New Summary Judgment Opinion: Summary Judgment for Defendant Upheld on Appeal Because Plaintiff Failed to Comply with Rule 56.03, Tenn. R. Civ. P.

The Tennessee Court of Appeals has released its decision in Brennan v. Goble, No. E2020-00671-COA-R3-CV (Tenn. Ct. App. May 27, 2021).  The syllabus from the slip opinion reads:

This appeal arose from a personal injury action. The defendant filed a motion for summary judgment, accompanied by a statement of material facts in compliance with Tennessee Rule of Civil Procedure 56.03. The plaintiff responded to the defendant’s motion for summary judgment but failed to respond to the separate statement of material facts. As a result of the plaintiff’s failure to respond to the statement of material facts, the Trial Court deemed those facts as stated by the defendant as admitted and granted summary judgment in favor of the defendant upon its determination that the defendant had negated an essential element of the plaintiff’s claim. Discerning no error, we affirm.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/e2020-671_brennan_v._goble.pdf.

NOTE: This is a correct result.  I have seen both movants and nonmovants fail to comply with Rule 56.03's requirement of citing to the record to support or oppose a motion for summary judgment (which does not end well for the noncompliant party).  As noted on page 10 of this decision, Rule 56.03 exists so that a court does not have to unnecessarily dig through an entire record just to determine if a dispute exists as to a material fact.  

New Health Care Liability Action Opinion: Denial of Summary Judgment for a Defendant Upheld on Appeal; Authorization for Medical Records Substantially Complied with HIPAA

The Tennessee Court of Appeals released its decision today in Savannah v. State, No. E2020-01232-COA-R9-CV (Tenn. Ct. App. May 19, 2021).  The syllabus from the slip opinion reads:

Parents filed a healthcare liability and wrongful death complaint after the mother delivered a stillborn infant. We granted this interlocutory appeal to review whether the claims commission erred in denying summary judgment to the defendants. Finding no error in the Commission’s ruling, we affirm. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/savannah_leigh_jackson_et_al._v._the_state_of_tennessee_et_al..pdf.

NOTE: This is a must-read decision for any lawyer who handles health care liability action (HCLA) cases governed by Tennessee substantive law.  It addresses whether an authorization required under Tenn. Code Ann. sec. 29-26-121 complies with HIPAA, which has become all-too-common issues in HCLA cases.  

New Tort Opinion: Summary Judgment for Defense Reversed on Appeal Because Plaintiff Had Demonstrated That a Genuine Issue of Material Fact Existed for Trial

The Tennessee Court of Appeals released its opinion the other day in Davis v. Keith Monuments, No. E2020-00792-COA-R3-CV (Tenn. Ct. App. Apr. 29, 2021).  The syllabus from the slip opinion reads:

Plaintiff filed suit for damages alleging that she had been injured when the headstone at her deceased brother’s grave fell on her and broke bones in her hand. After Defendant, the installer of the headstone, moved for summary judgment, the trial court dismissed Plaintiff’s claims with prejudice. On appeal, we reverse that portion of the trial court’s summary judgment order dismissing Plaintiff’s claim which is based on Defendant’s alleged negligence in installing the headstone.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/sylvia_davis_v._keith_monuments.pdf.

NOTE: This is a great opinion!  It addresses the proper application of the standard of review in summary judgment proceedings, computation of time, and expert-witness qualifications.  If you have to deal with a motion for summary judgment under Tennessee law, you need to read this opinion.   

New Health Care Liability Action Opinion: Trial Court's Dismissal of Refiled Suit Upheld on Appeal Due to Failure to Provide Statutorily Required Presuit Notice of Second Suit

The Tennessee Court of Appeals has released its opinion in Byington v. Reaves, No. E2020-01211-COA-R3-CV.  Here is the syllabus from the slip opinion:

This is a health care liability case. The trial court granted Appellees’ motion to dismiss because Appellant failed to provide Appellees with the proper pre-suit notice under Tennessee Code Annotated section 29-26-121(a)(1). Discerning no error, we affirm.

Here is the link to the slip opinion:  

https://www.tncourts.gov/sites/default/files/debra_sue_byington_v._jamie_reaves_d.o._et_al..pdf.

NOTE: Procedurally, this case is mess.  In a nutshell, the suit that is the subject of this appeal, which was plaintiff's second suit against the defendants, was dismissed because the plaintiffs failed to send to the defendants the statutorily required presuit notice letters.  Byington, slip op. at 4–5.  

Health Care Liability Action Opinion: Trial Court's Grant of Relief Under Rule 60.02, Tenn. R. Civ. P., Reversed on Appeal

The Tennessee Court of Appeals recently released its decision in Mack v. Baptist Memorial Hospital, No. W2020-00809-COA-R3-CV (Tenn. Ct. App. Mar. 30, 2021).  The syllabus form the slip opinion reads:

This appeal arises from a health care liability action. Darryl G. Rush-Mack . . . died while receiving care at Baptist Memorial Hospital . . . .  Alvin Mack . . . , Kevin Mack, and Darwisha Mack Williams . . . sued the Hospital and Dr. Aaron Kuperman . . . in the Circuit Court for Shelby County . . . .  Defendants filed motions to dismiss, which the Trial Court granted. Thirty days from entry of the order passed without Plaintiffs filing a notice of appeal. Plaintiffs later filed a motion to set aside pursuant to Tenn. R. Civ. P. 60.02 asserting that the order was not stamped to be mailed until six days after it was filed and it went to a PO Box Plaintiffs’ counsel does not use for business. The Trial Court granted the motion and entered a new order of dismissal, from which Mr. Mack appeals. We find that Mr. Mack failed to meet the clear and convincing evidentiary burden necessary for Rule 60.02 relief; indeed, the Trial Court relied only upon statements of counsel rather than evidence. We, therefore, reverse the Trial Court’s grant of Plaintiffs’ Rule 60.02 motion. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/mackalvinopn.pdf.

NOTE: This case is a reminder of the high burden to meet under the clear-and-convincing standard of evidentiary proof.  

New Health Care Liability Action Opinion: Trial Court's Dismissal of Case as Being Time-barred Due to a Failure to Comply with Presuit Notice Requirements Upheld on Appeal

The Tennessee Court of Appeals has released its decision in Shaw v. Gross, No. W2019-01448-COA-R3-CV (Tenn. Ct. App. Apr. 13, 2021).  The syllabus form the slip opinion reads:

Appellant appeals the dismissal of her health care liability complaint on the basis of the expiration of the applicable statute of limitations. Because Appellant did not substantially comply with Tennessee Code Annotated section 29-26-121(a)(2)(E), she was not entitled to an extension on the statute of limitations. The trial court’s decision that her complaint should be dismissed is affirmed. 

Here is a link to the slip opinion:

 https://www.tncourts.gov/sites/default/files/shawhelen2opn.pdf.

NOTE: This case is related to my Feb. 9, 2018-blog post.  Tony Duncan, New Health Care Liability Action Opinion: Trial Court Reversed Due to Discovery Rule, Its Decision Vacated Because It Failed to Adhere to the Proper Summary Judgment Standard, Which Leads to a Remand by Court of Appeals, TONY DUNCAN L. BLOG (Feb. 9, 2018, 6:28 PM), http://theduncanlawfirm.blogspot.com/2018/02/new-health-care-liability-action_9.html.

New Case on Attorney Signature to Complaint: Trial Court's Dismissal Reversed on Appeal Because Signature Complied with Tenn. R. Civ. P. 11

The Tennessee Court of Appeals recently issued its decision in Smith v. Gonzalez, No. W2019-02028-COA-R3-CV (Tenn. Ct. App. Apr. 1, 2021).  The syllabus from the slip opinion reads:

This appeal involves a challenge to the trial court’s dismissal of Plaintiff’s complaint. Specifically, Plaintiff contends that the trial court erred in finding that his complaint was deficient per the signature requirements in Rule 11.01(a) of the Tennessee Rules of Civil Procedure. For the reasons stated herein, we reverse the trial court’s dismissal of Plaintiff’s complaint and conclude it is in compliance with the requirements of Rule 11.01. 

Here is link to the slip opinion:

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

NOTE: I am surprised this appeal had to happen.  Lawyers sign for other lawyers "by permission" all . . . the . . . time!  Glad the Tennessee Court of Appeals got this one right.  

Two New Health Care Liability Action Opinions on Same Issue: Trial Court's Grant of Summary Judgment and Motion to Dismiss Reversed on Appeal Due to Statutory Changes as They Relate to Vicarious Liability

Today, the Tennessee Court of Appeals released its decisions in Gardner v. Saint Thomas Midtown Hospital, No. M2019-02237-COA-R3-CV (Tenn. Ct. App. Apr. 1, 2021) and Ultsch v. HTI Memorial Hospital Corporation, No. M2020-00341-COA-R9-CV (Tenn. Ct. App. Apr. 1, 2021).  Both cases hinge on the same issue and arise from the same trial court.  The common issue being whether a principal in a health care liability action may be held vicariously liable for the acts or omissions of its employees and agents if the statute of limitations was extended as to the principal but not the employees and agents via service of presuit notice letters under Tenn. Code Ann. sec. 29-26-121.  

The syllabus from the slip opinion in Gardner reads:

A patient filed a health care liability claim against a hospital, asserting the hospital was vicariously liable for injuries she suffered as a result of the anesthesia providers’ conduct. The hospital moved for summary judgment, arguing that the anesthesia providers were not employed by the hospital and the hospital was, therefore, not liable for the anesthetists’ actions as a matter of law because the statute of limitations had run on the plaintiff’s direct claims against the anesthesia providers by the time the plaintiff filed her complaint against the hospital. The trial court granted the hospital’s motion and dismissed the plaintiff’s complaint, relying on the common law set forth in Abshure v. Methodist HealthcareMemphis Hospitals, 325 S.W.3d 98 (Tenn. 2010). Acknowledging the conflict between provisions of the Tennessee Health Care Liability Act and the common law, we hold that the statute prevails. Accordingly, we reverse the trial court’s judgment and remand the case for further proceedings.

Here is a link to the Gardner slip opinion:

https://www.tncourts.gov/sites/default/files/gardner.beverly.opn_.pdf.

The syllabus from the slip opinion in Ultsch reads:

This appeal concerns the interplay between the Tennessee Health Care Liability Act [] and the common law on vicarious liability with respect to pre-suit notice in a health care liability claim against the principal only. We have determined that the provisions of the HCLA take precedence over the common law and that the plaintiff’s claims in this case were timely filed. Therefore, we reverse the decision of the trial court.

Here is a link to the Ultsch slip opinion:

https://www.tncourts.gov/sites/default/files/ultsch.dennis.opn_.pdf.

NOTE: Both of these opinions offer an excellent explanation of how a vicarious liability claim may be prosecuted under Tennessee's Health Care Liability Act (f/k/a the Tennessee Medical Malpractice Act). SCOTN will be asked to review these two decisions via a Rule 11 application.  It may deny review, however, because these decision are very well reasoned and jibe with applicable Tennessee law in my humble opinion.  

UPDATE (Oct. 1, 2021): I was wrong.  SCOTN has granted permission to appeal in both cases on Sept. 24, 2021, to wit:

https://tncourts.gov/sites/default/files/sc_discretionary_appeals_list_2021sept27.pdf.

 

New Health Care Liability Action Opinion: Trial Court's Dismissal of Plaintiff's Case Upheld on Appeal Due to Noncompliance with Statutory Presuit-notice Requirements

The Tennessee Court of Appeals recently released its decision in Woods v. Arthur, No. W2019-01936-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2021).  The syllabus from the slip opinion reads:

This appeal concerns the dismissal of a health care liability action for failure to comply with a pre-suit notice content requirement in Tenn. Code Ann. § 26-29-121(a)(2). The trial court determined that the plaintiff failed to provide the defendant doctors and hospital with medical authorization forms that would permit pre-suit investigation of his claims. The plaintiff contends the dismissal was unwarranted because the medical authorizations substantially complied with the statute and the defendants already had the relevant records. The defendants argue that the forms were invalid because they lacked several required elements, including a description of the purpose for which the records could be disclosed and used. We affirm.

Here is a link to the slip opinion: 

https://www.tncourts.gov/sites/default/files/woodsarthuropn_3.pdf.

NOTE: As I have noted in the past, an authorization may not be needed for the defendants to share medical records.  If that ends up being true, all these decision holding that a case should be dismissed due to some defect in an authorization are wrongly decided.  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.

New Auto Case: Out-of-state Automotive Insurance Policy Construed on Appeal: Summary Judgment for Insuror Reversed and Summary Judgment for Insured to Be Granted on Remand

The Tennessee Court of Appeals just released its opinion in Progressive Specialty Insurance Company v. Kim, No. M2019-01998-COA-R3-CV (Tenn. Ct. App. Mar. 22, 2021).  The syllabus from the slip opinion reads:

After being injured in a car accident, a man filed a negligence lawsuit against several defendants, including the driver of the vehicle and the company that employed the driver. The insurance company that provided insurance coverage to the company in Alabama filed a declaratory judgment action seeking a determination of whether the policy provided liability coverage for the company in the underlying tort action. After the insurance company and the plaintiff in the underlying tort action filed cross-motions for summary judgment, the trial court granted summary judgment to the insurance company based on respondeat superior principles. We conclude that the trial court erred in granting summary judgment to the insurance company because, under Alabama law, the policy provided liability coverage for the company at the time the accident occurred.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/progressivespecialtyins.co_.opn_.pdf.

NOTE: This is an excellent opinion on the doctrine of lex loci contractus (while it does not mention the doctrine specifically, the doctrine is discussed extensively in Nelson v. Nelson, 409 S.W.3d 629 (Tenn. Ct. App. 2013), which is cited on page 4 of this slip opinion). In cases like this one, as a matter of contract, the law of the state where the contract was made controls, i.e., the "lex loci contractus."  Since people are becoming increasingly mobile, and because Tennessee has eight border states, this opinion is a must-read for any lawyer who handles auto tort cases in Tennessee because it explains very well how out-of-state automotive insurance polices are to be interpreted under this doctrine in a Tennessee civil action.    

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.   

New Case on Judgment on the Pleadings and the Discovery Rule to Toll the Statute of Limitations in a Legal Malpractice Case

In October 2020, the Tennessee Court of Appeals released its opinion in Culpepper v. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., No. E2019-01932-COA-R3-CV (Oct. 16, 2020).  The syllabus from the slip opinion reads:

In this legal malpractice action, the trial court granted judgment on the pleadings in favor of the defendants, determining that the plaintiff had waived any conflict of interest in his signed engagement letter. The court also ruled that the plaintiff’s legal malpractice claims were barred by the applicable statute of limitations. The plaintiff has appealed. Upon our review of the pleadings and acceptance as true of all well-pleaded facts contained in the plaintiff’s complaint and the reasonable inferences that may be drawn therefrom, we determine that the plaintiff has pled sufficient facts in support of his claim of legal malpractice. We therefore reverse the trial court’s grant of judgment on the pleadings with regard to the plaintiff’s legal malpractice claim.

(Footnote omitted.)

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/culpepper_v._baker_donelson_e2019-01932.pdf

NOTE: This case discusses judgment on the pleadings and the discovery rule under Tennessee law.  It is a good read.  Please note, however, that it was appealed to SCOTN on January 11, 2021 (https://www2.tncourts.gov/PublicCaseHistory/) and no decision has been made as to whether SCOTN will take it up yet.  Until that happens, one must, obviously, monitor this case before citing it.  Stay tuned.  

New Health Care Liability Action Opinion: Trial Court’s Dismissal of Action Against Hospital Upheld on Appeal; Discovery Rule Does Not Apply to Save the Claim

The Tennessee Court of Appeals has released its opinion in Karr v. Thomas Midtown Hospital, No. M2020-00029-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2021).  The syllabus from the slip opinion reads:

This appeal concerns the dismissal of a health care liability action against Saint Thomas Midtown Hospital, Saint Thomas Health, and Ascension Health. The trial court dismissed the complaint with prejudice on the ground the statute of limitation, through the application of the discovery rule, barred all of the claims. The plaintiffs appealed. We affirm.

Here is a link to the slip opinion:

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

NOTE; This opinion offers up an excellent explanation of the discovery rule and how it applies to toll the statute of limitations under certain circumstances.  It would behoove anyone interested in the discovery rule to read this opinion.  

New Opinion on Recently Enacted Tennessee Law Extending One-year Statute of Limitations for Personal Injury Actions to Two Years Based upon Certain Criminal Charges Being Brought Against Tortfeasor: Trial Court's Denial of Defendant's Motion for Summary Judgment Based upon That New Law Upheld on Appeal

Yesterday the Tennessee Court of Appeals released its decision in Younger v. Okbahhanes, No. E2020-00429-COA-R10-CV (Tenn. Ct. App. Jan,. 28, 2021).  The syllabus from the slip opinion reads:

This appeal arises from a personal injury action. The plaintiff filed this action more than one year after the vehicle collision from which the cause of action accrued. The defendant filed a motion for summary judgment, arguing that the plaintiff’s action was untimely. The plaintiff filed a response arguing that the statute of limitations for personal injury actions was extended to two years, pursuant to Tennessee Code Annotated § 28-3-104(a)(2), due to the traffic citation issued to the defendant for failure to exercise due care in violation of section 55-8-136 as a result of the vehicle collision. The Trial Court found that section 28-3-104(a)(2) was applicable to extend the statute of limitations to two years because the defendant had been charged with a criminal offense and a criminal prosecution had been commenced against him. Discerning no error, we affirm.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/e2020-429_younger_v._okbahhanes.pdf

NOTE: This opinion hinges on statutory construction.  As it points out, the primary goal of a court in interpreting a statute is to "apply the plain meaning of a statute’s words in normal and accepted usage without a forced interpretation."  Younger, slip op. at 5 (emphasis added) (quoting Baker v. State, 417 S.W.3d 428, 433 (Tenn. 2013).  That is exactly what the court did here.  

Further, another canon of statutory construction is reductio ad absurdum, which means reduction to the absurd; such an interpretation is to be avoided. Ronald Benton Brown & Sharon Jacobs Brown, Statutory Interpretation: The Search for Legislative Intent 73 (NITA 2d. ed. 2011) [hereinafter Intent at _____ ].  I would submit that the defendant's offered interpretation of Tenn. Code Ann. sec. 28-3-104(a)(2) is a reduction to the absurd, and that is yet another reason (aside from just the statute's plain meaning) to reject that forced interpretation. Compare Tenn. Code Ann. § 28-3-104(a)(2) (LEXIS through 2020 Reg. Sess. and Second Extraordinary Sess.) with Intent, supra, at 73; see also Black's Law Dictionary 1283 (West Grp. 7th ed. 1999) (defining reductio ad absurdum).

Lastly, this decision is absolutely correct in my professional opinion.  However, look for the defendant to seek review of it by SCOTN via an application for permission to appeal via Rule 11 of the Tenn. Rules of Civil Procedure.  Due to this portion of the statute's novelty (enacted in 2015; amended subsection (a)), I think SCOTN might take this one up.  However, I also think if it does it will affirm this decision.  My two cents' worth.

New Decision from the Tennessee Court of Appeals on Premises Liability: Summary Judgment for Defendant Reversed on Appeal

The Tennessee Court of Appeals released its decision today in Vaughn v. DMC-Memphis, LLC, No. W2019-00886-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2021).  The syllabus from the slip opinion reads:

Plaintiff filed a claim in general sessions court for injuries she allegedly received when she fell in standing water on the defendant’s premises. Judgment was rendered in favor of the defendant, and the plaintiff appealed to circuit court. The defendant then filed a motion for summary judgment arguing that it owed no duty to the plaintiff and that she was at least 50% at fault for her injuries. In support, the defendant relied on plaintiff’s testimony from the trial in general sessions court. The circuit court granted the motion for summary judgment, and plaintiff again appealed. We vacate the judgment of the trial court.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/vaughntopn_1.pdf

NOTE: This case is a premises liability case.  This decision offers an excellent analysis of Tennessee law on the element of duty in a negligence action and the affirmative defense of a plaintiff’s comparative fault.  It is worth the read in my humble opinion.  

New Health Care Liability Action Opinion: Tennessee Supreme Court Upholds Dismissal of Defendants

The Tennessee Supreme Court just released its decision in Bidwell ex rel. Bidwell v. Strait, No. E2018-02211-SC-R11-CV (Tenn. Jan. 26, 2021).  The syllabus from the slip opinion reads:

James Bidwell filed this health care liability action individually and on behalf of his deceased wife, Clarissa Bidwell, and her estate against Drs. Timothy Strait and Jeffrey Colburn (“the physician Defendants”) and the entities he believed to be their employers—the Neurosurgical Group of Chattanooga, P.C., EmCare Inc., and Envision Healthcare Corporation. Mr. Bidwell timely provided pre-suit notice to the named defendants and timely filed his lawsuit. Mr. Bidwell did not provide Chattanooga-Hamilton County Hospital Authority (“Erlanger”) with pre-suit notice, nor did he name Erlanger as a defendant. Furthermore, Dr. Strait and Dr. Colburn did not provide Mr. Bidwell written notice of Erlanger as their correct employer within thirty days of receiving pre-suit notice. See Tenn. Code Ann. § 29-26-121(a)(5). Dr. Strait answered Mr. Bidwell’s complaint, denying the allegations made against him and asserting that he was employed by Erlanger at all relevant times. Dr. Colburn similarly answered, denying the allegations made against him and that either EmCare Inc. or Envision Healthcare Corporation was his employer. Drs. Strait and Colburn then moved for summary judgment arguing that, pursuant to the Governmental Tort Liability Act, no judgment could be rendered against them because Mr. Bidwell had failed to name as a defendant their actual employer, Erlanger. See Tenn. Code Ann. § 29-20-310(b). Within ninety days of Dr. Strait’s and Dr. Colburn’s answers, Mr. Bidwell filed two motions for leave to amend his complaint to add Erlanger as a defendant. Mr. Bidwell relied on Tennessee Code Annotated section 20-1-119, which provides a plaintiff with a ninety-day “grace period” within which to amend a complaint when comparative fault “is or becomes an issue,” and section 29-26-121(a)(5), which he argued required the physician Defendants to notify him of Erlanger within thirty days of receiving pre-suit notice. The trial court granted Dr. Strait’s and Dr. Colburn’s motions for summary judgment, finding that Mr. Bidwell’s motions to amend were futile because he had not provided Erlanger with presuit notice. Mr. Bidwell appealed, and the Court of Appeals vacated the trial court’s orders granting summary judgment and remanded the case for further proceedings. Dr. Strait and Dr. Colburn subsequently filed an application for permission to appeal with this Court. We hold that, although the physician Defendants failed to comply with section Tennessee Code Annotated 29-26-121(a)(5), the statute provides no remedy for noncompliance, and their noncompliance does not constitute extraordinary cause sufficient to excuse Mr. Bidwell’s failure to provide Erlanger with pre-suit notice. However, we additionally hold that Dr. Strait’s and Dr. Colburn’s answers sufficiently asserted Erlanger’s comparative fault. Therefore, Mr. Bidwell was entitled to amend his complaint to name Erlanger as a defendant pursuant to section 20-1-119, so long as he amended his complaint and caused process to issue to Erlanger within ninety days of Dr. Strait’s answer—the first answer alleging Erlanger’s fault. Because section 20-1-119 applied, Mr. Bidwell was not obligated to provide Erlanger with pre-suit notice under Tennessee Code Annotated section 29-26-121(c). We conclude that, because the record on appeal reflects that Mr. Bidwell failed to file an amended complaint and cause process to issue, he is not entitled to amend his complaint to add Erlanger as a defendant. Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals on the grounds stated herein and reinstate the trial court’s orders granting the physician Defendants’ motions for summary judgment and denying the Plaintiff’s motions to amend.

Here is a link to the majority opinion:

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

Here is a link to Justice Lee's partial concurrence and dissent:

http://www.tncourts.gov/sites/default/files/bidwell.clarissa.l._sep.opn_.pdf

Here is Justice Kirby's concurrence:

http://www.tncourts.gov/sites/default/files/bidwell.clarissa.k.sep_._opn.pdf

NOTE: There is a lot going on in this opinion.  Taken down to its base element, it appears that the physician-employees were sued before the statute of limitations had expired but the hospital-employer was not, which meant the physicians could not be sued individually because the hospital happened to be a governmental entity, and also because the hospital was not added as a party-defendant within ninety days of an answer being filed as allowed by Tenn. Code Ann. sec. 20-1-119.  

Lastly, there are no consequences for when a defendant fails to notify a claimant of other potentially at-fault persons as required by Tenn. Code Ann. sec. 29-26-121(a)(5). 

New Health Care Liability Action Opinion: Trial Court’s Grant of Summary Judgment to the Defendant Upheld on Appeal in GTLA Case

The Tennessee Court of Appeals recently released its opinion in Williamson v. Regional One Health, No. W2019-02213-COA-R3-CV (Tenn. Ct. App. Jan. 15, 2021).  The syllabus from the slip opinion reads:

In this healthcare liability action, Appellant/patient appeals the trial court’s grant of summary judgment in favor of Appellee/hospital. The trial court granted summary judgment based, inter alia, on its conclusion that Appellant failed to provide evidence that Appellee’s immunity under the Governmental Tort Liability Act is waived due to some action/inaction of its employee. Affirmed and remanded.

Here is a link to the slip opinion:

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

NOTE: This opinion offers a good explanation of Tennessee’s law on health care liability (formerly medical malpractice) as it intersects with its law on governmental tort liability.  It is worth the read if you handle these types of cases.  

New Health Care Liability Action Opinion: Trial Court Upheld on Appeal; Tennessee Health Care Liability Act Does Not Apply to Claims for Intentional Misrepresentation, Medical Batter, Civil Conspiracy, Loss of Consortium

Last month, the Tennessee Court of Appeals released its decision in Cooper v. Mandy, No. M2019-01748-COA-R9-CV (Tenn. Ct. App. Nov. 17, 2020).  The slip opinion reads:

The principal issue in this interlocutory appeal is whether intentional misrepresentations made by health care providers to induce a prospective patient to engage the health care providers’ services are within the purview of the Tennessee Health Care Liability Act (“the Act”), Tenn. Code Ann. § 29-26-101 to -122. The complaint filed by the patient, Donna Cooper (“Mrs. Cooper”), and her husband alleges that Dr. Mason Wesley Mandy (“Dr. Mandy”) and Rachelle Norris (“Ms. Norris”) with NuBody Concepts, LLC, intentionally misrepresented that Dr. Mandy was a board-certified plastic surgeon and, based on their misrepresentation, Mrs. Cooper gave Dr. Mandy her consent to perform the surgery. Following “painful, disastrous results,” the plaintiffs asserted four claims: (1) intentional misrepresentation; (2) medical battery; (3) civil conspiracy; and (4) loss of consortium. Defendants filed a Tenn. R. Civ. P. 12 motion to dismiss for failure to comply with the presuit notice and filing requirements of the Act, specifically Tenn. Code Ann. §§ 29-26-121 and -122. The trial court denied the motion to dismiss, finding the Act did not apply. This interlocutory appeal followed. We hold that Mrs. Cooper is entitled to proceed on her claims of intentional misrepresentation and civil conspiracy because the alleged misrepresentations were inducements made prior to the existence of a patient-physician relationship; thus, the claims were not related to “the provision of . . . health care services.” See Tenn. Code Ann. § 29-26-101(a)(1). We also affirm its ruling on the medical battery claim because a physician’s misrepresentation of a material fact, if proven, may vitiate consent, and, without consent, the very act of touching Mrs. Cooper may constitute an unlawful and offensive act that is not related to the provision of health care services. See Holt v. Alexander, No. W2003-02541-COA-R3-CV, 2005 WL 94370, at *6 (Tenn. Ct. App. Jan. 13, 2005). Further, we affirm the trial court’s ruling on Mr. Cooper’s claim for loss of consortium because, as the trial court held, his claims relate to Dr. Mandy’s and Ms. Norris’s false representations of Dr. Mandy’s credentials, not to a provision of, or a failure to provide, a health care service. Accordingly, we affirm the trial court in all respects and remand for further proceedings consistent with this opinion.

Here is a link to that opinion:

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

NOTE: This opinion delves into the torts of intentional misrepresentation, medical battery, and civil conspiracy; it also touches upon claims for loss of consortium.  It is a must-read decision for any lawyer whose practice is affected by Tennessee substantive law.  

Also, look for the defendants to ask SCOTN to take a look at this case.  

UPDATE: SCOTN overruled this decision on Jan. 20, 2022, which can be verified at this link: 

http://theduncanlawfirm.blogspot.com/2022/01/tennessee-supreme-court-holds-that.html.

New Health Care Liability Action Opinion: Summary Judgment for Defendant Reversed Because Plaintiff Demonstrated That There Was a Genuine Issue of Material Fact as to the Applicable Standard of Care, Its Breach, and Causation; Intervening and Superseding Cause Does Not Exist at Present

The Tennessee Court of Appeals recently released its decision in Davis v. Ellis, No. W2019-01367-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2020).  The syllabus from the slip opinion reads:

This is a health care liability case. The trial court granted summary judgment in favor of Appellee/doctor finding that Appellant’s expert witness failed to connect the decedent’s death to Appellee’s alleged deviation from the standard of care. We conclude that Appellant presented sufficient evidence, at the summary judgment stage, to create a dispute of fact concerning deviation from the standard of care and causation. Accordingly, we reverse the trial court’s grant of summary judgment. 

Here is a link to the decision:

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

NOTE: This is a must-read opinion for any lawyer who practices in the area of health care liability (f.k.a., medical malpractice) where the case is governed by Tennessee substantive law.  It addresses expert testimony as to the applicable standard of care, causation of injury, and intervening-superseding causes, which makes it a great primer for a new lawyer and a great refresher for the seasoned practitioner.    

New Opinion on the Discovery Rule and Governmental Tort Liability Under Tennessee Substantive Law

Today, the Tennessee Court of Appeals released its decision in Durham v. Estate of Losleben, No. W2019-01623-COA-R3-CV (Tenn. Ct. App. Dec. 8, 2020).  The syllabus from the slip opinion reads:

A Hardin County firefighter and Appellant’s husband died after their vehicles collided. Appellant alleged that the firefighter had negligently caused the accident, and thus filed tort claims against Hardin County under a theory of vicarious liability and Tennessee’s Governmental Tort Liability Act. She filed her claims more than one year after the accident, so the trial court dismissed them as barred by the applicable one-year statute of limitations. She appeals, and we affirm.

Here is a link to the slip opinion:

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

NOTE: Among other things, this opinion explains the discovery rule and how it affects the running of the one-year statute of limitations in tort actions, especially in civil actions under the Tennessee Governmental Tort Act (GTLA).  This decision reaffirms the application of the discovery rule to GTLA cases, but holds that it did not apply under the facts presented herein.  This is a very informative read in my humble opinion.