Search This Blog

Wednesday, January 30, 2019

New Health Care Liability Action Opinion: Plaintiff Allowed to Take a Nonsuit Despite the Fact That a Certificate of Good Faith Was Not Filed with the Complaint

The Tennessee Court of Appeals recently released its opinion in Renner v. Takoma Regional Hospital, No. E2018-00853-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2019).  The syllabus from the slip opinion reads as follows:
This is a health care liability action in which the defendants filed a motion to dismiss based upon the plaintiff’s failure to file a certificate of good faith with the complaint. The plaintiff then filed the required certificate. The defendants responded with motions for summary judgment with attached affidavits, attesting that a certificate of good faith was not attached to the original complaint. The plaintiff moved for voluntary dismissal. The court granted the plaintiff’s motion and filed an order of voluntary dismissal. The defendants appeal, claiming that Rule 41.01 of the Tennessee Rules of Civil Procedure prohibits the taking a voluntary nonsuit when a summary judgment motion is pending. We affirm.
(Footnote omitted.)

Here is a link to the slip opinion: 

NOTE: Some things to take with you after reading this opinion: first, if a motion for summary judgment is not pending, a plaintiff, in a Tennessee state court civil action, has a right to take a nonsuit (a.k.a. a voluntary dismissal without prejudice) without having to file a motion.  Tenn. R. Civ. P. 41.01.  Second, if a motion for summary judgment is pending, a plaintiff may still take a nonsuit with a court's permission.  Stewart v. Univ. of Tenn., 519 S.W.2d 591,593–94 (Tenn. 1974).  

However, if a nonsuit is taken against a governmental entity, suit cannot be refiled under the saving statue because it does not save the action.  That subject is for a post on another day.

Tuesday, January 01, 2019

Comparative Fault: Another New Opinion on Tennessee Code Annotated section 20-1-119

On Dec. 13, 2018, the Tennessee Court of Appeals issued its opinion in Nationwide Mutual Fire Insurance Company v. Memphis Light, Gas and Water, No. W2017-02551-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2018).  The syllabus from the slip opinion states as follows:
Plaintiff/Appellant Nationwide appeals the trial court’s grant of Defendant/Appellee’s motion to dismiss for failure to state a claim for which relief can be granted. Defendant’s motion was based on the argument that Plaintiff’s claim was time-barred pursuant to the Tennessee Governmental Tort Liability Act, and that Tennessee Code Annotated section 20-1-119 did not allow Plaintiff to timely add Defendant to the suit. Because we conclude that the trial court incorrectly applied Tennessee’s comparative fault statute, we reverse.
Here is a link to the slip opinion:

NOTE: This opinion does a good job of analyzing and explaining Tenn. Code Ann. sec. 20-1-119 (our state's comparative fault joinder statute).  I am a little surprised the trial court granted the dismissal as this issue was addressed a few years ago in Queen’s Tree Surgery v. Metropolitan Government of Nashville and Davidson County, No. M2003-00228-COA-R3-CV, 2003 WL 22768689 (Tenn. Ct. App. Nov. 24, 2003).  For what it is worth, I had a similar issue come up a little while back in Scales v. H.G. Hill Realty Co., which is the subject of my Jan. 31, 2018 post:

Trial Court's Dismissal of Case Against Truck Stop Reversed on Appeal Because Trial Court Misapplied Standard of Review in Granting Truck Stop's Motion to Dismiss

On Nov. 5, 2018, the Tennessee Court of Appeals issued its opinion in Mershon v. HPT TA Properties Trust, No. M2018-00315-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2018).  The syllabus from the slip opinion reads as follows:
A motor vehicle accident on the roadway abutting a truck stop resulted in the death of the plaintiff’s husband. The driver of the vehicle turning left into the truck stop was using the entrance meant for semi-trailer trucks and had a limited view of oncoming traffic due to a hill that crested a short distance ahead. The plaintiff filed a negligence claim against the truck stop owners and operators, asserting they created a hazardous condition by failing to place visible signage on their property directing passenger vehicles to the appropriate entrance. The defendants moved to dismiss the complaint, contending they owed no duty to the traveling public because the collision occurred on a municipal road, not on their property. The trial court granted the motion to dismiss, and the plaintiff appealed. We reverse the trial court’s judgment, holding that a balancing test is required to determine whether the defendants owed a duty to the plaintiff’s husband and that dismissing the complaint is premature at this stage of the proceedings.
Here is a link to the slip opinion:

NOTE: This is an excellent opinion that discusses the standard of review to be applied for motions to dismiss and when a duty of care arises.  This is a must-read opinion for attorneys who are interested in these two matters.  

Tennessee's Peer Review Statute Cannot Be Used to Suborn Perjury!

On Dec. 11, 2018, the Tennessee Court of Appeals issued its opinion in Reynolds v. Gray Medical Investors, LLC, No. E2017-02403-COA-R9-CV (Tenn. Ct. App. Dec. 11, 2018).  The syllabus from the slip opinion reads:
We granted the Tenn. R. App. P. 9 application for interlocutory appeal in this case to consider whether a healthcare provider can use Tenn. Code Ann. § 68-11-272, (“the peer review statute”), to claim privilege and exclude evidence that an employee was threatened with dismissal or retaliation if the employee refused to change their story or alter documents in order to cover up possible negligent conduct. We find and hold that the peer review privilege contained within Tenn. Code Ann. § 68-11-272 never was intended to allow a healthcare provider to attempt without fear of adverse consequences to force an employee to commit perjury. We, therefore, reverse the July 31, 2017 order of the Circuit Court for Washington County ... excluding the testimony of defendants’ employee pursuant to the peer review privilege contained in Tenn. Code Ann. § 68-11-272 and remand this case for further proceedings consistent with this Opinion.
Here is a link to the slip opinion: 

NOTE: The defendant herein was attempting to use the peer review statute to suborn perjury; take a minute for that to sink in.  Perjury!  That is why the panel, in construing the peer review statute, wrote: "[I]n no known universe does suborning perjury fit within the General Assembly’s stated purpose of Tenn. Code Ann. § 68-11-272...."  Reynolds, No. E2017-02403-COA-R9-CV, slip op. at 7 (emphasis added).  I am glad the panel did what it did and shut this sort of "argument" down, because what was being attempted was simply beyond the pale.