BETTY FRANKLIN v. DURO STANDARD PRODUCTS CO., INC. (Tenn. Ct. App. August 1, 2012)
In this claim for workers’ compensation benefits, the trial court awarded permanent partial disability benefits to the employee for hearing loss. Her employer has appealed, contending that the trial court erred by admitting the testimony of the employee’s medical expert into evidence and by finding that her hearing loss was caused by her employment. We affirm the judgment of the trial court.
Opinion available at:
https://www.tba.org/sites/default/files/franklinb_080112.pdf
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Showing posts with label Medical Expert. Show all posts
Showing posts with label Medical Expert. Show all posts
Thursday, August 9, 2012
Saturday, February 18, 2012
Court reviews whether the trial court properly allowed a medical expert from a non-contiguous state in a medical malpractice case
MARSHA McDONALD v. PAUL F. SHEA M.D. AND SHEA EAR CLINIC (Tenn. Ct. App. February 16, 2012)
This is a medical malpractice appeal. The plaintiff patient was treated by the defendant physician for ear problems. After the treatment, she had a complete loss of hearing in one ear. The plaintiff patient filed this lawsuit against the physician, alleging medical malpractice and lack of informed consent. After potential experts in Tennessee and contiguous states declined to testify against the defendant physician, the trial court permitted the plaintiff to use an expert physician witness from a non-contiguous state.
At the jury trial, after the jury was sworn and counsel gave opening statements, a juror notified the trial judge of the her concern about an upcoming social event she planned to attend, at which a relative of the defendant physician would be present. After voir dire, the trial judge noted that the plaintiff patient had unused remaining peremptory challenges and excused the juror. The trial court denied the defendant physician's motion for directed verdict on informed consent. The jury awarded the plaintiff substantial compensatory damages.
The defendant physician now appeals, arguing that the trial court erred in permitting the plaintiff to obtain an expert from a non-contiguous state, in allowing the plaintiff to exercise a peremptory challenge after trial was underway, in permitting the informed consent claim to go to the jury, and in denying the defendants' motion to exclude the expert retained by the plaintiff. We affirm on all issues except the dismissal of the juror. We hold it would be error to permit the exercise of a peremptory challenge after the trial is underway, but find that any error was harmless under the facts of this case. Therefore, we affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/mcdonaldm_021612.pdf
HIGHERS, concurring in part and dissenting in part:
http://www.tba2.org/tba_files/TCA/2012/mcdonaldm_CON_021612.pdf
This is a medical malpractice appeal. The plaintiff patient was treated by the defendant physician for ear problems. After the treatment, she had a complete loss of hearing in one ear. The plaintiff patient filed this lawsuit against the physician, alleging medical malpractice and lack of informed consent. After potential experts in Tennessee and contiguous states declined to testify against the defendant physician, the trial court permitted the plaintiff to use an expert physician witness from a non-contiguous state.
At the jury trial, after the jury was sworn and counsel gave opening statements, a juror notified the trial judge of the her concern about an upcoming social event she planned to attend, at which a relative of the defendant physician would be present. After voir dire, the trial judge noted that the plaintiff patient had unused remaining peremptory challenges and excused the juror. The trial court denied the defendant physician's motion for directed verdict on informed consent. The jury awarded the plaintiff substantial compensatory damages.
The defendant physician now appeals, arguing that the trial court erred in permitting the plaintiff to obtain an expert from a non-contiguous state, in allowing the plaintiff to exercise a peremptory challenge after trial was underway, in permitting the informed consent claim to go to the jury, and in denying the defendants' motion to exclude the expert retained by the plaintiff. We affirm on all issues except the dismissal of the juror. We hold it would be error to permit the exercise of a peremptory challenge after the trial is underway, but find that any error was harmless under the facts of this case. Therefore, we affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/mcdonaldm_021612.pdf
HIGHERS, concurring in part and dissenting in part:
http://www.tba2.org/tba_files/TCA/2012/mcdonaldm_CON_021612.pdf
Thursday, February 16, 2012
TWCA reviews whether employee adequately proved that his injury was work-related
KENNETH STEWART v. WESTFIELD INSURANCE COMPANY (TWCA February16, 2012)
The appellant insurance company asserts on appeal that the employee failed to prove that his spinal infection was causally related to any work-place injury and that he also failed to provide the employer with timely notice of his injury. Based upon our review of the record, we conclude that the expert medical proof establishes causation and that the evidence supports the trial court's finding that the employee gave timely notice of his injury. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2012/stewartk_021612.pdf
The appellant insurance company asserts on appeal that the employee failed to prove that his spinal infection was causally related to any work-place injury and that he also failed to provide the employer with timely notice of his injury. Based upon our review of the record, we conclude that the expert medical proof establishes causation and that the evidence supports the trial court's finding that the employee gave timely notice of his injury. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2012/stewartk_021612.pdf
Wednesday, December 28, 2011
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
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
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