Tennessee Medical Malpractice Bulletin

Posted 12/18/2008

The Tennessee Court of Appeals in Pedro and Griselda Valadez, individuals and as parents and next Friends of Fatima Valadez, a minor v. Newstart, LLC, et al affirmed the trial court’s grants of summary judgments, finding that the cause of action for loss of chance is not recognized in Tennessee. The Plaintiffs had alleged that the Defendants failed to timely notify them that their unborn child was afflicted with spina bifida such that they could participate in a clinical trial.

Posted 10/03/2008

“One of out six liability claims against health care entities is associated with infections, injuries and other conditions acquired at the hospital, according to a new report. The 2008 Hospital Professional Liability and Physician Liability Benchmark Analysis, released Monday, found that hospital-acquired infections, hospital-acquired injuries, objects left in the body after surgery and pressure ulcers represent more than 12% of hospitals’ liability costs. After Oct. 1, the Baltimore-based Centers for Medicare and Medicaid Services no longer will reimburse providers for 10 categories of hospital-acquired conditions and medical errors, known as ‘never events’ because they are considered preventable and should never happen. Risk managers are concerned that this change—and the resulting increased publicity surrounding these hospital-acquired ailments—will trigger an increase in hospital professional liability claims, according to the study. Several insurers have announced they will cease reimbursing for such errors, including Hartford, Conn.-based Aetna Inc., Chicago-based Blue Cross and Blue Shield of Illinois, Bloomfield, Conn.-based CIGNA HealthCare and Indianapolis-based WellPoint Inc.”

Zack Phillips, Business Insurance, 9-30-08

Posted 9/12/2008

Tenn. Code Ann. 29-26-121 and Tenn. Code Ann. 29-26-122 were passed by the Tennessee Legislature on April 24, 2008 and signed into law by Governor Bredesen on May 15, 2008. The new statutes take affect on Ocotober 1, 2008. The highlights of these important changes to the medical malpractice statutes are as follows:

29-26-121 requires the plaintiff to give written notice of his/her potential claim for medical malpractice at least sixty (60) days before the filing of a lawsuit.

29-26-122 requires the plaintiff or plaintiff’s counsel to file a Certificate of Good Faith stating they have consulted with one or more experts who have provided a signed written statement confirming that The plaintiff or plaintiff’s counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they:

(A) Are competent under § 29-26-115 to express opinion(s) in the case; and

(B) Believe, based on the information available from the medical records concerning the care and treatment of the plaintiff for the incident(s) at issue, that there is a good faith basis to maintain the action consistent with the requirements of § 29-26- 115; or

(2) The plaintiff or plaintiff’s counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they:

(A) Are competent under § 29-26-115 to express opinion(s) in the case; and

(B) Believe, based on the information available from the medical records reviewed concerning the care and treatment of the plaintiff for the incident(s) at issue and, as appropriate, information from the plaintiff or others with knowledge of the incident(s) at issue, that there are facts material to the resolution of the case that cannot be reasonably ascertained from the medical records or information reasonably available to the plaintiff or plaintiff’s counsel; and that despite the absence of this information there is a good faith basis for maintaining the action as to each defendant consistent with the requirements of § 29-26- 115.

To read the actual statutes and learn about the penalties for failure to conform, the impact on the statutes of repose and limitation, and production of medical records, simply click on the links above.

Posted 7/30/2008

In companion Tennessee medical malpractice cases, Amanda Lynn Dewald, et al. v. HCA Health Services of Tennessee, et al. and Marvin M. Boren ex rel. Dorothy Faye Boren v. Mark T. Weeks, M.D., et al., the Tennessee Supreme Court analyzed hospital liability for the negligent or wrongful acts of independent contractor physicians, stating that to hold a hospital vicariously liable for the negligent or wrongful acts of an independent contractor physician, a plaintiff must show that (1) the hospital held itself out to the public as providing medical services; (2) the plaintiff looked to the hospital rather than to the individual physician to perform those services; and (3) the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee. See, e.g., Sword, 714 N.E.2d at 152; Diggs, 628 S.E.2d at 862; Simmons, 533 S.E.2d at 322.

Tennessee Personal Injury Bulletin

Posted 12/18/2008

In Ivy Joe Clark and Vicky Clark, Individually and as Husband and Wife v. Joyce Ann Shoaf, et al, a personal injury auto accident case, the Tennessee Court of Appeals affirmed the trial court’s ruling that the carrier was liable for damages under Plaintiff/Claimant’s uninsured/underinsured motorist insurance coverage where Defendant’s motor vehicle insurance carrier become insolvent during the pendency of the appeal of the matter.

Posted 12/08/2008

In Ronald E. Crook v. Landon Despeauz, the Tennessee Court of Appeals affirmed the trial court’s decision to grant defendant’s motion for summary judgment, ruling that the plaintiff diabetic’s intoxication and faulty tires was basis for holding him at fifty percent responsible for his own injuries, regardless of his claim that the defendant ran a stop sign.

Posted 12/08/2008

In Emily N. Williams v. Charles Cliburn, Plaintiff was involved in an automobile accident in Wilson County, Tennessee, on December 4, 2004. She subsequently filed suit against Defendant in Wilson County General Session Court on December 2, 2005; trial was set for January 27, 2006. On January 21, 2006, the judge of the General Sessions Court signed an order, which had been sent by facsimile copy to the clerk, allowing Plaintiff to take a voluntary non-suit of her action; the order was entered by the clerk on January 23, 2006. On January 27, 2006, the General Sessions Court judge signed the original order allowing Plaintiff’s non-suit, which had been sent by mail; this order was entered on January 30, 2006. After entry, counsel for Plaintiff received a copy of the order which had been entered on January 30. Although “Notice of Entry Requested” was prominently stated on the order sent by facsimile, the Plaintiff never received notice from the clerk that the order was entered on January 23, 2006; only that the order was entered on January 30, 2006. The Plaintiff appealed the dismissal of her personal injury action as barred by the savings statute, Tenn. Code Ann. Section 28-1-105. The Tennessee Court of Appeals, holding that the period for refiling the action began to run from the date of entry of the faxed Order of Non-suit and not the date of entry of the hard copy of the order, but since the Plaintiff was not given notice of entry of the faxed order as requested by counsel, reversed the trial court’s dismissal of this action and remanded the case for further proceedings.

Posted 11/11/2008

In Barbara Stricklan and husband, Reed Stricklan, v. Johnny C. Patterson, the Tennessee Court of Appeals, in an appeal by the Defendant of a verdict for Plaintiffs for damages sustained in an auto accident, affirmed the trial court’s judgment, ruling that there was sufficient and competent proof to support the plaintiff’s claim for medical expenses, the plaintiff’s treating physician could offer an opinion on permanent impairment, and the jury verdict was not contrary to the weight of evidence.

Posted 10/22/2008

In DWIGHT BARBEE, as Administrator of the Estate of Faye Glenn v. KINDRED HEALTHCARE OPERATING, INC.; KINDRED HEALTHCARE, INC.; KINDRED NURSING CENTERS EAST, LLC; KINDRED HOSPITALS LIMITED PARTNERSHIP; KINDRED NURSING CENTERS LIMITED PARTNERSHIP d/b/a RIPLEY HEALTHCARE AND REHABILITATION CENTER; NELLIE WILSON, in her capacity as Administrator of Ripley Healthcare and Rehabilitation Center; N. JEANNETTE McKINION, in her capacity as Administrator of Ripley Healthcare and Rehabilitation Center; and JONATHAN OWENS, in his capacity as Administrator of Ripley Healthcare and Rehabilitation Center, the Tennessee Court of Appeals reversed the lower courts order compelling arbitration when it was determined that the son was not his deceased mother’s agent and had no apparent authority to sign admission documents containing an arbitration clause.

Posted 10/15/2008

In GILBERT MOHR v. DAIMLERCHRYSLER CORPORATION, the Circuit Court of Shelby County awarded $3,450,000 in compensatory and $48,778,000 in punitive damages for the death of the driver, and $1,100,000 in compensatory damages for the death of the front-seat passenger. DaimlerChrysler appealed, asking the Tennessee Court of Appeals to reverse the judgment of liability or to grant an new trial on all issues. The defendant manufacturer also argued, in the alternative, that the judgment was excessive. The Tennessee Court of Appeals affirmed the findings of liability and for compensatory and punitive damages, as well as the amount awarded for compensatory damages. The Court, however, reduced the punitive damages awarded to $13,800,000.

Posted 10/13/2008

In Roy S. Lawrence, Et Al. v. HCA Health Services of Tennessee, Inc. d/b/a Summit Medical Center, Et Al, a premises liability appeal from the Circuit Court for Davidson County, the Court of Appeals of Tennessee at Nashville affirmed the lower court’s opinion, ruling that the major tenant of the building owed no duty of care to the elderly plaintiff who was injured when automatic doors to the building struck him causing him to fall. The Tennessee Court of Appeals also ruled that the property management company did not create the alleged dangerous or defective condition and it did not have actual or constructive knowledge that a dangerous or defective condition existed. The Tennessee Court of Appeals therefore upheld the trial court’s dismissal of claims against both defendants.

Posted 10/13/2008

The Supreme Court of Tennessee, in the wrongful death case of Diane Downs Ex Rel. Ryan Cody Downs v. Mark Bush Et Al., reversed the judgment of the Court of Appeals and remanded the case to the trial court for further proceedings. The central issue in the case is the nature of the legal duty, if any owed by the defendants who allegedly, while consuming alcohol with defendant, placed the decedent in the bed of a pickup truck. The decedent then exited the pickup truck and was killed when he was stuck by two vehicles. The Tennessee Supreme Court found that there are genuine issues of material fact as to whether the defendants placed the decedent in the bed of the truck and whether the decedent was helpless, and whether the defendants took charge of the decedent. The Court also held that none of the defendants stood in any special relationship with the decedent and therefore did not assume any affirmative duty to aid or protect him.

Posted 10/04/2008

In Sammy L. Halliburton v. Town of Halls, the Tennessee Court of Appeals affirmed the trial’s court opinion that the Town of Halls, who maintained the local baseball field, was immune from liability (under the Tennessee Governmental Tort Liability Act) to a citizen that was injured by an errant baseball. The Tennessee Court of Appeals further affirmed the lower court’s ruling that the Town of Halls was immune from liability because it had engaged in a discretionary function and that the baseball field did not constitute a nuisance.

Posted 10/03/2008

“In the past 11 years, drug companies have had to pull 23 unsafe drugs from the market, even though all had won approval from the US Food and Drug Administration. In spite of this shoddy record of oversight, the companies want to be protected from lawsuits by victimized patients or their survivors on the grounds that FDA approval should protect them from liability. A Supreme Court that has proven only too willing to do the bidding of industry could give the companies what they are looking for. If it does, it will be doing just what conservatives often accuse judges of doing – legislating from the bench. ‘This is a radical restructuring of the American civil justice system,’ according to Georgetown law professor David Vladeck. The case before the court is Wyeth v. Levine. Diana Levine is a 62-year-old Vermont musician whose arm had to be amputated after an anti-nausea medication caused gangrene. Levine settled a suit against the clinic where the drug was administered and then won $6.7 million in a suit against drug maker Wyeth, on the grounds that its label did not sufficiently warn against the injection method used by the clinic. When the court hears the case in November, Wyeth wants justices to accept its argument that FDA approval of the label implicitly pre-empts any state suits. Such immunity would be a new boon to the industry. Merck is currently offering almost $5 billion to settle 50,000 suits related to its drug Vioxx. In 2005 alone, 17,000 suits were filed against drug-industry products.”

Editorial, Boston Globe, 9-27-08

Posted 10/03/2008

“Drug maker Cephalon Inc., completing a previously announced settlement, will pay $425 million for illegally marketing a highly addictive lollipop painkiller and two other drugs for non-approved uses. Federal prosecutors also announced Monday that Cephalon, as planned, will plead to a criminal misdemeanor for its off-label marketing. ‘This company … put patients at risk for nothing more than the bottom line,’ Acting U.S. Attorney Laurie Magid said at a news conference. Doctors can prescribe drugs for uses other than what has been approved by the U.S. Food and Drug Administration, but pharmaceutical companies cannot promote such ‘off-label’ use in their marketing. One of Cephalon’s drugs, Actiq, was marketed to doctors for maladies including migraines and injuries when the fentanyl lollipop is a highly addictive narcotic approved only for cancer patients with severe pain, authorities said. Cephalon encouraged off-label marketing at lavish physician-education conferences and through its compensation and bonus structure, authorities said. The company also had its sales force call on doctors who would not normally prescribe the three drugs, they said.”

Maryclaire Dale, Associated Press, 9-29-08

Posted 10/03/2008

In Carl Anderson, Ed Howell Anderson, and Gary Anderson v. U.S.A. Truck, Inc., and Arkansas Corporation, and Lonzie E. Neal, a vehicular accident, personal injury case, the three plaintiffs, a father and two grown sons, were riding in a truck pulling a trailer when 18-wheeler driven by the individual defendant rear-ended the plaintiffs. The plaintiffs filed this lawsuit against the defendants for injuries sustained in the accident. The Plaintiffs sought punitive damages, asserting that the Defendants were grossly negligent and/or reckless. The Defendants denied liability on grounds of causation and comparative negligence. They claimed that the Plaintiffs had been traveling too slow on the interstate highway, in violation of statutes regarding minimum speed regulation (Tenn. Code Ann. § 55-8-154(a)). They also contended that the Plaintiffs’ trailer was not properly lit and not properly secured, in violation of statutes regarding lighting (Tenn. Code Ann. § 55-9-405)and securing trailers (Tenn. Code Ann. § 55-7-114). The Defendants argued that the three Plaintiffs were participating in a joint venture and that, therefore, any negligence of Mr. Anderson as the driver should be imputed to Carl and Gary.
In the jury trial, after the close of the plaintiffs’ proof, the trial court directed a verdict in favor of the defendants on the issue of punitive damages. At the conclusion of the six-day trial, the jury awarded two of the plaintiffs $10,000 each in damages and awarded the other plaintiff $200,000. Fault for the accident was apportioned 70 percent to the defendant and 30 percent to the driver of the plaintiffs’ truck, so the plaintiffs’ awards were reduced by 30 percent. The trial court denied the plaintiffs’ motion to for additur or for a new trial. The plaintiffs now appeal, claiming that the issue of punitive damages should have been presented to the jury, that the amount of the jury’s awards were de minimus and outside the realm of reasonableness, and that there was no material evidence to support the jury’s verdict. The Tennessee Court of Appeals affirmed the trial court’s ruling, finding inter alia that the trial court did not err in directing a verdict on the issue of punitive damages, and that material evidence supported the jury’s verdict.

Posted 10/01/2008

In William Burse and wife, June Burse v. Frank W. Hicks, III, et al, Burse filed a personal injury negligence complaint against Appellant/Hicks alleging that Appellant/Hicks had negligently injured him in an automobile accident. Appellant/Hicks answered the complaint, in part, by alleging that the accident was caused by the negligence of Davis, the Appellee. At the time of the accident, Appellee and Burse were standing next to each other while preparing for a Christmas parade. Appellant/Hicks and Burse both alleged that Appellee/Davis contributed to Burse’s injuries by standing next to Burse in such a way as to block Appellant/Hicks view of Burse, thereby causing Appellant/Hicks to strike Burse. Appellee/Davis moved for summary judgment alleging that he owed no duty to Burse and that he was not the cause of the accident. The trial court granted Appellee/Davis’ motion for summary judgment and the Tennessee Court of Appeals upheld that ruling.

Posted 9/30/2008

In Mary Helen White v. BI-LO, LLC, D/B/A BI-LO , the Plaintiff’s case for personal injury was dismissed by the trial court because the Plaintiff failed to establish the elements of a premises liability action and there were no genuine issues of material fact. Plaintiff appealed, arguing that there was a sufficient dispute of material fact over whether the grocery store had actual or constructive notice that a dangerous condition existed. The Tennessee Court of Appeals affirmed the trial court because there was no evidence in the record that the grocery store had actual or constructive notice of the dangerous condition.

Posted 9/23/2008

In the Tennessee personal injury case, Timothy Sanders v. CB Richard Ellis, Inc, the Tennessee Court of Appeals upheld the trial court’s ruling, stating that in this premises liability case where the plaintiff sued the defendant for injuries sustained in a fall on an icy parking lot that was maintained by defendant, the material facts of the case were undisputed and, on principles of comparative fault, the plaintiff was at least 50% liable for the injuries he sustained in that plaintiff (1) ignored the open and obvious danger when he undertook to walk inside the bank, (2) decided not to use the drive-through window in order to avoid traversing the ice, and (3) undertook a risk that a reasonable person would have avoided.

Posted 9/23/2008

On July 24, 2008 Tennessee’s Supreme Court upheld an award of $18.4 million in damages against DaimlerChrysler Corp. and a Nashville defendant. In the Tennessee personal injury case, Flax v. DaimlerChrysler, the Court ruled that a faulty seat design led to the death of a baby in a June 30, 2001 auto accident. This overturns a Tennessee Court of Appeals decision that threw out $13.4 million in punitive damages for the parents.

In November 2004, a jury in Davidson County Circuit Court found the defendant and DaimlerChrysler jointly liable for the baby’s death and awarded damages of $105 million, but the Judge reduced that amount to $27.5 million.

In their suit, the parents claimed that ChryslerDaimler knew its seats would collapse backward in rear-end collisions but did nothing to correct the problem. On appeal, DaimlerChrysler argued that the evidence did not prove that it acted recklessly or intentionally in failing to make the seats safer.

In overturning the Tennessee Court of Appeals, Justice Janice Holder, writing for the majority, said there was “a wealth of evidence supporting the jury’s verdict.” She cited testimony that DaimlerChrysler “had received notice of children injured by yielding seatbacks as early as the mid-1980s”.

Posted 9/15/2008

The case of Patricia Ambrose v. Blythe Batsuk points out the importance of having a good expert to testify that the auto accident caused the personal injury. The physician/expert opinion must be made within a reasonable degree of medical certainty. Here, the plaintiff was allegedly injured in an auto accident and filed a personal injury lawsuit. Unfortunately, the trial court found that the expert could not testify with a reasonable degree of medical certainty that the auto accident caused the personal injury to the plaintiff. The appellate court affirmed.

Posted 7/30/2008

In the Tennessee personal injury case, Cheryl L. Gray v. Alex V. Mitsky, et al., the Court of Appeals of Tennessee at Nashville clarified the current law in Tennessee which holds the owner of a car responsible for the negligent driving of a household member:

The family purpose doctrine is a court-created legal fiction by which the owner of an automobile is held vicariously liable when the car is negligently driven by a member of the immediate household. The fiction is predicated on the assumption that the driver is implementing a “family purpose,” even if the driver is only using the automobile for his own pleasure or convenience. The car must be driven with the permission of the owner, but this may be inferred from very general circumstances. . . .

In order for the family purpose doctrine to apply in Tennessee, two requirements must be met, namely, that the head of the household maintains the vehicle for the purpose of providing pleasure or comfort to his or her family and the driver was using the vehicle at the time of the injury-producing accident in furtherance of that purpose and with either the express or implied permission of the owner. The true test is whether the driver was engaged in the owner’s business at the time of the accident, with business here meaning the furnishing of pleasure to the owner’s family. The family purpose doctrine applies to adults as well as to minors and is imposed as a matter of public policy.