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Wednesday, September 29, 2021

New Case on Waiver of Affirmative Defenses and Summary Judgment: Trial Court's Grant of Summary Judgment Upheld on Appeal

The Tennessee Court of Appeals issued its opinion in F & M Bank v. Fleming, No. M2020-01086-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2021).  The syllabus from the slip opinion reads:

Appellant debtor appeals the trial court’s decision to find certain affirmative defenses waived, to deny his motion to continue the summary judgment hearing in order to conduct discovery, and to grant summary judgment to the defendant bank. Discerning no reversible error, we affirm. 

Here is a link to that opinion:

https://www.tncourts.gov/sites/default/files/f__m_bankv.fleming.opn_.pdf.

NOTE: This opinion is a one that every trial lawyer in Tennessee must read because it addresses waiver of affirmative defenses, motions filed under Rule 56.07 of the Tennessee Rules of Civil Procedure seeking additional time to respond to motions for summary judgment, and summary judgments in general.  Keep this one handy.       

Wednesday, September 15, 2021

Trial Court's Denial of Directed Verdict to Insuror in Declaratory Judgment Action Reversed on Appeal

The Tennessee Court of Appeals has recently released its decision Tennessee Farmers Mutual Insurance Co. v. Simmons, No. E2020-00791-COA-R3-CV (Tenn. Ct. App. Sept. 14, 2021).  The syllabus from the slip opinion reads:

In the underlying declaratory judgment action, an insurance company sought a judgment that an automobile insurance policy issued to a mechanic does not provide coverage for an accident involving the mechanic. After examining the mechanic under oath, the insurance company moved for summary judgment, arguing that the policy contained a business purpose exclusion for accidents occurring while road testing a vehicle, which the mechanic stated he was doing at the time the accident occurred. The mechanic responded with an affidavit asserting that he was driving the vehicle for personal errands. The trial court denied the motion, finding that there was a genuine issue of material fact as to the mechanic’s purpose for driving the vehicle. At trial, the mechanic testified that he was running personal errands at the time of the accident but offered no explanation for his contradictory sworn statements. Following the close of proof, the insurance company renewed its argument regarding the policy’s exclusion and moved for a directed verdict. The trial court denied the motion and submitted the matter to a jury, which found that the exclusion did not preclude coverage of the accident. On appeal, the insurance company contends that the trial court erred by not applying the cancellation rule. We agree and hold that if the rule had been applied, no genuine issue existed for the jury to consider with respect to the mechanic’s business purpose at the time the accident occurred. Thus, the trial court should have directed a verdict in favor of the insurance company. The judgment of the trial court approving the jury verdict is vacated and the case is remanded.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/e2020-791_tn_ins._v._simmons.pdf.

NOTE: This opinion offers a good discussion of Tennessee insurance policies, the cancellation rule, etc.  It is worth reading in my humble opinion.  


Friday, August 27, 2021

New Tennessee Claims Commission Case: Dismissal of Claim Upheld on Appeal

The Tennessee Court of Appeals recently released its decision in Howard v. State, No. M2020-00735-COA-R3-CV (Tenn. Ct. App. Aug. 26, 2021).  The syllabus from the slip opinion reads:

Following a car accident involving an employee of the State of Tennessee, Irene Howard . . . sought damages against the State based on alleged injuries arising from the accident.  The claim was denied by the Division of Claims and Risk Management . . . , and Claimant thereafter appealed to the Claims Commission . . . .  Because Claimant failed to appeal the DCRM’s decision within ninety days, however, the Commission concluded it lacked jurisdiction over the case and dismissed the appeal. We affirm. 

Here is a link to that opinion:

https://www.tncourts.gov/sites/default/files/howard.irene_.opn_.pdf.

NOTE: This opinion offers a good discussion on filing claims in Tennessee Claims Commission and the  procedure associated with doing that.  A must read for one who handles claims against the State of Tennessee.     

  

Thursday, August 05, 2021

New Health Care Liability Action Opinion: Trial Court's Dismissal of Plaintiff's Claim Due to Defective Presuit Medical Records Authorization Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Reese v. Waters of Clinton, LLC, No. E2020-01466-COA-R3-CV (Tenn. Ct. App. Aug. 4, 2021).  The syllabus from the slip opinion reads:

This healthcare liability action was brought against a skilled nursing facility. The plaintiff sent pre-suit notice to multiple potential defendants prior to initiating the action. The plaintiff, however, failed to include as part of the pre-suit notice a HIPAA-compliant medical authorization as one of the six core elements was missing from the authorization. Following a motion to dismiss filed pursuant to Tennessee Rule of Civil Procedure 12.02(6), the Trial Court granted the motion and dismissed the action against the defendant due to noncompliance with Tennessee Code Annotated § 29-26-121 and as being untimely. The Trial Court denied the plaintiff’s request to compel discovery in this matter concerning whether the plaintiff had substantially complied with the pre-suit notice requirement. The plaintiff argues on appeal that the Trial Court erred by not treating the defendant’s motion as a motion for summary judgment and by preventing the plaintiff from conducting discovery regarding the plaintiff’s compliance with Section 29-26-121, as well as the resulting prejudice to the defendant. Discerning no error, we affirm the Trial Court’s judgment in all respects.

Here is a link to that opinion:

https://www.tncourts.gov/sites/default/files/e2020-1466_reese_v._clinton.pdf.

NOTE: This case offers a good discussion on what needs to be done to comply with HIPAA as it relates to authorizations to share and receive a patient's protected health information (PHI); those authorizations are supposed to be included as part of any presuit notice package sent to a potential defendant under Tennessee Code Annotated section 29-26-121.  In this case, a blank was left in each authorization so that the provider receiving presuit notice could ostensibly fill it in.  Reese, E2020-01466-COA-R3-CV, slip op. at 2.  That practice, however, has been held to not comply with HIPAA.  Id. at 13–14.  Since the authorizations did not comply with HIPAA, the plaintiff's claim fails as a matter of law.  See T.C.A. § 29-26-121 (LexisNexis 2021).  

This case also offers a good discussion of motions to dismiss versus motions for summary judgment to the extent that both challenge a plaintiff's noncompliance the presuit notice requirements contained in Tenn. Code Ann. sec. 29-26-121.  See id., passim.

Also, this opinion touches upon an attorney-in-fact (agent) acting on behalf of a patient in a Tennessee health care liability action (formerly known as a "medical malpractice case").  Id. at 2.  To the extent that the agent signs an authorization required for the release and sharing of a patient's PHI under -121 via a power of attorney form (POA), that form must be for health care purposes and not a general POA.  See June M. Sullivan & Shannon B. Hartsfield, HIPAA: A Practical Guide to the Privacy and Security of Health Data 39–40 (2d ed. 2020) ("For purposes of HIPAA, an individual's personal representative is a person with authority under state law to make health care decisions for the individual."  (Footnote omitted.)).  


Tuesday, August 03, 2021

New Tennessee Supreme Court Case: The Economic Loss Doctrine Clarified; Jury Verdict for Plaintiff Overturned, Etc.

The Tennessee Supreme Court has released its opinion in Milan Supply Chain Solutions, Inc. v. Navistar, Inc., No. W2018-00084-SC-R11-CV (Tenn. Aug. 8, 2021).  The syllabus from the slip opinion reads:

We granted permission to appeal primarily to consider how, if at all, the economic loss doctrine, which generally precludes recovery for purely economic losses in tort actions, applies in Tennessee to claims of fraudulent inducement. We hold that when, as here, a fraud claim seeks recovery of only economic losses and is premised solely on misrepresentations or nondisclosures about the quality of goods that are the subject of a contract between sophisticated commercial parties, the economic loss doctrine applies. Accordingly, we affirm the judgment of the Court of Appeals holding that the economic loss doctrine bars the plaintiff’s fraudulent inducement claim. We also affirm the judgment of the Court of Appeals holding that the plaintiff’s claim under the Tennessee Consumer Protection Act (“TCPA”) is barred as a matter of law because the trucks at issue are not “goods” as that term is defined by the portion of the TCPA on which the plaintiff relied. Tenn. Code Ann. § 47-18-104(b)(7) (2013 & Supp. 2020). We, therefore, set aside the plaintiff’s award of attorney’s fees and costs based on the TCPA. In all other respects, we affirm the judgment of the Court of Appeals on the separate grounds stated herein. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/milansupplychainv.navistar.opn_.pdf.

NOTE: As a matter of full disclosure, I represented some of the amici in this case.  This opinion clarifies the law in Tennessee concerning the economic loss doctrine, which was unclear till now.    

New Uninsured Motorist (UM) Insurance Coverage Case: Trial Court's Finding of No UM Coverage for the Plaintiff Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Medders v. Newby, No. M2020-01094-COA-R3-CV (Tenn. Ct. App. July 6, 2021).  The syllabus from the slip opinion reads:

An insurance company denied coverage for an accident its insured had with an uninsured/underinsured motorist because the insured had a “non-owner’s” policy, and the car she was driving did not fit the definition of a “non-owned auto.” The trial court concluded, following a bench trial on the bifurcated issue of coverage, that the insured’s policy did not cover the accident, and the insured appealed. We affirm the trial court’s judgment. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/medders.kimberly.opn_.pdf.

NOTE: This is a good opinion to read for some insight into Tennessee's UM law., especially when it comes to the construction of insurance policies (which are contracts).  


Thursday, July 29, 2021

New Wrongful Death Opinion: Grant of Summary Judgment to Defendant Upheld on Appeal

The Tennessee Court of Appeals released its opinion in O'Guin v. State, No. M2020-00732-COA-R3-CV (Tenn. Ct. App. July 28, 2021).  Here is the syllabus from the slip opinion:
A patient died after a fall at a state-owned rehabilitation facility. The administrator of the deceased patient’s estate filed a monetary claim against the State of Tennessee for negligently creating or maintaining a dangerous condition on real property. The State moved for summary judgment arguing that the claimant lacked sufficient evidence of causation. The Claims Commission agreed and granted summary judgment to the State. Because the claimant lacked sufficient evidence that the State’s conduct more likely than not caused the patient’s fall, we affirm.
Here is a link to the opinion:


NOTE: This opinion offers a good discussion of causation of injury (in this case, death) under Tennessee law.  

Tuesday, July 20, 2021

New Health Care Liability Action Opinion: Trial Court's Denial of Motion to Revise Interlocutory Order Reversed on Appeal

The Tennessee Court of Appeals has released its opinion in Ingram v. Gallagher, No. E2020-01222-COA-R3-CV (Tenn. Ct. App. July 19, 2021).  The syllabus from the slip opinion reads:

This appeal arises from a healthcare liability action wherein the plaintiff initially sued the doctor, the hospital, and two other defendants. The plaintiff voluntarily dismissed the action without prejudice against all defendants except for the doctor. The doctor subsequently filed an answer to the complaint, stating that the action should be dismissed under the Governmental Tort Liability Act because the hospital, a governmental hospital entity and the doctor’s employer, was not a party to the action. Shortly thereafter, the plaintiff filed a “Motion to Alter or Amend,” seeking to set aside the Trial Court’s order of dismissal in order to withdraw his voluntary dismissal of the hospital as a party. The Trial Court denied the plaintiff’s motion to alter or amend, determining that the voluntary dismissal order was a final order and that the plaintiff knew about the doctor’s employment with the hospital prior to the voluntary dismissal. We determine that the Trial Court erred by treating the plaintiff’s motion as a Tennessee Rule of Civil Procedure 60 motion, instead of a motion to revise pursuant to Rule 54.02, and further hold that the Trial Court erred by denying the plaintiff’s motion to revise the non-final order of voluntary dismissal.

Here is a link to the slip opinion: 

https://www.tncourts.gov/sites/default/files/ingram_vs._gallagher_coa_opinion.pdf.

NOTE: Procedurally, this case is a mess.  There was a lot going on in the trial court below.  This opinion, however, is a great one that addresses motions to revise interlocutory orders under Rule 54 of the Tennessee Rules of Civil Procedure.  A lot of lawyers file motions to "alter or amend" interlocutory (nonfinal) orders, which is procedurally improper; this opinion sheds light on the issue and hopefully will clear up any confusion on this issue.  

Also, practically speaking, the plaintiff could have added the hospital as a party-defendant under Tennessee's comparative fault joinder statute, Tennessee Code Annotated section 20-1-119, after the doctor's answer was filed indicating that he was an employee of the hospital at the time in question.  That would have remedied the problem of the employer not being a party to the lawsuit under Tennessee's Governmental Tort Liability Action (and would have been an easy fix, too).  See Bidwell ex rel. Bidwell v. Strait, 618 S.W.3d 309, 323–30 (Tenn. 2021), https://scholar.google.com/scholar_case?case=12106812184700824746&q=618+S.W.3d+309&hl=en&as_sdt=4,43.

Friday, July 16, 2021

New Health Care Liability Action Opinion: Trial Court's Dismissal of Case Upheld on Appeal Because Defendant-physician's Employer Not Added as a Party-defendant as Required by Statute

The Tennessee Court of Appeals has issued its opinion in Braylon W. v. Walker, No. W2020-00692-COA-R3-CV (Tenn. Ct. App. July 15, 2021).  The syllabus reads:

This appeal stems from a dismissal pursuant to Tennessee’s Governmental Tort Liability Act [(GTLA)]. Suit was filed against Appellant’s treating physician, among other defendants, for health care liability involving Appellant’s birth. The trial court ultimately granted summary judgment in favor of the physician, finding that, because the physician was an employee of a governmental entity at the time of the incident, Appellant was required by statute to name the physician’s employing governmental entity as a party defendant. Because Appellant failed to do so, the lawsuit against the treating physician could not proceed. Appellant now appeals the trial court’s grant of summary judgment. Discerning no error, we affirm the trial court’s dismissal.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/braylonwopn.pdf.

NOTE: This case is one that used to be called a "medical malpractice case," but is now called a "health care liability action" by statute; that change was effected by Tennessee Code Annotated section 29-26-101.  

This case accentuates the importance of naming a defendant "health care practitioner's" employer as a party-defendant if the case is a health care liability action that falls under the GTLA; failing to do that is generally fatal to the case, as pointed out here.  Plaintiff, however, could have added Dr. Walker's employer as a party-defendant under Tennessee Code Annotated section 20-1-119 (commonly referred to as the "comparative fault joinder statute" or just "-119") after her answer was filed indicating who her employer was at the time of the complained of negligence.  Bidwell ex rel. Bidwell v. Strait, 618 S.W.3d 309, 323–29 (Tenn. 2021) (explaining how -119 can be used to add a defendant's employer in a health care liability action covered by the GTLA), https://scholar.google.com/scholar_case?case=12106812184700824746&q=618+S.W.3d+309&hl=en&as_sdt=4,43.  I am not sure what that was not done here.  

New Case on the Tennessee Governmental Tort Liability Act: Liability Based on Negligence, Gross Negligence, Recklessness, and Exceptions to the Public Duty Doctrine Save the Day; Trial Court's Dismissal Reversed on Appeal

The Tennessee Court of Appeals released its opinion in Lawson v. Hawkins County, No. E2020-01529-COA-R3-CV (Tenn. Ct. App. July 14, 2021.  The syllabus from the slip opinion reads:

This appeal arises from litigation concerning a fatal road accident. Steven W. Lawson [] , by and through his wife, Penny Lawson, and on behalf of Corey Lawson, Decedent’s child . . . , sued the Hawkins County Emergency Communications District Board [] , Hawkins County, Tennessee and Hawkins County Emergency Management Agency . . .  in the Circuit Court for Hawkins County . . . alleging negligence, gross negligence, and recklessness in Defendants’ response to a road washout that led to Decedent’s death. Plaintiffs specifically alleged nepotism in Defendants’ hiring practices and a failure to train. Defendants filed motions for judgment on the pleadings, which the Trial Court granted partly on grounds that claims of recklessness could not proceed against the Defendant entities under the Governmental Tort Liability Act (“the GTLA”). Plaintiffs appeal. We hold that Plaintiffs could, in fact, proceed with their claims of recklessness and gross negligence under the GTLA, and the facts pled by Plaintiffs were sufficient to state claims based upon recklessness and gross negligence. We hold further that, based on the facts alleged at this stage, the third special duty exception to the public duty doctrine applies so as to remove Defendants’ immunity. We reverse the judgment of the Trial Court. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/penny_lawson_v._hawkins_county_coa_opinion.pdf.

NOTE: This is a good opinion for any judge or lawyer who has a case governed by the GTLA.  


Thursday, July 08, 2021

New Case on the Collateral Source Rule: Trial Court's Ruling That Disallowed Information About Collateral Sources Upheld on Appeal

The Tennessee Court of Appeals released its opinion in Doty v. City of Johnson City, No. E2020-00054-COA-R3-CV (Tenn. Ct. App. July 7, 2021).  The syllabus from the slip opinion reads:

This is a personal injury action in which the defendant tortfeasor claims that the trial court erroneously excluded evidence concerning plaintiff’s claimed medical expenses. On appeal, we affirm the trial court’s rulings on the admissibility of evidence. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/doty_vs._city_of_johnson_city_coa_opinion.pdf.

NOTE: This opinion is a must-read one for any lawyer who handles personal injury cases governed by Tennessee substantive law.  Also, in my humble opinion, this is a correct decision, too, based upon the applicable law.  

Thursday, July 01, 2021

New Health Care Liability Action Opinion: New Trial Ordered Due to Trial Court Errors as to Expert Witness Testimony and Premajority Medical Expenses

The Tennessee Court of Appeals has released its opinion in Borngne ex rel. Hyter v. Chattanooga-Hamilton County Hospital Authority, No. E2020-00158-COA-R3-CV (Tenn. Ct. App. July 1, 2021).  The syllabus from the slip opinion reads: 

This health care liability action arises from injuries suffered by a minor, Miyona Hyter, during her birth. Miyona Hyter, a minor by and through her next friend and mother, Brittany Borngne[,]  . . . sued, among others, Dr. Michael Seeber who delivered the child via cesarean section and certified nurse midwife Jennifer Mercer who assisted with the birthing process. Plaintiff alleged that Nurse Mercer was negligent by failing to recognize concerning signs on the fetal monitoring strip and by failing to call Dr. Seeber for assistance sooner than she did. The Circuit Court for Hamilton County . . . , by agreed order, granted Dr. Seeber partial summary judgment on all claims of direct negligence against him; he remained in the case as a defendant only upon Plaintiff’s theory that he was vicariously liable for Nurse Mercer’s actions as her supervising physician. During his deposition, Dr. Seeber declined to answer questions that he argued required him to render an expert opinion regarding Nurse Mercer’s care during times that Dr. Seeber was not present and had no involvement in Plaintiff’s care. The Trial Court declined to require Dr. Seeber to answer questions that “call[] for an opinion by Dr. Seeber that asks him to comment on the actions of other healthcare providers and does not involve his own actions, as required by Lewis v. Brooks,” 66 S.W.3d 883, 887-88 (Tenn. Ct. App. 2001). After Nurse Mercer’s deposition, she submitted an errata sheet that substantively altered her answers to some of the questions. Plaintiff moved to suppress the errata sheet, arguing that Tenn. R. Civ. P. 30.05 does not allow a witness to make substantive changes to her deposition testimony. The Trial Court denied the motion but allowed Plaintiff the opportunity to reopen Nurse Mercer’s deposition and to fully cross-examine her at trial about the changes. The case proceeded to trial before a jury, which returned a verdict in Defendants’ favor. We hold that the Trial Court erred by refusing to order Dr. Seeber to answer the questions at issue in his deposition. Deeming this case distinguishable from Lewis v. Brooks, we reverse the Trial Court in its declining to compel Dr. Seeber to testify concerning the conduct of his supervisee, Nurse Mercer, and remand for a new trial. We also reverse the Trial Court in its decision to exclude proof of Miyona Hyter’s pre-majority medical expenses. We affirm the Trial Court as to the remaining issues.

Here is a link to the majority opinion:

https://www.tncourts.gov/sites/default/files/e2020-158_borngne_v._chattanooga.pdf.

Here is Judge Davis's opinion that concurs in part and dissents in part:

https://www.tncourts.gov/sites/default/files/e2020-158_borngne_v._chattanooga_sep_opin.pdf.

NOTE: This decision offers a good discussion of deposition testimony and errata sheets under Rule 30.05 of the Tennessee Rules of Civil Procedure, expert witness testimony (especially related to subordinate providers), and premajority medical expenses. 

Once can be certain that the Tennessee Supreme Court will be asked to review this case via an application for permission to appeal under Rule 11 of the Tennessee Rules of Appellate Procedure.  More to come.  

Tennessee Appellate Practice: Jury Verdict for the Defense Upheld on Appeal Because It Was Supported by Material Evidence

The Tennessee Court of Appeals has issued its decision in Justice v. Hyatt, No. M2019-02105-COA-R3-CV (Tenn. Ct. App. June 30, 2021).  The syllabus from the slip opinion reads:

Two cars collided at a four-way stop. One driver filed a personal injury action against the other. At trial, the two sides presented conflicting descriptions of the accident. The jury found the defendant driver was not at fault. And the trial court, as thirteenth juror, approved the jury verdict. Because the jury verdict is supported by material evidence, we affirm. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/justice.james_.opn__0.pdf.

NOTE: This decision is a good refresher of the importance and effect Rule 13(d) of the Tennessee Rules of Appellate Procedure has on appeals of jury verdicts.  

Tuesday, June 29, 2021

Tennessee Civil Procedure: A Plaintiff May Amend Complaint Any Time Before a Responsive Pleading Is Filed or the Dismissal of Initial Complaint Becomes Final

The Tennessee Court of Appeals has released its opinion in Justice v. Nordquist, No. E2020-01152-COA-R3-CV (Tenn. Ct. App. June 29, 2021).  Here is the syllabus from the slip opinion:

Loring Justice . . . [,] individually and as next friend of N.N./N.J.],] . . . sued Vey Michael Nordquist, Ph.D.  . . . in the Circuit Court for Knox County . . . over Defendant’s actions in connection with paternity litigation to which Plaintiff was a party. Defendant filed a motion to dismiss, but never filed a responsive pleading to the original complaint. The Trial Court granted Defendant’s motion to dismiss. Before time for appeal expired, Plaintiff filed an amended complaint as he was entitled to do under Tenn. R. Civ. P. 15.01 given that Defendant never filed a responsive pleading to the original complaint. However, the Trial Court never ruled on Plaintiff’s amended complaint. The order appealed from is not a final judgment, meaning we lack subject matter jurisdiction to hear this appeal. Therefore, we dismiss this appeal.

Here is a link to the slip opinion: 

https://www.tncourts.gov/sites/default/files/e2020-01152_justice_v._nordquist.pdf.

NOTE: This opinion is a good reminder that a motion to dismiss is not a responsive pleading that would prohibit free amendment under Rule 15 of the Tennessee Rules of Civil Procedure.  




Wednesday, June 23, 2021

New Health Care Liability Action Opinion: Defense Verdict in Second Trial (Which Was Bifurcated) Upheld on Appeal

The Tennessee Court of Appeals released its decision in Jernigan v. Paasche, No. No. M2020-00673-COA-R3-CV (Tenn. Ct. App. June 21, 2021).  The syllabus from the slip opinion reads:

In this health care liability action, an initial jury trial resulted in a verdict for the defendant physicians. The plaintiff filed a motion for new trial, which the trial court granted. Prior to the second jury trial, the trial court determined that the trial should be bifurcated such that the first phase would address only the applicable standard of care and whether the defendants deviated therefrom, and the second phase would address causation. Following completion of the standard of care phase, the jury again ruled in favor of the defendants. The plaintiff filed a second motion for new trial, which the trial court denied. The plaintiff timely appealed. Discerning no reversible error, we affirm.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/jernigan.david_.opn_.pdf.

NOTE: This opinion deals with the bifurcation of issues for trial, the admission of expert witness testimony, and waiver of issues.  It is a must-read decision for any lawyer who handled health care liability actions governed by Tennessee substantive law.  

Further, I expect the Tennessee Supreme Court will be asked (via an application for permission to appeal) to review this decision.  The bifurcation below might be what gets that application granted; we shall see.   

Monday, June 21, 2021

New Tennessee Case on Recently Enacted Anti-SLAPP Statute: Dismissal of Action Under New Statute Upheld on Appeal

On Friday, the Tennessee Court of Appeals released its decision in Nandigam Neurology, PLC v. Beavers, No. M2020-00553-COA-R3-CV (Tenn. Ct. App. June 18, 2021).  The syllabus from the slip opinion reads:

This case arises from a defamation and false light lawsuit filed in the General Sessions Court for Wilson County . . . .  The action was dismissed pursuant to the Tennessee Public Participation Act . . . and the plaintiffs appealed the dismissal to the Circuit Court for Wilson County . . . .  After concluding that it lacked subject matter jurisdiction to hear the appeal, the circuit court transferred the case to this Court. On appeal, the parties dispute whether this Court has subject matter jurisdiction, and the defendant argues that the ruling of the general sessions court should be affirmed. We conclude that this Court has subject matter jurisdiction to decide this appeal and, discerning no error, we affirm the decision of the general sessions court dismissing the plaintiffs’ legal action pursuant to the TPPA. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/nandigamneurologyv.beavers.opn_.pdf.

NOTE: This is a case of first impression on the recently enacted Tennessee Public Participation Act. Judge Davis does an excellent job of explaining this new law and its application to the facts herein.  Look for the plaintiffs to ask the Tennessee Supreme Court for further review, which might occur given the novelty of this law.  Stay tuned.    

Wednesday, June 02, 2021

New Health Care Liability Action Opinion: Tennessee Supreme Court Holds That Cap on Noneconomic Damages Applies to Claims of Injured Spouse and Derivative Loss-of-consortium Claim in the Aggregate

The Tennessee Supreme Court released its decision today in Yebuah v. Center for Urological Treatment, PLC, No. M2018-01652-SC-R11-CV (Tenn. June 2, 2021).  The syllabus from the slip opinion reads:

This is a healthcare liability action involving the application of the statutory cap on noneconomic damages to loss of consortium claims. The issue before the Court is whether the statutory cap on noneconomic damages applies separately to a spouse’s loss of consortium claim pursuant to Tennessee Code Annotated section 29-39-102, thus allowing each plaintiff to receive an award of up to $750,000 in noneconomic damages. Here, the surgery patient filed suit for noneconomic damages resulting from the defendant physicians’ negligence, namely that a portion of a Gelport device was unintentionally left in her body after surgery. In the same suit, the patient’s spouse claimed damages for loss of consortium. The jury awarded the patient $4,000,000 in damages for pain and suffering and loss of enjoyment of life. The jury also awarded her husband $500,000 in damages for loss of consortium. The trial court initially applied the statutory cap on noneconomic damages by entering a judgment in favor of both plaintiffs collectively for a total judgment of $750,000. However, the trial court subsequently granted the plaintiffs’ motion to alter or amend and applied the statutory cap to each plaintiff separately, thereby entering a judgment of $750,000 for the patient and $500,000 for her husband. The Court of Appeals affirmed. We hold that the language of Tennessee Code Annotated section 29-39-102 allows both plaintiffs to recover only $750,000 in the aggregate for noneconomic damages. We therefore reverse the holding of the Court of Appeals and the trial court.

Here is a link to the majority opinion: 

https://www.tncourts.gov/sites/default/files/yebuahcynthia.opn_.pdf.

Justices Lee, joined by Justice Clark, dissented; here is that opinion:

https://www.tncourts.gov/sites/default/files/yebuahcynthia.sep_.opn_.pdf.

NOTE: This decision is yet another result of the tort reform pushed by ALEC et al. that treats the citizens of Tennessee unfairly



Friday, May 28, 2021

New Summary Judgment Opinion: Summary Judgment for Defendant Upheld on Appeal Because Plaintiff Failed to Comply with Rule 56.03, Tenn. R. Civ. P.

The Tennessee Court of Appeals has released its decision in Brennan v. Goble, No. E2020-00671-COA-R3-CV (Tenn. Ct. App. May 27, 2021).  The syllabus from the slip opinion reads:
This appeal arose from a personal injury action. The defendant filed a motion for summary judgment, accompanied by a statement of material facts in compliance with Tennessee Rule of Civil Procedure 56.03. The plaintiff responded to the defendant’s motion for summary judgment but failed to respond to the separate statement of material facts. As a result of the plaintiff’s failure to respond to the statement of material facts, the Trial Court deemed those facts as stated by the defendant as admitted and granted summary judgment in favor of the defendant upon its determination that the defendant had negated an essential element of the plaintiff’s claim. Discerning no error, we affirm.
Here is a link to the slip opinion:


NOTE: This is a correct result.  I have seen both movants and nonmovants fail to comply with Rule 56.03's requirement of citing to the record to support or oppose a motion for summary judgment (which does not end well for the noncompliant party).  As noted on page 10 of this decision, Rule 56.03 exists so that a court does not have to unnecessarily dig through an entire record just to determine if a dispute exists as to a material fact.  

Wednesday, May 19, 2021

New Health Care Liability Action Opinion: Denial of Summary Judgment for a Defendant Upheld on Appeal; Authorization for Medical Records Substantially Complied with HIPAA

The Tennessee Court of Appeals released its decision today in Savannah v. State, No. E2020-01232-COA-R9-CV (Tenn. Ct. App. May 19, 2021).  The syllabus from the slip opinion reads:

Parents filed a healthcare liability and wrongful death complaint after the mother delivered a stillborn infant. We granted this interlocutory appeal to review whether the claims commission erred in denying summary judgment to the defendants. Finding no error in the Commission’s ruling, we affirm. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/savannah_leigh_jackson_et_al._v._the_state_of_tennessee_et_al..pdf.

NOTE: This is a must-read decision for any lawyer who handles health care liability action (HCLA) cases governed by Tennessee substantive law.  It addresses whether an authorization required under Tenn. Code Ann. sec. 29-26-121 complies with HIPAA, which has become all-too-common issues in HCLA cases.  

Thursday, May 06, 2021

New Tort Opinion: Summary Judgment for Defense Reversed on Appeal Because Plaintiff Had Demonstrated That a Genuine Issue of Material Fact Existed for Trial

The Tennessee Court of Appeals released its opinion the other day in Davis v. Keith Monuments, No. E2020-00792-COA-R3-CV (Tenn. Ct. App. Apr. 29, 2021).  The syllabus from the slip opinion reads:

Plaintiff filed suit for damages alleging that she had been injured when the headstone at her deceased brother’s grave fell on her and broke bones in her hand. After Defendant, the installer of the headstone, moved for summary judgment, the trial court dismissed Plaintiff’s claims with prejudice. On appeal, we reverse that portion of the trial court’s summary judgment order dismissing Plaintiff’s claim which is based on Defendant’s alleged negligence in installing the headstone.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/sylvia_davis_v._keith_monuments.pdf.

NOTE: This is a great opinion!  It addresses the proper application of the standard of review in summary judgment proceedings, computation of time, and expert-witness qualifications.  If you have to deal with a motion for summary judgment under Tennessee law, you need to read this opinion.   



Wednesday, April 21, 2021

New Health Care Liability Action Opinion: Trial Court's Dismissal of Refiled Suit Upheld on Appeal Due to Failure to Provide Statutorily Required Presuit Notice of Second Suit

The Tennessee Court of Appeals has released its opinion in Byington v. Reaves, No. E2020-01211-COA-R3-CV.  Here is the syllabus from the slip opinion:

This is a health care liability case. The trial court granted Appellees’ motion to dismiss because Appellant failed to provide Appellees with the proper pre-suit notice under Tennessee Code Annotated section 29-26-121(a)(1). Discerning no error, we affirm.

Here is the link to the slip opinion:  

https://www.tncourts.gov/sites/default/files/debra_sue_byington_v._jamie_reaves_d.o._et_al..pdf.

NOTE: Procedurally, this case is mess.  In a nutshell, the suit that is the subject of this appeal, which was plaintiff's second suit against the defendants, was dismissed because the plaintiffs failed to send to the defendants the statutorily required presuit notice letters.  Byington, slip op. at 4–5.  

Wednesday, April 14, 2021

Health Care Liability Action Opinion: Trial Court's Grant of Relief Under Rule 60.02, Tenn. R. Civ. P., Reversed on Appeal

The Tennessee Court of Appeals recently released its decision in Mack v. Baptist Memorial Hospital, No. W2020-00809-COA-R3-CV (Tenn. Ct. App. Mar. 30, 2021).  The syllabus form the slip opinion reads:

This appeal arises from a health care liability action. Darryl G. Rush-Mack . . . died while receiving care at Baptist Memorial Hospital . . . .  Alvin Mack . . . , Kevin Mack, and Darwisha Mack Williams . . . sued the Hospital and Dr. Aaron Kuperman . . . in the Circuit Court for Shelby County . . . .  Defendants filed motions to dismiss, which the Trial Court granted. Thirty days from entry of the order passed without Plaintiffs filing a notice of appeal. Plaintiffs later filed a motion to set aside pursuant to Tenn. R. Civ. P. 60.02 asserting that the order was not stamped to be mailed until six days after it was filed and it went to a PO Box Plaintiffs’ counsel does not use for business. The Trial Court granted the motion and entered a new order of dismissal, from which Mr. Mack appeals. We find that Mr. Mack failed to meet the clear and convincing evidentiary burden necessary for Rule 60.02 relief; indeed, the Trial Court relied only upon statements of counsel rather than evidence. We, therefore, reverse the Trial Court’s grant of Plaintiffs’ Rule 60.02 motion. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/mackalvinopn.pdf.

NOTE: This case is a reminder of the high burden to meet under the clear-and-convincing standard of evidentiary proof.  


Tuesday, April 13, 2021

New Health Care Liability Action Opinion: Trial Court's Dismissal of Case as Being Time-barred Due to a Failure to Comply with Presuit Notice Requirements Upheld on Appeal

The Tennessee Court of Appeals has released its decision in Shaw v. Gross, No. W2019-01448-COA-R3-CV (Tenn. Ct. App. Apr. 13, 2021).  The syllabus form the slip opinion reads:

Appellant appeals the dismissal of her health care liability complaint on the basis of the expiration of the applicable statute of limitations. Because Appellant did not substantially comply with Tennessee Code Annotated section 29-26-121(a)(2)(E), she was not entitled to an extension on the statute of limitations. The trial court’s decision that her complaint should be dismissed is affirmed. 

Here is a link to the slip opinion:

 https://www.tncourts.gov/sites/default/files/shawhelen2opn.pdf.

NOTE: This case is related to my Feb. 9, 2018-blog post.  Tony Duncan, New Health Care Liability Action Opinion: Trial Court Reversed Due to Discovery Rule, Its Decision Vacated Because It Failed to Adhere to the Proper Summary Judgment Standard, Which Leads to a Remand by Court of Appeals, TONY DUNCAN L. BLOG (Feb. 9, 2018, 6:28 PM), http://theduncanlawfirm.blogspot.com/2018/02/new-health-care-liability-action_9.html.

Monday, April 05, 2021

New Case on Attorney Signature to Complaint: Trial Court's Dismissal Reversed on Appeal Because Signature Complied with Tenn. R. Civ. P. 11

The Tennessee Court of Appeals recently issued its decision in Smith v. Gonzalez, No. W2019-02028-COA-R3-CV (Tenn. Ct. App. Apr. 1, 2021).  The syllabus from the slip opinion reads:

This appeal involves a challenge to the trial court’s dismissal of Plaintiff’s complaint. Specifically, Plaintiff contends that the trial court erred in finding that his complaint was deficient per the signature requirements in Rule 11.01(a) of the Tennessee Rules of Civil Procedure. For the reasons stated herein, we reverse the trial court’s dismissal of Plaintiff’s complaint and conclude it is in compliance with the requirements of Rule 11.01. 

Here is link to the slip opinion:

https://www.tncourts.gov/sites/default/files/smithjohnl.opn_.pdf.

NOTE: I am surprised this appeal had to happen.  Lawyers sign for other lawyers "by permission" all . . . the . . . time!  Glad the Tennessee Court of Appeals got this one right.  


Thursday, April 01, 2021

Two New Health Care Liability Action Opinions on Same Issue: Trial Court's Grant of Summary Judgment and Motion to Dismiss Reversed on Appeal Due to Statutory Changes as They Relate to Vicarious Liability

Today, the Tennessee Court of Appeals released its decisions in Gardner v. Saint Thomas Midtown Hospital, No. M2019-02237-COA-R3-CV (Tenn. Ct. App. Apr. 1, 2021) and Ultsch v. HTI Memorial Hospital Corporation, No. M2020-00341-COA-R9-CV (Tenn. Ct. App. Apr. 1, 2021).  Both cases hinge on the same issue and arise from the same trial court.  The common issue being whether a principal in a health care liability action may be held vicariously liable for the acts or omissions of its employees and agents if the statute of limitations was extended as to the principal but not the employees and agents via service of presuit notice letters under Tenn. Code Ann. sec. 29-26-121.  

The syllabus from the slip opinion in Gardner reads:

A patient filed a health care liability claim against a hospital, asserting the hospital was vicariously liable for injuries she suffered as a result of the anesthesia providers’ conduct. The hospital moved for summary judgment, arguing that the anesthesia providers were not employed by the hospital and the hospital was, therefore, not liable for the anesthetists’ actions as a matter of law because the statute of limitations had run on the plaintiff’s direct claims against the anesthesia providers by the time the plaintiff filed her complaint against the hospital. The trial court granted the hospital’s motion and dismissed the plaintiff’s complaint, relying on the common law set forth in Abshure v. Methodist HealthcareMemphis Hospitals, 325 S.W.3d 98 (Tenn. 2010). Acknowledging the conflict between provisions of the Tennessee Health Care Liability Act and the common law, we hold that the statute prevails. Accordingly, we reverse the trial court’s judgment and remand the case for further proceedings.

Here is a link to the Gardner slip opinion:

https://www.tncourts.gov/sites/default/files/gardner.beverly.opn_.pdf.

The syllabus from the slip opinion in Ultsch reads:

This appeal concerns the interplay between the Tennessee Health Care Liability Act [] and the common law on vicarious liability with respect to pre-suit notice in a health care liability claim against the principal only. We have determined that the provisions of the HCLA take precedence over the common law and that the plaintiff’s claims in this case were timely filed. Therefore, we reverse the decision of the trial court.

Here is a link to the Ultsch slip opinion:

https://www.tncourts.gov/sites/default/files/ultsch.dennis.opn_.pdf.

NOTE: Both of these opinions offer an excellent explanation of how a vicarious liability claim may be prosecuted under Tennessee's Health Care Liability Act (f/k/a the Tennessee Medical Malpractice Act). SCOTN will be asked to review these two decisions via a Rule 11 application.  It may deny review, however, because these decision are very well reasoned and jibe with applicable Tennessee law in my humble opinion.  

UPDATE (Oct. 1, 2021): I was wrong.  SCOTN has granted permission to appeal in both cases on Sept. 24, 2021, to wit:

https://tncourts.gov/sites/default/files/sc_discretionary_appeals_list_2021sept27.pdf.



 

Thursday, March 25, 2021

New Health Care Liability Action Opinion: Trial Court's Dismissal of Plaintiff's Case Upheld on Appeal Due to Noncompliance with Statutory Presuit-notice Requirements

The Tennessee Court of Appeals recently released its decision in Woods v. Arthur, No. W2019-01936-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2021).  The syllabus from the slip opinion reads:

This appeal concerns the dismissal of a health care liability action for failure to comply with a pre-suit notice content requirement in Tenn. Code Ann. § 26-29-121(a)(2). The trial court determined that the plaintiff failed to provide the defendant doctors and hospital with medical authorization forms that would permit pre-suit investigation of his claims. The plaintiff contends the dismissal was unwarranted because the medical authorizations substantially complied with the statute and the defendants already had the relevant records. The defendants argue that the forms were invalid because they lacked several required elements, including a description of the purpose for which the records could be disclosed and used. We affirm.

Here is a link to the slip opinion: 

https://www.tncourts.gov/sites/default/files/woodsarthuropn_3.pdf.

NOTE: As I have noted in the past, an authorization may not be needed for the defendants to share medical records.  If that ends up being true, all these decision holding that a case should be dismissed due to some defect in an authorization are wrongly decided.  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.


Monday, March 22, 2021

New Auto Case: Out-of-state Automotive Insurance Policy Construed on Appeal: Summary Judgment for Insuror Reversed and Summary Judgment for Insured to Be Granted on Remand

The Tennessee Court of Appeals just released its opinion in Progressive Specialty Insurance Company v. Kim, No. M2019-01998-COA-R3-CV (Tenn. Ct. App. Mar. 22, 2021).  The syllabus from the slip opinion reads:

After being injured in a car accident, a man filed a negligence lawsuit against several defendants, including the driver of the vehicle and the company that employed the driver. The insurance company that provided insurance coverage to the company in Alabama filed a declaratory judgment action seeking a determination of whether the policy provided liability coverage for the company in the underlying tort action. After the insurance company and the plaintiff in the underlying tort action filed cross-motions for summary judgment, the trial court granted summary judgment to the insurance company based on respondeat superior principles. We conclude that the trial court erred in granting summary judgment to the insurance company because, under Alabama law, the policy provided liability coverage for the company at the time the accident occurred.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/progressivespecialtyins.co_.opn_.pdf.

NOTE: This is an excellent opinion on the doctrine of lex loci contractus (while it does not mention the doctrine specifically, the doctrine is discussed extensively in Nelson v. Nelson, 409 S.W.3d 629 (Tenn. Ct. App. 2013), which is cited on page 4 of this slip opinion). In cases like this one, as a matter of contract, the law of the state where the contract was made controls, i.e., the "lex loci contractus."  Since people are becoming increasingly mobile, and because Tennessee has eight border states, this opinion is a must-read for any lawyer who handles auto tort cases in Tennessee because it explains very well how out-of-state automotive insurance polices are to be interpreted under this doctrine in a Tennessee civil action.    



Tuesday, March 16, 2021

New Case Discussing Proper Procedure for Reviving Tort Suit Against a Tortfeasor Who Dies Before Suit Is Filed: Trial Court's Dismissal of Action as Untimely Upheld on Appeal

The Tennessee Court of Appeals released its decision today in Mott. v. Luethke, No. E2020-00317-COA-R3-CV (Tenn. Ct. App. Mar. 16, 2021).  The syllabus from the slip opinion reads:

Following an automobile accident that occurred on March 22, 2016, the plaintiff filed a cause of action, in the form of a civil summons, in the Washington County General Sessions Court . . . on March 3, 2017, seeking an award of damages from the defendant, who was the other driver involved in the car accident. Unbeknownst to the plaintiff, however, the defendant had passed away in December 2016. On January 31, 2018, the plaintiff filed a “re-issue[d]” summons to be served upon the administrator ad litem of the decedent’s estate. After the matter was subsequently transferred to Washington County Circuit Court . . . , the trial court granted the administrator’s motion for summary judgment, determining that the plaintiff had failed to timely file his tort action against the personal representative within the applicable statute of limitations. The trial court consequently dismissed the plaintiff’s claims with prejudice. The plaintiff has appealed. Discerning no reversible error, we affirm.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/vernon_mot_v._k_jeffrey_luethke_esq._et_al..pdf.

NOTE: This is an excellent decision!  It is also a must-read one for any lawyer who must deal with the issue of revivor of a claim against a tortfeasor who dies before suit is filed under Tennessee substantive law.  It also touches upon equitable estoppel.  Worth the time it takes to read it.   



Monday, March 01, 2021

New Case on Judgment on the Pleadings and the Discovery Rule to Toll the Statute of Limitations in a Legal Malpractice Case

In October 2020, the Tennessee Court of Appeals released its opinion in Culpepper v. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., No. E2019-01932-COA-R3-CV (Oct. 16, 2020).  The syllabus from the slip opinion reads:

In this legal malpractice action, the trial court granted judgment on the pleadings in favor of the defendants, determining that the plaintiff had waived any conflict of interest in his signed engagement letter. The court also ruled that the plaintiff’s legal malpractice claims were barred by the applicable statute of limitations. The plaintiff has appealed. Upon our review of the pleadings and acceptance as true of all well-pleaded facts contained in the plaintiff’s complaint and the reasonable inferences that may be drawn therefrom, we determine that the plaintiff has pled sufficient facts in support of his claim of legal malpractice. We therefore reverse the trial court’s grant of judgment on the pleadings with regard to the plaintiff’s legal malpractice claim.

(Footnote omitted.)

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/culpepper_v._baker_donelson_e2019-01932.pdf

NOTE: This case discusses judgment on the pleadings and the discovery rule under Tennessee law.  It is a good read.  Please note, however, that it was appealed to SCOTN on January 11, 2021 (https://www2.tncourts.gov/PublicCaseHistory/) and no decision has been made as to whether SCOTN will take it up yet.  Until that happens, one must, obviously, monitor this case before citing it.  Stay tuned.  


Wednesday, February 10, 2021

New Health Care Liability Action Opinion: Trial Court’s Dismissal of Action Against Hospital Upheld on Appeal; Discovery Rule Does Not Apply to Save the Claim

The Tennessee Court of Appeals has released its opinion in Karr v. Thomas Midtown Hospital, No. M2020-00029-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2021).  The syllabus from the slip opinion reads:

This appeal concerns the dismissal of a health care liability action against Saint Thomas Midtown Hospital, Saint Thomas Health, and Ascension Health. The trial court dismissed the complaint with prejudice on the ground the statute of limitation, through the application of the discovery rule, barred all of the claims. The plaintiffs appealed. We affirm.

Here is a link to the slip opinion:

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

NOTE; This opinion offers up an excellent explanation of the discovery rule and how it applies to toll the statute of limitations under certain circumstances.  It would behoove anyone interested in the discovery rule to read this opinion.  



Friday, January 29, 2021

New Opinion on Recently Enacted Tennessee Law Extending One-year Statute of Limitations for Personal Injury Actions to Two Years Based upon Certain Criminal Charges Being Brought Against Tortfeasor: Trial Court's Denial of Defendant's Motion for Summary Judgment Based upon That New Law Upheld on Appeal

Yesterday the Tennessee Court of Appeals released its decision in Younger v. Okbahhanes, No. E2020-00429-COA-R10-CV (Tenn. Ct. App. Jan,. 28, 2021).  The syllabus from the slip opinion reads:

This appeal arises from a personal injury action. The plaintiff filed this action more than one year after the vehicle collision from which the cause of action accrued. The defendant filed a motion for summary judgment, arguing that the plaintiff’s action was untimely. The plaintiff filed a response arguing that the statute of limitations for personal injury actions was extended to two years, pursuant to Tennessee Code Annotated § 28-3-104(a)(2), due to the traffic citation issued to the defendant for failure to exercise due care in violation of section 55-8-136 as a result of the vehicle collision. The Trial Court found that section 28-3-104(a)(2) was applicable to extend the statute of limitations to two years because the defendant had been charged with a criminal offense and a criminal prosecution had been commenced against him. Discerning no error, we affirm.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/e2020-429_younger_v._okbahhanes.pdf

NOTE: This opinion hinges on statutory construction.  As it points out, the primary goal of a court in interpreting a statute is to "apply the plain meaning of a statute’s words in normal and accepted usage without a forced interpretation."  Younger, slip op. at 5 (emphasis added) (quoting Baker v. State, 417 S.W.3d 428, 433 (Tenn. 2013).  That is exactly what the court did here.  

Further, another canon of statutory construction is reductio ad absurdum, which means reduction to the absurd; such an interpretation is to be avoided. Ronald Benton Brown & Sharon Jacobs Brown, Statutory Interpretation: The Search for Legislative Intent 73 (NITA 2d. ed. 2011) [hereinafter Intent at _____ ].  I would submit that the defendant's offered interpretation of Tenn. Code Ann. sec. 28-3-104(a)(2) is a reduction to the absurd, and that is yet another reason (aside from just the statute's plain meaning) to reject that forced interpretation. Compare Tenn. Code Ann. § 28-3-104(a)(2) (LEXIS through 2020 Reg. Sess. and Second Extraordinary Sess.) with Intent, supra, at 73; see also Black's Law Dictionary 1283 (West Grp. 7th ed. 1999) (defining reductio ad absurdum).

Lastly, this decision is absolutely correct in my professional opinion.  However, look for the defendant to seek review of it by SCOTN via an application for permission to appeal via Rule 11 of the Tenn. Rules of Civil Procedure.  Due to this portion of the statute's novelty (enacted in 2015; amended subsection (a)), I think SCOTN might take this one up.  However, I also think if it does it will affirm this decision.  My two cents' worth.

Wednesday, January 27, 2021

New Decision from the Tennessee Court of Appeals on Premises Liability: Summary Judgment for Defendant Reversed on Appeal

The Tennessee Court of Appeals released its decision today in Vaughn v. DMC-Memphis, LLC, No. W2019-00886-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2021).  The syllabus from the slip opinion reads:

Plaintiff filed a claim in general sessions court for injuries she allegedly received when she fell in standing water on the defendant’s premises. Judgment was rendered in favor of the defendant, and the plaintiff appealed to circuit court. The defendant then filed a motion for summary judgment arguing that it owed no duty to the plaintiff and that she was at least 50% at fault for her injuries. In support, the defendant relied on plaintiff’s testimony from the trial in general sessions court. The circuit court granted the motion for summary judgment, and plaintiff again appealed. We vacate the judgment of the trial court.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/vaughntopn_1.pdf

NOTE: This case is a premises liability case.  This decision offers an excellent analysis of Tennessee law on the element of duty in a negligence action and the affirmative defense of a plaintiff’s comparative fault.  It is worth the read in my humble opinion.  




Tuesday, January 26, 2021

New Health Care Liability Action Opinion: Tennessee Supreme Court Upholds Dismissal of Defendants

The Tennessee Supreme Court just released its decision in Bidwell ex rel. Bidwell v. Strait, No. E2018-02211-SC-R11-CV (Tenn. Jan. 26, 2021).  The syllabus from the slip opinion reads:

James Bidwell filed this health care liability action individually and on behalf of his deceased wife, Clarissa Bidwell, and her estate against Drs. Timothy Strait and Jeffrey Colburn (“the physician Defendants”) and the entities he believed to be their employers—the Neurosurgical Group of Chattanooga, P.C., EmCare Inc., and Envision Healthcare Corporation. Mr. Bidwell timely provided pre-suit notice to the named defendants and timely filed his lawsuit. Mr. Bidwell did not provide Chattanooga-Hamilton County Hospital Authority (“Erlanger”) with pre-suit notice, nor did he name Erlanger as a defendant. Furthermore, Dr. Strait and Dr. Colburn did not provide Mr. Bidwell written notice of Erlanger as their correct employer within thirty days of receiving pre-suit notice. See Tenn. Code Ann. § 29-26-121(a)(5). Dr. Strait answered Mr. Bidwell’s complaint, denying the allegations made against him and asserting that he was employed by Erlanger at all relevant times. Dr. Colburn similarly answered, denying the allegations made against him and that either EmCare Inc. or Envision Healthcare Corporation was his employer. Drs. Strait and Colburn then moved for summary judgment arguing that, pursuant to the Governmental Tort Liability Act, no judgment could be rendered against them because Mr. Bidwell had failed to name as a defendant their actual employer, Erlanger. See Tenn. Code Ann. § 29-20-310(b). Within ninety days of Dr. Strait’s and Dr. Colburn’s answers, Mr. Bidwell filed two motions for leave to amend his complaint to add Erlanger as a defendant. Mr. Bidwell relied on Tennessee Code Annotated section 20-1-119, which provides a plaintiff with a ninety-day “grace period” within which to amend a complaint when comparative fault “is or becomes an issue,” and section 29-26-121(a)(5), which he argued required the physician Defendants to notify him of Erlanger within thirty days of receiving pre-suit notice. The trial court granted Dr. Strait’s and Dr. Colburn’s motions for summary judgment, finding that Mr. Bidwell’s motions to amend were futile because he had not provided Erlanger with presuit notice. Mr. Bidwell appealed, and the Court of Appeals vacated the trial court’s orders granting summary judgment and remanded the case for further proceedings. Dr. Strait and Dr. Colburn subsequently filed an application for permission to appeal with this Court. We hold that, although the physician Defendants failed to comply with section Tennessee Code Annotated 29-26-121(a)(5), the statute provides no remedy for noncompliance, and their noncompliance does not constitute extraordinary cause sufficient to excuse Mr. Bidwell’s failure to provide Erlanger with pre-suit notice. However, we additionally hold that Dr. Strait’s and Dr. Colburn’s answers sufficiently asserted Erlanger’s comparative fault. Therefore, Mr. Bidwell was entitled to amend his complaint to name Erlanger as a defendant pursuant to section 20-1-119, so long as he amended his complaint and caused process to issue to Erlanger within ninety days of Dr. Strait’s answer—the first answer alleging Erlanger’s fault. Because section 20-1-119 applied, Mr. Bidwell was not obligated to provide Erlanger with pre-suit notice under Tennessee Code Annotated section 29-26-121(c). We conclude that, because the record on appeal reflects that Mr. Bidwell failed to file an amended complaint and cause process to issue, he is not entitled to amend his complaint to add Erlanger as a defendant. Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals on the grounds stated herein and reinstate the trial court’s orders granting the physician Defendants’ motions for summary judgment and denying the Plaintiff’s motions to amend.

Here is a link to the majority opinion:

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

Here is a link to Justice Lee's partial concurrence and dissent:

http://www.tncourts.gov/sites/default/files/bidwell.clarissa.l._sep.opn_.pdf

Here is Justice Kirby's concurrence:

http://www.tncourts.gov/sites/default/files/bidwell.clarissa.k.sep_._opn.pdf

NOTE: There is a lot going on in this opinion.  Taken down to its base element, it appears that the physician-employees were sued before the statute of limitations had expired but the hospital-employer was not, which meant the physicians could not be sued individually because the hospital happened to be a governmental entity, and also because the hospital was not added as a party-defendant within ninety days of an answer being filed as allowed by Tenn. Code Ann. sec. 20-1-119.  

Lastly, there are no consequences for when a defendant fails to notify a claimant of other potentially at-fault persons as required by Tenn. Code Ann. sec. 29-26-121(a)(5). 



Monday, January 18, 2021

New Health Care Liability Action Opinion: Trial Court’s Grant of Summary Judgment to the Defendant Upheld on Appeal in GTLA Case

The Tennessee Court of Appeals recently released its opinion in Williamson v. Regional One Health, No. W2019-02213-COA-R3-CV (Tenn. Ct. App. Jan. 15, 2021).  The syllabus from the slip opinion reads:
In this healthcare liability action, Appellant/patient appeals the trial court’s grant of summary judgment in favor of Appellee/hospital. The trial court granted summary judgment based, inter alia, on its conclusion that Appellant failed to provide evidence that Appellee’s immunity under the Governmental Tort Liability Act is waived due to some action/inaction of its employee. Affirmed and remanded.
Here is a link to the slip opinion:


NOTE: This opinion offers a good explanation of Tennessee’s law on health care liability (formerly medical malpractice) as it intersects with its law on governmental tort liability.  It is worth the read if you handle these types of cases.