Dismissal of Spouse's Loss-of-consortium Claim Upheld on Appeal Because Notice of That Claim Was Not Filed with the Division of Claims and Risk Management Prior to Suit Being Filed

The opinion of Kampmeyer v. State, No. M2019-01196-COA-R3-CV (Tenn. Ct. App. Aug. 28, 2020) was released today by the Tennessee Court of Appeals.  The syllabus from the slip opinion reads:

Appellants, Husband and Wife, filed a complaint for damages, including Wife’s loss of consortium claim, with the Tennessee Claims Commission. The State filed a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss Wife’s loss of consortium claim because she did not file notice of her claim with the Division of Claims Administration within the applicable statute of limitations. The Claims Commission dismissed Wife’s claim for failure to comply with the notice requirement. See Tenn. Code Ann. § 9-8- 402(b). Discerning no error, we affirm. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/kampmeyer.steven.opn_.pdf

NOTE: The takeaway from this decision: notice of a spouse's derivative loss-of-consortium claim must be filed with the Division of Claims and Risk Management before suit is filed for it and the injured spouse's claim.    

New Opinion on Vicarious Liability and the Tennessee Saving Statute

The Tennessee Court of Appeals released its opinion today in Helyukh v. Buddy Head Livestock & Trucking, Inc., No. M2019-02301-COA-R9-CV (Tenn. Ct. App. Aug. 28, 2020).  The syllabus from the slip opinion reads:

The dispositive issue in this personal injury action is whether the claims against the defendant trucking company for the tortious acts of its employee/truck driver are time-barred under Abshure v. Methodist Healthcare-Memphis Hospitals, 325 S.W.3d 98 (Tenn. 2010) or saved by the commencement of a new action under Tenn. Code Ann. § 28-1-105, Tennessee’s “savings statute.” After the plaintiffs commenced the new action, the company filed a motion to summarily dismiss the complaint, asserting the plaintiffs’ claims against the employee were procedurally barred before the new action was commenced. The trial court denied the motion because the first action was instituted before the plaintiffs’ right of action against the employee became extinguished by operation of law, and the second complaint was timely filed pursuant to the savings statute. For the same reason, we affirm and remand for further proceedings.

Here is a link to the slip opinion:

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

NOTE: This is a good opinion to read about vicarious liability and the saving statute.  The key to the plaintiffs' prevailing on appeal here is that the vicarious liability of the principal-defendant was pleaded against it before the one-year statute of limitations expired in the first action.  See Abshure, 325 S.W.3d at 100; id. at 112.  That is why they were able to use the saving statute to refile against the principal-defendant in this case.  

Also, because the plaintiffs had not effected service of leading process upon Heller in the first suit, they could have sent a copy of the complaint with the notice of voluntary dismissal and the saving statute would have preserved their claims against him for a year after entry of the order dismissing him from the first action.  Frye v. Blue Ridge Neuroscience Ctr., P.C., 70 S.W.3d 710, 711 (Tenn. 2002).

New Opinion on Hospital Charges and Their Reasonableness

The Tennessee Court of Appeals released its opinion in Blount Memorial Hospital v. Glasgow, No. E2019-00776-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2020).  The slip opinion reads:

This appeal arises from a hospital’s action against a patient to recover payment for medical services. After a bench trial, the court determined there was not an enforceable contract between the parties, but the hospital was entitled to recover the value of its services under a quantum meruit theory and ruled that the charges billed to the patient represented the actual value of the hospital’s services. The court based its determination on the testimony of the hospital’s witness that, because the rates that a hospital could charge were set by Medicare, the amount charged to the patient was comparable to what other hospitals would charge for the same or similar services. The patient appeals and asks this court to consider whether the hospital proved by a preponderance of the evidence that the amount it charged for medical services represented the actual value of those services. We affirm the trial court’s decision.

Here is the link to the opinion:

http://www.tncourts.gov/sites/default/files/blount_memorial_hospital_v._glasgow_e2019-00776.pdf

NOTE: This case offers a good explanation as to the value of medical services provided.  

New Health Care Liability Action Opinion: Directed Verdict in Favor of Hospital on Direct Negligence Claim Upheld on Appeal

The Tennessee Court of Appeals recently issued its decision Surber v. Mountain States Health Alliance d/b/a Johnson City Medical Center, No. E2019-01494-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2020).  The syllabus from the slip opinion reads:

This is a medical malpractice action in which the plaintiff filed suit against the hospital for treatment he received following an eye injury, raising claims of direct and vicarious liability. The case proceeded to a jury trial, at which the court granted a directed verdict on the claim of direct liability at the close of the plaintiff’s proof. The plaintiff filed this appeal, claiming the trial court erred in limiting his expert witness testimony. We affirm.

The link to the majority opinion is here:

http://www.tncourts.gov/sites/default/files/surber_v._mountain_states_e2019-01494.pdf

Judge Swiney's concurring opinion is here:

http://www.tncourts.gov/sites/default/files/surber_v._mountain_states_e2019-01494_b.pdf

NOTE: This case offers a good discussion of direct hospital liability under a negligence theory.  This difference between this case and Barkes v. River Park Hospital, Inc., 328 S.W.3d. 829 (Tenn. 2010) is explained herein: it is nuanced, but worth noting: the standard of care is not the same thing as hospital rules and regulations (although the rules and regulations can be in accord with the standard of care required of a hospital).  

New Health Care Liability Action Opinion: Denial of Motion to Strike Upheld on Appeal; Dismissal of the Case, However, Was Reversed

The Tennessee Court of Appeals has released its opinion in Eskridge v. NHC Healthcare Farragut, LLC, No. E2019-01671-COA-R3-CV (Tenn. Ct. App. Aug. 6, 2020).  The syllabus from the slip opinion reads:

This appeal arises from a healthcare liability action. In these proceedings, the plaintiff filed a complaint against the defendants in January 2018. The Trial Court issued summonses the following day, and the plaintiff’s attorney took the summonses to serve through private process instead of through the local sheriff’s department. Service was subsequently completed on the defendants’ registered agent eighty-nine days after issuance of the summonses. The defendants filed an answer raising as an affirmative defense that the defendants had not been properly served with process pursuant to Tennessee Rule of Civil Procedure 4. The returns for the original summonses were not filed with the Trial Court until January 2019. The plaintiff filed a motion to strike the defendants’ affirmative defense alleging that the defendants had not sufficiently pled it pursuant to Tennessee Rule of Civil Procedure 8.03. Thereafter, the defendants filed a motion to dismiss pursuant to Tennessee Rules of Civil Procedure 4.01(3) and 12.02(4)-(5), alleging intentional delay of process, insufficient service of process, and insufficient process. The Trial Court denied the plaintiff’s motion to strike the affirmative defense and granted the defendants’ motion to dismiss. The plaintiff appeals. Upon a review of the record, we affirm the Trial Court’s denial of the plaintiff’s motion to strike but reverse the Trial Court’s grant of the defendants’ motion to dismiss. 

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/eskridge_v._nhc_e2019-01671.pdf

NOTE: This is the correct decision as to the motion to dismiss.  Defendants, as movants of that motion, had the burden of proving that the delay in service was intentional under Rule 4.01(3),  Tenn. R. Civ. P., Eskridge, No. E2019-01671-COA-R3-CV, slip op. at 12, which they failed to do.  This is where one must be mindful of one of the common law maxims of pleading: "affirmanti, non neganti, incumbit probatio–the burden of proof rests upon him who affirms, not upon him who denies."  City Nat’l Bank v. Barnes, 51 S.W.2d 503, 504 (Tenn. 1932). 

Further, service of a summons within the ninety-day window of it effectiveness suffices; to hold otherwise would be to require a court to look into any service effected in less than ninety days that might otherwise not be prompt, etc.  See Tenn. R. Civ. P. 4.01, -.03; Fair v. Cochran, 418 S.W.3d 542, 546 (Tenn. 2013) ("[I]f [a plaintiff] establishes that [a defendant] was served within ninety days of [the issuance of the summons for that defendant], then [plaintiff's] lawsuit is not barred by the statute of limitations and may proceed.").  See also Holder v. Tennessee Judicial Selection Comm’n, 937 S.W.2d 877, 882 (Tenn. 1996) (noting that inferior courts in Tennessee must follow a "pronouncement of a superior court when it speaks directly on the matter before it, particularly when the superior court seeks to give guidance to the bench and bar" (emphasis added)); Barger v, Brock, 535 S.W.2d 337, 341 (Tenn. 1976) (noting same).  I am a little surprised that Fair, which is a SCOTN case, was not mentioned in this appeal.  

Additionally, it appears that the motion to strike should have been granted because the affirmative defense in question, Eskridge, No. E2019-01671-COA-R3-CV, slip op. at 9–10, did not comply with Rule 8.03, Tenn. R. Civ. P., because it was mot supported by any pleaded facts.  Tenn. R. Civ. P. 8.03 (requiring, inter alia, facts to be pleaded in support of any affirmative defense); George v. Alexander, 931 S.W.2d 517, (Tenn. 1996) ("Rule 8.03 is a prophylactic rule of procedure that must be strictly adhered to if it is to achieve its purposes."  (Emphasis added.)).

While I admire the defense's zeal here, their argument was just wrong.  See Fair, 418 S.W.3d at 546.  I am glad the Tennessee Court of Appeals reached the correct result by reversing the dismissal of the case.  (I also think any affirmative defense concerning service of leading process can be disposed of upon remand via partial summary judgment.  See id.)

P.S.  For purposes of information, Fair was one of my cases.  Plaintiff's counsel was kind enough to let me help them with the appeal to SCOTN, which we won.  Id. at 543.

P.P.S.  For a case involving intentional delay of service of a summons, read Estate of Butler v. Lamplighter Apartments, 278 S.W.3d 321 (Tenn. Ct. App. 2008).  

New Case on the Certification of Nonfinal Orders Under Rule 54 of the Tennessee Rules of Civil Procedure

The Tennessee Court of Appeals recently released its opinion in Blackburn v. McLean, No. M2019-00428-COA-R3-CV (Tenn. Ct. App. July 31, 2020).  The syllabus from the opinion reads:

This is a wrongful death healthcare liability action against two defendants, a hospital and an emergency room physician. Following extensive discovery and scheduling orders, the physician defendant filed a motion for summary judgment, and the hospital joined in the motion. The trial court granted each defendant partial summary judgment by dismissing 17 claims alleging the defendants breached standards of care. When the hospital filed its motion to summarily dismiss the remaining claims against it, the plaintiff filed a response and a motion to substitute his physician expert witness for a different expert witness. The defendants opposed the motion, and the trial court denied the motion to substitute the plaintiff’s expert witness. The court also summarily dismissed all remaining claims against the hospital, leaving only the claims against the emergency room physician for trial. Upon motion of the plaintiff, the court certified the summary dismissal of all claims against the hospital as a final judgment pursuant to Tenn. R. Civ. P. 54.02. This appeal followed. We have determined that the trial court erred in certifying the order as a final judgment under Tenn. R. Civ. P. 54.02 because, inter alia, any decision we make regarding the adjudicated claims against the hospital may encroach upon the unadjudicated claims to be tried against the emergency room physician. Moreover, there is no basis upon which to conclude that an injustice may result from the delay in awaiting adjudication of the entire case. Therefore, there is a just reason for delaying the expedited appeal of the summary dismissal of all claims against the hospital. Accordingly, we vacate the trial court’s order certifying the judgment as final under Rule 54.02 and remand for further proceedings. 

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/blackburn.barry_.opn_.pdf

NOTE: There is a lot going on in this opinion.  However, the quick takeaway from it is that trial courts need to be careful when certifying nonfinal orders as final under Rule 54.02, Tenn. R. Civ. P.  The Tennessee Court of Appeals has been focused on this issue over the last few years because it has dealt with it in a number of cases where trial courts have erred in certifying nonfinal orders as final so that an appeal can be taken while a case is pending. This is a good opinion to read to understand the current state of the law on this issue.