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Tuesday, March 31, 2020

Trial Court's Dismissal Upheld on Appeal: Case Where Tortfeasor Died After Crash Was Not Timely Commenced

The Tennessee Court of Appeals released its decision in Algee v. Craig, No. W2019-00587-COA-R3-CV (Tenn. Ct. App. Mar. 31, 2020) today.  The syllabus from the slip opinion reads:
This personal injury action concerns an automobile [collision]. The [tortfeasor] died shortly after the [collision]. The estate was opened, administered, and closed before the plaintiff filed suit against the former personal representative within the applicable statute of limitations. The personal representative moved to dismiss for failure to state a claim. The plaintiff moved to enlarge the time for filing service of process based upon a claim of excusable neglect. The trial court dismissed the action as untimely. We affirm. 
Here is a link to the opinion:

NOTE: This case is another example of just one more thing that keeps plaintiff lawyers up at night.  It seems like an unfair result.  However, the plaintiff could have had an administrator ad litem appointed before the time to do so had expired.  Algee, No. W2019-00587-COA-R3-CV, slip op. at 2; accord Estate of Russell v. Snow, 829 S.W.2d 136, 138 (Tenn. 1992); Whaley v. Estate of CrowCA No. 03A01-9105-CH-169, 1992 WL 60878, 1992 Tenn. App. LEXIS 296, at *4 (Tenn. Ct. App. Mar. 30, 1992).  

And that appointment could have been sought even after the time to file the civil action had expired since the case had been (re)filed within the time allowed by law.  See Estate of Russell829 S.W.2d 136 at 137.

Tuesday, March 24, 2020

New Health Care Liability Action Opinion: Trial Court's Dismissal Due to Plaintiff's Failure to Treat the Case as a Health Care Liability Action Upheld on Appeal as Modified to Be Without Prejudice

The Tennessee Court of Appeals released its opinion today in Johnson v. Knoxville HMA Cardiology PPM, LLC, No. E2019-00818-COA-R3-CV (Tenn. Ct. App. Mar. 24, 2019).  The syllabus reads:
In this action involving injuries allegedly caused by the defendant medical providers’ failure to provide a safe examination table, the trial court determined that the plaintiff’s negligence claim was actually a health care liability claim and granted the defendants’ motion to dismiss the complaint with prejudice for failure to provide written pre-suit notice to the defendants within the one-year statute of limitations pursuant to Tennessee Code Annotated § 29-26-121(a) (Supp. 2019) of the Tennessee Health Care Liability Act (“THCLA”). The plaintiff has appealed, conceding that he failed to provide written pre- suit notice but asserting that his claim should not have been dismissed because it was not a health care liability claim. Having determined that the trial court properly found that the plaintiff’s claim was a health care liability action, we affirm the dismissal of this matter. However, having also determined that the proper sanction for the plaintiff’s failure to provide pre-suit notice under the THCLA was dismissal without prejudice, we modify the trial court’s dismissal of the claim to be without prejudice.
Here is a link to the slip opinion:

NOTE: This case serves as an example of how difficult health care liability actions (formerly known as medical malpractice cases) have become.  Things have gotten so bad lately that people cannot get the justice they deserve, which is bad for our society.  Our legislators care more about business than people, to a fault. 

Wednesday, March 11, 2020

New Health Care Liability Action Case Opinion: Summary Judgment for Some Defendants Upheld on Appeal Based upon the Three-year Statute of Repose; Fraudulent Concealment Exception Does Not Apply

The Tennessee Court of Appeals just issued its opinion in Tucker v. Iveson, No. M2018-01501-COA-R3-CV (Tenn. Ct. App. Mar. 11, 2020).  The syllabus from the slip opinion reads:
A plaintiff who developed tendonitis after taking medication prescribed by a nurse practitioner filed a malpractice action against the nurse practitioner and the pharmacy that filled the prescription.  Two years later, the plaintiff amended her complaint to add the nurse practitioner’s employer and supervising physician as defendants.  The new defendants moved to dismiss, arguing that the claims against them were barred by the applicable statutes of limitations and repose and that the plaintiff failed to provide them with pre-suit noticeof a potential medical malpractice claim.  The plaintiff responded that fraudulent concealment tolled the statutes and constituted extraordinary cause to waive pre-suit notice.  The trial court agreed and denied the motions.  The defendants then moved for summary judgment on other grounds, which the court granted.  It is undisputed that the plaintiff’s claims against these defendants were filed beyond the time allowed by the statute of repose for medical malpractice actions.  Because we conclude that the plaintiff cannot establish an essential element of the fraudulent concealment exception, the defendants are entitled to judgment as a matter of law based on the statute of repose. So we affirm the dismissal of the claims against these defendants on summary judgment but on different grounds.
Here is a link to the slip opinion:

Monday, March 02, 2020

New Tennessee Health Care Liability Action Opinion: Statute Concerning Mandatory Ex Parte Defense Interviews of a Plaintiff's Nonparty Health Care Providers Held to Be Unconstitutional, But, Allowed to Stand As Elided as Constitutional

The Tennessee Supreme Court recently released its opinion in Willleford v. Klepper, No. M2016-01491-SC-R11-CV (Tenn. Feb. 28, 2020).  The syllabus from the slip opinion reads:
We granted review in this case to determine whether Tennessee Code Annotated section 29-26-121(f) violates the separation of powers clause in the Tennessee Constitution. The statutory provision allows defense counsel to conduct ex parte interviews with patients’ non-party treating healthcare providers in the course of discovery in a healthcare liability lawsuit. We hold that section 29-26-121(f) is unconstitutional as enacted, to the limited extent that it divests trial courts of their inherent discretion over discovery. We also conclude that the statute can be elided to make it permissive and not mandatory upon trial courts. As such, we hold that the elided statute is constitutional. We vacate the trial court’s qualified protective order entered in this case and remand the case to the trial court for reconsideration based on the guidance set forth in this opinion.
Here is a link to the slip opinion:

Justice Kirby dissented and would have held Tenn. Code Ann. sec. 29-26-121(f) unconstitutional in toto.  Here is a link to her opinion that concurs and dissents in part:

NOTE: This opinion has been awaited by the Tennessee Bar with much anticipation.  It offers much-needed light as to the statutorily allowed ex parte interviews.  

Further, the majority opinion cites favorably Baker v. Wellstar Health System, Inc.,703 S.E.2d 601 (Ga. 2010) for direction to the Tennessee Bench and Bar on this issue.  As such, here is a link to that opinion: