Tennessee Medical Malpractice Law Blog

Tennessee Rule of Civil Procedure 36 is clear - a request for admission that is not responded to within 30 days after service is admitted. In a 1986 opinion, however, the Tennessee Supreme Court stated that "admissions under Rule 36 should be brought to the trial court's attention through one of three methods: at a pretrial conference where issues may be eliminated or narrowed, on motion for summary judgment (Rule 56, T.R.C.P.), or by specific motion dealing with the requested admissions." Tennessee Dep't of Human Servs. v. Barbee, 714 S.W.2d 263, 266 (Tenn. 1986). The Supreme Court ruled: "Under the highly unusual circumstances of [Barbee], in order to be certain that the failure to respond would be binding on the Defendant so that Plaintiff need not prepare evidence for trial on the issue involved, Plaintiff should have sought an order deeming the issues to be admitted." Id. at 267. 

In light of Barbee, we generally file motions or otherwise bring to the Court's attention a party's failure to respond to requests for admissions, rather than relying on the failure to respond standing alone. Here is an example of a form memorandum of law in support of a motion to rely upon unaddressed requests for admission:

Download file

The Western Section Court of Appeals ruled on an informed consent medical malpractice case today, affirming the exclusion of the plaintiff's standard of care expert witness for failing to comply with the locality rule. The out-of-state expert relied, in part, on surveying other speciailists in the community and around the State of Tennessee to demonstrate what the standard of care required. The Court of Appeals rejected this approach as a proper basis for knowledge of the standard of care, saying:

Defendants assert that knowledge gained by surveying other physicians and not by personal
or firsthand experience is not sufficient under § 29-26-115(a)(1). They submit that a non-expert could survey physicians in a community if the mere collection of data could constitute knowledge. Defendants assert the statute requires personal, firsthand, or direct knowledge of the applicable standard by an expert who practices in the community or in a similar community. We agree.

Knowledge of or familiarity with the standard of care, particularly with respect to informed
consent, does not require that the plaintiff’s expert practice in the same specialized field as the defendant. Johnson, 2005 WL 136436, at *9. It does, however, require that the expert be
sufficiently familiar with the standard of care in the specialty to provide relevant testimony. Id.
Under Tennessee Code Annotated § 29-26-115(a)(1), knowledge of the applicable standard of care must be either firsthand knowledge of the standard of care by one who practices in the community in which the defendant practices, or firsthand knowledge by one who practices in a community demonstrated to be similar to that of the defendant.

The case is Eckler v. Dr. Lee Allen.  It's also worth taking a look at John Day's earlier post on Day on Torts about a case in which the Florida Supreme Court decided that an expert cannot "conduct a survey of a myriad of other experts or colleagues to derive a consensus on the standard of care."

Tennessee Rule of Civil Procedure 32.01(3) provides that, a party’s “discovery” deposition of another party’s expert witness is inadmissible except to impeach the same expert at trial.   There are a few exceptions to this Rule, however.  One important exception is that the rule is limited to admissibility at trial of a withdrawn expert’s deposition testimony. Tenn. R. Civ. P. 32.01(3). Thus, a withdrawn expert witness’s deposition testimony may be considered by the court at any other stage in the proceeding, including a summary judgment motion.  Take a look at Dial v. Harrington, 138 S.W.3d 895, 899 (Tenn. App. 2003), appeal denied (March 20, 2004), for some additional insight.

John Day posted on Day on Torts about a new opinion from the Tennessee Court of Appeals confirming that a minor may recover for his or her own medical expenses (rather than requiring the victim's parents to pursue the claim for medical expenses.)  The case, Palanki v. Vanderbilt University, is also worth a read on the issue of prejudgment interest in personal injury cases, including medical malpractice cases like Palanki.

Can a medical provider waive an arbitration provision in a contract for medical services by making a jury demand in the answer to a complaint for medical malpractice?  The Court of Appeals said NO in Sloan v. National HealthCorp, et. al.  Read the opinion by visiting the website of the Administrative Office of the Courts.   

The Supreme Court of Tennessee issued a critical medical malpractice opinion this week, Chambers v. Semmer, M.D.. In Chambers, the Supreme Court looked to the "foreign object" exception to the one-year statute of limitations and the three-year statute of repose in Tennessee medical malpractice cases.

The plaintiff in Chambers underwent surgery to remove a pelvic mass. In the process, her surgeons placed hemoclips on her posterior uterine arteries. More than four years later, the patient's left kidney was no longer functioning. She sued the two surgeons who performed her original surgery, "alleging that the damage to her left kidney had been caused by a hemoclip that had been intentionally used but negligently placed and negligently left on her ureter following the 1997 surgery."

The surgeons moved for summary judgment, arguing that the "foreign object" exception to the medical malpractice statute of limitations and statute of repose did not apply. The surgeons' position was the exact opposite of that of the patient: no hemoclip was left in the patient, but even if it was, "hemoclips are used intentionally and are intended to remain permanently...."

The Supreme Court rejected the surgeons' argument, stating that the statute does not support the defendants’ position that an object used intentionally and designed to remain permanently may never be a foreign object. Instead, the Court indicated that the "foreign object" exception "requires an analysis of many factors," and gave some insight into the facts to be considered on a case-by-case basis:

For instance, Hall indicates that the exception in section 116(a)(4) applies to cases where (a) an object never intended to be inserted during the surgery is negligently permitted to remain in a patient’s body or (b) an object temporarily used in the surgery is negligently permitted to remain in a patient’s body. Id. Moreover, Hall explains that a court may also consider additional factors such as whether the plaintiff knew about the object, whether the defendant was in some way responsible for the initial presence of the object, and whether the defendant negligently inserted the object. Id. In short, a court must look beyond whether a surgical object or device is designed to be used intentionally and to remain permanently and must fully consider the circumstances of each case.

The Supreme Court ultimately adopted the plaintiff's view of the issue, and concluded "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."

The Tennessee Supreme Court issued its opinion today in Alsip et al v. Johnson City Medical Center et al, holding that defense counsel may not participate in ex parte communications with a plaintiff's non--party treating physicians. The text of the opinion summary is as follows:

Pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure, we accepted this appeal to clarify the meaning of our holding in Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 2002), as it relates to a trial court’s tailored discovery order in a medical malpractice lawsuit permitting ex parte communications between defense counsel and the decedent’s non-party treating physicians.Carefully weighing public policy concerns and considering the case law on this issue from other jurisdictions, we hold that the trial court erred by issuing this order. Today we announce that such ex parte communications violate the implied covenant of confidentiality that exists between physicians and patients and that public policy does not require the voidance of this covenant. This being the case, ex parte communications between the plaintiff’s non-party physicians and defense attorneys are not allowed in the State of Tennessee. Accordingly, we affirm the judgment of the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion.

To read the entire opinion, visit the AOC website.

The Tennessee Supreme Court recently considered the issue of whether leave of court or the consent of all parties is necessary in order to amend a complaint to add defendants pursuant to T.C.A. 20-1-119. The Court ruled that it is necessary to file a motion to amend or to have the consent of all parties before filing the amended complaint. Read Jones v. Professional Motorcycle Escort Service, LLC.

The Court of Appeals for the Middle Section of Tennessee reversed a summary judgment for a defendant doctor on Monday, saying the trial court erred in refusing to allow the plaintiff more time to marshal proof in opposition to the motion and in failing to consider additional evidence presented by the plaintiff on a motion to alter or amend.

In Grisham v. McLaughlin, the defendant orthopedic surgeon filed a motion for summary judgment supported by his own affidavit. The short version of a long procedural history is that the hearing was postponed until after the doctor could be deposed, but was then set for a hearing 15 days after the deposition. The Court of Appeals noted that left the plaintiff with fifteen days to (1) obtain a transcribed copy of the doctor's deposition from the court reporter, (2) obtain the doctor's signature on the deposition, (3) provide the plaintiff's standard of care expert with a copy of the dcotor's deposition, and (4) obtain and file her expert’s affidavit opposing the motion for summary judgment. For these reasons, the Court of Appeals ruled that the trial court erred in denying the plaintiff's motion for an extension to respond to the summary judgment motion, and also erred in denying the plaintiff's motion to alter or amend the judgment after providing the court with a standard of care expert's affidavit. Note the text in footnote 4:

We find nothing unreasonable or extraordinary in the notion that a patient in a medical malpractice case might desire to depose a defendant before responding to a summary judgment motion. It is quite conceivable that careful experts will withhold rendering an opinion based on medical records or supporting affidavits alone.

The Tennessee Court of Appeals recently confirmed that discretionary costs recoverable pursuant to Rule 54.04 do not costs related to videotaping a deposition. Read Parker v. Brennan for more.

In the recent Court of Appeals opinion in Clark v. Shoaf, the Court of Appeals upheld a loss of consortium award to a wife which exceeded her husband's underlying personal injury award by $10,000. Sounds like a smart jury to me. To read the opinion visit the Administrative Office of the Court's website.

In the recent opinion of the Tennessee Supreme Court in Haley v. University of Tennessee-Knoxville the Supreme Court accepted a question of law certified by the United States District Court of the Eastern District of Tennessee to determine whether a voluntary non-suit before the Tennessee Claims Commission activitates the waiver provision of T.C.A. 9-8-307(b), barring a federal or state cause of action arising from the same act or omission as the claim before the Claims Commision. The Supreme court ruled that it does. Read the opinion.

In this recent opinion, the Eastern Section Court of Appeals held that documents or records “otherwise available from original sources” are not immune from disclosure pursuant to the peer review privilege and may be obtained from either the original source or a peer review committee. In Stratienko v. Chattanooga-Hamilton County Hosp. Auth., the defendant argued that anything in the peer review file is privileged, and if it's also available from another source, then the plaintiff has to go get it from that other source. The Court of Appeals rejected that argument. If a document is available publicly, then merely dropping a copy in a peer review file will not protect it from discovery.

See below the introductory summary from the Tennessee Supreme Court's reissued opinion in Calloway v. Shucker:
"Pursuant to Rule 23, we accepted four certified questions of law from the United States District Court for the Western District of Tennessee. The third certified question is the central question of the four and is dispositive of the others: Is the three-year statute of repose for medical malpractice in Tennessee Code Annotated section 29-26-116, which contains no exception for minority, tolled during a plaintiff’s minority? Our answer is that the three-year statute of repose for medical malpractice actions is not tolled during the plaintiff’s minority. Giving effect to the plain language of the statute and finding no exception for minority among the two express exceptions in it—and cognizant of our constitutional role as interpreters, not makers, of the law—we hold that plaintiffs in their minority are bound by the three-year medical malpractice statute of repose. However, in order to avoid undue hardship to potential plaintiffs who have justly relied upon federal court and lower court precedents erroneously stating the opposite rule, the new rule we announce today is to apply prospectively only. Therefore, for cases commenced on or before December 9, 2005, we hold that the plaintiff’s minority tolls the medical malpractice statute of repose. For cases commenced after December 9, 2005, we hold that the plaintiff’s minority does not toll the medical malpractice statute of repose." (emphasis added)

Click here to read the entire opinion as issued today on the Administrative Office of the Court's website.

The Eastern Section Court of Appeals issued a lengthy opinion in a case dealing with the peer review privilege under the Tennessee Peer Review Law. The case, Logan v. Everett, is a physician's suit for tortious interference with contract. The physician alleged he was negotiating to join a new hospital, but that his former hospital and co-workers made statements that led to his privileges being denied. In his suit against the former hospital and co-workers, the physician sought discovery of certain documents from the new hospital and its CEO. The Court of Appeals affirmed summary judgment for the defendants, as well as a protective order denying certain discovery, based upon the peer review privilege. Most of the eleven page appellate opinion is devoted to an analysis of the privilege as it applies to both discovery and evidentiary issues under the facts of the case. Lawyers battling peer review issues in medical malpractice cases might want to take a look at the opinion.

In the recent Court of Appeals opinion in Coleman v. Wilwayco, M.D., et. al., the Court of Appeals affirmed the trial court's dismissal of a ("stand alone") claim for negligent infliction of emotional distress arising from a doctor's alleged misdiagnosis of Hepatitis C. The Court held that, in the face of defendant's motion for summary judgment, the plaintiff failed to present expert evidence of severe emotional injury. Click here to read the case.

In the recent Tenneesse Court of Appeals opinion Vaughn, et. al. v. Cunningham, the Court of Appeals affirms a jury's award of zero damages to plaintiffs despite the fact that the defendant is found 100% at fault for causing the accident.

The Western Section Court of Appeals earlier this year declined to adopt a cause of action for loss of chance in Harris v. Baptist Mem. Health Care Corp..

Once again, the issue centers on patients who, with proper medical care, have a 49% or even 50% chance of surviving (or avoiding brain damage or another injury). Under the current law, those patients cannot maintain a lawsuit even if a doctor's negligence deprives the patient of that chance. Instead, the patient must prove "more likely than not" that the patient would have had a better result if the doctor had not been negligent. The result is that a patient who had a 50% likelihood of a full recovery will not be compensated, while while a patient with a 50.1% chance may be compensated.

The Tennessee Supreme Court denied permission to appeal in Harris.

The November 14, 2005, opinion of the Tennessee Court of Appeals (Knoxville) in Janey Fluri, et. al. v. Fort Sanders Regional Medical Center, et. al., provides a discussion of the discovery rule as it applies to the statute of limitations in a medical malpractice case. The Court explains that "the statute of limitations in a medical malpractice case is tolled until the plaintiff “discovered, or reasonably should have discovered, (1) the occasion, the manner, and the means by which a breach of duty occurred that produced his injuries; and (2) the identity of the defendant who breached the duty. Stanbury v. Bacardi, 953 S.W.2d 671, 677 (Tenn. 1997) (quoting Foster v. Harris, 633 S.W.2d 304, 305 (Tenn. 1982)). In other words, the statute of limitations commences “when the plaintiff is ‘aware of the facts sufficient to put a reasonable person on notice that he has suffered an injury as a result of wrongful conduct,’ and the plaintiff knows the identity of the person who engaged in the conduct.” McIntosh v. Blanton, 164 S.W.3d 584, 586 (Tenn. Ct. App. 2004) (quoting Roe v. Jefferson, 875 S.W.2d 653, 656-57 (Tenn. 1994)).
The Court concluded that the trial court erred by dismissing the plaintiff's case on the basis of expiration of the statute of limitations. The issue was held to be a matter for determination by the jury:
"As our Supreme Court has recognized, a summary judgment is not the appropriate vehicle for resolving conflicting inferences reasonably drawn from the facts—rather, its purpose is to resolve controlling issues of law. Matz v. Quest Diagnostics Clinical Labs., Inc., No. E2003-00167-COA-R3-CV, 2003 WL 22409452, at *4 (Tenn. Ct. App. 2003) (citing Bellamy v. Federal Express Corp., 749 S.W.2d 31 (Tenn. 1988)). Whether Plaintiffs had constructive knowledge of Defendants’ allegedly wrongful conduct under these circumstances is an issue of fact, and summary judgment was inappropriately granted because the facts and their reasonable inferences support more than one reasonable conclusion. Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 91 (Tenn. 1999) (stating that summary judgment is only appropriate when the facts lead to only one reasonable conclusion); Buddy Lee Attractions, Inc. v. William Morris Agency, Inc., 13 S.W.3d 343, 347 (Tenn. Ct. App. 1999) (stating that summary judgment must be overruled “if there is doubt as to whether or not . . . [a] genuine issue remains for trial”)."

The Tennessee Medical Malpractice Act's three year statute of repose on filing lawsuits has an exception "where there is fraudulent concealment on the part of the defendant." Basically, a defendant cannot actively prevent the plaintiff from learning about the defendant's wrongdoing, then dodge a lawsuit because the plaintiff did not file in time. The Tennessee Supreme Court described the requirements of the fraudulent concealment exception in Shadrick v. Coker, a 1998 opinion:

(1) that the defendant took affirmative action to conceal the cause of action or remained silent and failed to disclose material facts despite a duty to do so; (2) that the plaintiff could not have discovered the cause of action despite exercising reasonable care and diligence; (3) that the defendant had knowledge of the facts giving rise to the cause of action; and (4) that the defendant concealed material facts from the plaintiff by withholding information or making use of some device to mislead the plaintiff, or by failing to disclose information when he or she had a duty to do so.

The Supreme Court in Shadrick put the burden on the plaintiff to prove the exception, presumably after the defendant has satisfied its own burden of proving the statute of repose as an affirmative defense.

I posted earlier about recovering medical expenses paid by TennCare in a medical malpractice case. Along the same lines, Tennessee courts allow plaintiffs in medical malpractice cases to recover for medical expenses that have been paid by:

Workers compensation benefits. (Nance by Nance v. Westside Hosp., 750 S.W.2d 740 (Tenn., 1988)).
Insurance or other payments where the payor has subrogation rights. (Richardson v. Miller, 44 S.W.3d 1 (Tenn. App. 2000)).

All of these cases look to the damages section of the Medical Malpractice Act, Tenn. Code Ann. sec. 29-26-119. Give serious consideration to the impact of 29-26-119 on any damages you want to claim in a medical malpractice case to make certain you have gathered the facts you need.

In Sutton v. St. Jude Medical S.C., Inc. et. al., (opinion issued 8/23/05) the United States Court of Appeals for the Sixth Circuit considered the question of whether an increased risk of harm requiring current medical monitoring is sufficient injury to confer standing to bring a class action. This issue was one of first impression in this Circuit. Michael Sutton sued St. Jude on behalf of a proposed class of persons who underwent cardiac bypass surgery using a medical device called the Symmetry Bypass System Connector. The device is used by heart surgeons during cardiac bypass surgery to attach saphenous vein grafts to the aortic surface of the heat without sutures. St. Jude Medical, S.C., Inc. and St. Jude Medical, Inc. are the designers, manufacturers, and distributors of the device.
Sutton was implanted with the device during treatment for his heart condition. Sutton alleged in his complaint that St. Jude failed to use reasonable care and was negligent in designing the device. He also alleged the device is defective and unreasonably dangerous and is sold and marketed without proper warnings. Sutton pled that the device has led to severe and disabling medical conditions resulting from collapse and scarring of the graft in numerous patients necessitating removal of the device and/or monitoring for further harm. Sutton alleged that St. Jude was informed of the adverse consequences of the device but continues to market and distribute the device. Sutton pled that, as a result of having the device implanted in him, he had suffered economic losses and large medical expenses and has a device in his body which increases his risk for aortic bypass stenosis or occlusion and resulting injuries.
Sutton sought through his complaint imposition of a medical monitoring fund providing: (1) notice to all persons implanted with the device of its potential harm; (2) periodic medical examinations; (3)education for physicians about diagnosing and treating any scarring that may result from the device; and (4) medical treatment to remove the device from all individuals exhibiting bypass graft compromise as a result of using the device.
St. Jude filed a motion to dismiss the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure asserting that Sutton lacked standing and that he failed to state a claim upon which relief could be granted. The District Court ruled that Sutton lacked standing and dismissed the complaint for lack of subject matter jurisdiction.

The Eastern Section Court of Appeals recently reiterated that Tenn. Code Ann. sec. 20-1-119 does not affect the medical malpractice statute of repose. T.C.A. sec. 20-1-119 is the statute that generally gives a plaintiff 90 days to add a new party in response to a comparative fault defense of an existing, proper defendant, even if the statute of limitations has run on the new defendant. Unfortunately for plaintiffs, 20-1-119 has its limits, and one of them is that it does not affect the three year statute of repose in medical malpractice cases. Read Norris v. East Tenn. Children's Hosp. here.

The Tennessee Supreme Court has granted a Rule 9 Application in a case that involves the interaction between the "foreign object" rule and the statute of repose. The case is discussed in detail here at www.dayontorts.com.

In medical malpractice cases, Tenn. Code Ann. sec. 29-26-119 restricts the medical expenses that an injured plaintiff can recover from a health care provider. The statute is clear as mud (139 words, 13 commas, a paranthetical, and only one sentence), which has led to some confusion over what it means. It's clear now, though, that medical expenses paid for by TennCare (or other government agencies with a subrogation interest such as Medicare and Medicaid) are recoverable under the statute. Take a look at Hughlett v. Shelby County Health Care Corp., 940 S.W.2d 571 (Tenn. App. 1996) for the last word on the issue. A great quote from the case:

At issue is whether the Medicaid program or the defendant health care provider should bear the costs of Medicaid payments made to the injured tort victim.

The Supreme Court of Tennessee addressed the circumstances under which a health care provider in a medical malpractice action may allege comparative fault against the patient in Mercer et al. v. Vanderbilt University, Inc. et al., 134 S.W.3d 121 (Tenn. 2004). The Supreme Court of Tennessee held “that fault may not be assessed against a patient in a medical malpractice action in which a patient’s negligent conduct provides only the occasion for the medical attention, care, or treatment which is the basis for the action.” Id. at 125.

In Mercer, an intoxicated driver was admitted to the defendant hospital for treatment of injuries sustained in a single-vehicle accident. Id. While being treated for his injuries by the defendant health care providers, the patient sustained severe and permanent brain damage. Id. at 126. The plaintiff filed a medical malpractice action on the patient’s behalf, alleging that the defendants’ negligence during treatment of the patient’s vehicular injuries caused the patient’s subsequent permanent brain injury. Id. In response, the defendant hospital asserted the defense of comparative fault based upon the patient’s negligence in driving under the influence and causing the vehicular accident. Id.

The Supreme Court quoted from the Restatement of Torts with approval:
According to the Restatement, “in a case involving negligent rendition of a service, including medical services, a factfinder does not consider any plaintiff’s conduct that created the condition the service was employed to remedy.” Restatement (Third) of Torts: Apportionment of Liability § 7 cmt. m (2000). The reporter’s note to this comment explains that it would be unfair to allow a defendant doctor to complain about the patient’s negligence because this negligence caused the very condition the doctor undertook to treat. Restatement (Third) of Torts: Apportionment of Liability § 7 reporter’s note to cmt. m (2000). . . .Mercer at 129.

Siding with a majority of jurisdictions, the Mercer Court concluded that “[i]t would be anomalous to posit, on the one hand, that a health care provider is required to meet a uniform standard of care in its delivery of medical services to all patients, but permit, on the other hand, the conclusion that, where a breach of that duty is established, no liability may exist if the patient’s own preinjury conduct caused the illness or injury which necessitated the medical care.” Id. at 129-30 (quoting Harvey v. Mid-Coast Hosp., 36 F.Supp.2d 32, 38 (D.Me. 1999)). The Supreme Court of Tennessee agreed that “patients who may have negligently injured themselves are nevertheless entitled to subsequent non-negligent medical treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded.” Mercer at 130 (quoting Fritts v. McKinne, 934 P.2d 371, 374 (Okla. Ct. App. 1996)).

Sommer v. Womick is a recent unpublished opinion by the Tennessee Court of Appeals. The case is a legal malpractice case but the underlying case was a medical malpractice case. What happened at the trial court level caught my eye.
The medical malpractice case was dismissed by the trial court at a hearing the day before trial. At that hearing, the trial court determined that plaintiff's medical expert improperly based his opinion on a national standard of care, rather than a community standard as required by Tennessee law. The trial court excluded the expert's testimony and then dismissed the plaintiff's case because of the plaintiff's inability to meet his burden of proof without requisite expert testimony.
Apparently, plaintiff had offered testimony from his expert at the hearing regarding the similarity of the defendant's medical community and that of the expert, and the expert even referenced some demographic information provided to him that led him to believe that the medical communities of Nashville and St. Louis were similar, but the trial court found significant that the plaintiff's Rule 26 disclosure had not been supplemented to include this information. In fact, according to the opinion, the Rule 26 disclosure failed to state any factual basis for a conclusion that Nashville and St. Louis were similar and had similar standards of care. The trial court explained that plaintiff's Rule 26 expert witness disclosure is intended to provide the expert's opinion and a basis for that opinion sufficient to allow the opposing party to cross examine the expert. Again, the expert was excluded and the case dismissed.

From our Tennessee Business Litigation Blog: The Tennessee Supreme Court held yesterday that covenants not to compete are unenforceable against physicians "except for restrictions specifically provided for by statute." The narrow exception applies to hospital and faculty practice plan employers of physicians, and even then only in limited circumstances. The Supreme Court concluded that all others are against public policy. Read the opinion here.

Patients are the biggest winners in this decision. The Court pointed out that, if noncompetes were enforced against doctors, patients would be unable to continue seeing their personal physician if the doctor left the group. In addition, the knowledge and skills that a doctor develops in practice should be used to treat more patients, not locked away as a trade secret might be.

The Eastern Section Court of Appeals held today that Givens prevents a trial court from issuing an order that allows ex parte communications with a plaintiff's treating physicians. The Court of Appeals rejected the argument by the defendant doctors and Tennessee Medical Association that a patient waives confidentiality by filing suit. Although there is a good chance this case is going up to the Tennessee Supreme Court, this resolves the issue for now in favor of patients.

This issue has been popping up in numerous cases across the state, so the Court of Appeals decision is an important one. Many defendants request "authorizations for medical records and information" with written discovery. Think hard before you allow your client to sign on to any medical release that might be read to allow the defendant to skirt Givens.

A recent Tennessee Court of Appeals opinion provides a great discussion of the Cancellation Rule. Essentially, the Cancellation Rule provides that contradictory statements by the same witness regarding a single fact will cancel each other out and are considered to be “no evidence” of the fact sought to be proven. As explained by the Court in this opinion, however, the Cancellation Rule only applies when the inconsistency in the witness’s testimony is unexplained and when neither version of his testimony is corroborated by other evidence. In this particular case the defendant moved to strike the testimony of plaintiff's expert medical witness due to alleged inconsistent statements in the doctor's deposition testimony as compared to his affidavit offered in opposition to the Defendant's motion for summary judgment. For more, download the case.

The Tennessee Court of Appeals recently ruled that the issue of whether informed consent was obtained from the patient before removing one of his testicles during a procedure to repair a hernia was a question for the jury even though the patient had signed a broad consent form prior to the procedure. The consent form read in pertinent part:

I consent to the performance of operations and procedures in addition to or different from those contemplated, whether or not arising from presently unforeseen conditions, which the above named physician or his associates or assistants may consider necessary or advisable in the course of the operation.