Medical professional liability limits up for vote Tuesday

The Senate Judiciary Committee has set a hearing on Tuesday afternoon for legislation by Sen. Mark Norris, R-Memphis, and Sen. Doug Jackson, D-Dickson, that limits medical professional liability or requires pre-certification of medical malpractice cases. Norris' bill, SB 2001, is similar to last year's legislation. It sets caps on damages for loss of enjoyment of life, loss of society, loss of consortium, and mental anguish at $250,000; permits mandated periodic payments; limits attorneys fees; permits damages for failure to provide a pre-filing doctor's affidavit; and requires a waiver of any doctor-patient confidentiality with respect to plaintiffs involved in litigation.

Jackson's bill, SB 0033, requires certification by a competent medical expert that the case and defense have merit or that material information is not known.

The TBA has traditionally opposed artificial caps on damages and limits on attorneys' fees, but has not opposed reasonable pre-certification requirements and provisions permitting full discovery of medical records and physician testimony.
TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
10 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

CAROLYN JEAN GAMBLE and CAROLYN JEAN GAMBLE on behalf of Deceased, GEORGE GAMBLE v. LENETTE PERRA, M.D., BAPTIST HOSPICE, BAPTIST HOSPITAL OF EAST TENNESSEE, PIERCE ALEXANDER, M.D., HILLCREST WEST ON MIDDLEBROOK PIKE, CAROLYN SUE TOWNSEND, R.N., of HOSPICE, JAMES WORDEN, DIRECTOR OF BAPTIST HOSPICE
Correction to show that Mr. Daves and Mr. Vogel are attorneys for James Worden, M.D.


Court: TCA

Attorneys:

Carolyn Gamble, Knoxville, Tennessee, pro se

Wynne C. Hall and Joshua R. Walker, Knoxville, Tennessee, for appellee, Lenette Perra, M.D. Gary G. Spangler and Zachariah N. Stansell, Knoxville, Tennessee, for appellees, Baptist Hospital of East Tennessee and Sue Townsend, R.N. Debra A. Thompson, Knoxville, Tennessee, for appellee, Dr. Brian Hughes. Stephen C. Daves and P. Alexander Vogel, Knoxville, Tennessee, for appellee, James Worden, M.D.

Judge: FRANKS

Plaintiff sued defendants alleging their negligence caused the wrongful death of her husband. The Trial Court granted defendants summary judgment on the grounds that plaintiff's responses did not raise any disputed issues of material fact. We affirm.

http://www.tba2.org/tba_files/TCA/2007/gamblec_correx_022307.pdf


CLIFFORD MICHAEL JOHNSON v. NISSAN NORTH AMERICA, INC.

Court: TCA

Attorneys:

Joy L. Davis, Franklin, Tennessee, for the appellant, Clifford Michael Johnson

Larry G. Trail, Murfreesboro, Tennessee; Michael P. Berger, Smyrna, Tennessee; and Jonathan R. Mook, Alexandria, Virginia, for the appellee, Nissan North America, Inc.

Judge: CLEMENT

An employee of Nissan North America appeals the summary dismissal of his action for retaliatory discharge. The employee alleged he was terminated because he filed a workers' compensation claim. Nissan denied liability stating the termination was due to the employee's violation of medical restrictions related to lifting and bending. Nissan filed a Motion for Summary Judgment, which the trial court granted. We have concluded, as the trial court did, that Nissan stated a legitimate, non-pre-textual reason for termination, and the employee failed to offer specific facts to realistically challenge Nissan's stated reason for termination. Therefore, we affirm.

http://www.tba2.org/tba_files/TCA/2007/johnsonc_022307.pdf


BILLY BRITTON, III v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Thomas O. McIntire, Nashville, Tennessee, for the appellant, Billy Britton, III

Michael E. Moore, Acting Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Amy H. Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: MCLIN

The petitioner, Billy Britton, III, appeals the post-conviction court's denial of his petition for post-conviction relief. On appeal, he argues that he received the ineffective assistance of counsel. Following our review of the record and the parties' briefs, we affirm the courtís denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2007/brittonb_022307.pdf


STATE OF TENNESSEE v. TIMOTHY JOWERS

Court: TCCA

Attorneys:

Jack S. Hinson, Lexington, Tennessee, for the appellant, Timothy Jowers

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Jerry Woodall, District Attorney General; and Bill R. Martin, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: SMITH

The appellant, Timothy Jowers, pled guilty to robbery and possession of contraband in a penal facility. As part of the plea agreement, the trial court approved a concurrent sentence of five years for each conviction. The appellant was ordered to complete a six-month inpatient treatment program for drug and alcohol abuse prior to serving the balance of his sentence on probation. Subsequently, a probation violation warrant was issued against the appellant, alleging that he failed to complete the six-month program as required by the trial court. The appellant filed a motion to revoke his own probation, asserting that he was incarcerated in Oklahoma serving a five-year sentence for a conviction in that state and admitting to the probation violation. The trial court denied the motion to revoke probation because the warrant had not yet been served on the appellant due to his incarceration in Oklahoma. After the warrant was finally served on the appellant, an amended probation violation warrant was filed and served on the appellant. The trial court held a hearing on the matter, revoked the appellant's probation, and awarded the appellant jail credits for time served in Tennessee prior to his plea and for time served in incarceration after service of the probation violation warrant. On appeal, the appellant complains that the trial court improperly denied retroactive jail credits for time served in Oklahoma.

http://www.tba2.org/tba_files/TCCA/2007/jowerst_022307.pdf


STATE OF TENNESSEE v. RAYMOND O. LONG, JR.

Court: TCCA

Attorneys:

Edward S. Ryan, Nashville, Tennessee, for the appellant, Raymond O. Long, Jr.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Katrin N. Miller and Christopher Buford, Assistant District Attorneys General, for the appellee, State of Tennessee

Judge: MCLIN

The defendant, Raymond O. Long, Jr., was convicted by a Davidson County jury of first and second degree murder. He was sentenced to life imprisonment for the first degree murder conviction and thirty-two years for the second degree murder conviction to be served consecutively. On appeal, he argues that the trial court erred: (1) in not allowing a complete jury voir dire; (2) in allowing testimony regarding his conduct toward the victim in violation of the rule against hearsay and Tennessee Rule of Evidence 404(b); (3) in excluding a videotape of a witness's prior inconsistent statement; (4) in not acting as thirteenth juror because the jury verdict was against the weight of the evidence; and (5) in its sentencing determination. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/longr_022307.pdf


CHICO McCRACKEN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Eric Christensen, Memphis, Tennessee, for the appellant, Chico McCracken

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General, for the appellee, State of Tennessee

Judge: WEDEMEYER

The Petitioner, Chico McCracken, was convicted of one count of murder in the perpetration of a felony and one count of aggravated robbery. He petitioned for post-conviction relief claiming that he had received the ineffective assistance of counsel at trial. The post-conviction court dismissed the post-conviction petition, and we affirm that judgment.

http://www.tba2.org/tba_files/TCCA/2007/mccrackenc_022307.pdf


STATE OF TENNESSEE v. MARVIN D. NANCE

Court: TCCA

Attorneys:

Greg W. Eichelman and Robert Russell Mattocks, Morristown, Tennessee, for the appellant, Marvin D. Nance

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; C. Berkeley Bell, District Attorney General; Cecil Mills and Amber DePriest, Assistant District Attorneys General, for the appellee, State of Tennessee

Judge: WEDEMEYER

The Defendant, Marvin D. Nance, was convicted of aggravated sexual battery, and the trial court sentenced him to ten years in the Department of Correction. On appeal, the Defendant contends that: (1) the State failed to elect a set of facts upon which it was relying to sustain his convictions; (2) the evidence is insufficient to sustain his conviction; (3) the trial court erred by not granting him a mistrial after the State made allegedly improper argument; (4) the State committed a discovery violation; and (5) the trial court erred when it sentenced him. Finding no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/nancemd_022307.pdf


STATE OF TENNESSEE V. TARREAN NUBY

Court: TCCA

Attorneys:

Juni Ganguli (at trial) and Lance R. Chism (on appeal), Memphis, Tennessee, for the Appellant, Tarrean Nuby

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; Michelle Parks and Dean Decandia, Assistant District Attorneys General, for the Appellee, State of Tennessee

The Defendant, Tarrean Nuby, was convicted by a Shelby County jury of attempted first degree murder and aggravated robbery. On appeal, he alleges there was insufficient evidence for any rational jury to convict him of attempted first degree murder. Finding no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/nubyt_022307.pdf


STATE OF TENNESSEE v. ARTIS REESE

Court: TCCA

Attorneys:

Garland Erguden, Assistant Public Defender, Memphis, Tennessee for the appellant, Artis Reese

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; William L. Gibbons, District Attorney General; and Nicole Duffin, Assistant District Attorney General,for the appellee, State of Tennessee

Judge: SMITH

The appellant, Artis Reese, was indicted on four counts of aggravated robbery, one count of possession of marijuana, and one count of aggravated criminal trespass. After a jury trial, the appellant was convicted of four counts of aggravated robbery and one count of aggravated criminal trespass. Following a sentencing hearing, the trial court merged two of the aggravated robbery convictions into the other two aggravated robbery convictions and imposed consecutive eight-year sentences on the resulting two convictions for aggravated robbery. The trial court sentenced the appellant to a concurrent sentence of six months for aggravated criminal trespass, resulting in an effective sentence of sixteen years. After the denial of a motion for new trial, this appeal followed in which the appellant challenges the sufficiency of the evidence. Because the evidence was sufficient to support the convictions, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/reesea_022307.pdf


STATE OF TENNESSEE v. EDWARDO RODRIGUEZ

Court: TCCA

Attorneys:

William K. Cather, Assistant Public Defender, Lebanon, Tennessee, for the appellant, Edwardo Rodriguez

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Robert N. Hibbett, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: MCLIN

The defendant, Edwardo Rodriguez, was convicted of two counts of rape of a child and two counts of aggravated sexual battery. The aggravated sexual battery convictions were merged into the rape of a child convictions, and the defendant was sentenced to consecutive terms of twenty years for each child rape conviction. On appeal, the defendant argues that the trial court erred (1) in allowing testimony regarding his viewing of pornography on the home computer, and the repeated and compounded error of allowing the state to introduce this evidence was reversible error; (2) in overruling his motions for a mistrial following testimony of other allegations of child molestation; and (3) in ordering consecutive sentencing. Upon review of the record and the partiesí briefs, we modify the defendant's sentences to be served concurrently, rather than consecutively. In all other respects, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2007/rodrigueze_022307.pdf


STATE OF TENNESSEE v. ELVIN WILLIAMS

Court: TCCA

Attorneys:

Elvin Williams, pro se, Hardeman County Correctional Facility, Whiteville, Tennessee

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: MCLIN

The defendant, Elvin Williams, pled guilty to the sale of less than .5 grams of cocaine and received an agreed upon sentence of six years and one month. Thereafter, the trial court ordered the defendant to serve his sentence in the Department of Correction. Following the dismissal of his motion for reduction of sentence, the defendant appealed. On appeal, the defendant argues that the trial court erred in finding that it was divested of jurisdiction pursuant to Tennessee Code Annotated section 40-35-212 and denying his motion for reduction of sentence. Following our review of the parties' briefs and applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/williamse_022307.pdf


STATE OF TENNESSEE v. KENNETH WORKMAN

Court: TCCA

Attorneys:

Bob Stovall, Assistant Public Defender, Pulaski, Tennessee, for the appellant, Kenneth Workman

Robert L. Cooper, Jr., District Attorney General; Jennifer L. Bledsoe, Assistant Attorney General; Mike Bottoms, District Attorney General; and Patrick Butler, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WELLES

The Defendant, Kenneth Workman, pled guilty in the Giles County Circuit Court to aggravated burglary, Class D felony theft, and Class D felony vandalism. Following a sentencing hearing, the trial court imposed an effective four-year sentence to be served in the Department of Correction and ordered restitution in the amount of $5000.00. In this appeal as of right, the Defendant argues that the amount of restitution is excessive. After a review of the record, restitution is reduced from $5000.00 to $2750.00. Otherwise, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2007/workmank_022307.pdf


TODAY'S NEWS

Legal News
Legislative News
Upcoming
TennBarU CLE
BPR Actions

Legal News
BPR disciplinary counsel retiring after 30-plus years
Lance Bracy, who has served as disciplinary counsel for the Board of Professional Responsibility (BPR) for more than 30 years, announced today that he will retire May 1. "Lance has a unique combination of sound judgment, common sense and a real knowledge of the ethical principals which govern the legal profession," Chief Justice William M. Barker after hearing the news.
Read more about Bracy's career
Sentencing questions still being answered
A legislative fix to Tennessee's sentencing law in 2005 may save the state from having to deal with thousands of contested sentences, Nashville lawyer David Raybin tells the Knoxville News Sentinel.
Read more
Hearing on DA's license suspension delayed
The Board of Professional Responsibility has delayed until mid March a hearing scheduled for today on the law license suspension of District Attorney Bill Gibson. The BPR had suspended Gibson's license after it came to light that he had written letters offering legal and spiritual guidance to a convicted murderer.
Read the Herald-Citizen's coverage
Why so many changes in U.S. attorneys?
Are U.S. attorney appointments becoming too politicized? An opinion piece in the Knoxville News Sentinel looks at recent presidential moves and urges a Senate inquiry.
Read the full column
Legislative News
Stay current on legislation with TBA updates
The Tennessee General Assembly is tackling a number of bills of interest to Tennessee lawyers this session. Keep up with action on those bills with the TBA legislative Watch and Action lists.
Check out TBA legislative updates
Upcoming
Lecture will examine military tribunals ruling
Georgetown law professor Neal Katyal, who served as lead attorney in the landmark Supreme Court case Hamdan v. Rumsfeld, will be at Vanderbilt Law School on Monday to talk about the case in a noon program, "Hamdan v. Rumsfeld: The Juxtaposition of the U.S. Constitution, International Law and National Security."
Read more about the program
TennBarU CLE
Getting paid a problem? TennBarU online ethics course can help
Collecting fees is not directly addressed in the Rules of Professional Conduct, however both the rules and malpractice carriers have something to say on the issue. A new online course from TennBarU explores practice management strategies to help reduce the number of non-paying clients and discusses ethical obligations for collecting fees from such clients.
Register or learn more
BPR Actions
Brentwood attorney censured
Brentwood attorney Charles G. Blackard III was publicly censured by the Board of Professional Responsibility on Feb. 22, following complaints that he had violated RPC 1.1 (competent representation), RPC 1.3 (diligence and promptness), RPC 1.4 (client communication), RPC 1.16(d) (duties on termination by client) and RPC 8.4(d) (conduct prejudicial to the administration of justice).
Read the BPR release

 
 
UNSUBSCRIBE TO TBAToday? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba2.org/tbatoday/unsub_tbatoday.php

TBALink HomeContact UsPageFinderWhat's NewHelp
 
 
© Copyright 2006 Tennessee Bar Association