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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. Jan. 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 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.


Friday, September 02, 2016

New Saving Statute Case: Plaintiff's Lawsuit Dismissed Because It Was Refiled for a Second Time More Than One Year from First Voluntary Dismissal

The Tennessee Court of Appeals recently issued its opinion in Greenwood v. Nat'l Dentex Corp., No. W2015-01889-COA-R3-CV (Tenn. Ct. App. Aug. 30, 2016).  The syllabus from the slip opinion states as follows:
This is a saving statute case, Tennessee Code Annotated Section 28-1-105. The trial court dismissed Appellant’s third product-liability case, which was filed within one year of the dismissal of her second lawsuit, but more than one year after the entry of the initial nonsuit in Appellant’s first lawsuit. Discerning no error, we affirm.
Here is a link to the slip opinion: 


As my good friend Donald Capparella says: "Nonsuits are tricky."  They certainly are!


Wednesday, August 24, 2016

New Health Care Liability Action Opinion: Summary Judgment for Defense Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Duncan v. Ledford, No. W2015-02370-COA-R3-CV (Tenn. Ct. App. Aug. 24, 2015).  The summary from the slip opinion states as follows:
This is a healthcare liability case. The trial court granted summary judgment in favor of Appellees, Appellant’s treating physician and her employer. Summary judgment was based on the trial court’s finding that Appellants had failed to meet their burden of proof to show that Appellee doctor deviated from the standard of care or that the treatment provided caused Appellant to sustain injuries that otherwise would not have occurred. Discerning no error, we affirm.
Here is a link to the slip opinion:

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

Wednesday, August 17, 2016

What Is Required to Maintain a Personl Injury Lawsuit When the Plaintiff Dies from a Subsequent Injury Unrelated to the Injury That Birthed the Personal Injury Lawsuit

The Tennessee Court of Appeals just issued its opinion in Dubis v. Loyd, No. W2015-02192-COA-R3-CV (Tenn. Ct. App. Aug. 15, 2016).  The summary from the opinion states as follows:
After the death of the original plaintiff while this case was pending, a timely motion for substitution was filed to substitute the original plaintiff's parents as the real party in interest pursuant to Rule 25.01 of the Tennessee Rules of Civil Procedure. The motion indicated that the original plaintiff‟s parents were her only heirs and that no estate was to be opened for the original plaintiff in her home state of Missouri. The defendant filed an objection to the substitution asserting that the original plaintiff's heirs were not the proper parties, but the trial court eventually allowed parents to be substituted as plaintiffs. After the parties became aware that an estate had been opened for the original plaintiff in Missouri, defendant filed a motion to dismiss based upon non-compliance with Tennessee Code Annotated [s]ection 20-5-104, which requires a showing that no person is willing to administer the estate of a deceased party before his or her heirs may revive a claim. Parents filed a response in opposition and, in the alternative, a motion for enlargement of time to file a motion to substitute the original plaintiff‟s personal representative. The trial court denied the motion for enlargement of time and granted the defendant‟s motion to dismiss. Because parents have shown excusable neglect sufficient to justify an enlargement of time under Rule 6.02 of the Tennessee Rules of Civil Procedure, we reverse and remand for further proceedings.
Here is a link to the opinion:


NOTE: I applaud the Court of Appeals here because Tennessee has a long-standing, well-thought-out policy of allowing claims to be resolved upon their merits and not upon procedural technicalities, which is noted on page 12 of the opinion.

Monday, August 08, 2016

New Health Care Liability Action Opinion: Plaintiff's Case Dismissed Due to Counsel's Failure to Comply with Onerous Presuit Notice and Filing Requirements; Common-knowledge Exception Found Not to Apply

The Tennessee Court of Appeals recently issued its opinion in Newman v. Guardian Healthcare Providers, Inc., No. M2015-01315-COA-R3-CV (Jul. 27, 2016).  The summary from the slip opinion states as follows:
On August 4, 2013, Kevin Beazley, a resident at Middle Tennessee Mental Health Institute (MTMHI), attacked Billy Joe Newman, another patient and resident, causing injuries that resulted in Newman‟s death. His widow, Unitta Sue Newman (plaintiff), brought this action against several corporations (defendants) that provided nursing and medical staff to MTMHI. The trial court dismissed the complaint with prejudice, on the grounds that it was governed by the Tennessee Health Care Liability Act (THCLA), and plaintiff did not comply with either the pre-suit notice requirement of Tenn. Code Ann. § 29-26-121 (Supp. 2015), or the certificate of good faith requirement of § 29-26-122 (2012). Plaintiff argues that the allegations of her complaint fall under the “common knowledge” exception to the general rule requiring expert testimony to establish medical negligence, and, thus, she was not required to file a certificate of good faith. She asserts that the trial court should have dismissed her complaint without prejudice. Because plaintiff‟s negligence claims involve matters of professional medical knowledge, judgment, and treatment not within the common knowledge of ordinary lay persons, we affirm.
Here's a link to the slip opinion, to wit:

Wednesday, July 13, 2016

New Health Care Liability Action Opinion: Court of Appeals Reverses Grant of Summary Judgment to Defense; Extraordinary Cause Found to Exist, Which Excused Compliance with Tennessee Code Annotated section 29-26-121(b)

The Tennessee Court of Appeals just issued its opinion in Kirby v. Sumner County Regional Medical Center, No. M2015-01181-COA-R3-CV (Tenn. Ct. App. Jul. 12, 2016).  The summary from the slip opinion states as follows:
This is a health care liability action.  The plaintiff suffered permanent damage after receiving medical treatment from the defendant hospital. The plaintiff filed suit exactly one year after her hospital stay. The defendant hospital moved to dismiss, arguing that the plaintiff failed to comply with the pre-suit notice and good faith requirements applicable to health care liability actions. The plaintiff later argued that the failure to comply with the necessary requirements should be excused for extraordinary cause as evidenced by the passing of her legal counsel‟s son four days prior to the filing of the complaint. The trial court granted summary judgment, finding that no extraordinary cause existed. The plaintiff appeals. We reverse the judgment of the trial court.
(Footnote omitted.)

Here is a link to the opinion:

 http://www.tncourts.gov/sites/default/files/kirbybetty.opn.pdf

NOTE: If EVER there was a case where "extraordinary cause" existed, which would excuse compliance with Tenn. Code Ann. sec. 29-26-121(b), it is this case.  Plaintiff's counsel's infant son passed away, which prevented Plaintiff's counsel from complying with -121(b). 

Thursday, July 07, 2016

New Opinion on Sudden Emergency and Loss of Consciousness: Trial Court's Jury Instructions Held Not to Be Error on Appeal

The Tennessee Court of Appeals recently issued its opinion in Boshears v. Brooks, No. E2015-01915-COA-R3-CV (Tenn. Ct. App. Jul. 6, 2016).  The syllabus from the slip opinion states as follows:
This appeal arises from a negligence case brought after an automobile accident. James Boshears (“Boshears”) was a passenger in a vehicle driven by his girlfriend that was struck by a vehicle driven by Cleave C. Brooks (“Brooks”). Boshears sued Brooks in the Circuit Court for Anderson County (“the Trial Court”). Boshears alleged that Brooks was negligent in operating his vehicle. Brooks asserted that he suffered a stroke immediately prior to the accident, that he lost consciousness, and that, consequently, he could not be found negligent. The case was tried to a jury. The jury found that Brooks was not at fault. Boshears appealed to this Court. On appeal, Boshears argues that the Trial Court erred in charging the jury with sudden emergency when comparative fault was not raised by Brooks. Boshears also asserts that the Trial Court erred in charging the jury on both sudden emergency and loss of consciousness. We affirm the judgment of the Trial Court.
Here is a link to the opinion: