Medical Malpractice: Pre-suit Notice Provision Held to Be Constitutional by Tennessee Court of Appeals, Part II

This post should be read in conjunction with my April 17, 2013 post.  The Tennessee Court of Appeals, Western Section, has once again held that Tennessee's statutory pre-suit notice requirement in medical malpractice actions (n.k.a. health care liability actions) is constitutional, inter alia, in Williams v. SMZ Specialists, P.C., No. W2012-00740-COA-R9-CV (Tenn. Ct. App. Apr. 19, 2013). The summary of the opinion states as follows:

This appeal involves a constitutional challenge to T.C.A. § 29-26-121, which requires notice to defendants prior to the commencement of a health care liability lawsuit. The plaintiff filed a lawsuit asserting health care liability against the defendant health care providers within the applicable statute of limitations, but without providing the defendants with prior notice as required under Section 29-26-121. In ruling on the defendants’ motion for summary judgment, the trial court held that Section 29-26-121 conflicted with Rule 3 of the Tennessee Rules of Civil Procedure. On this basis, it held that the statute infringed upon the authority of the judicial branch to enact rules governing the procedures for commencing a lawsuit, and thus violated the separation of powers clause of the Tennessee Constitution. the defendant health care providers were granted permission for this interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. We reverse, holding that pre-lawsuit notice requirement in Section 29-26-121 does not contravene the separation of powers clause of the Tennessee Constitution.

Here's a link to the opinion:

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

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• Age progression technology to demonstrate how a child's injuries will affect him or her in the future (this can be used at mediation or trial);
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• We know the law as it relates to children's personal injury claims and how it affects them.

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Medical Malpractice: Pre-suit Notice Provision Held to Be Constitutional by Tennessee Court of Appeals

The Tennessee Court of Appeals, Western Section, has held that Tennessee's statutory pre-suit notice requirement in medical malpractice actions (n.k.a. health care liability actions) is constitutional, inter alia, in Webb v. Roberson, No. W2012-01230-COA-R9-CV (Tenn. Ct. App. Apr. 17, 2013).  The summary of the opinion states as follows:

In this interlocutory appeal, Plaintiffs challenge the constitutionality of Tennessee Code Annotated section 29-26-121, which requires a medical malpractice claimant to provide certain notice sixty days prior to filing suit. We conclude that Tennessee Code Annotated section 29-26-121 is not an unconstitutional infringement upon the courts’ rule-making authority, that it is not preempted by HIPAA, and that it does not violate the equal protection and due process provisions of state and federal law. Affirmed and Remanded.

Here's a link to the opinion:

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

You can bet that a Tenn. R. App. P. 11 application for permission to appeal will be filed with the Tennessee Supreme Court within sixty days; and that the Court will probably take it up.

A Good Federal Resource: United States Attorneys' Manual

I found this while working on a federal case.  It's a useful tool on the civil and criminal side of the docket in federal courts.  See link below:

http://www.justice.gov/usao/eousa/foia_reading_room/usam/

Plaintiffs' Case Dismissed via Summary Judgment Because Their Expert Did Not Meet the Newly Defined Expert Witness Requirements Announced by the Tennessee Supreme Court in Shipley v. Williams

The Tennessee Court of Appeals, Western Section, just issued its opinion in Mitchell ex rel. Mitchell v. The Jackson Clinic, P.A., No. W2012-00983-COA-R3-CV (Tenn. Ct. App. Apr. 9, 2013).  The summary states as follows:

This is a medical malpractice case. The trial court granted summary judgment to Appellees, the doctors and clinic, on the basis that the Appellants’ only expert witness was not competent to testify pursuant to the Tennessee Medical Malpractice Act, Tennessee Code Annotated Section 29–26–115. Appellants appeal, arguing that the trial court erred in excluding their expert. Under the Tennessee Supreme Court’s holding in Shipley v.Williams, 350 S.W.3d 527 (Tenn. 2011), we affirm the trial court’s exclusion of the expert’s testimony and its grant of summary judgment. Affirmed and remanded.

(Footnote omitted.)

Here's a link to the slip opinion:

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

A HIPAA Resource

I found this will looking on CMS's Web site and thought it would be helpful to share.  See the link below:

http://www.cms.gov/Regulations-and-Guidance/HIPAA-Administrative-Simplification/HIPAAGenInfo/Downloads/HIPAALaw.pdf