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