Medical Malpractice
The emphasis of several of the members of Butler, Vines and Babb is medical negligence law. Two members of the firm are certified as civil trial specialists with the Tennessee Commission on Specialization and by the National Board of Trial Advocacy. Members of the firm have been called upon by groups including Bar associations to give seminars regarding the handling of medical negligence cases.
The firm employs a Medical Doctor and two Registered Nurses as paralegal medical consultants. These persons are specially trained to assist in evaluating whether a patient was negligently injured by medical care. Hundreds of potential cases have been reviewed, generally at the request of other law firms, for the initial evaluation of the merits of the case. The firm also has established contacts with physicians at medical institutions who are willing to assist with an objective analysis of potential cases.
SPECIAL DIFFICULTIES FOR PERSONS INJURED BY MEDICAL NEGLIGENCE
THE PROOF
Medical negligence law differs from other fields of litigation. In an automobile accident situation, a person injured in an accident may be able to simply go to court, explain to the jury how the accident happened, and seek from the jury a ruling as to whether there is liability in the accident.
In medical negligence law, statutes have been passed that require an injured person to present testimony from other experts (generally physicians) who can say that there has been medical negligence which the law describes as "a deviation in the standard of care." Without such expert testimony, the cases are generally lost.
WITNESSES
Tennessee has special statutory requirements which restrict the ability of patients to obtain expert witnesses to support a claim. In Tennessee, an expert witness who testifies must be from the state of Tennessee or a state that touches Tennessee. Further, the expert must have been in practice for one year preceding the events in question.
THE LOCALITY RULE
For a witness to be able to testify on behalf of a party in a medical negligence case, the witness must be able to state that they are familiar with the standard of care for the medical practitioner in the community in which the defendant practitioner practices or in a similar community. This rule requires that care be given in consulting with potential expert witnesses who can show familiarity with the community of the defendants or a community which qualifies under the law as being similar. In summary, even though an expert witness may practice in the same category of specialty, unless he/she can meet the qualification of claiming to know the standard of care in the community or knows the standard of care in a similar community, that witness may be excluded by the court without being able to testify on behalf of the party.
Obviously Tennessee injured patients have some difficulty due to the statutory restrictions. Attorneys who have practiced in the field of medical negligence law for a long period of time, such as those at Butler, Vines and Babb, PLLC, have staffs consisting of medical specialists, including nurses and physicians, who may help advise and assist in requesting proper and qualified expert witnesses.
STATUTES OF LIMITATION
In Tennessee, the statute of limitations is shorter than some other jurisdictions. An injured adult patient must sue within one year from the time the cause of action arose. As a general principle, the one year begins from the date of discovery of the potential cause of action.
THREE YEAR OF STATUTE OF REPOSE
Regardless of the date of discovery of the cause of action, in Tennessee the legislature has passed a statute which states that all cases must be brought within three years from the date of the event. This statute is called a statute of "repose." It is possible in Tennessee that this statute can run even though you did not have full awareness of the injury.
It is, therefore, important in Tennessee to investigate with qualified persons the possibility of a cause of action and not to delay. Delay could result in the loss of a potential cause of action.
BIRTH INJURIES AND INJURIES TO CHILDREN
The Tennessee Supreme Court has recently held that injury for a child must be filed within three years from the date the injury occurred if it involves medical malpractice. It was previously thought to be the law that a minor would have until that minor reached the age of 18. This is no longer true and anyone who feels their child has been injured by medical negligence should move quickly to determine if a claim is meritorious.
Calaway v. Schucker, Tennessee Supreme Court No. M2004-02856-SC-R23-CQ
MEDICAL EXPENSES
Special rules may apply regarding the ability to collect for medical expenses made necessary as a result of medical negligence. Those rules may be different from other types of cases such as automobile accidents. In Tennessee, the legislature has passed a statute which restricts patients from being able to collect for medical expenses where those expenses have been paid through insurance that was furnished by an employer or a governmental entity. There are exceptions to this rule, such as where the patient pays a portion of the insurance premium and/or where there is a right of the health insurance company to collect back the payments it made (subrogation).
MEDIATION
In recent years, many of the medical negligence cases have been settled by compromise in a procedure known as "mediation." The parties, generally including the involved insurance companies, go to the office of a mediator who assists the parties in helping to understand the concerns of each side of the case and helping the parties to determine a reasonable amount for a settlement. The mediation process is usually voluntary and has proven to be very successful in cases that have true merit.
Some of the attorneys at Butler, Vines and Babb, PLLC have been certified as Tennessee Supreme Rule 31 General Civil Mediators.
THE TRIAL
In trial in state court in Tennessee, there is a right to a jury if one is requested. Generally there is a 12-person jury. A unanimous verdict is required for a patient to recover. If a medical negligence case qualifies to be in federal court, often there will only be a 6-person jury.
COMPARATIVE FAULT
If there are several medical practitioners whose acts combine to cause the injury, the jury may be allowed to allocate fault among those. This is in Tennessee called the Doctrine of "Comparative Fault."
THE IMPORTANCE OF INVESTIGATION
It cannot be stressed too heavily that proper and early investigation of medical negligence cases is important to determine their merit. Medical negligence cases are often complex, involve technical issues, and require diligence and hard work to prepare.
REPRESENTATIVE CASES
Representative cases where the firm represented the injured party include Shannon Russell v. Dr. James Crutchfield, Campbell County Circuit Court ($1 Million jury verdict); Danker v. Dr. Leonard Brabson, Knox County Circuit Court, Division I; ($1.1 Million jury Verdict); Teresa Walters v. Omer Renner, M.D. [injury during gynecological operation] ($350,000 jury Verdict); and Hope O'Connor v. John Rodgers, M.D. and East Tennessee Children's Consultants, P.C., Knox County Circuit Court [Failure to diagnose scoliosis, resulting in major surgery for child], ($865,000 jury Verdict - December 1, 2000).
OTHER MEDICAL MALPRACTICE SETTLEMENTS SUBJECT TO CONFIDENTIALITY AGREEMENT REQUIRED BY DEFENDANTS:
- Total disability brain damage following surgery
- Injury during laparoscopic cholecystectomy (Multiple cases)
- Failure to treat impending heart attack (multiple cases)
- Defective heart valve installed in patient
- Failure to diagnose internal injuries
Click here for an additional listing of results we have obtained for our clients.
Butler, Vines and Babb attorneys Bill Vines, Ron Koksal and Mark Hartsoe represent individuals injured as a result of medical negligence. Click on their name to review their profile and contact information, and/or complete our Medical Malpractice Intake Form for further information.
The attorneys at Butler, Vines and Babb serve clients throughout Tennessee including Knoxville, Nashville, Memphis and Chattanooga, Tennessee.
