Medical Malpractice (n.k.a. Health Care Liability Action): Tennessee Supreme Court Holds That 120-day Extension of the Statute of Limitations Does Not Apply to Governmental Entities

The Tennessee Supreme Court just decided Cunningham v. Williamson Cnty. Hosp. Dist., No. M2011-00554-SC-S09-CV (Tenn. May 9, 2013).  The summary of the opinion reads as follows:

A husband and wife filed a claim against a county hospital alleging that the negligence of the hospital and its employees caused the death of their son. The claim was filed approximately fifteen months after their son’s death in accordance with the provisions of the Tennessee Medical Malpractice Act. See Tenn. Code Ann. § 29-26-121 (2012). The county hospital, a governmental entity, filed a motion to dismiss, arguing that the claim was filed outside the one-year statute of limitations of the Governmental Tort Liability Act (“GTLA”). Tenn. Code Ann. § 29-20-305(b) (2012). The couple responded that their complaint was timely filed because Tennessee Code Annotated section 29-26-121(c) extended the GTLA statute of limitations by 120 days. The trial court denied the hospital’s motion to dismiss but granted an interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Appeals granted the Rule 9 application and affirmed the trial court’s denial of the hospital’s motion to dismiss. We granted the hospital permission to appeal. We hold that the 120-day extension provided by Tennessee Code Annotated section 29-26-121(c) does not apply to the plaintiffs’ claim brought under the GTLA. We therefore reverse the judgment of the trial court denying the hospital’s motion to dismiss and remand the case to the trial court for entry of an order dismissing Mr. and Mrs. Cunningham’s complaint.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/cunninghamwopn_0.pdf

NOTE: This is a follow-up post to my Dec. 1, 2012 one.  Please see that one too.

Moreover, this is a must-read opinion for any lawyer who handles health care liability actions (f.k.a. medical malpractice actions) against governmental entities.  It may, however, only be applicable to cases that accrued before October 1, 2011, which can be discerned from a careful reading of the opinion.  

Medical Malpractice (a.k.a. Health Care Liability Action): Plaintiff's Case Dismissed Due to Insufficiency of Service of Process

The Tennessee Court of Appeals just issued its opinion in Milton v. Etezadi, No. E2012-00777-COA-R3-CV (Tenn. Ct. App. May 3, 2013). The summary from the opinion states as follows:

This case presents the issue of whether proper service of process was accomplished regarding the defendant, Saeed Etezadi, M.D. Plaintiff, Will J. Milton, filed a medical malpractice action against Dr. Etezadi on April 14, 2003. The complaint and summons were served upon Dr. Etezadi’s office manager, with a notation appearing on the summons that service was accepted as “agent.” Dr. Etezadi filed an answer which, inter alia, raised the affirmative defense of insufficiency of service of process. Mr. Milton voluntarily dismissed that action and subsequently re-filed within one year of the non-suit. In connection with the second action, the complaint and summons were allegedly served upon Dr. Etezadi at his office. Dr. Etezadi filed an Answer, again raising the affirmative defense of insufficiency of service of process. Dr. Etezadi also asserted that all applicable statutes of limitation and repose had expired. He later filed a motion to dismiss. Following the hearing, the trial court dismissed the claims against Dr. Etezadi, finding that there was no service of process in either action.  Mr. Milton appeals. We affirm.

Here's a link to the opinion:

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

Medical Malpractice: Pre-suit Notice Provision Held to Be Constitutional by Tennessee Court of Appeals, Part II

This post should be read in conjunction with my April 17, 2013 post.  The Tennessee Court of Appeals, Western Section, has once again held that Tennessee's statutory pre-suit notice requirement in medical malpractice actions (n.k.a. health care liability actions) is constitutional, inter alia, in Williams v. SMZ Specialists, P.C., No. W2012-00740-COA-R9-CV (Tenn. Ct. App. Apr. 19, 2013). The summary of the opinion states as follows:

This appeal involves a constitutional challenge to T.C.A. § 29-26-121, which requires notice to defendants prior to the commencement of a health care liability lawsuit. The plaintiff filed a lawsuit asserting health care liability against the defendant health care providers within the applicable statute of limitations, but without providing the defendants with prior notice as required under Section 29-26-121. In ruling on the defendants’ motion for summary judgment, the trial court held that Section 29-26-121 conflicted with Rule 3 of the Tennessee Rules of Civil Procedure. On this basis, it held that the statute infringed upon the authority of the judicial branch to enact rules governing the procedures for commencing a lawsuit, and thus violated the separation of powers clause of the Tennessee Constitution. the defendant health care providers were granted permission for this interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. We reverse, holding that pre-lawsuit notice requirement in Section 29-26-121 does not contravene the separation of powers clause of the Tennessee Constitution.

Here's a link to the opinion:

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

Representing Badly Injured Children in Personal Injury Cases

Representing badly injured children is no easy task.  These types of cases are not "cookie-cutter" type cases and must be handled by a competent attorney.  Our firm enjoys helping injured children; and some of the methods we employ in representing badly injured children is as follows:

• Age progression technology to demonstrate how a child's injuries will affect him or her in the future (this can be used at mediation or trial);
• We work closely with other professionals to ensure that any settlement or award we obtain for a child will not disqualify him or her for any form of governmental assistance; and
• We know the law as it relates to children's personal injury claims and how it affects them.

We can be reach at (615) 620-4471 to discuss, free-of-charge, an injury to your child.  Please call us if you have any questions.

Medical Malpractice: Pre-suit Notice Provision Held to Be Constitutional by Tennessee Court of Appeals

The Tennessee Court of Appeals, Western Section, has held that Tennessee's statutory pre-suit notice requirement in medical malpractice actions (n.k.a. health care liability actions) is constitutional, inter alia, in Webb v. Roberson, No. W2012-01230-COA-R9-CV (Tenn. Ct. App. Apr. 17, 2013).  The summary of the opinion states as follows:

In this interlocutory appeal, Plaintiffs challenge the constitutionality of Tennessee Code Annotated section 29-26-121, which requires a medical malpractice claimant to provide certain notice sixty days prior to filing suit. We conclude that Tennessee Code Annotated section 29-26-121 is not an unconstitutional infringement upon the courts’ rule-making authority, that it is not preempted by HIPAA, and that it does not violate the equal protection and due process provisions of state and federal law. Affirmed and Remanded.

Here's a link to the opinion:

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

You can bet that a Tenn. R. App. P. 11 application for permission to appeal will be filed with the Tennessee Supreme Court within sixty days; and that the Court will probably take it up.

A Good Federal Resource: United States Attorneys' Manual

I found this while working on a federal case.  It's a useful tool on the civil and criminal side of the docket in federal courts.  See link below:

http://www.justice.gov/usao/eousa/foia_reading_room/usam/

Plaintiffs' Case Dismissed via Summary Judgment Because Their Expert Did Not Meet the Newly Defined Expert Witness Requirements Announced by the Tennessee Supreme Court in Shipley v. Williams

The Tennessee Court of Appeals, Western Section, just issued its opinion in Mitchell ex rel. Mitchell v. The Jackson Clinic, P.A., No. W2012-00983-COA-R3-CV (Tenn. Ct. App. Apr. 9, 2013).  The summary states as follows:

This is a medical malpractice case. The trial court granted summary judgment to Appellees, the doctors and clinic, on the basis that the Appellants’ only expert witness was not competent to testify pursuant to the Tennessee Medical Malpractice Act, Tennessee Code Annotated Section 29–26–115. Appellants appeal, arguing that the trial court erred in excluding their expert. Under the Tennessee Supreme Court’s holding in Shipley v.Williams, 350 S.W.3d 527 (Tenn. 2011), we affirm the trial court’s exclusion of the expert’s testimony and its grant of summary judgment. Affirmed and remanded.

(Footnote omitted.)

Here's a link to the slip opinion:

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

A HIPAA Resource

I found this will looking on CMS's Web site and thought it would be helpful to share.  See the link below:

http://www.cms.gov/Regulations-and-Guidance/HIPAA-Administrative-Simplification/HIPAAGenInfo/Downloads/HIPAALaw.pdf