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.
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:
Here is a link to the slip opinion:
NOTE: the phrase "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 the phrase actually means. As such, this is a must-read opinion for any lawyer who handles health care liability (f.k.a. medical malpractice) case.
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:
NOTE: I'm glad my Deuel case helped in this one. Anderson v. Wang, No. M2018-00184-COA-R3-CV, slip op. at 6–7 (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:
Here is a link to the separate concurring opinion by Judge Swiney (which is a must-read):
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.
Here are some helpful links on this subject:
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:
Here is a link to Judge McBrayer's dissent:
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).
Monday, July 09, 2018
New Health Care Liability Action Opinion: Trial Court's Denial of Defendants' Motions to Dismiss Overturned on Appeal
The Tennessee Court of Appeals issued its opinion today in Smith v. Wellmont Health Systems, No. E2017-00850-COA-R9-CV (Tenn. Ct. App. Jul. 9, 2018). The syllabus from the opinion reads as follows:
This interlocutory appeal involves a health care liability action. Plaintiff gave potential defendants written notice of his malpractice claim. See Tenn. Code Ann. § 29-26-121(c). Plaintiff then filed his complaint. In doing so, he relied upon a 120-day extension of the one year statute of limitations as provided for in § 29-26-121(c). Each defendant moved to dismiss the plaintiff’s complaint. By an order entered April 1, 2015, the trial court granted the joint motion to dismiss of three of the defendants. The court’s order concluded that plaintiff’s complaint was time-barred. Plaintiff did not appeal the court’s judgment and, with the passage of time, it became final. Meanwhile, the motions to dismiss of the other defendants, all of which were essentially based upon the same ground as that of the joint motion of the dismissed defendants, were awaiting resolution by the trial court. Before this could happen, however, the plaintiff voluntarily dismissed his complaint. Nine months later, plaintiff sent a new pre-suit notice. Four months after that, plaintiff filed a second health care liability action against the same defendants, including those dismissed by the trial court in its April 1, 2015 order. All defendants again moved to dismiss the complaint. The trial court denied the motions. Later, the trial court decided that its April 1, 2015 dismissal order was incorrect. It concluded that plaintiff’s first complaint was not time-barred because, according to the court, plaintiff provided proper pre-suit notice. On the defendants’ further motions, the court granted them permission to pursue an interlocutory appeal pursuant to the provisions of Tenn. R. App. P. 9. We did likewise. We now reverse the judgment of the trial court denying defendants’ motions to dismiss.Here is a link to the slip opinion:
NOTE: This opinion was consolidated for purpose of oral argument with Roberts v. Wellmont Health Systems, No. E2017-00845-COA-R9-CV (Tenn. Ct. App. Jul. 5, 2018), which is the subject of my July 6, 2018 blog post, to wit: http://theduncanlawfirm.blogspot.com/2018/07/new-health-care-liability-action_6.html.
Saturday, July 07, 2018
New Health Care Liability Action ("HCLA") Opinion: Despite Being Presented as a Declaratory Judgment Action, Trial Court Found the Action to Be a HCLA, Dismissed It as Being Time-Barred, and Dismissal Was Upheld on Appeal
The Tennessee Court of Appeals has issued its opinion in Estate of Myers v. Questall, No. M2017-01954-COA-R3-CV (Tenn. Ct. App. Jul. 6, 2018). The summary from the opinion reads as follows:
Appellants appeal the trial court’s grant of summary judgment in favor of Appellee, medical doctor. The trial court found that Appellant’s petition for declaratory judgment sounded in health care liability and was barred by the statute of limitations. Tenn. Code Ann. § 29-26-116(a)(1). Discerning no error, we affirm and remand.
Here is a link to the slip opinion:
NOTE: Health care liability actions, formerly known as medical malpractice cases, are defined by statute in Tenn. Code Ann. sec. 29-26-101(a)(1). And that definition is very broad, which this opinion points out. While lawyers are required to be creative at times to get a case in front of a jury (count me among the "creative" types), this case demonstrates that health care liability actions are set up in a way to prohibit that type of creativity, which prevents an injured person from obtaining a remedy at law a lot of times.
Friday, July 06, 2018
New Health Care Liability Action Opinion: Trial Court's Denial of Motions to Dismiss Reversed on Appeal; Claim Determined to Be Time-barred Due to Ineffective Presuit Notice (Defective (Partially Blank) HIPAA Auths.)
The Tennessee Court of Appeals recently issued its opinion in Roberts v. Wellmont Health Systems, No. E2017-00845-COA-R9-CV (Tenn. Ct. App. Jul. 5, 2018). The syllabus from the slip opinion reads as follows:
This interlocutory appeal involves a health care liability action. Plaintiff gave written presuit notice of her claim to all potential defendants. See Tenn. Code Ann. § 29-26-121(c) (Supp. 2013). Later, she filed a complaint against the same defendants. In doing so, she relied upon the 120-day extension of the one-year statute of limitation as provided for in Tenn. Code Ann. § 29-26-121(c). Each defendant filed a motion to dismiss. Prior to a hearing on those motions, plaintiff voluntarily dismissed her complaint. Plaintiff subsequently served each defendant with new pre-suit notice and later re-filed her complaint in reliance on the one-year savings statute, Tenn. Code Ann. § 28-1-105, and the 120-day extension pursuant to § 29-26-121(c). Defendants moved to dismiss the second complaint. The trial court denied defendants’ motions. In doing so, the court took “judicial notice” of the practice of some attorneys in the Second Judicial District of providing their adversaries with “blank” authorizations. The court ultimately held that the medical authorizations in the first pre-suit notice were not only HIPAA compliant, but “overly” so. The trial court concluded that, because the first pre-suit notice was, according to the court, valid, the first-filed complaint was timely filed. Upon the request of the defendants, the court granted them permission to pursue an interlocutory appeal pursuant to the provisions of Tenn. R. App. P. 9. We likewise granted defendants permission to file a Rule 9 discretionary appeal. We reverse the judgment of the trial court and dismiss the plaintiff’s suit with full prejudice.
Here is a link to the slip opinion:
NOTE: As noted in this opinion, a partially blank HIPAA-compliant authorization is not HIPAA-effective because they do not contain the core elements required of medical records authorizations. However, are HIPAA-compliant authorizations even needed in such instances, or, is the sharing of a patient's protected health information allowed under HIPAA's "health care operations" provisions? See the note in my prior blog post for the answer.