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Monday, October 14, 2019

New Health Care Liability Action Opinion: Plaintiff’s Claim Time-barred Because Presuit Notice Was Not Sent Out in Time

The Tennessee Court of Appeals recently released its opinion in Daffron v. Memorial Health Care System, Inc., No. E2018-02199-COA-R3-CV (Tenn. Ct. App. Oct. 7, 2019).  The syllabus from the slip opinion reads:
This appeal arises from a wrongful death action based on health care liability. Wiley E. Daffron (“Decedent”) received medical treatment from Memorial Health Care System, Inc. (“Memorial”) in 2013. During his stay at Memorial, Decedent developed a pressure ulcer. Decedent died a few months after he was discharged from Memorial. Teresa M. Daffron (“Ms. Daffron”), Decedent’s adult daughter, obtained Decedent’s medical records from Memorial. Some 13 months later, Ms. Daffron sent pre-suit notice of her intent to sue Memorial. A few months after that, Ms. Daffron filed suit against Memorial in the Circuit Court for Hamilton County (“the Trial Court”). Memorial filed a motion for summary judgment asserting the statute of limitations, which the Trial Court granted. The Trial Court held that Ms. Daffron knew or should have known of Decedent’s injury and its possible cause more than one year before the pre-suit notice was sent and, therefore, her complaint was filed outside the statute of limitations. On appeal, Ms. Daffron argues that the statute of limitations did not begin to run until an expert informed her that Decedent’s injury was caused by Memorial. We hold that, pursuant to the discovery rule, and, as evidenced by, among other things, her seeking through counsel Decedent’s medical records, Ms. Daffron had constructive knowledge of Decedent’s claim more than one year before she sent pre-suit notice and, therefore, the complaint was not timely filed. Ms. Daffron’s claim brought on behalf of her father is barred by the statute of limitations. We affirm the judgment of the Trial Court.
Here is a link to that opinion:

http://www.tncourts.gov/sites/default/files/daffron_v._memorail_health_e2018-02199.pdf

NOTE: This opinion offers a good discussion of the discovery rule in health care liability actions under Tennessee substantive law.


Thursday, September 19, 2019

New Health Care Liability Action: Defendants' Failure to Comply with Tenn. Code Ann. sec. 29-26-121(a)(5) Proves Fatal to Their Motions for Summary Judgment; Adding Nonparties as Defendants under Tenn. Code Ann. sec. 20-1-119, Etc.

The Tennessee Court of Appeals just issued its opinion in Bidwell v. Strait, No. E2018-02211-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2019).  The syllabus from the slip opinion reads:
Plaintiff, James Bidwell, took his wife, Clarissa Bidwell, to Starr Regional Medical Center for treatment. She was transferred to Chattanooga-Hamilton County Hospital Authority dba Erlanger Health System, a governmental hospital authority, where she was treated, but later died. Plaintiff provided statutorily compliant pre-suit notice of his intent to file a health care liability action against each health care provider that was named as a defendant in the complaint. See Tenn. Code Ann. § 29-26-121(a). Plaintiff did not provide pre-suit notice to Erlanger. Tenn. Code Ann. § 29-26-121(a)(5) requires a recipient of pre-suit notice to give written notice to a claimant of any other person, entity, or health care provider who may be properly named a defendant within thirty days of receiving pre-suit notice. However, Dr. Jeffery Colburn and Dr. Timothy A. Strait failed to identify Erlanger as their employer, i.e. a known and necessary party to the suit. Plaintiff timely filed his complaint within the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121. Defendants answered plaintiff’s complaint, each raising the affirmative defense of comparative fault. Dr. Colburn and Dr. Strait then moved for summary judgment arguing that, pursuant to the Governmental Tort Liability Act, without Erlanger as a party defendant no judgment could be rendered against them. See Tenn. Code Ann. § 29-20-310(b). In response, plaintiff filed two motions to amend his complaint to add Erlanger as a defendant, in reliance upon the extension to the statute of limitations provided in Tenn. Code Ann. § 20-1-119(a). After a hearing, the trial court held that plaintiff’s failure to provide pre-suit notice to Erlanger prevents him from adding them to his complaint. It granted Dr. Colburn and Dr. Strait’s motions for summary judgment. Plaintiff appeals. We hold that Tenn. Code Ann. § 29- 26-121(a)(5) required Dr. Colburn and Dr. Strait to identify Erlanger as a known and necessary party within thirty days after receiving pre-suit notice; they failed to comply with § 29-26-121(a)(5). We hold that, pursuant to Tenn. Code Ann. § 20-1-119, their subsequent declaration of the necessity of the nonparty to the suit, after the complaint was filed, granted plaintiff an additional ninety days following the filing of the first answer to amend his complaint in order to add the nonparty as a defendant. See Tenn. Code Ann. § 20-1-119; see also Tenn. Code Ann. § 20-1-119(g) (stating that this section applies to suits involving governmental entities). In addition, we hold that, pursuant to Tenn. Code Ann. § 29-26-121(c), plaintiff’s addition of the nonparty is not barred for failure to provide pre-suit notice. See Tenn. Code Ann. § 29-26-121(c). Therefore, we vacate the trial court’s award of summary judgment to defendants Dr. Colburn and Dr. Strait. We remand this matter for further proceedings, pursuant to applicable law, and consistent with this opinion.
Here is a link to the opinion:


NOTE: This case is the first one I am aware of that addresses the effects of a defendant failing to comply with Tenn. Code Ann. sec. 29-26-121(a)(5).  Under -121(a)(5), the onus is on the defendant to identify "any other person, entity, or health care provider who may be a properly named defendant," after presuit notice is received by the defendant.  Bidwell, slip op. at 7–9.  The fact that this was a GTLA case further complicated things.  However, the Court of Appeals reached the correct conclusion here: Plaintiff moved to amend within ninety days and the fact that no presuit notice was sent to the hospital did not matter under these circumstances.  Id. at 17–18.

Additionally, under Rule 15, Tenn. R. Civ. P., and Tenn. Code Ann. sec. 20-1-119, Plaintiff did not have to file a motion seeking leave to add the hospital; Plaintiff could have just filed an amended complaint and had process issued within ninety days of the filing of an answer alleging fault against the hospital.  Tenn. R. Civ. P. 15.01; T.C.A. § 20-1-119(a)(1).  Again, if -119 applies, no motion need be filed before an amended complaint can be filed due to a 2007 amendment to Rule 15.01 after the Tennessee Supreme Court's decision in Jones v. Prof'l Motorcycle Escort Serv., LLC, 193 S.W.3d 564 (Tenn. 2006).  While a motion seeking leave to amend may be filed, it is unnecessary in instances like this one.  



Saturday, August 31, 2019

New Case on Service of Leading Process, Dismissals Without Prejudice, and the Saving Statute

The Tennessee Court of Appeals recently issued its opinion in Villalba v. McCown, No. E2018-01433-COA-R3-CV (Tenn. Ct. App. 2019).  Here is the syllabus from the slip opinion:
In this personal injury action arising from an automobile accident, the trial court granted summary judgment in favor of the defendant upon finding that the plaintiffs had failed to demonstrate service of process in the originally filed action, which had been dismissed, such that the plaintiffs’ refiled action was barred by the applicable statute of limitations. The plaintiffs have appealed. Having determined that, pursuant to the version of Tennessee Rule of Civil Procedure 4.04(11) in effect at the time that the initial complaint was filed, the plaintiffs demonstrated valid service of process of the initial complaint, we reverse the grant of summary judgment to the defendant and grant partial summary judgment to the plaintiffs concerning the affirmative defenses of ineffective service of process and expiration of the statute of limitations. We remand this action for further proceedings consistent with this opinion.
Here is a link to the opinion:


NOTE: This is a must-read opinion for any lawyer who practices in Tennessee state courts.  And if you’re a Civ. Pro. junkie like I am, this case is just for you!  It has it all: service of leading process, return of service, dismissals without prejudice, and refiling under our saving statute.  Good stuff!

Also, I’m glad that Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013) helped in this case.  That is a case that the plaintiff’s counsel allowed me to assist on the appeal—and we won!  After all, cases in Tennessee are supposed to be determined upon their merits and not upon procedural technicalities.  


Sunday, August 25, 2019

New Health Care Liability Action Opinion: Dismissal of Plaintiff's Case Reversed on Appeal

The Tennessee Court of Appeals recently issued its decision in Short ex rel. Short v. Metro Knoxville HMA, LLC, No. E2018-02292-COA-R3-CV (Tenn. Ct. App. Aug. 23, 2019).  The syllabus from the slip opinion reads as follows:
This appeal concerns healthcare liability. Carl Short (“Plaintiff”), widower of Allison Short (“Decedent”), filed suit in the Circuit Court for Knox County (“the Trial Court”) alleging negligence in his late wife’s medical treatment against a number of physicians (“Physician Defendants”) and Turkey Creek Medical Center (“the Hospital”) (“Defendants,” collectively). Defendants moved to dismiss on the basis of noncompliance with Tenn. Code Ann. § 29-26-121(a)(2)(E), which requires that pre-suit notice include a HIPAA compliant medical authorization allowing the healthcare provider receiving the notice to obtain complete medical records from every other provider that is sent a notice.1 Plaintiff’s authorizations allowed each provider to disclose complete medical records to each named provider although it did not state specifically that each provider could request records from the other. The Trial Court held that Plaintiff’s authorizations failed to substantially comply with the statute’s requirements because of this failure to explicitly allow each provider to obtain records. Plaintiff appeals. We hold that Plaintiff’s method of permitting Defendants access to Decedent’s medical records substantially complied with Tenn. Code Ann. § 29-26-121(a)(2)(E). We reverse the judgment of the Trial Court.
Here is a link to the majority opinion:


Here is a link to the dissent:


NOTE: Look for the defendants to seek further review by the Tennessee Supreme Court via Rule 11 of the Tennessee Rules of Appellate Procedure.  Also, as I have noted in previous posts, a healthcare provider does not need a HIPAA-compliant medical authorization to investigate a liability claim (see note on this post: http://theduncanlawfirm.blogspot.com/2018/08/new-health-care-liability-action.html).

Thursday, August 22, 2019

Sunday, August 04, 2019

New Case on Discretionary Costs: Case Remanded (in Part) to Trial Court for Further Consideration

The Tennessee Court of Appeals recently released its opinion in Pinson v. DeBoer, No. M2018-00593-COA-R3-CV (Tenn. Ct. App. Jul. 30, 2019).  The syllabus from the slip opinion reads as follows:
Appeal of an award of discretionary costs to Defendants in healthcare liability action that had been voluntarily dismissed. The trial court initially awarded Defendants, inter alia, expert witness fees for medical providers who had treated Plaintiff, expenses for videotaped depositions, and costs for the travel time and deposition preparation time for Plaintiff’s vocational expert. On Plaintiff’s motion, the court modified the award to exclude videographer expenses, expenses attendant to the vocational expert’s deposition, and other court reporter expenses. We modify the award to exclude the witness fees for the providers who treated Plaintiff and to include the court reporter fee for the deposition of Plaintiff’s vocational expert; vacate the portion of the award that reduces the amount of court reporter fees and expenses and remand the case for reconsideration of the award; and reverse the order to the extent it requires the Plaintiff to post a bond or pay discretionary costs prior to re-filing the suit. 
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/pinson.maurice.opn_.pdf

NOTE: This case offers a good explanation of discretionary costs as contemplated in a Tennessee state court.  It is a must-read opinion for anyone who has questions on this matter. 

Saturday, June 29, 2019

New Laws Effective in Tennessee on July 1, 2019

Here they are:

https://www.tn.gov/content/dam/tn/tccy/documents/leg/legislat.pdf

Based upon my cursory review of this list, these two are the most salient:

SB173/HB164 Driving laws related to mobile phone use, pp. 3–4; and

SB667/HB729 Court reporter compensation , pp. 70–71.

Monday, June 24, 2019

New SCOTN Opinion on Superseding and Intervening Cause in a Suicide Case

The Tennessee Supreme Court recently issued its opinion in Cotten v. Wilson, No. M2016-02402-SC-R11-CV (Tenn. Jun. 19, 2019).  The syllabus from the slip opinion reads:
In this wrongful death action, the plaintiff estate seeks to hold the defendant liable for negligently facilitating the decedent’s suicide. While staying alone in the defendant’s home, the adult decedent committed suicide by shooting herself with a gun that was unsecured in the defendant’s home. The decedent’s estate sued the defendant, alleging that he should have known the decedent was potentially suicidal and that he negligently facilitated the suicide by failing to secure the gun while the decedent was in his home. The trial court granted summary judgment in favor of the defendant, and the Court of Appeals reversed. We hold that the evidence is insufficient for a trier of fact to find that the decedent’s suicide was a reasonably foreseeable probability; consequently, the decedent’s suicide constitutes a superseding intervening event that breaks the chain of proximate causation. Accordingly, we reverse the Court of Appeals and affirm the trial court’s grant of summary judgment in favor of the defendant.
Here is a link to the majority opinion:

https://www.tncourts.gov/sites/default/files/cottenv.wilson.opn_.pdf

Here is a link to Justice Lee's dissent:

https://www.tncourts.gov/sites/default/files/cottenv.wilson.sep_.opn_.pdf

NOTE: This is a must-read opinion for any lawyer wanting to delve into Tennessee's law of intervening and superseding cause, especially in a suicide case.  

Thursday, May 30, 2019

Another New Case on Summary Judgment; Summary Judgment for the Defense Reversed on Appeal

The Tennessee Court of Appeals recently released its opinion in Flagg v. Hudson Construction Co., No. E2017-01810-COA-R3-CV (Tenn. Ct. App. May 28, 2019).  The syllabus from the slip opinion reads as follows:
A motorcyclist sustained severe injuries in an accident on a recently paved portion of a state maintained highway. Alleging that his accident was caused by loose gravel on the highway from the recent paving project, the motorcyclist filed separate actions against the state contractor who resurfaced the state highway and the State of Tennessee. The two actions were consolidated in the circuit court for discovery and trial. Both defendants moved for summary judgment arguing that the plaintiff could not prove that the gravel came from the paving project or that the defendants had notice of the gravel before the accident. The state contractor also argued that it was discharged from liability under the State Construction Projects Liability Act. See Tenn. Code Ann. § 12-4-503 (2011). The trial court initially denied the motions. But after the defendants filed motions to alter or amend based on new evidence, the court reversed its decision and granted the defendants summary judgment on all claims. The plaintiff appealed. Upon review, we conclude that the trial court erred in excluding lay witness opinion testimony and in ruling that expert proof was necessary to determine the source of the gravel. Taking the strongest legitimate view of the evidence in favor of the nonmoving party, we conclude that the plaintiff demonstrated genuine issues of material fact precluding summary judgment. So we reverse.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/charles_m._flagg_jr._v._hudson_construction_company_et_al..pdf

NOTE: This opinion does an excellent job of describing when expert testimony is necessary and the summary judgment standard.  See my note from my prior post as to the applicable standard of review.

New Case on Summary Judgment; Grant of Summary Judgment for the Defense Reversed

The Tennessee Court of Appeals released its opinion the day before yesterday in Emert v. Millennium Taxi Service, LLC, No. E2018-01450-COA-R3-CV (Tenn. Ct. App. May 29, 2019).  The syllabus from the slip opinion reads as follows:
The trial court granted summary judgment to various of the defendants in a personal injury action. The Plaintiff appeals, contending that material facts are in dispute, precluding summary judgment. Finding that disputes of material fact exist, we reverse the judgment and remand the case for further proceedings.
The link the majority opinion is here:


Judge Susano's dissenting opinion is here:


NOTE: This opinion is a good refresher on summary judgment procedure in Tennessee.  However, Tenn. Code Ann. sec.20-16-101, which purports to adopt a summary-judgment standard similar to the one in federal courts, may provide the applicable standard of review instead of Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235 (Tenn. 2015), because this case was filed after July 1, 2011.  Rye, 477 S.W.3d at 261 n.7 (pointing out that Tenn. Code Ann. sec. 20-16-101 did not apply therein because the Ryes filed suit before the statute's July 1, 2011 effective date).  However, that may be a distinction without a difference as the standard in 20-16-101 and Rye are consistent.  Rye, 477 S.W.3d at 274 (Bivins, J., concurring).  

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.