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Tuesday, November 29, 2022

New Health Care Liability Action: Dismissal of Complaint Against Hospital Upheld on Appeal Because Case Was a "Health Care Liability Action" (HCLA) as Defined by Tennessee Law and the Requirements for Filing a HCLA Were Not Met by Plaintiffs

The Tennessee Court of Appeals released its decision in Forsythe v. Jackson Madison Cnty. Gen. Hosp. Dist., No. W2021-01228-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2022). The syllabus from the opinion reads:

The trial court granted the defendant medical providers summary judgment on the basis of the plaintiff’s failure to comply with the Tennessee Health Care Liability Act’s pre-suit notice and good faith certificate requirements. On appeal, the plaintiff, an employee of the defendants, argues that her claim does not relate to the provision of health care services and that she was therefore not required to give pre-suit notice or file a good faith certificate. Because we conclude that the trial court did not err in determining that the claim is related to the provision of health care services, we affirm.

Here is a link to the slip opinion: 

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

NOTE: This decision demonstrates how broad the definition of a "health care liability action" (HCLA) can be under Tenn. Code Ann. sec. 29-26-101(a)(1). When it doubt, treat these iffy cases like they are HCLAs—just to be safe.  

Tuesday, November 01, 2022

New Health Care Liability Action Opinion: Dismissal of Complaint Upheld on Appeal Because Proper Action Was Not Taken Before Statute of Limitations Expired

The Tennessee Court of Appeals has released its opinion in Jackson v. Vanderbilt University Medical Center, No. M2022-00476-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2022). The syllabus form the slip opinion reads: 
Patient, by next of kin, sued hospital alleging negligence during his treatment. Trial court granted hospital’s motion to dismiss based on patient’s failure to file the complaint prior to the expiration of the statute of limitations. Patient appealed the dismissal. Because the trial court correctly determined that the statute of limitations commenced running when the patient was discharged, we affirm.
Here is a link to the opinion: 


NOTE: This case reminds us of what needs to be done to ensure that a health care liability action is timely filed. 

Tuesday, October 25, 2022

New Health Care Liability Action Opinion: Summary Judgment for Defense Upheld on Appeal Because Plaintiff's Expert Was Not Qualified to Render an Opinion under the Locality Rule

The Tennessee Court of Appeals has issued its opinion in Jackson v. Thibault, No. E2021-00988-COA-R3-CV (Tenn. Ct. App. Oct. 25, 2022). The syllabus from the slip opinion reads:
Plaintiff appeals the trial court’s decision to exclude her proffered expert for failing to comply with the locality rule expressed in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). Plaintiff also appeals the trial court’s decision to grant the defendants’ motion for summary judgment. Discerning no abuse of discretion, we affirm the decision of the trial court to exclude the expert. Additionally, we affirm the grant of summary judgment to defendants. 

Here is the link to the opinion:


NOTE: This case offers a good discussion of what it takes for an expert to be able to render an opinion in a health care liability action and the current state of summary judgment practice. 

Friday, October 21, 2022

New Health Care Liability Action Opinion: Summary Judgment for Physician Upheld on Appeal Due to Her Being an Employee of the University of Tennessee and Immune from Suit

The Tennessee Court of Appeals has released its opinion in Parker ex rel. Parker v. Dassow, No. E2021-01402-COA-R3-CV (Tenn. Ct. App. Oct. 20, 2022). The syllabus from the opinion reads:

This appeal involves a healthcare liability action. The plaintiff sued a physician who had interpreted the results of her fetal ultrasound. The physician was employed by a Tennessee state university as a professor. Her job duties included both educational responsibilities and clinical care to patients in the residency clinics. The trial court granted summary judgment in favor of the physician, finding that she had received no personal gain by her act of interpreting the ultrasound. Therefore, the physician possessed absolute immunity under the Tennessee Claims Commission Act for her actions within the scope of her state employment. Discerning no error, we affirm.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/alexandrea_parker_v_jeanie_d._dassow_m.d..pdf.

NOTE: This opinion offers a great discussion of Tennessee's current summary judgment standard and physician immunity in a health care liability action (née medical malpractice case) when the physician is a state employee only not acting for personal gain. 

Saturday, October 08, 2022

New Health Care Liability Action Opinion: Summary Judgment for Hospital that Was a Governmental Entity Upheld on Appeal Because It Could Not Be Held Vicariously Liable for the Negligence of Nonemployee Physicians

The Tennessee Court of Appeals released its opinion Howell v. Chattanooga-Hamilton County Hospital Authority, No. E2021-01197-COA-R3-CV (Tenn. Ct. App. Oct. 7, 2022). The syllabus from the slip opinion reads: 

This appeal involves a healthcare liability action. The plaintiffs filed suit against the defendant hospital, which is a governmental entity, alleging negligence by physicians practicing medicine within the hospital emergency department. The supervising physician was not an employee of the defendant hospital but an employee of a company contracting with the defendant hospital. The medical resident physician and medical student treating the patient in the emergency department also were not employees of the defendant hospital. During summary judgment proceedings, the plaintiffs presented no evidence of direct liability by the defendant hospital or of negligence by the nursing staff at the defendant hospital. Plaintiffs presented such evidence only as to physicians not directly employed by the defendant hospital. Determining that the physicians were not employees of the defendant hospital, the trial court held that the defendant hospital could not be held vicariously liable for the actions of these non-employee physicians under the Governmental Tort Liability Act []. As such, the trial court granted summary judgment in favor of the defendant hospital. Discerning no error, we affirm.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/jefferson_howell_v._chattanooga_hamilton_county_hospital.pdf.

NOTE: The bottom line from this opinion is this: a hospital cannot be held vicariously liable for the actions of nonemployee physicians under the Governmental Tort Liability Act.

Sunday, September 18, 2022

Summary Judgment for a Defendant Upheld on Appeal: Trial Court Found that Movant Did Not Owe a Duty of Care to Injured Plaintiff

The Tennessee Court of Appeals has released its opinion in Lynch v. Poe, No. M2021-00867-COA-R3-CV (Tenn. Ct. App. Sept. 9, 2022). The syllabus form the slip opinion reads:
This is a multi-party premises liability and general negligence action among a roofer who fell from the homeowner’s roof, the homeowner who erected the scaffolding at issue, and the scaffolding company that rented the scaffolding to the homeowner, but did not erect the scaffolding. The complaint alleged that the roofer slipped and fell on the roof and then bounced over to the scaffolding before falling to the ground. The complaint also alleged that had a safety rail been installed on the scaffolding it could have prevented the roofer’s fall. The homeowner filed an answer denying liability and alleging comparative fault against the scaffolding company. Consequently, the roofer filed an amended complaint adding the scaffolding company as a codefendant. After discovery, the scaffolding company filed a motion for summary judgment, alleging that it owed no duty to the roofer or the homeowner because it had no control over the premises nor actual or constructive notice of a dangerous condition on the premises. The roofer and homeowner opposed the motion contending, inter alia, that this is a case of general negligence against the scaffolding company because the homeowner relied on the scaffolding company for guidance during the installation process and the scaffolding company assumed the duty of care to ensure the scaffold was installed safely. They also contend that summary judgment was not appropriate because material facts are in dispute. The trial court summarily dismissed all claims against the scaffolding company, and this appeal followed. We find that the material facts are not in dispute and that the scaffolding company was entitled to summary judgment as a matter of law on claims sounding in premises liability and general negligence. Thus, we affirm the summary dismissal of all claims against the scaffolding company.
Here is a link to the opinion:


NOTE: This opinion offers an excellent discussion of the current state of the law on summary judgment procedure and of the elements of a premises liability and a general negligence. For the practitioner whose case involves any of these matters this is a must-read decision in my humble opinion. 

Monday, August 29, 2022

New Health Care Liability Action Opinion: Trial Court's Denial of Defense's Motion to Dismiss Based on a Finding of "Excusable Neglect" Reversed on Appeal

The Tennessee Court of Appeals has released its opinion in Moxley v. Amisub SFH, Inc., No. W2021-01422-COA-R9-CV (Tenn. Ct. App. Aug. 29, 2022). The syllabus reads:

In this interlocutory appeal of a health care liability action, the only issue for review is whether the trial court erred in denying the defendants’ motions to dismiss based on its finding that “extraordinary cause” existed to excuse the plaintiff’s failure to comply with the statutory pre-suit notice requirem)nts. For the following reasons, we reverse and remand for further proceedings.

Here is a link to the slip opinion: 

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

NOTE: This is opinion is a reminder of how unforgiving Tennessee law is concerning presuit notices. Read it as a cautionary tale. (I still think the "health care operations" exception may provide some relief to the plaintiff herein, to wit: http://theduncanlawfirm.blogspot.com/2018/07/new-health-care-liability-action.html.)