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Saturday, September 15, 2012

Medical Malpractice & Concurrent Common-law Negligence Claims

The Middle Section of the Tennessee Court of Appeals recently issued its opinion Parker v. Portland Nursing & Nursing Rehab., No. M2011-02633-COA-R9-CV (Tenn. Ct. App. Aug. 30, 2012).  The summary of the opinion states as follows:
In this action, the plaintiff has attempted to assert claims for ordinary negligence and medical malpractice against nursing home defendants by filing two separate actions and then seeking to consolidate the cases or to amend the complaint to assert both types of claims in one case.  The first complaint filed only asserted claims for ordinary negligence against the nursing home defendants. Sixty days after having given the statutory notice to the healthcare providers of her intent to file medical malpractice claims, the plaintiff commenced a separate action against the same nursing home defendants and an additional defendant, a physician who treated the nursing home patient, by filing a complaint for medical malpractice. Upon motions of the nursing home defendants, the trial court refused to consolidate the cases, dismissed the medical malpractice claims against the nursing home defendants upon the ground of a prior suit pending, and denied the plaintiff’s motion to amend the complaint in the first case to add claims for medical malpractice against the nursing home defendants.  Having determined that the plaintiff complied with Tennessee Code Annotated § 29-26-121(a) by giving the requisite 60 days notice to the medical providers and that the statute of limitations had not run, we have concluded that the trial court erred in denying the plaintiff’s Tennessee Rule of Civil Procedure 15.01 motion to amend the complaint. Accordingly, we reverse and remand with instructions to grant the plaintiff’s motion to amend the complaint for ordinary negligence against the nursing home defendants thus allowing the plaintiff to assert medical malpractice claims against the nursing home defendants and for further proceedings consistent with this opinion.
Here's a link to the opinion:

Caveat: As noted in Footnote 4, this opinion only affects claims that accrued before October 1, 2011, which was the effective date of the Tennessee Civil Justice Act of 2011 (which is the furthest thing from justice one could imagine, in my humble opinion).  See T.C.A. § 29-26-101(c) (Westlaw 2012) (making all "health care liability actions" subject to Tennessee's Medical Malpractice Act).  A "health care liability action" is any civil action filed against a "health care provider" who provides "health care services." Id.  

Monday, September 10, 2012

Wednesday, September 05, 2012

Medical Malpractice: New Case on Presuit Notice and Certificates of Good Faith

The Middle Section for the Tennessee Court of Appeals recently issued its opinion in Hinkle v. Kindred Hosp., No. M2010-02499-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2012).  The summary of the opinion is as follows:
The widow of a man who suffered a devastating injury while undergoing a medical procedure in the defendant hospital filed suit against the hospital and the doctor who ordered the procedure, claiming medical malpractice, failure to obtain informed consent, and battery.  The defendant hospital filed a motion for summary judgment, and the defendant doctor filed a motion to dismiss, both arguing that the plaintiff’s malpractice claims had to be dismissed because she failed to strictly comply with requirements of the Medical Malpractice Act, specifically Tenn. Code Ann. § 29-26-121 (a)(1) (60-day notice) and §29-26-122(a) (certificate of good faith). The trial court granted both motions in part and denied them in part. We reverse the trial court’s dismissal of the medical malpractice claims against both defendants as well as the related claims. We also reverse the trial court’s dismissal of the claim against the defendant doctor for failure to obtain the patient’s informed consent, but we affirm its dismissal of the medical battery claim against the defendant doctor.
Here's a link to the majority opinion:

Here's a link to the partial concurrence and dissent by Judge Dinkins: