Trial Court's Dismissal of Tort Action Upheld on Appeal Because Plaintiff Did Not Timely Commence the Action Against the Personal Representative of the Deceased Tortfeasor's Estate Within the Applicable Statute of Limitations

The Tennesse Court of Appeals has released its opinion in McMickens v. Perryman, No. W2022-00445-COA-R3-CV (Tenn. Ct. App. May 31, 2023). The slip opinion reads: 

The plaintiff filed this personal injury action following an automobile accident in which the other driver died. The plaintiff originally named the defendant as “John Doe, as Administrator of the Estate of [the deceased driver].” The trial court dismissed the action on the basis that the plaintiff failed to timely commence the action against the personal representative of the estate within the applicable statute of limitations. We affirm and remand.

Here is a link to the opinion: IN THE COURT OF APPEALS OF TENNESSEE (tncourts.gov).

NOTE: As footnote 2 of the opinion points out, since this a memorandum opinion under Rule 10 of the Tennessee Court of Appeals, it shall not be published, and shall not be cited or relied on for any reason in any unrelated case. With this in mind, however, the authorities cited in this opinion may be cited and relied on in other cases. As a result, this is a cautionary tale of how important it is to properly commence a civil action against a tortfeasor who has died before the lawsuit is filed. 

Trial Court's Finding of No Fault by Governmental Entity Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Ware v. Metro Water Services, No. M2022-01114-COA-R3-CV (Tenn. Ct. App. May 30, 2021). The syllabus from the slip opinion reads:

Plaintiff sued for personal injuries under the Tennessee Governmental Tort Liability Act, alleging she had experienced a fall due to an unsecure water meter valve cover located in her sister’s yard. Following a bench trial, the trial court entered an order finding that Plaintiff had not met her burden of proof. Although Plaintiff appeals the dismissal of her case, we affirm the trial court’s judgment.

Here is a link to the opinion: Majority Opinion M2022-01114-COA-R3-CV.pdf (tncourts.gov).

NOTE: This opinion offers a good discussion of circumstantial evidence, which makes it worth reading. Good stuff. 

Trial Court's Dismissal of Pro Se Legal Malpractice Claim as Being Barred by the Statute of Limitations Upheld on Appeal

The Tennessee Supreme Court has released its opinion in Garrett v. Weiss, No. E2022-01373-COA-R3-CV (Tenn. Ct. App. May 25, 2023). The syllabus from the slip opinion reads:

The pro se plaintiff appeals the trial court’s summary judgment dismissal of his legal malpractice action against his attorney and the attorney’s law firm. The trial court found that the action was barred by the applicable one-year statute of limitations. Because the plaintiff’s action accrued more than one year before he filed the lawsuit, we affirm.

Here is a link to the opinion: Bradley Garrett v William Weiss.pdf (tncourts.gov).

NOTE: This opinion addresses the standard of review for summary judgment when the movant has the burden of proof on the issue at trial (here, the defendant as to a defense based on the statute of limitations); accrual of legal malpractice actions under the discovery rule, and waiver of issues on appeal. This is a good read in my humble opinion because of these topics. 

New Case on Malicious Prosecution: Plaintiffs' Malicious Prosecution Claim Did Not Accrue Until Defendant's Time to File a Brief on Appeal Expired

The Tennessee Court of Appeals has issued its decision in Cordova v. Martin, No. M2021-01412-COA-R3-CV (Tenn. Ct. App. May 24, 2023). The syllabus from the slip opinion reads:

This is an action for malicious prosecution of an attorney’s fee claim. The plaintiffs contend that the trial court improperly granted summary judgment to the defendant under the oneyear statute of limitations in Tennessee Code Annotated § 28-3-104(a)(1). The court held that the plaintiffs’ cause of action accrued when the allegedly-malicious prosecution terminated, and it held that the prosecution terminated when the first court denied the defendant’s motion to alter or amend the judgment under Tennessee Rule of Civil Procedure 59.04. The plaintiffs contend that this is wrong because the defendant was a party to and participated in the appeal of those proceedings. They assert that the defendant’s action did not terminate until he exhausted his appellate remedies. We agree and hold that the defendant’s cause of action did not terminate until his time for filing an appellate brief expired. Thus, we reverse the decision of the trial court and remand with instructions to reinstate the complaint and for further proceedings consistent with this opinion.

Here is a link to the slip opinion: Majority Opinion M2021-01412-COA-R3-CV.pdf (tncourts.gov).

NOTE: This opinion does a good job of explaining the accrual of these types of claims; it is a good read. 

New Health Care Liability Action Opinion: Defendant (Who Was a Healthcare Provider) Cannot Be Compelled to Provide Expert Opinion Testimony About Another Defendant Provider's Standard of Care or Deviation from Said Standard

The Tennessee Supreme Court has released its opinion in Borngne v. Chattanooga Hamilton County Hospital Authority, No. No. E2020-00158-SC-R11-CV (Tenn. May 23, 2023). The syllabus from the slip opinion reads:

This appeal primarily concerns the compulsion of a physician’s deposition testimony in a health care liability action. In 2014, a child was born via cesarean section and suffered permanent brain damage and severely debilitating injuries. By and through her next friend and mother Brittany Borngne (“Plaintiff”), the child sued the doctor who delivered her and the certified nurse midwife who was initially in charge of the birthing process, among other defendants. The trial court dismissed all claims of direct negligence against the defendant physician but allowed the [P]laintiff to proceed against the physician on a vicarious liability theory as the midwife’s supervising physician. However, during his deposition prior to trial, the physician refused to opine on the midwife’s performance outside of his presence. The trial court declined to require the physician to do so, and after a trial, the jury found in favor of the defendants. The Court of Appeals, in a divided opinion, partially reversed the judgment. The intermediate court concluded, among other things, that the trial court committed reversible error in declining to order the physician to answer the questions at issue in his deposition and remanded for a new trial. After review, we hold that a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard. We therefore conclude that the trial court here properly declined to compel the defendant physician’s testimony. Accordingly, we reverse the decision of the Court of Appeals and affirm the trial court’s judgment.

Here is a link to the majority opinion: 

Majority Opinion E2020-00158-SC-R11-CV-Page.pdf (tncourts.gov).

Justice Campbell wrote a concurring opinion as to the judgment but not reasoning that was joined by Justice Kirby:

Separate Opinion E2020-00158-SC-R11-CV-Campbell.pdf (tncourts.gov).

Justice Lee wrote a concurring opinion that takes issue with Justice Campbell's concurring in judgment opinion that was joined by Justice Kirby:

Separate Opinion E2020-00158-SC-R11-CV-Lee.pdf (tncourts.gov).

Here is Justice Kirby's opinion that also concurs with the results but not the reasoning of the majority opinion:

Separate Opinion E2020-00158-SC-R11-CV-Kirby.pdf (tncourts.gov).

NOTE: This decision relates to my July 1, 2021-post, to wit: 

Tony Duncan Law: New Health Care Liability Action Opinion: New Trial Ordered Due to Trial Court Errors as to Expert Witness Testimony and Premajority Medical Expenses (theduncanlawfirm.blogspot.com).

This decision is a rarity in Tennessee SCOTN jurisprudence due to the number of opinions released by the justices. All are must-read opinions for any lawyer who handles Tennessee health care liability actions. 

New Health Care Liability Action Opinion: SCOTN Determines Amended Complaint Filed as of Matter of Right Under Rule 15 of the Tennessee Rules of Civil Procedure Is Determinative and Remands Case Back to COATN to Address Issues Previously Deemed Pretermitted

The Tennessee Supreme Court has issued its decision in Ingram v. Gallagher, No. E2020-01222-SC-R11-CV (Tenn. May 17, 2023). The slip opinion's syllabus reads:

The issue before us is whether the voluntary dismissal of a defendant in a multi-defendant case that is governed by the Governmental Tort Liability Act (“GTLA”) may be set aside and the claim against the dismissed defendant reinstated on the motion of a plaintiff pursuant to Tennessee Rule of Civil Procedure 54.02. The plaintiff in this case initiated a healthcare liability action against a physician, a hospital, and two other defendants. Before any responsive pleading was filed by any defendant, the plaintiff filed an amended complaint, naming only the physician as a defendant. The plaintiff subsequently filed a notice of voluntary dismissal that dismissed all of the defendants except the physician, and the trial court entered an order of voluntary dismissal the following day. In his answer to the amended complaint, the physician argued that the lawsuit should be dismissed under the GTLA because the hospital, which was his employer and a governmental entity, was not a defendant. The plaintiff subsequently filed a motion to alter or amend in which he sought to set aside the trial court’s order voluntarily dismissing the hospital from the action. The trial court denied the motion to alter or amend. The trial court later dismissed the hospital from the action with prejudice and granted a motion for summary judgment filed by the physician. The Court of Appeals reversed, concluding that the trial court erred in denying the plaintiff’s motion to alter or amend the order of voluntary dismissal. Upon our review of this case, we do not reach the question of whether the voluntary dismissal order could be altered or amended pursuant to Rule 54.02. Because the plaintiff removed the hospital from the lawsuit when he filed his amended complaint, the plaintiff’s notice of voluntary dismissal and the trial court’s order of voluntary dismissal were of no legal effect. Accordingly, there was no valid order of voluntary dismissal to alter or amend. As a result, we reverse the decision of the Court of Appeals and remand the case to the Court of Appeals for consideration of the issues it deemed pretermitted as moot.

Here is a link to the opinion:

NOTE: This post is related to my June 20, 2021-post, to wit: Tony Duncan Law: New Health Care Liability Action Opinion: Trial Court's Denial of Motion to Revise Interlocutory Order Reversed on Appeal (theduncanlawfirm.blogspot.com). SCOTN got this one correct in my humble opinion. 

New Health Care Liability Action Opinion: Trial Court's Grant of Summary Judgment to Defense Reversed on Appeal Because Standard-of-Care Expert Was Qualified to Testify, Etc.

The Tennessee Court of Appeals released its opinion in Owens v. Vanderbilt University Medical Center, No. M2021-01273-COA-R3-CV (Tenn. Ct. App. May 18, 2023). The syllabus from the slip opinion reads: 

A patient brought a health care liability action against a hospital after she developed a pressure wound during her hospital stay. The hospital moved for summary judgment on the ground that the patient’s standard of care expert was not competent to testify under the Health Care Liability Act. Alternatively, it sought to narrow the remaining claims through a partial summary judgment. The trial court disqualified the expert witness and granted the hospital summary judgment on all claims. The court’s decision was based, in part, on grounds not raised in the hospital’s motion for summary judgment. Because we conclude that the expert was competent to testify and the trial court erred in ruling on additional grounds not raised by the movant, we vacate the judgment in part.

Here is a link to the opinion: 

Majority Opinion 2021-1273-COA.pdf (tncourts.gov)

NOTE: This opinion offers a good discussion of expert-witness qualifications in a health care liability action (f/k/a medical malpractice case) and summary-judgment practice under Tennessee law. 

New Health Care Liability Action Opinion: Trial Court's Dismissal Reversed on Appeal; Plaintiff Allowed to Conduct Limited Discovery to Determine Whether Defendants Were Prejudiced by a Medical Records Authorization That Did Not Comply with HIPAA

The Tennessee Court of Appeals has released its opinion in Hayward v. Chattanooga-Hamilton County Hosp. Auth., No. E2022-00488-COA-R3-CV (Tenn. Ct. App. Apr. 27, 2023). The syllabus reads:

This health care liability action was brought against a hospital and a physician. The plaintiff sent pre-suit notice to three1 potential defendants prior to initiating the action. The trial court found, however, that the plaintiff failed to include as part of the pre-suit notice a HIPAA-compliant medical authorization because one of the six core elements was incorrect on the authorization. Following a motion to dismiss filed pursuant to Tenn. R. Civ. P. 12.02(6), the trial court granted the motion and dismissed the action against the defendant hospital due to noncompliance with Tenn. Code Ann. § 29-26-121. The plaintiff argues, among other things, that he should have been allowed to conduct limited discovery in order to determine whether the defendant hospital had been prejudiced by his failure to provide a HIPAA-compliant medical authorization. We vacate the trial court’s grant of the motion to dismiss and hold that the plaintiff should have been permitted to conduct limited discovery regarding whether prejudice existed for the trial court to consider in its determination of whether the plaintiff substantially complied with the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121.

Here is a link to the slip opinion: E2022-00488.pdf (tncourts.gov)

NOTE: Look for the defense to ask the Tennessee Supreme Court to review this case (via Tenn. R. App. P. 11), which is virtually guaranteed. Itis noteworthy to point out that this case cites HIPAA's health care operations exception in support of its holding (which allows the disclosure of a patient's protected health information without a signed disclosure. As a result, this is a must-read opinion for any lawyer who handles health care liability actions under Tennessee substantive law.