New Health Care Liability Action Opinion: Trial Court's Dismissal of Case Upheld on Appeal for Failure to Comply with Presuit Notice Procedure

The Tennessee Court of Appeals recently released its opinion in Carrasco v. North Surgery Center, L.P., No. W2019-00558-COA-R3-CV (Tenn. Ct. App. May 28, 2020).  The syllabus from the slip opinion reads:

This is a healthcare liability action resulting from injuries sustained by a guidewire left in the plaintiff’s neck following a procedure. The defendants moved to dismiss the action for failure to comply with notice requirements in Tennessee Code Annotated section 29- 26-121(a)(2)(E). The trial court dismissed the action without prejudice, and the plaintiff appealed. We affirm.

Here is a link to the slip opinion:

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

NOTE: Regarding the need for HIPAA authorizations, please see my July 3, 2018-post.  Tony Duncan, New Health Care Liability Action Opinion: Trial Court's Dismissal of Action as Time-barred Overturned on Appeal, TONY DUNCAN L. BLOG, Note (Jul. 3, 2018, 3:58 PM), http://theduncanlawfirm.blogspot.com/2018/07/new-health-care-liability-action.html.

New Tennessee Health Care Liability Action Opinion: Damage Cap Held to Apply to Each Plaintiff, Etc.

The Tennessee Court of Appeals released its decision today in Yebuah v. Center for Urological Treatment, PLC, No. M2018-01652-COA-R3-CV (Tenn. Ct. App. May 28, 2020).  The syllabus from the slip opinion reads:

Following surgery to remove a cancerous kidney, part of a gelport device was left inside the patient. The patient and her husband brought this health care liability action against multiple defendants, including the surgeon who removed the kidney and the radiologist who initially failed to detect the foreign object. The defendants admitted fault, so the trial focused solely on causation and damages. The jury returned a verdict in favor of the plaintiffs and awarded $4 million in noneconomic damages to the patient for pain and suffering and loss of enjoyment of life and $500,000 in noneconomic damages to her husband for loss of consortium. The trial court initially applied the statutory cap on noneconomic damages to the total damages award and entered a judgment of $750,000 in favor of both plaintiffs. In response to the plaintiffs’ motion to alter or amend, the trial court issued a revised judgment of $750,000 in favor of the patient and $500,000 in favor of the husband. But the court refused to address the plaintiffs’ arguments premised on the constitutionality of the statutory cap, ruling that the issue had been waived. The court also denied the defendant’s motion for a new trial or for a remittitur. Upon review, we conclude that the trial court erred in refusing to consider the plaintiffs’ constitutional issue. But because we also conclude that the statutory cap on noneconomic damages is constitutional and was applied properly and that the defendant is not entitled to a new trial or a remittitur, we affirm. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/yebuah.maj_.opn_.pdf

NOTE: This opinion must be read with McClay v. Airport Management Services, LLC, 596 S.W.3d 686 (Tenn. 2020), which is the subject of my February 26, 2020 blog post, and can be found at this link:

http://theduncanlawfirm.blogspot.com/2020/02/new-tennessee-supreme-court-opinion.html.  

New Tennessee Health Care Liability Action Opinion: The Seller-shield Defense Found in the Tennessee Products Liability Act Inapplicable to Claims Made under the Tennessee Health Care Liability Act

The Tennessee Court of Appeals has issued its opinion in Heaton v. Mathes, No. E2019-00493-COA-R9-CV (Tenn. Ct. App. Apr. 3, 2020).  The slip opinion reads:

The plaintiffs filed a health care liability action against a pharmacy and other medical defendants, claiming, inter alia, that the defendants failed to provide proper patient counseling and failed to warn of the risks associated with a prescription drug. The pharmacy defendants subsequently filed a motion to dismiss, asserting that the gravamen of the complaint against them was a products liability action rather than a health care liability action. The defendants further asserted that the “seller shield” defense found within the Tennessee Products Liability Act provided them with immunity from liability. The trial court denied the defendants’ motion to dismiss, ruling that the complaint stated a health care liability action rather than a products liability action. The trial court subsequently granted the defendants’ motion for permission to seek interlocutory appeal regarding whether the seller shield defense contained within the Tennessee Products Liability Act could be asserted when the plaintiffs’ claim is made pursuant to the Tennessee Health Care Liability Act. Following our thorough consideration of the issue, we affirm the trial court’s judgment, determining that the seller shield defense found in the Tennessee Products Liability Act is inapplicable to claims made under the Tennessee Health Care Liability Act. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/heaton_v._mathes_e2019-00493.pdf.

NOTE: This case offers a good analysis of the interplay between health care liability actions and product liability actions under Tennessee law.  A must-read opinion if you handle either type of case.

New Tennessee Premises Liability Case: Summary Judgment for the Defense Reversed Because Genuine Issues of Material Fact Exist; Spoliation of Evidence Discussed; Sanctions for Frivolous Appeal Denied

The Tennessee Court of Appeals released its opinion in Wilson v. Weigel Stores, Inc., No. E2019-00605-COA-R3-CV (Tenn. Ct. App. May 19, 2020).  The syllabus from the slip opinion reads:

This is a premises liability action in which the plaintiff filed suit against the defendant convenience store for personal injuries resulting from her slip and fall near the gasoline pump. The trial court granted the defendant’s motion for summary judgment, holding that the plaintiff failed to establish that the defendant caused or created or should have discovered with reasonable diligence the condition that caused her fall. The plaintiff appeals. We reverse the trial court’s decision. We remand this case for proceedings consistent with this opinion. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/penny_wison_v._weigel_stores_inc..pdf

NOTE: The Court of Appeals did the right thing here; summary judgment should not have been granted under the facts of this case as they currently stand.  This case does a great job of describing the sjuumary judgment process in Tennessee.  It also offers a good discussion on spoliation of evidence.

Further, the appellee sought damages for a frivolous appeal.  Why, I do not know.  This was not a frivolous appeal by any stretch of the the imagination.  

Summary Judgment for Defendants in Auto Case Reversed on Appeal Because Testimony from Interested Witnesses Could Not Be Used to Rebut the Statutory Presumptions Concerning Vehicle Ownership and Vicarious Liability

The Tennessee Court of Appeals released its opinion today in Gray v. Baird, No. M2019-01056-COA-R3-CV (Tenn. Ct. App. May 19, 2020).  The syllabus from the opinion reads:

This is an appeal of the trial court’s decision to summarily dismiss a claim of vicarious liability against the owner of the vehicle that was involved in a fatal vehicular accident. The driver of the vehicle was the son and employee of the vehicle owner, and it is alleged that the driver was acting in the course and scope of his employment with the vehicle owner at the time of the collision. The owner of the vehicle filed for summary judgment, and the trial court found the affidavits and deposition testimony of the owner and his son refuted the prima facie evidence of vicarious liability created by Tenn. Code. Ann. §§ 50-10-311 and -312 that the son was acting in the course and scope of his employment at the time of the collision. The plaintiff appeals contending that summary judgment was not proper because the owner and his son were interested witnesses and their credibility was at issue. We agree. It is undisputed that the son’s employment necessitated his travel on the road where the collision occurred, and whether the son had deviated from the defendant’s business prior to the collision is a material fact that is in dispute. For this reason, we reverse the trial court’s grant of summary judgment and remand for further proceedings.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/gray.shawn_.opn_.docx_.pdf.

NOTE: This is a good opinion to read if you handle motor-vehicle-collision cases in Tennessee.  It is also a nice follow-up read to Godfrey v. Ruiz, 90 S.W.3d 692 (Tenn. 2002), which can be read at this link:

https://scholar.google.com/scholar_case?case=2861202515279499664&q=Godfrey+v.+Ruiz&hl=en&as_sdt=4,43.

New Health Care Liability Action Opinion: Trial Court's Dismissal Upheld on Appeal Due to Invalid Authorization for the Presuit Release of Medical Records (Possible Erroneous Decision)

The Tennessee Court of Appeals released its opinion yesterday in Hancock v. BJR Enterprises, LLC, No. E2019-01158-COA-R3-CV (Tenn. Ct. App. May 14, 2020).  The syllabus from the slip opinion reads:

This is a healthcare liability action. In her medical authorizations, the plaintiff left blank lines as to who was authorized to receive the patient’s records from the medical providers and others receiving notice. The defendants claimed that the authorizations were not HIPAA-compliant, as required by Tennessee Code Annotated section 29-26- 121(a)(2)(E). The plaintiff responded that by construing the pre-suit notice packet materials as one cohesive document, all of the elements required by the statute are present and that the defendants had at their disposal all of the information necessary to obtain the patient’s medical records. The plaintiff further asserted that the failure of the defendants to attempt to obtain the records precludes any demonstration of prejudice to them. The trial court determined that the plaintiff’s statutory notice failed to substantially comply with the requirements of Tennessee Code Annotated section 29-26-121. The plaintiff appeals. We affirm. 

(Footnote omitted).

The majority opinion is at this link:

http://www.tncourts.gov/sites/default/files/hancock_v._bjr_enterprises_e2019-01158.pdf.

Here is Judge Swiney's concurring opinion:

http://www.tncourts.gov/sites/default/files/hancock_v._bjr_e2019-1158_separate_opinion.pdf.

NOTE: The gist of this opinion is that the defendants could not obtain the patient's relevant medical records due to a medical records authorization that was "defective" under HIPAA.  Hancock v. BJR Enterprises, LLC, No. E2019-01158-COA-R3-CV, slip op. at 4–12 (Tenn. Ct. App. May 14, 2020).

The opinion reads in pertinent part:

The specific purpose of subsection (a)(2)(E) is not to provide a defendant with notice of a potential claim; rather, . . . the subsection “serves to equip defendants with the actual means to evaluate the substantive merits of a plaintiff’s claim by enabling early access to a plaintiff’s medical records.”  This investigatory tool advances the overall goal of section 29-26-121(a), which is to allow litigants the ability to engage in pre-suit negotiation and settlement so as to reduce litigation costs and resolve meritorious claims at the outset. . . .

. . . .

[H]owever, “[b]ecause HIPAA itself prohibits medical providers from using or disclosing a plaintiff’s medical records without a fully compliant authorization form, it is a threshold requirement of the statute that the plaintiff’s medical authorization must be sufficient to enable defendants to obtain and review a plaintiff’s relevant medical records.” . . .

Id. at 5 (emphasis added) (internal citations omitted).

The last paragraph from the quoted passage appears to be in error since the defendants could have shared and obtained the relevant medical records as part of their "health care operations."  Tony Duncan, New Health Care Liability Action Opinion: Trial Court's Dismissal of Action as Time-barred Overturned on Appeal, TONY DUNCAN L. BLOG, Note (Jul. 3, 2018, 3:58 PM), http://theduncanlawfirm.blogspot.com/2018/07/new-health-care-liability-action.html.

I hope the Tennessee Supreme Court takes a look at this one and reverses it because that is what needs to be done as can be discerned from the note in my July 3, 2018 blog post.  

New Decision from the Tennessee Court of Appeals: Jury Verdict for Plaintiff Overturned Because Trial Court Erred in Prohibiting Psychologists from Testify on Behalf of the Defense and in Allowing Improper Evidence to Be Admitted

The Tennessee Court of Appeals issued its opinion today in Ellis v. Modi, No. M2019-01161-COA-R3-CV (Tenn. Ct. App. May 11, 2020).  The slip opinion reads:

Following a jury trial, the plaintiff was awarded a substantial verdict against the defendant for both compensatory and punitive damages. After the defendant’s motion for a new trial was denied, he appealed to this Court. The defendant now argues, among other things, that the trial court erroneously excluded his expert psychologist from testifying at trial and, further, that the trial court erroneously allowed certain prejudicial evidence against him to be admitted. For the reasons stated herein, we vacate the jury’s verdict and the trial court’s judgment entered in this matter and remand the case for a new trial.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/ellis.modi_.opn_.pdf

NOTE: This opinion offers a good discussion of Rules 403 and 404(b) of the Tennessee Rules of Evidence.  It is a must read opinion for any lawyer who regularly practices in Tennessee state courts.

New Health Care Liability Action Opinion: Trial Court's Dismissal Reversed on Appeal; HIPAA Authorization Was Sufficient to Allow Defendants to Obtain Patient's Medical Records Presuit

The Tennessee Court of Appeals just issued its decision in Combs v. Milligan, No. E2019-00485-COA-R3-CV (Tenn. Ct. App. May 1, 2020).  The syllabus from the slip opinion reads:

This appeal concerns healthcare liability. A husband and wife filed an action against six medical care providers alleging negligence in the medical treatment of the wife. The defendants moved to dismiss the suit on the basis of noncompliance with Tennessee Code Annotated section 29-26-121(a)(2)(E), which requires that pre-suit notice include a HIPAA[] compliant medical authorization allowing a healthcare provider receiving a notice to obtain complete medical records from every other provider that is sent a notice. The plaintiffs’ authorization allowed each provider to disclose complete medical records to each named provider but did not state specifically that each provider could obtain records from each other. The trial court held that the authorization failed to substantially comply with the statute’s requirements. The plaintiffs appealed. We hold that Plaintiffs’ method of permitting Defendants access to Mrs. Combs’s medical records substantially complied with Tennessee Code Annotated section 29-26-121(a)(2)E). We reverse the judgment of the trial court.

(Footnote omitted.)

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/combs_v._milligan_e2019-00485.pdf.

NOTE: This opinion offers a good discussion of procedure and how that affects appellate jurisdiction when it comes to interlocutory and final orders.  And, importantly, it addresses the sufficiency of HIPAA authorizations in health care liability actions (f/k/a medical malpractice cases). 

This decision must be read in conjunction with Martin v. Rolling Hills Hosp., LLC, No. M2016-02214-SC-R11-CV (Tenn. Apr. 29, 2020), which can be found at my blog post here: 

http://theduncanlawfirm.blogspot.com/2020/04/new-health-care-liability-action_29.html.

PAY ATTENTION TO THE NOTE IN THE APR. 29, 2020 BLOG POST.

New SCOTN Case: Court Holds That Tennessee Consumer Protection Act Applies to Health Care Providers Acting in Business Capacities

Yesterday, the Tennessee Supreme Court released its opinion in Franks v. Sykes, No. W2018-00654-SC-R11-CV (Tenn. May 1, 2020).  The syllabus from the opinion reads:

A person who is injured because of an unfair or deceptive act or practice that affects the conduct of any trade or commerce has a cause of action under the Tennessee Consumer Protection Act of 1977 (“the Act”), Tennessee Code Annotated sections 47- 18-101 to -132 (2013 & Supp. 2019). We granted review to determine whether the Act applies to the business aspects of a health care provider’s practice. The plaintiffs were injured in car accidents and received hospital medical services. The hospitals did not bill the plaintiffs’ health insurance companies but filed hospital liens against the plaintiffs’ claims for damages arising from the accidents. The hospital liens were for the full amount of the hospital bills with no reduction for the plaintiffs’ health insurance benefits. The plaintiffs sued the hospitals, asserting the filing of undiscounted hospital liens was an unlawful practice under the Act. The trial court dismissed the case, ruling that the plaintiffs had failed to state a cause of action. The Court of Appeals affirmed, holding that the Act did not apply to a claim in which the underlying transactions involved medical treatment. We hold that the Act applies to health care providers when they are acting in their business capacities. The plaintiffs, who were consumers of medical services, may state a claim under the Act against the hospitals for conduct arising out of the hospitals’ business practices. We reverse and remand this case to the trial court for further proceedings. 

Here is a link to the unanimous slip opinion:

http://www.tncourts.gov/sites/default/files/franks.roy_.opn_.pdf.

NOTE: This is a must-read opinion for any attorney who handles personal injury cases affected by Tennessee substantive law.  Two quick takeaways: first, the Court did not decided "whether the section of the [Tennessee Consumer Protection] Act [("TCPA")] relied on by Franks and Edwards encompasses conduct under the Hospital Lien Act and whether the liens filed by the Hospitals were false or deceptive under the Act," Franks, slip op. at 9, that remains to be decided by the trial court upon remand; and, second, look for the Tennessee Hospital Association to seek to get the TCPA amended so that it does not apply to hospitals in this context (which should not happen because that would be unfair to the citizens of Tennessee).

Further, to use a Southern idiom, this is a classic example of the old saying that pigs get fat and hogs get slaughtered.  The hospitals got greedy here and turned into hogs.  

Lastly, this post is related to a prior blog post from February 18, 2019, to wit: http://theduncanlawfirm.blogspot.com/2019/02/new-tennessee-case-on-hospital-liens.html.