The case: Robinson v. LeCorps, 83 S.W.3d 718 (Tenn. 2002). Author: Justice E. Riley Anderson
Why it is a Blue Chipper: Robinson made it crystal clear that a standard of care expert in a medical malpractice case may not base that testimony on a national standard of care and that an expert’s testimony will be excluded if it based solely on a national standard.
The bottom line:
The Supreme Court of Tennessee issued an important ruling on the “foreign object” exception to the medical malpractice statute of repose and statute of limitations. The case is Chambers v. Semmer, M.D., and deals with what exactly constitutes a foreign object. The plaintiff’s theory in the case is that a hemoclip was negligently placed on her ureter during a surgery and left there, later causing her left kidney to fail. The defendants countered that they did not leave any hemoclip on the plaintiff’s ureter, but that “hemoclips are used intentionally and are intended to remain permanently,” so they could not be foreign objects. The Supreme Court rejected the defendants’ argument, ruling “that a hemoclip that is intentionally used but negligently placed and negligently left in a patient’s body following surgery may be a “foreign object” under Tennessee Code Annotated section 29-26-116(a)4) that establishes an exception to the one-year statute of limitations and the three-year statute of repose.”
Read more about the opinion at our firm’s Tennessee Medical Malpractice Blog.
I apologize for the lack of a post Friday and Saturday. Friday morning I was in North Carolina and did not have access to a computer. By the time I made it to the office I had back-to-back conference calls or appointments until 4:15 and just decided to wait until Saturday morning to blog.
Friday night Joy and I went to the cabin. I got up early Saturday morning but for reasons I do not understand I could not get access to the Internet. I spent several hours riding my early birthday present (a Sea Doo RXT) and messing around in the water.
I got up early again this morning and, surprise, the Internet connection is working. So, I decided to bang out this post before Joy and I meet our friend Buzz at 8:00 a.m. to get in some water skiing before the water gets rough
The Supreme Court just issued its opinion in Alsip et al v. Johnson City Medical Center et al. More information on the opinion, holding that defense counsel may not participate in ex parte communications with a plaintiff’s non–party treating physicians, is available over at our firm’s medical malpractice blog. I am on the road right now, so commentary will follow later.
Judge Koch and the Court of Appeals for the Middle Section have ruled that a summary judgment in favor of a doctor in a medical malpractice case must be reversed because the plaintiff was not given adequate time to marshal the facts necessary to respond to it and submit an affidavit necessary to defeat the motion.
I have commented before that it is a mistake for lawyers to assume that a trial judge will automatically give a plaintiff additional time to respond to a motion for summary judgment. But this case tells us that a plaintiff must have a reasonable opportunity to respond to the motion, and recognizes that “[i]t is quite conceivable that careful experts will withhold rendering an opinion based on medical records or supporting affidavits alone.”
Say it again, brother. Lawyers who handle medical negligence cases know that the medical records tell only part of the story and that if you develop, in writing, a theory of the case based on the medical records any gaps in the records will be filled with facts contrary to your theory. Am I saying that health care providers lie? Oh, sometimes – they are human. But in the ordinary course “lie” is too strong of word. It is more accurate, and certainly more polite, to say that most human beings tend to resolve doubts in favor of themselves, particularly when those doubts cannot be controverted by something written in their own hand. Hence, a careful expert, and a careful lawyer, will not assume facts that only can be found in the gray matter of an opponent or potentially hostile witness.
The Joint Commission has released the Fourth Edition of its book “Patient Safety Essentials for Health Care.”
The blurb: “This book is the complete guide to the Joint Commission’s safety standards for ambulatory care, behavioral health care, critical access hospital, home care, hospital, and long term care organizations. It includes the standards, rationales, elements of performance, and scoring information in one handy resource. This book also identifies the commonalities among the standards to help readers understand which standards apply to which settings.”
Order it for $75.00 here.
The Nebraska Supreme Court has ruled that plaintiffs could not argue that a surgeon should have disclosed his displinary history unless there was proof that the standard of care required disclosure.
The Court held that plaintiffs “never established that the standard of care required such disclosures. Rather, they ask us to adopt a different standard of care for a narrow class of plaintiffs. Not only is their approach unprecedented, it contravenes the Legislature’s adoption of the professional theory by supplanting, in a single narrow context, the Legislature’s judgment.”
The Court also held that the evidence was not admissible to impeach the defendant.
Steven and I have been having a discussion – it started here. Here is his latest missive:
“My mistake, I did not mean to state that this particular lawyer(s) was sleazy, but that the trial bar in general is sleazy. I will admit that there must be some decent trial attorneys just as there are bad doctors, cops, judges, etc.
As for your comment about doctors and EtOH, drugs, etc., it is true that many docs have problems, but experts and studies have shown that the last thing in their life they let go is often their career. This is probably true for most professions as well. Plus, I would never call someone with a disease sleazy, that would be “shallow.”
The Arizona Court of Appeals has ruled that the amounts of settlements made by doctor in other cases are not discoverable in another medical malpractice action against him.
The case is Miller v. Kelly; it is reported at 130 P.3d 982 (Ariz. App. 2006).
The Court held that “the amount paid in settlement of a claim establishes neither negligence nor gross negligence” and that the information is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. The Court noted that “[p]ermitting disclosure of amounts paid in settlement of a lawsuit contrary to an express provision ensuring the confidentiality of that information likely would discourage parties from settling. And disclosure of that information poses the risk that conclusions will be drawn about the paying party’s culpability and the degree of culpability based on the fact that payment was made and the amount.”
Go to the Tennessee Medical Malpractice Law Blog for a post on wrong site surgeries.
Day on Torts