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Saturday, August 31, 2019

New Case on Service of Leading Process, Dismissals Without Prejudice, and the Saving Statute

The Tennessee Court of Appeals recently issued its opinion in Villalba v. McCown, No. E2018-01433-COA-R3-CV (Tenn. Ct. App. 2019).  Here is the syllabus from the slip opinion:
In this personal injury action arising from an automobile accident, the trial court granted summary judgment in favor of the defendant upon finding that the plaintiffs had failed to demonstrate service of process in the originally filed action, which had been dismissed, such that the plaintiffs’ refiled action was barred by the applicable statute of limitations. The plaintiffs have appealed. Having determined that, pursuant to the version of Tennessee Rule of Civil Procedure 4.04(11) in effect at the time that the initial complaint was filed, the plaintiffs demonstrated valid service of process of the initial complaint, we reverse the grant of summary judgment to the defendant and grant partial summary judgment to the plaintiffs concerning the affirmative defenses of ineffective service of process and expiration of the statute of limitations. We remand this action for further proceedings consistent with this opinion.
Here is a link to the opinion:

NOTE: This is a must-read opinion for any lawyer who practices in Tennessee state courts.  And if you’re a Civ. Pro. junkie like I am, this case is just for you!  It has it all: service of leading process, return of service, dismissals without prejudice, and refiling under our saving statute.  Good stuff!

Also, I’m glad that Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013) helped in this case.  That is a case that the plaintiff’s counsel allowed me to assist on the appeal—and we won!  After all, cases in Tennessee are supposed to be determined upon their merits and not upon procedural technicalities.  

Sunday, August 25, 2019

New Health Care Liability Action Opinion: Dismissal of Plaintiff's Case Reversed on Appeal

The Tennessee Court of Appeals recently issued its decision in Short ex rel. Short v. Metro Knoxville HMA, LLC, No. E2018-02292-COA-R3-CV (Tenn. Ct. App. Aug. 23, 2019).  The syllabus from the slip opinion reads as follows:
This appeal concerns healthcare liability. Carl Short (“Plaintiff”), widower of Allison Short (“Decedent”), filed suit in the Circuit Court for Knox County (“the Trial Court”) alleging negligence in his late wife’s medical treatment against a number of physicians (“Physician Defendants”) and Turkey Creek Medical Center (“the Hospital”) (“Defendants,” collectively). Defendants moved to dismiss on the basis of noncompliance with Tenn. Code Ann. § 29-26-121(a)(2)(E), which requires that pre-suit notice include a HIPAA compliant medical authorization allowing the healthcare provider receiving the notice to obtain complete medical records from every other provider that is sent a notice.1 Plaintiff’s authorizations allowed each provider to disclose complete medical records to each named provider although it did not state specifically that each provider could request records from the other. The Trial Court held that Plaintiff’s authorizations failed to substantially comply with the statute’s requirements because of this failure to explicitly allow each provider to obtain records. Plaintiff appeals. We hold that Plaintiff’s method of permitting Defendants access to Decedent’s medical records substantially complied with Tenn. Code Ann. § 29-26-121(a)(2)(E). We reverse the judgment of the Trial Court.
Here is a link to the majority opinion:

Here is a link to the dissent:

NOTE: Look for the defendants to seek further review by the Tennessee Supreme Court via Rule 11 of the Tennessee Rules of Appellate Procedure.  Also, as I have noted in previous posts, a healthcare provider does not need a HIPAA-compliant medical authorization to investigate a liability claim (see note on this post:

Thursday, August 22, 2019

May an Attorney Be a Party to a Release in Tennessee?

An attorney may not be a party to a release under Tennessee law according to Tennessee Formal Ethics Op. 98-F-141, among other things.  Here's the link to that opinion:

Sunday, August 04, 2019

New Case on Discretionary Costs: Case Remanded (in Part) to Trial Court for Further Consideration

The Tennessee Court of Appeals recently released its opinion in Pinson v. DeBoer, No. M2018-00593-COA-R3-CV (Tenn. Ct. App. Jul. 30, 2019).  The syllabus from the slip opinion reads as follows:
Appeal of an award of discretionary costs to Defendants in healthcare liability action that had been voluntarily dismissed. The trial court initially awarded Defendants, inter alia, expert witness fees for medical providers who had treated Plaintiff, expenses for videotaped depositions, and costs for the travel time and deposition preparation time for Plaintiff’s vocational expert. On Plaintiff’s motion, the court modified the award to exclude videographer expenses, expenses attendant to the vocational expert’s deposition, and other court reporter expenses. We modify the award to exclude the witness fees for the providers who treated Plaintiff and to include the court reporter fee for the deposition of Plaintiff’s vocational expert; vacate the portion of the award that reduces the amount of court reporter fees and expenses and remand the case for reconsideration of the award; and reverse the order to the extent it requires the Plaintiff to post a bond or pay discretionary costs prior to re-filing the suit. 
Here is a link to the slip opinion:

NOTE: This case offers a good explanation of discretionary costs as contemplated in a Tennessee state court.  It is a must-read opinion for anyone who has questions on this matter.