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Wednesday, February 08, 2017

New Health Care Liability Opinion: Trial Court's Decision Finding That Presuit Notice Was Effective and Grant of Leave to Amend Complaint Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Runions v. Jackson-Madison County Hospital District, No. W2016-00901-COA-R9-CV (Tenn. Ct. App. Feb. 7, 2017).  The syllabus from the opinion states as follows:
This is an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. In this health care liability action, we must determine whether the plaintiff properly complied with the pre-suit notice requirement found in Tennessee Code Annotated section 29-26-121(a)(1). The original defendants in this matter all filed a motion to dismiss and/or for summary judgment alleging that they did not provide medical treatment to the plaintiff/appellee. Subsequently, the plaintiff filed a response to the defendants' motion acknowledging that she had mistakenly identified a proper defendant in this suit. The plaintiff also filed a motion to amend her complaint attempting to remedy that mistake by substituting in the proper defendant. After both motions were heard, the trial court denied the original defendants' motion to dismiss and/or for summary judgment and granted the plaintiff/appellee's motion to amend her complaint. For the following reasons, we affirm the decision of the trial court and remand for further proceedings.

Judge Gibson issued a separate opinion concurring in part and dissenting in part, which can be fould at this link:

NOTE: Respectfully, the majority opinion got it right; Tennessee has a long-standing and well-settled policy that cases are to be determined upon their merits and not upon procedural technicalities.

Thursday, January 19, 2017

New Wrongful Death Opinion: Surviving Spouse's Prosecution of Claim Disallowed on Appeal; Decedent's Daughter Allowed to Prosecute Claim Instead

The Tennessee Court of Appeals, Middle Section, just released its opinion in Nelson v. Myres, No. M2015-01857-COA-R3-CV (Tenn. Ct. App. Jan. 18, 2017). The syllabus from the slip opinion states as follows:
A woman died in a multi-vehicle accident. Two wrongful death actions were filed, one by the woman's daughter, the other by the woman's husband. The daughter's suit named the husband and others as defendants. The husband's suit named one of the other drivers as the only defendant. The trial court dismissed the daughter's complaint, holding that Tennessee's wrongful death statute creates only one cause of action and that the husband, as the surviving spouse, was granted priority to prosecute the action under the statute. The daughter appeals the dismissal of her complaint. Because the husband is unable to name himself as a defendant in the suit he has filed, he is not able to prosecute the wrongful death action in a manner consistent with the right of the decedent to sue all wrongdoers whose actions are alleged to have led to her death; accordingly, we reverse the judgment of the trial court dismissing the daughter's complaint, reinstate the complaint, and remand the case for further proceedings.
(Emphasis added.)

 Here is a link to the slip opinion:

NOTE: This is a must-read opinion for any Tennessee practitioner who handles wrongful death claims.  It is a good reminder of how the abolition of interspousal immunity, see generally Davis v. Davis,  657 S.W.2d 753, passim (Tenn. 1983), affects these types of claims.  While Davis is not mentioned per se herein, it is the reason this wrongful death claim, which is the claim of the decedent, can be maintained against her husband (who is alleged to have contributed to her wrongful death)---and why he is disqualified from prosecuting this action (although he may still be a beneficiary and share in any recovery).

Friday, December 23, 2016

New Laws Effective in Tennessee on Jan. 1, 2017

New Tennessee Supreme Court Opinion: Seller of Automated External Defibrillator Granted Summary Judgment on Appeal

The Tennessee Supreme Court just issued its opinion in Wallis v. Brainerd Baptist Church, No. E2015-01827-SC-R11-CV (Tenn. Dec. 22, 2016).  The summary from the slip opinion states as follows:
The plaintiff‟s husband collapsed and died after participating in a cycling class at a fitness and recreation facility owned and operated by the church. Although the cycling class instructor and others present at the fitness facility attended the plaintiff's husband and called 911 soon after his collapse, they did not utilize the automated external defibrillator (“AED”) on site at the facility. The plaintiff filed a wrongful death action against the church, alleging, among other things, that the church had negligently failed to utilize the onsite AED, to train facility personnel on the proper use of the AED, and to comply with applicable state statutes. The church denied negligence and subsequently filed a third-party complaint against the company that sold it the AED, asserting that the seller had contractually agreed to provide a physician oversight program, which, among other things, included oversight of the church's compliance with federal, state, and local regulations. The church alleged that, should the plaintiff recover a judgment against it for failing to comply with statutes, the seller should be solely responsible for the judgment. The plaintiff then filed a second amended complaint naming the seller as a defendant and alleging, as relevant to this interlocutory appeal, that: (1) the seller had negligently breached a duty it owed to her husband and others using the fitness facility to properly maintain the AEDs, to ensure that they were accessible, and to ensure that the church's employees had the knowledge, training, and ability to operate the AEDs; (2) the seller had breached its contract with the church; (3) her husband was a third-party beneficiary of the contract; and (4) the seller's negligence and breaches of contract caused her husband's death, entitling her to recover against the seller on her wrongful death and loss of consortium claims.

The seller moved for summary judgment against the plaintiff and the church, arguing that: (1) it owed no duty of care to the plaintiff or her husband; (2) the church had no common law or statutory duty to acquire or use an AED; (3) neither the plaintiff nor her husband were third-party beneficiaries of the seller's contract with the church; (4) the undisputed facts established that the seller had not breached its contract with the church; and (5) the undisputed facts failed to establish that any of the alleged breaches of contract caused the plaintiff‟s husband's death. The trial court denied the seller's motion for summary judgment, concluding that disputes of material fact remained, but it granted the seller permission to seek an interlocutory appeal. The Court of Appeals denied the seller's application for an interlocutory appeal, but this Court granted the seller permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure. We conclude that the seller did not owe a duty of care to the plaintiff's husband or other users of the fitness facility independent of its contract with the church and that the church had no statutory or common law duty to acquire or use the AED it purchased from the seller, and as a result, the plaintiff's husband was not a third-party beneficiary of the church's contract with the seller. For these reasons, the seller is entitled to summary judgment on the plaintiff's second amended complaint and the church's third-party complaint. Accordingly, we reverse the judgment of the trial court and remand for entry of summary judgment in favor of the seller on all claims and for any other necessary and appropriate proceedings consistent with this decision.

NOTE: In addition to the discussion on the law surrounding the seller of an AED's liability in Tennessee, this opinion sheds further light on the post-Rye summary judgment standard in our state, which makes it a must-read for that fact alone.

Wednesday, November 30, 2016

New Health Care Liability Action Opinion: Trial Court's Exclusion of Plaintiff's Treating Physician as a Causation Expert and Resulting Grant of Summary Judgment to the Defense Reveresed on Appeal

The Tennessee Court of Appeals issued its opinion in Holmes v. Christ Community Health Services, Inc., No. W2016-00207-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2016).  The syllabus from the opinion states as follows:
The plaintiff filed this action alleging medical malpractice against a physician who examined the plaintiff five days after injury to her shoulder, as well as the facility wherein the physician practiced. The plaintiff alleged, inter alia, that the defendant physician failed to properly diagnose a fracture dislocation in her shoulder, causing a delay in appropriate treatment. The plaintiff‘s subsequent treating physician opined in his deposition and via affidavit that if the plaintiff‘s injury had been diagnosed earlier, the plaintiff would likely have avoided an extensive surgical procedure, resultant infection stemming from such surgery, and residual impairment to her shoulder. The trial court excluded this testimony as speculative, granting summary judgment in favor of the defendant physician and hospital. The plaintiff has appealed. We determine that the trial court erred in excluding the causation evidence as speculative. We therefore vacate the court‘s grant of summary judgment in favor of the co-defendants.
Here is a link to the slip opinion:

Saturday, November 19, 2016

New Health Care Liability Action Opinion: Trial Court's Dismissal Based upon Claim Being Time-barred for Failure to Comply with Onerous Presuit Notice Requirements Upheld on Appeal; Constitutional Challenge of Tenn. Code Ann. sec. 29-26-121 Deemed to Be Without Merit

The Tennessee Court of Appeals recently issued its opinion in J.A.C. ex rel. Lesha Carter v. Methodist Healthcare Memphis Hospitals, No. W2016-00024-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2016).  The syllabus from the opinion states as follows:
In this health care liability action, Defendants moved to dismiss based on the Plaintiffs' failure to provide the Health Insurance Portability and Accountability Act ("HIPAA") medical authorization required by Tennessee Code Annotated section 29-26-121(a)(2)(E). Based on its determination that the Plaintiffs failed to substantially comply with the foregoing statute, the trial court held that the Plaintiffs were not entitled to an extension of the applicable statutes of limitations and repose under Tennessee Code Annotated section 29-26-121(c) and accordingly concluded that the Plaintiffs' claims were time-barred. The trial court also concluded that the Plaintiffs' constitutional challenges to the viability of Tennessee Code Annotated section 29-26-121 were without merit. We affirm and remand for further proceedings consistent with this Opinion.

NOTE: I find it interesting that the courts in 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 under 45 C.F.R. sections 164.501, -502(b), -.514(d) to investigate potential medical negligence.  See (last visited Nov. 19, 2016).  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. 

Thursday, October 27, 2016

New Health Care Liability Action Opinion: Common-knowledge Exception Applies to the Breach of Duty But Not to Causation; Trial Court's Dimissal with Prejudice Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Redick v. Saint Thomas Midtown Hospital, No. M2016-00428-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2016).  The syllabus from the slip opinion states as follows:  
Vicki J. Redick (“Plaintiff”) appeals the dismissal with prejudice of her health care liability action against Saint Thomas Midtown Hospital (“the Hospital”) and Jane Doe, an employee of the Hospital. We find and hold that Plaintiff, despite application of the common knowledge exception when appropriate, would be unable to prove her claim without expert proof, and therefore, Plaintiff was required to file a certificate of good faith in compliance with Tenn. Code Ann. § 29-26-122. As Plaintiff failed to file the required certificate of good faith, we find no error in the judgment of the Circuit Court for Davidson County (“the Trial Court”) dismissing Plaintiff‟s case with prejudice for failure to comply with Tenn. Code Ann. § 29-26-122.

NOTE: In this opinion, the court held that while the common-knowledge exception applied to the breach of duty, Redick v. Saint Thomas Midtown Hospital, No. M2016-00428-COA-R3-CV, slip op. at  8 (Tenn. Ct. App. Oct. 26, 2016), it did not apply to causation, inter alia, because what injuries the plaintiff suffered were not within the common knowledge of laypersons (unlike when a wrong body part is operated on or a foreign object is unintentionally left in a patient's body after surgery), id. 

Thursday, October 20, 2016

New Health Care Liability Action Opinion: Trial Court's Dismissal of Refiled Case Overturned on Appeal Due to the Saving Statute

The Tennessee Court of Appeals just issued its opinion in Robinson v. Robbins, No. W2016-00381-COA-R3-CV (Tenn. Ct. App. Oct. 19, 1996).  The syllabus from the slip opinion states as follows:
This is a health care liability action.  The plaintiffs timely filed suit against the defendant concerning the inadequate care and treatment received by the decedent. After voluntarily dismissing the initial suit, the plaintiffs provided pre-suit notice before filing a second suit pursuant to the saving statute. The defendant moved to dismiss, arguing that the saving statute did not apply because there was no identity of parties between the actions. He explained that the second complaint was filed against him in his individual capacity while the initial complaint was lodged against him in his corporate capacity. The court agreed and held that the second action was barred for failure to file within the applicable statute of limitations. We reverse.
 (Footnote omitted.)

Here is a link to the slip opinion: