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Wednesday, February 10, 2016

New Health Care Liability Action Opinion: The Common-knowledge Exception Is Alive and Well

The Tennessee Court of Appeals issued its opinion today in Osunde v. Delta Medical Center, No. W2015-01005-COA-R9-CV (Tenn. Ct. App. Feb. 10, 2016).  The summary from the opinion states as follows:
This interlocutory appeal concerns the trial court‟s partial dismissal of a case concerning
alleged negligence committed against Plaintiff/Appellee Brenda Osunde (“Mrs. Osunde”).  Mrs. Osunde filed a complaint in the trial court alleging a medical malpractice claim against DMC-Memphis, Inc. (“DMC”), as well as a claim for common law negligence, after she sustained a fall while at DMC's hospital, Delta Medical Center. When Mrs. Osunde failed to disclose any experts pursuant to the trial court‟s scheduling order, DMC moved for summary judgment. In adjudicating DMC's motion, the trial court drew a distinction between Mrs. Osunde's “health care liability action,” which it dismissed for her failure to produce an expert, and Mrs. Osunde's common law negligence claim, which it ruled should proceed to trial. After ruling on the motion for summary judgment, the trial court stayed further proceedings and granted DMC leave to pursue interlocutory review in this Court. Although we agree with DMC that all of Mrs. Osunde's asserted claims give rise to a “health care liability action” within the meaning of the Tennessee Code, we disagree with DMC's assertion that expert testimony is required to prove Mrs. Osundes allegations of negligence.  As such, we reverse the trial court‟s order to the extent that it purports to dismiss Mrs.Osunde's health care liability action, and we affirm the trial court‟s decision to allow this
case to proceed to trial.
Here's a link to the opinion:

NOTE: This opinion cites Deuel v. The Surgical Clinic, PLLC, No. M2009-01551-COA-R3-CV, 2010 WL 3237297, at *9-14 (Tenn. Ct. App. Aug. 16, 2010), available at,43 (last visited Feb. 10, 2016).  Deuel was my case and I am happy to see it being cited for the proposition that the common-knowledge exception to expert testimony is alive and well in Tennessee.  There is also persuasive authority that supports Deuel and Osunde from one of our sister states, New Jersey, to wit: Hubbard ex rel. Hubbard v. Reed, 774 A.2d 495 (N.J. 2001), available at,31 (last visited Feb. 10, 2016).

Further, even if the common knowledge exception applies in a health care liability action, presuit notices must still be mailed out per Tenn. Code Ann. sec. 29-26-121, even if a certificate of good faith is not required per Tenn. Code Ann. sec. 29-16-122.  See Hubbard, supra, and my post from March 10, 2015, to wit:

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