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Monday, October 14, 2019

New Health Care Liability Action Opinion: Plaintiff’s Claim Time-barred Because Presuit Notice Was Not Sent Out in Time

The Tennessee Court of Appeals recently released its opinion in Daffron v. Memorial Health Care System, Inc., No. E2018-02199-COA-R3-CV (Tenn. Ct. App. Oct. 7, 2019).  The syllabus from the slip opinion reads:
This appeal arises from a wrongful death action based on health care liability. Wiley E. Daffron (“Decedent”) received medical treatment from Memorial Health Care System, Inc. (“Memorial”) in 2013. During his stay at Memorial, Decedent developed a pressure ulcer. Decedent died a few months after he was discharged from Memorial. Teresa M. Daffron (“Ms. Daffron”), Decedent’s adult daughter, obtained Decedent’s medical records from Memorial. Some 13 months later, Ms. Daffron sent pre-suit notice of her intent to sue Memorial. A few months after that, Ms. Daffron filed suit against Memorial in the Circuit Court for Hamilton County (“the Trial Court”). Memorial filed a motion for summary judgment asserting the statute of limitations, which the Trial Court granted. The Trial Court held that Ms. Daffron knew or should have known of Decedent’s injury and its possible cause more than one year before the pre-suit notice was sent and, therefore, her complaint was filed outside the statute of limitations. On appeal, Ms. Daffron argues that the statute of limitations did not begin to run until an expert informed her that Decedent’s injury was caused by Memorial. We hold that, pursuant to the discovery rule, and, as evidenced by, among other things, her seeking through counsel Decedent’s medical records, Ms. Daffron had constructive knowledge of Decedent’s claim more than one year before she sent pre-suit notice and, therefore, the complaint was not timely filed. Ms. Daffron’s claim brought on behalf of her father is barred by the statute of limitations. We affirm the judgment of the Trial Court.
Here is a link to that opinion:

NOTE: This opinion offers a good discussion of the discovery rule in health care liability actions under Tennessee substantive law.

Thursday, September 19, 2019

New Health Care Liability Action: Defendants' Failure to Comply with Tenn. Code Ann. sec. 29-26-121(a)(5) Proves Fatal to Their Motions for Summary Judgment; Adding Nonparties as Defendants under Tenn. Code Ann. sec. 20-1-119, Etc.

The Tennessee Court of Appeals just issued its opinion in Bidwell v. Strait, No. E2018-02211-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2019).  The syllabus from the slip opinion reads:
Plaintiff, James Bidwell, took his wife, Clarissa Bidwell, to Starr Regional Medical Center for treatment. She was transferred to Chattanooga-Hamilton County Hospital Authority dba Erlanger Health System, a governmental hospital authority, where she was treated, but later died. Plaintiff provided statutorily compliant pre-suit notice of his intent to file a health care liability action against each health care provider that was named as a defendant in the complaint. See Tenn. Code Ann. § 29-26-121(a). Plaintiff did not provide pre-suit notice to Erlanger. Tenn. Code Ann. § 29-26-121(a)(5) requires a recipient of pre-suit notice to give written notice to a claimant of any other person, entity, or health care provider who may be properly named a defendant within thirty days of receiving pre-suit notice. However, Dr. Jeffery Colburn and Dr. Timothy A. Strait failed to identify Erlanger as their employer, i.e. a known and necessary party to the suit. Plaintiff timely filed his complaint within the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121. Defendants answered plaintiff’s complaint, each raising the affirmative defense of comparative fault. Dr. Colburn and Dr. Strait then moved for summary judgment arguing that, pursuant to the Governmental Tort Liability Act, without Erlanger as a party defendant no judgment could be rendered against them. See Tenn. Code Ann. § 29-20-310(b). In response, plaintiff filed two motions to amend his complaint to add Erlanger as a defendant, in reliance upon the extension to the statute of limitations provided in Tenn. Code Ann. § 20-1-119(a). After a hearing, the trial court held that plaintiff’s failure to provide pre-suit notice to Erlanger prevents him from adding them to his complaint. It granted Dr. Colburn and Dr. Strait’s motions for summary judgment. Plaintiff appeals. We hold that Tenn. Code Ann. § 29- 26-121(a)(5) required Dr. Colburn and Dr. Strait to identify Erlanger as a known and necessary party within thirty days after receiving pre-suit notice; they failed to comply with § 29-26-121(a)(5). We hold that, pursuant to Tenn. Code Ann. § 20-1-119, their subsequent declaration of the necessity of the nonparty to the suit, after the complaint was filed, granted plaintiff an additional ninety days following the filing of the first answer to amend his complaint in order to add the nonparty as a defendant. See Tenn. Code Ann. § 20-1-119; see also Tenn. Code Ann. § 20-1-119(g) (stating that this section applies to suits involving governmental entities). In addition, we hold that, pursuant to Tenn. Code Ann. § 29-26-121(c), plaintiff’s addition of the nonparty is not barred for failure to provide pre-suit notice. See Tenn. Code Ann. § 29-26-121(c). Therefore, we vacate the trial court’s award of summary judgment to defendants Dr. Colburn and Dr. Strait. We remand this matter for further proceedings, pursuant to applicable law, and consistent with this opinion.
Here is a link to the opinion:

NOTE: This case is the first one I am aware of that addresses the effects of a defendant failing to comply with Tenn. Code Ann. sec. 29-26-121(a)(5).  Under -121(a)(5), the onus is on the defendant to identify "any other person, entity, or health care provider who may be a properly named defendant," after presuit notice is received by the defendant.  Bidwell, slip op. at 7–9.  The fact that this was a GTLA case further complicated things.  However, the Court of Appeals reached the correct conclusion here: Plaintiff moved to amend within ninety days and the fact that no presuit notice was sent to the hospital did not matter under these circumstances.  Id. at 17–18.

Additionally, under Rule 15, Tenn. R. Civ. P., and Tenn. Code Ann. sec. 20-1-119, Plaintiff did not have to file a motion seeking leave to add the hospital; Plaintiff could have just filed an amended complaint and had process issued within ninety days of the filing of an answer alleging fault against the hospital.  Tenn. R. Civ. P. 15.01; T.C.A. § 20-1-119(a)(1).  Again, if -119 applies, no motion need be filed before an amended complaint can be filed due to a 2007 amendment to Rule 15.01 after the Tennessee Supreme Court's decision in Jones v. Prof'l Motorcycle Escort Serv., LLC, 193 S.W.3d 564 (Tenn. 2006).  While a motion seeking leave to amend may be filed, it is unnecessary in instances like this one.  

Saturday, August 31, 2019

New Case on Service of Leading Process, Dismissals Without Prejudice, and the Saving Statute

The Tennessee Court of Appeals recently issued its opinion in Villalba v. McCown, No. E2018-01433-COA-R3-CV (Tenn. Ct. App. 2019).  Here is the syllabus from the slip opinion:
In this personal injury action arising from an automobile accident, the trial court granted summary judgment in favor of the defendant upon finding that the plaintiffs had failed to demonstrate service of process in the originally filed action, which had been dismissed, such that the plaintiffs’ refiled action was barred by the applicable statute of limitations. The plaintiffs have appealed. Having determined that, pursuant to the version of Tennessee Rule of Civil Procedure 4.04(11) in effect at the time that the initial complaint was filed, the plaintiffs demonstrated valid service of process of the initial complaint, we reverse the grant of summary judgment to the defendant and grant partial summary judgment to the plaintiffs concerning the affirmative defenses of ineffective service of process and expiration of the statute of limitations. We remand this action for further proceedings consistent with this opinion.
Here is a link to the opinion:

NOTE: This is a must-read opinion for any lawyer who practices in Tennessee state courts.  And if you’re a Civ. Pro. junkie like I am, this case is just for you!  It has it all: service of leading process, return of service, dismissals without prejudice, and refiling under our saving statute.  Good stuff!

Also, I’m glad that Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013) helped in this case.  That is a case that the plaintiff’s counsel allowed me to assist on the appeal—and we won!  After all, cases in Tennessee are supposed to be determined upon their merits and not upon procedural technicalities.  

Sunday, August 25, 2019

New Health Care Liability Action Opinion: Dismissal of Plaintiff's Case Reversed on Appeal

The Tennessee Court of Appeals recently issued its decision in Short ex rel. Short v. Metro Knoxville HMA, LLC, No. E2018-02292-COA-R3-CV (Tenn. Ct. App. Aug. 23, 2019).  The syllabus from the slip opinion reads as follows:
This appeal concerns healthcare liability. Carl Short (“Plaintiff”), widower of Allison Short (“Decedent”), filed suit in the Circuit Court for Knox County (“the Trial Court”) alleging negligence in his late wife’s medical treatment against a number of physicians (“Physician Defendants”) and Turkey Creek Medical Center (“the Hospital”) (“Defendants,” collectively). Defendants moved to dismiss on the basis of noncompliance with Tenn. Code Ann. § 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.1 Plaintiff’s authorizations allowed each provider to disclose complete medical records to each named provider although it did not state specifically that each provider could request records from the other. The Trial Court held that Plaintiff’s authorizations failed to substantially comply with the statute’s requirements because of this failure to explicitly allow each provider to obtain records. Plaintiff appeals. We hold that Plaintiff’s method of permitting Defendants access to Decedent’s medical records substantially complied with Tenn. Code Ann. § 29-26-121(a)(2)(E). We reverse the judgment of the Trial Court.
Here is a link to the majority opinion:

Here is a link to the dissent:

NOTE: Look for the defendants to seek further review by the Tennessee Supreme Court via Rule 11 of the Tennessee Rules of Appellate Procedure.  Also, as I have noted in previous posts, a healthcare provider does not need a HIPAA-compliant medical authorization to investigate a liability claim (see note on this post:

Thursday, August 22, 2019

Sunday, August 04, 2019

New Case on Discretionary Costs: Case Remanded (in Part) to Trial Court for Further Consideration

The Tennessee Court of Appeals recently released its opinion in Pinson v. DeBoer, No. M2018-00593-COA-R3-CV (Tenn. Ct. App. Jul. 30, 2019).  The syllabus from the slip opinion reads as follows:
Appeal of an award of discretionary costs to Defendants in healthcare liability action that had been voluntarily dismissed. The trial court initially awarded Defendants, inter alia, expert witness fees for medical providers who had treated Plaintiff, expenses for videotaped depositions, and costs for the travel time and deposition preparation time for Plaintiff’s vocational expert. On Plaintiff’s motion, the court modified the award to exclude videographer expenses, expenses attendant to the vocational expert’s deposition, and other court reporter expenses. We modify the award to exclude the witness fees for the providers who treated Plaintiff and to include the court reporter fee for the deposition of Plaintiff’s vocational expert; vacate the portion of the award that reduces the amount of court reporter fees and expenses and remand the case for reconsideration of the award; and reverse the order to the extent it requires the Plaintiff to post a bond or pay discretionary costs prior to re-filing the suit. 
Here is a link to the slip opinion:

NOTE: This case offers a good explanation of discretionary costs as contemplated in a Tennessee state court.  It is a must-read opinion for anyone who has questions on this matter. 

Saturday, June 29, 2019

New Laws Effective in Tennessee on July 1, 2019

Here they are:

Based upon my cursory review of this list, these two are the most salient:

SB173/HB164 Driving laws related to mobile phone use, pp. 3–4; and

SB667/HB729 Court reporter compensation , pp. 70–71.