Dan Berexa's Tennessee Law Blog

What Percentage of Tort and Medical Malpractice Cases Go to Trial in Tennessee?

The statistics compiled by the Tennessee Administrative Office of the Courts on the percentage of tort and medical malpractice cases that go to trial in Tennessee are as follows:

There were 11,085 cases filed and 11,247 cases concluded in the medical malpractice and tort categories in fiscal year 2008-2009. Of the 11,247 case dispositions during the year, 608 (5.4 percent) proceeded to trial. Jury trials accounted for 260 (42.8 percent) and non-jury trials accounted for 348 (57.2 percent) cases that proceeded to trial.

Source: Annual Report of the Tennessee Judiciary Fiscal Year 2008-2009 pg. 331

Dan Berexa
Nashville, Tennessee

Tenn Law Blog Top Ten List for 2008 - Developments in Personal Injury and Product Liability Law

In 2008 there were a number of significant developments relating to Tennessee personal injury and product liability law. Here are the Tenn Law Blog Top 10:

Click the links for additional discussion and the text of opinions and statutes.

1. 1.  Hannan v. Alltel Publishing Co. The Tennessee Supreme Court clarified, or arguably modified, the burden on a party moving for summary judgment. Justice Holder’s majority opinion drew a sharp dissent from Justice Koch.

2. The enactment of the Medical Malpractice Reform Bill, which took effect October 1, 2008. Click here for a summary of the changes, the text of the bill and a link to the Tennessee Administrative Office of the Court’s form Certificates of Good Faith, which are now required in all medical malpractice cases filed after the effective date of the act.

3. Eskin v. Bartee, 262 S.W.3d 727 (Tenn. 2008). The Tennessee Supreme Court held that a plaintiff can bring a claim for negligent infliction of emotional distress, even if he or she was not present to perceive the event causing injury or death to another.

4. Flax v. Daimler Chrysler Corp. The Tennessee Supreme Court’s analysis of the law applicable to punitive damages claims. The Court affirmed a punitive damages award of $13,000,000 associated with a wrongful death claim. This is the most significant Tennessee decision on punitive damages since Hodges v. S.C. Toof & Co. The court also held that when a negligent infliction of emotional distress claim arises from the plaintiff witnessing the death or injury of another, the plaintiff absolutely needs expert medical proof of the emotional injury.

5. The Tennessee Supreme Court’s decision in Green v. Johnson eliminating any prior ambiguity on the issue of whether the exposure of an uninsured motorist (UM) carrier is reduced by any sum paid to a UM claimant by a non-motorist who is alleged to be at fault for an accident.

6. Mohr v. Daimler Chrysler Corp. This is a decision from the Court of Appeals reducing a punitive damages award from $48 million to $14 million in accordance with the standards set forth in Flax v. Daimler Chrysler Corp. The reduction brought the award within the compensatory to punitive damages ratio of 1:4, which the United States Supreme Court has indicated may be the maximum constitutionally permissible ratio.
   
   
7. Walker v. Sunrise Pontiac, GMC Truck, Inc, 249 S.W.3d 301. Class certification is unavailable for claims brought under the Tennessee Consumer Protection Act.

8. Watts v. Mercedes-Benz USA, LLC, 254 S.W. 3d 422 (Tenn. Ct. App. 2007)(app. for perm. to appeal denied in 2008).  Rescission/revocation of acceptance is not available against a product manufacturer or distributor in Magnuson-Moss Warranty Act claim.

9. Ward v. City of Lebanon. The Tennessee Court of Appeals held that experts are not permitted to testify regarding interpretation of law or legal conclusions.

10. In Boren v. Weeks, 251 SW3d 426 (Tenn. 2008) the Tennessee Supreme Court outlined the extraordinary measures that a hospital must take to avoid "apparent agency" liability for the acts of non-employee (independent contractor) physicians which practice at the hospital.
    
    Let me know if you think any other developments should have been included in this list. 
    
    There is no doubt that 2009 will bring about a number of significant changes in Tennessee tort law. Stay tuned for further developments.
    
    Dan Berexa
    Nashville, Tennessee    

In 2008 the Tennessee Supreme Court Opened the Door to a Type of Negligent Infliction of Emotional Distress Claim Not Previously Allowed

In 2008 the Tennessee Supreme Court released two significant opinions relating to "stand alone" claims for negligent infliction of emotional distress. One of the decisions is likely to lead to an increase in the number of negligent infliction of emotional distress claims, and a greater reluctance of judges to dismiss such claims prior to trial. Both decisions address instances where the emotional distress resulted from someone being seriously injured, or killed, and the claimant witnessing the injury-producing incident, or coming upon the scene shortly after the incident occurred. These are known as "stand alone" claims since the alleged emotional injury is not a product of direct bodily injury to the claimant.

Tennessee Supreme Court Expands Claims for Negligent Infliction of Emotional Distress to Persons Not Present at Time of Serious Injury or Death of Another.

In less than a month, the Tennessee Supreme Court issued two significant rulings regarding claims for the negligent infliction of emotional distress. Most recently, in Eskin v. Bartee, 262 SW3d 727, the Court held that a plaintiff can bring a claim for the negligent infliction of emotional distress even if she was not present to perceive the injury causing event. In Eskin, the plaintiff arrived at the scene after receiving word that her son had been hit by a car at school. When the plaintiff arrived at the school, her son was in a pool of blood and appeared lifeless. At the trial court level the claim was dismissed since the mother was not present when the accident occurred. 

Writing for the Tennessee Supreme Court, Justice Koch traced the evolution of Tennessee law from the early 20th century, when negligent infliction of emotional distress claims, based on observing injury to another, were categorically rejected. Expanding on a "thirty-year period in which this Court has steadily and consistently expanded the ability of bystanders to recover damages for the negligent infliction of emotional distress," the Eskin court held that the observation of the immediate aftermath of an injury producing event can provide the basis for a claim for the negligent infliction of emotional distress if the plaintiff is a family member or has some other close relationship to the injured party.

The Eskin decision will result in the filing of more negligent infliction of emotional distress claims. The devil is in the details and now lower courts will grapple with whether particular relationships are "close and intimate" enough to qualify; whether too much time passed before the plaintiff's arrival; and, whether the accident scene was materially altered to such a degree that the elements defined by the court are not satisfied. 

To read or print the Eskin opinion, click here 

*On July 24, 2008, the Tennessee Supreme Court issued the opinion in Flax v. Daimler Chrysler,  holding that when a negligent infliction of emotional distress claim arises from the plaintiff witnessing the death or injury of another,  the plaintiff absolutely needs expert proof of the emotional injury. For more discussion of the Flax decision see my July 31 post.

Dan Berexa
Nashville, Tennessee

Part I - Medical Causation and Reasonableness and Necessity of Medical Expenses.

In a personal injury case, proving causation is just as important as proving fault. A great case of liability is nothing if you cannot establish a causal link between the defendant’s actions and the plaintiff’s injuries and medical treatment. If the plaintiff does not have the proper medical proof, a motion in limine, motion to strike or objection in some other form should be expected.

That great case on liability can turn into a nightmare if medical testimony on the issue of causation is excluded. An equally disastrous result will occur if plaintiff’s counsel is unable to get medical bills admitted into evidence.

A recent example of both problems occurred in Ambrose v. Batsuk. In Ambrose, the defendant admitted liability. In fact, a directed verdict was granted against the defendant on the issue of breach of the standard of care. However, the plaintiff’s medical causation testimony was excluded. The knock-out punch came when the plaintiff's claimed medical expenses were excluded by the trial judge, despite an attempt by the plaintiff to rely on the Tennessee statute which creates a presumption that medical expenses under $4000 are reasonable and necessary. The end result was a defendant's verdict following a jury trial. 

A series of posts which will follow will address the issues associated with offering proof of injury causation, claims for future medical treatment and proving medical expenses. While these would seem to be basic issues, they often plague plaintiff's counsel and result in a forced non-suit, exclusion of key proof or an adverse verdict even when fault is not at issue.

Dan Berexa
Nashville, Tennessee 

 

Study Finds that 13% of Truckers had Undetected Sleep Apnea

A study recently published in the Journal of Occupational & Environmental Medicine found that 13% of a group of 1443 truckers screened positive for obstructive sleep apnea, a condition that is known to cause excessive sleepiness and can lead to many serious health problems if left untreated. Of the truckers that initially screened positive, close to 95% were diagnosed with the disease upon further testing.

Untreated, sleep apnea can result in a 2 to 7 fold increase in the risk of motor vehicle crashes. The most alarming aspect of the study is that none of the drivers in the study with sleep apnea would have been detected if the only inquiry made of the drivers was the questioning used in the current Commercial Driver's Medical Examination form. In other words, the standards that are currently used to evaluate the fitness of commercial drivers are totally ineffective at detecting sleep apnea. This is a serious health issue for the motoring public, including truck drivers who go undiagnosed and untreated. Sleep apnea can also be a major liability issue for trucking companies.

A  study by the Florida Highway Patrol found that 35% of motor vehicle accidents were caused by fatigued drivers falling asleep at the wheel.

Dan Berexa