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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:

https://www.tncourts.gov/sites/default/files/joanna_l_golden_et_al._v_cynthia_d._powers.pdf.

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

Thursday, January 16, 2020

New Health Care Liability Action: Dismissal of Plaintiffs' Case Upheld on Appeal: Nurse Cannot Provide Causation Testimony; Issue Waived on Appeal Because It Was Not Properly Raised

The Tennessee Court of Appeals just released its opinion in Lovelace v. Baptist Memorial Hosp. - Memphis, No. W2019-00453-COA-R3-CV (Tenn. Ct. App. Jan. 16, 2020).  The syllabus from the slip opinion reads:
Plaintiff filed a health care liability action against Defendant hospital following the death of Plaintiff’s husband in 2014. The trial court granted summary judgment to the hospital on two alternative, independent grounds: that the Plaintiff’s expert witness, a registered nurse, was not competent to testify as an expert witness, and that the expert witness failed to provide causation testimony as required to prove liability. Plaintiff appealed the trial court’s ruling about the competency of her expert witness, but she failed to raise the failure to provide causation testimony as an issue on appeal. As no argument was made to challenge a distinct ground for summary judgment, we consider the argument waived and affirm the trial court’s order granting summary judgment. 
Here is the link to the opinion:


NOTE: Two things stand out from reading this opinion: first, a nurse cannot render causation testimony in a health care liability action in Tennessee.  Richberger v. West Clinic, P.C., 152 S.W.3d 505, 506 (Tenn. Ct. App. 2004), perm app. denied (Oct. 4, 2004). Second, appellate work is difficult, and can be somewhat arcane unless one does it regularly.  The abbreviation of the Tennessee Rules of Appellate Procedure is "T.R.A.P." for a reason.  However, while this case points out how waiver can occur on appeal, the lack of competent expert testimony is what killed the case.  And that is unfortunate.  

Saturday, December 14, 2019

New Health Care Liability Action: Case Remanded Because Order Was Not Final; Trial Court Sanctions Plaintiffs' Counsel

The Tennessee Court of Appeals released its opinion in Ibsen v. Summit View of Farragut, LLC, No. E2018-01249-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2019).  The syllabus from the slip opinion reads as follows:
In this healthcare liability action, the defendants filed a motion for a qualified protective order allowing them to conduct ex parte interviews with some of the plaintiffs’ treating healthcare providers pursuant to Tenn. Code Ann. [sec.] 29-26-121(f). After the trial court granted the qualified protective order allowing the interviews, plaintiffs’ counsel wrote a letter to plaintiffs’ treating providers concerning the interviews. The defendants then filed a joint motion for sanctions asserting that the letters sent by plaintiffs’ counsel violated the trial court’s order by attempting to prevent the treating providers from participating in the interviews. The trial court granted monetary sanctions against the plaintiffs and their counsel and ordered plaintiffs’ counsel to send retraction letters to plaintiffs’ treating providers. The plaintiffs appeal. We have determined that the order on appeal is not a final order and, therefore, dismiss the appeal.
Here is a link to the opinion:

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

NOTE: Sending letters to treating providers like this is not uncommon or per se wrong.  See Brazier v. Crockett Hosp.No. M2004-02941-COA-R10-CV, 2006 WL 2040408, 2006 Tenn. App. LEXIS 483, at *48 (Tenn. Ct. App. July 20, 2006).  However, Brazier was decided before Tenn. Code Ann. sec. 29-26-121(f) was enacted.  Compare id. at *1 with T.C.A. § 29-26-121(f), Stat. Hist. (LexisNexis, Lexis Advance, current thought 2019 Reg. Sess.).  What got the Plaintiffs in trouble here was that the trial court specifically admonished them from doing what they did.  

Tuesday, December 10, 2019

New Health Care Liability Action: Trial Court's Dismissal of Plaintiffs' Case Based upon Deficient HIPAA-compliant Authorization Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Moore-Pitts v. Bradley, No. No. E2018-01729-COA-R3-CV (Tenn. Ct. App. Dec. 9, 2019).  The syllabus from the slip opinion reads:
This appeal concerns a healthcare liability action filed by Jennifer Moore-Pitts and David Pitts ("Plaintiffs") in the Knox County Circuit Court ("Trial Court") against Carl A. Bradley, DDS, MAGD ("Defendant"). Defendant filed a motion to dismiss Plaintiffs' action on the basis of noncompliance with Tennessee Code Annotated § 29-26- 121(a)(2)(E), which requires that pre-suit notice include a HIPAA-compliant medical authorization allowing the healthcare provider receiving the notice to obtain complete medical records from every other provider that is sent a notice.' Approximately forty healthcare providers, including Defendant, received pre-suit notice from Plaintiffs. On the medical authorization provided to Defendant, Plaintiffs left blank the name of the individual or entity authorized to make the disclosure of medical records to Defendant but provided an attachment of the names and addresses of the other providers receiving notice. The Trial Court found that Plaintiffs' medical authorization provided to Defendant was not sufficient to allow Defendant to obtain Ms. Moore-Pitts's medical records from the other providers who received the pre-suit notice. As such, the Trial Court found that Plaintiffs could not rely on Tennessee Code Annotated § 29-26-121(c) to extend the statute of limitations for 120 days. Because Plaintiffs' action was filed one year and 118 days after the cause of action accrued, the Trial Court determined that Plaintiffs' action was untimely. The Trial Court, therefore, granted Defendant's motion to dismiss. Discerning no error, we affirm the judgment of the Trial Court. 
Here is a link to the opinion: 


NOTE: Respectfully, I think this opinion was decided incorrectly, which is explained in a one of my prior posts to this blog: 

Thursday, November 07, 2019

New Case on Proper Way to Maintain Suit When Plaintiff Dies from Something Other Than Injuries That Form the Basis of the Pending Suit; Case Remanded to Determine If Substitution May Be Had Based on Excusable Neglect

The Tennessee Court of Appeals just released its opinion in Joshlin v. Halford, No. W2018-02290-COA-R9-CV (Tenn. Ct. App. Nov. 6, 2019).  The syllabus from the slip opinion reads:
In this interlocutory appeal, the defendants appeal the trial court’s denial of their motion to dismiss a medical malpractice lawsuit on the ground that the plaintiffs failed to comply with Tennessee Rule of Civil Procedure 25.01. We reverse the decision of the trial court and remand the case for further proceedings.
Here is a link to the opinion:

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

NOTE: Like the case in my prior post, this is also a must-read decision about the difference between a wrongful death claim and an injury claim that survives the death of the injured person under Tennessee’s survival statues.  Those two types of claims are different because the former is not property of the deceased’s estate while the latter is.  That distinction makes a big difference when it comes to maintaining the claims postmortem.