Shelby County, Tennessee Jury Verdicts in 2015

Shelby County Verdicts 2015

We are all inundated by often-tacky lawyer commercials anytime we watch television or listen to radio. Legal ads now are topping taxis, smiling down from billboards and are spilling down the side of buses.

One would think that the Shelby County courthouse is just handing out free money to claimants and their well-dressed attorneys. But is the perception of “jackpot justice” a reality?

How about a test?

1. How many $100,000.00+ jury verdicts in car accidents do you think there are each year in Shelby County?
a. 6-10
b. 11-15
c. 16-20
d. 21 or more
e. None of the Above.
In mid to late 2015, for instance, reported cases I reviewed from Shelby County revealed zero (0) jury verdicts in car accident cases higher than $75,000.

2. How many jury verdicts for the patient in medical malpractice do you think there are each year in Shelby County?
f. 6-10
g. 11-15
h. 16-20
i. 21 or more
j. None of the Above.
In mid to late 2015, reported cases I reviewed from Shelby County revealed zero (0) jury verdicts for the Plaintiff. Doctors won two outright and a mistrial was caused by a hung jury on the third.

Granted, there are significant out-of-court settlements that are not reported. I personally had several larger cases in the $100,000- $900,000 category in 2015 that are not listed anywhere.  But it is worth pointing out that the system seems to be geared towards resolving cases short of trial more often than not. And when trial is had, more often than not the defendants have picked a case to oppose that has shortcomings they maybe able to exploit for a lower verdict.

Juries are not as loose with the pocketbook as you might have thought. Notice, however, the large drop in litigation and verdicts has not reduced our insurance premiums one little bit.

CAPS HURT ONLY THE HURT

Lawsuit Damage Caps Threaten the Most Seriously Injured Tennesseans

Non-Economic Damage Caps Disproportionately Affect Children, Elderly and People with Disabilities

Nashville— Five year old Amanda Travis went to a Nashville surgery center for a routine tonsillectomy. She never returned home. During her stay nurses administered the wrong dosage of Demerol and Valium as well as the wrong type and dosage of IV fluids—four times the normal amount. Due to vomiting of blood and mucus caused by the medication error and an understaffed facility, Amanda suffered a loss of oxygen, and soon after was pronounced brain dead.

The surgery center altered Amanda’s medical records three times in an attempt to cover up the medical errors which caused her death. It was also revealed that her nurse-anesthetist had a history of drug abuse and later died from a drug overdose during another patient’s surgery.

Non-economic damage awards compensate for real injuries and losses that are not easily measured by a dollar amount like lost wages or medical bills. Losses like paralysis, disfigurement, or a child’s loss of a mother are more significant than medical bills or lost wages. Caps on non-economic damages are unfair and discriminate against individuals who have little to no income, such as women or men who work inside the home, children, people with disabilities, and the elderly. Caps arbitrarily limit damages in cases where the injuries are the most severe and often where the conduct is the most reprehensible.

“Since a five year old obviously has no source of income, non-economic damages provided the only recourse the Travis family had to hold those who were responsible for the senseless death of their little girl accountable,” stated Phillip Miller, President, Tennessee Association for Justice. “The government should not be legislating the price of someone’s life when their death unnecessarily occurs as a result of blatant medical negligence. A Tennessee jury, after hearing all the facts, should be trusted with determining the amount a negligent defendant should be responsible for when wrongful conduct takes the life of a little girl.”

Caps on non-economic damages means the lives of children, seniors, women and low wage earners who do not work outside the home are worth less than the lives of a businessmen. Entire classes of low–income or non-earners would be branded as being worth less than their wealthier counterparts. Without non-economic damage awards to these vulnerable citizens, care decreases and wrong doers are not properly held accountable for their negligence.

“We trust our fellow Tennesseans in the ballot box,” said Miller. “We should continue to trust them in the jury box.”

Med Mal filings down in TN, where's the crisis???

Civil Justice System Under Attack with False Propaganda

Groups Working to Increase Profits by Taking Away Tennesseans Constitutional Rights

Nashville— Tennessee’s civil justice system works by promoting responsible behavior and holding wrongdoers accountable for the harm they cause others. Groups have recently started using propaganda based on fictitious numbers to try and convince Tennesseans to give up their right to a trial by jury while giving big business and insurance companies more profits. Real facts, published by credible sources not one-sided “think tanks”, show Tennessee provides a great environment for business, large and small, while maintaining a system of civil justice that works for all of its citizens, rich and poor.

“Most of the information circulating recently regarding so-called “lawsuit abuse” has been spun to misrepresent the facts and mislead the public.” said TAJ President Phillip Miller. “The real facts, backed up by real sources, prove there is no “lawsuit” crisis in Tennessee. Blaming “the civil justice system” for job loss is just a smokescreen for the real intent of these groups – finding yet one more “bail-out” for business that everyone else will pay for.”

“The current civil justice system is the only system of checks and balances ordinary citizens can use to protect them and their rights. Unfortunately, people who are the biggest beneficiaries of the Constitution are working to take the Constitutional rights of others away so they can line their own pockets. That is a sad reality,” continued Miller.

Texas and Mississippi are often used as positive examples in the lawsuit propaganda. Facts illustrate “lawsuit reform” did not benefit either state. According to the U.S. Bureau of Labor Statistics, Mississippi’s unemployment rate is at an all time high, and they are also ranked 46th in the nation for business climate. Texas currently faces a $25 billion deficit, and according to the U.S. Census Bureau, contains the nation’s highest rate of uninsured citizens – 24.5 percent.

Prior to the passage of “lawsuit reform” in Texas, 152 counties did not have a single obstetrician, four years later, the same number of counties still do not have an obstetrician. Rural counties do not have OB/GYN or other specialty doctors because there are not enough people and patients, not because of fictitious lawsuit abuse. However in Tennessee, medical malpractice filings have dropped 44 percent over the last 3 years and the premiums paid by doctors have dropped 23 percent.

“There are those that think false propaganda and phony statements will fool Tennesseans and scare them enough to give up their constitutional rights.” said Miller. “We are the Tennessee Association for Justice, and our members are sworn to uphold the Constitution. For us, that’s not an empty promise. Tennesseans deserve better than this. They are trusted in the ballot box, they can be trusted in the jury box as well.”

###

www.tnaj.org/TAJFACTS

Jill Hudson

Communications Director

o. 615.329.3000

c. 615.715.4494

LISTING OF TORT REFORM BILLS IN TENN (VOTE -3/23

TORT REFORM BILLS IN TN THAT WILL RE-VICTIMIZE THOSE INJURED IN THE NAME OF JOBS--- "Come hurt our citizens-- it's cheaper here!!!"

(Contacts you can call are the end)

SB 0238
Kelsey
HB 0286
Dennis
Jobs Creation Lawsuit Reform Act. Defines "health care provider" and "health care liability action". Requires that compensation for reasonable attorney's fees, in the event an employment contract exists between the claimant and claimant's attorney, be awarded to the claimant's attorney in a health care liability action in an amount to be determined by the court with consideration to established limitations. Broadly captioned. (S: Kelsey; H: Dennis)



SB 0249
Johnson J.
HB 0183
Sargent
Tort Reform- Medical Malpractice & Products Liability. Creates the Private Attorney Retention Sunshine Act which requires state agencies obtaining legal services to conduct an open bidding process for services, seek general assembly approval for contracts over $1,000,000, and prohibits legal fees exceeding $1,000 per hour. Creates the Asbestos Claims Priority Act which prohibits the filing of specific asbestosis related claims including nonmalignant conditions, asbestos related cancer, mesothelioma, and wrongful death unless specific and enumerated prima facie evidence is shown by medical report and filed within 120 days of filing the complaint. Restricts premises owner liability for asbestos exposure on their property, and limits jurisdiction of Tennessee courts over asbestos claims. Creates the Innocent Successor Asbestos-Related Liability Fairness Act. Sets a maximum amount of liability placed on corporations that have incurred or assumed asbestos related liability as a result of a merger or consolidation prior to January 1, 1972. Redefines and expands the definition and requirements of a products liability claim including what constitutes defective and unreasonably dangerous, the burden of proof, requisite knowledge of both the plaintiff and the defendant, actions or knowledge by the plaintiff that absolve a defendant of liability, seller versus manufacturer liability, and seller indemnity. Creates a rebuttable presumption that when a seller or manufacturer is in compliance with applicable federal law a product is not considered to be defective. Replaces the term "Medical malpractice" with "Health care liability action" which clarifies the cause of action as limited to any civil action against a health care provider alleging injury related to the provision or failure to provide health care. Requires, rather than permits, a plaintiff in a health care liability action to include a demand for a specific sum in their complaint and limits suits against attorneys for failure to collect the demanded amount. Requires that a plaintiff file a HIPPA- complaint medical authorization form with their petition in a health care liability action. Allows an award of $75,000 or more in a health care liability action be made in periodic payments per court order and by party request. Restricts the amount of fees an attorney can collect in a health care liability action when employment contract was based on a contingent fee from a maximum of thirty three and one third percent of the damage award to various percentages based on the recovery amount, starting with forty percent of the first $50,000. Requires, subject to judicial waiver, an expert witness to have been practicing in the same specialty as the defendant to testify to duty and breach in a health care liability action. Prohibits specific expressive conduct and offers to correct from being used as evidence of an admission of fault against health care providers in suits and other disciplinary proceedings concerning unexpected results from medical treatment. Limits the amount of bond or other security a health care provider must post when an appeal is pending to no more than $1,000,000. Clarifies that groups qualifying as medical or peer review committees that provide review for the professional conduct and competency of peers are not limited to those listed in the code. Places the maximum amount of noneconomic damages recoverable under a civil action at $250,000 per person, $500,000 per occurrence, or a specified number based on the amount of full-time employees the defendant employs and restricts the award of punitive damages for claims involving drugs and devices. Redefines economic damages to include provisions regarding expenses forgiven, discounted, or covered by private insurance. Requires the plaintiff to show an actual out- of -pocket loss to recover any damages and prove causation in a suit for unfair or deceptive acts or practices. (pp 40.) (S: Johnson J.; H: Sargent)



SB 0250
Johnson J.
HB 0182
Sargent
Changes to venue, damages, and certain civil actions. Specifies that venue in transitory civil actions may be in a county where a substantial act, omission, or event allegedly occurred, instead of where the action arose. Specifies that venue for corporations in transitory civil actions may be in a county where the principal place of business is located. Removes venue for corporations within counties where the corporation has an office or agency located. Requires that each joined plaintiff must independently establish venue. Requires courts to dismiss certain claims, instead of adjudicating under forum non conveniens. Requires courts to consider certain factors when considering to dismiss an action or transfer venue under forum non conveniens. Specifies that it is a Class A misdemeanor to prevent a juror from serving jury duty or to require a juror to use annual, vacation, or sick leave to respond to a summons. Alters joint and several liability on multiple tortfeasors. Caps noneconomic damages at 500,000 dollars in medical malpractice lawsuits. Alters product liability actions to require the plaintiff to prove certain additional evidence, allow the product seller to be indemnified by the manufacturer in certain situations. Caps noneconomic damages at 1,000,000 dollars on all civil actions. Prohibits property owners or occupants from liability regarding certain injuries to independent contractors occurring on the property. Specifies how and when punitive damages can be awarded in certain actions. Caps punitive damages in certain actions at an amount depending on the defendant's net worth. (15 pp.) (S: Johnson J.; H: Sargent)



SB 0360
Johnson J.
HB 0174
Casada
Medical malpractice resulting from emergency care. Establishes new requirements for medical malpractice actions in an emergency department of a hospital. Establishes the claimant has the burden of proving, by a preponderance of the evidence, the gross negligence of the defendant. Requires the jury to be further instructed that injury alone does not raise a presumption of the defendant's gross negligence. (S: Johnson J.; H: Casada)



SB 0386
Kelsey
HB 0363
Dennis
Jobs Creation Lawsuit Reform Act. Enacts the "Jobs Creation Lawsuit Reform Act." Caps the reasonable attorney fees in medical liability/malpractice actions to 40 percent of the first 50,000 dollars in damages recovered, 33 and one-third percent of the next $50,000 in damages recovered, 25 percent of the next $500,000 in damages recovered, and 15 percent of any amount by which the recovery exceeds $600,000. (Broadly captioned.) (S: Kelsey; H: Dennis)



SB 0694
Faulk
HB 1157
Dennis
Death or adverse condition would have occurred anyway. Prohibits recovery in a medical malpractice case for negligent diagnosis or treatment that decreases a patient's chances of avoiding death or any other adverse medical condition where the death or other adverse medical condition would have occurred even if the defendant had not been negligent. Broadly captioned. (S: Faulk; H: Dennis)



SB 0696
Faulk
HB 1018
Lundberg
Punitive damages in civil actions. Declares as reasonable attorney's fees of up to one-third the amount of a punitive damages award. Requires that any award of punitive damages in a civil action be divided equally between the plaintiff and the state. Specifies that the state's portion may be applied as an offset against the amount of fees charged the state and that moneys beyond that will be deposited in a civil reparations trust fund, to provide grants to indigent civil litigation programs. Defers collection of punitive damages until all other judgments in a civil action are fully paid. Broadly captioned. (S: Faulk; H: Lundberg)



SB 0938
Kelsey
HB 1152
Dennis
Tort reform regarding punitives, noneconomic losses. Caps noneconomic losses at 250,000 dollars against each defendant or maximum of 500,000 dollars for each occurrence. Specifies that noneconomic losses do not include medical expenses, lost past or future wages or earnings capacity, other loss of income, funeral and burial expenses, economic value of services performed, or other similar actual monetary losses. Caps punitive damages at the greater of 250,000 dollars or twice the amount of compensatory damages, if the defendant employs more than 100 full-time employees. Caps punitive damages at the lesser of 250,000 dollars or twice the amount of compensatory damages, if the defendant employs 100 full-time employees or less. Specifies that such caps on punitive damages does not apply to certain actions. Specifies that each monetary figure will be adjusted at three-year intervals according to the Consumer Price Index rate. Specifies that such punitive damages caps do not apply to certain tort actions involving intentional or knowing mental states and when the defendant has been convicted of a felony that has one of the intentional or knowing mental states. Prohibits punitive damages in cases where the injury was caused by a drug or device that was approved by the Federal Food, Drug, and Cosmetic Act or the Federal Public Health Service Act or was an over-the-counter drug marketed according to federal regulation and the drug meets other conditions. Places the burden on plaintiffs seeking to prove discrimination in employment or retaliatory discharge at various levels regarding certain issues throughout the trial process. (S: Kelsey; H: Dennis)

Senate Status: Referred to Senate Judiciary.
House Status: Introduced 2/17/2011



SB 1522
Norris
HB 2008
McCormick
Tennessee Civil Justice Act of 2011. Enacts the "Tennessee Civil Justice Act of 2011." Specifies new venue requirements for any civil suit against a company to no longer include any county in which the business has an agency or office. Reduces from $75,000,000 to $25,000,000 the maximum bond a civil litigant must post to appeal a final order and stay execution of the order while on appeal. Establishes a normal rule requiring bond equal to 125% of the judgment, excludes punitive damages from the calculation of the bond amount and provides for an appeal without the risk of bankruptcy. Clarifies that a civil plaintiff may recover for economic losses incurred but not for charges subject to discounts or forgiveness of such health care charges that would be discounted under a health care plan. Limits non-economic damages to $750,000 per injured plaintiff outside of the health care liability action context and $750,000 per occurrence in the health care liability action context. Provides limits for punitive damages at two times compensatory damages or $500,000 whichever is greater. Prevents punitive damages in products liability actions when the defendant complied with state and federal regulations. Limits liability of a seller of a product except in certain specific circumstances. Enables interlocutory appeal of orders granting or denying class certification and automatic stays. (Part of Administration Package) (13 pp.) (S: Norris; H: McCormick)



SB 1322
Johnson J.
HB 1848
Sexton
Study - impact of tort reform on anticompetitive activities. Creates an advisory council to study the potential impact of tort reform measures on anticompetitive activities engaged in by hospitals, insurance companies and health care professionals and whether or not such impact, if any, would increase or decrease the overall cost of healthcare in this state. (S: Johnson J.; H: Sexton)



SB 0639
Johnson J.
HB 0384
Marsh
Successful parties in civil actions entitled to full costs. Clarifies that successful parties to a civil action are entitled to full costs unless the law states otherwise. Abolishes the use of judicial discretion to adjudge costs or apportion the cost between litigants in a civil action. (S: Johnson J.; H: Marsh)



SB 0651
Campfield
HB 1156
Dennis
Apportioning litigation costs in certain suits. Removes judicial discretion to apportion costs based on equity and permits recovery of certain litigation costs by the successful party to certain civil actions. Broadly captioned. (S: Campfield; H: Dennis)



SB 1807
Johnson J.
HB 1861
Sargent
Frivolous appeals - awarding of fees. State Summary: As introduced, allows a reviewing court to award an appellee's attorneys' fees and related filing costs if the court determines that an appeal is frivolous or taken solely for delay. - Amends TCA Title 16; Title 25 and Title 27. (S: Johnson J.; H: Sargent)







House Judiciary:

Officers:

Eric Watson (R) Cleveland – 201 WMB -615-741-7799 – rep.eric.watson@capitol.tn.gov

Jim Coley (R) Bartlett – 207 WMB - 615-741-8201 – rep.jim.coley@capitol.tn.gov

Vance Dennis (R) Savannah – 209 A WMB – 615-741-2190 – rep.vance.dennis@capitol.tn.gov

Members:

Eddie Bass (D) Prospect – 109 WMB – 615-741-1864 – rep.eddie.bass@capitol.tn.gov

Karen Camper (D) Memphis – 20 LP – 615-741-1898 – rep.karen.camper@capitol.tn.gov

Linda Elam (R) Mt. Juliet – 212 WMB – 615-741-7462 – rep.linda.elam@capitol.tn.gov

Jeremy Faison (R) Cosby – 202 WMB – 615-741-6871 – rep.jeremy.faison@capitol.tn.gov

Jim Gotto (R) Nashville – 205 WMB – 615-741-6959 – rep.jim.gotto@capitol.tn.gov

Jon Lundburg (R) Bristol – 20 LP – 615-741-7623 – rep.jon.lundberg@capitol.tn.gov

Debra Maggart (R) Hendersonville – 114 WMB – 615-741-3893 – rep.debra.maggart@capitol.tn.gov

Judd Matheny (R) Tullahoma – 15 LP – 615-741-7448 – rep.judd.matheny@capitol.tn.gov

Gary Moore (D) Joelton – 35 LP – 615-741-4317 – rep.gary.moore@capitol.tn.gov

Barrett Rich (R) Somerville - 117 WMB – 615-741-8690 – rep.barrett.rich@capitol.tn.gov

Janis Sontany (D) Nashville – 23 LP – 615-741-6862 – rep.janis.sontany@capitol.tn.gov

Mike Stewart (D) Nashville – 24 LP – 615-741-2184 – rep.mike.stewart@capitol.tn.gov

Rick Womick (R) Murfreesboro - 207 WMB – 615-741-2804 – rep.rick.womick@capitol.tn.gov

Tennessee's Nursing Home at the Bottom!!

Article on front page/top fold of the Tennessean…

TN nursing homes rank fifth worst in U.S.

Staffing levels are less than half what Medicare suggests

By Christina E. Sanchez
THE TENNESSEAN

Poorly staffed http://health.state.tn.us/NursingHomes/index.htm">nursing homes have put Tennessee among the worst in the nation for quality of long-term care for a second year, a federal report shows.

Only four states had worse standings, according to a Tennessean data analysis.

That's because Tennessee has one of the lowest staffing requirements in the country — less than half of what Medicare recommends.

"We don't think the standard is enough," said Traci O'Kelley, assistant administrator at West Meade Place, one of only two nursing homes in the Nashville area to earn top marks in the survey.

But it is unlikely that facilities' staffing will get better anytime soon, in part because state law would have to require higher staffing levels, and funding for nursing homes would have to increase.

60% got low ratings

About 15,000 nursing homes nationwide got ratings of one to five stars, with five being the best, from the U.S. http://www.medicare.gov/NHCompare">Centers for Medicare and Medicaid Services. The ratings are based on inspections, complaint investigations, staffing levels and other nursing home survey data collected in 2008 and 2009.

More than 60 percent of Tennessee's 319 nursing homes got low ratings — one or two stars — for staffing by registered nurses.

Overall, the state ranked in the bottom five. Only West Virginia, Texas, Georgia and Louisiana had lower average scores. However, Tennessee fared better than it did a year ago, when the star ratings earned the state's nursing homes a third-worst designation.

Tennessee's results were better this year in quality of care, which measures such factors as the number of patients developing bedsores and infections. Staffing levels remained the biggest problem.

"We have 319 nursing homes in the state. To have one out of four rated just as one star is a sign we are not doing our job in Tennessee," said Patrick Willard, AARP advocacy director.

Staffing law faulted

Advocates say the staffing level required by state law is not enough to care for nursing home residents, and that carries consequences: ignored bedside calls, medication errors and unanswered questions.

Under Tennessee law, each patient should have at least two hours of direct care each day, including 24 minutes of a licensed nurse's time. Standards in neighboring states vary, with Mississippi requiring 2.8 hours of direct care and Arkansas mandating more than 3.8 hours.

Medicare's standard of staffing is higher: four hours of care for each patient daily, including 55 minutes from a registered nurse.

"If you increase the minimum number of hours, then you are going to be pushing those nursing homes that are trying just to get by, and by doing that, you will improve the quality of care in nursing homes," Willard said.

To get a five-star rating for staffing, a nursing home must meet Medicare's standard. No nursing home in the Nashville area achieved five stars in that category.

West Meade Place earned four stars for staffing by registered nurses and three stars for overall staffing. O'Kelley, its assistant administrator, said the home strives to have more staff than is required. The 120-bed facility, which is usually 86 percent full, adjusts staffing based on patient volume and hires more nurses if needed.

"Because of acute care and patient needs, I don't think the job would be done effectively at that minimum staffing level," O'Kelley said.

Star system has flaws

The star system is useful as a starting point for families but should not be an end in itself, O'Kelley said.

"I am always amazed at how many people show up here just because we are a five-star facility, and had never stepped foot in here," she said. "People should visit, get to know the staff and ask around."

Proponents and critics of the star system say it is a useful tool, but it has flaws. Medicare tries to streamline the standards of all states into a one-size-fits-all scenario, they say.

"You have differences between states, different ideas about what constitutes a deficiency, and a lot of information is provided by the nursing homes themselves," Willard said. "It is a worthwhile measuring stick, but it is not the only tool for finding a facility for a loved one."

'A good first glance'

Medicare officials say a one-star rating does not mean a nursing home is a bad facility. All homes must meet baseline Medicare conditions, which are often higher than state standards.

"It's a good first glance for people," said Lee Millman, spokeswoman for the Centers for Medicare and Medicaid Services' Atlanta region, which includes Tennessee.

The agency even states on its own Web site that the report has limitations, noting that state requirements vary and that some data are self-reported and may reflect only a two-week period.

Medicare "uses a system of ranking for staffing that is based on desired staffing levels, not a required or mandated level," said Ron Taylor, executive director of the Tennessee Health Care Association. "Using that staffing level, a lot of facilities that have good, quality service don't rank really high because they don't meet (Medicare's) standard. But they meet the state standard."

Keith Smith, administrator and CEO of Spring Meadows Health Care Center in Clarksville, said it's good that the government tried to keep the ratings simple, but the program needs serious work.

"The whole system was very prematurely implemented and fundamentally flawed," Smith said. "But we try to work with it."

Spring Meadows received an overall one-star rating. It moved up in the area of quality from one star to three.

The ratings for staffing and surveys focus on regulatory compliance, not quality of care and outcomes, he said.

"I'm all about the public having a good tool to evaluate, but this is not it," he said.

Tort Reform is Not the solution!

I am one of the most conservative guys you will ever meet. But I am a lawyer for injured people.

I understand that medical costs are rising. But bargaining away the legal rights of patients will do nothing to cover the uninsured or lower health care costs.

In reality, medical negligence lawsuits are few and far between, hardly contributing to health care costs.

However, 98,000 patients are killed annually by preventable medical errors. That's like two 737s crashing every day for a whole year! Is it the 6th leading cause of death?

Really?

We need to be making strides in patient safety, not limiting the rights of patients who have been injured through no fault of their own. Insurance companies want the injured victims to bear the costs they do not want to pay. I'm sorry, haven't they already been hurt enough?

Tort law changes won't fix health care!