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Saturday, June 30, 2012

Medical Malpractice: Saving Statute NOT Extended by Presuit Notice Letters

Yesterday, the Western Section of the Tennessee Court of Appeals held that Tennessee's saving statute is not extend by presuit notice letters in medical malpractice cases.  The opinion is Johnson v. Floyd, No. W2012-00207-COA-R3-CV (Tenn. Ct. App. Jun. 29, 2012).  The syllabus of the opinion states as follows:
This case concerns the application of the medical malpractice notice requirement to a lawsuit that was previously nonsuited and then re-filed pursuant to the saving statute. The children of a woman who died due to alleged medical negligence filed suit against the defendant medical providers. The children subsequently nonsuited the lawsuit. Within one-year of the nonsuit, the children sent notice of a potential claim to the medical providers. Within one year and 120 days from the nonsuit, the children re-filed their claim. The medical providers moved to dismiss on the ground that the claim was not filed within the one-year period provided by the saving statute and, as such, was barred by the applicable statute of limitations. The trial court dismissed the action and the children appealed. Concluding that the saving statute, Tennessee Code Annotated Section 28-1-105(a) is not an “applicable statute[] of limitations or repose,” we hold that the saving statute is not extended by compliance with the medical malpractice notice requirement, Tennessee Code Annotated Section 29-26-121(c). Affirmed and remanded.
Here's a link to the opinion:

This opinion is in direct conflict with one issued by the Middle Section of the Tennessee Court of Appeals in Rajvongs v. Wright, No. 2011- 01889-COA-R9-CV (Tenn. Ct. App. Jun.  18, 2012), which held that presuit notice letters did extend the saving statute.  (Rajvong was the subject of my June 21 post, which can be viewed at this link: Tony Duncan Law: Medical Malpractice: Saving Statute Extended by Notice Letters.)

UPDATE: Please see my Feb. 6, 2014 post where the Court of Appeals issued a new opinion in this case upon mandate from the Tennessee Supreme Court.

Thursday, June 28, 2012

Medical Malpractice: Defense Verdict Reversed on Appeal Due to Errors in Trial Court Below

The other day, the Tennessee Court of Appeals for the Eastern Section released its opinion in Mayo v. Shine, No. E2011-01745-COA-R3-CV (Tenn. Ct. App. Jun. 25, 2012).  The opinion is a must-read for all trial lawyers who practice in the area of medical malpractice (plaintiff or defense) because it discusses topics such as opening statements, cross-examining of a defendant, and trial judge conduct. The summary of the opinion reads as follows:
Zona Mayo (“Plaintiff”) sued Donna L. Shine, M.D., Fort Sanders Obstetrical and Gynecological Group, P.C., and Fort Sanders Regional Medical Center (“the Hospital”) alleging medical malpractice in connection with Plaintiff’s birth. After a jury trial, the Trial Court entered judgment on the jury’s verdict finding and holding that neither Dr. Shine nor the Hospital were legally responsible for any harm suffered by Plaintiff. Plaintiff appeals raising issues regarding alleged jury misconduct and alleged errors with regard to admission of evidence, among other things. We find and hold that Plaintiff is entitled to a new trial due to errors in the admission of specific evidence and the improper limitation of Plaintiff’s cross-examination of Dr. Shine, among other things. We vacate the Trial Court’s judgment and remand this case to the Trial Court for a new trial in compliance with this Opinion.
Here's a link to the opinion:

Thursday, June 21, 2012

Medical Malpractice: Saving Statute Extended by Presuit Notice Letters

This week, the Tennessee Court of Appeals (Middle Section) issued an opinion holding that Tennessee's saving statute was extended by the statutorily required notice letters to healthcare providers in medical malpractice cases.  The case is Rajvongs v. Wright, No. M2011-01889-COA-R9-CV (Tenn. Ct. App. Jun.  18, 2012).  The summary from the slip opinion reads as follows:
A patient who alleged that he had been negligently injured by his podiatrist filed a complaint against him for malpractice, and then voluntary dismissed the complaint without prejudice. Less than a year later, he furnished the defendant podiatrist with the sixty day notice of potential claim required by a recently enacted statute, Tenn. Code Ann. § 29-26-121(a). He subsequently refiled his complaint in reliance on his rights under the saving statute, Tenn. Code Ann. § 28-1-105. The defendant filed a motion for summary judgment, arguing that the complaint was time-barred under the saving statute because it was filed more than one year after the dismissal of the original complaint. The plaintiff contended, however, that he was entitled to the benefit of Tenn. Code Ann. § 29-26-121(c), which extends the statute of limitations on medical malpractice claims by 120 days if the plaintiff has complied with the sixty day notice requirement. The defendant responded by arguing that Tenn. Code Ann. § 29-26-121(c) does not apply to complaints filed under the saving statute. The trial court dismissed the defendant’s motion for summary judgment, but allowed him to file an application for interlocutory appeal because of the novelty of the legal question involved.  After careful consideration of the relevant statutes, we hold that Tenn. Code Ann. § 29-26-121(c) does apply to the saving statute, and we affirm.

Here's a link to the opinion:

This is a good case for patients and people in general in Tennessee. Our state has a policy of resolving cases on the merits and not on procedural technicalities, which is only fair.  It's nice to see a trial court and an appellate court step up and do the right thing for the people of Tennessee.