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Wednesday, July 01, 2020

New Wrongful Death Case: Application of the Statutory Cap on Noneconomic Damages by the Trial Court Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Davis v. 3M Co., No. M2018-02029-COA-R3-CV (Tenn. Ct. App. June 30, 2020).  The syllabus from the slip opinion reads:
In this wrongful death action, the plaintiff, the decedent’s spouse, asserted claims against multiple defendants. The plaintiff settled with all but one of the defendants prior to trial, and the settling defendants were dismissed from the case. At trial, the sole remaining defendant asserted the comparative fault of the decedent and the settling defendants. The jury assigned percentages of fault to the decedent, the defendant, and the settling defendants but returned a verdict in favor of the plaintiff. The jury found noneconomic damages that, when reduced by the percentage of the decedent’s fault, exceeded the statutory cap. So the trial court entered a judgment against the defendant based on its percentage fault as applied to the statutory cap. On appeal, the plaintiff argues that the statutory cap was incorrectly applied. We affirm. 
Here is a link to the opinion:


NOTE: Respectfully, I think this opinion is per incuriam for at least one very salient reason: the cap should have been 1.5 million and not $750,000.00 because there were two party-plaintiffs.  See Yebuah v. Ctr. for Urological Treatment, PLC, No. 2018-M2018-01652-COA-R3-CV, 2020 Tenn. App. LEXIS 250, at *2–3 (Tenn. Ct. App. May 28, 2020)(no Tenn. R. App. P. 11 application filed as of July 1, 2020) (affirming trial court's application of the statutory cap on noneconomic damages to each plaintiff); OD'neal Baptist Mem'l Hosp.-Tipton, 556 S.W.3d 759, 761 (Tenn. Ct. App. 2018) (noting that a child's surviving parents were two party-plaintiffs in a wrongful death action filed for the wrongful death of the parents' child).  

New Case on Attorney-Client Privilege: Wife's Claim of Privilege Disallowed Due to the Presence of a Third Party While She Spoke with Attorneys

The Tennessee Court of Appeals recently issued its opinion in Pagliara v. Pagliara, No. M2019-01397-COA-R9-CV (Tenn. Ct. App. June 29, 2020).  The syllabus from the slip opinion reads:
This interlocutory appeal arises from a pending divorce action. During discovery, the husband sought certain communications between the wife and her attorneys. During some of these meetings between the wife and her attorneys, a third party was present during discussions of whether the wife should report conduct by the husband to law enforcement. The wife could not identify which of the meetings the third party had been present and which she had not. Because the wife did not meet her burden of proof in demonstrating that attorney-client privilege applied to the communications, we affirm the judgment of the Trial Court.
Here is a link to the slip opinion:


NOTE: This opinion offers a good discussion of the attorney-client privilege in Tennessee.  It is worth reading if you practice law Tennessee.  

Monday, June 22, 2020

New Premises Liability Case: Jury Verdict for Plaintiff Overturned on Appeal Due to the Lack of Material Evidence to Support Liability of One of the Defendants

The Tennessee Court of Appeals released its opinion today in Day v. Beaver Hollow, L.P., No. E2019-01266-COA-R3-CV (Tenn. Ct. App. June 22, 2020).  The syllabus from the slip opinion reads:
This appeal concerns a jury verdict in a slip and fall case. Geneva Jessica Day (“Plaintiff”), a resident of Beaver Hollow Apartments (“the Apartments”), sued Beaver Hollow L.P. (“BHLP”), which owned the Apartments, as well as Olympia Management, Inc. (“Olympia”) (“Defendants,” collectively), the entity BHLP contracted with to manage the Apartments, in the Circuit Court for Washington County (“the Trial Court”). Plaintiff was injured when she slipped on ice and snow in the Apartments’ parking lot. The jury allocated 49% of the fault to Plaintiff, 50% to Olympia, and 1% to BHLP. Defendants appeal. Defendants argue, among other things, that no material evidence supports the jury’s allocation of fault to BHLP. After a careful review of the record, we find no material evidence to support the jury’s verdict regarding BHLP, which exercised no actual control of the premises whatsoever. The Trial Court erred in denying Defendants’ motion for a directed verdict with respect to BHLP. As we may not reallocate fault, we vacate the judgment of the Trial Court, and remand for a new trial.
Here is a link to the slip opinion: 


NOTE: This is a rare case where a jury verdict is overturned due to a lack of material evidence, which is very rare.  A must read for any lawyer who tries cases in Tennessee state courts.  


Sunday, June 14, 2020

New Tennessee Health Care Liability Action Opinion: SCOTN Holds Common Knowledge Exception Applies in Case Involving a Massage Therapist

The Tennessee Supreme Court released its opinion Friday in Jackson v. Burrell, No. W2018-00057-SC-R11-CV (Tenn. June 12, 2020).  The syllabus form the slip opinion reads:
The question presented in this health care liability case is whether the plaintiff’s claim against a salon for negligent training, supervision, and retention of a massage therapist should be dismissed because the plaintiff did not file a certificate of good faith with her complaint under section 29-26-122 of the Tennessee Health Care Liability Act . . . . Our answer depends on whether the common knowledge exception applies—that is, whether laypersons using their common knowledge and without expert testimony could decide whether the salon was negligent. If the common knowledge exception does not come into play and expert testimony is necessary, then the plaintiff needed to file a certificate of good faith with her complaint certifying that her negligence claim was supported by a competent expert witness and that there was a good faith basis for the claim. Here, the plaintiff alleged that a massage therapist working for the salon sexually assaulted her during a massage. In support of her claim of negligent training, supervision, and retention, the plaintiff presented evidence that before her assault, the salon had received complaints from two customers that the massage therapist had acted inappropriately and made them feel uncomfortable. The trial court granted summary judgment to the salon because the plaintiff had not filed a certificate of good faith. The Court of Appeals affirmed, ruling that the plaintiff had waived the common knowledge exception and that, in any event, expert testimony was necessary. We reverse and hold that 1) the plaintiff did not waive the common knowledge exception; and 2) the plaintiff’s claim against the salon for negligent training, supervision, and retention of the massage therapist was within the common knowledge of laypersons and did not require expert testimony about the standard of care in the massage industry. Thus, the plaintiff did not have to present expert proof to establish her negligence claim against the salon. It follows then that the plaintiff had no reason to file a certificate of good faith under section 29-26- 122, and her claim is not subject to dismissal for noncompliance with this section. The trial court’s award of summary judgment is vacated.
Here is a link to that opinion:


NOTE: This opinion reaches a fair result under the law (which is similar in a number of other states as well) regarding the common knowledge exception to the general requirement of expert testimony to prove both negligence and causation in a health care liability action under Tennessee law (formerly known as a medical malpractice case).  This is a must-read case for any lawyer who handles health care liability actions controlled by Tennessee law.  

Two important takeaways from reading this opinion: first, presuit notice letters must still be served in a health care liability action where the common knowledge exception applies, see Jackson, slip op. at 9; and, second, no certificate of good faith is required to be filed with the complaint under Tenn. Code Ann. sec. 29-16-122 when this exception is applicable, id. at 9–11.  

For what it is worth, the "classic" example of a health care liability action where the common knowledge exception applies is when a sponge is left in a patient after surgery.  I had one of those "classic" cases a few years back.  Tony Duncan,  Medical Malpractice: Grant of Summary Judgment for the Defense Reversed Due to the Common Knowledge Exception, Res Ipsa Loquitur, Etc., TONY DUNCAN L. BLOG (Aug. 17, 2010, 12:29 PM), http://theduncanlawfirm.blogspot.com/2010/08/medical-malpractice-grant-of-summary.html.


Saturday, May 30, 2020

New Health Care Liability Action Opinion: Trial Court's Dismissal of Case Upheld on Appeal for Failure to Comply with Presuit Notice Procedure

The Tennessee Court of Appeals recently released its opinion in Carrasco v. North Surgery Center, L.P., No. W2019-00558-COA-R3-CV (Tenn. Ct. App. May 28, 2020).  The syllabus from the slip opinion reads:
This is a healthcare liability action resulting from injuries sustained by a guidewire left in the plaintiff’s neck following a procedure. The defendants moved to dismiss the action for failure to comply with notice requirements in Tennessee Code Annotated section 29- 26-121(a)(2)(E). The trial court dismissed the action without prejudice, and the plaintiff appealed. We affirm.
Here is a link to the slip opinion:


NOTE: Regarding the need for HIPAA authorizations, please see my July 3, 2018-post.  Tony Duncan, New Health Care Liability Action Opinion: Trial Court's Dismissal of Action as Time-barred Overturned on Appeal, TONY DUNCAN L. BLOG, Note (Jul. 3, 2018, 3:58 PM), http://theduncanlawfirm.blogspot.com/2018/07/new-health-care-liability-action.html.

Thursday, May 28, 2020

New Tennessee Health Care Liability Action Opinion: Damage Cap Held to Apply to Each Plaintiff, Etc.

The Tennessee Court of Appeals released its decision today in Yebuah v. Center for Urological Treatment, PLC, No. M2018-01652-COA-R3-CV (Tenn. Ct. App. May 28, 2020).  The syllabus from the slip opinion reads:
Following surgery to remove a cancerous kidney, part of a gelport device was left inside the patient. The patient and her husband brought this health care liability action against multiple defendants, including the surgeon who removed the kidney and the radiologist who initially failed to detect the foreign object. The defendants admitted fault, so the trial focused solely on causation and damages. The jury returned a verdict in favor of the plaintiffs and awarded $4 million in noneconomic damages to the patient for pain and suffering and loss of enjoyment of life and $500,000 in noneconomic damages to her husband for loss of consortium. The trial court initially applied the statutory cap on noneconomic damages to the total damages award and entered a judgment of $750,000 in favor of both plaintiffs. In response to the plaintiffs’ motion to alter or amend, the trial court issued a revised judgment of $750,000 in favor of the patient and $500,000 in favor of the husband. But the court refused to address the plaintiffs’ arguments premised on the constitutionality of the statutory cap, ruling that the issue had been waived. The court also denied the defendant’s motion for a new trial or for a remittitur. Upon review, we conclude that the trial court erred in refusing to consider the plaintiffs’ constitutional issue. But because we also conclude that the statutory cap on noneconomic damages is constitutional and was applied properly and that the defendant is not entitled to a new trial or a remittitur, we affirm. 
Here is a link to the slip opinion:


NOTE: This opinion must be read with McClay v. Airport Management Services, LLC, 596 S.W.3d 686 (Tenn. 2020), which is the subject of my February 26, 2020 blog post, and can be found at this link:

Wednesday, May 27, 2020

New Tennessee Health Care Liability Action Opinion: The Seller-shield Defense Found in the Tennessee Products Liability Act Inapplicable to Claims Made under the Tennessee Health Care Liability Act

The Tennessee Court of Appeals has issued its opinion in Heaton v. Mathes, No. E2019-00493-COA-R9-CV (Tenn. Ct. App. Apr. 3, 2020).  The slip opinion reads:
The plaintiffs filed a health care liability action against a pharmacy and other medical defendants, claiming, inter alia, that the defendants failed to provide proper patient counseling and failed to warn of the risks associated with a prescription drug. The pharmacy defendants subsequently filed a motion to dismiss, asserting that the gravamen of the complaint against them was a products liability action rather than a health care liability action. The defendants further asserted that the “seller shield” defense found within the Tennessee Products Liability Act provided them with immunity from liability. The trial court denied the defendants’ motion to dismiss, ruling that the complaint stated a health care liability action rather than a products liability action. The trial court subsequently granted the defendants’ motion for permission to seek interlocutory appeal regarding whether the seller shield defense contained within the Tennessee Products Liability Act could be asserted when the plaintiffs’ claim is made pursuant to the Tennessee Health Care Liability Act. Following our thorough consideration of the issue, we affirm the trial court’s judgment, determining that the seller shield defense found in the Tennessee Products Liability Act is inapplicable to claims made under the Tennessee Health Care Liability Act. 
Here is a link to the slip opinion:


NOTE: This case offers a good analysis of the interplay between health care liability actions and product liability actions under Tennessee law.  A must-read opinion if you handle either type of case.

New Tennessee Premises Liability Case: Summary Judgment for the Defense Reversed Because Genuine Issues of Material Fact Exist; Spoliation of Evidence Discussed; Sanctions for Frivolous Appeal Denied

The Tennessee Court of Appeals released its opinion in Wilson v. Weigel Stores, Inc., No. E2019-00605-COA-R3-CV (Tenn. Ct. App. May 19, 2020).  The syllabus from the slip opinion reads:
This is a premises liability action in which the plaintiff filed suit against the defendant convenience store for personal injuries resulting from her slip and fall near the gasoline pump. The trial court granted the defendant’s motion for summary judgment, holding that the plaintiff failed to establish that the defendant caused or created or should have discovered with reasonable diligence the condition that caused her fall. The plaintiff appeals. We reverse the trial court’s decision. We remand this case for proceedings consistent with this opinion. 
Here is a link to the slip opinion:


NOTE: The Court of Appeals did the right thing here; summary judgment should not have been granted under the facts of this case as they currently stand.  This case does a great job of describing the sjuumary judgment process in Tennessee.  It also offers a good discussion on spoliation of evidence.

Further, the appellee sought damages for a frivolous appeal.  Why, I do not know.  This was not a frivolous appeal by any stretch of the the imagination.  

Tuesday, May 19, 2020

Summary Judgment for Defendants in Auto Case Reversed on Appeal Because Testimony from Interested Witnesses Could Not Be Used to Rebut the Statutory Presumptions Concerning Vehicle Ownership and Vicarious Liability

The Tennessee Court of Appeals released its opinion today in Gray v. Baird, No. M2019-01056-COA-R3-CV (Tenn. Ct. App. May 19, 2020).  The syllabus from the opinion reads:
This is an appeal of the trial court’s decision to summarily dismiss a claim of vicarious liability against the owner of the vehicle that was involved in a fatal vehicular accident. The driver of the vehicle was the son and employee of the vehicle owner, and it is alleged that the driver was acting in the course and scope of his employment with the vehicle owner at the time of the collision. The owner of the vehicle filed for summary judgment, and the trial court found the affidavits and deposition testimony of the owner and his son refuted the prima facie evidence of vicarious liability created by Tenn. Code. Ann. §§ 50-10-311 and -312 that the son was acting in the course and scope of his employment at the time of the collision. The plaintiff appeals contending that summary judgment was not proper because the owner and his son were interested witnesses and their credibility was at issue. We agree. It is undisputed that the son’s employment necessitated his travel on the road where the collision occurred, and whether the son had deviated from the defendant’s business prior to the collision is a material fact that is in dispute. For this reason, we reverse the trial court’s grant of summary judgment and remand for further proceedings.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/gray.shawn_.opn_.docx_.pdf.

NOTE: This is a good opinion to read if you handle motor-vehicle-collision cases in Tennessee.  It is also a nice follow-up read to Godfrey v. Ruiz, 90 S.W.3d 692 (Tenn. 2002), which can be read at this link:




Friday, May 15, 2020

New Health Care Liability Action Opinion: Trial Court's Dismissal Upheld on Appeal Due to Invalid Authorization for the Presuit Release of Medical Records (Possible Erroneous Decision)

The Tennessee Court of Appeals released its opinion yesterday in Hancock v. BJR Enterprises, LLC, No. E2019-01158-COA-R3-CV (Tenn. Ct. App. May 14, 2020).  The syllabus from the slip opinion reads:
This is a healthcare liability action. In her medical authorizations, the plaintiff left blank lines as to who was authorized to receive the patient’s records from the medical providers and others receiving notice. The defendants claimed that the authorizations were not HIPAA-compliant, as required by Tennessee Code Annotated section 29-26- 121(a)(2)(E). The plaintiff responded that by construing the pre-suit notice packet materials as one cohesive document, all of the elements required by the statute are present and that the defendants had at their disposal all of the information necessary to obtain the patient’s medical records. The plaintiff further asserted that the failure of the defendants to attempt to obtain the records precludes any demonstration of prejudice to them. The trial court determined that the plaintiff’s statutory notice failed to substantially comply with the requirements of Tennessee Code Annotated section 29-26-121. The plaintiff appeals. We affirm. 
(Footnote omitted).

The majority opinion is at this link:


Here is Judge Swiney's concurring opinion:


NOTE: The gist of this opinion is that the defendants could not obtain the patient's relevant medical records due to a medical records authorization that was "defective" under HIPAA.  Hancock v. BJR Enterprises, LLC, No. E2019-01158-COA-R3-CV, slip op. at 4–12 (Tenn. Ct. App. May 14, 2020).

The opinion reads in pertinent part:
The specific purpose of subsection (a)(2)(E) is not to provide a defendant with notice of a potential claim; rather, . . . the subsection “serves to equip defendants with the actual means to evaluate the substantive merits of a plaintiff’s claim by enabling early access to a plaintiff’s medical records.”  This investigatory tool advances the overall goal of section 29-26-121(a), which is to allow litigants the ability to engage in pre-suit negotiation and settlement so as to reduce litigation costs and resolve meritorious claims at the outset. . . .
. . . .
[H]owever, “[b]ecause HIPAA itself prohibits medical providers from using or disclosing a plaintiff’s medical records without a fully compliant authorization form, it is a threshold requirement of the statute that the plaintiff’s medical authorization must be sufficient to enable defendants to obtain and review a plaintiff’s relevant medical records.” . . .
Id. at 5 (emphasis added) (internal citations omitted).

The last paragraph from the quoted passage appears to be in error since the defendants could have shared and obtained the relevant medical records as part of their "health care operations."  Tony Duncan, New Health Care Liability Action Opinion: Trial Court's Dismissal of Action as Time-barred Overturned on Appeal, TONY DUNCAN L. BLOG, Note (Jul. 3, 2018, 3:58 PM), http://theduncanlawfirm.blogspot.com/2018/07/new-health-care-liability-action.html.

I hope the Tennessee Supreme Court takes a look at this one and reverses it because that is what needs to be done as can be discerned from the note in my July 3, 2018 blog post.  





Monday, May 11, 2020

New Decision from the Tennessee Court of Appeals: Jury Verdict for Plaintiff Overturned Because Trial Court Erred in Prohibiting Psychologists from Testify on Behalf of the Defense and in Allowing Improper Evidence to Be Admitted

The Tennessee Court of Appeals issued its opinion today in Ellis v. Modi, No. M2019-01161-COA-R3-CV (Tenn. Ct. App. May 11, 2020).  The slip opinion reads:
Following a jury trial, the plaintiff was awarded a substantial verdict against the defendant for both compensatory and punitive damages. After the defendant’s motion for a new trial was denied, he appealed to this Court. The defendant now argues, among other things, that the trial court erroneously excluded his expert psychologist from testifying at trial and, further, that the trial court erroneously allowed certain prejudicial evidence against him to be admitted. For the reasons stated herein, we vacate the jury’s verdict and the trial court’s judgment entered in this matter and remand the case for a new trial.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/ellis.modi_.opn_.pdf

NOTE: This opinion offers a good discussion of Rules 403 and 404(b) of the Tennessee Rules of Evidence.  It is a must read opinion for any lawyer who regularly practices in Tennessee state courts.

Saturday, May 02, 2020

New Health Care Liability Action Opinion: Trial Court's Dismissal Reversed on Appeal; HIPAA Authorization Was Sufficient to Allow Defendants to Obtain Patient's Medical Records Presuit

The Tennessee Court of Appeals just issued its decision in Combs v. Milligan, No. E2019-00485-COA-R3-CV (Tenn. Ct. App. May 1, 2020).  The syllabus from the slip opinion reads:
This appeal concerns healthcare liability. A husband and wife filed an action against six medical care providers alleging negligence in the medical treatment of the wife. The defendants moved to dismiss the suit on the basis of noncompliance with Tennessee Code Annotated section 29-26-121(a)(2)(E), which requires that pre-suit notice include a HIPAA[] compliant medical authorization allowing a healthcare provider receiving a notice to obtain complete medical records from every other provider that is sent a notice. The plaintiffs’ authorization allowed each provider to disclose complete medical records to each named provider but did not state specifically that each provider could obtain records from each other. The trial court held that the authorization failed to substantially comply with the statute’s requirements. The plaintiffs appealed. We hold that Plaintiffs’ method of permitting Defendants access to Mrs. Combs’s medical records substantially complied with Tennessee Code Annotated section 29-26-121(a)(2)E). We reverse the judgment of the trial court.
(Footnote omitted.)

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/combs_v._milligan_e2019-00485.pdf.

NOTE: This opinion offers a good discussion of procedure and how that affects appellate jurisdiction when it comes to interlocutory and final orders.  And, importantly, it addresses the sufficiency of HIPAA authorizations in health care liability actions (f/k/a medical malpractice cases). 

This decision must be read in conjunction with Martin v. Rolling Hills Hosp., LLC, No. M2016-02214-SC-R11-CV (Tenn. Apr. 29, 2020), which can be found at my blog post here: 

http://theduncanlawfirm.blogspot.com/2020/04/new-health-care-liability-action_29.html.

PAY ATTENTION TO THE NOTE IN THE APR. 29, 2020 BLOG POST.




New SCOTN Case: Court Holds That Tennessee Consumer Protection Act Applies to Health Care Providers Acting in Business Capacities

Yesterday, the Tennessee Supreme Court released its opinion in Franks v. Sykes, No. W2018-00654-SC-R11-CV (Tenn. May 1, 2020).  The syllabus from the opinion reads:
A person who is injured because of an unfair or deceptive act or practice that affects the conduct of any trade or commerce has a cause of action under the Tennessee Consumer Protection Act of 1977 (“the Act”), Tennessee Code Annotated sections 47- 18-101 to -132 (2013 & Supp. 2019). We granted review to determine whether the Act applies to the business aspects of a health care provider’s practice. The plaintiffs were injured in car accidents and received hospital medical services. The hospitals did not bill the plaintiffs’ health insurance companies but filed hospital liens against the plaintiffs’ claims for damages arising from the accidents. The hospital liens were for the full amount of the hospital bills with no reduction for the plaintiffs’ health insurance benefits. The plaintiffs sued the hospitals, asserting the filing of undiscounted hospital liens was an unlawful practice under the Act. The trial court dismissed the case, ruling that the plaintiffs had failed to state a cause of action. The Court of Appeals affirmed, holding that the Act did not apply to a claim in which the underlying transactions involved medical treatment. We hold that the Act applies to health care providers when they are acting in their business capacities. The plaintiffs, who were consumers of medical services, may state a claim under the Act against the hospitals for conduct arising out of the hospitals’ business practices. We reverse and remand this case to the trial court for further proceedings. 
Here is a link to the unanimous slip opinion:


NOTE: This is a must-read opinion for any attorney who handles personal injury cases affected by Tennessee substantive law.  Two quick takeaways: first, the Court did not decided "whether the section of the [Tennessee Consumer Protection] Act [("TCPA")] relied on by Franks and Edwards encompasses conduct under the Hospital Lien Act and whether the liens filed by the Hospitals were false or deceptive under the Act," Franks, slip op. at 9, that remains to be decided by the trial court upon remand; and, second, look for the Tennessee Hospital Association to seek to get the TCPA amended so that it does not apply to hospitals in this context (which should not happen because that would be unfair to the citizens of Tennessee).

Further, to use a Southern idiom, this is a classic example of the old saying that pigs get fat and hogs get slaughtered.  The hospitals got greedy here and turned into hogs.  

Lastly, this post is related to a prior blog post from February 18, 2019, to wit: http://theduncanlawfirm.blogspot.com/2019/02/new-tennessee-case-on-hospital-liens.html.

Wednesday, April 29, 2020

New Health Care Liability Action Opinion: Tennessee Supreme Court Reinstates Trial Court's Dismissal of Action Due to the Claim Being Time-barred for Failing to Provide Defendants with HIPAA-compliant Authorization for the Release of Medical Records in Prior Suit That Was Voluntarily Dismissed as of Right

The Tennessee Supreme Court issued its opinion today in Martin v. Rolling Hills Hosp., LLC, No. M2016-02214-SC-R11-CV (Tenn. Apr. 29, 2020).  The syllabus from the slip opinion reads:
We granted permission to appeal to clarify the role of prejudice in a court’s determination of whether a plaintiff in a health care liability action substantially complied with the statutory pre-suit notice requirements of Tennessee Code Annotated section 29-26-121 (Supp. 2019) (“Section 121”) and to clarify the burdens each party bears when seeking to establish, or to challenge, compliance with Section 121. We hold that prejudice is relevant to the determination of whether a plaintiff substantially complied with Section 121, but it is not a separate and independent analytical element. We also hold that a plaintiff bears the initial burden of either attaching documents to her health care liability complaint demonstrating compliance with Section 121 or of alleging facts in the complaint demonstrating extraordinary cause sufficient to excuse any noncompliance with Section 121. A defendant seeking to challenge a plaintiff’s compliance with Section 121 must file a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state a claim. See Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012). A defendant’s Rule 12.02(6) motion must include allegations that identify the plaintiff’s noncompliance and explain “the extent and significance of the plaintiff’s errors and omissions and whether the defendant was prejudiced by the plaintiff’s noncompliance.” Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 556 (Tenn. 2013). One means of satisfying this burden is to allege that a plaintiff’s Section 121(a)(2)(E) medical authorization lacks one or more of the six core elements federal law requires for compliance with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). See Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified as amended in scattered sections of 18, 26, 29, and 42 of the United States Code). Once a defendant files a Rule 12.02 motion that satisfies this prima facie showing, the burden then shifts to the plaintiff either to establish substantial compliance with Section 121—which includes the burden of demonstrating that the noncompliance did not prejudice the defense—or to demonstrate extraordinary cause that excuses any noncompliance. In this case, the defendants met their burden by showing that the plaintiffs’ medical authorizations lacked three of the six core elements federal law requires for HIPAA compliance. This showing shifted the burden to the plaintiffs, and they failed to establish either substantial  compliance or extraordinary cause to excuse their noncompliance. As a result of this noncompliance with Section 121(a)(2)(E), the plaintiffs were not entitled to the 120-day extension of the statute of limitations. Therefore, their first lawsuit, filed after the one-year statute of limitations expired, was not “commenced within the time limited by a rule or statute of limitation,” Tenn. Code Ann. § 28-1-105(a) (2017), so the plaintiffs cannot rely on the one-year savings statute to establish the timeliness of this lawsuit. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the trial court’s judgment dismissing the plaintiffs’ health care liability action as time-barred.
Here is a link to the majority opinion:


Here is a link to Justice Kirby's separate opinion concurring in part and dissenting in part:


NOTE: This post is related to a prior blog post from July 3, 2018 about this case.  To wit: http://theduncanlawfirm.blogspot.com/2018/07/new-health-care-liability-action.html.  Pay close  attention to the note in that post.  While I am not aware of the issue being litigated in any court construing Tennessee law, I contend that a defendant can never be "prejudiced" by not getting a HIPAA-complaint authorization to release medical records because providers are allowed to exchanged between and among themselves and others medical records as part of their "health care operations."  Ergo, if they can access the records, no prejudice; no prejudice means no dismissal.  

Monday, April 20, 2020

New Health Care Liability Action Opinion: Trial Court's Dismissal of Plaintiffs' Case for Failure to Provide HIPAA-complaint Authorization for the Release of Medical Records Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Owens v. Stephens, No. E2018-01564-COA-R3-CV (Tenn. Ct. App. Apr. 16, 2020).  The syllabus from the slip opinion reads:
This is a healthcare liability action resulting from the death of a child. The defendants moved to dismiss the action for failure to comply with the notice requirements set out in Tennessee Code Annotated section 29-26-121(a)(2)(E). The trial court agreed with the defendants and dismissed the action without prejudice. The plaintiffs appeal the dismissal to this court. We affirm.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/owens_v._stephens_e2018-01564.pdf

NOTE: I think this opinion is incorrectly decided.  The defendants should have been able to share the relevant medical records as part of their "health care operations."  Ergo, no prejudice.  Please see the note in this post for a more detailed explanation of my point on this topic: http://theduncanlawfirm.blogspot.com/search?q=operations+.


New Health Care Liability Action Opinion: Tennessee Supreme Court Holds That Expert Witness Is Not Qualified to Testify under Tennessee Code Annotated section 29-26-115(b) Because Witness Did Not Meet Licensure Requirements

The Tennessee Supreme Court released its opinion today in Young v. Frist Cardiology, PLLC, No. M2019-00316-SC-R11-CV (Tenn. Apr. 20, 2020).  The syllabus from the slip opinion reads:
We granted review to determine whether a doctor is qualified to testify in a health care liability case as an expert witness under Tennessee Code Annotated section 29-26- 115(b) when the doctor was not licensed to practice medicine in Tennessee or a contiguous state within one year of the alleged injury or wrongful conduct, but was practicing under a licensure exemption. Section 29-26-115(b) provides that a doctor is competent to testify as an expert witness only if the doctor is licensed to practice medicine in Tennessee or a contiguous state and the doctor was practicing medicine in Tennessee or a contiguous state during the year before the date of the alleged injury or wrongful conduct. We hold that under Tennessee Code Annotated section 29-26-115(b), a doctor, who was permitted to practice medicine in Tennessee under a statutory licensure exemption but was not licensed to practice medicine in Tennessee or a contiguous state during the year before the date of the alleged injury or wrongful conduct, does not meet the requirements of section 29-26-115(b) to testify as an expert witness in a health care liability action. We reverse and remand this case to the trial court for further proceedings.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/young.vickie.opn_.pdf

NOTE: This opinion highlights why it is so important to make certain that an expert medical witness meets the qualifications under Tennessee's Health Care Liability Act.  This is a correct decision in my opinion. 

Also, the Court noted that the requirements of section 29-26-115(b) can be waived upon remand.  It is very likely that the trial court will grant such a waiver.


Wednesday, April 01, 2020

Summary Judgment for Defendants Upheld on Appeal in Tractor-trailer Case Because Plaintiffs Could Not Show a Defendant Owned Tractor

The Tennessee Court of Appeals released its opinion today in Affainie v. Heartland Express Maintenance Services, Inc., No. M2019-01277-COA-R3-CV (Tenn. Ct. App. Apr. 1, 2020).  The syllabus from the slip opinion reads:
This appeal arises from a hit–and–run involving a tractor-trailer and a passenger vehicle. The plaintiffs—the car driver and passenger—alleged in their complaint that the defendant trucking company owned the tractor-trailer that collided with their vehicle on the interstate. The plaintiffs also served a copy of the complaint on the car owner’s uninsured motorist carrier as an unnamed defendant. Following discovery, the trucking company moved for and was granted summary judgment on the ground that the plaintiffs were unable to establish liability because they were unable to prove that the trucking company owned the tractor-trailer. The court also dismissed the claims against the uninsured motorist carrier because the plaintiffs failed to establish legal liability against the alleged defendant tortfeasor. Plaintiffs appeal. We affirm. 
Here is a link to the slip opinion:


NOTE: There is a drawing from one of the plaintiff's depositions on page 7 of the slip opinion.  It hurt the plaintiffs and helped the defendants in this case.  It was drawn by the named-defendant's counsel.  For what it is worth, and while I have not found a lot of authority on this issue, generally speaking, deponents cannot be made to draw something in a deposition.  See, e.g., Udkoff v. Hiett, 676 So.2d 522, 523 (Fla. Dist. Ct. App. 1996) (per curiam) (“Although a witness may choose to draw something to help explain his or her testimony, a trial court is without any authority to compel the deponent to create a drawing.”) (emphasis added).  And while defense counsel can do that, an objection should be made based upon foundation, authenticity, scale, requiring deponent to speculate, etc.


Tuesday, March 31, 2020

Trial Court's Dismissal Upheld on Appeal: Case Where Tortfeasor Died After Crash Was Not Timely Commenced

The Tennessee Court of Appeals released its decision in Algee v. Craig, No. W2019-00587-COA-R3-CV (Tenn. Ct. App. Mar. 31, 2020) today.  The syllabus from the slip opinion reads:
This personal injury action concerns an automobile [collision]. The [tortfeasor] died shortly after the [collision]. The estate was opened, administered, and closed before the plaintiff filed suit against the former personal representative within the applicable statute of limitations. The personal representative moved to dismiss for failure to state a claim. The plaintiff moved to enlarge the time for filing service of process based upon a claim of excusable neglect. The trial court dismissed the action as untimely. We affirm. 
Here is a link to the opinion: 

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

NOTE: This case is another example of just one more thing that keeps plaintiff lawyers up at night.  It seems like an unfair result.  However, the plaintiff could have had an administrator ad litem appointed before the time to do so had expired.  Algee, No. W2019-00587-COA-R3-CV, slip op. at 2; accord Estate of Russell v. Snow, 829 S.W.2d 136, 138 (Tenn. 1992); Whaley v. Estate of CrowCA No. 03A01-9105-CH-169, 1992 WL 60878, 1992 Tenn. App. LEXIS 296, at *4 (Tenn. Ct. App. Mar. 30, 1992).  

And that appointment could have been sought even after the time to file the civil action had expired since the case had been (re)filed within the time allowed by law.  See Estate of Russell829 S.W.2d 136 at 137.


Tuesday, March 24, 2020

New Health Care Liability Action Opinion: Trial Court's Dismissal Due to Plaintiff's Failure to Treat the Case as a Health Care Liability Action Upheld on Appeal as Modified to Be Without Prejudice

The Tennessee Court of Appeals released its opinion today in Johnson v. Knoxville HMA Cardiology PPM, LLC, No. E2019-00818-COA-R3-CV (Tenn. Ct. App. Mar. 24, 2019).  The syllabus reads:
In this action involving injuries allegedly caused by the defendant medical providers’ failure to provide a safe examination table, the trial court determined that the plaintiff’s negligence claim was actually a health care liability claim and granted the defendants’ motion to dismiss the complaint with prejudice for failure to provide written pre-suit notice to the defendants within the one-year statute of limitations pursuant to Tennessee Code Annotated § 29-26-121(a) (Supp. 2019) of the Tennessee Health Care Liability Act (“THCLA”). The plaintiff has appealed, conceding that he failed to provide written pre- suit notice but asserting that his claim should not have been dismissed because it was not a health care liability claim. Having determined that the trial court properly found that the plaintiff’s claim was a health care liability action, we affirm the dismissal of this matter. However, having also determined that the proper sanction for the plaintiff’s failure to provide pre-suit notice under the THCLA was dismissal without prejudice, we modify the trial court’s dismissal of the claim to be without prejudice.
Here is a link to the slip opinion:


NOTE: This case serves as an example of how difficult health care liability actions (formerly known as medical malpractice cases) have become.  Things have gotten so bad lately that people cannot get the justice they deserve, which is bad for our society.  Our legislators care more about business than people, to a fault. 

Wednesday, March 11, 2020

New Health Care Liability Action Case Opinion: Summary Judgment for Some Defendants Upheld on Appeal Based upon the Three-year Statute of Repose; Fraudulent Concealment Exception Does Not Apply

The Tennessee Court of Appeals just issued its opinion in Tucker v. Iveson, No. M2018-01501-COA-R3-CV (Tenn. Ct. App. Mar. 11, 2020).  The syllabus from the slip opinion reads:
A plaintiff who developed tendonitis after taking medication prescribed by a nurse practitioner filed a malpractice action against the nurse practitioner and the pharmacy that filled the prescription.  Two years later, the plaintiff amended her complaint to add the nurse practitioner’s employer and supervising physician as defendants.  The new defendants moved to dismiss, arguing that the claims against them were barred by the applicable statutes of limitations and repose and that the plaintiff failed to provide them with pre-suit noticeof a potential medical malpractice claim.  The plaintiff responded that fraudulent concealment tolled the statutes and constituted extraordinary cause to waive pre-suit notice.  The trial court agreed and denied the motions.  The defendants then moved for summary judgment on other grounds, which the court granted.  It is undisputed that the plaintiff’s claims against these defendants were filed beyond the time allowed by the statute of repose for medical malpractice actions.  Because we conclude that the plaintiff cannot establish an essential element of the fraudulent concealment exception, the defendants are entitled to judgment as a matter of law based on the statute of repose. So we affirm the dismissal of the claims against these defendants on summary judgment but on different grounds.
Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/tucker.amy_.opn_.pdf


Monday, March 02, 2020

New Tennessee Health Care Liability Action Opinion: Statute Concerning Mandatory Ex Parte Defense Interviews of a Plaintiff's Nonparty Health Care Providers Held to Be Unconstitutional, But, Allowed to Stand As Elided as Constitutional

The Tennessee Supreme Court recently released its opinion in Willleford v. Klepper, No. M2016-01491-SC-R11-CV (Tenn. Feb. 28, 2020).  The syllabus from the slip opinion reads:
We granted review in this case to determine whether Tennessee Code Annotated section 29-26-121(f) violates the separation of powers clause in the Tennessee Constitution. The statutory provision allows defense counsel to conduct ex parte interviews with patients’ non-party treating healthcare providers in the course of discovery in a healthcare liability lawsuit. We hold that section 29-26-121(f) is unconstitutional as enacted, to the limited extent that it divests trial courts of their inherent discretion over discovery. We also conclude that the statute can be elided to make it permissive and not mandatory upon trial courts. As such, we hold that the elided statute is constitutional. We vacate the trial court’s qualified protective order entered in this case and remand the case to the trial court for reconsideration based on the guidance set forth in this opinion.
Here is a link to the slip opinion:


Justice Kirby dissented and would have held Tenn. Code Ann. sec. 29-26-121(f) unconstitutional in toto.  Here is a link to her opinion that concurs and dissents in part:


NOTE: This opinion has been awaited by the Tennessee Bar with much anticipation.  It offers much-needed light as to the statutorily allowed ex parte interviews.  

Further, the majority opinion cites favorably Baker v. Wellstar Health System, Inc.,703 S.E.2d 601 (Ga. 2010) for direction to the Tennessee Bench and Bar on this issue.  As such, here is a link to that opinion:


Wednesday, February 26, 2020

Tennessee Supreme Court Upholds Cap on Noneconomic Damages

The Tennessee Supreme Court released its opinion in McClay v. Airport Management Services, LLC, No. No. M2019-00511-SC-R23-CV (Tenn. Feb. 26. 2020).  The syllabus from the majority slip opinion reads:
We accepted certification of the following questions of law from the United States District Court for the Middle District of Tennessee regarding the constitutionality of Tennessee’s statutory cap on noneconomic damages, codified at Tennessee Code Annotated section 29-39-102: “(1) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate a plaintiff’s right to a trial by jury, as guaranteed in Article I, section 6, of the Tennessee Constitution?; (2) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate Tennessee’s constitutional doctrine of separation of powers between the legislative branch and the judicial branch?; (3) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate the Tennessee Constitution by discriminating disproportionately against women?” Upon review, we answer each of the District Court’s questions in the negative.
Here is a link to the majority opinion:

http://www.tncourts.gov/sites/default/files/mcclay.jodi_.opn_.pdf.

Here is Justice Kirby's concurring opinion:

http://www.tncourts.gov/sites/default/files/mcclay.jodi_.k.sep_.opn_.pdf.

Justices Clark and Lee dissented in separate opinions, which are here:

http://www.tncourts.gov/sites/default/files/mcclay.jodi_.c.sep_.opn_.pdf; and

http://www.tncourts.gov/sites/default/files/mcclay.jodi_.l.sep_.opn_.pdf.

NOTE: This is a very disappointing decision.  I agree with Justices Clark and Lee here.  


Monday, February 24, 2020

New Tennessee Underinsured Motorist Case

The Tennessee Court of Appeals released its opinion today in White v. State Farm Mutual Automobile Insurance Co., No. W2019-00918-COA-R3-CV (Tenn. Ct. App. Feb. 24, 2020).  The syllabus from the slip opinion reads:
Appellants were injured in a car accident and, with the permission of their insurance company, Appellee State Farm Mutual Automobile Insurance Company (“State Farm”), settled with the at-fault driver for his policy limits under his coverage with United Services Automobile Association (“USAA”). To fully recover for their injuries, Appellants notified State Farm of their willingness to settle or submit their underinsured motorist (“UIM”) claim to binding arbitration. After evaluating Appellants’ claim, State Farm informed Appellants that it would not offer a settlement for the UIM claim because it believed they had been fully compensated by the payment from USAA. Appellants, in response, demanded that State Farm elect to either participate in binding arbitration or decline arbitration and preserve its subrogation rights under Tennessee Code Annotated section 56-7-1206 (“the Statute”). Believing that its obligation under the Statute was never triggered, State Farm refused to make an election. Appellants filed an action for declaratory judgment asking the trial court to declare that State Farm failed to comply with the Statute. On competing motions for summary judgment, the trial court granted State Farm’s motion and denied Appellants’ motion. Finding no error, we affirm.
Here is a link to the slip opinion:


NOTE: This opinion points out a few things.  One, it demonstrates the importance of following the plain meaning of a statute.  Two, it offers a good discussion of statutory construction.  And, three, it discusses the Oxford comma, which is a hot topic in legal writing, as is evinced on Twitter a lot.  

Friday, February 14, 2020

Appellate Review of a Jury's Verdict under Tennessee Law

The Tennessee Court of Appeals recently released its opinion in Golden v. Powers, No. E2019-00712-COA-R3-CV (Tenn. Ct. App. Feb. 12, 2020).  The syllabus from the opinion reads:
This appeal concerns a jury verdict in a personal injury case. Joanna L. Golden [] was jogging in the dark early one morning when she was struck accidentally by a car driven by Cynthia D. Powers []. Golden and her husband, Douglas K. Rice . . . sued Powers in the Circuit Court for Hawkins County []  asserting various claims including negligence. The matter was tried before a jury. The jury found Golden to be 80% and Powers 20% at fault. Plaintiffs filed a motion for a new trial, which the Trial Court denied. Plaintiffs appeal to this Court arguing that the Trial Court failed to act as thirteenth juror and that the jury’s allocation of fault was unsupported by material evidence. Plaintiffs argue also that the jury was prejudiced against them for their being well-off out-of-towners. We find, first, that the Trial Court independently weighed the evidence and acted properly as thirteenth juror. We find further that the jury’s allocation of fault is supported by material evidence. Finally, Plaintiffs’ claim of jury prejudice is speculative, at best. We affirm the judgment of the Trial Court. 
Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/joanna_l_golden_et_al._v_cynthia_d._powers.pdf.

NOTE: This appeal is a good reminder of what goes into the appellate review of a jury's verdict under Tennessee law.  It is worth reading in my humble opinion.


Tuesday, January 28, 2020

New Tennessee Health Care Liability Action Opinon: Tennessee Supreme Court Reverses the Tennessee Court of Appeals and Reinsates Trial Court's Dismissal of Plaintiffs' Case on Summary Judgment Based upon Lack of Expert Testimony on Causation; Clairifies Standard of Review as to Abuse-of-discretion Standard

The Tennessee Supreme Court just issued its opinion Harmon v. Hickman Community Healthcare Services, Inc., No. M2016-02374-SC-R11-CV (Tenn. Jan. 28, 2020).  The syllabus from the slip opinion reads:
In this healthcare liability action, the trial court held that the plaintiffs’ sole expert witness was not competent to testify on causation and for that reason granted summary judgment to the defendant. The plaintiffs then filed a motion to alter or amend, proffering causation testimony from a new expert witness. The trial court denied the motion to alter or amend, and the plaintiffs appealed. The Court of Appeals, in a split decision, reversed the trial court’s denial of the motion to alter or amend. This Court granted permission to appeal. A trial court’s decision on a motion to alter or amend is reviewed under an abuse of discretion standard; this standard of review does not permit the appellate court to substitute its judgment for that of the trial court. We hold that the trial court’s decision in this case was within the range of acceptable alternative dispositions of the motion to alter or amend and was not an abuse of the trial court’s discretion. For this reason, we reverse the Court of Appeals and affirm the decision of the trial court.
Here is a link to the slip opinion:

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

NOTE: This post is related to my July 16, 2018 post:

Thursday, January 16, 2020

New Health Care Liability Action: Dismissal of Plaintiffs' Case Upheld on Appeal: Nurse Cannot Provide Causation Testimony; Issue Waived on Appeal Because It Was Not Properly Raised

The Tennessee Court of Appeals just released its opinion in Lovelace v. Baptist Memorial Hosp. - Memphis, No. W2019-00453-COA-R3-CV (Tenn. Ct. App. Jan. 16, 2020).  The syllabus from the slip opinion reads:
Plaintiff filed a health care liability action against Defendant hospital following the death of Plaintiff’s husband in 2014. The trial court granted summary judgment to the hospital on two alternative, independent grounds: that the Plaintiff’s expert witness, a registered nurse, was not competent to testify as an expert witness, and that the expert witness failed to provide causation testimony as required to prove liability. Plaintiff appealed the trial court’s ruling about the competency of her expert witness, but she failed to raise the failure to provide causation testimony as an issue on appeal. As no argument was made to challenge a distinct ground for summary judgment, we consider the argument waived and affirm the trial court’s order granting summary judgment. 
Here is the link to the opinion:


NOTE: Two things stand out from reading this opinion: first, a nurse cannot render causation testimony in a health care liability action in Tennessee.  Richberger v. West Clinic, P.C., 152 S.W.3d 505, 506 (Tenn. Ct. App. 2004), perm app. denied (Oct. 4, 2004). Second, appellate work is difficult, and can be somewhat arcane unless one does it regularly.  The abbreviation of the Tennessee Rules of Appellate Procedure is "T.R.A.P." for a reason.  However, while this case points out how waiver can occur on appeal, the lack of competent expert testimony is what killed the case.  And that is unfortunate.