More Traps for the Unwary in MedMal Cases

Timing is everything when it comes to adding alleged comparative tortfeasors.  Unfortunately, this lesson is too often learned the hard way.  Where medical malpractice is concerned,  the lack of coordination between the drafters of the Health Care Liability Act with the statute allowing a comparative tortfeasor to be added within 90 days of their being identified in an answer adds yet another trap for plaintiffs to avoid. The Tennessee Court of Appeals’ opinion in Swearengen v. Delta Medical Center presents a cautionary tale.   [Read more…]

Tennessee Rejects Preemption Rule When Vicarious Liability Admitted

Does comparative fault still apply for direct negligence claims when the employer has admitted vicarious liability?  In its recent ruling on a Tenn. R. App. P. 10 Extraordinary Appeal, the Tennessee Court of Appeals has answered “yes.”

As a result of the recent ruling in Jones v. Windham, the Court of Appeals has rejected the so-called preemption rule, barring direct negligence claims against an employer when vicarious liability is admitted.  Instead, the “non-preemption rule” applies as it comports with Tennessee’s system of comparative fault.  [Read more…]