New Health Care Liability Action Opinion: Trial Court's Denial of Dismissal with Prejudice of Complaint for Failure to File a Certificate of Good Faith Upheld on Appeal Due to the Application of the Common Knowledge Exception to the General Requirement of Expert Testimony to Prove Elements of Such a Claim

The Tennessee Court of Appeals has issued its opinion in Mears v. Nashville Center for Rehabilitation and Healing, LLC, No. M2022-00490-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2023). The syllabus from the opinion reads:

Plaintiff alleges she was injured from a fall at a skilled nursing facility while using a defective shower chair with a broken lock and torn netting. The circuit court concluded the Plaintiff did not need to file a certificate of good faith under the Tennessee Health Care Liability Act because the common knowledge exception is applicable and the complaint’s negligence allegations do not require expert testimony. The nursing facility appeals, arguing expert testimony is required to establish both the standard of care and proximate causation; therefore, a certificate of good faith must be filed. Because the allegations set forth in the complaint do not require expert testimony to maintain the Plaintiff’s claim, we affirm the circuit court’s judgment.

Here is a link to the slip opinion: Majority Opinion 2022-490-COA.pdf (tncourts.gov).

NOTE: This is a health care liability action (HCLA), formerly known as a "medical malpractice case." The plaintiff failed to serve the defendant with the required presuit notice under Tennessee Code Annotated section 29-26-121, which required that the suit be dismissed without prejudice. (It is noteworthy that the opinion makes no mention of when the complaint was filed relative to the date of the alleged injury, which matters; that was not an issue in this appeal, however, and as a result I will not address it here.) Plaintiff also did not file a certificate of good faith (CGF) with the complaint as is generally required under section 29-26-122. Under -122m the defense sought dismissal with prejudice due to the lack of a CGF. A CGF is only required, however, when expert testimony under section 29-26-115 is required; one is not required when a case falls within the common knowledge exception (CKE) to the general requirement of expert testimony to prove the elements of a HCLA (under section 29-16-115(a)). This opinion does an excellent job of describing when the CKE applies in a HCLA. Here is an excerpt from the opinion, which is pure gold, to wit: 

Accordingly, Ms. Mears’s negligence claim can be established by lay testimony alone. Like an electrical circuit sending current to illuminate a light, the bulb in Ms. Mears’s case has turned on as a result of current flowing all the way through standard of care, breach, and proximate causation, without need of expert testimony. Though expert testimony in connection with damages may make the bulb burn brighter through increased damages, it has been illuminated already. It has been illuminated already through setting forth a claim which can be supported by lay testimony, thereby demonstrating her claim possesses some merit and is non-frivolous.

Mears, supra, slip op. at 13 (emphasis added).

This, again, is an excellent opinion on the CKE in a HCLA.

New Health Care Liability Action: Trial Court's Dismissal Upheld on Appeal Due to Plaintiffs' Counsels' Failure to Send Presuit Notice to Employer as Required by Tennessee's Governmental Tort Liability Act, Etc.

The Tennessee Court of Appeals has released its decision in Fisher, v. Smith, W2022-00779-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2023). The syllabus from the slip opinion reads:

This appeal arises from a health care liability action. The plaintiffs filed their complaint against a physician and a surgical practice after the expiration of the statute of limitations, relying on the 120-day extension under Tennessee Code Annotated section 29-26-121(c). However, the physician was not employed by the surgical practice during the treatment at issue but was employed by a governmental entity that was not named as a defendant. Both the physician and the surgical practice filed motions to dismiss, which were ultimately treated as motions for summary judgment due to consideration of matters outside the pleadings. Afterward, the plaintiffs filed a motion for leave to amend their complaint to substitute parties. Pursuant to section 29-20-310(b) of the Tennessee Governmental Tort Liability Act, the trial court found that the plaintiffs had to sue the governmental entity in order to sue the physician individually. The court found that the motion for leave to amend the complaint was futile because the statute of limitations had run as to any claim against the governmental entity. The court explained that any claim against the governmental entity would be time-barred even if it related back to the date of the filing of the complaint. The court further explained that the plaintiffs relied on the 120-day extension contained in section 29-26-121(c) when they filed their complaint and that the extension did not apply to any potential claim against the governmental entity because they failed to provide presuit notice to it. The court also noted that the plaintiffs unduly delayed seeking to amend their complaint despite being explicitly informed before filing their complaint who the physician did and did not work for. Additionally, the court found that the surgical practice was not involved in the treatment at issue and did not employ the physician or any of the medical providers involved. Thus, the court found that the surgical practice negated an essential element of the plaintiffs’ claim against it and demonstrated the evidence was insufficient to establish such a claim. Accordingly, the court granted the defendants’ motions and denied the plaintiffs’ motion for leave to amend the complaint to substitute parties. The plaintiffs appeal. We affirm.

Here is a link to the slip opinion: FisherKimberlyDETALOPN.pdf (tncourts.gov).

NOTE: This opinion is correct as a matter of law. Further, it offers a good explanation of presuit notice in Tennessee health care liability actions, motions seeking dismissal or summary judgment, amendments of complaints, and waiver of issues on appeal. It is a good read for any lawyer who handles these types of cases governed by Tennessee law. 

Also, I have no idea why Plaintiffs' counsel did not send presuit notice to the correct employer once they were notified of its existence as required by Tenn. Code Ann. sec. 29-26-121(a)(5).

New Health Care Liability Action Opinion: Trial Court's Grant of Motion to Compel Upheld on Appeal as Modified; Expert's Draft Reports, Notes, Communicaitons with Counsel, Etc., Are Discoverable

The Tennesse Court of Appeals has issued its opinion in Starnes v. Akinlaja, No. E2021-01308-COA-R10-CV (Tenn. Ct. App. Mar. 2, 2023). The syllabus from the slip opinion reads: 

In this health care liability action, the trial court granted the defendants’ motions to compel the plaintiff to produce expert witness materials despite the plaintiff’s claim of the work product doctrine. The trial court subsequently denied the plaintiff’s motion for interlocutory appeal. Upon the plaintiff’s application, this Court granted leave for an extraordinary appeal. Determining that the plaintiff has waived any privilege or protection for specific materials requested by the defendants, including expert witnesses’ notes, draft reports, and communications with counsel, we affirm the trial court’s grant of the defendants’ motions to compel, inclusive of the trial court’s proviso allowing the plaintiff to present specific materials for review if she believes they contain mental impressions of her counsel. However, also determining the trial court’s order to be overly broad, we modify the language of the order to more closely track the language of Tennessee Rule of Civil Procedure 26.02(4)(A)(i) and the defendants’ specific requests.

Here is a link to the opinion: E2021-1308.pdf (tncourts.gov).

Here is Judge Swiney's concurring opinion: E2021-1308 Separate Opinion.pdf (tncourts.gov).

NOTE: This opinion concerns the scope of pretrial discovery, privilege logs, and waiver relating to expert witnesses. Any lawyer who is dealing with such pretrial discovery issues should read this opinion.