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Wednesday, November 27, 2013

Tony Duncan Named a 2013 Mid-South Super Lawyer

For the third year in a row, I have been named a Mid-South Super Lawyer.  I am on page 38 of the link below:

I am humbled that I have been selected again.  It is truly an honor.

Monday, November 25, 2013

New Tennessee Supreme Court Case on Presuit Notices in a Health Care Liability Action

The Tennessee Supreme Court just issued its opinion in Stevens ex rel. Stevens v. Hickman Community Health Care Servs., Inc., No. M2012-00582-SC-S09-CV (Tenn. Nov. 25, 2013).  The summary from the opinion states as follows:
More than sixty days before filing suit, the plaintiff gave written notice to the potential defendants of her healthcare liability claim against them. Tenn. Code Ann. § 29-26-121(a)(2)(E) (2012) requires that a plaintiff’s pre-suit notice include a HIPAA compliant medical authorization that permits the healthcare provider receiving the notice to obtain complete medical records from every other provider that is being sent a notice. Contrary to the statute, the plaintiff provided a non-HIPAA compliant medical authorization that only permitted the release of medical records to plaintiff’s counsel. After the plaintiff filed suit, the defendants moved to dismiss the complaint based on noncompliance with Tenn. Code Ann. § 29-26-121(a)(2)(E). The trial court denied the motion, ruling that plaintiff’s noncompliance was excused by extraordinary cause. We hold that the plaintiff was required to substantially comply with Tenn. Code Ann. § 29-26-121(a)(2)(E) and failed to do so, and that her failure to comply is not excused by extraordinary cause. We dismiss the plaintiff’s case without prejudice.
Here's a link to majority opinion:

Justices Wade and Holder issued a separate partial concurrence and dissent.  That opinion is here:

Saturday, November 23, 2013

Medical Malpractice Case: Another Case Dismissed for Failure to Comply with New Filing Requirements, Etc.

The Tennessee Court of Appeals recently released its opinion in Hailey v. Wesley of the South, Inc., No. W2012-01629-COA-R3-CV (Tenn. Ct. App. Nov. 19, 2013).  The summary of the opinion states as follows:
Plaintiff’s Complaint was dismissed for failure to comply with the requirements of the Medical Malpractice Act. The trial court denied Plaintiff’s second Motion to Alter or Amend, and Plaintiff appealed to this Court. We dismissed the appeal for lack of subject matter jurisdiction due to Plaintiff’s failure to timely file an appropriate notice of appeal.  Plaintiff then filed a third Motion to Alter or Amend in the trial court, which the trial court dismissed for lack of subject matter jurisdiction. Plaintiff filed a second appeal to this Court.  We dismiss the appeal for lack of subject matter jurisdiction.
Here's a link to the opinion:

This case also stresses the importance of appellate practice.

Federal Rule of Civil Procedure 45 Changes December 1, 2013

Tuesday, November 19, 2013

Health Care Liability Action (f.k.a. Medical Malpractice Action): New Opinion on Contiguous State Rule

The Tennessee Court of Appeals just released its opinion in Gilbert v. Wessels, No. E2013-00255-COA-R10-CV (Tenn. Ct. App. Nov. 18, 2013).  Here is the summary from the opinion:
This Court granted an extraordinary appeal in this health care liability action to determine whether the trial court abused its discretion in declining to waive the contiguous state requirement for a testifying expert witness set forth in Tennessee Code Annotated §29-26-115(b). Discerning no error, we affirm.
Here's a link to the opinion:

Tuesday, November 05, 2013

New Medical Malpractice Opinion on Presuit Notices

The Tennessee Court of Appeals just released its opinion in Shockley v. Mental Health Coop., Inc., No. M2013-00494-COA-R3-CV (Tenn. Ct. App. Nov. 4, 2013).  The summary from the opinion reads as follows:
The trial court dismissed Appellant’s medical malpractice and wrongful death case for failure to comply with the pre-suit notice requirement found in Tennessee Code Annotated Section 29-26-121(a). Appellant’s pre-suit notice contained a misnomer, naming the Appellee’s fundraising entity, rather than Appellee, as the proper defendant. The trial court determined that under the Tennessee Supreme Court’s holding in Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012), substantial compliance was not effective to satisfy the statutory requirement for pre-suit notice. Furthermore, because the type of notice required under Section 29-26-121 precedes the filing of the lawsuit, it is not the same type of notice as required for correction of misnomers in pleadings under Tennessee Rule of Civil Procedure 15.03; thus, this rule will not operate to cure the misnomer in the pre-suit notice. Because the Appellant failed to show extraordinary cause for failure to comply with the pre-suit notice, we affirm the trial court’s order dismissing this matter. Affirmed and remanded.
Here's a link to the opinion: