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Wednesday, April 30, 2014

New Medical Malpractice Opinion on Presuit Notice to the State of Tennessee

The Tennessee Court of Appeals just released its opinion in Brown v. Samples, No. E2013-00799-COA-R9-CV (Tenn. Ct. App. Apr. 29, 2014).  The summary states as follows:
This is a medical malpractice action brought against the State of Tennessee and others. The issue as to the appealing State is whether the plaintiffs complied with the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121 (2012 & Supp. 2013). The State argues that the plaintiffs were required to send the pre-suit notice applicable to their claim against the State to either (1) the Attorney General of Tennessee or an Assistant Attorney General, or (2) the Division of Claims Administration of the State. The Tennessee Claims Commission denied the State’s motion to dismiss, finding (1) no statutory authority requiring that pre-suit notice as to the State be served upon one of the parties alluded to by the State, and (2) that the State received adequate pre-suit notice in this case. We affirm and hold that the plaintiffs complied with Section 121’s pre-suit notice requirements by providing notice to the University of Tennessee Graduate School of Medicine, a health care provider, which entity is a division of an agency of the State of Tennessee and also a named defendant in this case. 
Here is a link to the opinion:

NOTE: Please note that this case was filed before the statutory name change (from medical malpractice actions to health care liability actions), which is noted in footnote 1 of this opinion.

Thursday, April 24, 2014

New Tennessee Supreme Court Opinion on Substantial Compliance as It Relates to the Filing of Affidavits Demonstrating Presuit Notice in a Health Care Liability Action

The Tennessee Supreme Court just released its opinion in Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLLC, No. M2012-02270-SC-R11-CV (Tenn. Apr. 24, 2014).  The summary from the opinion states as follows:
Sixty days prior to filing his complaint, the plaintiff in this health care liability action sent written notice of his potential claim to each of the health care providers that would be named as defendants. Tenn. Code Ann. § 29-26-121(a)(1) (2012 & Supp. 2013). The plaintiff served the pre-suit notice by certified mail, return receipt requested, as permitted by statute.  Id. § 29-26-121(a)(3)(B). In his subsequent complaint, the plaintiff alleged that he had complied with the statutory requirement of pre-suit notice, id. § 29-26-121(b), but the plaintiff failed to file with the complaint “an affidavit of the party mailing the [pre-suit] notice establishing that the specified notice was timely mailed by certified mail, return receipt requested,” id. § 29-26-121(a)(4). The defendants moved for dismissal of the lawsuit, citing the plaintiff’s failure to file with the complaint an affidavit of the person who had sent the pre-suit notice by certified mail. The defendants did not allege that the lack of the affidavit resulted in prejudice. Instead, the defendants contended that the pre-suit notice statute demands strict compliance with all its requirements and that dismissal is the mandatory remedy for noncompliance. The trial court “reluctantly” agreed with the defendants and dismissed the complaint. The Court of Appeals affirmed but noted the “harsh results” strict compliance produces in cases, such as this one, where no prejudice is alleged. We granted the plaintiff’s application for permission to appeal. We hold that the statutory requirement of an affidavit of the person who sent pre-suit notice by certified mail may be satisfied by substantial compliance. We also hold that the plaintiff substantially complied with the statute. Accordingly, the judgment of the Court of Appeals affirming the trial court’s dismissal of the complaint is reversed; the complaint is reinstated; and this matter is remanded to the trial court for further proceedings.
Here is a link to the opinion:

Trial Court Ruling Allowing Plaintiff to File an Amended Certificate of Good Faith and Denying Defense Motion to Dismiss Upheld on Appeal

The Court of Appeals recently released its opinion in Stovall v. UHS of Lakeside, LLC, No. W2013-01504-COA-R9-CV (Tenn. Ct. App. Apr. 22, 2014).  The summary of the opinion states as follows:
Appellant medical providers appeal the trial court’s denial of their motions to dismiss a medical malpractice complaint for failure to strictly comply with Tennessee Code Annotated Section 29-26-122(d)(4). Because we conclude that the trial court had good cause to grant an extension, within which to file a certificate of good faith, we affirm the decision of the trial court. 
Here's a link to the opinion:

Thursday, April 10, 2014

Health Care Liability Action: Court Reiterates That Statute of Repose Bars a Minor's Claim After Three Years; No Tolling Due to Minority in Such Cases

The Tennessee Court of Appeals just released its opinion in Bentley v. Wellmont Health Sys., No. E2013-01956-COA-R3-CV (Tenn. Ct. App. Apr. 10, 2014).  The summary from the opinion states as follows:
This is a health care liability action in which Defendants sought dismissal, claiming that the action was barred by the three-year statute of repose, codified at Tennessee Code Annotated section 29-26-116, as interpreted by Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005). Plaintiff alleged that the Court’s interpretation of the statute was unconstitutional as applied to his case. The trial court disagreed and dismissed the case. Plaintiff appeals. We affirm the decision of the trial court.
Here's a link to the opinion:

Video: Deposing Experts with Daubert in Mind

Here is a video from the ABA that I found informative on deposing expert witnesses.  It is available at the link below: