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:

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

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

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.

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.  

THIS OPINION HAS BEEN OVERRULED ON FURTHER APPEAL BY THE TENNESSEE SUPREME COURT. That opinion is at this link:

Tony Duncan Law: New SCOTN Opinion: Dismissal of Complaint Due to the Fact that Governmental Immunity Is Removed for "Negligent" Employee Conduct and Not "Reckless" Conduct Upheld on Appeal (theduncanlawfirm.blogspot.com).

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.  

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.  

UPDATE: SCOTN granted permission to appeal in this case on Oct. 16, 2021, to wit: https://tncourts.gov/sites/default/files/sc_discretionary_appeals_list_2021oct18.pdf.

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.