New Health Care Liability Action Opinion: Jury Verdict for the Defense Upheld on Appeal

The Court of Appeals of Tennessee recently released its second opinion in Davis v. Ellis, No. W2024-01467-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2025). The syllabus from the slip opinion reads:

This is the second appeal in this healthcare liability matter. The plaintiff first appealed from the trial court’s grant of summary judgment to the defendant physician. This court reversed that judgment in 2020. Upon remand, a trial before a jury resulted in a defense verdict. The plaintiff again appeals. We affirm.

Here is a link to the opinion: <https://tinyurl.com/4mdvvxhz>.

NOTE: This opinion touches upon many aspects of a jury trial and an appeal therefrom. For example, it addresses the standard of review on an appeal from a jury verdict; a trial judge's function as the thirteenth juror; errata sheets; evidentiary issues; expert witness disclosures under Rule 26 of the Tennessee Rules of Civil Procedure; jury instructions; and awards of discretionary costs. This is a must-read opinion for any Tennessee trial lawyer—especially one who handles health care liability actions (f/k/a medical malpractice cases).

This appeal is the second one in this case. The first one is addressed in a prior blog post that can be viewed at this link, to wit: <https://tinyurl.com/y94mzd8w>. 

New Health Care Liability Action Opinion: The Supreme Court of Tennessee Reverses the Court of Appeals of Tennessee and Holds That Grandmother Can Be a "Claimant" (as "Next Friend") for Her Grandchildren for Purposes of Authorizing Presuit Notices to Be Served under the Tennessee Health Care Liability Act

The Tennessee Supreme Court has released its opinion in Denson v. Methodist Medical Center of Oak Ridge, No. E2023-00027-SC-R11-CV (Tenn. Oct. 13, 2025). The syllabus from the slip opinion reads:

This case clarifies who may be “the claimant authorizing the notice” under the health care liability pre-suit notice statute, Tennessee Code Annotated section 29-26-121(a)(2)(B). Ashley Denson died after being admitted to the hospital. Her mother Bobbie Jo Denson took in Ashley’s two minor children and obtained legal custody of them. Bobbie Jo sent pre-suit notice to defendant health care providers identifying herself as the “claimant authorizing the notice” under Tennessee Code Annotated section 29-26-121(a)(2)(B). She subsequently filed suit on her own behalf and on behalf of the minor children, ultimately pursuing the claim solely on behalf of the minor children. Defendants filed motions to dismiss, arguing Bobbie Jo did not comply with pre-suit notice requirements because she did not identify the children as the claimants. The trial court denied defendants’ motions to dismiss but granted their motion for interlocutory appeal. The Court of Appeals reversed, finding Bobbie Jo did not comply with pre-suit notice requirements because the children were the claimants but not identified as such. We now reverse. Bobbie Jo Denson is “the claimant authorizing the notice” under Tennessee Code Annotated section 29-26 121(a)(2)(B), as minor children cannot authorize pre-suit notice and file suit on their own behalf. The judgment of the Court of Appeals is reversed, and the case is remanded to the circuit court.  

Here is a link to that opinion: <https://tinyurl.com/29c64mya>.

NOTE: This is a correct decision on so many levels, and I applaud our state's High Court for reaching the correct decision in this case. 

New Health Care Liability Action Opinion: Trial Court's Dismissal of Complaint Upheld in Part and Reversed in Part Due to the Application of the Healthcare Operations Exception to the General Requirement That a HIPAA-compliant Authorization for the Release of Medical Records Be Included with the Presuit Notices Served on Potential Defendants

The Tennessee Court of Appeals has released its opinion in Christie v. Baptist Memorial Hospital, No. W2022-01296-COA-R3-CV (Tenn. Ct. App. Nov. 15. 2023). 

Plaintiffs appeal the dismissal of their health care liability claims against a hospital and two doctors who treated their daughter on the day of her birth and tragic death. The trial court reluctantly ruled that the plaintiffs failed to substantially comply with Tennessee Code Annotated section 29-26-121(a)(2)(E) and dismissed the claims as untimely. We conclude that the plaintiffs met their burden to show substantial compliance with section 29-26-121(a)(2)(E) as to the defendant hospital, but not the defendant doctors. We therefore affirm in part, reverse in part, and remand for further proceedings.

Here is a link to the slip opinion: ChristieLauraSOPN.pdf (tncourts.gov).

NOTE: This opinion does a good job of explaining the healthcare operations exception to the general requirement that presuit notice be accompanied by a HIPAA-complaint medical records authorization under Tenn. Code Ann. sec. 29-26-121. That exception is what saved the claim against the hospital because it allowed the Tennessee Court of Appeals to find that there had been substantial complaint with section 29-16-121(a)(2)(E). 

New Health Care Liability Action: Denial of Summary Judgment to Defense Reversed on Appeal Because Certificate of Good Faith Was Not Properly Presented

The Tennessee Court of Appeals has released its opinion in Estate of Blankenship v. Bradley Healthcare and Rehabilitation Center,  No. E2021-00714-COA-R10-CV (Tenn. Ct. App. Mar. 30, 2022). The syllabus reads:

In this health[]care liability action, a decedent’s estate and her son sued a nursing home and the county that owned the nursing home, alleging that the nursing home was negligent in the care of the decedent. The nursing home and the county filed a motion to dismiss [(which was converted to a motion for summary judgment because matters outside the pleadings were considered)] the case for failure to comply with the certificate of good faith filing requirement in Tenn. Code Ann. § 29-26-122. The trial court denied the motion, finding that an exhibit attached to the complaint satisfied the certificate of good faith filing requirement. Because the exhibit did not contain all of the information required for a certificate of good faith, we reverse and remand.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/estate_of_beulah_blankenship_et_al._v._bradley_healthcare_and_rehabilitation_center_et_al..pdf .

NOTE: This is a must-read decision for anyone who is involved with medical malpractice cases (n/k/a health care liability actions) governed by Tennessee substantive law because it offers up a good discussions of certificates of good faith that are required under Tennessee Code Annotated section 29-26-122 in these types of cases.

Judgment of Dismissal in a Health Care Liability Action in Tennessee Claims Commission Upheld on Appeal

The Tennessee Court of Appeals has released its decision in Cavaliere v. State, No. M2021-00038-COA-R3-CV (Tenn. Ct. App. Feb. 3, 2022). The slip opinion reads:

This appeal arises from proceedings in the Tennessee Claims Commission and follows a trial concerning care received by the decedent while at the Tennessee State Veterans Home. The Claims Commission ultimately found that the claimants had failed to establish a health care liability claim and therefore dismissed the case. For the reasons stated herein, we affirm the judgment of dismissal.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/wanda.cavaliere.opn_.pdf.

NOTE: This decision emphasizes just how difficult health care liability actions (f/k/a/ medical malpractice cases) are in Tennessee—especially in the Claims Commission. In addition to the normal issues that arise in these types of cases, this one involves waiver of issues on appeal due to counsel's failure to follow the appellate rules. This decision also offers a good explanation of the standard of review on appeal from Claims Commission cases. This one is worth reading in my humble opinion.  

New Health Care Liability Action Opinion: Trial Court's Striking of Affirmative Defense Because a Certificate of Good Faith Was Not Filed to Support the Defense Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Hanson v. Levan, No. E2020-01581-COA-R9-CV (Tenn. Ct. App. Oct. 25, 2021).  The syllabus form the slip opinion reads:

In this healthcare liability action, the plaintiff sued several medical professionals and facilities. Following an amended complaint, which had removed multiple parties from the action, the remaining defendants filed their answer to the amended complaint that included allegations of comparative fault against a doctor that the plaintiff had removed as a party to the action in the amended complaint. The defendants did not file a certificate of good faith in compliance with Tennessee Code Annotated § 29-26-122, which is required when a defendant alleges comparative fault against a “non-party.” Following a motion by the plaintiff, the trial court entered an order striking the defendants’ allegations of comparative fault. The trial court further found that the defendants had not demonstrated good cause to support an extension of time to file a certificate of good faith. Discerning no error, we affirm.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/brett_hanson_et_al._v._sarah_j._levan_et_al._0.pdf.

NOTE: This is the correct result under Tenn. Code Ann. sec. 29-26-122.  

New Case Discussing Proper Procedure for Reviving Tort Suit Against a Tortfeasor Who Dies Before Suit Is Filed: Trial Court's Dismissal of Action as Untimely Upheld on Appeal

The Tennessee Court of Appeals released its decision today in Mott. v. Luethke, No. E2020-00317-COA-R3-CV (Tenn. Ct. App. Mar. 16, 2021).  The syllabus from the slip opinion reads:

Following an automobile accident that occurred on March 22, 2016, the plaintiff filed a cause of action, in the form of a civil summons, in the Washington County General Sessions Court . . . on March 3, 2017, seeking an award of damages from the defendant, who was the other driver involved in the car accident. Unbeknownst to the plaintiff, however, the defendant had passed away in December 2016. On January 31, 2018, the plaintiff filed a “re-issue[d]” summons to be served upon the administrator ad litem of the decedent’s estate. After the matter was subsequently transferred to Washington County Circuit Court . . . , the trial court granted the administrator’s motion for summary judgment, determining that the plaintiff had failed to timely file his tort action against the personal representative within the applicable statute of limitations. The trial court consequently dismissed the plaintiff’s claims with prejudice. The plaintiff has appealed. Discerning no reversible error, we affirm.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/vernon_mot_v._k_jeffrey_luethke_esq._et_al..pdf.

NOTE: This is an excellent decision!  It is also a must-read one for any lawyer who must deal with the issue of revivor of a claim against a tortfeasor who dies before suit is filed under Tennessee substantive law.  It also touches upon equitable estoppel.  Worth the time it takes to read it.   

Tennessee Code Annotated section 16-15-710 and Process in Tennessee General Sessions Court

What do you do if you have filed suit in general sessions court and not gotten service upon the defendant? Tennessee Code Annotated section 16-15-710 states what needs to be done to keep your lawsuit from becoming time-barred, to wit:

The suing out of a warrant is the commencement of a civil action, within the meaning of this title, whether it is served or not; but if the process is returned unserved, plaintiff, if plaintiff wishes to rely on the original commencement as a bar to the running of a statute of limitations, must either prosecute and continue the action by applying for and obtaining new process from time to time, each new process to be obtained within nine (9) months from return unserved of the previous one (1), or plaintiff must recommence the action within one year after return of the initial process not served.

I  would like to thank my friend David Cooper for pointing this out to me.