Search This Blog

Sunday, March 18, 2018

New Health Care Liability Action Opinion: Trial Court's Dismissal Reversed as to Some Defendants

The Tennessee Court of Appeals just released its opinion in Brookins v. Tabor, No. W2017-00576-COA-R3-CV (Tenn. Ct. App. Mar. 15, 2018).  The syllabus from the slip opinion states as follows:
A plaintiff filed a health care liability complaint in 2015 against several physicians and entities that he later non-suited in order to comply with the pre-suit notice requirements set forth in Tenn. Code Ann. § 29-26-121(a). The plaintiff then filed a second complaint against the same defendants, relying on the saving statutes of Tenn. Code Ann. § 28-1- 105 and Tenn. Code Ann. § 29-26-121(c) to extend his statute of limitations. The plaintiff’s wife joined him as a plaintiff in the second complaint. The defendants filed motions to dismiss, alleging non-compliance with the pre-suit notice requirements and the statute of limitations. The trial court granted all of the defendants’ motions and dismissed the complaint. The plaintiffs appealed the trial court’s dismissal of the complaint against the physicians. Interpreting the complaint liberally and presuming the truth of plaintiffs’ allegations regarding the HIPAA authorizations, we reverse the trial court’s dismissal of the complaint against two of the physicians and affirm the dismissal of the complaint against one of the physicians on statute of limitations grounds. We affirm the trial court’s judgment dismissing the wife’s claims against all of the defendants.
Here is a link to the slip opinion:

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

NOTE: We are blessed to have some really good judges and justices on our appellate courts in Tennessee.  This opinion is one example of why that is the case: it discusses presuit notice in health care liability actions (med mal cases), the saving statute, the discovery rule, etc.  It's a good read in my humble opinion.

Tuesday, March 06, 2018

New Tennessee Supreme Court Opinion: Wrongful Death Claim of Surviving Spouse Trumps Claim Made by Deceased's Children in This Intance

The Supreme Court of Tennessee just issued its opinion in Nelson v. Myres, No. M2015-01857-SC-R11-CV (Tenn. Mar. 5, 2017).  The syllabus from the slip opinion reads as follows:
The primary issue in this appeal is whether a surviving spouse maintains priority to file a wrongful death action when the decedent’s child has also filed a wrongful death action in which the child alleges that the surviving spouse negligently caused the decedent’s death. The trial court dismissed the daughter’s wrongful death complaint, but the Court of Appeals reversed the trial court, ruling that under the circumstances presented in this case, the surviving spouse was disqualified from filing the wrongful death action. Because the wrongful death statutes do not include an exception to the spousal priority rule and because the surviving spouse did not waive his right to file the wrongful death action, we hold that the trial court properly dismissed the daughter’s wrongful death action. The judgment of the Court of Appeals is reversed and the cause remanded to the trial court. 
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/nelson.brittany.opn__0.pdf

NOTE: This is a follow-up post to my January 19, 2017 blog post about this same case after the Court of Appeals issued its decision.  Here is a link to that post:

http://theduncanlawfirm.blogspot.com/2017/01/new-wrongful-death-opinion-surviving.html

Also, this opinion, as are all opinions from the Tennessee Supreme Court, is a must-read opinion and a reminder that wrongful death claims are creatures of statute and must be construed under the canons of statutory construction.  In this instance, there is no statutory exception to spousal priority to file and maintain such an action.




Tuesday, February 20, 2018

New Opinion on Motions to Strike and Tennessee Code Annotated section 20-1-119

The Tennessee Court of Appeals just issued its opinion in Santore v. Stevenson, No. W2017-01098-COA-R3-CV (Tenn. Ct. App. Feb. 20, 2018).  The syllabus from the slip opinion states as follows:
At issue in this personal injury action is whether the trial court erred by striking the defendant’s affirmative defense that an unknown “John Doe” driver of an Averitt Express truck was comparatively at fault for the plaintiff’s injuries. Relying on Brown v. WalMart Discount Cities, 12 S.W.3d 785 (Tenn. 2000) and Tenn. Code Ann. § 20-1-119, the trial court struck the affirmative defense as to John Doe and Averitt Express upon the finding that the defendant failed to sufficiently identify John Doe so that the plaintiff may serve process on John Doe. We have determined the trial court’s discretionary decision to strike the affirmative defense of comparative fault as to John Doe and Averitt Express was premature because the defendant was not afforded a reasonable opportunity to engage in pre-trial discovery to endeavor as to the identity of John Doe in sufficient detail for the plaintiff to serve process on John Doe. Therefore, we reverse and remand for further proceedings consistent with this opinion.
Here is a link to the opinion:

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

NOTE: This opinion does a good job of explaining motions to dismiss under Rule 12 and its interpretive case law.  However, it appears to be in conflict with two cases: Breeding v. Edwards, 62 S.W.3d 170, 171 (Tenn. Ct. App. 2001), https://scholar.google.com/scholar_case?case=17466177028433188467&q=Breeding+v.+Edwards&hl=en&as_sdt=4,43, and Marler v. Scoggins, 105 S.W.3d 596, 597 (Tenn. Ct. App. 2002), https://scholar.google.com/scholar_case?case=12866630331774870801&q=Marler+v.+Scoggins&hl=en&as_sdt=4,43.  Both of those cases acknowledge an exception to the rule against faulting a phantom (i.e., John Doe) tortfeasor, which is relied upon in this case.  It is also interesting that this opinion makes no mention of Breeding or Marler, which are reported opinions and controlling authority under Tennessee Supreme Court Rule 4(G)(2).  I might need to give this case another think (I've been up since 4:30 a.m.), but, as for now, I cannot reconcile it with Breeding or Marler.  Perhaps the litigants did not bring Breeding or Marler to the Court's attention.  



Friday, February 09, 2018

New Health Care Liability Action Opinion: Trial Court Reversed Due to Discovery Rule, Its Decision Vacated Because It Failed to Adhere to the Proper Summary Judgment Standard, Which Leads to a Remand by Court of Appeals

The Court of Appeals issued its opinion in Shaw v. Gross, No. W2017-00441-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2018).  The syllabus from the slip opinion states as follows:
The plaintiff in a health care liability action appeals the dismissal of her claim on the basis of the expiration of the statute of limitations and the failure to provide pre-suit notice compliant with Tennessee Code Annotated section 29-26-121(a)(3)(B). Because the undisputed facts in the record fail to establish that decedent was aware of the alleged misdiagnosis prior to his death, we reverse the trial court’s ruling on this issue. We also determine that the trial court failed to apply the appropriate standard or adequately explain its decision regarding the plaintiff’s alleged non-compliance with section 29-26- 121(a)(3)(B). We therefore vacate the dismissal of the complaint on this basis and remand for reconsideration in light of the appropriate standard. Reversed in part, vacated in part, and remanded.
Here is a link to the slip opinion:


NOTE: This is a good opinion on the application of the discovery rule in health care liability actions (formerly known as medical malpractice actions or cases) and a trial court's duty when granting summary judgment, inter alia.  I highly recommend reading this opinion.  

Tuesday, February 06, 2018

New Wrongful Death Case on the Number of Peremptory Challenges That Parents Have Who Both Join in a Suit for the Wrongful Death of Their Child

The Tennessee Court of Appeals just issued its opinion in O'Dneal v. Baptist Mem'l Hosp.-Tipton, No. W2016-01912-COA-R3-CV (Tenn. Ct. App. Feb. 6, 2018).  The syllabus from the slip opinion reads as follows:
Plaintiff parents of infant who died in child birth appeal a jury verdict in favor of the medical provider defendants. During voir dire, the trial court denied Plaintiffs’ request for additional peremptory challenges under Tennessee Code Annotated section 22-3-104(b) on the basis that Plaintiffs were bringing their claim on behalf of the decedent infant. Based upon the Tennessee Supreme Court’s decision in Beard v. Branson, 528 S.W.3d 487 (Tenn. 2017), we conclude that the trial court erred in treating Plaintiffs as a single “party plaintiff” and that Plaintiffs were entitled to eight peremptory challenges under the statute at issue. We also hold that under Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 107 (Tenn. 1996), the trial court’s error resulted in prejudice to the judicial process that necessitates a new trial. All other issues are pretermitted. Reversed and remanded. 
Here is a link to the slip opinion:


NOTE: This is a must-read opinion for any Tennessee trial lawyer who handles wrongful death cases.

New Health Care Liability Action Opinion: Refiled Case Time-barred Because Prior Case That Was Nonsuited Was Untimely Filed

The Tennessee Court of Appeals just issued its opinion in Dortch v. Methodist Healthcare Memphis Hosp., No. W2017-01121-COA-R3-CV (Tenn. Ct. App. Feb. 5, 2018).  The syllabus from the slip opinion reads as follows:
This is a health care liability case. Appellant/Plaintiff first filed suit against Appellees/Defendants for medical malpractice in April 2014. Defendants filed motions to dismiss based on Plaintiff’s failure to comply with the pre-suit notice requirements for health care liability claims. Before the trial court could hear Defendants’ motions to dismiss, Plaintiff filed a notice of voluntary nonsuit, and an order was entered thereon. Plaintiff subsequently re-filed her case against Defendants in September 2016 in reliance on the one year savings statute. Defendants moved the court to dismiss Plaintiff’s suit based on the statute of limitations. The trial court granted Defendants’ motions and dismissed Plaintiff’s claims with prejudice, holding that, because Plaintiff’s original presuit notice was defective, her first complaint was untimely and she could not rely on the savings statute to revive a time-barred cause of action. We affirm the judgment of the trial court.
Here is a link to the slip opinion:

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

NOTE: This case is a reminder of two things: first, a case can only be filed under the saving statute if it was timely filed before it was nonsuited; and, second, health care liability actions are very difficult to prosecute.

Wednesday, January 31, 2018

New Tennessee Court of Appeals' Opinion on Tennessee Code Annotated section 20-1-119

The Tennessee Court of Appeals just issued its opinion in Scales v. H.G. Hill Realty Co., LLC, No. M2017-00906-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2018).  The syllabus from the slip opinion is as follows:
A customer slipped and fell at a grocery store and sued four different entities that owned and/or operated the store. When two of the defendants filed a motion to compel the plaintiff to respond to discovery responses, the plaintiff voluntarily dismissed these defendants from the action. Then, in response to an answer to an amended complaint in which another defendant asserted the comparative fault of the dismissed defendants, the plaintiff filed a second amended complaint adding the dismissed defendants back in as named defendants pursuant to Tenn. Code Ann. § 20-1-119. The newly added defendants filed a motion to dismiss, which the trial court granted. The plaintiff appealed, and we reverse the trial court’s judgment. We hold that the statute permitted the plaintiff to add the formerly dismissed defendants back into the lawsuit.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/scales.mary_.opn_.pdf

NOTE: This is my case.  I represent the plaintiff in it.  In my totally biased opinion, I think that the Court of Appeals got this one right.  Also, this is a must-read opinion as to section 20-1-119 and how it is to be applied.


Thursday, January 25, 2018

New Opinion: How Long Does a Plaintiff Have to File Suit When the Tortfeasor Dies After the Wrongful Conduct? This Opinion Answers That Question.

The Tennessee Court of Appeals has issued its opinion in Putnam v. Leach, No. W2017-00728-COA-R3-CV (Tenn. Ct. App. Jan. 23, 2018).  The syllabus from the slip opinion is as follows:
This is a personal injury case involving a motor vehicle accident. The alleged tortfeasor died subsequent to the injury-causing accident. The plaintiffs were unaware of the decedent’s death and commenced this suit naming him as a defendant. Some months later, after learning of the decedent’s death, the plaintiffs sought the appointment of an administrator ad litem in the Probate Court and amended their complaint naming the administrator ad litem as a party as required by the survival statute. The defendant filed a motion to dismiss arguing that the plaintiffs’ complaint was not properly filed until after the expiration of the applicable statute of limitations. The trial court agreed and granted the defendant’s motion to dismiss. The plaintiffs timely appealed. Having concluded that the plaintiffs did not properly commence their lawsuit within the time afforded by the applicable statute of limitations, we affirm. 
Here is a link to the slip opinion:


NOTE: This opinion contains a great discussion of the statute of limitations in personal injury actions, the discovery rule, and what happens when a tortfeasor dies and a lawsuit must be commenced against the tortfeasor (and when an adminstrator ad litem needs to be appointed).  This is a must-read opinion for any Tennessee lawyer who handles tort cases.

Wednesday, January 24, 2018

New Health Care Liability Action Opinion: Intentional Acts Are Not Covered by the Tennessee Health Care Liability Act ("THCLA"); Negligent Training and Supervision Claims Are Covered by the THCLA; and If wrongful Acts Fall Within the Common-knowledge Exception to Expert Testimony No Certificate of Good Faith Is Required to Be Filed

The Tennessee Court of Appeals just issued it opinion in C.D. v. Keystone Continuum, LLC, No. E2016-02528-COA-R3-CV (Tenn. Ct. App. Jan. 22, 2018).  The syllabus from the slip opinion states as follows:
The plaintiff, C.D., a minor, was a resident of Mountain Youth Academy, a trauma focused residential treatment facility,1 when he got into a physical altercation with an employee of the defendant Keystone Continuum, LLC doing business as Mountain Youth Academy. The employee, Jacob Spencer, is described by the defendant as a “mental health associate.” The plaintiffs describe him as a “third shift night guard.” The minor’s mother filed this action, proceeding both individually and on behalf of her son. The complaint alleges, among other things, that Spencer pulled the minor plaintiff to the ground and stomped on his foot, causing him injury. Defendant moved to dismiss and/or for summary judgment, arguing that the complaint in this case alleges health care liability claims. Defendant argued that because of plaintiffs’ (1) failure to provide pre-suit notice under the Tennessee Health Care Liability Act (the THCLA), Tenn. Code Ann. § 29-26- 121 (Supp. 2017), and (2) their failure to file a certificate of good faith with the complaint, id. § 29-26-122, the lawsuit should be dismissed with prejudice. The trial court held that plaintiffs’ claims sounded in health care liability. It dismissed the mother’s action with prejudice. The court also dismissed the minor’s action, but did so without prejudice.2 Defendant appeals, arguing that the minor’s action should have been dismissed with prejudice. The plaintiffs also present issues. They argue that the trial court erred in ruling that their claims are based upon health care liability. Additionally and alternatively, plaintiffs argue that their claims fall within the “common knowledge” exception to the general requirement of expert testimony in a health care liability action. We hold that plaintiffs’ claims for assault and battery are unrelated to the provision of, or failure to provide, health care services. As a consequence of this, we hold that the plaintiffs’ assault and battery claims do not fall within the ambit of a “health care liability action” as defined by the statute. We further hold that plaintiffs’ direct claims against the defendant, for negligent supervision and/or training of its employees, are health care liability claims but ones involving matters that ordinary laypersons will be able to assess by their common knowledge. Hence, expert medical testimony is not required. The trial court’s judgment dismissing the plaintiffs’ claims for assault and battery is vacated. We further hold that mother’s failure to provide the defendant with pre-suit notice mandates a dismissal of her claim for negligent supervision and/or training, but that dismissal should have been without prejudice rather than with prejudice. Accordingly, the trial court’s judgment on this part of mother’s claim is modified to reflect that the dismissal is without prejudice. We affirm the trial court’s judgment dismissing the minor’s claim of negligent supervision and/or training and further affirm the trial court’s judgment that this dismissal is without prejudice.
Here is a link to the slip opinion: 

http://www.tncourts.gov/sites/default/files/c.d._et_al._v._keystone_continuum_llc_dba_mountain_youth_academy.pdf

New Opinion: Contractual Indemnification Claim Against a Health Care Provider Not a Health Care Liability Action

The Tennessee Court of Appeals recently released its opinion in Johnson v. Rutherford County, Tenn., No. M2017-00618-COA-R3-CV (Tenn. Ct. App. Jan. 11, 2018).  The syllabus from the slip opinion states as follows:
The plaintiffs, as co-conservators for their adult son, filed this action against the county, seeking payment of medical expenses incurred by their son following an assault upon him by another inmate while he was incarcerated at the county jail facility. The plaintiffs later amended their complaint to add allegations of civil rights violations, general negligence, and health care liability. The county filed a third-party complaint against the medical provider with whom the county had contracted to provide medical services for the inmates at the jail. The third-party complaint was based upon an indemnity clause contained within the respective parties’ contract. The medical provider filed a motion to dismiss the county’s third-party complaint because the county had not complied with the requirements of the Tennessee Health Care Liability Act (“THCLA”). Following a hearing, the trial court dismissed the county’s third-party complaint by reason of the county’s failure to comply with the requirements of the THCLA. The county timely appealed. Having determined that the trial court erred by treating the county’s third-party complaint as a THCLA claim, we reverse the court’s dismissal of the county’s third-party complaint.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/johnson.melissa.opn_.pdf