DARLA BULLOCK, as next of kin and sole surviving heir of Linda H. Lobertini v. UNIVERSITY HEALTH SYSTEMS, INC. (Tenn. Ct. App. November 27, 2012)
This is an appeal in a medical malpractice case. The original plaintiff, the decedent, filed the initial malpractice action against the defendant, but the case was dismissed after the decedent passed away during the pendency of the suit.
Her sole surviving heir re-filed the action without complying with Tennessee Code Annotated sections 29-26-121 and 122, which require a plaintiff who files a medical malpractice suit (1) to give a health care provider who is to be named in the suit notice of the claim sixty days before filing the suit, and (2) to file with the medical malpractice complaint a certificate of good faith confirming that the plaintiff has consulted with an expert who has provided a signed written statement that there is a good-faith basis to maintain the action. The defendant filed a motion to dismiss, and the trial court dismissed the case. The plaintiff appeals. We affirm.
Opinion available at:
https://www.tba.org/sites/default/files/bullockd_112712.pdf
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Showing posts with label Medical Malpractice. Show all posts
Showing posts with label Medical Malpractice. Show all posts
Wednesday, November 28, 2012
Tuesday, November 20, 2012
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
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
Friday, November 2, 2012
Court reviews whether a medical expert failed to identify the standard of care in a wrongful death case
BRENDA GRIFFITH, NEXT OF KIN OF DECEDENT, BOB GRIFFITH v. DR. STEPHEN GORYL AND UPPER CUMBERLAND UROLOGY ASSOCIATES, P.C. (Tenn. Ct. App. November 1, 2012)
In this medical malpractice, wrongful death action the plaintiff alleges the defendant physician, a urologist, failed to timely diagnose and treat the decedent’s bladder cancer which caused his death. At the close of the plaintiff’s case in chief, the defendant moved for a directed verdict.
The trial court held that the plaintiff’s only medical expert witness erroneously defined the standard of care and, upon that basis, excluded his testimony concerning the standard of care and breach thereof. With the exclusion of the plaintiff’s only expert testimony, the trial court held that the plaintiff failed to establish a prima facie case for medical malpractice and granted the motion for a directed verdict.
We have determined the plaintiff’s medical expert did not erroneously identify the standard of care, he is competent to testify and, thus, the trial court erred in excluding his testimony and directing a verdict in favor of the defendant. We, therefore, reverse and remand for a new trial.
Opinion available at:
https://www.tba.org/sites/default/files/griffithb_110112.pdf
In this medical malpractice, wrongful death action the plaintiff alleges the defendant physician, a urologist, failed to timely diagnose and treat the decedent’s bladder cancer which caused his death. At the close of the plaintiff’s case in chief, the defendant moved for a directed verdict.
The trial court held that the plaintiff’s only medical expert witness erroneously defined the standard of care and, upon that basis, excluded his testimony concerning the standard of care and breach thereof. With the exclusion of the plaintiff’s only expert testimony, the trial court held that the plaintiff failed to establish a prima facie case for medical malpractice and granted the motion for a directed verdict.
We have determined the plaintiff’s medical expert did not erroneously identify the standard of care, he is competent to testify and, thus, the trial court erred in excluding his testimony and directing a verdict in favor of the defendant. We, therefore, reverse and remand for a new trial.
Opinion available at:
https://www.tba.org/sites/default/files/griffithb_110112.pdf
Friday, May 25, 2012
Court reviews a motion for a directed verdict in a medical malpractice case involving a permanent neurological impairment
DIANE R. CANNON KELLON and WILLIAM T. KELLON v. MARSHA LEE, M.D. and SEMMES-MURPHEY CLINIC (Tenn. Ct. App. May 21, 2012)
This is a medical malpractice case wherein a patient suffered permanent neurological impairment after delay of surgery to correct a ruptured disc in her spine. The patient sued the doctor who treated her at a minor medical clinic, and a neurological clinic, alleging that both failed to ensure that the patient was treated promptly. The jury found that the doctor did not breach the standard of care, but awarded damages against the neurological clinic.
The neurological clinic moved for judgment in accordance with a motion for a directed verdict on the ground that the patient failed to prove causation. The trial court granted the motion, as well as a conditional motion for new trial as to the neurological clinic only. The trial court concurred in the jury verdict in favor of the doctor.
We reverse the grant of the motion for judgment in accordance with a motion for a directed verdict and affirm the grant of a new trial as to the neurological clinic only. The jury verdict in favor of the minor medical clinic doctor, as concurred in by the trial court, is affirmed. Affirmed in part, reversed in part, and remanded.
Opinion available at:
https://www.tba.org/sites/default/files/kellond_052112.pdf
This is a medical malpractice case wherein a patient suffered permanent neurological impairment after delay of surgery to correct a ruptured disc in her spine. The patient sued the doctor who treated her at a minor medical clinic, and a neurological clinic, alleging that both failed to ensure that the patient was treated promptly. The jury found that the doctor did not breach the standard of care, but awarded damages against the neurological clinic.
The neurological clinic moved for judgment in accordance with a motion for a directed verdict on the ground that the patient failed to prove causation. The trial court granted the motion, as well as a conditional motion for new trial as to the neurological clinic only. The trial court concurred in the jury verdict in favor of the doctor.
We reverse the grant of the motion for judgment in accordance with a motion for a directed verdict and affirm the grant of a new trial as to the neurological clinic only. The jury verdict in favor of the minor medical clinic doctor, as concurred in by the trial court, is affirmed. Affirmed in part, reversed in part, and remanded.
Opinion available at:
https://www.tba.org/sites/default/files/kellond_052112.pdf
Tuesday, May 1, 2012
Court reviews a motion for summary judgment in a medical malpractice case
WILLIAM MISE, ET. AL. V. METHODIST MEDICAL CENTER OF OAK RIDGE, ET. AL. (Tenn. Ct. App. April 23, 2012)
This is an appeal from the grant of summary judgment in a medical malpractice case. Virginia Mise was admitted to Methodist Medical Center of Oak Ridge following complaints of abdominal pain, nausea, and vomiting. She was diagnosed with chronic renal failure. Several days later, she died following a medical procedure.
Her sons filed suit, alleging that Virginia Mise’s treating physicians and nurses failed to comply with the requisite standard of care, causing her death. Methodist Medical Center of Oak Ridge and the treating physicians filed motions for summary judgment. The trial court granted the motions for summary judgment. We affirm the grant of the motions for summary judgment.
Opinion available at:
https://www.tba.org/sites/default/files/misew_042312.pdf
This is an appeal from the grant of summary judgment in a medical malpractice case. Virginia Mise was admitted to Methodist Medical Center of Oak Ridge following complaints of abdominal pain, nausea, and vomiting. She was diagnosed with chronic renal failure. Several days later, she died following a medical procedure.
Her sons filed suit, alleging that Virginia Mise’s treating physicians and nurses failed to comply with the requisite standard of care, causing her death. Methodist Medical Center of Oak Ridge and the treating physicians filed motions for summary judgment. The trial court granted the motions for summary judgment. We affirm the grant of the motions for summary judgment.
Opinion available at:
https://www.tba.org/sites/default/files/misew_042312.pdf
Friday, April 27, 2012
House GOP Pushing Med Mal as Budget Fix
Republican leaders in the U.S. House of Representatives have revived a medical malpractice bill that caps non-economic damages at $250,000 and limits contingency fees as a way to reduce the federal budget and avoid cuts in defense spending. The House passed the bill in March, even though President Barack Obama said he would veto it and House Democrats say it will be dead on arrival in the Senate. But the bill was revisited during budget discussions this week after the Congressional Budget Office estimated it would reduce federal healthcare costs.
Read the full story at The Blog of Legal Times
Read the full story at The Blog of Legal Times
Thursday, April 26, 2012
Court reviews whether the requirement of a Certificate of Good Faith in medical malpractice cases violates due process and equal protection
SANDI D. JACKSON v. HCA HEALTH SERVICES OF TENNESSEE, INC., D/B/A CENTENNIAL MEDICAL CENTER ET AL. (Tenn. Ct. App. April 19, 2012)
This appeal arises from the dismissal of a medical malpractice action due to the plaintiff’s failure to provide a certificate of good faith.
All defendants filed Tennessee Rule of Civil Procedure 12.02(6) motions to dismiss the medical malpractice action based upon Tennessee Code Annotated § 29-26-122(a), which provides: “If the certificate is not filed with the complaint, the complaint shall be dismissed, as provided in subsection (c), absent a showing that the failure was due to the failure of the provider to timely provide copies of the claimant’s records requested as provided in § 29-26-121 or demonstrated extraordinary cause.”
Because the plaintiff failed to make a showing that the omission was due to the failure of any healthcare provider to provide records or demonstrate extraordinary cause, the trial court granted the motions and dismissed the case.
The plaintiff asserts on appeal that the statutory requirement violates the separation of powers clause and that it violates the due process and equal protection guarantees of the constitution of Tennessee by treating plaintiffs in suits for medical negligence differently from plaintiffs in other civil litigation and by allegedly restricting access to the courts. Finding no constitutional infirmities, we affirm.
Opinion available at:
https://www.tba.org/sites/default/files/jacksons_041912.pdf
This appeal arises from the dismissal of a medical malpractice action due to the plaintiff’s failure to provide a certificate of good faith.
All defendants filed Tennessee Rule of Civil Procedure 12.02(6) motions to dismiss the medical malpractice action based upon Tennessee Code Annotated § 29-26-122(a), which provides: “If the certificate is not filed with the complaint, the complaint shall be dismissed, as provided in subsection (c), absent a showing that the failure was due to the failure of the provider to timely provide copies of the claimant’s records requested as provided in § 29-26-121 or demonstrated extraordinary cause.”
Because the plaintiff failed to make a showing that the omission was due to the failure of any healthcare provider to provide records or demonstrate extraordinary cause, the trial court granted the motions and dismissed the case.
The plaintiff asserts on appeal that the statutory requirement violates the separation of powers clause and that it violates the due process and equal protection guarantees of the constitution of Tennessee by treating plaintiffs in suits for medical negligence differently from plaintiffs in other civil litigation and by allegedly restricting access to the courts. Finding no constitutional infirmities, we affirm.
Opinion available at:
https://www.tba.org/sites/default/files/jacksons_041912.pdf
Court reviews a medical malpractice involving permanent injuries sustained by an infant during surgery
MICHAEL H. GAW, ET AL. v. THE VANDERBILT UNIVERSITY, ET AL. (Tenn. Ct. App. April 20, 2012)
This is an appeal from a jury verdict in a medical malpractice case. A surgeon performed a procedure on an infant to repair a birth defect at the defendant hospital. The infant sustained permanent injuries after the surgery. The parents filed suit on the infant’s behalf against the hospital for failing to adhere to the expected standard of care.
At the conclusion of trial, the hospital moved for a directed verdict on all claims, with only the claims for informed consent and post-operative negligence being denied. The jury entered a judgment in favor of the infant. The hospital has appealed. We affirm the trial court’s judgment.
Opinion available at:
https://www.tba.org/sites/default/files/gawm_042012.pdf
This is an appeal from a jury verdict in a medical malpractice case. A surgeon performed a procedure on an infant to repair a birth defect at the defendant hospital. The infant sustained permanent injuries after the surgery. The parents filed suit on the infant’s behalf against the hospital for failing to adhere to the expected standard of care.
At the conclusion of trial, the hospital moved for a directed verdict on all claims, with only the claims for informed consent and post-operative negligence being denied. The jury entered a judgment in favor of the infant. The hospital has appealed. We affirm the trial court’s judgment.
Opinion available at:
https://www.tba.org/sites/default/files/gawm_042012.pdf
Tuesday, April 24, 2012
Court reviews an order to exclude an expert witness based on the locality rule in light of the Shipley opinion
VIVIAN KENNARD v. METHODIST HOSPITALS OF MEMPHIS a/k/a METHODIST HEALTHCARE MEMPHIS HOSPITALS, ET AL. (Tenn. Ct. App. April 18, 2012)
Plaintiff filed a medical malpractice action against the Anesthesia Defendants, among others. Prior to trial, one of Plaintiff’s experts, Dr. McLaughlin, was excluded for failure to meet the requirements of the locality rule. Plaintiff proceeded to trial, and a jury verdict was rendered in favor of the Anesthesia Defendants. Plaintiff now appeals the expert’s exclusion and the subsequent jury verdict.
In light of our previous vacation of the order excluding Dr. McLaughlin in Kennard 2, we remand this case to the trial court for reconsideration of Dr. McLaughlin’s qualifications in light of Shipley.
If the trial court determines that Dr. McLaughlin meets the requirements of the locality rule, as set forth in Shipley, it shall then consider whether he, as an OB-GYN, may testify against the Anesthesia Defendants.
Finally, if the trial court determines that Dr. McLaughlin is competent to testify, it shall then determine whether his erroneous exclusion warrants a setting aside of the jury verdict rendered in favor of the Anesthesia Defendants.
Opinion available at:
https://www.tba.org/sites/default/files/kennardv_041812.pdf
Plaintiff filed a medical malpractice action against the Anesthesia Defendants, among others. Prior to trial, one of Plaintiff’s experts, Dr. McLaughlin, was excluded for failure to meet the requirements of the locality rule. Plaintiff proceeded to trial, and a jury verdict was rendered in favor of the Anesthesia Defendants. Plaintiff now appeals the expert’s exclusion and the subsequent jury verdict.
In light of our previous vacation of the order excluding Dr. McLaughlin in Kennard 2, we remand this case to the trial court for reconsideration of Dr. McLaughlin’s qualifications in light of Shipley.
If the trial court determines that Dr. McLaughlin meets the requirements of the locality rule, as set forth in Shipley, it shall then consider whether he, as an OB-GYN, may testify against the Anesthesia Defendants.
Finally, if the trial court determines that Dr. McLaughlin is competent to testify, it shall then determine whether his erroneous exclusion warrants a setting aside of the jury verdict rendered in favor of the Anesthesia Defendants.
Opinion available at:
https://www.tba.org/sites/default/files/kennardv_041812.pdf
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
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
Friday, December 2, 2011
Court reviews whether a medical malpractice claim is time barred by the GTLA or was timely filed under the Tennessee Medical Malpractice Act
WALTON CUNNINGHAM & PHYLLIS CUNNINGHAM EX REL. PHILLIP WALTON CUNNINGHAM v. WILLIAMSON COUNTY HOSPITAL DISTRICT ET AL. (Tenn. Ct. App. December 1, 2011)
Defendants, Williamson Medical Center and five of its employees, appeal from the denial of their motion to dismiss this medical malpractice action. They contend the action is time barred because it was filed more than one year after the cause of action accrued, in violation of the one year statute of limitations applicable to Tennessee Governmental Tort Liability Act actions, codified at Tennessee Code Annotated section 29-20-305(b).
The trial court, however, found that the action was timely filed because it was commenced within the 120-day extension afforded to the plaintiffs pursuant to an amendment to the Tennessee Medical Malpractice Act, codified at Tennessee Code Annotated section 29-26-121(c) (2009).
We have determined that the amendment codified at Tennessee Code Annotated section 29-26-121(a)-(c) applies, notwithstanding the one-year statute of limitations provision under the Governmental Tort Liability Act, that the plaintiffs' compliance with the pre-suit notification provision in Tennessee Code Annotate section 29-26-121(a) extended the statute of limitations by 120 days, and that this action was timely filed within the 120-day extension. Therefore, were affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cunninghamw_120111.pdf
Defendants, Williamson Medical Center and five of its employees, appeal from the denial of their motion to dismiss this medical malpractice action. They contend the action is time barred because it was filed more than one year after the cause of action accrued, in violation of the one year statute of limitations applicable to Tennessee Governmental Tort Liability Act actions, codified at Tennessee Code Annotated section 29-20-305(b).
The trial court, however, found that the action was timely filed because it was commenced within the 120-day extension afforded to the plaintiffs pursuant to an amendment to the Tennessee Medical Malpractice Act, codified at Tennessee Code Annotated section 29-26-121(c) (2009).
We have determined that the amendment codified at Tennessee Code Annotated section 29-26-121(a)-(c) applies, notwithstanding the one-year statute of limitations provision under the Governmental Tort Liability Act, that the plaintiffs' compliance with the pre-suit notification provision in Tennessee Code Annotate section 29-26-121(a) extended the statute of limitations by 120 days, and that this action was timely filed within the 120-day extension. Therefore, were affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cunninghamw_120111.pdf
Monday, November 21, 2011
Court reviews whether trial court properly dismissed a medical malpractice case that was filed without a Certificate of Good Faith
PAULETTA C. CRAWFORD, ET AL. v. EUGENE KAVANAUGH, M.D. (Tenn. Ct. App. November 21, 2011)
This is a medical malpractice case in which Pauletta C. Crawford ("Wife") and James Crawford ("Husband") filed suit against Eugene Kavanaugh, M.D. ("Doctor"). While the suit was pending, Tennessee Code Annotated section 29-26-122 was amended to require the contemporaneous filing of a certificate of good faith with complaints alleging medical malpractice. Husband and Wife (collectively the "Crawfords") dismissed their suit and filed a new complaint that did not include a certificate of good faith. Doctor filed a motion to dismiss, and the court dismissed the case. The Crawfords appeal. We affirm the trial court.
Full opinion available at:
http://www.tba2.org/tba_files/TCA/2011/crawfordp_112111.pdf
This is a medical malpractice case in which Pauletta C. Crawford ("Wife") and James Crawford ("Husband") filed suit against Eugene Kavanaugh, M.D. ("Doctor"). While the suit was pending, Tennessee Code Annotated section 29-26-122 was amended to require the contemporaneous filing of a certificate of good faith with complaints alleging medical malpractice. Husband and Wife (collectively the "Crawfords") dismissed their suit and filed a new complaint that did not include a certificate of good faith. Doctor filed a motion to dismiss, and the court dismissed the case. The Crawfords appeal. We affirm the trial court.
Full opinion available at:
http://www.tba2.org/tba_files/TCA/2011/crawfordp_112111.pdf
Tuesday, October 4, 2011
Court reviews a jury verdict in a medical malpractice case.
KIMBERLY L. SMITH v. GARY E. MILLS, M.D., ET AL. (Tenn. Ct. App. October 4, 2011)
This is an appeal from a jury verdict in a medical malpractice case. The jury entered a judgment in favor of the defendants. The plaintiff has appealed. We affirm the trial court's judgment.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/smithk_100411.pdf
This is an appeal from a jury verdict in a medical malpractice case. The jury entered a judgment in favor of the defendants. The plaintiff has appealed. We affirm the trial court's judgment.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/smithk_100411.pdf
Tuesday, August 23, 2011
Court reviews whether a claim against an assisted living facility was a negligence or a medical malpractice claim.
CATHY VICE, ET AL. v. ELMCROFT OF HENDERSONVILLE, ET AL. (Tenn. Ct. App. August 23, 2011)
The daughter of an eighty-seven year old woman was looking for an assisted living facility for her mother, who was suffering from dementia. Elmcroft of Hendersonville assured the daughter that it could care for her mother and admitted her after the daughter informed it of her concern about her mother's risk for falls. Three weeks following her admission the mother fell, and then fell three more times before the daughter moved her out of Elmcroft. The final fall resulted in a broken clavicle, which caused the mother pain and decreased mobility for the rest of her life.
The daughter, as her mother's representative, sued Elmcroft and its administrator for negligence and negligent admission and retention of her mother. A jury awarded a judgment against the defendants for $250,000. There was evidence the Elmcroft staff did not follow Elmcroft's fall prevention policies and procedures.
Elmcroft argued that all claims filed against it involved matters of medical science or art requiring specialized skills not ordinarily possessed by lay persons, and, therefore, this was a medical malpractice which should have been dismissed since the statutory requirements for such a claim had not been met.
We conclude, based on the evidence herein, that the claims were ordinary negligence claims. Elmcroft also argued (1) the trial court erred in refusing to instruct the jury on the negligence of the daughter and a physician from another state who indicated the mother may be cared for by an assisted living facility and (2) that the jury award was excessive, contained a punitive component, and was the result of passion, prejudice and caprice.
We conclude the court did not err in refusing to charge the jury on the physician's comparative fault or the daughter's comparative negligence. We also conclude there was material evidence to support the jury's award of damages. Consequently, we affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/vicec_082311.pdf
The daughter of an eighty-seven year old woman was looking for an assisted living facility for her mother, who was suffering from dementia. Elmcroft of Hendersonville assured the daughter that it could care for her mother and admitted her after the daughter informed it of her concern about her mother's risk for falls. Three weeks following her admission the mother fell, and then fell three more times before the daughter moved her out of Elmcroft. The final fall resulted in a broken clavicle, which caused the mother pain and decreased mobility for the rest of her life.
The daughter, as her mother's representative, sued Elmcroft and its administrator for negligence and negligent admission and retention of her mother. A jury awarded a judgment against the defendants for $250,000. There was evidence the Elmcroft staff did not follow Elmcroft's fall prevention policies and procedures.
Elmcroft argued that all claims filed against it involved matters of medical science or art requiring specialized skills not ordinarily possessed by lay persons, and, therefore, this was a medical malpractice which should have been dismissed since the statutory requirements for such a claim had not been met.
We conclude, based on the evidence herein, that the claims were ordinary negligence claims. Elmcroft also argued (1) the trial court erred in refusing to instruct the jury on the negligence of the daughter and a physician from another state who indicated the mother may be cared for by an assisted living facility and (2) that the jury award was excessive, contained a punitive component, and was the result of passion, prejudice and caprice.
We conclude the court did not err in refusing to charge the jury on the physician's comparative fault or the daughter's comparative negligence. We also conclude there was material evidence to support the jury's award of damages. Consequently, we affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/vicec_082311.pdf
Thursday, August 11, 2011
TN Supreme Court clarifies the standards that apply to the locality rule for expert medical witnesses
DONNA FAYE SHIPLEY ET AL. v. ROBIN WILLIAMS (Tenn. August 11, 2011)
In medical malpractice actions, Tennessee adheres to a locality rule for expert medical witnesses. Claimants are required by statute to prove by expert testimony the recognized standard of acceptable professional practice in the community where the defendant medical provider practices or a similar community. Tenn. Code Ann. S 29-26-115 (2000 & Supp. 2010).
Since the locality rule was enacted in 1975, Tennessee courts have reached different conclusions in interpreting it. The rule does not define "similar community," nor does it provide guidance as to how a community is determined to be "similar" to the defendant's community.
In this case, we address and clarify the applicable standards that courts should use in determining whether a medical expert is qualified to testify as an expert witness in a medical malpractice case. Applying these standards, we hold that the trial court's exclusion of the claimant's two proffered medical experts under the locality rule was error. The trial court's grant of summary judgment is affirmed in part and vacated in part.
Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/shipleyd_081111.pdf
KOCH concurring in part and dissenting in part
http://www.tba2.org/tba_files/TSC/2011/shipleyd_DIS_CORR_082911.pdf
In medical malpractice actions, Tennessee adheres to a locality rule for expert medical witnesses. Claimants are required by statute to prove by expert testimony the recognized standard of acceptable professional practice in the community where the defendant medical provider practices or a similar community. Tenn. Code Ann. S 29-26-115 (2000 & Supp. 2010).
Since the locality rule was enacted in 1975, Tennessee courts have reached different conclusions in interpreting it. The rule does not define "similar community," nor does it provide guidance as to how a community is determined to be "similar" to the defendant's community.
In this case, we address and clarify the applicable standards that courts should use in determining whether a medical expert is qualified to testify as an expert witness in a medical malpractice case. Applying these standards, we hold that the trial court's exclusion of the claimant's two proffered medical experts under the locality rule was error. The trial court's grant of summary judgment is affirmed in part and vacated in part.
Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/shipleyd_081111.pdf
KOCH concurring in part and dissenting in part
http://www.tba2.org/tba_files/TSC/2011/shipleyd_DIS_CORR_082911.pdf
Friday, July 1, 2011
40 Wrong Site Surgeries Per Week in the US
According to doctors, hospitals and health agencies, wrong site surgeries should never occur. Yet an estimated 40 times per week a surgery occurs on the wrong limb, organ or other site in patients across the U.S. Read how surgeons, nurses and hospitals are working to eliminate these errors which are the most blatant and easily avoided form of medical malpractice.
Tuesday, June 28, 2011
Court Reviews a Summary Judgment Motion in a Medical Malpractice Case Related to Treatment and Fraudulent Billing of a Patient
DEBORAH LYNN DAVIS v. JACK E. SCARIANO, JR., M.D. ET AL. (Tenn. Ct. App. June 28, 2011)
The plaintiff, Deborah Lynn Davis, appeals from a grant of summary judgment to the defendants, Dr. Jack E. Scariano, Jr., and his group, West Knoxville Neurological Associates. Except when the context requires otherwise, we will refer to the defendants collectively as "Dr. Scariano."
Davis sued Dr. Scariano alleging medical malpractice and fraud related to the doctor's treatment of her and to the billing of her account. Dr. Scariano moved for summary judgment. After granting Davis several continuances, the trial court heard the motion and granted it based on Dr. Scariano's filings and the plaintiff's failure to present evidence establishing a disputed issue of material fact. Davis appeals. We affirm.
Opinion available here:
http://www.tba2.org/tba_files/TCA/2011/davisd_062811.pdf
The plaintiff, Deborah Lynn Davis, appeals from a grant of summary judgment to the defendants, Dr. Jack E. Scariano, Jr., and his group, West Knoxville Neurological Associates. Except when the context requires otherwise, we will refer to the defendants collectively as "Dr. Scariano."
Davis sued Dr. Scariano alleging medical malpractice and fraud related to the doctor's treatment of her and to the billing of her account. Dr. Scariano moved for summary judgment. After granting Davis several continuances, the trial court heard the motion and granted it based on Dr. Scariano's filings and the plaintiff's failure to present evidence establishing a disputed issue of material fact. Davis appeals. We affirm.
Opinion available here:
http://www.tba2.org/tba_files/TCA/2011/davisd_062811.pdf
Friday, June 3, 2011
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
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
Tuesday, May 31, 2011
Court reviews whether defendant negated causation in his motion for summary judgment in a wrongful death medical malpractice case
JEFFEREY D. KEY, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF RANDALL EUGENE KEY ET AL.v. BLOUNT MEMORIAL HOSPITAL, INC. ET AL. (Tenn. Ct. App. May 31, 2011)
This is an appeal from a grant of summary judgment to the defendant hospital in a medical malpractice wrongful death case. The trial court struck as untimely the materials filed by the plaintiff in opposition to the defendant's motion for summary judgment. The responsive materials were filed less than five days before the date originally scheduled for a hearing on the defendant's motion; however the hearing was continued for several months. Having struck the plaintiff's filings, the court held that the motion negated violation of the standard of care and causation and granted the motion as unopposed.
The plaintiff contends on appeal that the defendant did not negate either violation of the standard of care or causation; that the materials responsive to the motion should not have been stricken; and that, if the materials filed in opposition to the motion are considered, the plaintiff presented issues of material fact for trial. We vacate the trial court's grant of summary judgment and remand for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/keyj_053111.pdf
This is an appeal from a grant of summary judgment to the defendant hospital in a medical malpractice wrongful death case. The trial court struck as untimely the materials filed by the plaintiff in opposition to the defendant's motion for summary judgment. The responsive materials were filed less than five days before the date originally scheduled for a hearing on the defendant's motion; however the hearing was continued for several months. Having struck the plaintiff's filings, the court held that the motion negated violation of the standard of care and causation and granted the motion as unopposed.
The plaintiff contends on appeal that the defendant did not negate either violation of the standard of care or causation; that the materials responsive to the motion should not have been stricken; and that, if the materials filed in opposition to the motion are considered, the plaintiff presented issues of material fact for trial. We vacate the trial court's grant of summary judgment and remand for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/keyj_053111.pdf
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