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Friday, February 24, 2017

New Opinion on Protective Orders and Their Modification

The Tennessee Court of Appeals just released its opinion in Autin v. Goetz, No. W2016-00099-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2017).  It is a good read on protective orders and their modification.   Here is the syllabus form the slip opinion:
The trial court entered a protective order under Rule 26.03 of the Tennessee Rules of Civil Procedure while the case was ongoing. After the plaintiffs filed a notice of voluntary dismissal, the trial court entered an order confirming the dismissal and extending the protective order "in perpetuity."  The defendant did not appeal the final order, but years later filed a motion to modify the protective order. The trial court denied the motion as barred by the doctrine of res judicata. On appeal, the defendant argues that the trial court lacked subject matter jurisdiction to extend the protective order after plaintiffs nonsuited their case. As an issue of first impression, we conclude that the trial court retained jurisdiction to extend and modify its previously entered protective order notwithstanding the voluntary dismissal of the underlying action. We further hold that modification of existing protective orders is authorized by the holding in Ballard v. Herzke, 924 S.W.2d 652, 658 (Tenn. 1996); accordingly, we vacate the trial court's denial of defendant's motion to modify and remand for reconsideration in light of our supreme court's established precedent.
(Bolding in original.)

Here is a link to the opinion:

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

New Health Care Liability Action Opinion: Jury Verdict for Defense Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Bogner v. Vanderbilt University, No. M2015-00669-COA-R3-CV (Tenn. Ct. App. Feb. 23, 2017).  he syllabus from the slip opinion states as follows:
This is an appeal from a judgment entered on a jury verdict in favor of the defendant in a health care liability action. The plaintiff filed suit against the defendant hospital for medical malpractice, medical battery, and lack of informed consent. The trial court granted a partial directed verdict in favor of the defendant after the plaintiff presented evidence. At the close of all the proof, the trial court denied the plaintiff's motion for a directed verdict on the remaining issues of medical battery and informed consent. On appeal, the plaintiff claims that the trial court erred in denying the motion for a directed verdict, in refusing to adopt the plaintiff's special jury instructions, and in using a confusing special verdict form. Discerning no reversible error, we affirm the judgment of the trial court. 
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/bogner.james_.opn_.pdf

New Health Care Liability Action Opinion: Trial Court's Dismissal of Action Upheld on Appeal Due to Ineffective HIPAA Authorization

The Tennessee Court of Appeals recently issued its opinion in Rush v. Jackson Surgical Assocs., P.A., W2016-01289-COA-R3-CV (Tenn. Ct. App. Feb. 13, 2017).  The syllabus from the slip opinion states as follows:
This is a healthcare liability action. After sustaining injuries as a result of alleged surgical error, Appellant filed this action against the surgeon and his medical group. Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated Section 29-26-121(a)(2)(E). The trial court granted the motion to dismiss, and Appellant appeals. Discerning no error, we affirm and remand.
Here's a link to the slip opinion:


NOTE: The syllabus is short and sweet and you have to read the opinion to get an idea of why the case was dismissed.  However, I direct you to my blog post of Nov. 19, 2016, which supports my belief that defendants in a health care liability action do not need a HIPAA-compliant authorization to review a patient's PHI/medical records, and, as result, cannot be "prejudiced" by not getting such an authorization as part of a claimant's presuit notice, to wit: 

Wednesday, February 08, 2017

New Health Care Liability Action 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 found at this link: http://www.tncourts.gov/sites/default/files/runionstiffinnedis.pdf

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.