New Health Care Liability Action Opinion: Trial Court's Ruling Allowing Plaintiffs to Obtain Surveillance Videos Taken by Defense of a Plaintiff Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Locke v. Aston, No. M2022-01820-COA-R9-CV (Tenn. Ct. App. Sept. 25, 2023). The syllabus from the slip opinion reads:

This is a health care liability action filed by a patient and her husband alleging serious injury as a result of surgery. The plaintiffs learned that the defendants had taken surveillance videos and sought discovery of those videos. The trial court allowed discovery of only the videos that the defendants intended to use at trial for impeachment purposes. The trial court gave the plaintiffs permission to seek an appeal under Tenn. R. Civ. P. 9. This Court granted the appeal. We affirm the trial court’s decision.

Here is a link to the opinion: Majority Opinion - M2022-01820-COA-R9-CV.pdf (tncourts.gov).

NOTE: While this is a health care liability action (f/k/a a medical malpractice case), this opinion offers a much-needed discussion of the discoverability of surveillance video taken in conjunction with a Tennessee state court lawsuit. This is one every lawyer who practices civil law in Tennessee must read. 

New Health Care Liability Action Opinion: Trial Court's Grant of Summary Judgment to the Defense Reversed on Appeal Because There Are Genuine Issues of Material Fact as to When This Cause of Action Accrued, the Propriety of the Presuit Notice, and Causation and Damages

The Tennessee Court of Appeals released its opinion in Vilas v. Love, No. W2022-01071-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2023). The syllabus from the slip opinion reads:

In this health care liability action, the trial court granted summary judgment to the appellee surgeon based on the expiration of the statute of limitations and the appellant patient’s failure to show evidence of causation and damages. On appeal, we conclude that (1) there is a genuine dispute of material fact as to when the appellant’s cause of action accrued; (2) the trial court did not specifically rule on the propriety of appellant’s pre-suit notice; and (3) there are genuine disputes of material facts as to the causation and damages elements of the appellant’s claim. Accordingly, we reverse in part, vacate in part, and remand for further proceedings. 

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

NOTE: This is a great read because it offers excellent analysis of accrual of claims, presuit notice, and causation and damages in health care liability actions (f/k/a medical malpractice cases). 

New Health Care Liability Action Opinion: Trial Court's Dismissal of Vicarious Liability Claims Against Hospital Upheld on Appeal Because the Alleged Agent, a Physician, Had Been Released by the Plaintiff's Conservator

The Tennesse Court of Appeals has released its opinion in Hamilton ex rel. McGill v. Methodist Healthcare Memphis Hospitals, No. W2022-00054-COA-R3-CV (Tenn. Ct. App. Oct. 16, 2023). The opinion's syllabus reads:

This appeal arises from a health care liability action filed in circuit court by a conservator on behalf of a ward. After a three-week jury trial resulted in a mistrial, the conservator took a nonsuit. The conservator refiled the complaint against only one defendant hospital, asserting that it was vicariously liable for the actions of a doctor based on a theory of apparent agency. The defendant hospital moved for summary judgment on the basis that the conservator had entered into a consent agreement agreeing not to sue the doctor in the refiled suit if the doctor agreed to withdraw his motion for discretionary costs. According to the defendant hospital, this agreement releasing the alleged agent from liability extinguished the conservator’s right to pursue a vicarious liability claim against the principal. In response, the conservator took the position that the consent agreement was not binding because it was never approved by the probate court that appointed her. The circuit court granted summary judgment to the defendant hospital, finding that the order appointing the conservator authorized her to dispose of property, execute instruments, enter into contracts, pursue legal causes of action, and manage money, thereby authorizing her to enter into the consent agreement. The circuit court found nothing in the order of appointment, the relevant statutes, or caselaw that would impose a mandatory requirement for approval of the settlement by the probate court. Because the conservator had released the alleged agent from liability, the circuit court found that the conservator could not pursue vicarious liability claims against the defendant hospital. The conservator filed a motion to alter or amend, asking the circuit court to consider an “Advisory Opinion” of the probate court on the matter. The circuit court denied the motion, explaining that it respectfully disagreed with the Advisory Opinion of the probate court. The conservator appeals. We affirm and remand for further proceedings.

Here is a link to the opinion: HamiltonDianne2OPN.pdf (tncourts.gov).

NOTE: This opinion is correct and a reminder of why one does not release the agent if one wants to pursue a vicarious liability claim against the principal based on the agent's conduct. This opinion also offers a good discussion about the recent statutory changes affect settlements involving minors and the disabled. 

New Health Care Liability Action Opinion: Trial Court Reversed in Part as to the Sufficiency of the Presuit Notice Provided by Mother of Deceased on Behalf of the Deceased's Minor Children

The Tennessee Court of Appeals has released its opinion in Denson v. Methodist Medical Center of Oak Ridge, No. E2023-00027-COA-R9-CV (Tenn. Ct. App. Oct. 12, 2023). The syllabus reads:

This appeal arises from a health care liability action following the death of Ashley Denson from a cardiac event she suffered after being treated and released from Methodist Medical Center. Ms. Denson was unmarried and had two minor children at the time of her death. The statutorily-required pre-suit notice listed Ms. Denson’s mother, Bobbie J. Denson, as the claimant authorizing notice. The minor children were not identified anywhere in the notice. The subsequent complaint was filed by “ASHLEY DENSON, Deceased, by and through her Next Friend and Mother BOBBIE JO DENSON, and BOBBIE JO DENSON, Individually.” The body of the complaint lists, for the first time, Ashley Denson’s children, and states that Bobbie Denson “brings this action individually, and on behalf of Plaintiff, decedent’s surviving minor children … as Grandmother and Legal Guardian.” The defendants filed motions to dismiss, challenging Bobbie Denson’s standing to bring the action and contending that the pre-suit notice failed to comply with the requirements of the Tennessee Health Care Liability Act.[] The trial court initially granted the motions to dismiss but reversed course after the plaintiff filed a motion to reconsider. We hold that, although Grandmother has standing, the pre-suit notice does not comply with the requirements of the Tennessee Health Care Liability Act. The judgment of the trial court is ultimately affirmed in part and reversed in part.

(Footnote omitted.)

Here is a link the majority opinion: E2023-27 Maj..pdf (tncourts.gov).

Here is a link to Judge McClarty's partial dissent: E2023-27 Dis..pdf (tncourts.gov).

NOTE: Look for the plaintiff's counsel to ask the Tennessee Supreme Court for permission to appeal in this case. Given the importance of this issue of law, inter alia, I predict that permission to appeal will be granted by our High Court. Stay tuned. 

New Health Care Liability Action Opinion: Trial Court's Denial of a Protective Order Regarding What Was Said at a CANDOR Meeting Upheld on Appeal

The Tennessee Supreme Court has released its opinion in Catillo v. Rex, No. E2022-00322-COA-R9-CV (Tenn. Ct. App. Oct. 5, 2023). The syllabus reads:

The plaintiff filed this healthcare liability action against several healthcare providers following the death of her husband. We granted this interlocutory appeal in which the defendants request review of the trial court’s denial of their motion for a protective order to prohibit further inquiry into a meeting held between the defendant hospital and the decedent’s family. We affirm the trial court.

Here is a link to the slip opinion: Castillo v. Rex, M.D. Opinion UNSIGNED.pdf (tncourts.gov).

NOTE: This opinion does a great job of explaining why the quality improvement committee privilege does not apply in this situation. This is a must-read opinion for any lawyer who handles medical malpractice case (f/k/a medical malpractice cases) governed by Tennessee law.