Search This Blog

Wednesday, November 28, 2018

New Health Care Liability Action: Trial Court's Dismissal of Case Upheld on Appeal

The Tennessee Court of Appeals just released its opinion in Parks v. Walker, No. E2017-01603-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2018).  The syllabus from the majority opinion reads as follows:
This is a health care liability action. Plaintiff gave written pre-suit notice of her claim to potential defendants. See Tenn. Code Ann. § 29-26-121(c) (2018). She then filed her complaint. Defendants filed motions to dismiss. After a hearing, the trial court held that plaintiff failed to substantially comply with the requirements of the notice statute by failing to provide a HIPAA-compliant medical authorization, pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E). It entered an order granting defendants’ motions to dismiss. Plaintiff appeals. We affirm.
Here is a link to the majority opinion:

http://www.tncourts.gov/sites/default/files/parks_vs._walker_coa_majority_opinion.pdf

Judge Swiney authored a dissent, which can be found here:

http://www.tncourts.gov/sites/default/files/jennifer_parks_v._walker_dissenting_coa_separate_opinion.pdf


NOTE: Respectfully, I think the majority opinion is in error.  Again it confounds me that the courts of 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 because because doing that is part of a covered entity's "health care operations" as defined by 45 C.F.R. sections 164.501, -502(b), -.514(d).

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. 

Again, I think the dissent is in error for the reasons stated above.  




Friday, November 16, 2018

New Comparative Fault Opinion: Trial Court's Decision to Allow Fault to Be Allocated to an Agritourism Nonparty Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Green v. St. George's Episcopal Church, No. M2017-00413-COA-R3-CV (Tenn. Ct. App. Nov. 16, 2018).  The syllabus from the slip opinion reads as follows:
This appeal arises from a jury verdict in a personal injury action. The defendant alleged the comparative fault of a nonparty who was potentially immune from liability under Tennessee’s agritourism statute. See Tenn. Code Ann. §§ 43-39-101 to -103 (Supp. 2018). Before trial, the defendant asked the court to exclude all evidence and argument before the jury regarding statutory immunity as irrelevant and prejudicial. The court excluded argument and evidence of immunity but allowed the parties to present evidence on whether the nonparty had complied with the statute. At the conclusion of the trial, the court permitted the jury to apportion a percentage of fault to the nonparty without considering the nonparty’s compliance with the agritourism statute. On appeal, the plaintiff argues that the trial court erred in allowing the jury to allocate fault to the nonparty because the agritourism statute provided immunity from fault as well as liability. We conclude that nothing in the agritourism statute precludes the allocation of fault to a nonparty agritourism professional in a negligence action. So we affirm.
Here is a link to the slip opinion: 


NOTE: This opinion does a good job of explaining Tennessee's system of modified comparative fault and the allocation of fault under as affected by our agritourism statutes, which grant immunity under certain circumstances.  

Thursday, November 01, 2018

Defense Verdict in Second Trial Upheld on Appeal

Yesterday the Tennessee Court of Appeals issued its opinion in Alumbaugh v. Wackenhut Corp., No. M2016-01530-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2018).  The syllabus from the slip opinion reads as follows:
After the plaintiff’s father was killed by an armed security guard, she filed a wrongful death action against the security guard’s employer. The complaint alleged both vicarious and direct liability and sought an award of compensatory and punitive damages. The employer maintained that the guard acted in self-defense. After the first trial, the jury rendered a verdict in favor of the plaintiff. But the trial court ordered a new trial based on errors in the calculation of damages. A second jury verdict apportioned the greater proportion of fault to the decedent, resulting in a defense judgment. On appeal, the plaintiff contends that the trial court made numerous errors in the conduct of the second trial. After a thorough review, we conclude that the trial court did not commit reversible error. So we affirm.
Here is a link to the slip opinion: 


NOTE: This opinion offers an interesting analysis of rebuttal evidence, directed verdicts, punitive damages (pre-2011), negligent supervision, amendments to conform to the evidence, and missing evidence and spoliation of evidence.  

Tuesday, October 09, 2018

New Health Care Liability Action Opinion: Trial Court's Denial of Motions to Dismiss Based upon a Finding of Extraordinary Cause Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Reed v. West Tennessee Healthcare, Inc., No. W2018-00227-COA-R9-CV (Tenn. Ct. App. Oct. 8, 2018).  Here is the syllabus from the slip opinion:
We granted this Rule 9 interlocutory appeal in this healthcare liabil[i]ty action to consider whether termination of representation by plaintiff’s prior legal counsel a few weeks before the expiration of the statute of limitations in this healthcare liability action constitutes sufficient extraordinary cause to excuse (1) plaintiff’s failure to wait at least sixty days to file the complaint after providing pre-suit notice as required by Tenn. Code Ann. § 29-26-121; and, (2) plaintiff’s failure to file a Certificate of Good Faith with the complaint as required by Tenn. Code Ann. § 29-26-122. We find and hold that the Trial Court did not err in finding and holding that termination of representation by plaintiff’s prior legal counsel a few weeks before the expiration of the applicable statute of limitations does constitute the type of extraordinary cause sufficient to excuse plaintiff’s failure to comply with Tenn. Code Ann. §§ 29-26-121 and 29-26-122. We, therefore, affirm the Trial Court’s orders denying the motions to dismiss.
Here is a link to the slip opinion:


NOTE: At times, "extraordinary cause" is required in some instances under our medical negligence law in Tennessee.  However, that phrase is not defined by statute, which is why this opinion helps shed some light on what it actually means.  As such, this is a must-read opinion for any lawyer who handles health care liability (f.k.a. medical malpractice) cases in Tenn.  

New Health Care Liability Opinion: Trial's Court's Grant of Summary Judgment Reversed on Appeal Due to the Application of Res Ipsa Loquitur

The Tennessee Court of Appeals recently released its opinion in Anderson v. Wang, No. M2018-00184-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2018).  The syllabus from the slip opinion reads as follows:
This is a health care liability case. The trial court granted Appellees’ motion for summary judgment on Appellant’s res ipsa loquitur claim under Tennessee Code Annotated section 29-26-115(c). Appellant appeals. Because Appellant presented sufficient evidence at the summary judgment stage to create a dispute of fact, we reverse the trial court’s grant of summary judgment.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/anderson.katherine.opn_.pdf

NOTE: I'm glad my Deuel case helped in this one.  Anderson v. Wang, No. M2018-00184-COA-R3-CV, slip op. at 67 (Tenn. Ct. App. Oct. 5, 2018) (citing Deuel v. Surgical Clinic, PLLC,  No. M2009-01551-COA-R3-CV, 2010 WL 3237297, at *10 (Tenn. Ct. App. Aug. 16, 2010)).  In my humble opinion, the Tennessee Court of Appeals got this one right.  

Monday, September 10, 2018

New Tennessee Court of Appeals' Opinion: Trial Court Reversed Due to Erroneous Ruling as to the Admission of Medical Records

The Tennessee Court of Appeals recently issued its opinion in Goodwin v. Hanebis, No. M2017-01689-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2018).  Here is the syllabus from the slip opinion:
This is an appeal from a judgment entered on a jury verdict. The case arises from a motor vehicle accident. The jury returned a verdict in favor of Appellee, and the trial court entered a final judgment for $68,995.02. Because the trial court erred in excluding relevant medical records, we reverse the judgment and remand for a new jury trial.
Here is a link to the slip opinion:


NOTE: This opinion is a great reminder of Tenn. Code Ann. sec. 24-7-122 and its effects upon evidence at trial relating to the admission of medical records.  This is a must-read opinion for any trial lawyer who practices in Tennessee.  

Tuesday, August 07, 2018

New Health Care Liability Action Opinion: Trial Court's Grant of Motion to Dismiss Upheld on Appeal (Due to a Misunderstanding of HIPAA?)

The Tennessee Court of Appeals has issued its opinion in Buckman ex rel. Buckman v. Mountain States Health Alliance, No. E2017-01766-COA-R3-CV(Tenn. Ct. App. Jul. 26, 2018).  Here is the syllabus from the slip opinion:
This is a healthcare liability case. Before filing the complaint, the plaintiff gave written notice to the potential defendants of her healthcare liability claim against them. Tennessee Code Annotated section 29-26-121(a)(2)(E) requires that a plaintiff’s pre-suit notice include a HIPAA compliant medical authorization permitting the healthcare provider receiving the notice to obtain complete medical records from every other provider that is being sent a notice. After the plaintiff filed suit, the defendants moved to dismiss the complaint based on noncompliance with the statute, as the defendants alleged that the HIPAA authorization provided by the plaintiff had already expired when they received it. The trial court granted the defendants’ motion to dismiss, concluding that the HIPAA authorization was invalid due to the fact that the listed expiration date had already passed when the authorization was provided to the defendants with pre-suit notice. The plaintiff appeals. We affirm and remand for further proceedings.
Here is a link to that opinion:

http://www.tncourts.gov/sites/default/files/konah_evangeline_buckman_v._mountain_states_health_alliance.pdf

Here is a link to the separate concurring opinion by Judge Swiney (which is a must-read):

http://www.tncourts.gov/sites/default/files/konah_evangeline_buckman_v._mountain_states_health_alliance_et_al._-_concurring_opinion.pdf

NOTE: I think this opinion is in error.  Again it confounds me that the courts of 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 because because doing that is part of a covered entity's "health care operations" as defined by 45 C.F.R. sections 164.501, -502(b), -.514(d).

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. 



https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/disclosures-treatment-payment-health-care-operations/index.html


Monday, July 16, 2018

New Health Care Liability Action Opinion: Trial Court's Grant of Summary Judgment as to Causation Reversed on Appeal

The Tennessee Court of Appeals recently issued its opinion in Harmon v. Hickman County Health Services, Inc., No. M2016-02374-COA-R3-CV (Jun. 29, 2018).  Here is a link the syllabus from that opinion:
This suit was brought by the children of a woman who died while incarcerated at Hickman County Jail. Defendant is a contractor of the jail that provides medical services at the jail; a nurse in Defendant’s employment treated the decedent for symptoms of drug and alcohol withdrawal. She passed away shortly after. The children brought this suit under the Health Care Liability Act claiming negligence and negligent hiring, retention, and supervision. In due course, Defendant moved for summary judgment, arguing, among other things, that there was not a genuine issue of material fact as to causation and it was entitled to judgment as a matter of law on that element of Plaintiffs’ claim; the trial court granted Defendant’s motion and subsequently denied a motion to revise, filed by the Plaintiffs. This appeal followed.
Here is a link to the majority slip opinion: 

http://www.tncourts.gov/sites/default/files/harmon.bonnie.opn_.pdf

Here is a link to Judge McBrayer's dissent:

http://www.tncourts.gov/sites/default/files/harmon.bonnie.dissentingopn.pdf

NOTE: This decision can be confusing in my opinion as to the difference between a motion to revise a nonfinal, interlocutory order under Rule 54, Tenn. R. Civ. P., and a motion to alter or amend a final judgment under Rule 59, Tenn. R. Civ. P.  (A perusal of this blog can help explain the difference between those two motions.)

Respectfully, I think the majority opinion got this one right; footnote 13 in that opinion is worth reading—and memorizing—in my humble opinion.  This policy of resolving disputes upon their merits and not upon procedural technicalities is one that Justice (of the United States Supreme Court) Oliver Wendell Holmes, Jr. wrote about in The Common Law; that is because it avoids vigilantism (a "blood feud") from erupting in society.  And, it helps preserve the people's right to trial by jury, which "remains inviolate" in Tennessee (as to questions of fact, like agency and the amount of damages).