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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.  

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