New Opinion on Personal-injury Claims in Bankruptcy

Today the Tennessee Court of Appeals, Western Section, issued its opinion in Lane v. Daniel, No. W2012-01684-COA-R3-CV (Tenn. Ct. App. May 29, 2013).  The summary from the opinion reads as follows:

This case involves the application of the statute of limitations to an intervening personal injury complaint filed by a bankruptcy trustee after the defendants asserted that the original plaintiff, the debtor in the bankruptcy proceeding, lacked standing to bring the claim. Once the bankruptcy trustee became aware of the claim, he filed a motion for intervention, or in the alternative, for substitution pursuant to Rule 17.01 of the Tennessee Rules of Civil Procedure. The trial court granted the trustee’s motion and the trustee later filed an intervening complaint. The trial court, however, later dismissed the case, reasoning that because the first complaint was filed by a party without standing, the original complaint was a nullity. Under this theory, the trial court concluded that the action was commenced upon the filing of the trustee’s intervening complaint, which was undisputedly outside the applicable statute of limitations. Having determined that the plaintiff’s original complaint was not a nullity, we conclude that the trustee’s intervening complaint relates back to the original complaint and, thus, was filed within the applicable statute of limitations.  Accordingly, we reverse and remand.

Here's a link to the opinion:

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

Medical Malpractice (n.k.a. Health Care Liability Action): Tennessee Supreme Court Holds That 120-day Extension of the Statute of Limitations Does Not Apply to Governmental Entities

The Tennessee Supreme Court just decided Cunningham v. Williamson Cnty. Hosp. Dist., No. M2011-00554-SC-S09-CV (Tenn. May 9, 2013).  The summary of the opinion reads as follows:

A husband and wife filed a claim against a county hospital alleging that the negligence of the hospital and its employees caused the death of their son. The claim was filed approximately fifteen months after their son’s death in accordance with the provisions of the Tennessee Medical Malpractice Act. See Tenn. Code Ann. § 29-26-121 (2012). The county hospital, a governmental entity, filed a motion to dismiss, arguing that the claim was filed outside the one-year statute of limitations of the Governmental Tort Liability Act (“GTLA”). Tenn. Code Ann. § 29-20-305(b) (2012). The couple responded that their complaint was timely filed because Tennessee Code Annotated section 29-26-121(c) extended the GTLA statute of limitations by 120 days. The trial court denied the hospital’s motion to dismiss but granted an interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Appeals granted the Rule 9 application and affirmed the trial court’s denial of the hospital’s motion to dismiss. We granted the hospital permission to appeal. We hold that the 120-day extension provided by Tennessee Code Annotated section 29-26-121(c) does not apply to the plaintiffs’ claim brought under the GTLA. We therefore reverse the judgment of the trial court denying the hospital’s motion to dismiss and remand the case to the trial court for entry of an order dismissing Mr. and Mrs. Cunningham’s complaint.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/cunninghamwopn_0.pdf

NOTE: This is a follow-up post to my Dec. 1, 2012 one.  Please see that one too.

Moreover, this is a must-read opinion for any lawyer who handles health care liability actions (f.k.a. medical malpractice actions) against governmental entities.  It may, however, only be applicable to cases that accrued before October 1, 2011, which can be discerned from a careful reading of the opinion.  

Medical Malpractice (a.k.a. Health Care Liability Action): Plaintiff's Case Dismissed Due to Insufficiency of Service of Process

The Tennessee Court of Appeals just issued its opinion in Milton v. Etezadi, No. E2012-00777-COA-R3-CV (Tenn. Ct. App. May 3, 2013). The summary from the opinion states as follows:

This case presents the issue of whether proper service of process was accomplished regarding the defendant, Saeed Etezadi, M.D. Plaintiff, Will J. Milton, filed a medical malpractice action against Dr. Etezadi on April 14, 2003. The complaint and summons were served upon Dr. Etezadi’s office manager, with a notation appearing on the summons that service was accepted as “agent.” Dr. Etezadi filed an answer which, inter alia, raised the affirmative defense of insufficiency of service of process. Mr. Milton voluntarily dismissed that action and subsequently re-filed within one year of the non-suit. In connection with the second action, the complaint and summons were allegedly served upon Dr. Etezadi at his office. Dr. Etezadi filed an Answer, again raising the affirmative defense of insufficiency of service of process. Dr. Etezadi also asserted that all applicable statutes of limitation and repose had expired. He later filed a motion to dismiss. Following the hearing, the trial court dismissed the claims against Dr. Etezadi, finding that there was no service of process in either action.  Mr. Milton appeals. We affirm.

Here's a link to the opinion:

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

Medical Malpractice: Pre-suit Notice Provision Held to Be Constitutional by Tennessee Court of Appeals, Part II

This post should be read in conjunction with my April 17, 2013 post.  The Tennessee Court of Appeals, Western Section, has once again held that Tennessee's statutory pre-suit notice requirement in medical malpractice actions (n.k.a. health care liability actions) is constitutional, inter alia, in Williams v. SMZ Specialists, P.C., No. W2012-00740-COA-R9-CV (Tenn. Ct. App. Apr. 19, 2013). The summary of the opinion states as follows:

This appeal involves a constitutional challenge to T.C.A. § 29-26-121, which requires notice to defendants prior to the commencement of a health care liability lawsuit. The plaintiff filed a lawsuit asserting health care liability against the defendant health care providers within the applicable statute of limitations, but without providing the defendants with prior notice as required under Section 29-26-121. In ruling on the defendants’ motion for summary judgment, the trial court held that Section 29-26-121 conflicted with Rule 3 of the Tennessee Rules of Civil Procedure. On this basis, it held that the statute infringed upon the authority of the judicial branch to enact rules governing the procedures for commencing a lawsuit, and thus violated the separation of powers clause of the Tennessee Constitution. the defendant health care providers were granted permission for this interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. We reverse, holding that pre-lawsuit notice requirement in Section 29-26-121 does not contravene the separation of powers clause of the Tennessee Constitution.

Here's a link to the opinion:

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

Representing Badly Injured Children in Personal Injury Cases

Representing badly injured children is no easy task.  These types of cases are not "cookie-cutter" type cases and must be handled by a competent attorney.  Our firm enjoys helping injured children; and some of the methods we employ in representing badly injured children is as follows:

• Age progression technology to demonstrate how a child's injuries will affect him or her in the future (this can be used at mediation or trial);
• We work closely with other professionals to ensure that any settlement or award we obtain for a child will not disqualify him or her for any form of governmental assistance; and
• We know the law as it relates to children's personal injury claims and how it affects them.

We can be reach at (615) 620-4471 to discuss, free-of-charge, an injury to your child.  Please call us if you have any questions.

Medical Malpractice: Pre-suit Notice Provision Held to Be Constitutional by Tennessee Court of Appeals

The Tennessee Court of Appeals, Western Section, has held that Tennessee's statutory pre-suit notice requirement in medical malpractice actions (n.k.a. health care liability actions) is constitutional, inter alia, in Webb v. Roberson, No. W2012-01230-COA-R9-CV (Tenn. Ct. App. Apr. 17, 2013).  The summary of the opinion states as follows:

In this interlocutory appeal, Plaintiffs challenge the constitutionality of Tennessee Code Annotated section 29-26-121, which requires a medical malpractice claimant to provide certain notice sixty days prior to filing suit. We conclude that Tennessee Code Annotated section 29-26-121 is not an unconstitutional infringement upon the courts’ rule-making authority, that it is not preempted by HIPAA, and that it does not violate the equal protection and due process provisions of state and federal law. Affirmed and Remanded.

Here's a link to the opinion:

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

You can bet that a Tenn. R. App. P. 11 application for permission to appeal will be filed with the Tennessee Supreme Court within sixty days; and that the Court will probably take it up.

A Good Federal Resource: United States Attorneys' Manual

I found this while working on a federal case.  It's a useful tool on the civil and criminal side of the docket in federal courts.  See link below:

http://www.justice.gov/usao/eousa/foia_reading_room/usam/

Plaintiffs' Case Dismissed via Summary Judgment Because Their Expert Did Not Meet the Newly Defined Expert Witness Requirements Announced by the Tennessee Supreme Court in Shipley v. Williams

The Tennessee Court of Appeals, Western Section, just issued its opinion in Mitchell ex rel. Mitchell v. The Jackson Clinic, P.A., No. W2012-00983-COA-R3-CV (Tenn. Ct. App. Apr. 9, 2013).  The summary states as follows:

This is a medical malpractice case. The trial court granted summary judgment to Appellees, the doctors and clinic, on the basis that the Appellants’ only expert witness was not competent to testify pursuant to the Tennessee Medical Malpractice Act, Tennessee Code Annotated Section 29–26–115. Appellants appeal, arguing that the trial court erred in excluding their expert. Under the Tennessee Supreme Court’s holding in Shipley v.Williams, 350 S.W.3d 527 (Tenn. 2011), we affirm the trial court’s exclusion of the expert’s testimony and its grant of summary judgment. Affirmed and remanded.

(Footnote omitted.)

Here's a link to the slip opinion:

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

A HIPAA Resource

I found this will looking on CMS's Web site and thought it would be helpful to share.  See the link below:

http://www.cms.gov/Regulations-and-Guidance/HIPAA-Administrative-Simplification/HIPAAGenInfo/Downloads/HIPAALaw.pdf

Tennessee Court of Appeals Affirms Trial Court's Dismissal of Medical Malpractice Case Due to Plaintiff's Counsel's Failure to Comply with New Tort "Deform" Law

The Tennessee Court of Appeals recently affirmed a trial court's dismissal of a plaintiff's medical malpractice case (n.k.a. a "health care liability action") due to the plaintiff's counsel's failure to comply with the new tort "deform" law.  The case is Vaughn v. Mountain States Health Alliance, No. E2012-01042-COA-R3-CV (Tenn. Ct. App. Mar. 5, 2013).  The summary from the slip opinion states as follows:

The plaintiff filed a medical malpractice action against numerous healthcare providers. The defendants moved to dismiss the complaint based on the plaintiff’s failure to comply with Tennessee Code Annotated sections 29-26-121 and -122. The trial court granted the motions and dismissed the action with prejudice. The plaintiff appeals. We affirm.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/vaughnp_030513.pdf

New Tennessee Supreme Court Case: Jury Verdict Against Assisted Living Facility Reinstated on Appeal

The Tennessee Supreme Court issued its opinion in Wilson v. Americare Sys., Inc., No. M2011-00240-SC-R11-CV (Tenn. Feb. 25, 2013).  The summary of the opinion goes as follows:

The issue presented is whether the jury verdict against the management company of an assisted living facility for negligence based on understaffing is supported by material evidence. Mable Farrar’s physician prescribed Ms. Farrar a dailydose of an over-the-counter medicine for constipation. The nursing staff at the assisted living facility where Ms. Farrar lived did not give the medicine to her as often as prescribed. As a result, Ms. Farrar became constipated and returned to see her doctor. Ms. Farrar’s doctor notified the nursing staff at the assisted living facilityto give Ms. Farrar three to four enemas each day beginning on May 27, 2004. A facility nurse gave Ms. Farrar one enema on the evening of May 27, none on May 28, and one enema on the evening of May 29. Very soon after receiving the last enema on May 29, Ms. Farrar died from a perforated colon. Her daughters filed a wrongful death action against the nurse who gave the enema, the director of nursing at the assisted living facility, the owner of the facility, and its management company. The suit alleged that the negligence of the staff, the owner, and its management company caused Ms. Farrar’s death. The jury returned a verdict finding the nurse thirty percent at fault, the director of nursing twenty percent at fault, and the management company fifty percent at fault based on its failure to provide sufficient personnel at the facility. The management company appealed. The Court of Appeals reversed the jury verdict against the management company, finding that there was no material evidence that staffing deficiencies proximately caused Ms.Farrar’s death. We hold that the jury’s verdict was supported by material evidence. Accordingly, we reverse the decision of the Court of Appeals and remand the case to the Court of Appeals for review of the award of punitive damages.

Here's a link to the opinion:

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

Medical Malpractice: Claim Against Hospital Dismissed Due to Plaintiff's Counsel's Failure to Comply with Tennessee Medical Malpractice Act

The Tennessee Court of Appeals issued its opinion in Caldwell v. Vanderbilt Univ., No. M2012-00328-COA-R3-CV (Tenn. Ct. App. Feb. 20, 2013).  The summary from the slip opinion states as follows:

Plaintiff filed suit against Vanderbilt University Medical Center for injuries she sustained during an MRI scan. The trial court held that the complaint stated a claim for medical malpractice and dismissed the complaint for failure to comply with the Tennessee Medical Malpractice Act (“TMMA”). Plaintiff appeals, asserting the complaint sounded in common law negligence and, alternatively, that the documents she filed complied with the TMMA.  We affirm the trial court

Here is a link to the opinion, to wit:

 https://www.tba.org/sites/default/files/caldwellj_022113.pdf 

Comparative Fault: Discovery Responses Do Not Trigger Tenn. Code Ann. § 20-1-119

The Tennessee Court of Appeals (Western Section) recently released its opinion in Shaffer v. Memphis Airport Auth., No. W2012-00237-COA-R9-CV (Tenn. Ct. App. Jan. 18, 2013).  The summary from the slip opinion states as follows:

This interlocutory appeal involves comparative fault and amending to add a defendant.  The plaintiff suffered slip-and-fall injuries at the defendant airport. The day before the statute of limitations ran, the plaintiff filed this lawsuit against the airport, alleging negligence. The airport’s answer asserted comparative fault but did not identify an additional tortfeasor. In later discovery, the airport identified its janitorial service. The plaintiff amended her complaint to add the janitorial service as a defendant, citing T.C.A.§ 20-1-119. The defendant janitorial service filed a motion to dismiss, citing the statute of limitations. The trial court declined to dismiss the claims against the janitorial service, holding that the disclosure of the identity of the janitorial service in discovery triggered the 90-day statutory period under Section 20-1-119 in which the plaintiff is permitted to amend the complaint to add a defendant. We reverse, holding that, by the express terms of Section 20-1-119, the statutory 90-day period is not triggered by a defendant’s response to a discovery request.

Here's a link to the opinion:

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

Facebook Fights in Court to Protect User Content

Please read story at this link:

http://www.oregonlive.com/portland/index.ssf/2013/01/facebook_argues_to_protect_use.html#incart_m-rpt-2

Seventh Anniversary!

This month marks the seventh anniversary of this blog (first post was in January 2006).  I want to say thank you to all of my readers.  Your patronage, along with your nice comments and emails, are greatly appreciate.

The SMART Act

Here's a link to the new SMART Act, to wit:

http://images.magnetmail.net/images/clients/ATLA/attach/SMARTAct_final.pdf

Online Basic Legal Citation Primer

Here's a link to an online basic legal citation primer, to wit:

http://www.law.cornell.edu/citation/

Health Care Liability Action (f.k.a. Medical Malpractice Action): New Case on Sanctions under Tenn. Code Ann. sec. 29-26-122

The Tennessee Court of Appeals, Middle Section, recently issued its opinion in Kerby v. Haws, No. M2011-01943-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2012).  The summary from the slip opinion states as follows:

A woman who suffered a series of persistent infections after surgery filed a malpractice complaint against the defendant surgeon. Her complaint alleged that the infections were cause by a small metal object that the defendant had negligently left in her body during the surgery. The plaintiff attached to her complaint the statutorily required certificate of good faith, which certified that she had consulted with an expert, who provided a signed statement confirming that he believed, on the basis of the medical records, that there was a good faith basis to maintain the action. See Tenn. Code Ann. § 29-26-122. After the object was discovered to be a surgical clip of a type that was designed to be retained by the patient’s body, the defendant filed a motion for summary judgment, which the plaintiff did not oppose.  The defendant surgeon subsequently filed a motion for sanctions against the plaintiff under Tenn. Code Ann. § 29-26-122 (d)(3), which gives the court the authority to punish violations related to the certificate of good faith. The trial court granted the motion, and awarded the defendant doctor over $22,000 in attorney fees. We reverse.

Here's a link to the opinion:

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

Medical Malpractice: Statutorily Required Presuit Notice Does Not Provide 120-day Extension of One-year Statute of Limitations Against Governmental Entity

The Tennessee Court of Appeals released its opinion yesterday in Lawring v. Green Cnty. EMS, No. E2011-1201-COA-R9-CV (Tenn. Ct. App. Dec. 17, 2012). The summary of the opinion reads as follows:

In this action the defendants filed a Motion for Summary Judgment on the grounds the statute of limitation had run on plaintiff's cause of action. The Trial Court overruled the Motion on the grounds that the tolling provisions in Tenn. Code Ann. § 29-20-201(c) was applicable to GTLA actions and granted permission to appeal pursuant to Tenn. R. App. P. 9. On appeal, we hold that the tolling provision does not apply because the statute did not expressly extend it to GTLA actions.

The issue on appeal was stated on page 3 of the opinion as follows: 

Does the medical malpractice pre-suit notice requirement contained in Tennessee Code Annotated §29-26-121(a) operate to toll the one year statute of limitations for bringing suit against a governmental entity under the GTLA?

Here's a link to the opinion:

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

This opinion, which was issued by the Eastern Section Court of Appeals, is in direct contradiction to the opinion released by the Middle Section Court of Appeals in Cunningham ex rel. Cunningham v. Williamson Cnty. Hosp. Dist., which was the subject of my December 1, 2011 post, to wit:

http://theduncanlawfirm.blogspot.com/2011/12/medical-malpractice-statutorily.html

The Tennessee Supreme Court granted permission to appeal in Cunningham on April 16, 2012.  It was argued on October 3, 2012.  To state the obvious, the decision in that case will affect the outcome of this case.  

The Importance of Uninsured/Underinsured Motorist Coverage

This post is a lot like a public service announcement.  To any and all persons out there who own and drive a care, please contact your insurance agent and make sure you have uninsured/underinsured ("UM/UIM") coverage.  And if you are in Tennessee, get no less that fifty thousand in coverage (of course the more coverage you have, the better).

Making sure you have enough UM/UIM coverage might be the best decision you ever make.  This is because UM/UIM might be the only source of a monetary recovery you will have if a person hits you who doesn't have liability insurance (an uninsured situation); and it might provide additional monies as further compensation if the person who hits you doesn't have enough coverage (an underinsured situation).