Another Health Care Liability Action Opinion Holding 120-day Extension to Statute of Limitations Applies to Governmental Entities

The Tennessee Court of Appeals recently released its opinion in Wade v. Jackson-Madison Cnty. Gen. Hosp. Dist., No. W2014-01103-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2015).  This opinion held that a plaintiff gets the benefit of the 120-day extension of the statute of limitations (provider proper presuit notice letters are delivered, of course) when the defendant is a governmental entity.  

The summary of the opinion states as follows:

The trial court granted summary judgment to the defendant medical providers on the basis that the plaintiffs’ health care liability complaint was filed after the expiration of the Governmental Tort Liability Act statute of limitations. Because we conclude that, under Tennessee Code Annotated Section 29-26-121(c), plaintiffs were entitled to a 120-day extension on the applicable statute of limitations, we reverse and remand.

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/wadeeropn.pdf

NOTE: This post should be read in conjunction with my Nov. 03, 2014 post, which is at the following link:

http://theduncanlawfirm.blogspot.com/2014/11/new-health-care-liability-opinion-120.html

Further, all three sections of the Tennessee Court of Appeals have held that the 120-day extension applies to governmental entities if proper presuit notice is sent out.  Wade, supra, is from the Western Section.  Harper, which is the subject of my Nov. 3 post, is from the Eastern Section.  (A Tenn. R. App. P. 11 was filed in late Dec. 2014.) And the Middle Section has held similarly in Banks v. Bordeaux Long Term Care, Nos. M2013-01775-COA-R3-CV & M2014-00119-COA-R9-CV (Tenn. Ct. App. Dec. 4, 2014), app. for perm. app. filed, (No. M2013-01775-SC-R11-CV, Dec. 26, 2014).

As you can discern, if the Tennessee Supreme Court accepts the application in either Harper or Banks, these decisions may be reversed.  However, if an application is denied in either case and the case ends up being reported, it will be controlling authority for all purposes under Tennessee Supreme Court Rule 4(G).  Stay tuned.

New Tennessee Supreme Court Opinion on Presuit Notice in Health Care Liability Actions: Presuit Notice Must Be Sent Prior to Case Being Refiled under the Saving Statute; Case Dismissed Without Prejudice

The Tennessee Supreme Court issued its opinion today in Foster v. Chiles, No. E2012-01780-SC-R11-CV (Tenn. Jan. 27, 2015).  The court held that presuit notices must be sent prior to a case being refiled under the saving statute and dismissed the case without prejudice. Justice Wade dissented.  

Here is the summary from the majority opinion:

This appeal presents two issues for review: 1) whether a person asserting a health care liability claim must give written notice of the claim to all potential health care defendants before re-filing a complaint, or whether notice given before filing the first complaint is sufficient notice for a subsequently filed complaint against the same defendants; and 2) if pre-suit notice is required for each complaint, whether the sanction for noncompliance is a dismissal with or without prejudice. The plaintiffs, before filing their health care liability complaint, gave the defendants written notice under Tenn. Code Ann. § 29-26-121(a)(1). Thereafter, the plaintiffs voluntarily dismissed their complaint. The plaintiffs re-filed their complaint but did not provide the defendants with notice before the re-filing. The trial court dismissed the complaint with prejudice for failure to comply with the notice requirement of Tenn. Code Ann. § 29-26-121(a)(1). The Court of Appeals reversed, holding that the plaintiffs had to give pre-suit notice only once and that pre-suit notice for the first complaint was sufficient for any subsequently filed complaints asserting the same claims against the same defendants. We hold that Tenn. Code Ann. § 29-26-121(a)(1) requires that plaintiffs notify prospective defendants of a forthcoming health care liability lawsuit before the filing of each complaint. The sanction for failure to comply with Tenn. Code Ann. § 29-26-121(a)(1) is a dismissal without prejudice.

Here is a link to the majority opinion and Justice Wade's dissent, respectively:

http://www.tncourts.gov/sites/default/files/fostersamuel.opn_2.pdf

http://www.tncourts.gov/sites/default/files/fostersamueldis.opn_.pdf

The opinion from the Tennessee Court of Appeals can be found at my October 12, 2013 post on this blog.

New Health Care Liability Action Opinion: What Limits May a Trial Court Place upon a Defendant's Ex Parte Contact with a Plaintiff's Treating Physicians under Tenn. Code Ann. sec. 29-26-121(f)? Limits by Trial in This Case Disallowed.

Today the Tennessee Court of Appeals issued its opinion in Dean-Hayslett v. Methodist Healthcare, No. W2014-00625-COA-R10-CV (Tenn. Ct. App. Jan. 20, 2015).  This opinion deals with qualified protective orders allowing ex parte contact with a Plaintiff's treating physicians under Tenn. Code Ann. sec. 29-26-121(f). 

The majority opinion summary states as follows:

This is a healthcare liability action. The trial court granted Defendants’ joint motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f)(1), but added several conditions not specifically provided in the statute. The trial court denied Defendants’ joint motion for permission to seek an interlocutory appeal, and we granted Defendants’ motion for an extraordinary appeal to this Court under Rule 10 of the Tennessee Rules of Appellate Procedure.  We reverse in part, affirm in part, and remand for further proceedings.

Here are links to the majority opinion and Judge Stafford's concurring-in-results-only opinion:

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

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

NOTE: It is important to keep on mind that this is an interlocutory appeal under Rule 10 of the Tennessee Rules of Appellate Procedure where the the focus is upon what restrictions a trial court can place upon a qualified protective order under -121(f); that is it.  Per this opinion, a trial court may not require that the interviewed providers respond under oath; that a court reporter be present; or that the recorded interviews be filed under seal.

Further, Judge Stafford's concurring opinion foreshadows an effective constitutional challenge to -121(f).  While it doesn't mention it per se, I think it lends a lot of credibility to a separation-of-powers challenge.

Lastly, this opinion is the first Tennessee state-court appellate opinion that I am aware of that directly addresses -121(f).

New Health Care Liability Action Opinion: Must an Expert Nurse Be Compensated During Prior Employment as a Nurse to Render an Opinion

On January 13, 2014, the Tennessee Court of Appeals rendered its opinion in Adkins v. Associates of the Mem'l/ Mission Outpatient Surgery Ctr., LLC, No. E2014-00790-COA-R3-CV (Tenn. Ct. App. Jan. 13, 2014).  The opinion dealt with whether a nurse had to be compensated for her prior work as a nurse to be qualified to render expert opinion testimony in a health care liability action.

The summary of the opinion states as follows:

This is a health care liability action in which Defendant sought summary[] judgment, claiming that Plaintiffs’ expert was not qualified to render an expert opinion because she was not practicing in her field during the year preceding the date of the injury. The trial court agreed and dismissed the action. Plaintiffs appeal. We reverse the decision of the trial court.

(Footnote omitted.)

Here is a link to the opinion:

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

New Health Care Liability Action Opinion: Effect of a Plaintiff's Waiver of a Defendant Having to File a Certificate of Good Faith When That Defendant Alleges Fault Against a Nonparty That Is Sued Based upon Defendant's Allegation of Fault

On December 30, 2014, the Tennessee Court of Appeals issued its opinion in Sirbaugh v. Vanderbilt Univ., No. M2014-00153-COA-R9-CV (Tenn. Ct. App. Dec. 30, 2014).  This opinion has to do with the effect of a waiver by the plaintiff of the defendant having to file a certificate of good faith when the defendant alleges fault against a nonparty health care provider.  

The summary from the opinion states as follows:

The plaintiff in this interlocutory appeal filed a complaint asserting health care liability claims against the original defendants, at which time she included a certificate of good faith in accordance with Tennessee Code Annotated section 29-26-122. The original defendants asserted comparative fault against non-party health care providers. The plaintiff waived compliance by the original defendants with section 29-26-122(b), which required the defendants to file a certificate of good faith regarding the non-party health care providers.  The plaintiff thereafter amended her complaint to add the named non-party health care providers as new defendants but did not file a new certificate of good faith. The new defendants moved to dismiss the amended complaint. The trial court denied the motions and granted this interlocutory appeal. We reverse.

Here's a link to the opinion:

http://www.tncourts.gov/sites/default/files/sirbaughs.opn_.pdf

New Health Care Liability Action Opinion: Expert Need Not Phrase Opinion in Perfect Legalese to Create Question of Fact for the Jury to Decide

The Tennessee Court of Appeals released its opinion in Dickson v. Kriger, No. W2013-02830-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2014) in late December 2014.  This is an important opinion in that it holds that an expert need not use perfect legalese or "magic words" to be qualified to give opinions on the standard of care and causation in a health care liability action, which creates questions of fact for the jury to decide.  As such, the Tennessee Court of Appeals reversed a directed verdict in favor of the defense.

The summary from the opinion states as follows:

Patient brought a health care liability action against his eye surgeon, alleging that the surgeon’s negligence in performing a LASIK procedure resulted in several eye injuries. The trial court granted a directed verdict for the surgeon, finding the patient failed to present evidence establishing the standard of care and causation. Because we find the evidence was sufficient to create an issue for the jury, we reverse and remand to the trial court.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/dicksonleonopn_0.pdf

New Health Care Liability Action Opinion: HIPAA Authorizations & Presuit Notice of Claim

The Eastern Section of the Tennessee Court of Appeals released its opinion on December 15, 2014, in Hamilton v. Abercrombie Radiological Consultants, Inc., No. E2014-00433-COA-R3-CV (Tenn. Ct. App. Dec. 15, 2014).  The summary from the opinion states as follows:

This is a health care liability action, arising from the death of Decedent, David Hamilton. Decedent’s surviving spouse, Donna Hamilton (Appellant), filed this action against Appellees, Abercrombie Radiological Consultants, Inc. and Dr. Donna K. Culhane.  Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated Section 29-26-121 et seq. Specifically, the Appellees challenged whether the medical release provided with the pre-suit notice letter was compliant with the Health Information Portability and Accountability Act (“HIPAA”). The trial court agreed with Appellees and dismissed the action with prejudice. Appellant timely appealed. We reverse and remand the matter to the trial court.

Here is a link to the opinion:

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

I've Been Away for Some Time But I Am Back Now

To my readers:

Sorry I haven't posted in a while.  Some things arose at the end of 2014 that could not be avoided and I had to tend to them.  I'm wrapping matters up now and will start posting again today.

Thanks for reading.

Tony