New Health Care Liability Action Opinion: Trial Court's Exclusion of Plaintiff's Treating Physician as a Causation Expert and Resulting Grant of Summary Judgment to the Defense Reveresed on Appeal

The Tennessee Court of Appeals issued its opinion in Holmes v. Christ Community Health Services, Inc., No. W2016-00207-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2016).  The syllabus from the opinion states as follows:

The plaintiff filed this action alleging medical malpractice against a physician who examined the plaintiff five days after injury to her shoulder, as well as the facility wherein the physician practiced. The plaintiff alleged, inter alia, that the defendant physician failed to properly diagnose a fracture dislocation in her shoulder, causing a delay in appropriate treatment. The plaintiff‘s subsequent treating physician opined in his deposition and via affidavit that if the plaintiff‘s injury had been diagnosed earlier, the plaintiff would likely have avoided an extensive surgical procedure, resultant infection stemming from such surgery, and residual impairment to her shoulder. The trial court excluded this testimony as speculative, granting summary judgment in favor of the defendant physician and hospital. The plaintiff has appealed. We determine that the trial court erred in excluding the causation evidence as speculative. We therefore vacate the court‘s grant of summary judgment in favor of the co-defendants.

Here is a link to the slip opinion:

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

New Health Care Liability Action Opinion: Trial Court's Dismissal Based upon Claim Being Time-barred for Failure to Comply with Onerous Presuit Notice Requirements Upheld on Appeal; Constitutional Challenge of Tenn. Code Ann. sec. 29-26-121 Deemed to Be Without Merit

The Tennessee Court of Appeals recently issued its opinion in J.A.C. ex rel. Lesha Carter v. Methodist Healthcare Memphis Hospitals, No. W2016-00024-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2016).  The syllabus from the opinion states as follows:

In this health care liability action, Defendants moved to dismiss based on the Plaintiffs' failure to provide the Health Insurance Portability and Accountability Act ("HIPAA") medical authorization required by Tennessee Code Annotated section 29-26-121(a)(2)(E). Based on its determination that the Plaintiffs failed to substantially comply with the foregoing statute, the trial court held that the Plaintiffs were not entitled to an extension of the applicable statutes of limitations and repose under Tennessee Code Annotated section 29-26-121(c) and accordingly concluded that the Plaintiffs' claims were time-barred. The trial court also concluded that the Plaintiffs' constitutional challenges to the viability of Tennessee Code Annotated section 29-26-121 were without merit. We affirm and remand for further proceedings consistent with this Opinion.

Here is a link to the slip opinion: http://www.tncourts.gov/sites/default/files/carterleshaopn.pdf

NOTE: I find it interesting that the courts in Tennessee---and many lawyers---have not picked up on the fact that a defendant (or potential defendant) in a health care liability action does not have to have a HIPAA-compliant authorization to share a patient's or plaintiff's protected health information ("PHI") with other defendants and their legal counsel under 45 C.F.R. sections 164.501, -502(b), -.514(d) to investigate potential medical negligence.  See http://www.hhs.gov/hipaa/for-professionals/faq/705/may-a-covered-entity-in-a-legal-proceeding-use-protected-health-information/index.html (last visited Nov. 19, 2016).  As such, dismissal of a health care liability action because a defendant did not get a HIPAA-compliant authorization for a patient's PHI would be improper because Tenn. Code Ann. sec. 29-26-121's requirement that such an authorization be enclosed as part of a claimant's presuit notice appears to be preempted by HIPAA.