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Tuesday, March 24, 2020

New Health Care Liability Action Opinion: Trial Court's Dismissal Due to Plaintiff's Failure to Treat the Case as a Health Care Liability Action Upheld on Appeal as Modified to Be Without Prejudice

The Tennessee Court of Appeals released its opinion today in Johnson v. Knoxville HMA Cardiology PPM, LLC, No. E2019-00818-COA-R3-CV (Tenn. Ct. App. Mar. 24, 2019).  The syllabus reads:
In this action involving injuries allegedly caused by the defendant medical providers’ failure to provide a safe examination table, the trial court determined that the plaintiff’s negligence claim was actually a health care liability claim and granted the defendants’ motion to dismiss the complaint with prejudice for failure to provide written pre-suit notice to the defendants within the one-year statute of limitations pursuant to Tennessee Code Annotated § 29-26-121(a) (Supp. 2019) of the Tennessee Health Care Liability Act (“THCLA”). The plaintiff has appealed, conceding that he failed to provide written pre- suit notice but asserting that his claim should not have been dismissed because it was not a health care liability claim. Having determined that the trial court properly found that the plaintiff’s claim was a health care liability action, we affirm the dismissal of this matter. However, having also determined that the proper sanction for the plaintiff’s failure to provide pre-suit notice under the THCLA was dismissal without prejudice, we modify the trial court’s dismissal of the claim to be without prejudice.
Here is a link to the slip opinion:

NOTE: This case serves as an example of how difficult health care liability actions (formerly known as medical malpractice cases) have become.  Things have gotten so bad lately that people cannot get the justice they deserve, which is bad for the our society.  Our legislators care more about business than people, to a fault. 

Wednesday, March 11, 2020

New Health Care Liability Action Case Opinion: Summary Judgment for Some Defendants Upheld on Appeal Based upon the Three-year Statute of Repose; Fraudulent Concealment Exception Does Not Apply

The Tennessee Court of Appeals just issued its opinion in Tucker v. Iveson, No. M2018-01501-COA-R3-CV (Tenn. Ct. App. Mar. 11, 2020).  The syllabus from the slip opinion reads:
A plaintiff who developed tendonitis after taking medication prescribed by a nurse practitioner filed a malpractice action against the nurse practitioner and the pharmacy that filled the prescription.  Two years later, the plaintiff amended her complaint to add the nurse practitioner’s employer and supervising physician as defendants.  The new defendants moved to dismiss, arguing that the claims against them were barred by the applicable statutes of limitations and repose and that the plaintiff failed to provide them with pre-suit noticeof a potential medical malpractice claim.  The plaintiff responded that fraudulent concealment tolled the statutes and constituted extraordinary cause to waive pre-suit notice.  The trial court agreed and denied the motions.  The defendants then moved for summary judgment on other grounds, which the court granted.  It is undisputed that the plaintiff’s claims against these defendants were filed beyond the time allowed by the statute of repose for medical malpractice actions.  Because we conclude that the plaintiff cannot establish an essential element of the fraudulent concealment exception, the defendants are entitled to judgment as a matter of law based on the statute of repose. So we affirm the dismissal of the claims against these defendants on summary judgment but on different grounds.
Here is a link to the slip opinion:

Monday, March 02, 2020

New Tennessee Health Care Liability Action Opinion: Statute Concerning Mandatory Ex Parte Defense Interviews of a Plaintiff's Nonparty Health Care Providers Held to Be Unconstitutional, But, Allowed to Stand As Elided as Constitutional

The Tennessee Supreme Court recently released its opinion in Willleford v. Klepper, No. M2016-01491-SC-R11-CV (Tenn. Feb. 28, 2020).  The syllabus from the slip opinion reads:
We granted review in this case to determine whether Tennessee Code Annotated section 29-26-121(f) violates the separation of powers clause in the Tennessee Constitution. The statutory provision allows defense counsel to conduct ex parte interviews with patients’ non-party treating healthcare providers in the course of discovery in a healthcare liability lawsuit. We hold that section 29-26-121(f) is unconstitutional as enacted, to the limited extent that it divests trial courts of their inherent discretion over discovery. We also conclude that the statute can be elided to make it permissive and not mandatory upon trial courts. As such, we hold that the elided statute is constitutional. We vacate the trial court’s qualified protective order entered in this case and remand the case to the trial court for reconsideration based on the guidance set forth in this opinion.
Here is a link to the slip opinion:

Justice Kirby dissented and would have held Tenn. Code Ann. sec. 29-26-121(f) unconstitutional in toto.  Here is a link to her opinion that concurs and dissents in part:

NOTE: This opinion has been awaited by the Tennessee bar with much anticipation.  It offers much-needed light as to the statutorily allowed ex parte interviews.  

Further, the majority opinion cites favorably Baker v. Wellstar Health System, Inc.,703 S.E.2d 601 (Ga, 2010) for direction to the Tennessee Bench and Bar on this issue.  As such, here is a link to that opinion:

Wednesday, February 26, 2020

Tennessee Supreme Court Upholds Cap on Noneconomic Damages

The Tennessee Supreme Court released its opinion in McClay v. Airport Management Services, LLC, No. No. M2019-00511-SC-R23-CV (Tenn. Feb. 26. 2020).  The syllabus from the majority slip opinion reads:
We accepted certification of the following questions of law from the United States District Court for the Middle District of Tennessee regarding the constitutionality of Tennessee’s statutory cap on noneconomic damages, codified at Tennessee Code Annotated section 29-39-102: “(1) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate a plaintiff’s right to a trial by jury, as guaranteed in Article I, section 6, of the Tennessee Constitution?; (2) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate Tennessee’s constitutional doctrine of separation of powers between the legislative branch and the judicial branch?; (3) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate the Tennessee Constitution by discriminating disproportionately against women?” Upon review, we answer each of the District Court’s questions in the negative.
Here is a link to the majority opinion:

Here is Justice Kirby's concurring opinion:

Justices Clark and Lee dissented in separate opinions, which are here:; and

NOTE: This is a very disappointing decision.  I agree with Justices Clark and Lee here.  

Monday, February 24, 2020

New Tennessee Underinsured Motorist Case

The Tennessee Court of Appeals released its opinion today in White v. State Farm Mutual Automobile Insurance Co., No. W2019-00918-COA-R3-CV (Tenn. Ct. App. Feb. 24, 2020).  The syllabus from the slip opinion reads:
Appellants were injured in a car accident and, with the permission of their insurance company, Appellee State Farm Mutual Automobile Insurance Company (“State Farm”), settled with the at-fault driver for his policy limits under his coverage with United Services Automobile Association (“USAA”). To fully recover for their injuries, Appellants notified State Farm of their willingness to settle or submit their underinsured motorist (“UIM”) claim to binding arbitration. After evaluating Appellants’ claim, State Farm informed Appellants that it would not offer a settlement for the UIM claim because it believed they had been fully compensated by the payment from USAA. Appellants, in response, demanded that State Farm elect to either participate in binding arbitration or decline arbitration and preserve its subrogation rights under Tennessee Code Annotated section 56-7-1206 (“the Statute”). Believing that its obligation under the Statute was never triggered, State Farm refused to make an election. Appellants filed an action for declaratory judgment asking the trial court to declare that State Farm failed to comply with the Statute. On competing motions for summary judgment, the trial court granted State Farm’s motion and denied Appellants’ motion. Finding no error, we affirm.
Here is a link to the slip opinion:

NOTE: This opinion points out a few things.  One, it demonstrates the importance of following the plain meaning of a statute.  Two, it offers a good discussion of statutory construction.  And, three, it discusses the Oxford comma, which is a hot topic in legal writing, as is evinced on Twitter a lot.  

Friday, February 14, 2020

Appellate Review of a Jury's Verdict under Tennessee Law

The Tennessee Court of Appeals recently released its opinion in Golden v. Powers, No. E2019-00712-COA-R3-CV (Tenn. Ct. App. Feb. 12, 2020).  The syllabus from the opinion reads:
This appeal concerns a jury verdict in a personal injury case. Joanna L. Golden [] was jogging in the dark early one morning when she was struck accidentally by a car driven by Cynthia D. Powers []. Golden and her husband, Douglas K. Rice . . . sued Powers in the Circuit Court for Hawkins County []  asserting various claims including negligence. The matter was tried before a jury. The jury found Golden to be 80% and Powers 20% at fault. Plaintiffs filed a motion for a new trial, which the Trial Court denied. Plaintiffs appeal to this Court arguing that the Trial Court failed to act as thirteenth juror and that the jury’s allocation of fault was unsupported by material evidence. Plaintiffs argue also that the jury was prejudiced against them for their being well-off out-of-towners. We find, first, that the Trial Court independently weighed the evidence and acted properly as thirteenth juror. We find further that the jury’s allocation of fault is supported by material evidence. Finally, Plaintiffs’ claim of jury prejudice is speculative, at best. We affirm the judgment of the Trial Court. 
Here is a link to the slip opinion:

NOTE: This appeal is a good reminder of what goes into the appellate review of a jury's verdict under Tennessee law.  It is worth reading in my humble opinion.

Tuesday, January 28, 2020

New Tennessee Health Care Liability Action Opinon: Tennessee Supreme Court Reverses the Tennessee Court of Appeals and Reinsates Trial Court's Dismissal of Plaintiffs' Case on Summary Judgment Based upon Lack of Expert Testimony on Causation; Clairifies Standard of Review as to Abuse-of-discretion Standard

The Tennessee Supreme Court just issued its opinion Harmon v. Hickman Community Healthcare Services, Inc., No. M2016-02374-SC-R11-CV (Tenn. Jan. 28, 2020).  The syllabus from the slip opinion reads:
In this healthcare liability action, the trial court held that the plaintiffs’ sole expert witness was not competent to testify on causation and for that reason granted summary judgment to the defendant. The plaintiffs then filed a motion to alter or amend, proffering causation testimony from a new expert witness. The trial court denied the motion to alter or amend, and the plaintiffs appealed. The Court of Appeals, in a split decision, reversed the trial court’s denial of the motion to alter or amend. This Court granted permission to appeal. A trial court’s decision on a motion to alter or amend is reviewed under an abuse of discretion standard; this standard of review does not permit the appellate court to substitute its judgment for that of the trial court. We hold that the trial court’s decision in this case was within the range of acceptable alternative dispositions of the motion to alter or amend and was not an abuse of the trial court’s discretion. For this reason, we reverse the Court of Appeals and affirm the decision of the trial court.
Here is a link to the slip opinion:

NOTE: This post is related to my July 16, 2018 post: