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Saturday, October 20, 2012

Thursday, October 11, 2012

Civil Procedure: Substitution of a Representative Plaintiff Who Died During Pendency of Wrongful Death Action

The Tennessee Court of Appeals, Western Section, just issued its opinion in Holley ex rel. Holley v. Blackett, No. W2011-02115-COA-R3-CV (Tenn. Ct. App. Oct. 10, 2012).  The summary from the opinion states as follows:
This appeal involves an attempt to substitute parties after the original plaintiff in this wrongful death case died. The trial court struck the motion to substitute parties and dismissed the case. We reverse and remand for further proceedings.
Here's a link to the opinion:

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

Thursday, October 04, 2012

Medical Malpractice: New Tenn. Sup. Ct. Opinion on Presuit Notice and Certificates of Good Faith

The Tennessee Supreme Court recently issued its opinion in Myers v. AMISUB (SFH), Inc., No. W2010-00837-SC-R11-CV (Tenn. Oct. 4, 2012).  Here's the summary from the slip opinion, to wit:
The plaintiff filed a medical malpractice action against several health care providers and subsequently dismissed the lawsuit. He re-filed the action after the legislature enacted Tennessee Code Annotated section 29-26-121, which requires a plaintiff who files a medical malpractice suit to give health care providers who are to be named in the suit notice of the claim sixty days before filing the suit; and Tennessee Code Annotated section 29-26-122, which requires a plaintiff to file with the medical malpractice complaint a certificate of good faith confirming that the plaintiff has consulted with an expert who has provided a signed written statement that there is a good-faith basis to maintain the action. The defendants moved to dismiss the complaint based on the plaintiff’s failure to comply with Tennessee Code Annotated sections 29-26-121 and 122. The trial court denied the motion, finding that the plaintiff’s original suit constituted substantial compliance with the statutes’ requirements and that extraordinary cause existed to excuse compliance with the requirements of Tennessee Code Annotated section 29-26-121. Upon interlocutory appeal, the Court of Appeals reversed. We hold that the statutory requirements that a plaintiff give sixty days presuit notice and file a certificate of good faith with the complaint are mandatory requirements and not subject to substantial compliance. The plaintiff’s failure to comply with Tennessee Code Annotated section 29-26-122 by filing a certificate of good faith with his complaint requires a dismissal with prejudice.
Here's a link to the unanimous opinion: