case involves the interpretation and application of Tennessee Code Annotated section 24-5-113(a), which provides a rebuttable presumption that medical bills itemized in and attached to the complaint are necessary and reasonable if the "total amount of such bills" does not exceed $4,000. We hold that a plaintiff may rely on section 24-5-113(a) if the total amount of the medical bills that are itemized and attached does not exceed $4,000, regardless of the total amount of medical expenses that may have been incurred. A plaintiff is not entitled to the presumption, however, if the plaintiff relies on medical bills that have been redacted to reflect a total of $4,000 or less. The judgment of the Court of Appeals therefore is affirmed in part and reversed in part, and the case is remanded to the trial court for further proceedings consistent with this opinion.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC/2009/bornerh_052609.pdf

Court reviews the standards for allowing a party to amend a claim or answer

ROBERT DANIELS and PEGGY DANIELS, v. MICHAEL D. WRAY (Tenn. Ct. App. May 21, 2009)

Plaintiff filed this action for damages for injuries sustained in an automobile accident. Defendant answered, denying liability, and subsequently filed a Tenn. R. Civ. P. 15 to amend and make claim for personal injuries and property damage as a result of the accident. The Trial Court allowed the amendment as to property damages, but refused to allow defendant to assert the claim for personal injuries on the grounds inter alia that the statute of limitations had run on the personal injury claim prior to the filing of the Motion to Amend. The property damage claim was settled, but the refusal to allow the amendment has been appealed to this Court. We hold that the Trial Court abused its discretion in refusing to allow the amendment.

The Full text of this appeal may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/danielsr_05209.pdf

The court here reviewed the standards for reversing a trial court for abuse of discretion for disallowing a party to amend its answer and make a counterclaim. the factors to be considered when deciding whether to allow a party to amend its claim include, "undue delay in filing, lack of notice to the opposing party, bad faith of the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment." Id. (citations omitted). The court here found that the factors the trial court relied on--undue delay and prejudice to the opposing parties--were not supported by the record. Therefore the trial court had abused its discretion and the case was remanded for further proceedings.

TCA examines insufficiency of medical expert's affidavit

REBECCA METTES v. J. THOMAS JOHN, JR., M.D. (Tenn. Ct. App. May 20, 2009)

In this medical malpractice action, patient appeals the trial court's grant of summary judgment in favor of physician based on the insufficiency of the affidavit of the patient's expert. We affirm.

"Pursuant to Tenn. Code Ann. 29-26-115(a)expert testimony must establish the recognized standard of medical practice, the defendant's breach of that standard, and causation. This was necessary in this case to rebut the Defendant's self-serving affidavit and motion for summary judgment which the trial court held was sufficient to shift the burden to the plaintiff." Id.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mettesr_052109.pdf

TCA examines the issue of superceding cause in wrongful death action

DORIS G. HOWELL, as Next of Kin and as Guardian of JESSIE J. WILLIAMS, a minor child of GINGER WILLIAMS, deceased, ET AL. v. DAVID M. TURNER, M.D., ET AL. (Tenn. Ct. App. May 21, 2009)

This appeal arises out of the death of Ginger Williams after she sought medical treatment from the various Defendants. After the jury returned a verdict in favor of Plaintiff, Defendant Doctor moved for a judgment notwithstanding the verdict, asserting that the doctrine of an independent, intervening cause precluded his liability. We affirm the trial court's decision to deny Defendant's motion.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/howelld_052109.pdf

TCA affirms dismissal because there was no offer of proof

HOPE DENTON v. JAMES G. HAGGARD (Tenn. Ct. App. May 20, 2009)

Evidence of defendant's prior traffic violations was excluded by the trial court in an automobile accident case. Plaintiff appealed. We affirm due to plaintiff's failure to make an offer of proof.

At trial the jury found both parties equally at fault and the case was dismissed. The Plaintiff moved for a new trial which was denied. Plaintiff appealed based on disallowed evidence of defendant's driving record. TCA finds that no offer of proof was made, thus the issue of excluded evidence is waived.

The full text of this appeal may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/dentonh_052109.pdf

Court reverses summary judgment in negligence/medical malpractice case

ROSE JOHNSEY, Widow of Frederick Johnsey v. NORTHBROOKE (Tenn. Ct. App. May 14, 2009)

The plaintiff filed suit against a nursing home after her husband allegedly suffered a broken hip while he was a resident there. The nursing home filed a motion for summary judgment, asserting that the plaintiff could not prove the elements of her claim. The trial court concluded that the plaintiff''s claims were for medical malpractice rather than ordinary negligence, but the court found that under either theory summary judgment was appropriate. We agree with the court's conclusion that the plaintiff's claims sound in medical malpractice, but we find that the trial court erred in granting summary judgment. Therefore, we reverse and remand this case for further proceedings.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/johnseyr_051409.pdf

Court finds defendant did not have constructive notice of dangerous condition

LEITHA C. PERKINS and ROBERT L. PERKINS v. BIG LOTS STORES, INC.(Tenn. Ct. App. May 20, 2009)

This is a slip-and-fall case. The plaintiff tripped on a floor mat and fell as she was entering the defendant's store. A store security video showed that the corner of the floor mat was overturned by another customer twenty-one seconds before the plaintiff fell. At the time that the corner of the mat became furled, the assistant store manager was at the service desk several feet from the entrance. He denied seeing the overturned mat.

The plaintiff sued the store, alleging negligence in allowing a dangerous condition to persist and in failing to warn the plaintiff of it. After the trial, the jury found that the defendant store was eighty percent at fault and that the plaintiff was twenty percent at fault. The defendant store filed a motion for a new trial, alleging juror misconduct based on comments by jurors to the attorneys. The store also contended that the evidence showed that it did not have actual or constructive notice that the corner of the mat had become folded over. Finally, the store maintained that no reasonable jury could find that the plaintiff was less than fifty percent at fault for her own injuries. The trial court denied the motion and the defendant appeals. We reverse, finding no material evidence to support the jury's verdict, and dismiss the case.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/perkinsl_052009.pdf