In this health care liability case, the defendants moved to dismiss the complaint on the grounds that the plaintiff failed to comply with Tenn. Code Ann. § 29-26-121, part of Tennessee‟s Health Care Liability Act. Specifically, the defendants argue that the plaintiff failed to provide a statement in the pleadings that he complied with Tenn. Code Ann. § 29-26-121(a), failed to file, with the complaint, documentation demonstrating compliance with Tenn. Code Ann. § 29-26-121(a), failed to file, with the complaint, an affidavit of the person who mailed pre-suit notice to the defendants, and failed to provide a HIPAA compliant medical authorization form. The trial court dismissed the case. We have reviewed the record and find that the plaintiff failed to substantially comply with Tenn. Code Ann. § 29-26-121(b). We affirm the judgment of the trial court.
Tuesday, September 27, 2016
New Health Care Liability Action Opinion: Plaintiff's Case Dismissed Due to Failure to Comply with Presuit and Filing Requirements
The Tennessee Court of Appeals recently issued its opinion in Travis v. Cookeville Regional Medical Center, No. M2015-01989-COA-R3-CV (Tenn. Ct. App. Sept. 21, 2016). The syllabus from the slip opinion states as follows:
Here is a link to the slip opinion: http://www.tncourts.gov/sites/default/files/travist.opn_.pdf
Wednesday, September 21, 2016
New Health Care Liability Action Opinion: Partial Summary Judgment for Plainitffs as to an Affirmative Defense of Comparative Fault Reversed on Appeal
Yesterday the Tennessee Court of Appeals issued its opinion in Young v. Jordan, No. W2015-02453-COA-R9-CV (Tenn. Ct. App. Sept. 20, 2016). Here is the syllabus from the slip opinion:
This is a healthcare liability case. Appellees, patient and her husband, filed suit against Appellants, physician and employer. Appellants raised the affirmative defense of comparative fault based on the fact that Appellee/patient had been non-compliant with medical advice. Appellees moved for partial summary judgment on the affirmative defense of comparative fault. The trial court granted the motion, and Appellants appeal. Because expert testimony adduced during discovery creates a dispute of material fact as to the question of Appellees’ non-compliance with medical advice and the effect of such non-compliance on Appellees’ injury, the grant of summary judgment was error.
Here is a link to the opinion: http://www.tncourts.gov/sites/default/files/youngstephnyopn.pdf
New Health Care Liability Action Opinion: Plaintiff Waived Requirement That Defendant File a Certificate of Good Faith to Support Claim Against a New Defendant; Case Against Newly Added Defendant Dimissed Due to Plaintff's Failure to Then File a Certificate of Good Faith in Support of Claim Against the New Defendant
Yesterday the Tennessee Court of Appeals issued its opinion in Peatross v. Graceland Nursing Home Center, LLC, No. W2015-01412-COA-R3-CV (Tenn. Ct. App. Sept. 20, 2016). Here is the syllabus from the slip opinion:
This is a health care liability action. The plaintiff filed suit against the defendants concerning the inadequate care and treatment received by the decedent. He then amended his complaint to add the defendant hospital as a party after the defendants alleged comparative fault. The defendant hospital moved to dismiss, arguing that the failure to attach a certificate of good faith applicable to it required dismissal. The trial court granted the motion to dismiss, citing this court’s opinion in Sirbaugh v. Vanderbilt University, 469 S.W.3d 46 (Tenn. Ct. App. 2014). The plaintiff appeals. We affirm.
Here is a link to that slip opinion: http://www.tncourts.gov/sites/default/files/peatrossopn.pdf
NOTE: This opinion is a good reminder that unless the common-knowledge exception applies in a health care liability action in Tennessee, a certificate of good faith is required to support such a claim---and some party has to file one.
Also, Sirbaugh, supra, is the subject of my Jan. 20, 2015 post on this blog, to wit: http://theduncanlawfirm.blogspot.com/2015/01/new-health-care-liability-opinion.html.
Friday, September 02, 2016
New Saving Statute Case: Plaintiff's Lawsuit Dismissed Because It Was Refiled for a Second Time More Than One Year from First Voluntary Dismissal
The Tennessee Court of Appeals recently issued its opinion in Greenwood v. Nat'l Dentex Corp., No. W2015-01889-COA-R3-CV (Tenn. Ct. App. Aug. 30, 2016). The syllabus from the slip opinion states as follows:
This is a saving statute case, Tennessee Code Annotated Section 28-1-105. The trial court dismissed Appellant’s third product-liability case, which was filed within one year of the dismissal of her second lawsuit, but more than one year after the entry of the initial nonsuit in Appellant’s first lawsuit. Discerning no error, we affirm.
Here is a link to the slip opinion:
As my good friend Donald Capparella says: "Nonsuits are tricky." They certainly are!