David Randolph Smith

Medical Malpractice

  • The Tennessee Court of Appeals in White v. Premier Med. Group (Nov. 29, 2007) affirmed a defense verdict in a medical malpractice case where the plaintiff had alleged on appeal the trial court improperly gave a superseding cause jury instruction.

  • In Hill v. Giddens (Nov. 29, 2007) the Tennessee Court of Appeals affirmed a summary judgment for the defense because the plaintiff's expert failed to satisfy the locality rule.

  • In Calaway v. Schuker, (12/09/05) the Tennessee Supreme Court held (3-2) that the three year statute of repose in the medical malpractiuce statute trumps the legal disability statute for minors and, contrary to prior law, minors do not have until age 19 to sue for medical malpractice.
  • A motion for rehearing was filed on December 19, 2005 by the Calaways. Our firm also filed an amicus curiae brief in support of rehearing, asking the Court to limit the application of its decision to cases in which the minor was injured after December 9,2005. The brief further argues that the three year statute of repose for malpractice actions is an unconstitutional deprivation of due process.
  • This decision is horribly flawed and unfair. The legal disability statute (T.C.A. § 28-1-106) states a minor may sue after reaching 18 within the "time limitation for the particular cause of action." Clearly this stautory language (in T.C.A. § 28-1-106) ENCOMPASSES BOTH the limitations and repose "time limitations" in the 1975 med mal statute. Otherwise minors have no protection. The long-standing policy in Tennessee is to protect minors during their disability. The "time limitations" simply do not apply (or start) until age 18. See e.g., Little v. CCA (W.D. TN 2001).
  • The unfairness is egregious given that the Tennessee Supreme Court explicitly recognized and acknowledged the "precedential weight" of Bowers v. Hammond, 954 S.W.2d 752 (Tenn. Ct. App. 1997) (which upheld the disability statute for minors against a claim that the med mal repose provision trumped it) by explicit language in Penley v. Honda, 31 SW3d 181 (Tenn. 2000):
    • "Because Bowers has been the law in this state since 1997, and because the General Assembly has made no effort to amend the three-year statute of repose since Bowers to remove the implied exception for minority, we recognize that the bench, bar, and the public in general may have various reliance interests in its holding. Accordingly, we limit the precedential weight of that opinion to its explicit holding that the three-year medical malpractice statute of repose is tolled during the minority of the plaintiff. To the extent that the Bowers dicta can be read to toll any statute of repose for mental incompetency under Tennessee Code Annotated section 28-1-106, however, it is overruled."
  • Calaway also ignors that the United States Supreme Court, the U.S. District Court for the Middle District of Tennessee, and the Tennessee Court of Appeals had ALL stated as settled law that the med mal statute of repose did not apply to minors. As the U.S. Supreme Court noted in 1983 in Pickett v. Brown, 462 U.S. 1, 16 (1983):
    • "Third, Tennessee tolls most actions during a child's minority. See Tenn. Code Ann. 28-1-106 (1980).[Footnote 14] In Parlato v. Howe, 470 F. Supp. 996 (ED Tenn. 1979), the court stated that "[t]he legal disability statute represents a long-standing policy of the State of Tennessee to protect potential causes of actions by minors during the period of their minority." Id., at 998-999. In view of this policy, the court held that a statute imposing a limitations period on medical malpractice actions "was not intended to interfere with the operation of the legal disability statute." Id., at 998. Accord, Braden v. Yoder, 592 S. W. 2d 896 (Tenn. App. 1979)."
  • The unfairness is accentuated considering that the Tennessee Supreme Court did not even mention Bowers (which it acknowledged as precedent in Penley) in Mills v. Wong (Tenn. 2/16/05) which applied the med mal statute of repose to bar claims covered by the incompetency protection set forth in the disability statute.
  • There is also a serious constitutional question under Pickett v. Brown, 462 U.S. 1 (1983). In that case a Tennessee statute provided that a paternity and support action must be filed within two years of the child's birth unless the father has provided support or has acknowledged his paternity in writing, or unless the child is, or is liable to become, a public charge, in which case the State or any person can bring suit at any time prior to the child's 18th birthday. In May 1978, appellant mother of an illegitimate child born in November 1968 brought a paternity and support action in the Tennessee Juvenile Court against appellee Brown, who moved to dismiss the action on the ground that it was barred by the 2-year limitations period. The court held that the limitations period violated, inter alia, the Equal Protection Clause of the Fourteenth Amendment, because it imposed a restriction on the support rights of some illegitimate children that was not imposed on the identical rights of legitimate children. The Tennessee Supreme Court reversed and upheld the constitutionality of the 2-year limitations period. The U.S. Supreme Court, however, reversed the Tennessee Supreme Court and held that The 2-year limitations period in question denies certain illegitimate children the equal protection of the law guaranteed by the Fourteenth Amendment.
  • The Court needs to get it right and hold that the specific langauage in the disability statute that give minors upon reaching majority the right to sue within the "time limitation for the particular cause of action" MEANS that minors can bring a "malpractice action" within one year of attaining majority and in no event three years after reaching majority (if malpractice not discovered/known for more than 1 yr. prior to suit). Hopefully the court will get it right on rehearing.

  • In Travis v. Ferraraccio (9/19/05) the Tennessee Court of Appeals reversed a summary judgment that had been entered in favor of a physician on the basis of the locality rule. Our firm represented the plaintiffs in this wrongful death med mal case and were naturaaly pleased with the appellate court's reversal. In an as usual excellectly analyzed opinion, Judge Koch explained that the expert's affidavit or testimony need only prove the standard of care in "the same or similar community." An interesting and unresolved question is whether the similar community requirement in Tenn. Code Ann. § 29-26-115(a) (Supp.2003) must be in a contiguous state. Although the expert must have been licensed in a contiguous state (within a year of the event in question) under Tenn. Code Ann. § 29-26-115(b) (Supp.2003) does the similar community also have to be in a contiguous state? For example may a St. Louis, Missouri cardioloogist (who meets 29-26-115(b) say that a defendant was negilgent based on the standard of care in a similar community in Illinois?

  • Many doctors and hospitals around the country are clamping down on videotaping in the delivery room out of concern family videos could be used in malpractice suits. Doctors, Hospitals End Videotaping Births (AP).

  • In Hunter v. Ura (3/29/05) the Tennessee Supreme Court held: granting the plaintiff eight peremptory challenges was harmless error; denying a motion for a mistrial after the plaintiff had cross-examined an expert witness with a prior statement was correct; allowing the plaintiff to cross-examine a defense expert witness with an alleged learned treatise was proper; excluding the deposition testimony of a defense expert witness was proper; the trial court erred in remitting the jury’s verdict by $1,500,000; the trial court properly denied prejudgment interest to the plaintiff; awarding damages for the loss of consortium did not violate the defendants’ rights under the United States or Tennessee constitutions; the trial court did not err in finding that the plaintiff’s expert witness established the professional standard of care in the community in which the defendants practiced; the trial court did not err in allowing the plaintiff to introduce hearsay statements from medical literature or make arguments as to the presence or absence of medical literature; the trial court did not err in denying a motion for a mistrial or a continuance based on the unavailability of a defense expert witness; the trial court did not err in refusing to allow the defendants a credit against the jury’s verdict based on a payment received by the plaintiff under the decedent’s executive insurance plan.

  • 3/07/05. "Special Report: Who’s Who Law – Judging the Doctors" -- an excellent article explaining medical malpracice litigation in California (which has enacted a $250,000 cap for non-economic damages). LA Business Journal.

  • Five years after a major report describing an epidemic of medical errors in the U.S. health care system shocked patients, policy makers and physicians, little substantial progress has been made to make medical care safer. See Scant Progress Seen on Cutting Medical Errors (Reuters Health, 11/04/04). Observers cite a lack of money and political will needed to fund safety research and implement safeguards in hospitals and physicians' offices throughout the nation.They also point to a resistant medical culture in which doctors still balk at efforts to record errors and participate in systematic steps to solve them.The Institute of Medicine issued a report in November 1999 warning that outdated and sometimes nonexistent safety practices were causing widespread errors in pharmacies, doctors' offices and operating rooms throughout the country.

  • In Burroughs v. Magee,118 S.W.3d 323, (Tenn., Oct 01, 2003) the Tennessee Supreme Court held a physician owed duty of care to automobile passenger and her husband to warn truck driver of possible adverse effects of Soma (a muscle relaxant) and Esgic-Plus (a barbiturate) on his ability to safely operate a motor vehicle; but (2) physician did not owe duty of care to automobile passenger and her husband in deciding whether or not to prescribe those medications to truck driver. The case is a good review of the issue of duty and forseeable harm under Tennessee law.

  • In Mills v. Wong, (2/16/05) the Tennessee Supreme Court held that mental incompetency does not toll the statute of repose in medical malpractice actions.