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Friday, September 29, 2017

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

The Tennessee Court of Appeals just issued its opinion in Youngblood ex rel. Estate of Vaughn v. River Park Hospital, LLC, No. M2016-02311-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2017).  The syllabus from the slip opinion states as follows:
On July 11, 2015, Daniel Vaughn, an 86-year-old patient, was recovering from surgery in the intensive care unit of the defendant River Park Hospital. A nurse brought Mr. Vaughn some coffee, after which she left the room. He spilled the coffee on himself, suffering burns to his body. Nancy Youngblood, the executor of Mr. Vaughn’s estate, brought this action alleging that, given his condition, he “should not have been left alone to manage an extremely hot beverage.” River Park, arguing that her claim is a health care liability action subject to the Tennessee Health Care Liability Act (THCLA), Tenn. Code Ann. § 29-26-101 et seq. (2012 & Supp. 2017), moved to dismiss based on plaintiff’s failure to provide pre-suit notice and a certificate of good faith as required by the THCLA. Plaintiff argued that her claim does not fall within the definition of a “health care liability action.” The trial court disagreed and dismissed her action. We hold that the trial court correctly held her claim to be a health care liability complaint. Accordingly, we affirm.
Here is a link to the slip opinion:


NOTE: This case evinces just how broad the definition of "health care liability action" is under Tennessee Code Annotated section 29-26-101(a)(1).  Presuit notice should have been set here under section 29-26-121 in my humble opinion.

Monday, September 25, 2017

New Health Care Liability Action Opinion: Defense Verdict Reversed on Appeal Due to Erroneous Jury Instruction on Sudden Emergency

The Tennessee Court of Appeals just issued its opinion in VanDyke v. Foulk, No. E2016-00584-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2017).  The syllabus from the slip opinion states as follows:
This is a medical malpractice action [(now known as a health care liability action)] in which the plaintiff filed suit against the hospital and her physicians following the death of her newborn son hours after his delivery. The case proceeded to a jury trial. The jury found in favor of the defendants. Following the denial of post-trial motions, the plaintiff appeals, claiming the trial court erred in excluding testimony and when it gave a jury instruction on the sudden emergency doctrine. We reverse and remand for a new trial. 
(Footnote omitted.)

Here is a link to the slip opinion: 


NOTE: This is a must-read opinion for any trial lawyer who practices in Tennessee and handles health care liability actions.  It contains an excellent discussion of the law on sudden emergency in a health care setting.  

Monday, September 18, 2017

New Health Care Liability Action Opinion: Tennessee Supreme Court Upholds Trial Court's Denial of Summary Judgment and Jury Verdict Because Surviving Spouse's Initial Pro Se Filing of Wrongful Death Action Was Not Void Ab Initio

The Tennessee Supreme Court issued its opinion in Beard v. Branson, No. M2014-01770-SC-R11-CV (Tenn. Aug. 30, 2017).  The syllabus from the slip opinion states as follows:
We granted permission for this appeal to determine whether a surviving spouse who files a wrongful death lawsuit is acting as a legal representative of the decedent and whether a wrongful death lawsuit filed pro se by the surviving spouse is void ab initio based on the spouse’s pro se status. In this case, the decedent’s surviving spouse filed a pro se wrongful death health care liability lawsuit shortly before the one-year statute of limitations lapsed. After expiration of the limitations period, the spouse retained an attorney and filed an amended complaint. In the ensuing discovery, the defendants learned that the decedent had two daughters, both of whom were statutory beneficiaries in the wrongful death action. The defendants filed motions for summary judgment. They argued that the spouse’s initial pro se complaint was filed in a representative capacity on behalf of the decedent and the other statutory beneficiaries and that it was, therefore, void ab initio; thus, the filing of the amended complaint could not relate back to the date of the initial complaint, and the lawsuit was time-barred. The trial court denied the summary judgment motions and permitted the amended complaint to relate back to the date of the initial pro se complaint. It then conducted a jury trial; the jury found both defendants liable and awarded damages. The defendant hospital appealed the denial of summary judgment. Adopting the defendant’s argument, the Court of Appeals reversed. The plaintiff now appeals. Under the plain language of Tennessee’s wrongful death statutes, the decedent’s right of action “pass[es] to” the surviving spouse upon the decedent’s death, and the surviving spouse asserts the right of action for the benefit of himself and other beneficiaries. Tenn. Code Ann. § 20-5-106(a) (2009 & Supp. 2016). Consequently, we hold that the surviving spouse did not file the initial pro se complaint as the legal representative of either the decedent or the decedent’s estate. As we construe our wrongful death statutes, in filing the pro se complaint, the surviving spouse was acting to a large extent on his own behalf and for his own benefit pursuant to his right of self-representation. Under the facts of this case, we hold that the initial pro se complaint was not void ab initio, it served to toll the statute of limitations, and the trial court did not err in allowing the filing of the amended complaint to relate back to the date of the initial complaint. Accordingly, we reverse the decision of the Court of Appeals, affirm the trial court’s denial of summary judgment, and remand to the Court of Appeals for consideration of the other issues that were properly raised on appeal but not addressed.
Here is link to the slip opinion:

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

Wednesday, August 09, 2017

New Health Care Liability Action Opinion: Trial Court's Dismissal Overturned on Appeal

The Tennessee Court of Appeals just issued its opinion in Clary v. Miller, No. M2016-00794-COA-R3-CV (Tenn. Ct. App. Aug. 8, 2017).  The syllabus from the slip opinion states as follows:
This appeal concerns the dismissal of a health care liability action for noncompliance with the Health Care Liability Act, specifically Tennessee Code Annotated § 29-26-121 (Supp. 2016). Before filing this action, the plaintiff gave timely written pre-suit notice of her health care liability claim, including the required medical authorizations, to all potential defendants. But when she filed her complaint, the plaintiff failed to provide copies of the medical authorizations as required by statute. Both defendants filed motions to dismiss based on the missing documents. The trial court determined that the plaintiff had substantially complied with the statute and that the defendants were not prejudiced by the omission. Even so, the court dismissed the complaint with prejudice after concluding that strict compliance with the statute was required when the defendant was a governmental entity. Upon review, we conclude that substantial compliance with the documentation requirement in Tennessee Code Annotated § 29-26-121(b) is sufficient even when the defendant is a governmental entity. Thus, we reverse the dismissal of the complaint.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/clary.sandra.opn_.pdf

New Health Care Liability Action Opinion: Trial Court's Admission of Previously Undisclosed Defense Expert Testimony Overturned on Appeal and New Trial Granted

The Tennessee Court of Appeals recently released its opinion in Collier v. Roussis, No. E2016-01591-COA-R3-CV (Tenn. Ct. App. Aug. 7, 2017).  The syllabus from the slip opinion states as follows:
Chayce Collier, a minor, by and through his natural parent and next friend, Kendall Collier (“Plaintiff”) sued Periclis Roussis, M.D. and Fort Sanders Perinatal Center and Fort Sanders Regional Medical Center (“the Hospital”) for injuries allegedly suffered by Plaintiff when his mother had an allergic reaction during labor. After trial before a jury, the Circuit Court for Knox County (“the Trial Court”) entered judgment on the jury’s verdict that Dr. Roussis was not negligent and that the nurses employed by the Hospital were not negligent and dismissed the suit. Plaintiff appeals to this Court raising several issues including whether the Trial Court erred in allowing the admission of previously undisclosed testimony from the nurses and a defense expert witness, among other things. We find and hold that the Trial Court erred in allowing the previously undisclosed testimony of the nurses and the defense expert witness. We, therefore, vacate the Trial Court’s judgment and remand this case for a new trial.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/collier_v_roussis_m.d._et_al..pdf

NOTE: This opinion covers more than just undisclosed expert-witness testimony: it covers, inter alia, expert testimony in a health care liability action in general along with improper defense closing argument.  This is a must-read opinion for any lawyer who handles health care liability actions in Tennessee or just tries cases in general.

Tuesday, July 25, 2017

New Health Care Liability Action Opinion: Trial Court's Dismissal Overturned on Appeal in Accord with Recent Tennessee Supreme Court Precedent

This is a follow-up post to my Jul. 5, 2017 post (http://theduncanlawfirm.blogspot.com/2017/07/new-health-care-liability-action.html).  The Tennessee Court of Appeals just released its opinion in Grizzle v. Park West Medical Center, No. E2016-01068-COA-R3-CV (Tenn. Ct. App. Jul. 25, 2017).  The syllabus from the slip opinion states as follows:
The plaintiff initiated this health care liability action on January 25, 2016. The defendant medical provider filed a motion to dismiss, asserting that the plaintiff had failed to attach the documentation required by Tennessee Code Annotated § 29-26-121(b) to demonstrate that proper pre-suit notice had been transmitted. The defendant also asserted that the plaintiff’s claims should be dismissed for failure to substantially comply with the requirements of Tennessee Code Annotated § 29-26-121(a)(2)(E) regarding a medical authorization compliant with the Health Insurance Portability and Accountability Act (“HIPAA”). While noting that the plaintiff had substantially complied with Tennessee Code Annotated § 29-26-121(a)(4) and (b), the trial court found that the medical authorization forwarded by the plaintiff was incomplete and failed to comply with HIPAA’s release requirements. The trial court therefore dismissed the plaintiff’s claims. The plaintiff has timely appealed. We affirm the trial court’s determination that the plaintiff substantially complied with Tennessee Code Annotated § 29-26-121(a)(4) and (b). We reverse, however, the trial court’s determination that the plaintiff’s claims should be dismissed for failure to substantially comply with Tennessee Code Annotated § 29-26- 121(a)(2)(E).
Here is a link to the slip opinion, to wit:

http://www.tncourts.gov/sites/default/files/betty_grizzle_v._parkwest_medical_center.pdf

NOTE: The Court of Appeals correctly applied the law from Bray v. Khuri to overturn the dismissal below under Tenn. Code Ann. sec. 29-26-121(a)(2)(E).  It did, however, affirm the trial court's determination that Plaintiff had substantially complied with Tenn. Code Ann. sec. 29-26-121(a)(4), (b).  This is a correct decision that is consistent with Tennessee law.


Wednesday, July 05, 2017

New Health Care Liability Action Opinion: Tennessee Supreme Court Holds That a HIPAA-compliant Medical Authorization Is Not Required to Be Sent When Only One Defendant Is Being Sent Presuit Notice of a Potential Claim

The Tennessee Supreme Court released its opinion today in Bray v. Khuri, No. W2015-00397-SC-R11-CV (Tenn. Jul. 5, 2017).  The syllabus from the slip opinion states as follows:
Tennessee Code Annotated section 29-26-121(a)(2)(E) requires a person who asserts a potential claim for healthcare liability to include with pre-suit notice a HIPAA-compliant medical authorization permitting the healthcare provider who receives the notice to obtain complete medical records “from each other provider being sent the notice.” Tenn. Code Ann. § 29-26-121(a)(2)(E). Here, the plaintiff sent pre-suit notice of her claim to a single healthcare provider and included a medical authorization. After the plaintiff filed suit, the defendant healthcare provider moved to dismiss, asserting the plaintiff had failed to provide a HIPAA-compliant medical authorization. The trial court granted the motion, and the Court of Appeals affirmed. We hold that a prospective plaintiff who provides pre-suit notice to one potential defendant is not required under Tennessee Code Annotated section 29-26-121(a)(2)(E) to provide the single potential defendant with a HIPAA-compliant medical authorization. We reverse the judgments of the trial court and the Court of Appeals and remand this case to the trial court for further proceedings. 
(Footnote omitted.)

Here is a link to the slip opinion:

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

NOTE: This decision is correct and a commonsense construction of Tenn. Code Ann. sec. 29-26-121(a)(2)(E).  My hat's off to the Tennessee Supreme Court for this decision.