Consumer Protection Laws Help Tennesseans Recover

Americans pursuing dreams and goals through education, work, or the growth of small and large businesses want to compete on a level playing field.  They want to be treated honestly and fairly by competitors, insurers, state and local governments, vendors, and customers.  Of course history informs us that not all individuals or companies play by the rules.  Eventually every business faces the breach of an important contract, a bad debt, a denied insurance claim or some other legal matter.

Due to challenging economic times, many individuals and businesses are facing a more insidious threat than broken contracts.  They are increasingly being damaged by unfair, deceptive and outright fraudulent practices by those with whom they do business.  Fortunately, Tennessee law provides the legal weapons needed to combat reprehensible behavior by those who knowingly take advantage of consumers in the marketplace. 

These weapons include the Tennessee Consumer Protection Act (TCPA) and bad faith insurance laws.  The TCPA is often misunderstood because it is entitled a “consumer” act.  It is important to understand that the TCPA considers both individuals and businesses to be consumers.  In fact, a large portion of all TCPA claims involve businesses suing businesses for unfair or deceptive practices.  The Act is important because when a consumer has been damaged by the unfair, deceptive or fraudulent actions of another, a court may invoke it to award actual damages, punitive damages and attorneys fees.  In the hands of a skilled attorney, the TCPA can be used to fully compensate a consumer and deter a bad actor from engaging in further deceptive behavior. 

A recent case handled by my firm is an excellent example of how the TCPA might apply to you or your business.  Our client was a young, aspiring country music singer.  She paid a Nashville record producer for song production and further promotion of her career.  He represented himself as an accomplished producer with good connections at the major records labels.  The producer breached the contract by failing to produce the promised songs and results.  However, we argued that the producer’s repeated and threatening requests for funds and his early and utter refusal to perform the contract suggested an intention to defraud our client from the outset.  The court agreed and rendered a six figure verdict including punitive damages and attorney fees under the TCPA.  A simple claim for breach would not have made the young woman whole or deterred the producer from such future conduct.

While aspiring artists cannot buy insurance against unscrupulous producers, many consumers buy insurance to protect themselves from life-altering events such as natural disasters, theft and fraud.  The premiums are expensive, but consumers are willing to pay them for the promise of being covered for unexpected and potentially catastrophic losses. 

Unfortunately, insurers sometimes place their economic interests ahead of their policyholders’ interests and wrongfully refuse to pay valid claims.  When an insurer unjustifiably refuses to pay a valid claim it may be found to have breached the insurance policy or to have acted in bad faith

Another recent case handled by my firm is a good example of how you or your company could be affected by an insurer’s breach or bad faith.  Our clients, the Fagans, were wrongfully accused by Allstate of burning down their own home. 

In July 2005, Peter and Tracy Fagan awoke to smoke and flames in their Sevierville, Tennessee home.  They lost everything they owned including their children's pets; clothing and toys; family photos; personal and business records; and an uninsured Corvette Stingray which was parked in the basement.  The Fagans always contended that the fire was caused when Mrs. Fagan fell asleep while smoking on the first floor of the home.

After the fire, Mrs. Fagan, who was not just a policyholder but an Allstate insurance agent, filed a claim under her Allstate homeowner's policy for the insured contents of the home.  Instead of paying the claim, Allstate immediately hired a fire origin expert and a private investigator.  Allstate denied the claim alleging that the Fagans intentionally set the fire for financial gain due alleged financial and marital problems.

In reality, at the time of the fire, the Fagans owned approximately $1 million worth of real property and had near perfect credit.  All their mortgages were current and they had recently been approved for purchase of another rental property.

When the Fagans sued Allstate for payment of their claim, Allstate counter-sued them for bringing the claim and requested that the Fagans be ordered to reimburse Allstate for the company's $40,000 in expert and litigation costs plus its attorney's fees.

After a 3 day trial in U.S. District Court for the Eastern District of Tennessee, a jury returned a verdict in favor of the Fagans.  The jury found that the Fagans did not set fire to their home and awarded them the full amount due under their homeowner's policy.  The jury denied Allstate's counter suit against the Fagans. 

The facts of Fagan v. Allstate are informative as to just how far an insurer may go in trying to avoid a valid claim.  Hopefully you will never fall victim to such unscrupulous behavior.  But always remember that Tennessee’s civil justice system exists to help you prosecute those who would harm you and your business.  If the case is pursued competently and aggressively, you may be able to recover not only your actual losses, but you may recover your litigation costs and have penalties imposed which deter a defendant from harming others. 

Tennesseans Allege Scam by Big World Vacations

The Tennessean reports that many consumers in Tennessee and other states believe they may have been misled or outright scammed by Nashville-based vacation company Big World Vacations.  The Adams Law Firm is investigationg such claims for Tennessee consumers.  If you purchased a vacation package from Big World Vacations, now doing business as Big World/BTM, and need legal advice, call a consumer protection attorney with The Adams Law Firm at 865-531-6440 or 615-585-5415. Our attorneys are experienced in consumer protection law and can answer any questions you might have with regard to your Big World Vacations contract or purchase. 

Court Reviews a Finding of No Fault in a Case Involving a Motor Vehicle Accident

BELLSOUTH TELECOMMUNICATIONS, INC. d/b/a AT&T (TN) v. SHUNDRA Y. YOUNG and MAUREEN F. KINSELLA (Tenn. Ct. App. June 21, 2011)

Plaintiff sued Defendants for damages arising from a motor vehicle accident. The trial court struck, from Defendants' answers, allegations regarding the comparative fault of an unidentified nonparty. However, the trial court allowed references to such nonparty at trial, and the jury assigned no fault to Defendants. Finding no error in the trial court's allowance, we affirm the judgment of the trial court.

Opinion available here:
http://www.tba2.org/tba_files/TCA/2011/bellsouth_062111.pdf

TWCA Reviews Whether a Hydrotherapy Tub Falls Within the "Future Medical Treatment" Provision of a Workers' Compensation Settlement

JERRY LINDSEY v. TIM REEVES D/B/A TIM'S TREE SERVICE (TWCA June 16, 2011)



The employee suffered a compensable spinal cord injury. He settled his workers' compensation claim with his employer in 2007. The settlement provided for future medical treatment in accordance with Tennessee Code Annotated section 50-6-204(a) (2008). In 2009, the employee sought authorization and payment for a hydrotherapy tub. His employer declined to authorize installation of the tub. The employee filed a motion for authorization of medical care in February 2010 and supported the motion by attaching a note from his authorized treating physician that he would "benefit" from use of the tub. The trial court granted the motion. On appeal, we reverse.


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/lindseyj_061611.pdf

Court Reviews a Motion to Dismiss for Failure to State a Claim in a Case Involving a Hospital

MCCALL BRISTER v. HCA HEALTH SERVICES OF TENNESSEE, ET AL. (Tenn. Ct. App. June 9, 2011)



This is an appeal from the trial court's grant of a hospital's motion to dismiss for failure to state a claim upon which relief can be granted. The trial court determined that plaintiff's claim sounded in medical malpractice and dismissed plaintiff's claim for failure to comply with the written notice and certificate of good faith requirements of the Tennessee Medical Malpractice Act. Finding that Plaintiff's complaint states claim for ordinary negligence and premises liability, we reverse the trial court and remand the case for further proceedings. 


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/bristerm_060911.pdf

TWCA reviews the percentage of permanent partial disability allocated by the trial court

DANIEL CLAY LEWIS v. DANA HOLDING CORPORATION (TWCA June 8, 2011)


An employee sustained an injury to his shoulder at work. After a surgical repair, he briefly returned to work but was laid off prior to reaching maximum medical improvement. He filed a complaint in chancery court seeking workers' compensation benefits from his employer. His treating physician assigned no impairment rating and placed no restrictions on his activities. An evaluating physician assigned 6% impairment to the body as a whole and recommended that Mr. Lewis avoid certain activities.

The trial court awarded 36% permanent partial disability to the body as a whole. The employer has appealed, contending that the award is excessive. We modify the judgment to award 24% permanent partial disability to the employee. We also conclude that local Rule 17A of the Chancery Court of the 28th Judicial District of Tennessee conflicts with Tennessee Rule of Civil Procedure 58. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/lewisd_060811.pdf

TWCA reviews whether an employee was injured during the usual course of his employment

VICTOR POWELL ET AL. v. BRETT MARTER, INDIVIDUALLY and D/B/A QUALITY FLOOR COVERING (TWCA June 7, 2011)



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 employee filed a workers' compensation action contending his injury while cutting trees at his employer's home was in the usual course of his employment at his employer's floor covering business. The trial court held that employee's work was casual employment not in the usual course of his employer's business as defined by TCA section 50-6-106(2) and not covered by the workers' compensation statute. We affirm the judgment. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/powellv_060711.pdf

TWCA reviews a motion to dismiss for failure to prosecute in a workers' compensation case

MASON FISCHER v. SVERDRUP TECHNOLOGY, INC. (TWCA June 7, 2011)



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 employee filed a Worker's Compensation action on August 22, 2003 alleging a compensable injury in the course of his employment with his employer in December 1998. The employer filed a motion to dismiss for failure to prosecute under Tenn. R. Civ. P. 41.02.

The trial court entered an order in September 2008, stating that the employer was withdrawing the motion to dismiss for failure to prosecute based upon the employee's commitment to take a medical deposition within sixty days. A second motion to dismiss for failure to prosecute was filed and heard on March 15, 2010 because the medical deposition had not been taken. The trial court granted the motion with prejudice. The employee has appealed. We affirm the judgment. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/fischerm_060711.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

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

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

General Assembly passes major legislation, including the Civil Justice Act, and looks toward adjournment

The Tennessee General Assembly worked in marathon floor and committee sessions this week towards the conclusion of the 2011 legislative session. Among major legislation approved by the State Senate is a civil justice law sponsors say will establish a climate to help create jobs in Tennessee, several measures cracking down on child sex offenders and those who engage in human trafficking, and state's rights legislation.

According to its sponsors, the Tennessee Civil Justice Act of 2011 is designed to provide certainty and predictability for businesses, while ensuring that injured plaintiffs receive all of the economic, quantifiable damages they suffer. The bill's sponsors say the state's current civil justice system puts the state at a competitive disadvantage when it comes to attracting new businesses and jobs. Opponents of the bill say it is harmful to injured plaintiffs by limiting the amount they can recover and that Tennessee has not seen runaway jury verdicts as in other states.

Key provisions of Senate Bill 1522 include:
- The bill limits the maximum appeal bond amount from $75 million to $25 million or 125 percent of the judgment amount.
- It defines two components of compensatory damages: economic and non-economic damages.
- The measure places a cap on non-economic damages, which are subjective damages like pain and suffering, at $750,000 per injured plaintiff for both healthcare liability action and other personal injury actions. However, if the harm suffered is intentional, the caps would not apply.
- As amended, the bill raises the cap to $1.0 million if the plaintiff becomes a paraplegic or quadriplegic because of spinal cord injury, sustains third degree burns over 40 percent or more of his or her body or face, has an amputation of a hand or foot, or wrongfully dies leaving one or more minor children.
- There is no cap, under the measure, on economic damages and any damages that can be objectively quantified may be recovered.
- Caps punitive damages, which must be proved by clear and convincing evidence, at two times compensatory damage or $500,000, whichever is greater, unless the defendant intended to injure the plaintiff, was under the influence of drugs or alcohol, or intentionally falsified records to avoid liability.
- Prevents punitive damages in products liability actions, unless the seller had substantial control over the design or manufacturing of the product or had actual knowledge of the defect in the product at the time it was sold.

The bill now goes back to the House of Representatives for approval of an amendment before it is sent to the governor for his signature. It will take effect October 1, 2011, and apply to all liability actions for injuries accruing after that date.

Court Reviews A Jury Verdict in a Medical Malpractice and Wrongful Death Action

PATTI ZAKOUR, DECEASED, BY NEXT OF KIN, INDIVIDUALLY AND AS NATURAL CHILDREN, NEXT FRIEND AND ON BEHALF OF ANY AND ALL WRONGFUL DEATH BENEFICIARIES OF PATTI ZAKOUR, DECEASED v. UT MEDICAL GROUP, INC. (Tenn. Ct. App. May 19, 2011)



The trial court granted Defendant's motion to set aside the judgment arising from a jury verdict in favor of Plaintiffs in this medical malpractice/wrongful death action. It also conditionally granted Defendant's alternative motion for a new trial. In light of Abshure v. Methodist Healthcare, we vacate the judgment and remand for further proceedings. 


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/zakourp_051911.pdf

TWCA Reviews Whether Employee's Injury was Compensable

STEVE MCBROOM v. NISSAN NORTH AMERICA, INC. ET AL. (TWCA May 10, 2011)

The employee alleged that he sustained a lower back injury as a result of his job. His employer denied the claim based upon findings by its work site medical staff. An evaluating physician opined that the employee's job had caused an aggravation of a pre-existing degenerative disc disease.

The trial court found that the employee had sustained a compensable injury and awarded benefits. The employer appealed, contending that the evidence preponderates against the trial court's finding. We affirm the judgment, but we decline the employee's request to find the appeal to be frivolous.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/mcbrooms_051011.pdf

Court Reviews a Summary Judgment Ruling in a Slip and Fall Case

DAVID MACKLIN v. DOLLAR GENERAL CORPORATION, d/b/a DOLLAR GENERAL STORE #2311 (Tenn. Ct. App. May 4, 2011)



This is a premises liability case. The plaintiff slipped and fell on a clear liquid at the defendant's store. The defendant moved for summary judgment arguing it did not have a reasonable opportunity to clean the floor, warn the customer of the clear liquid, or take adequate precautionary measures upon receiving notice of the dangerous condition.

The trial court granted the motion and the plaintiff appealed. Having determined the defendant effectively moved for and received only partial summary judgment, we dismiss this appeal for lack of subject matter jurisdiction. 


Opinion may be found at:

http://www.tba2.org/tba_files/TCA/2011/macklind_050411.pdf

TWCA Reviews Whether Employee Sustained any Permanent Impairment or Disability

BRENDA COLE v. GOODYEAR TIRE & RUBBER COMPANY ET AL. (TWCA May 2, 2011)



An employee was struck in the back of the leg by a wooden pallet while at work. She alleged that she sustained permanent injuries to her neck, back, and foot as a result of that incident and filed a complaint against her employer in chancery court for workers' compensation benefits. Her employer denied that she had sustained any permanent impairment or disability. The chancery court held that the employee sustained a compensable injury and awarded 20% permanent partial disability benefits. The employer has appealed. We affirm the judgment. 


Opinion may be found at:

http://www.tba2.org/tba_files/TSC_WCP/2011/coleb_050211.pdf

Court Reviews the issue of Negligence in a Wrongful Death Case

JAMES ANTONY WILSON, SR. v. EAST TENNESSEE HUMAN RESOURCE AGENCY, INC. (Tenn. Ct. App. April 29, 2011)



James Antony Wilson, Sr. sued East Tennessee Human Resource Agency, Inc. ("ETHRA") individually, and as next friend and Personal Representative of the Estate of Callie Irene Wilson, on behalf of himself and all wrongful death beneficiaries of Callie Irene Wilson, Deceased. This suit involves a fall and injuries suffered by Callie Irene Wilson ("Callie Wilson") while ETHRA was in the process of transporting Callie Wilson to a dialysis appointment, and her death resulting from these injuries.

After a trial, the Trial Court entered its order on July 29, 2010 finding and holding, inter alia, that the ETHRA driver acted appropriately and was not negligent. Mr. Wilson appeals to this Court. We find that the evidence in the record on appeal preponderates against the Trial Court's finding that ETHRA's employee, Mr. Clabo, was not negligent. We reverse, and remand this case to the Trial Court for a determination of comparative fault and damages. 


Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/wilsonj_042911.pdf

Court Reviews the Foreseeability of the Driver’s Unconsiousness in a Case Involving a Motor Vehicle Accident

TIMOTHY SCHWANDNER v. DANA S. HIGDON (Tenn. Ct. App. April 27, 2011)



The driver of a car suddenly passed out, causing her vehicle to strike a stopped pickup truck and seriously injure its driver. The pickup driver sued, and the defendant filed a motion for summary judgment, arguing that she was not liable for the plaintiff's injuries because her sudden loss of consciousness was unforeseeable. Since it was undisputed that prior to the accident the defendant had not eaten during a full day of busy activity, the plaintiff argued that it was foreseeable that the she would lose consciousness. The trial court did not agree, and it granted the defendant's motion. We affirm the trial court.


Opinion may be found at:

http://www.tba2.org/tba_files/TCA/2011/schwandnert_042711.pdf

Republican Sen. Mike Faulk Against TN Tort Reform Bills

Tennessee Republican Senator Mike Faulk appears to be the only voice of reason among Tennessee Republicans who are determined to fix a tort system that is not broken. He opposes Governor Haslam's tort reform bill which has been improperly touted as a jobs creations bill. Senator Faulk is absolutely correct that the current Tennessee tort system and criminal systems work and that the tort system is based on bedrock conservative priniples of personal responsibility and limited government. Please read his opinion piece and call your legislators and ask them to vote against the Governor's bill. The bill will be up for final passage by the Senate next week so time is of the essence. Ask your legislator to refuse this gift to businesses and insurance companies at the expense of all Tennesseans.

JAMIE RANDOLPH, on behalf of her deceased mother, CAROLYN RANDOLPH v. GIANFRANCO MEDURI, M.D., ET AL. (Tenn. Ct. App. March 2, 2011)

This appeal arises out of an action to hold UT Medical Group, Inc. vicariously liable for the alleged negligence of its employees. In 1997, the original plaintiff filed an amended complaint for medical malpractice and wrongful death which specifically named two doctors as employees of the defendant who negligently caused the death of a patient. As trial approached, a substitute plaintiff attempted to add new allegations concerning the negligence of a third doctor. The trial court denied the motion to amend and later granted a motion in limine to exclude evidence concerning the alleged negligence of the third doctor as beyond the scope of the 1997 amended complaint. The plaintiff consequently was unable to offer expert testimony at trial to prove an employee of the defendant negligently caused the patient's death, and the trial court granted judgment in favor of the defendant. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/randolphj_030211.pdf

Say NO to TN Tort Reform - The Stories of Courtney Hill and Amanda Travis

Governor Haslam's tort reform bill is proceeding through the House with little opposition. The Republican controlled legislature, backed by countless corporate interests and physicians, is pushing the bill through as fast as possible while their momentum is high. The families of Courtney Hill - a young woman and mother who died as a result of medical negligence - and Amanda Travis - a young child who died as a result of medical negligence -want you to see how they lost their loved ones. Please view these stories and contact one or more members of the House Judiciary Committee below and ask them not to vote for the Governor's unneeded bill. Please do not be complacent because you believe these things cannot happen to you or your family. If you have more questions about the bill, see former Senator Fred Thompson's testimony to the House Judiciary Committee on why Tennessee's tort system is not broken and why the Governor's bill is a gift to corporations and insurers paid for by Tennessee citizens. House Judiciary: Officers: Eric Watson (R) Cleveland – 201 WMB -615-741-7799 – rep.eric.watson@capitol.tn.gov Jim Coley (R) Bartlett – 207 WMB - 615-741-8201 – rep.jim.coley@capitol.tn.gov Vance Dennis (R) Savannah – 209 A WMB – 615-741-2190 – rep.vance.dennis@capitol.tn.gov Members: Eddie Bass (D) Prospect – 109 WMB – 615-741-1864 – rep.eddie.bass@capitol.tn.gov Karen Camper (D) Memphis – 20 LP – 615-741-1898 – rep.karen.camper@capitol.tn.gov Linda Elam (R) Mt. Juliet – 212 WMB – 615-741-7462 – rep.linda.elam@capitol.tn.gov Jeremy Faison (R) Cosby – 202 WMB – 615-741-6871 – rep.jeremy.faison@capitol.tn.gov Jim Gotto (R) Nashville – 205 WMB – 615-741-6959 – rep.jim.gotto@capitol.tn.gov Jon Lundburg (R) Bristol – 20 LP – 615-741-7623 – rep.jon.lundberg@capitol.tn.gov Debra Maggart (R) Hendersonville – 114 WMB – 615-741-3893 –rep.debra.maggart@capitol.tn.gov Judd Matheny (R) Tullahoma – 15 LP – 615-741-7448 – rep.judd.matheny@capitol.tn.gov Gary Moore (D) Joelton – 35 LP – 615-741-4317 – rep.gary.moore@capitol.tn.gov Barrett Rich (R) Somerville - 117 WMB – 615-741-8690 – rep.barrett.rich@capitol.tn.gov Janis Sontany (D) Nashville – 23 LP – 615-741-6862 – rep.janis.sontany@capitol.tn.gov Mike Stewart (D) Nashville – 24 LP – 615-741-2184 – rep.mike.stewart@capitol.tn.gov Rick Womick (R) Murfreesboro - 207 WMB – 615-741-2804 –rep.rick.womick@capitol.tn.gov

Tell Your Legislators - Governor's Tort Reform Bill Goes Too Far

In 12 years of practice, every injured client I ever represented shared one common trait - they never thought it would happen to them. When I then proceeded to explain to many of them how little they could expect to recover based on employer-favorable worker's compensation laws or state-mandated minimum auto insurance coverage carried by a defendant driver they were stunned.

Given that Governor Haslam's Tort Reform is on the verge of passage without much opposition, it appears that, like my clients, most Tennesseans assume they will never be injured by another's negligence. I sincerely hope that you and your family are never harmed by a speeding trucker, a drunk driver, a careless professional, an unscrupulous insurer or a greedy financial institutiuon. However, statistically, many of us will experience one or more of these unfortunate events.

If you are affected by such events, you will be stunned by the limits the Governor's bill will have placed on the options for you and your family. Just consider one component of the bill which modifies what is known as the Collateral Source Rule. Although the bill does not mention "collateral source", the changes to the rule are real and are a hidden gem for defendants and insurers alike.

The current Collateral Source Rule recognizes personal responsibility and treats all defendants in injury suits equally. If you responsibly purchased health insurance, medical payments coverage or disability coverage for you and your family and it pays you while you are injured or out of work the person who injures you and his/her insurer does not benefit from your insurance.

For example, if you pay $400 per month for health insurance - by doing so you have paid for the right not to pay retail prices for healthcare. If you are injured and undergo a $1,000 MRI and your insurer has negotiated with the MRI provider to charge you only $500, you and/or your insurer pay only $500 and the balance is written off. At trial, you are allowed to claim the $1,000 bill in full. Why? Because you paid thousands of dollars in premiums for the right to receive the $500 reduction.

Under the Governor's bill, the Collateral Source Rule would be modified or eliminated such that you can only claim the $500 paid by your insurer. The effect is the person who injured you and his/her insurer get the benefit of the health insurance coverage you bought and paid for.

In another example, assume you are injured, out of work and receive money from a disability policy which you paid for. If you lost $10,000 in wages and your disability plan paid you $7,500 while you were off, the Governor's bill would only require the person who injured you to pay you the other $2,500. Again, the person who injured you and his/her insurer save $7,500 because you paid years of premiums for the disability coverage.

In these examples, the person who injured you caused $11,000 in actual damage, but he and his insurer paid only $3,000 in damages to you because YOU paid high premiums for additional insurance coverage. Under the same bill, a person who is injured and did not buy health or disability coverage would receive the full $11,000 in damages.

Why would a conservative Governor and Republican led Legislature reward a negligent party at the expense of a responsible individual who paid premiums and planned for unforseen injury? Why would they advocate for a rule that provides more damages for an individual who did not bother to buy health or disability coverage for his/her family? The only answer is that it will decrease the amount of claims paid by Tennessee auto and other insurers.

In short, it is a gift to insurers who have been seeking this change in the Collateral Source Rule for years. It's the perfect system - insurers collect your premium dollars; pay as little as possible if you have a health or disability claim; and then if an insured driver harms you his/her insurer pays you as little as possible from that person's premiums. What a system.

The Collateral Source Rule is a major component of the Governor's "job creating" tort reform bill. I challenge you to find one individual in the Governor's administration or in the Tennessee Legislature who can explain how this gift to insurers will create a single job. I walked the halls of the Hill last month and asked numerous legislators why they would vote for such a bill. In some cases I received blank stares asking me "what is Collateral Source?" Others simply could not believe that such an offensive rule was buried in the bill they clearly had not read. Needless to say - I was stunned.

If we cannot count on a conservative Legislature and Governor not to reward insurers at the expense of working men and women who responsibly buy insurance to protect themselves - where do we turn? If you are as bothered as me by this bill - call or e-mail members of the House Judiciary Committee (listed below) and tell them. They will pass on this bill this week. Ask them if they have paid insurance premiums for themselves and their families and, if so, why in the world would they support these changes to Collateral Source. Then ask them to remove it from the bill.

Finally, listen to former Senator Fred Thompson's testimony on tort reform before the House Judiciary Committee. If you agree that the reform bill is a solution in search of a problem disguised as a jobs machine - tell the Committee how you feel.


House Judiciary: Officers: Eric Watson (R) Cleveland – 201 WMB -615-741-7799 – rep.eric.watson@capitol.tn.gov Jim Coley (R) Bartlett – 207 WMB - 615-741-8201 – rep.jim.coley@capitol.tn.gov Vance Dennis (R) Savannah – 209 A WMB – 615-741-2190 – rep.vance.dennis@capitol.tn.gov Members: Eddie Bass (D) Prospect – 109 WMB – 615-741-1864 – rep.eddie.bass@capitol.tn.gov Karen Camper (D) Memphis – 20 LP – 615-741-1898 – rep.karen.camper@capitol.tn.gov Linda Elam (R) Mt. Juliet – 212 WMB – 615-741-7462 – rep.linda.elam@capitol.tn.gov Jeremy Faison (R) Cosby – 202 WMB – 615-741-6871 – rep.jeremy.faison@capitol.tn.gov Jim Gotto (R) Nashville – 205 WMB – 615-741-6959 – rep.jim.gotto@capitol.tn.gov Jon Lundburg (R) Bristol – 20 LP – 615-741-7623 – rep.jon.lundberg@capitol.tn.gov Debra Maggart (R) Hendersonville – 114 WMB – 615-741-3893 –rep.debra.maggart@capitol.tn.gov Judd Matheny (R) Tullahoma – 15 LP – 615-741-7448 – rep.judd.matheny@capitol.tn.gov Gary Moore (D) Joelton – 35 LP – 615-741-4317 – rep.gary.moore@capitol.tn.gov Barrett Rich (R) Somerville - 117 WMB – 615-741-8690 – rep.barrett.rich@capitol.tn.gov Janis Sontany (D) Nashville – 23 LP – 615-741-6862 – rep.janis.sontany@capitol.tn.gov Mike Stewart (D) Nashville – 24 LP – 615-741-2184 – rep.mike.stewart@capitol.tn.gov Rick Womick (R) Murfreesboro - 207 WMB – 615-741-2804 –rep.rick.womick@capitol.tn.gov

Court Reviews Whether Plaintiff Sufficiently Stated Her Claims Against Jackson County Defendants

TERESA LYNN JACKSON v. AARON THOMAS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CIRCUIT COURT CLERK OF JACKSON COUNTY, TENNESSEE ET AL. (Tenn. Ct. App. March 24, 2011)

Plaintiff appeals the Tenn. R. Civ. P. 12.02 dismissal of her claims against two defendants, the Circuit Court Clerk of Jackson County, individually and in his official capacity, and Jackson County, Tennessee for a violation of 42 U.S.C. section 1983, the Tennessee Governmental Tort Liability Act, and numerous intentional torts. The trial court dismissed all claims against these defendants finding that Plaintiff failed to state a claim. We affirm the trial court in all respects.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/jacksont_032411.pdf

Opinion: Bills to limit malpractice awards not needed

Former judge and current Memphis lawyer D'Army Bailey writes in an opinion piece today about pending legislation that would limit malpractice awards. The "proposals go well beyond severely limiting Tennessee residents' rights to fair and adequate compensation," he says. "They are designed to protect large corporations and negligent doctors who cause serious harm." Even Gov. Bill Haslam, who is pushing most of these legislative changes, acknowledges they are unnecessary, he continues.

Read his guest column in the Commercial Appeal: 
http://www.commercialappeal.com/news/2011/mar/04/guest-column-haslam-wants-to-curb-malpractice/

General Assembly News: TBA bill aimed at protecting clients, lawyers

Companies that advance money to plaintiffs involved in personal injury lawsuits are lobbying in legislatures across the country to ensure their industry is not subject to usury limits on interest rates or other state laws that protect borrowers.

In Tennessee, the effort to put some controls in place is being led by the Tennessee Bar Association. The TBA initiative, coming from the Tort and Insurance Practice Section, is focused not on the intra-industry fight, but on protecting clients, lawyers and the legal process from many of the excesses of an unregulated industry. The TBA bill (HB1084, SB0921) is sponsored by House Consumer Affairs Committee Chair Jimmy Eldridge (R-Jackson) and Sen. Mae Beavers (R-Lebanon), chair of the senate Judiciary Committee.

Court Reviews Trial Court's Suggestion of Remittitur in a Case Involving a Car Accident

JAN OGLESBY and JOHN OGLESBY v. EDWIN T. RIGGINS (Tenn. Ct. App. March 17, 2011)

This case arises from a car accident in which Appellant was injured when her vehicle was struck by Appellee's vehicle. Following a jury trial, the jury awarded Appellant damages, including $100,000 for Appellant's loss of earning capacity claims. Acting as the thirteenth juror, and based upon its finding that Appellant had failed to meet her burden to show loss of earning capacity, the trial court suggested remittitur of the entire $100,000 loss of earning capacity award. Appellant appeals. Discerning no error, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/oglesbyj_031711.pdf

TWCA Reviews Whether an Employer is one that qualifies under a Second Injury Fund

RICKY D. GARRETT v. WILLIAM DAVID BROWN, ET AL. (TWCA March 15, 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. Ricky D. Garrett ("Employee") was injured when he fell from the roof of a barn during the course and scope of his employment as a handyman for William David Brown ("Employer"), a farmer who carried worker's compensation insurance.

Subsequently, Employee filed a complaint for worker's compensation benefits against Employer and Employer's insurance carrier. Employee also named the Second Injury Fund ("the Fund") as a defendant and alleged that the injury he sustained in the fall in combination with his pre-existing disabilities rendered him totally disabled.

The trial court agreed that Employee was permanently and totally disabled as a result of the injury sustained in the fall combined with the pre-existing disabilities and awarded Employee full benefits with 40% liability for the award assigned to Employer and 60% assigned to the Fund. The Fund appealed, asserting, 1) that Employer does not meet the definition of "employer" for purposes of the Second Injury Fund statute; 2) that the proof is insufficient to show that Employer had knowledge of Employee's pre-existing disabilities; and 3) that the judgment awarded Employee was incorrectly apportioned between the Fund and the Employer. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/garrettr_031511.pdf

Court Reviews a Wrongful Death Suit Against a City Involving an Unsafe Condition Claim

GUY ALEXANDER, JR., AS SURVIVING SPOUSE OF JULIE ANNE ALEXANDER, DECEASED v. CITY OF MURFREESBORO (Tenn. Ct. App. March 15, 2011)

Julie Alexander died in an automobile accident on South Rutherford Boulevard in Murfreesboro. Her husband sued the city, claiming that the road was unsafe or dangerous and that the city had notice of the condition of the road. After a trial, the trial court found that the city did not have notice and that the road was not unsafe or dangerous. Ms. Alexander's husband appealed. We affirm the trial court's decision that the city had no notice of the condition.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/alexanderg_031511.pdf

Court Reviews a Wrongful Death Case Involving an Infant in the Custody of a DCS Placement Caretaker

IN RE: DEMITRUS M. T., A CHILD UNDER 18 YEARS OF AGE, ET AL. (Tenn. Ct. App. March 14, 2011)

This is a wrongful death action filed in the Tennessee Claims Commission ("the Commission") by the parents and brother ("the Claimants") of six month old Demitrus M. T. ("the Infant" or "Demitrus"), individually and on behalf of Demitrus, after he drowned in a bathtub while in the care of Sherika Hamilton, a friend of the family identified in a Tennessee Department of Child Services ("DCS" or "the Department") safety plan as the "placement caretaker." There is no dispute that Hamilton left the Infant unattended in the bathtub while she was otherwise occupied in an adjacent room.

The primary disputes at trial before the Commissioner, and on appeal, are whether the Infant was in the "care, custody and control" of the Department so as to provide jurisdiction to the Commission; whether the Department's "Case Recordings," some of which were made more than a month after the event they purport to record, are inadmissible hearsay; and whether it was foreseeable to the Department that Hamilton would leave the helpless Infant unattended in a bathtub and let him drown. The Commission found that it had jurisdiction because the Department had control of the Infant even though it did not have custody, that the Case Recordings were admissible, and that the Department was not negligent because it could not have foreseen this tragic event. The Claimants appeal. We affirm in part, reverse in part, and vacate the dismissal on the merits.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/demitrust_031411.pdf

Court Reviews Whether a Patient was Competent When He Executed a Power-of-Attorney Document

MARTHA DUKE, As Next of Kin of William Jerry Duke, Deceased, and on behalf of the wrongful death beneficiaries of William Jerry Duke v. KINDRED HEALTHCARE OPERATING, INC., ET AL. (Tenn. Ct. App. March 14, 2011)

This appeal involves an arbitration agreement that was executed when a patient was admitted to a nursing home. The arbitration agreement was signed by the patient's sister, who had presented a power of attorney document to the admissions staff that designated her as the patient's attorney-in-fact. The patient's representative in this lawsuit contends that the patient was incompetent when he executed the power of attorney document, and therefore, the sister lacked authority to sign the arbitration agreement on his behalf. The trial court found by clear and convincing evidence that the patient was incompetent when he signed the document and denied the defendants' motion to compel arbitration. We affirm and remand.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/dukem_031411.pdf

TWCA Reviews Whether an Employee’s Work-Related Injury Advanced His Pre-Existing Back Condition

WILLIAM DAVID MORGAN v. GOODYEAR TIRE & RUBBER COMPANY ET AL. (TWCA March 11, 2011)

In this workers' compensation appeal, the employee alleged a work-related incident aggravated a pre-existing back condition and that he required surgery as a result of the injury. His employer denied the claim, contending that the surgery was for treatment of a pre-existing condition and that the work related incident did not advance the pre-existing condition. The trial court found for the employee and awarded 20% permanent partial disability benefits. The employer appealed. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/morganw_031111.pdf

TWCA Reviews Which Insurance Company is Liable for Covering Employee’s Treatment

JIMMY RANKIN v. EVERYBODY'S OIL CORPORATION d/b/a QUICK TIRE/TIRE BARN, ET AL. (TWCA March 10, 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 employee sustained a work-related injury in September 2007, but medical treatment was not offered by the employer at that time. He continued to work for several months despite his injury. In March 2008, his employer sent him to a physician. He was diagnosed with a significant spinal injury, which required surgical treatment and resulted in severe disability. His employer had changed its workers' compensation insurer in November 2007.

Employee's claim was settled, but the two insurers disagreed as to which was liable. The trial court found that the insurer at the time of the original injury was liable. That insurer has appealed, contending that the later insurer should be liable due to the gradual worsening of the employee's condition after November 2007. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/rankinj_031011.pdf

TWCA Reconsiders an Employee's Earlier, Capped Settlement

MICHAEL DEVEREUX v. UNITED PARCEL SERVICE, INC. (TWCA March 8, 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 employee sought reconsideration of his earlier workers' compensation settlement, which had been "capped" pursuant to Tennessee Code Annotated section 50-6-241(d). His employer asserted that he had been terminated for cause, and was therefore not eligible for reconsideration. The trial court found for the employee and awarded additional benefits. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/devereuxm_030811.pdf

Supreme Court Reviews Whether Employee's Accident Occurred within the Scope of His Employment

OMER LEE DIXON, JR. v. TRAVELERS INDEMNITY COMPANY (Tenn. March 3, 2011)

The primary issue presented in this appeal is whether an employee, who was injured when a tornado struck the tractor-trailer rig he was driving for his employer, has a compensable workers' compensation claim. The central dispute between the parties is whether the claim arose out of the employment relationship. After careful review, we conclude that the employee was injured when he was subjected to a hazard not common to the general public but peculiar to the nature of his employment and to the conditions under which his employment was required to be performed. Accordingly, the injury arose out of his employment. The trial court's judgment holding the employee's claim to be compensable and its award of benefits is affirmed.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/dixono_030311.pdf

TWCA Reviews Whether Employee's Neck Injury was Compensable

ROBIN BAKER v. A & L INDUSTRIAL CONSTRUCTION AND MAINTENANCE, INC. (TWCA March 7, 2011)

The employee sustained a compensable injury to her left wrist. She alleged that she also sustained a neck injury as a result of the same incident. The employer denied the neck claim. The employee's evaluating physician expressed somewhat contradictory opinions regarding the causal relationship between the work incident and her neck injury. The trial court held that the employee had a compensable neck injury in addition to her wrist injury and awarded benefits accordingly. The employer has appealed that finding. We affirm the judgment.

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

Court Reviews the Denial of a Motion to Amend a Complaint in an Automobile Accident Case

LAMAR REYNOLDS v. LOUIS R. TOGNETTI and WENDEE L. TOGNETTI (Tenn. Ct. App. March 4, 2011)

Before filing this personal injury action arising from an automobile accident, the plaintiff filed for Chapter 7 bankruptcy. Although the plaintiff's personal injury action accrued prior to his filing for bankruptcy, he omitted the potential claim from a schedule of assets in the bankruptcy petition. The plaintiff received a discharge in bankruptcy, and, shortly thereafter, filed the instant action.

After the defendants moved for summary judgment, the plaintiff moved to amend his complaint in order to add the bankruptcy Trustee as a party. The trial court did not rule on the plaintiff's motion to amend, and instead granted the defendants summary judgment, finding that the plaintiff lacked standing and was judicially estopped from pursuing his personal injury claim. On appeal, we conclude that the trial court erred when it failed to rule on the plaintiff's motion to amend his complaint prior to adjudicating the defendants' summary judgment motion.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/reynoldsl_030411.pdf

TWCA Reviews Insurer Liability in a Case in Which Employer had Two Workers' Comp Policies at the Time of Employee's Injury

BUILDERS MUTUAL INSURANCE COMPANY v. S & W BUILDERS, INC. ET AL. (TWCA March 3, 2011)

In this workers' compensation action, the trial court held that the employee sustained a compensable injury to his neck. The trial court found that the employee had a 30% impairment as a result of the injury and awarded 75% permanent partial disability to the body as a whole. The employer had two policies of workers' compensation insurance in effect on the date of the injury.

The trial court held each insurer liable for one-half of the benefits paid to the employee. One of the insurers has appealed, contending that the evidence preponderates against the finding that the employee sustained a compensable injury and that it erred in its apportionment of liability. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/buildersmutual_030311.pdf

TWCA Reviews a Motion to Compel an Employer to Provide Medical Treatment where the Settlement included a Waiver of the Right to Future Treatment

ANNE MARIE SMITH v. INTEX ENTERPRISES, LLC (TWCA March 3, 2011)

The employee filed a motion to compel her employer to provide medical treatment pursuant to a court-approved settlement concerning a claim for an injury sustained in 2002. Her employer opposed the motion, contending that any medical treatment sought by the employee was due to a separate injury sustained in 2004. In the settlement of the 2004 claim, the employee had waived her right to future medical treatment. The trial court granted the employee's motion, and her employer has appealed. We conclude that the employee's claim for medical treatment is not ripe for judicial resolution, and vacate the trial court's order.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/smitha_030711.pdf

TBA Today: No mandatory mediation for workers' comp appeals

The Tennessee Supreme Court today issued an order revoking TN. Sup. Ct. R. 37, a provisional rule that required mediation of workers compensation appeals. The TBA submitted a comment in February supporting the repeal because the process was seen as having little value.

http://www.tba2.org/tbatoday/news/2011/workercompmediation_030211.pdf

TWCA Reviews a Finding of Permanent Total Disability

JACQUELINE MORAN v. CUMBERLAND COUNTY MEDICAL CENTER, ET AL. (TWCA March 2, 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 employee injured her back while discharging her duties in the housekeeping department of her employer in October 2003. After treatment in the emergency room, she received conservative treatment from her physicians. She was released by her physician and returned to work. In February 2005, she was terminated by her employer. She continued to receive medical treatment for her back. In 2006, her physician recommended surgery, which was performed in December 2007. The trial court found that the employee was permanently and totally disabled as a result of her injury.

The employer has appealed, contending that the employee had a meaningful return to work and that the award should be limited to two and one-half times her medical impairment ruling pursuant to Tennessee Code Annotated section 50-6-241(a)(1). The employer also contends that the evidence preponderates against the trial court's finding that the employee was permanently and totally disabled. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/moranj_030811.pdf

Court Reviews Whether City of Lebanon had Constructive Notice of a Dangerous Park Swing

CHARLES JUSTIN WRIGHT, BY NEXT FRIEND AND MOTHER, KAREN PRYOR v. CITY OF LEBANON, TENNESSEE (Tenn. Ct. App. March 2, 2011)

In a Governmental Tort Liability Act ("GTLA") action, the City of Lebanon appeals the trial court's decision to hold it liable for an accident that occurred on a swing in a city park. The City asserts that the court erred in failing to find that the swing was in a dangerous or defective condition or that the City had notice of such a condition. Additionally, the City insists that any defective condition was latent and governmental immunity was therefore not removed under the GTLA. The City also challenges the trial court's denial of its motion for involuntary dismissal, its characterization of the case as "hybrid" in nature, its reliance on the doctrine of res ipsa loquitur in establishing negligence, and its admission of the plaintiff's expert testimony. We conclude that the swing was in a dangerous or defective condition, which was not latent, and that the City had constructive notice of that condition. We find against the City on its remaining issues.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/wrightc_030211.pdf

Court Reviews a Finding Against Plaintiff in a Medical Malpractice Case

JAMIE RANDOLPH, on behalf of her deceased mother, CAROLYN RANDOLPH v. GIANFRANCO MEDURI, M.D., ET AL. (Tenn. Ct. App. March 2, 2011)

This appeal arises out of an action to hold UT Medical Group, Inc. vicariously liable for the alleged negligence of its employees. In 1997, the original plaintiff filed an amended complaint for medical malpractice and wrongful death which specifically named two doctors as employees of the defendant who negligently caused the death of a patient. As trial approached, a substitute plaintiff attempted to add new allegations concerning the negligence of a third doctor. The trial court denied the motion to amend and later granted a motion in limine to exclude evidence concerning the alleged negligence of the third doctor as beyond the scope of the 1997 amended complaint. The plaintiff consequently was unable to offer expert testimony at trial to prove an employee of the defendant negligently caused the patient's death, and the trial court granted judgment in favor of the defendant. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/randolphj_030211.pdf

Court Reviews Whether Defendants had Notice of a Defective or Dangerous Condition in a Case Involving a Tanning Bed Accident

AVIE ALEANE HARDING ET AL. v. DONOVAN ENTERPRISES, INC. D/B/A CAPTAIN VIDEO & TANNING (Tenn. Ct. App. March 1, 2011)

A patron of a tanning salon and her husband filed this action seeking to recover damages for injuries the patron sustained when the lid of a tanning bed fell on her head as she was attempting to exit the tanning bed. The plaintiffs allege that the owner and operator of the tanning salon acted negligently by failing to properly maintain or inspect the tanning bed she used, which caused the lid of the tanning bed to become too heavy for the patron to lift and safely exit, and by failing to have a way for a patron to call for help from within the tanning room in the event of an emergency. The trial court summarily dismissed the complaint finding, inter alia, the plaintiffs cannot demonstrate essential elements of a prima facie case, specifically that a defective condition existed or that the defendants had actual or constructive notice of any alleged defective or dangerous condition of the premises. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/hardinga_030111.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

TWCA Reviews whether Employee Met the Burden of Proof to Prove Permanent Impairment

LINDA LEE KENNEY v. SHIROKI NORTH AMERICA, INC. ET AL. (TWCA February 28, 2011)

The employee alleged that she sustained carpal tunnel syndrome and a right shoulder injury as a result of repetitive work activities. She was examined by several doctors provided by her employer, each of whom found that she had no permanent work injury. She sought and received treatment on her own with a physician who treated her for shoulder impingement and carpal tunnel syndrome. This doctor assigned permanent impairment but also testified that those conditions were not work-related. An evaluating physician assigned permanent impairment and testified that the conditions were work-related. Employee was a part-owner of an upholstery business during a period of time prior to the onset of her symptoms. Her testimony concerning the nature of her work for that business was inconsistent. The trial court found that she had not sustained her burden of proof and entered judgment for her employer. She has appealed, contending that the evidence preponderates against the trial court's findings. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/kenneyl_022811.pdf

TWCA Reviews the Impairment Rating Assigned by an MIR Physician

SARAH LOUISE BEAN v. TEPRO, INC. (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.

Sarah Louise Bean ("Employee") sustained bilateral shoulder injuries in the course and scope of her employment with Tepro, Inc. ("Employer"). After undergoing surgery on both shoulders, she was released to return to work. Employer was facing reduced work volume at this time, and Employee worked only one day over the course of the next two months. She worked sporadically during the next four months and then was laid off indefinitely due to economic conditions. During the layoff, she applied for and received Social Security disability benefits. When she was called back to work after four months of layoff, she declined to return.

At trial, the trial judge heard proof regarding the extent of Employee's permanent physical impairment from Employee's evaluating physician, Employee's treating physician, and a Medical Impairment Registry ("MIR") physician. After the conclusion of the proof, the trial court determined that Employee had sustained a permanent physical impairment of 19% to the body as a whole, that the impairment rating assigned by the MIR physician was rebutted by clear and convincing evidence, that the Employee was subject to the cap imposed by Tennessee Code Annotated section 50-6-241(d)(1)(A), and that she was entitled to an award of 28% permanent partial disability ("PPD") benefits. Both parties challenge the trial court's decision. After review, we modify the award of PPD to 21%, reduce the award of discretionary costs by $800, and affirm the remainder of the trial court's judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/beans_022811.pdf

TWCA Reviews Whether Employee’s Injuries Resulted from his Intoxication

TIMOTHY RUSKIN v. LEDIC REALTY SERVICES, LTD. (TWCA February 25, 2011)

In this workers' compensation action, the employee, Timothy Ruskin, worked as a maintenance technician for Ledic Realty Services, Ltd. (Ledic), which managed several apartment buildings. Mr. Ruskin was injured while responding to an after-hours call from a tenant of one of the apartment buildings. In response to his compensation claim, Ledic asserted as an affirmative defense that Mr. Ruskin's injuries resulted from his intoxication. After a hearing, the trial court ruled in Ledic's favor, and Mr. Ruskin appealed. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/ruskint_022511.pdf

TWCA Reviews a Determination of Permanent Partial Disability in a Case Involving Conflicting Assessments between Several Physicians

PRIANGLAM BROOKS v. CORRECTIONAL MEDICAL SERVICES (TWCA February 25, 2011)

Employee sustained a compensable injury to her lower back. Employer initially provided medical treatment, but Employer's insurer subsequently declined to provide additional medical treatment. Employee sought treatment on her own. Her treating physician found that she retained a 15% permanent impairment as a result of her injury. An examining physician for Employer opined that she had no impairment. A physician was selected through the Medical Impairment Registry ("MIR") process. That physician also stated that Employee had no permanent impairment.

The trial court found that Employee rebutted the presumption of correctness of the MIR physician's rating by clear and convincing evidence pursuant to Tennessee Code Annotated section 50-6-204(d)(5) and awarded 20% permanent partial disability. Both sides appealed. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/brooksp_022511.pdf

Court Reviews Denial of Motion to Dismiss in a Medical Malpractice Case

CURTIS MYERS v. AMISUB (SFH), INC., d/b/a ST. FRANCIS HOSPITAL, ET AL. (Tenn. Ct. App. February 24, 2011)

The trial court denied Defendants' motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff's failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/myersc_022411.pdf

Court Reviews Denial of Motion to Dismiss in a Medical Malpractice Case

CURTIS MYERS v. AMISUB (SFH), INC., d/b/a ST. FRANCIS HOSPITAL, ET AL. (Tenn. Ct. App. February 24, 2011)

The trial court denied Defendants' motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff's failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/myersc_022411.pdf

Court Reviews Denial of Motion to Dismiss in a Medical Malpractice Case

CURTIS MYERS v. AMISUB (SFH), INC., d/b/a ST. FRANCIS HOSPITAL, ET AL. (Tenn. Ct. App. February 24, 2011)

The trial court denied Defendants' motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff's failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/myersc_022411.pdf

Court Reviews a Summary Judgment Ruling in a Case in Which Defendant Negated the Damages Element

PAMELA CHAMPION, ET AL. v. CLC OF DYERSBURG, LLC, ET AL. (Tenn. Ct. App. February 22, 2011)

The trial court awarded Defendant summary judgment on the basis that Defendant had negated the element of damages in this personal injury action. We reverse and remand for further proceedings.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/championp_022211.pdf

Court Reviews a Medical Malpractice Case in which Trial Court Held Membership on Defendant Hospital’s Board of Directors

GILBERT OLERUD, ET AL. v. DR. WALTER M. MORGAN, III, ET AL. (Tenn. Ct. App. February 22, 2011)

This is an appeal of a grant of summary judgment to a hospital and physician in a medical malpractice case. Plaintiffs also appeal the denial of their motion that the trial court recuse itself due to the court's membership on the board of directors of the defendant hospital and the court's denial of their motion for default judgment based on spoliation of evidence. We reverse.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/olerudg_022211.pdf

New Documentary on McDonald's Coffee Case and Tort Reform Is A Hit at Sundance Film Festival

TWCA Reviews Whether Employee’s Aggravated Pre-Existing Injuries were Related to her Employment

CAROLYN BERRY v. ARMSTRONG WOOD PRODUCTS (TWCA February 18, 2011)

Employee filed a complaint for workers' compensation benefits against her former employer alleging that her work for her former employer advanced pre-existing arthritis in both knees and required her to have joint replacement surgery on her right knee. The employer denied her claim, contending that her condition was unrelated to her employment.

The trial court found that she had sustained a compensable aggravation of her arthritis and that she had not had a meaningful return to work. It awarded 78% permanent partial disability ("PPD") to the body as a whole. The employer appealed, contending that the trial court erred by finding the award was not subject to the one and one-half times impairment cap found in Tennessee Code Annotated section 50-6-241(d)(1)(A).

We agree with employer that employee is entitled to an award of one and one-half times her impairment rating and decrease the award to 39% PPD to the body as a whole. We affirm the judgment as modified.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/berryc_021811.pdf

Court Reviews the Jury’s Allocation of Fault in a Medical Malpractice Case

JAMES AND PATRICIA CULLUM, ET AL. v. BAPTIST HOSPITAL SYSTEMS, INC., ET AL. (Tenn. Ct. App. February 17, 2011)

This is an appeal from a jury verdict in a medical malpractice case. Plaintiffs, parents of child who suffered severe, permanent brain injuries during the course of his labor and delivery, filed suit against their physician, physician's employer, and related hospitals.

The physician and her employer settled prior to trial, leaving the related hospitals as the only defendants. This case has been tried twice. Following the first trial, the jury returned a verdict in favor of defendants, which the trial court set aside pursuant to the thirteenth juror rule.

The second trial resulted in a verdict for plaintiffs, with the jury assigning 3.75 percent of fault to the defendants and 96.25 percent of fault to the non-party physician. Because the evidence shows that the members of the jury agreed to be bound by the result of a predetermined averaging process, we have concluded that the jury reached a quotient verdict, which is impermissible. Consequently, we reverse and remand the case for a new trial.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cullumj_021711.pdf

TWCA Reviews Whether Employee Provided Timely Notice of His Injury

WAUSAU INSURANCE COMPANY v. ARCHIE W. RICHARDSON (TWCA February 16, 2011)

The employee alleged that he injured his back in the course of his employment. His employers denied the claim based upon failure to give timely notice of the injury. The employee saw two medical doctors and a chiropractor shortly after his injury. Their records contained no reference to a work injury; one stated that the injury had happened at home. The trial court found that the employee did not provide timely notice of his alleged injury and, alternatively, that he failed to sustain his burden of proof concerning causation. The employee has appealed from those findings. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/wausau_021611.pdf

TWCA Reviews Whether an Employee was Permanently Disabled

WYATT JOHNSON v. VENTURE EXPRESS, INC. ET AL. (TWCA February 16, 2011)

The employee filed a workers' compensation claim against the employer for injuries sustained in a trucking accident. The trial court ruled that the employee was permanently and totally disabled as a result of the accident and entitled to full benefits. The employer appealed, alleging that the trial court erred in finding the employee permanently and totally disabled. The appeal was referred to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51. Because the evidence does not preponderate against the findings of fact made by the trial court, the judgment is affirmed.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/johnsonw_021611.pdf

Court Reviews Whether Plaintiffs Complied with the TCA’s Notice Requirements in a Medical Malpractice Case

KARAH and RYAN DePUE, et al., v. CHARLES D. SCHROEDER, et al. (Tenn. Ct. App. February 15, 2011)

Plaintiffs filed their Complaint alleging medical malpractice against numerous healthcare providers on May 26, 2009. They alleged that they had given the notice requirements of Tenn. Code Ann. section 29-26-121(a) prior to April 8, 2009 to the defendants. The defendants filed several motions, including motions for summary judgment, stating that plaintiffs failed to comply with the notice requirements of Tenn. Code Ann. section 29-26-121. The record establishes that plaintiffs did not give the requisite notice, "at least 60 days before the filing of their Complaint". In response to the motions for summary judgment the Trial Court excused compliance with the code section and defendants appealed. On appeal, we reverse the holding of the Trial Court on the grounds that non-compliance with the code section could only be excused upon the showing of extraordinary cause.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/depuek_021511.pdf

MCCLARTY dissenting
http://www.tba2.org/tba_files/TCA/2011/depuek_DIS_021511.pdf

Court Reviews Apportionment of Fault in a Wrongful Death Case Against the City of Clinton

CURTIS ROBIN RUSSELL, ET AL. v. ANDERSON COUNTY, ET AL. (Tenn. Ct. App. February 11, 2011)

This is the second appeal of this wrongful death action, arising from a pedestrian versus motor vehicle collision that fatally injured a seven-year-old child at a downtown Clinton intersection.

The action was filed pursuant to the Tennessee Governmental Tort Liability Act ("GTLA"), Tenn. Code Ann. section 29-20-101 et seq., against the City of Clinton ("the City") by plaintiffs Curtis Robin Russell and Dorothy Louise Russell as next of kin of the decedent, their son Curtis Tyler Russell. The Russells settled with the driver of the vehicle, Ladislav Misek ("Mr. Misek"), who was subsequently dismissed as a party-defendant from the lawsuit. The trial court in the first trial entered judgment after a nonjury trial, apportioning equivalent liability to Mrs. Russell and the City.

On appeal, this court held that: (1) the trial court committed reversible error when it failed to rule on the fault to be attributed to Mr. Misek; and (2) material evidence existed for the culpability and fault to be assigned to Mr. Misek. On remand, the trial court altered its judgment, attributing 45% of the fault each to Mrs. Russell and the City and 10% to Mr. Misek. The City appealed. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/russellc_021111.pdf

Court Reviews Whether Bank Created or Maintained a Dangerous Condition that Led to Plaintiff's Fall into Curbside Shrubbery

KATHY YOUNG ET AL. v. FIRST BANK OF TENNESSEE (Tenn. Ct. App. January 31, 2011)

Kathy Young ("the plaintiff") stepped backward onto an elevated curb as she opened the driver's door of her vehicle to leave the parking lot of First Bank of Tennessee. She was injured when she tripped over the curb and fell into the shrubbery that bordered the parking lot. She and her husband filed this action alleging that First Bank was negligent in creating or maintaining a dangerous condition. First Bank filed a motion for summary judgment which the trial court granted. The plaintiff appeals. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/youngk_013111.pdf

TWCA Reviews Whether Employee was Permanently and Totally Disabled in a Trucking Accident

WYATT JOHNSON v. VENTURE EXPRESS, INC. ET AL. (TWCA January 28, 2011)

The employee filed a workers' compensation claim against the employer for injuries sustained in a trucking accident. The trial court ruled that the employee was permanently and totally disabled as a result of the accident and entitled to full benefits. The employer appealed, alleging that the trial court erred in finding the employee permanently and totally disabled.

The appeal was referred to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51. Because the evidence does not preponderate against the findings of fact made by the trial court, the judgment is affirmed.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/johnsonw_012811.pdf

TWCA Reviews Trial Court’s Choice of IME Rating over the Treating Physician’s Impairment Rating

DOROTHY MICHAUD v. REHAB CARE GROUP (TWCA January 27, 2011)

The employee sustained a compensable injury to her shoulder. As a result of her medical restrictions, she was unable to return to work at her previous job. The trial court adopted the impairment rating assigned by the physician conducting the employee's Independent Medical Examination over that of the treating doctor and awarded 48% permanent partial disability to the body as a whole. The employer appealed. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/michaudd_012711.pdf

TN Supreme Court Reviews Whether Claims Brought in a Wrongful Death Suit Were Based Upon Medical Malpractice or Ordinary Negligence

ESTATE OF MARTHA S. FRENCH v. STRATFORD HOUSE ET AL. (Tenn. January 26, 2011)

The administratrix of the estate of the deceased brought this wrongful death suit against the defendant nursing home and its controlling entities, alleging damages as the result of ordinary negligence, negligence per se, and violations of the Tennessee Adult Protection Act.

The trial court granted the defendants' motion for partial summary judgment, holding that the Tennessee Medical Malpractice Act applied to the ordinary negligence claims, thereby precluding allegations of negligence per se or violations of the Tennessee Adult Protection Act. The trial court also dismissed a claim for punitive damages. The Court of Appeals affirmed, but vacated the portion of the order dismissing the punitive damages claim. This Court granted the administratix's application for permission to appeal in an effort to clarify the standards governing nursing home liability and to resolve a conflict in the decisions rendered by the Court of Appeals.

We hold that, because the administratrix of the estate of the deceased has alleged violations of the standard of care pertaining to both medical treatment and routine care, she has made claims based upon both medical malpractice and ordinary negligence. Further, she may offer proof of negligence per se and violations of the Tennessee Adult Protection Act as support for her ordinary negligence claims. We affirm the Court of Appeals' reinstatement of the punitive damages claim. The judgment of the Court of Appeals is, therefore, affirmed in part and reversed in part. The cause is remanded to the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/frenchm_012611.pdf

KOCH dissenting
http://www.tba2.org/tba_files/TSC/2011/frenchm_DIS_012611.pdf

Court Reviews Standing in a Case Involving the Amount of Fees Owed to an Attorney

LESA C. WILLIAMS, ET AL. v. RENARD A. HIRSCH, SR. (Tenn. Ct. App. January 26, 2011)

This application for an interlocutory appeal concerns a client's standing to seek a declaratory judgment regarding the amount of fees to be paid to one of the three attorneys who represented her in a personal injury suit. The trial court dismissed the client's complaint for lack of standing but granted the client permission to appeal pursuant to Tenn. R. App. P. 9. We concur with the trial court that an interlocutory appeal will prevent needless, expensive and protracted litigation. We also conclude that the client has a real interest in the litigation, and we thus reverse the trial court's order dismissing the client's complaint.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/williamsl_012611.pdf

Court Reviews the Validity and the Payment of a Hospital Lien

SHELBY COUNTY HEALTH CARE CORPORATION, D/B/A REGIONAL MEDICAL CENTER v. JOHN BAUMGARTNER, ELIZABETH BAUMGARTNER, A/K/A DARAY BAUMGARTNER, NATIONWIDE MUTUAL INSURANCE COMPANY, AND HARTFORD ACCIDENT AND INDEMNITY (Tenn. Ct. App. January 26, 2011)

This appeal involves the impairment of a hospital lien. The individual defendant was treated at the plaintiff hospital for injuries sustained in an automobile accident caused by a third-party tortfeasor. The patient incurred substantial medical expenses. The hospital filed a hospital lien for the amount of the patient's medical expenses.

Subsequently, the patient received insurance proceeds from his own insurance company under his uninsured motorist coverage, and another payment from the tortfeasor's insurance company. Nothing was paid to the plaintiff hospital. The hospital filed this lawsuit against both insurance companies for impairment of its hospital lien. The parties filed motions for summary judgment.

The trial court granted in part the hospital's motion for summary judgment. Against the patient's own insurance company, the hospital was awarded one-third of the monies the patient received. Against the tortfeasor's insurance company, the hospital was awarded an amount equal to the policy coverage limit.

The hospital now appeals, arguing that it was entitled to recover from both insurance companies jointly the reasonable cost of the hospital services rendered to the patient. The insurance companies also appeal, arguing that there was no impairment of the lien and that, if there was impairment, the hospital's recovery should have been limited to one-third of the payments made to the patient. We affirm in part and reverse in part, finding that the hospital's lien was valid and was impaired, but that the hospital can recover only for the damages caused by the impairment of its lien.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/baumgartnerj_012611.pdf

Court Reviews a Summary Judgment Ruling in a Medical Battery Case

MARK W. URLAUB, as next of kin and Executor of the Estate of BERTHA WORLEY URLAUB v. SELECT SPECIALTY HOSPITAL-MEMPHIS, INC., ET AL. (Tenn. Ct. App. January 20, 2011)

Plaintiff filed this medical battery suit on behalf of his deceased mother and named as defendants the nephrologist who ordered an allegedly unauthorized hemodialysis procedure, another treating physician, and the hospital where she was treated. The trial court granted summary judgment to the treating physician who did not order the procedure and to the hospital. Plaintiff appeals. We find that both of these defendants were entitled to summary judgment and therefore affirm the trial court's decision.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/urlaubm_012011.pdf

Court Reviews A Case Involving an Employee’s Accident on a Railroad

CLAYTON WARD v. ILLINOIS CENTRAL RAILROAD COMPANY (Tenn. Ct. App. January 20, 2011)

Plaintiff, a railroad employee, filed this lawsuit pursuant to the Federal Employers' Liability Act, alleging that his left ankle injury was caused by his working conditions. The railroad filed a motion for summary judgment based upon the three-year statute of limitations. The trial court denied the motion for summary judgment but subsequently granted the railroad's motion for permission to seek an interlocutory appeal. We granted the railroad's application for an interlocutory appeal and now affirm the trial court's decision to deny the motion for summary judgment.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/wardc_012011.pdf

Court Reviews the Appropriation of Fault in a Case Involving a Bicycle Accident

ROBERT D. GRAY v. ANDY B. ROTEN, II and GARY B. ROTEN (Tenn. Ct. App. January 18, 2011)

This case involves an accident between a bicycle and a pick-up truck. Appellant was struck by Appellee's truck when Appellant failed to obey a stop sign and rode his bicycle into traffic. The trial court found that Appellant was sixty percent at fault for the accident, and, pursuant to a comparative fault analysis, entered judgment for Appellee.

On appeal, we find that the trial court erred in applying a pedestrian statute to a bicyclist, but that this error was harmless in light of our finding that Appellant was negligent per se in failing to obey the stop sign, and/or in failing to yield to oncoming traffic. We conclude that the evidence preponderates in favor of the trial court's finding that Appellant was at least sixty percent at fault so as to foreclose any recovery under a comparative fault analysis. Affirmed for the reasons discussed herein.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/grayr_011811.pdf

Court Reviews Whether Plaintiff Received Sufficient Time to Procure Representation and Expert Testimony in a Medical Malpractice Case

KATHY D. PARTEE V. JAIME VASQUEZ, M.D. (Tenn. Ct. App. January 6, 2011)

A woman who suffered prolonged bleeding, pain and disabling injury after gynecological surgery filed a pro se malpractice suit against the doctor who performed the surgery.

The defendant filed a motion for summary judgment, accompanied by an affidavit in which he testified that in his treatment of the plaintiff he complied at all times with the relevant standard of acceptable professional practice. Unfortunately for the plaintiff, she was unable to find an expert witness to controvert that affidavit.

The trial court granted the plaintiff several continuances to give her the opportunity to procure representation and expert testimony, but when she was unable to do so, the trial court granted the defendant's motion. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/parteek_010611.pdf

Court Reviews Whether the Trial Court Properly Denied a Rule 60.02 Motion in a Case involving an Automobile Accident

RICHARD A. WILLETTE, JR. v. CARROLL G. HULSE ET AL. (Tenn. Ct. App. October 7, 2010)

This action arises out of a vehicular accident in which the plaintiff sustained serious personal injury. A complaint was filed on behalf of the pro se plaintiff; however, the complaint was not signed by the plaintiff or a licensed attorney as required by Tenn. R. Civ. P. 11.01.

The plaintiff subsequently retained counsel, but the plaintiff's attorney failed to make a written appearance until months later. Moreover, neither the attorney nor the plaintiff signed the complaint to cure the signature deficiency until after the case was dismissed and the statute of limitations had run.

The plaintiff then filed a Rule 60.02 Motion for Relief from Judgment or Order based on Excusable Neglect. That motion was denied and this appeal followed. We have determined that the trial court did not abuse its discretion in denying the plaintiff's Rule 60.02 motion; therefore, we affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/willetter_100710.pdf

Tennessee's Proposed Med Mal Reform Not Likely To Benefit Patients

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.

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

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

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

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

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