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Wednesday, November 30, 2016

New Health Care Liability Action Opinion: Trial Court's Exclusion of Plaintiff's Treating Physician as a Causation Expert and Resulting Grant of Summary Judgment to the Defense Reveresed on Appeal

The Tennessee Court of Appeals issued its opinion in Holmes v. Christ Community Health Services, Inc., No. W2016-00207-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2016).  The syllabus from the opinion states as follows:
The plaintiff filed this action alleging medical malpractice against a physician who examined the plaintiff five days after injury to her shoulder, as well as the facility wherein the physician practiced. The plaintiff alleged, inter alia, that the defendant physician failed to properly diagnose a fracture dislocation in her shoulder, causing a delay in appropriate treatment. The plaintiff‘s subsequent treating physician opined in his deposition and via affidavit that if the plaintiff‘s injury had been diagnosed earlier, the plaintiff would likely have avoided an extensive surgical procedure, resultant infection stemming from such surgery, and residual impairment to her shoulder. The trial court excluded this testimony as speculative, granting summary judgment in favor of the defendant physician and hospital. The plaintiff has appealed. We determine that the trial court erred in excluding the causation evidence as speculative. We therefore vacate the court‘s grant of summary judgment in favor of the co-defendants.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/holmesdopn.pdf

Saturday, November 19, 2016

New Health Care Liability Action Opinion: Trial Court's Dismissal Based upon Claim Being Time-barred for Failure to Comply with Onerous Presuit Notice Requirements Upheld on Appeal; Constitutional Challenge of Tenn. Code Ann. sec. 29-26-121 Deemed to Be Without Merit

The Tennessee Court of Appeals recently issued its opinion in J.A.C. ex rel. Lesha Carter v. Methodist Healthcare Memphis Hospitals, No. W2016-00024-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2016).  The syllabus from the opinion states as follows:
In this health care liability action, Defendants moved to dismiss based on the Plaintiffs' failure to provide the Health Insurance Portability and Accountability Act ("HIPAA") medical authorization required by Tennessee Code Annotated section 29-26-121(a)(2)(E). Based on its determination that the Plaintiffs failed to substantially comply with the foregoing statute, the trial court held that the Plaintiffs were not entitled to an extension of the applicable statutes of limitations and repose under Tennessee Code Annotated section 29-26-121(c) and accordingly concluded that the Plaintiffs' claims were time-barred. The trial court also concluded that the Plaintiffs' constitutional challenges to the viability of Tennessee Code Annotated section 29-26-121 were without merit. We affirm and remand for further proceedings consistent with this Opinion.

NOTE: I find it interesting that the courts in Tennessee---and many lawyers---have not picked up on the fact that a defendant (or potential defendant) in a health care liability action does not have to have a HIPAA-compliant authorization to share a patient's or plaintiff's protected health information ("PHI") with other defendants and their legal counsel under 45 C.F.R. sections 164.501, -502(b), -.514(d) to investigate potential medical negligence.  See http://www.hhs.gov/hipaa/for-professionals/faq/705/may-a-covered-entity-in-a-legal-proceeding-use-protected-health-information/index.html (last visited Nov. 19, 2016).  As such, dismissal of a health care liability action because a defendant did not get a HIPAA-compliant authorization for a patient's PHI would be improper because Tenn. Code Ann. sec. 29-26-121's requirement that such an authorization be enclosed as part of a claimant's presuit notice appears to be preempted by HIPAA. 


Thursday, October 27, 2016

New Health Care Liability Action Opinion: Common-knowledge Exception Applies to the Breach of Duty But Not to Causation; Trial Court's Dimissal with Prejudice Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Redick v. Saint Thomas Midtown Hospital, No. M2016-00428-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2016).  The syllabus from the slip opinion states as follows:  
Vicki J. Redick (“Plaintiff”) appeals the dismissal with prejudice of her health care liability action against Saint Thomas Midtown Hospital (“the Hospital”) and Jane Doe, an employee of the Hospital. We find and hold that Plaintiff, despite application of the common knowledge exception when appropriate, would be unable to prove her claim without expert proof, and therefore, Plaintiff was required to file a certificate of good faith in compliance with Tenn. Code Ann. § 29-26-122. As Plaintiff failed to file the required certificate of good faith, we find no error in the judgment of the Circuit Court for Davidson County (“the Trial Court”) dismissing Plaintiff‟s case with prejudice for failure to comply with Tenn. Code Ann. § 29-26-122.

NOTE: In this opinion, the court held that while the common-knowledge exception applied to the breach of duty, Redick v. Saint Thomas Midtown Hospital, No. M2016-00428-COA-R3-CV, slip op. at  8 (Tenn. Ct. App. Oct. 26, 2016), it did not apply to causation, inter alia, because what injuries the plaintiff suffered were not within the common knowledge of laypersons (unlike when a wrong body part is operated on or a foreign object is unintentionally left in a patient's body after surgery), id. 

Thursday, October 20, 2016

New Health Care Liability Action Opinion: Trial Court's Dismissal of Refiled Case Overturned on Appeal Due to the Saving Statute

The Tennessee Court of Appeals just issued its opinion in Robinson v. Robbins, No. W2016-00381-COA-R3-CV (Tenn. Ct. App. Oct. 19, 1996).  The syllabus from the slip opinion states as follows:
This is a health care liability action.  The plaintiffs timely filed suit against the defendant concerning the inadequate care and treatment received by the decedent. After voluntarily dismissing the initial suit, the plaintiffs provided pre-suit notice before filing a second suit pursuant to the saving statute. The defendant moved to dismiss, arguing that the saving statute did not apply because there was no identity of parties between the actions. He explained that the second complaint was filed against him in his individual capacity while the initial complaint was lodged against him in his corporate capacity. The court agreed and held that the second action was barred for failure to file within the applicable statute of limitations. We reverse.
 (Footnote omitted.)

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/robinsonmyrtleopn.pdf

Wednesday, October 12, 2016

New Health Care Liability Action Opinion: Another Opinion Acknowledging That a Plaintiff Has the Right to Take a Voluntary Dismissal Without Prejudice Even If a Motion to Dismiss Is Pending

The Tennessee Court of Appeals has issued another opinion concerning a plaintiff's right to take a nonsuit in a health care liability action when a motion to dismiss is pending.  The case is Hurley v. Pickens, No. E2015-02089-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2016).  The syllabus from the slip opinion states as follows:
Dallas K. Hurley, Jr. (“Plaintiff”) sued Ryan B. Pickens, M.D. and University Urology, P.C. (“Defendants”) alleging claims for health care liability. Defendants filed a motion to dismiss. While the motion to dismiss was pending, Plaintiff filed a notice of and motion for voluntary dismissal pursuant to Tenn. R. Civ. P. 41. The Circuit Court for Knox County (“the Trial Court”) granted Plaintiff a voluntary dismissal without prejudice. Defendants appeal to this Court raising issues regarding whether Plaintiff had the right to take a voluntary dismissal without prejudice when a motion to dismiss was pending and whether Plaintiff failed to comply with Tenn. Code Ann. § 29-26-122 requiring dismissal of Plaintiff’s suit with prejudice. We find and hold that Plaintiff had the right to take a voluntary dismissal even while a motion to dismiss was pending. Our resolution of this issue renders Defendants’ second issue moot. We, therefore, affirm the Trial Court’s order granting Plaintiff a voluntary dismissal.
Here's a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/hurleydkopn.pdf


New Health Care Liability Action Opinion: Plaintiff Allowed to Take a Voluntary Dismissal Without Prejudice Despite Pending Motion to Dismiss

Recently the Tennessee Court of Appeals issued its opinion in Clark v. Werther, No. M2014-00844-COA-R3-CV (Tenn. Ct. App. Sept. 27, 2016).  The syllabus from the slip opinion states as follows:
The plaintiff, acting pro se, filed a complaint in this health care liability action without attaching a certificate of good faith. Several defendants filed motions to dismiss based on the missing certificate. The plaintiff responded to the motions and filed a notice of voluntary nonsuit. Some of the defendants objected to the voluntary dismissal, arguing the complaint should be dismissed with prejudice. The trial court dismissed the plaintiff‟s claims against the non-objecting defendants without prejudice but dismissed the plaintiff‟s claims against the objecting defendants with prejudice. The plaintiff appealed all of the court‟s dismissal orders on numerous grounds. Upon review, we conclude that Rule 41.01 of the Tennessee Rules of Civil Procedure afforded the plaintiff the right to a voluntary dismissal without prejudice as to all defendants. Accordingly, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
Here's a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/clark.robert.v.werther.opn_.pdf

Tuesday, September 27, 2016

New Health Care Liability Action Opinion: Plaintiff's Case Dismissed Due to Failure to Comply with Presuit and Filing Requirements

The Tennessee Court of Appeals recently issued its opinion in Travis v. Cookeville Regional Medical Center, No. M2015-01989-COA-R3-CV (Tenn. Ct. App. Sept. 21, 2016).  The syllabus from the slip opinion states as follows:
In this health care liability case, the defendants moved to dismiss the complaint on the grounds that the plaintiff failed to comply with Tenn. Code Ann. § 29-26-121, part of Tennessee‟s Health Care Liability Act. Specifically, the defendants argue that the plaintiff failed to provide a statement in the pleadings that he complied with Tenn. Code Ann. § 29-26-121(a), failed to file, with the complaint, documentation demonstrating compliance with Tenn. Code Ann. § 29-26-121(a), failed to file, with the complaint, an affidavit of the person who mailed pre-suit notice to the defendants, and failed to provide a HIPAA compliant medical authorization form. The trial court dismissed the case. We have reviewed the record and find that the plaintiff failed to substantially comply with Tenn. Code Ann. § 29-26-121(b). We affirm the judgment of the trial court.

 

Wednesday, September 21, 2016

New Health Care Liability Action Opinion: Partial Summary Judgment for Plainitffs as to an Affirmative Defense of Comparative Fault Reversed on Appeal

Yesterday the Tennessee Court of Appeals issued its opinion in Young v. Jordan, No. W2015-02453-COA-R9-CV (Tenn. Ct. App. Sept. 20, 2016).  Here is the syllabus from the slip opinion:
This is a healthcare liability case. Appellees, patient and her husband, filed suit against Appellants, physician and employer. Appellants raised the affirmative defense of comparative fault based on the fact that Appellee/patient had been non-compliant with medical advice. Appellees moved for partial summary judgment on the affirmative defense of comparative fault. The trial court granted the motion, and Appellants appeal. Because expert testimony adduced during discovery creates a dispute of material fact as to the question of Appellees’ non-compliance with medical advice and the effect of such non-compliance on Appellees’ injury, the grant of summary judgment was error.


New Health Care Liability Action Opinion: Plaintiff Waived Requirement That Defendant File a Certificate of Good Faith to Support Claim Against a New Defendant; Case Against Newly Added Defendant Dimissed Due to Plaintff's Failure to Then File a Certificate of Good Faith in Support of Claim Against the New Defendant

Yesterday the Tennessee Court of Appeals issued its opinion in Peatross v. Graceland Nursing Home Center, LLC, No. W2015-01412-COA-R3-CV (Tenn. Ct. App. Sept. 20, 2016).  Here is the syllabus from the slip opinion:
This is a health care liability action.  The plaintiff filed suit against the defendants concerning the inadequate care and treatment received by the decedent. He then amended his complaint to add the defendant hospital as a party after the defendants alleged comparative fault. The defendant hospital moved to dismiss, arguing that the failure to attach a certificate of good faith applicable to it required dismissal. The trial court granted the motion to dismiss, citing this court’s opinion in Sirbaugh v. Vanderbilt University, 469 S.W.3d 46 (Tenn. Ct. App. 2014). The plaintiff appeals. We affirm. 
 (Footnote omitted.)

Here is a link to that slip opinion: http://www.tncourts.gov/sites/default/files/peatrossopn.pdf

NOTE: This opinion is a good reminder that unless the common-knowledge exception applies in a health care liability action in Tennessee, a certificate of good faith is required to support such a claim---and some party has to file one.

Also, Sirbaugh, supra, is the subject of my Jan. 20, 2015 post on this blog, to wit: http://theduncanlawfirm.blogspot.com/2015/01/new-health-care-liability-opinion.html.