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Thursday, May 23, 2019

New Case on Voluntary Dismissals ("Nonsuits") under Tenn. R. Civ. P. 41.01

The Tennessee Court of Appeals recently issued its opinion in Lemonte v. Lemonte,No. 63CC1-2018-CV-154 (Tenn. Ct. App. May 17, 2019).  The syllabus from the slip opinion reads:
The day before a hearing on a motion to dismiss for lack of prosecution was held, Plaintiff filed a notice of voluntary dismissal. Plaintiff did not appear at the hearing the following day. As such, the trial court granted the motion to dismiss and dismissed the case with prejudice. We reverse and remand for the entry of an order of dismissal without prejudice pursuant to Rule 41.01 of the Tennessee Rules of Civil Procedure.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/lemonte.ronald.opn_.pdf

NOTE: This is a great opinion and a must-read one for any lawyer who practices in the State of Tennessee's courts.  It's a good reminder that, absent few exceptions, a plaintiff has a right to take a voluntary dismissal (a "nonsuit") in civil actions in Tennessee.  No motion seeking leave to nonsuit needs to be filed as I have seen done in some cases; only a notice need be filed.  An order can be submitted later; and the one year to refile under the saving statute runs from the entry of that order.  Tenn. R. Civ. 41.01(3). 

Further, even if a motion for summary judgment is pending, which is one of the exceptions to having a right to take nonsuit, a voluntary dismissal without prejudice can still be taken with court permission.  Stewart v. Univ. of Tenn., 519 S.W.2d 591, 592–94(Tenn. 1974).

Thursday, April 18, 2019

New Health Care Liability Action Opinion: Plaintiff's Case Dismissed Due to a Failure to Submit a HIPAA-compliant Authorization (When One Was Not Needed?)

The Tennessee Court of Appeals just issued its decision in Williams v. Gateway Medical Center, No. M2018-00939-COA-R3-CV (Tenn. Ct. App. Apr. 18, 2019).  The syllabus from the slip opinion reads as follows:
In this health care liability action, the trial court dismissed the plaintiff’s claims for failure to substantially comply with the requirements of Tenn. Code Ann. § 29-26- 121(a)(2)(E) upon determining that the plaintiff’s pre-suit notice failed to include a HIPAA-compliant medical records authorization. The trial court found that the medical records authorizations provided by the plaintiff failed to include a “[d]escription of information to be used or disclosed” and an expiration date. The trial court further determined that these deficiencies prejudiced the defendants from mounting a defense because they were unable to obtain the relevant medical records. As a result, the plaintiff’s claims were dismissed without prejudice. The plaintiff timely appealed. We consider the plaintiff’s omission of an expiration date insignificant. The HIPAA form provided by the plaintiff failed to substantially comply with the statute because it did not include a description of the information to be used or disclosed, thereby causing prejudice to the defendants. We, therefore, affirm the trial court’s dismissal of the plaintiff’s claims. 
Here is a link to the majority opinion: 


Here is Judge Dinkin's partial concurrence and dissent:


Here is Judge Frierson's partial concurrence and dissent:


NOTE:

I respectfully have a problem with this decision.  It misses the fact that no authorization was even required.  See Note at this prior blog post, to wit:



Monday, February 18, 2019

New Tennessee Case on Hospital Liens

The Tennessee Court of Appeals recently issued its opinion in Franks v. Sykes, No. W2018-00654-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2018).  The syllabus from the slip opinion reads:
This appeal concerns two separate plaintiffs’ claims under the Tennessee Consumer Protection Act (“TCPA”), alleging that the filing of undiscounted hospital liens violated the TCPA by “[r]epresenting that a consumer transaction confers or involves rights, remedies or obligations that it does not have or involve or which are prohibited by law.” The trial court dismissed one plaintiff’s claim based on the pleadings due to the plaintiff’s failure to bring a claim under the Hospital Lien Act and dismissed another plaintiff’s claim for improper venue. We affirm in part as modified, reverse in part, and remand for further proceedings.
Here is a link to the slip opinion:


NOTE: This opinion offers insight into how to handle a hospital lien from a plaintiff's lawyer's perspective.  The court herein held that the Hospital Lien Act ("HLA") was not the plaintiffs' exclusive remedy and that the Tenn. Consumer Protection Act ("TCPA") may be utilized under the proper circumstances.  However, under these circumstances, the court held that the matter in question was not a "consumer transaction" covered by the TCPA.  

Furthermore, proper venue is discussed in this opinion.  Especially as it relates to the HLA and the TCPA.  

This is a good opinion to be familiar with in my opinion.  It is worth readings.  

Sunday, February 17, 2019

New Health Care Liability Action Opinion: Plaintiff's Case Dismissed Due to Counsel's Failure to Comply with Onerous Presuit Notice and Filing Requirements

The Tennessee Court of Appeals recently issued its opinion in Newman v. State, No. M2018-00948-COA-R3-CV (Tenn. Ct. App. Feb. 15, 2019).  The syllabus form the slip opinion reads as follows:
A patient in a state psychiatric facility was killed by another patient. The surviving spouse of the deceased patient brought suit against the State and was awarded damages for the wrongful death of her husband. Because the Tennessee Health Care Liability Act applies to the surviving spouse’s claim, and because she failed to comply with the Act’s requirements of pre-suit notice and good faith certification, we must reverse the decision of the Claims Commission.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/newman.unitta.opn_.pdf

NOTE: This case is a companion case to the one discussed in my Aug. 8, 2016 blog post:

http://theduncanlawfirm.blogspot.com/2016/08/new-health-care-liability-action.html

Both of these cases demonstrate the importance of complying with Tenn. Code Ann. sec. 29-26-121 and -122; they also demonstrate the wide net cast by Tenn. Code Ann. sec. 29-26-101.  Health care liability actions are incredibly complicated and byzantine, which can cause problems for lawyers who do not practice in this area of the law.  

A person died due to alleged negligence here and the case(s) should be allowed to proceed as any other case would without being dismissed due to procedural technicalities.  That would be fair.

Wednesday, January 30, 2019

New Health Care Liability Action Opinion: Plaintiff Allowed to Take a Nonsuit Despite the Fact That a Certificate of Good Faith Was Not Filed with the Complaint

The Tennessee Court of Appeals recently released its opinion in Renner v. Takoma Regional Hospital, No. E2018-00853-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2019).  The syllabus from the slip opinion reads as follows:
This is a health care liability action in which the defendants filed a motion to dismiss based upon the plaintiff’s failure to file a certificate of good faith with the complaint. The plaintiff then filed the required certificate. The defendants responded with motions for summary judgment with attached affidavits, attesting that a certificate of good faith was not attached to the original complaint. The plaintiff moved for voluntary dismissal. The court granted the plaintiff’s motion and filed an order of voluntary dismissal. The defendants appeal, claiming that Rule 41.01 of the Tennessee Rules of Civil Procedure prohibits the taking a voluntary nonsuit when a summary judgment motion is pending. We affirm.
(Footnote omitted.)

Here is a link to the slip opinion: 


NOTE: Some things to take with you after reading this opinion: first, if a motion for summary judgment is not pending, a plaintiff, in a Tennessee state court civil action, has a right to take a nonsuit (a.k.a. a voluntary dismissal without prejudice) without having to file a motion.  Tenn. R. Civ. P. 41.01.  Second, if a motion for summary judgment is pending, a plaintiff may still take a nonsuit with a court's permission.  Stewart v. Univ. of Tenn., 519 S.W.2d 591,593–94 (Tenn. 1974).  

However, if a nonsuit is taken against a governmental entity, suit cannot be refiled under the saving statue because it does not save the action.  That subject is for a post on another day.


Tuesday, January 01, 2019

Comparative Fault: Another New Opinion on Tennessee Code Annotated section 20-1-119

On Dec. 13, 2018, the Tennessee Court of Appeals issued its opinion in Nationwide Mutual Fire Insurance Company v. Memphis Light, Gas and Water, No. W2017-02551-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2018).  The syllabus from the slip opinion states as follows:
Plaintiff/Appellant Nationwide appeals the trial court’s grant of Defendant/Appellee’s motion to dismiss for failure to state a claim for which relief can be granted. Defendant’s motion was based on the argument that Plaintiff’s claim was time-barred pursuant to the Tennessee Governmental Tort Liability Act, and that Tennessee Code Annotated section 20-1-119 did not allow Plaintiff to timely add Defendant to the suit. Because we conclude that the trial court incorrectly applied Tennessee’s comparative fault statute, we reverse.
Here is a link to the slip opinion:


NOTE: This opinion does a good job of analyzing and explaining Tenn. Code Ann. sec. 20-1-119 (our state's comparative fault joinder statute).  I am a little surprised the trial court granted the dismissal as this issue was addressed a few years ago in Queen’s Tree Surgery v. Metropolitan Government of Nashville and Davidson County, No. M2003-00228-COA-R3-CV, 2003 WL 22768689 (Tenn. Ct. App. Nov. 24, 2003).  For what it is worth, I had a similar issue come up a little while back in Scales v. H.G. Hill Realty Co., which is the subject of my Jan. 31, 2018 post: http://theduncanlawfirm.blogspot.com/2018/01/new-tennessee-court-of-appeals-opinion.html.

Trial Court's Dismissal of Case Against Truck Stop Reversed on Appeal Because Trial Court Misapplied Standard of Review in Granting Truck Stop's Motion to Dismiss

On Nov. 5, 2018, the Tennessee Court of Appeals issued its opinion in Mershon v. HPT TA Properties Trust, No. M2018-00315-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2018).  The syllabus from the slip opinion reads as follows:
A motor vehicle accident on the roadway abutting a truck stop resulted in the death of the plaintiff’s husband. The driver of the vehicle turning left into the truck stop was using the entrance meant for semi-trailer trucks and had a limited view of oncoming traffic due to a hill that crested a short distance ahead. The plaintiff filed a negligence claim against the truck stop owners and operators, asserting they created a hazardous condition by failing to place visible signage on their property directing passenger vehicles to the appropriate entrance. The defendants moved to dismiss the complaint, contending they owed no duty to the traveling public because the collision occurred on a municipal road, not on their property. The trial court granted the motion to dismiss, and the plaintiff appealed. We reverse the trial court’s judgment, holding that a balancing test is required to determine whether the defendants owed a duty to the plaintiff’s husband and that dismissing the complaint is premature at this stage of the proceedings.
Here is a link to the slip opinion:


NOTE: This is an excellent opinion that discusses the standard of review to be applied for motions to dismiss and when a duty of care arises.  This is a must-read opinion for attorneys who are interested in these two matters.  

Tennessee's Peer Review Statute Cannot Be Used to Suborn Perjury!

On Dec. 11, 2018, the Tennessee Court of Appeals issued its opinion in Reynolds v. Gray Medical Investors, LLC, No. E2017-02403-COA-R9-CV (Tenn. Ct. App. Dec. 11, 2018).  The syllabus from the slip opinion reads:
We granted the Tenn. R. App. P. 9 application for interlocutory appeal in this case to consider whether a healthcare provider can use Tenn. Code Ann. § 68-11-272, (“the peer review statute”), to claim privilege and exclude evidence that an employee was threatened with dismissal or retaliation if the employee refused to change their story or alter documents in order to cover up possible negligent conduct. We find and hold that the peer review privilege contained within Tenn. Code Ann. § 68-11-272 never was intended to allow a healthcare provider to attempt without fear of adverse consequences to force an employee to commit perjury. We, therefore, reverse the July 31, 2017 order of the Circuit Court for Washington County ... excluding the testimony of defendants’ employee pursuant to the peer review privilege contained in Tenn. Code Ann. § 68-11-272 and remand this case for further proceedings consistent with this Opinion.
Here is a link to the slip opinion: 


NOTE: The defendant herein was attempting to use the peer review statute to suborn perjury; take a minute for that to sink in.  Perjury!  That is why the panel, in construing the peer review statute, wrote: "[I]n no known universe does suborning perjury fit within the General Assembly’s stated purpose of Tenn. Code Ann. § 68-11-272...."  Reynolds, No. E2017-02403-COA-R9-CV, slip op. at 7 (emphasis added).  I am glad the panel did what it did and shut this sort of "argument" down, because what was being attempted was simply beyond the pale.