New Health Care Liability Action: Trial Court's Dismissal of Case Upheld on Appeal

The Tennessee Court of Appeals just released its opinion in Parks v. Walker, No. E2017-01603-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2018).  The syllabus from the majority opinion reads as follows:

This is a health care liability action. Plaintiff gave written pre-suit notice of her claim to potential defendants. See Tenn. Code Ann. § 29-26-121(c) (2018). She then filed her complaint. Defendants filed motions to dismiss. After a hearing, the trial court held that plaintiff failed to substantially comply with the requirements of the notice statute by failing to provide a HIPAA-compliant medical authorization, pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E). It entered an order granting defendants’ motions to dismiss. Plaintiff appeals. We affirm.

Here is a link to the majority opinion:

http://www.tncourts.gov/sites/default/files/parks_vs._walker_coa_majority_opinion.pdf

Judge Swiney authored a dissent, which can be found here:

http://www.tncourts.gov/sites/default/files/jennifer_parks_v._walker_dissenting_coa_separate_opinion.pdf

NOTE: Respectfully, I think the majority opinion is in error.  Again it confounds me that the courts of 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 because because doing that is part of a covered entity's "health care operations" as defined by 45 C.F.R. sections 164.501, -502(b), -.514(d).

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. 

Again, I think the dissent is in error for the reasons stated above.  

Here are some helpful links on this subject:

https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/permitted-uses/index.html

http://www.hhs.gov/hipaa/for-professionals/faq/705/may-a-covered-entity-in-a-legal-proceeding-use-protected-health-information/index.html.  

https://www.hhs.gov/hipaa/for-professionals/faq/704/may-a-covered-entity-use-protected-health-information-for-litigation/index.html

https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/disclosures-treatment-payment-health-care-operations/index.html

New Comparative Fault Opinion: Trial Court's Decision to Allow Fault to Be Allocated to an Agritourism Nonparty Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Green v. St. George's Episcopal Church, No. M2017-00413-COA-R3-CV (Tenn. Ct. App. Nov. 16, 2018).  The syllabus from the slip opinion reads as follows:

This appeal arises from a jury verdict in a personal injury action. The defendant alleged the comparative fault of a nonparty who was potentially immune from liability under Tennessee’s agritourism statute. See Tenn. Code Ann. §§ 43-39-101 to -103 (Supp. 2018). Before trial, the defendant asked the court to exclude all evidence and argument before the jury regarding statutory immunity as irrelevant and prejudicial. The court excluded argument and evidence of immunity but allowed the parties to present evidence on whether the nonparty had complied with the statute. At the conclusion of the trial, the court permitted the jury to apportion a percentage of fault to the nonparty without considering the nonparty’s compliance with the agritourism statute. On appeal, the plaintiff argues that the trial court erred in allowing the jury to allocate fault to the nonparty because the agritourism statute provided immunity from fault as well as liability. We conclude that nothing in the agritourism statute precludes the allocation of fault to a nonparty agritourism professional in a negligence action. So we affirm.

Here is a link to the slip opinion: 

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

NOTE: This opinion does a good job of explaining Tennessee's system of modified comparative fault and the allocation of fault under as affected by our agritourism statutes, which grant immunity under certain circumstances.  

Defense Verdict in Second Trial Upheld on Appeal

Yesterday the Tennessee Court of Appeals issued its opinion in Alumbaugh v. Wackenhut Corp., No. M2016-01530-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2018).  The syllabus from the slip opinion reads as follows:

After the plaintiff’s father was killed by an armed security guard, she filed a wrongful death action against the security guard’s employer. The complaint alleged both vicarious and direct liability and sought an award of compensatory and punitive damages. The employer maintained that the guard acted in self-defense. After the first trial, the jury rendered a verdict in favor of the plaintiff. But the trial court ordered a new trial based on errors in the calculation of damages. A second jury verdict apportioned the greater proportion of fault to the decedent, resulting in a defense judgment. On appeal, the plaintiff contends that the trial court made numerous errors in the conduct of the second trial. After a thorough review, we conclude that the trial court did not commit reversible error. So we affirm.

Here is a link to the slip opinion: 

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

NOTE: This opinion offers an interesting analysis of rebuttal evidence, directed verdicts, punitive damages (pre-2011), negligent supervision, amendments to conform to the evidence, and missing evidence and spoliation of evidence.