Dan Berexa's Tennessee Law Blog

Legislature Passes Amendments to Tennessee Medical Malpractice Reform Bill

Last year the General Assembly enacted the medical malpractice reform bill which took effect on October 1, 2008. This week the Senate passed (SB 2109) which changes the notice and certificate of good faith provisions applicable to medical malpractice claims. 

The House passed the bill earier in the session and all indications are that the governor will sign the legislation. John Day provides a nice summary of the amendments in Day on Torts.

Dan Berexa
Nashville, Tennessee

AG's Take on What Will Happen if the Sun Goes Down on the Judicial Selection and Evaluation Commissions?

The Tennessee Judicial Evaluation Commission and the Judicial Selection Commission will cease to exist on June 30, 2009, absent intervening legislation to continue their existence and operation. What will happen if the General Assembly fails to act and either extend the life of the current commissions, or enact alternatives? How will appellate judges be appointed, evaluated and retained? How will trial court vacancies be filled prior to regular elections?

The Tennessee Attorney General issued an opinion last week which concludes as follows:  

1. Because there would be no statutory mechanism in place for the election of appellate judges upon the expiration of the two commissions, there could not be an election for appellate court judges in either 2010 or 2014. By virtue of Article VII, §5, of the Tennessee Constitution, incumbent appellate court judges would hold over pending further action of the General Assembly to determine the manner of the election of such judges. On the other hand, expiration of the two commissions would not change the current system for electing trial court judges. Incumbent trial court judges either seeking election in 2010 to the unexpired portion of an eight year term or reelection in 2014 to a full eight-year term could stand for election by the qualified voters of their districts in August of 2010 and 2014, respectively.

2. Vacancies occurring in the appellate courts on or after July 1, 2009, could not be filled because there would be no operative statutory procedure for the filling of vacancies after June 30, 2009. Furthermore, any vacancy occurring before July 1, 2009, on which the Judicial Selection Commission had not completed its work by June 30 could not be filled. Vacancies occurring in the trial courts could only be filled at the next regular August election occurring more than 30 days after the vacancy arose. The provisions of current law directing the governor to appoint persons to fill trial court vacancies on an interim basis before the next regular August election would be inoperative, and, thus, no such appointments could occur.

3. If an incumbent appellate court judge decided not to seek reelection in 2014, there would be no operative statutory procedure to appoint a new judge. Accordingly, the incumbent appellate court judge would hold over in the office by virtue of Article VII, §5, of the Tennessee Constitution. If the incumbent appellate court judge did not desire to hold over, he could choose to resign his office. That action would create a vacancy. However, because there would be no operative statutory procedure for filling a judicial vacancy on the appellate courts, the vacancy could not be filled. By contrast, if an incumbent trial court judge decided not to seek reelection in 2014 and failed to take the steps necessary to qualify as a candidate for reelection, his successor would be elected at the August election to the eight-year term commencing September 1, 2014, by the qualified voters of the district.

Absent legislative action, it will be left to the Tennessee Supreme Court to sort out the confusion that follows. As the June 30 deadline approaches, look for a strong push for the General Assembly to continue the "Tennessee Plan", with or without some tweaking.

Dan Berexa
Nashville, Tennessee

  

Adobe Acrobat 9 for Lawyers

The TBA's Law Tech 2009 was a success! Rick Borstein's presentation, "Adobe Acrobat for Lawyers," contained a great overview of the features of Adobe Acrobat 9. The redaction tools, document comparison, Bates numbering and the notes and commenting tools are particularly helpful in document-intensive cases. I recently upgraded from Acrobat Standard 6 to Pro 9. Rick's Acrolaw Blog is full of helpful information, including video which explain how to use the features of Acrobat 9.

Dan Berexa
Nashville, Tennessee

Bad Offer of Judgment Can Perpetuate Litigation

Drafting an offer of judgment can be tricky business. In State ex rel. Landenberger v. Project Return, Inc. the court warns:  

It has been said that, “[i]f there is any occasion in civil litigation which calls for caution and care by counsel, it is the drafting of a Rule 68 offer.” (citation omitted).

The case contains an excellent discussion of Rule 68, its shortcomings and how to avoid getting embroiled in litigation over the terms of an offer of judgment.  In Landenberger, a $5000 offer of judgment, which was intended to conclude the litigation, spawned a battle to set aside the plaintiff's acceptance and resulted in an appeal.

Be careful.

Dan Berexa
Nashville, Tennessee

Free Handbook on Appellate Practice in Tennessee

There is a very handy resource to keep nearby if you are working on a Tennessee State Court appeal. The Appellate Practice Committee of the Nashville Bar Association publishes a great handbook entitled Appellate Advocacy: A Handbook on Appellate Practice in Tennessee, Third Edition (June 30, 2006). It is comprehensive, free and available on-line. The introduction states as follows:

The purpose of this handbook is to provide a resource for answering questions about appellate practice as they actually occur to practitioners—as questions that arise in an actual case. Thus, the book retains its original question and answer format. Though the Rules of Appellate Practice may suggest an answer to a question, understanding which rules to apply and how each rule interrelates with other rules may cause confusion. Since the goal in all appeals, and indeed, in law in general, is for cases to be decided on their merits, this Handbook is intended to aid practitioners in preparing their cases so that the merits are the focus of their appeal.

The handbook is well organized and contains extensive citation to relevant reported and unreported decisions on appellate procedure. If you have never reviewed the guide I highly recommend that you take a look.

Dan Berexa
Nashville, Tennessee

Theories of Liability Against Trucking Shippers and Brokers

John Day's blog (Day On Torts), which is an excellent resource, brought attention to "But I Didn't Do It!" Expanding Theories of Vicarious Liability, an article by Robert T. Franklin discussing theories of liability in personal injury cases against trucking brokers, shippers and equipment owners. The article, which was published in the Federation of Defense Corporate Counsel Quarterly, is a worthwhile read if you pursue or defend trucking cases.

Dan Berexa
Nashville, Tennessee 

iPhone or Storm or Bold?

If you are trying to decide whether the iPhone or Storm is better for you click here.

UPDATE: If you are considering a new smartphone, The Mac Lawyer  has a guest post suggesting the Blackberry Bold is the best choice. Look for The Mac Lawyer (Ben Stevens) at the Tennessee Bar Association's LawTech 2009 program in Nashville on February 20.

Dan Berexa 
Nashville, Tennessee

Insurer Must Pay $34,000 Bill Under $5000 Med Pay Coverage - Hospital Lien Statute Can Create Liability for Med Pay Insurer

If you prosecute or defend personal injury actions, you need to be aware of  Shelby County Health Care Corp. v. Nationwide Mutual Ins. Co. The facts are simple. "The Med" is the hospital that treated Holt after an automobile accident. The hospital bill was close to $34,000. The Med filed a hospital lien with the Shelby County Circuit Court Clerk for the total amount of its bill. Holt was insured by Nationwide and had $5,000 worth of medical payments ("med pay") coverage. Nationwide paid a $1300 ambulance bill and then paid the remaining $3,700 of the med pay limits toward The Med’s bill. The Med sued claiming Nationwide impaired its lien by not paying the entire $5000 to the hospital.

The Court of Appeals’ holding: Nationwide impaired The Med’s lien by applying some of the med pay proceeds to the ambulance bill. As a result, Nationwide is liable for the entire hospital bill (close to $34,000) pursuant to Tenn. Code Ann. § 29-22-104(b)(1).

Assuming the Western Section’s February 6 opinion stands, the end result will be that Nationwide will pay close to $35,000 despite the fact that its med pay coverage was capped at $5,000. Ouch!

Insurance companies paying under the med pay provisions of their policies are going to have to be very careful to determine if any hospital liens were filed before paying any med pay benefits. The only way to be certain whether a lien has been perfected is to search for liens in the office of the circuit court clerk in the county in which the patient resides. (The statute also requires the hospital to file a lien in the county where the treatment was rendered).

If the Tennessee Supreme Court does not accept and reverse this case, expect the insurance industry to push for an amendment to the hospital lien statutes, Tenn. Code Ann. § 29-22-101, et seq. to avoid the virtually unlimited liability that can arise under this scenario. The other option may be to try to eliminate med pay coverage altogehter.

Dan Berexa
Nashville, Tennessee

What's new for 2009? Web 2.0. Learn about Macs from Ben Stevens aka "The Mac Lawyer." Rick Borstein of Adobe Teaches Acrobat 9. All at LawTech 2009: Marketing, Management and Technology Solutions for Your Firm - February 20, 2009 in Nashville

The Tennessee Bar Association's Law Office Technology and Management Section has put together a great program this year for the annual LawTech event which will take place at the Doubletree Hotel in Nashville, Tennessee on Friday February 20, 2009. 

Here is a summary of the 7 hour CLE program:

In the morning, you will learn about legal technology trends for 2009 and how to handle ethical dilemmas created by technology in this "age of Myspace.com and micro-recorders." Then, Rick Borstein, author of the well known blog, "Acrobat for Legal Professionals," will discuss how Adobe Acrobat can be used to improve your practice. In the afternoon, “PC” attorneys from small to mid-sized firms will enjoy a panel discussion regarding issues such as mobile security, data backup, and disaster planning. “Mac” attorneys, on the other hand, will be glad to know that Ben Stevens, publisher of the well known practice management blog, “The Mac Lawyer,”* has agreed to return to lead a panel discussion on Macs for Lawyers. Last but not least, Catherine Sanders Reach from the American Bar Association’s Legal Technology Resource Center, which publishes the popular Site-tation blog , will discuss how to use standard technology and the latest "Web 2.0" resources to market your practice and work more effectively on projects with colleagues, clients, co-counsel and, yes, even opposing counsel. Lunch is included with the program, and door prizes will be awarded at the conclusion of the seminar.

CLICK HERE TO REGISTER

I hope to see your there.

Dan Berexa
Nashville, Tennessee

Here is a summary of the 7 hour CLE program:

In the morning, you will learn about legal technology trends for 2009 and how to handle ethical dilemmas created by technology in this "age of Myspace.com and micro-recorders." Then, Rick Borstein, author of the well known blog, "Acrobat for Legal Professionals," will discuss how Adobe Acrobat can be used to improve your practice. In the afternoon, “PC” attorneys from small to mid-sized firms will enjoy a panel discussion regarding issues such as mobile security, data backup, and disaster planning. “Mac” attorneys, on the other hand, will be glad to know that Ben Stevens, publisher of the well known practice management blog, “The Mac Lawyer,”* has agreed to return to lead a panel discussion on Macs for Lawyers. Last but not least, Catherine Sanders Reach from the American Bar Association’s Legal Technology Resource Center, which publishes the popular Site-tation blog , will discuss how to use standard technology and the latest "Web 2.0" resources to market your practice and work more effectively on projects with colleagues, clients, co-counsel and, yes, even opposing counsel. Lunch is included with the program, and door prizes will be awarded at the conclusion of the seminar.

CLICK HERE TO REGISTER

I hope to see your there.

Dan Berexa
Nashville, Tennessee

The Tennessee Supreme Court (Begrudgingly) Holds that Liability Insurance is not Discoverable

The Tennessee Supreme Court released its opinion in Thomas v. Oldfield, answering the question of whether information regarding a defendant's liability insurance is discoverable under Rule 26.02(1) of the Tennessee Rules of Civil Procedure.  This was a case of first impression for the court. The holding: 

In this case, the parties concede that information concerning the defendants’ liability insurance coverage would be inadmissible at trial pursuant to Tennessee Rule of Evidence 411. However, the plaintiff does not argue that discovery of this inadmissible evidence “appears reasonably calculated to lead to the discovery of admissible evidence.” After a considered review, we are unable to conclude that discovery of this information appears reasonably calculated to lead to the discovery of admissible evidence. Therefore, the existence and extent of the defendants’ liability insurance is not subject to discovery in this case.

However, the court, via the opinion by Chief Justice Holder, noted a displeasure with the current rule and gave encouragement to future efforts to amend the Tennessee Rules of Civil Procedure to permit the discovery of insurance information:   

While we are constrained by both the language and the history of current Rule 26.02 from holding that information concerning the defendants’ liability insurance coverage is subject to discovery, we are convinced that the time has come to align Tennessee with the rules in forty-eight states and the federal rule in allowing discovery of this information. 

Look for a push this year to amend the language of Rule 26 to permit the discovery of insurance information.  

Dan Berexa
Nashville, Tennessee