Vicki J. Redick (“Plaintiff”) appeals the dismissal with prejudice of her health care liability action against Saint Thomas Midtown Hospital (“the Hospital”) and Jane Doe, an employee of the Hospital. We find and hold that Plaintiff, despite application of the common knowledge exception when appropriate, would be unable to prove her claim without expert proof, and therefore, Plaintiff was required to file a certificate of good faith in compliance with Tenn. Code Ann. § 29-26-122. As Plaintiff failed to file the required certificate of good faith, we find no error in the judgment of the Circuit Court for Davidson County (“the Trial Court”) dismissing Plaintiff‟s case with prejudice for failure to comply with Tenn. Code Ann. § 29-26-122.
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Thursday, October 27, 2016
New Health Care Liability Action Opinion: Common-knowledge Exception Applies to the Breach of Duty But Not to Causation; Trial Court's Dimissal with Prejudice Upheld on Appeal
The Tennessee Court of Appeals recently released its opinion in Redick v. Saint Thomas Midtown Hospital, No. M2016-00428-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2016). The syllabus from the slip opinion states as follows:
Here is a link to the slip opinion: http://www.tncourts.gov/sites/default/files/redickv.j.opn_.pdf
NOTE: In this opinion, the court held that while the common-knowledge exception applied to the breach of duty, Redick v. Saint Thomas Midtown Hospital, No. M2016-00428-COA-R3-CV, slip op. at 8 (Tenn. Ct. App. Oct. 26, 2016), it did not apply to causation, inter alia, because what injuries the plaintiff suffered were not within the common knowledge of laypersons (unlike when a wrong body part is operated on or a foreign object is unintentionally left in a patient's body after surgery), id.
Thursday, October 20, 2016
New Health Care Liability Action Opinion: Trial Court's Dismissal of Refiled Case Overturned on Appeal Due to the Saving Statute
The Tennessee Court of Appeals just issued its opinion in Robinson v. Robbins, No. W2016-00381-COA-R3-CV (Tenn. Ct. App. Oct. 19, 1996). The syllabus from the slip opinion states as follows:
This is a health care liability action. The plaintiffs timely filed suit against the defendant concerning the inadequate care and treatment received by the decedent. After voluntarily dismissing the initial suit, the plaintiffs provided pre-suit notice before filing a second suit pursuant to the saving statute. The defendant moved to dismiss, arguing that the saving statute did not apply because there was no identity of parties between the actions. He explained that the second complaint was filed against him in his individual capacity while the initial complaint was lodged against him in his corporate capacity. The court agreed and held that the second action was barred for failure to file within the applicable statute of limitations. We reverse.
Here is a link to the slip opinion:
Wednesday, October 12, 2016
New Health Care Liability Action Opinion: Another Opinion Acknowledging That a Plaintiff Has the Right to Take a Voluntary Dismissal Without Prejudice Even If a Motion to Dismiss Is Pending
The Tennessee Court of Appeals has issued another opinion concerning a plaintiff's right to take a nonsuit in a health care liability action when a motion to dismiss is pending. The case is Hurley v. Pickens, No. E2015-02089-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2016). The syllabus from the slip opinion states as follows:
Here's a link to the slip opinion:Dallas K. Hurley, Jr. (“Plaintiff”) sued Ryan B. Pickens, M.D. and University Urology, P.C. (“Defendants”) alleging claims for health care liability. Defendants filed a motion to dismiss. While the motion to dismiss was pending, Plaintiff filed a notice of and motion for voluntary dismissal pursuant to Tenn. R. Civ. P. 41. The Circuit Court for Knox County (“the Trial Court”) granted Plaintiff a voluntary dismissal without prejudice. Defendants appeal to this Court raising issues regarding whether Plaintiff had the right to take a voluntary dismissal without prejudice when a motion to dismiss was pending and whether Plaintiff failed to comply with Tenn. Code Ann. § 29-26-122 requiring dismissal of Plaintiff’s suit with prejudice. We find and hold that Plaintiff had the right to take a voluntary dismissal even while a motion to dismiss was pending. Our resolution of this issue renders Defendants’ second issue moot. We, therefore, affirm the Trial Court’s order granting Plaintiff a voluntary dismissal.
New Health Care Liability Action Opinion: Plaintiff Allowed to Take a Voluntary Dismissal Without Prejudice Despite Pending Motion to Dismiss
Recently the Tennessee Court of Appeals issued its opinion in Clark v. Werther, No. M2014-00844-COA-R3-CV (Tenn. Ct. App. Sept. 27, 2016). The syllabus from the slip opinion states as follows:
Here's a link to the slip opinion:The plaintiff, acting pro se, filed a complaint in this health care liability action without attaching a certificate of good faith. Several defendants filed motions to dismiss based on the missing certificate. The plaintiff responded to the motions and filed a notice of voluntary nonsuit. Some of the defendants objected to the voluntary dismissal, arguing the complaint should be dismissed with prejudice. The trial court dismissed the plaintiff‟s claims against the non-objecting defendants without prejudice but dismissed the plaintiff‟s claims against the objecting defendants with prejudice. The plaintiff appealed all of the court‟s dismissal orders on numerous grounds. Upon review, we conclude that Rule 41.01 of the Tennessee Rules of Civil Procedure afforded the plaintiff the right to a voluntary dismissal without prejudice as to all defendants. Accordingly, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.