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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:

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:

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:

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:

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).