Dan Berexa's Tennessee Law Blog

Tennessee Medical Malpractice Reform Bill Goes to Governor Bredesen

The Tennessee medical malpractice reform bill discussed in my recent post has passed in both the Tennessee House and Senate and is expected to receive Governor Bredesen's signature. The legislation represents a compromise between those seeking medical liability reform and the plaintiffs' bar.  The law does not include the liability caps on non-economic damages that reformers were seeking, but does include procedures meant to prevent non-meritorious claims from being filed. The notice provision of the act also gives the parties a chance to resolve legitimate claims pre-suit. The act's provisions include:

Written notice to medical providers 60 days before a medical malpractice lawsuit is filed. Notice extends the statute of limitations and statute of repose 90 days.

Early attorney certification that a qualified medical expert has concluded there is good cause to pursue the claim against each defendant. This provision also applies to defendants that assert that a non-party medical provider is guilty of comparative fault.

A process making it easier for all parties to obtain the medical records pertinent to the medical malpractice case.

The availability of penalties for failing to comply with the certification process, including dismissal of the case and requiring a violating attorney to pay the opposing parties attorney's fees and expenses. Attorneys who fail to comply can also be reported to the Board of Professional Responsibility.

The Act will apply to all medical malpractice actions filed after October 1, 2008. It will be interesting to see if the courts strictly enforce the act's requirements and the frequency in which sanctions are imposed against violators.

Click Here to view the text of the bill.

Dan Berexa 

2008 Solo and Small Firm Legal Technology Guide

I just finished reading the 2008 Solo and Small Firm Legal Technology Guide, published by the ABA's Law Practice Management Section ($79.95 list or $49.95 for ABA Law Practice Management Section members). The newly published guide is intended to be the first in a series of annual "Consumer Reports" of legal technology products for solo practitioners and small firms. The guide's authors, who are well published legal technologists, include lawyer Sharon Nelson, who is the past chair of the ABA's TECHSHOW Board and President of Sensei Enterprises, a legal technology consulting company in Washington D.C. The guide includes up-to-date information and recommendations on computers, servers, network and back-up equipment, legal software, printers, scanners, remote access, security products, smart phones and useful utilities. It is easy to read and includes recommendations of specific products. The guide makes for a nice overview of currently available technology. I recommend this resource to anyone that is involved in the purchase of technology for their firm or for those who want to have a basic understanding of what is available and how it may be useful to their practice. Click HERE to review the guide's Table of Contents.

Dan Berexa

Tennessee Code - Free Online

Remember, the Tennessee Code is available online. The Tennessee Code Commission had the foresight years ago to require that the publisher of the Official Edition of the Code, Michie/LexisNexis, make the Tennessee Code available to the public free online. The statutes are not annotated but the online version is a handy resource if you are away from the office, just need to take a quick look at a statute or have a matter where it is not practical to use Westlaw or Lexis. The code can be accessed through the Michie.LexisNexis.com website or the website for Tennessee Administrative Office of the Courts www.tncourts.gov (look for TN CODE on the menu on the homepage). It has an index, is searchable, easy to navigate and statutes can be e-mailed or printed.

Dan Berexa

Tennessee Medical Malpratice Bill Passes in House - Likely to Become Law

Click Here for today's article in The Tennessean regarding the passage of medical malpractice legislation in the Tennessee House. The bill requires claimants to give 60 days notice before filing suit and requires attorneys to have an expert determine the merits of the case before filing the suit. According to a number of sources, the bill is likely to pass in the Senate. 

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