Court reviews the dismissal of a medical malpractice case based on the exclusion of expert testimony

SHIRLEEN NEVELS v. JOSEPH CONTARINO, M.D. ET AL. (Tenn. Ct. App. November 19, 2012)

The trial court dismissed this medical malpractice claim on the defendants’ motion for summary judgment and motion to dismiss, after excluding the testimony of the plaintiff’s expert witness. Because the trial court erred in its application of the locality rule and Rule 702 of the Rules of Evidence, we reverse.

Opinion available at:
https://www.tba.org/sites/default/files/nevelss_111912.pdf

Court reviews whether trial court properly excluded expert testimony based on the locality rule in a medical malpractice case

TISH WALKER, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF LISA JO ABBOTT v. DR. SHANT GARABEDIAN (Tenn. Ct. App. December 28, 2011)

This appeal concerns the application of the locality rule in a medical malpractice case. The trial court excluded the testimony of the plaintiff's medical expert, based on the locality rule. On this basis, the trial court granted summary judgment to the defendant physician. The plaintiff appeals. We vacate the order excluding the testimony of the plaintiff's expert and the grant of summary judgment, and remand for reconsideration in light of the Tennessee Supreme Court's recent decision Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011).

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/walkert_122811.pdf

Court reviews whether Plainiff's expert was qualified to testify in a case involving medical malpractice

BRANDE KIRK, ET AL. v. MICHAEL A. CHAVIN, M.D. (Tenn. Ct. App. June 3, 2011)


Brande Kirk and Amanda Jordan, as children of Barbara Jordan, ("Plaintiffs") sued Michael A. Chavin, M.D. alleging medical malpractice in his treatment of Barbara Jordan. Dr. Chavin filed a motion for summary judgment. After a hearing, the Trial Court entered its order on August 30, 2010 finding and holding that Plaintiffs' expert was not qualified to testify in accordance with Tenn. Code Ann. section 29-26-115, and granting Defendant's motion for summary judgment. Plaintiffs appeal to this Court. We affirm. 


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/kirkb_060311.pdf

TWCA Reviews a Finding of an Employee's Meaningful Return to Work

JOHN ERNEST HAYES v. AMERICAN ZURICH INSURANCE COMPANY ET AL. (TWCA May 25, 2011)



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 found that the employee had sustained a compensable injury. In addition, it found that the employee had a meaningful return to work, and his award of permanent partial disability ("PPD") benefits was limited to one and one-half times his anatomical impairment pursuant to Tennessee Code Annotated section 50-6-241(d)(1).

On appeal, the employee contends the trial court erred by finding that he had a meaningful return to work. The employer contends the trial court erred by admitting a discovery deposition of an expert into evidence over its objection based upon Tennessee Rule of Civil Procedure 32.01(3), and finding that the injury at issue was not concurrent with injuries which were the subject of a separate lawsuit. We affirm the judgment. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/hayesj_052511.pdf

TWCA Reviews Issues Regarding the Calculation of Employee's Weekly Wage, Expert Witness Fees, and a Set-Off to Employer for Settlement

DAVID WEACHTER v. HARTFORD UNDERWRITERS INSURANCE COMPANY (TWCA February 28, 2011)

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 was injured in a motor vehicle accident. It is undisputed that his injuries were compensable and that he is permanently and totally disabled as a result of the accident. The issues on appeal are the propriety of the trial court's calculation of the average weekly wage, the trial court's denial of a set-off to Employer for a settlement with the third party tortfeasor, and the award of vocational expert witness fees. We find that the trial court correctly calculated the average weekly wage, but erred by denying the set-off and awarding the expert's fees. The judgment is modified accordingly.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/weachterd_022811.pdf

Court Reviews Whether the Trial Court’s Refusing to Allow Expert Testimony was Erroneous

JAMES Q. HOLDER, et al., v. WESTGATE RESORTS LTD., a Florida Limited Partnership d/b/a WESTGATE SMOKY MOUNTAIN RESORT AT GATLINBURG

(CORRECTION in the majority opinion (Tenn. Ct. App. July 28, 2010))

Plaintiff sustained personal injuries resulting from a fall on defendant's premises and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/holderj_corr_072810.pdf

SUSANO, concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCA/2010/holderj_CON_072810.pdf

Court Reviews Issues Involving Physician Interviews in a Medical Malpractice Case

VICKI P. JACOBS, SURVIVING SPOUSE OF HARRIS N. JACOBS, DECEASED; AND FOR THE BENEFIT OF HERSELF AND THE MINOR CHILDREN OF HARRIS N. JACOBS, DECEASED v. NASHVILLE EAR, NOSE & THROAT CLINIC ET AL. (Tenn. Ct. App. July 27, 2010)

This is a medical malpractice case. Vicki P. Jacobs ("the Plaintiff") alleges that the failure of Stephen A. Mitchell, M.D., an otolaryngologist, and K. James Schumacher, M.D., a neuroradiologist, to diagnose cancer in the left sinus of her late husband, Harris N. Jacobs ("the Decedent"), in May 2000 caused his death in November 2001.

The trial court granted all defendants summary judgment. The court held that the Plaintiff, in the face of the defendants' motions for summary judgment, failed to demonstrate a genuine issue of material fact as to the element of causation. The court's ruling was premised, in part, on the court's holding that the affidavit of one of the experts was not timely filed and also because, according to the court, the Plaintiff's experts gave deposition testimony that superseded and canceled out their assertions in affidavits. Plaintiff appeals, challenging the court's grant of summary judgment and an earlier order allowing the defendants to conduct ex parte interviews of treating physicians of the Decedent. We vacate both orders and remand for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/jacobsv_CORR_072710.pdf

Court reviews whether expert testimony should have been admitted in a case involving a fall on Defendant's premises

JAMES Q. HOLDER, et al., v. WESTGATE RESORTS LTD., a Florida Limited Partnership d/b/a WESTGATE SMOKY MOUNTAIN RESORT AT GATLINBURG (Tenn. Ct. App. July 23, 2010)

Plaintiff sustained personal injuries resulting from a fall on defendant's premises and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/holderj_072310.pdf

SUSANO concurring in part and dissenting in part.
http://www.tba2.org/tba_files/TCA/2010/holderj_CON_072310.pdf

Court reviews whether defendant properly showed that it met the standard of care in medical malpractice case

ALVIN FLATT v. CLAIBORNE COUNTY HOSPITAL AND NURSING HOME (Tenn. Ct. App. April 8, 2010)

In this medical malpractice action, the plaintiff offered evidence of the standard of care required of defendant by an expert witness, and defendant offered evidence that it complied with the standard of care by an expert witness, who was accepted as an expert by the Trial Court. The Trial Judge ruled in favor of defendant, essentially accepting the defendant's evidence that it had met the standard of care for the deceased. Plaintiff appealed, insisting that the Trial Court did not "correctly weigh the conflicting expert testimony" in its ruling for the defendant. On appeal, we affirm the Judgment of the Trial Court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/flatta_040810.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 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

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

Court reviews physician's testimony and trial court's summary judgment finding in wrongful death case.

WANDA F. DYKES, INDIVIDUALLY AND AS THE EXECUTRIX OF THE ESTATE OF RONALD DYKES v. THE CITY OF ONEIDA ET AL. (Tenn. Ct. App. February 26, 2010)

In this action, Wanda F. Dykes ("the plaintiff") filed suit against the City of Oneida ("the defendant") for the alleged wrongful death of her husband, Ronald Dykes. Her claim is based upon her allegation that police officers employed by the defendant were negligent in not calling for medical help when they responded to a call and found Ronald Dykes asleep and unresponsive in his home. They left him as they found him without calling for medical assistance. Mr. Dykes was found the next morning dead of a heart attack in the same recliner where the officers found him.

The thrust of the complaint is that, had the officers summoned medical help, Mr. Dykes' heart attack and resulting death could have been prevented. The defendant moved for summary judgment asserting, among other things, that the plaintiff cannot prove her theory of causation. While the motion was pending, the trial court, on four separate occasions, continued the hearing with respect to it, in order to give the plaintiff an opportunity to find and produce an expert to make out her case. When the motion was finally heard, the record contained the affidavit of a medical doctor stating that the failure of the officers to seek medical treatment for Mr. Dykes "may have allowed his condition to worsen and cause his death." The record also contained the same doctor's deposition testimony wherein he testified that he could not say Mr. Dykes would have survived if he had received prompt medical attention. The trial court granted the defendant summary judgment. The plaintiff appeals. We vacate the trial court's grant of summary judgment and remand for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/dykesw_022610.pdf

TCA Rules That Expert Not Statutorily Qualified

TOMMY McDANIEL, ET AL. v. AMAL RUSTOM, M.D., ET AL. Court: Tenn. Ct. App. (May 5, 2009)

The plaintiffs filed a complaint alleging medical malpractice against emergency room physicians who treated their daughter. The defendants filed motions for summary judgment, claiming that the plaintiffs' only expert was not qualified to testify as to the recognized standard of acceptable professional practice in the defendants' profession and specialty in their community or in a similar community. The trial court granted summary judgment to the defendants, finding that the plaintiffs' expert did not meet the qualifications of Tennessee Code Annotated section 29-26-115. The plaintiffs appeal. We affirm.

This opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mcdanielt_050509.pdf