Ask any politician funded by insurance companies or physicians and they will tell you that medical malpractice suits are bad. Without any empirical evidence, they will confidently tell you that malpractice suits increase healthcare costs, that they increase malpractice premiums for doctors, and discourage physicians from practicing. Though prior studies by Harvard University and others have refuted these myths - the myths remain.
A new study of dramatic medical malpractice reform in Texas once again shows that reforms do not solve the problems alleged by politicians and instead may harm patients in the long run. In fact, the new report concludes that the real "data do(es) not support claims made about benefits of reform. And the problem of negligence by physicians,other providers, and institutions is still largely ignored" in the presence of reform.
Please read this article and call your legislator. Do not assume malpractice will not happen to you. Tennessee recently passed sensible, bi-partisan reforms which ensured that frivolous malpractice cases would not be filed. The playing field is now level for negligent doctors and injured patients. Tennessee's 2011 proposed reforms seek to limit what a physician or hospital must pay you for their negligence now matter how severe the injury may be. These proposals would benefit insurers. However, anyone who is injured or disabled by malpractice beyond the arbitrary cap or limit on claims would be financially devastated and/or become a burden on taxpayers by winding up with state and government benefits such as TennCare or Medicare. The only way to protect you and your family is to ask your legislators to leave Tennessee's malpractice laws alone.
Tennessee Personal Injury Law Blog - published by Bryan L. Capps and Stephen A. Burroughs. The Law Office of Stephen A. Burroughs – proudly serving clients throughout East Tennessee.
Wednesday, December 29, 2010
Tuesday, December 28, 2010
Court Reviews the Beginning of the Statute of Limitations in an Automobile Accident Case
PATRICIA MILLS, ET AL. v. JOHN H. BOOTH, II, ET AL. (Tenn. Ct. App. December 28, 2010)
On November 8, 2008, James Turlington and his wife, Altha Turlington, were killed in an automobile accident after their car tuned left in front of a vehicle being driven by John H. Booth, II ("Booth"). Initially, it was believed that the Turlington vehicle was being driven by Altha Turlington. It was determined two days later that the Turlington vehicle was being driven by James Turlington. An accident reconstructionist later concluded that while the Turlington vehicle did turn in front of the Booth vehicle, the Turlington vehicle would have had sufficient time to complete its turn without any collision taking place if Booth had not been speeding.
A complaint was filed on November 10, 2009, by Altha Turlington's daughter, Patricia Mills. The Trial Court determined that the statute of limitations began to run on the day of the accident, that the discovery rule could not be used to extend when the statute of limitations began to run, and the complaint had not been filed within the applicable one year statute of limitations. Plaintiff appeals, and we affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/millsp_122810.pdf
On November 8, 2008, James Turlington and his wife, Altha Turlington, were killed in an automobile accident after their car tuned left in front of a vehicle being driven by John H. Booth, II ("Booth"). Initially, it was believed that the Turlington vehicle was being driven by Altha Turlington. It was determined two days later that the Turlington vehicle was being driven by James Turlington. An accident reconstructionist later concluded that while the Turlington vehicle did turn in front of the Booth vehicle, the Turlington vehicle would have had sufficient time to complete its turn without any collision taking place if Booth had not been speeding.
A complaint was filed on November 10, 2009, by Altha Turlington's daughter, Patricia Mills. The Trial Court determined that the statute of limitations began to run on the day of the accident, that the discovery rule could not be used to extend when the statute of limitations began to run, and the complaint had not been filed within the applicable one year statute of limitations. Plaintiff appeals, and we affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/millsp_122810.pdf
Friday, December 24, 2010
Court Reviews Whether Plaintiff, a Customer and Employee of Defendant, Can Recover Damages Outside Workers’ Compensation Law
JANE DOE and JOHN DOE v. WALGREENS COMPANY, ET AL. (Tenn. Ct. App. November 24, 2010)
This is an appeal from the grant of Appellees/Defendants' Tenn. R Civ. P 12.02 motion to dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens. In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a customer of Walgreens.
A co-worker of Ms. Doe's accessed Ms. Doe's prescription history in the Walgreens' database, and then disseminated her medical information to other coworkers and to Ms. Doe's fiance. Ms. Doe and her fiance filed suit.
The trial court dismissed the lawsuit, finding that the Does' exclusive remedy was under the workers' compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her employment with Walgreens, and that she has sufficiently pled causes of action outside workers' compensation law, we reverse the order of dismissal and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/walgreens_112410.pdf
This is an appeal from the grant of Appellees/Defendants' Tenn. R Civ. P 12.02 motion to dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens. In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a customer of Walgreens.
A co-worker of Ms. Doe's accessed Ms. Doe's prescription history in the Walgreens' database, and then disseminated her medical information to other coworkers and to Ms. Doe's fiance. Ms. Doe and her fiance filed suit.
The trial court dismissed the lawsuit, finding that the Does' exclusive remedy was under the workers' compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her employment with Walgreens, and that she has sufficiently pled causes of action outside workers' compensation law, we reverse the order of dismissal and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/walgreens_112410.pdf
Wednesday, December 22, 2010
Court Reviews A Motion for a New Trial in a Medical Malpractice Case Involving the Death of a Pregnant Woman
MARK COOPER, INDIVIDUALLY AND ON BEHALF OF THE HEIRS AT LAW OF LESLIE PHILLIPSEN v. THOMAS N. TABB, M.D., INDIVIDUALLY, THOMAS N. TABB, P.C., AND PERINATAL ASSOCIATES, P.C. (Tenn. Ct. App. December 22, 2010)
This medical malpractice case involves the reconsideration of an order granting a new trial. The patient, in her second trimester of pregnancy, presented at the hospital with abdominal pain and bleeding. Her treating physician consulted with a maternal-fetal specialist physician. The patient suffered a placental abruption, and the fetus died in utero. Later that day, the patient developed a blood-clotting disorder. She died that evening.
The patient's husband filed this lawsuit against the treating physician, the hospital and its employees, and the maternal-fetal specialist physician. A settlement was reached with all of the defendants except for the maternal-fetal specialist, and a jury trial was held as to only the specialist. The jury returned a verdict in favor of the defendant specialist. The trial court granted the plaintiff husband's motion for a new trial. Three years later, the defendant specialist filed a motion asking the trial court to reconsider its order granting a new trial. Upon reconsideration, the trial court granted the motion and reinstated the jury verdict. The plaintiff husband now appeals.
We reverse, concluding that the trial court had jurisdiction to reconsider its initial order, and that the trial judge's remarks, taken as a whole, indicate he was not satisfied with the jury verdict. Accordingly, we remand for a new trial.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/cooperm_122210.pdf
This medical malpractice case involves the reconsideration of an order granting a new trial. The patient, in her second trimester of pregnancy, presented at the hospital with abdominal pain and bleeding. Her treating physician consulted with a maternal-fetal specialist physician. The patient suffered a placental abruption, and the fetus died in utero. Later that day, the patient developed a blood-clotting disorder. She died that evening.
The patient's husband filed this lawsuit against the treating physician, the hospital and its employees, and the maternal-fetal specialist physician. A settlement was reached with all of the defendants except for the maternal-fetal specialist, and a jury trial was held as to only the specialist. The jury returned a verdict in favor of the defendant specialist. The trial court granted the plaintiff husband's motion for a new trial. Three years later, the defendant specialist filed a motion asking the trial court to reconsider its order granting a new trial. Upon reconsideration, the trial court granted the motion and reinstated the jury verdict. The plaintiff husband now appeals.
We reverse, concluding that the trial court had jurisdiction to reconsider its initial order, and that the trial judge's remarks, taken as a whole, indicate he was not satisfied with the jury verdict. Accordingly, we remand for a new trial.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/cooperm_122210.pdf
Tuesday, December 21, 2010
TWCA Reviews Whether Employee's Re-Injury was a Natural Consequence of His Prior Compensable Knee Injuries
FEDERATED RURAL ELECTRIC INSURANCE EXCHANGE, ET AL. v. WILLIAM R. HILL, ET AL. (TWCA December 21, 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.
Employee suffered work-related injuries to his knees prior to 2003 and underwent numerous surgeries. He entered into two settlements that obligated Employer to pay all future medical expenses arising from those injuries. In 2004, Employee fell at home and reinjured his right knee. He sought workers' compensation benefits, claiming that the 2004 injury was a natural consequence of his prior compensable knee injuries. The trial court granted summary judgment to Employer, finding that Employee's injury was not a natural consequence of the prior on-the-job knee injuries.
We affirm the judgment as to Employee's claims for permanent partial disability benefits, and certain temporary total disability benefits. We reverse as to Employee's claims for medical benefits and certain temporary total disability benefits because there are disputed material facts that could allow Employee to prove his 2004 injury was a natural consequence of his prior compensable knee injuries. We affirm the trial court's dismissal of several collateral issues raised by employee.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hillw_122110.pdf
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.
Employee suffered work-related injuries to his knees prior to 2003 and underwent numerous surgeries. He entered into two settlements that obligated Employer to pay all future medical expenses arising from those injuries. In 2004, Employee fell at home and reinjured his right knee. He sought workers' compensation benefits, claiming that the 2004 injury was a natural consequence of his prior compensable knee injuries. The trial court granted summary judgment to Employer, finding that Employee's injury was not a natural consequence of the prior on-the-job knee injuries.
We affirm the judgment as to Employee's claims for permanent partial disability benefits, and certain temporary total disability benefits. We reverse as to Employee's claims for medical benefits and certain temporary total disability benefits because there are disputed material facts that could allow Employee to prove his 2004 injury was a natural consequence of his prior compensable knee injuries. We affirm the trial court's dismissal of several collateral issues raised by employee.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hillw_122110.pdf
Monday, December 20, 2010
Court Reviews Whether an Amendment to the TCA’s Medical Malpractice Law Applies to a Case Initiated Prior to the Effective Date
PAMELA ANN BARNETT v. ELITE SPORTS MEDICINE, ET AL. (Tenn. Ct. App. December 20, 2010)
In this case, we are asked to decide whether an amendment to Tenn. Code Ann. section 29-26-122, which became effective July 1, 2009, and requires the plaintiff in a medical malpractice action to file a certificate of good faith at the time of filing suit, was properly applied to an action initiated prior to the effective date of the amendment, voluntarily dismissed and refiled after the effective date. We also consider whether the requirement that the plaintiff file a certificate of good faith applies to an action for medical battery. We affirm the judgment in part, reverse in part, and remand the case for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/barnettp_122010.pdf
In this case, we are asked to decide whether an amendment to Tenn. Code Ann. section 29-26-122, which became effective July 1, 2009, and requires the plaintiff in a medical malpractice action to file a certificate of good faith at the time of filing suit, was properly applied to an action initiated prior to the effective date of the amendment, voluntarily dismissed and refiled after the effective date. We also consider whether the requirement that the plaintiff file a certificate of good faith applies to an action for medical battery. We affirm the judgment in part, reverse in part, and remand the case for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/barnettp_122010.pdf
Friday, December 17, 2010
Court Reviews Jury’s Apportionment of Fault
ZULA GRAY v. JOE BEDNARZ, JR. (Tenn. Ct. App. December 17, 2010)
Plaintiff appeals a jury's determination that she was 60 percent at fault for the injuries she sustained. We find there is material evidence to support the jury's verdict. Therefore, we affirm the judgment entered in accordance with the jury's findings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/grayz_121710.pdf
Plaintiff appeals a jury's determination that she was 60 percent at fault for the injuries she sustained. We find there is material evidence to support the jury's verdict. Therefore, we affirm the judgment entered in accordance with the jury's findings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/grayz_121710.pdf
Wednesday, December 15, 2010
Court Reviews Whether Plaintiff Satisfied his Burden of Proof in a Medical Negligence Case
ROBERT BROWN, An Incompetent, by and through next friend ANGELA ANDERSON v. STATE OF TENNESSEE (Tenn. Ct. App. December 15, 2010)
Appellant, who was not placed on fall observations until after his fall, suffered a fall while under the care of the Western Mental Health Institute. A CAT scan performed three days after the fall revealed no hemorrhaging, however, a repeat scan performed approximately one month later revealed a subdural hematoma for which Appellant subsequently underwent two surgeries.
Appellant, by and through his next friend, filed suit against the State in the Claims Commission alleging medical negligence. Following a trial, the Claims Commission found that a Western nurse breached the standard of care in completing the initial fall risk assessment, but that Appellant had failed to prove that such breach was a proximate cause of his fall. Additionally, the Commission found that Appellant had failed to prove that Western's failure to later place Appellant on fall observations was a proximate cause of his fall. Finally, the Commission found that Appellant had failed to prove by a preponderance of the evidence that Western's failure to order repeat brain imaging prior to January 26, 2006, was a breach of the standard of care. We affirm the judgment of the Commission.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/brownr_121510.pdf
Appellant, who was not placed on fall observations until after his fall, suffered a fall while under the care of the Western Mental Health Institute. A CAT scan performed three days after the fall revealed no hemorrhaging, however, a repeat scan performed approximately one month later revealed a subdural hematoma for which Appellant subsequently underwent two surgeries.
Appellant, by and through his next friend, filed suit against the State in the Claims Commission alleging medical negligence. Following a trial, the Claims Commission found that a Western nurse breached the standard of care in completing the initial fall risk assessment, but that Appellant had failed to prove that such breach was a proximate cause of his fall. Additionally, the Commission found that Appellant had failed to prove that Western's failure to later place Appellant on fall observations was a proximate cause of his fall. Finally, the Commission found that Appellant had failed to prove by a preponderance of the evidence that Western's failure to order repeat brain imaging prior to January 26, 2006, was a breach of the standard of care. We affirm the judgment of the Commission.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/brownr_121510.pdf
Tuesday, December 14, 2010
Court Reviews a Case Involving an Automobile Accident between Plaintiff and a Police Officer
TOMMIE HAMPTON v. CITY OF MEMPHIS, TENNESSEE (Tenn. Ct. App. December 14, 2010)
Plaintiff was injured when Defendant Madden drove his vehicle at a high speed and in the wrong direction on an exit ramp of I-40/240 and collided head-on with Plaintiff's vehicle. Plaintiff filed a negligence action against Defendant Madden and against the City of Memphis pursuant to the Governmental Tort Liability Act.
In his complaint, Plaintiff asserted Memphis City police negligently pursued Defendant Madden, and that this negligence proximately caused Plaintiff's injuries. The trial court found Plaintiff's injuries were caused solely by the acts of Defendant Madden and entered judgment in favor of the City of Memphis. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/hamptont_121410.pdf
Plaintiff was injured when Defendant Madden drove his vehicle at a high speed and in the wrong direction on an exit ramp of I-40/240 and collided head-on with Plaintiff's vehicle. Plaintiff filed a negligence action against Defendant Madden and against the City of Memphis pursuant to the Governmental Tort Liability Act.
In his complaint, Plaintiff asserted Memphis City police negligently pursued Defendant Madden, and that this negligence proximately caused Plaintiff's injuries. The trial court found Plaintiff's injuries were caused solely by the acts of Defendant Madden and entered judgment in favor of the City of Memphis. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/hamptont_121410.pdf
Court Reviews a Wrongful Death Case, and Issues Regarding Immunity, Against the Memphis Housing Authority
CHERYL BROWN GIGGERS, ET AL. v. MEMPHIS HOUSING AUTHORITY, ET AL. (Tenn. Ct. App. December 14, 2010)
This is the second appeal of this wrongful death action, arising from a fatal shooting of a tenant at a Memphis public housing property. This Court granted Appellant, Memphis Housing Authority's, Tenn. R. App. P. 9 interlocutory appeal to address the trial court's denial of summary judgment in favor of the Appellant.
Finding that Appellees' "failure to evict" claim is preempted by 47 U.S.C. section 1437, and that Appellant retains its sovereign immunity under the discretionary function exception to the Tennessee Governmental Tort Liability Act, we reverse and remand for entry of summary judgment in favor of Appellant. Reversed and remanded.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/giggersc_121410.pdf
This is the second appeal of this wrongful death action, arising from a fatal shooting of a tenant at a Memphis public housing property. This Court granted Appellant, Memphis Housing Authority's, Tenn. R. App. P. 9 interlocutory appeal to address the trial court's denial of summary judgment in favor of the Appellant.
Finding that Appellees' "failure to evict" claim is preempted by 47 U.S.C. section 1437, and that Appellant retains its sovereign immunity under the discretionary function exception to the Tennessee Governmental Tort Liability Act, we reverse and remand for entry of summary judgment in favor of Appellant. Reversed and remanded.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/giggersc_121410.pdf
Wednesday, December 8, 2010
Court Reviews Whether Plaintiffs Can Recover Damages from a Police Department and the Prior Operator of a Car in an Accident in which Neither Party was Directly Involved
SANDRA NEWMAN ET AL. v. RUBYE J. JARRELL ET AL. (Tenn. Ct. App. December 8, 2010)
The plaintiffs were injured in a car accident in which their car collided with a stolen car. They sued the City of Murfreesboro and its police department, arguing that the stolen car was being pursued by the police immediately prior to the accident. The plaintiffs also sued the person who was using the car with its owner's permission prior to the theft, arguing that he had acted negligently in leaving the keys in the car. The trial court granted summary judgment in favor of all of the defendants.
With respect to the city and its police department, we affirm. With respect to the user of the offending car prior to its theft, we reverse and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/newmans_120810.pdf
The plaintiffs were injured in a car accident in which their car collided with a stolen car. They sued the City of Murfreesboro and its police department, arguing that the stolen car was being pursued by the police immediately prior to the accident. The plaintiffs also sued the person who was using the car with its owner's permission prior to the theft, arguing that he had acted negligently in leaving the keys in the car. The trial court granted summary judgment in favor of all of the defendants.
With respect to the city and its police department, we affirm. With respect to the user of the offending car prior to its theft, we reverse and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/newmans_120810.pdf
Thursday, December 2, 2010
TWCA Reviews Whether the Statute of Limitations Bars an Employee’s Complaint
JOANN DAVIS v. HARWELL ENTERPRISES (TWCA December 2, 2010)
This appeal involves the application of the statute of limitations in Tenn. Code Ann. section 50-6-203(g)(2)(B) (2008) to a suit for workers' compensation benefits.
An employee who sustained a compensable injury and who received authorized medical treatment filed a civil action in the Chancery Court for Giles County more than one year after the last payment of medical benefits. Her employer filed a "special motion to dismiss" on the ground that the suit was time-barred.
The trial court, relying on the discovery rule, denied the motion on the ground that the limitations period did not begin to run until the employee's attorney received a letter from her treating physician stating that her injury was work-related.
The Tennessee Supreme Court granted the employer permission to appeal under Tenn. R. App. P. 9 and referred the appeal to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Sup. Ct. R. 51 for hearing and a report of findings of fact and conclusions of law. We have determined that the statute of limitations bars the employee's complaint and, therefore, reverse the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/davisj_120210.pdf
This appeal involves the application of the statute of limitations in Tenn. Code Ann. section 50-6-203(g)(2)(B) (2008) to a suit for workers' compensation benefits.
An employee who sustained a compensable injury and who received authorized medical treatment filed a civil action in the Chancery Court for Giles County more than one year after the last payment of medical benefits. Her employer filed a "special motion to dismiss" on the ground that the suit was time-barred.
The trial court, relying on the discovery rule, denied the motion on the ground that the limitations period did not begin to run until the employee's attorney received a letter from her treating physician stating that her injury was work-related.
The Tennessee Supreme Court granted the employer permission to appeal under Tenn. R. App. P. 9 and referred the appeal to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Sup. Ct. R. 51 for hearing and a report of findings of fact and conclusions of law. We have determined that the statute of limitations bars the employee's complaint and, therefore, reverse the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/davisj_120210.pdf
Court Reviews an Intentional Assault Case
DONALD M. MERRIWEATHER v. LUTHER SMITH, JR. (Tenn. Ct. App. December 2, 2010)
This is a personal injury action based on intentional assault. The plaintiff threw a beer bottle at the defendant, but missed him. As the plaintiff was walking away, the defendant hit the plaintiff on the back of the head with a beer bottle, causing a head injury. The plaintiff then sued the defendant. After a bench trial, the trial court held in favor of the plaintiff. The defendant now appeals. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/merriweatherd_120210.pdf
This is a personal injury action based on intentional assault. The plaintiff threw a beer bottle at the defendant, but missed him. As the plaintiff was walking away, the defendant hit the plaintiff on the back of the head with a beer bottle, causing a head injury. The plaintiff then sued the defendant. After a bench trial, the trial court held in favor of the plaintiff. The defendant now appeals. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/merriweatherd_120210.pdf
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