Search This Blog

Thursday, December 27, 2012

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:

Tuesday, December 18, 2012

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:

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:

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.  

Wednesday, December 12, 2012

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).