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Tuesday, March 31, 2015

Tony Duncan Receives Highest Rating Possible from Martindale-Hubbell: AV Preeminent

I am honored and humbled to have recently received the highest rating possible from Martindale-Hubbell, which is an AV Preeminent rating.  Here is a link to my rating page: 

Again, I am honored and humbled.  This is a milestone that I will always cherish.

New Health Care Liability Opinion: Plaintiffs' Failure to File Certificate of Good Faith Leads to a Dismissal of Their Case with Prejudice

The Tennessee Court of Appeals recently issued its opinion in Dennis v. Smith, No. E2014-00636-COA-R3-CV (Tenn. Ct. App. Mar. 31, 2015).  The summary from the opinion states as follows:
Linda Dennis and Creed Dennis [] filed a healthcare liability action against Dr. Robert G. Smith [] and others. Defendant filed a motion to dismiss. After a hearing, the Circuit Court for Knox County [] dismissed Plaintiffs’ claims after finding and holding, inter alia, that Plaintiffs had failed to comply with Tenn. Code Ann. §§ 29-26-121 and 29-26-122. Plaintiffs appeal the dismissal of their claims to this Court. We find and hold that because Plaintiffs failed to comply with Tenn. Code Ann. § 29-26-122, their action was subject to dismissal with prejudice upon motion. We, therefore, affirm the Trial Court’s dismissal of Plaintiffs’ claims.
Here is a link to the opinion:

New Health Care Liability Action Opinion: A Spouse's Loss-of-consortium Claim and Presuit Notice

The Tennessee Court of Appeals recently issued its opinion in Igou v. Vanderbilt Univ., No. M2013-02837-COA-R3-CV (Tenn. Ct. App. Mar. 27, 2015).  This opinion has to do with a spouse's derivative loss-of-consortium claim in conjunction with a health care liability action.  The summary from the opinion states as follows: 
This appeal asks whether a wife‘s loss of consortium claim, brought pursuant to her husband‘s underlying health care liability action, is itself a health care liability action subject to the pre-suit notice provision of the Tennessee Health Care Liability Act. The trial court granted the hospital‘s motion to dismiss, finding that the wife‘s claim was a health care liability action under the Act and that she had failed to comply with the pre-suit notice provision. As an alternative ground for dismissal, the court also found that the wife had failed to file suit within the statute of limitation. We vacate the trial court‘s order of dismissal with prejudice and remand.
Here is a link to the opinion:

Tuesday, March 10, 2015

New Health Care Liability Action Opinion: Foreign Object Case Is a Health Care Liability Action; Not a Case That Can Be Classified as One of Ordinary Negligence as Plaintiff Contends

The Tennessee Court of Appeals issued its opinion today in Smith v. Testerman, No. E2014-00956-COA-R9-CV (Tenn. Ct. App. Mar. 10, 2015).  The opinion has to do with a foreign object, a surgical sponge, left in a wound to help treat a post-surgical infection; it does not deal with a sponge left in during surgery, which is significant in my opinion as to whether a certificate of good faith is required under Tenn. Code Ann. sec. 29-26-122.

The summary from the opinion states as follows:
This is a case alleging negligence by the defendants which resulted in injury to a patient, Dennis Smith. Following hernia surgery, Mr. Smith was fitted for a wound vacuum because an infection had developed at the surgical site. A sponge was placed to absorb the infection.  The defendants removed the wound vacuum when the infection dissipated, but they failed to remove the sponge, which later caused the wound to burst. Mr. Smith filed suit, and the defendants asserted that dismissal was appropriate because Mr. Smith had not complied with the filing requirements of the health care liability statute. Mr. Smith 1 responded that his complaint sounded in ordinary negligence, not health care liability. The trial court agreed and denied the motions but also granted permission for the defendants to pursue an interlocutory appeal. We granted the application for permission to appeal and now reverse the decision of the trial court.
Here is a link to the opinion:

Monday, March 02, 2015

Another 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)?

The Tennessee Court of Appeals issued its opinion recently in S.W. ex rel. Warren v. Baptist Mem'l Hosp., No. W2014-00621-COA-R10-CV (Tenn. Ct. App. Feb. 27, 2015).  It is a companion case to the Dean-Hayslett case that is the subject of my Jan. 20, 2015, which can be viewed a few posts below.

The summary from the majority opinion states as follows:
This is a healthcare liability action. The trial court granted Defendants’ motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f)(1), but set-forth several conditions, including: 1) a court reporter must be present at the ex parte interviews with Plaintiff’s treating healthcare providers and record all questions and answers; 2) all answers during the interviews must be under oath; 3) the interview transcripts shall be filed under seal and with permission of the trial court, and after showing of good cause, Plaintiff may access the transcripts for the purpose of determining whether a violation of privacy under HIPAA occurred during the interviews; and 4) Defendants should not attempt to elicit or discuss protected health information which is not relevant to the issues in this lawsuit. The order also provided “[t]his does not restrict the Defendants or their attorneys from discussing non-substantive matters unrelated to the patient’s protected health information.” The trial court denied Defendants’ joint motion for interlocutory appeal of the order and Defendants filed an application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. We granted the appeal for the sole purpose of determining whether, under section 29-26-121(f), the trial court erred by adding the four conditions noted above to its order. We reverse in part, affirm in part, and remand for further proceedings.
Here is a link to that opinion:

This decision is atypical in that there are two concurring opinions: one by Judge Stafford and the other by Judge Dinkins, to wit: