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'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: Summary Judgment for Physician Upheld on Appeal Due to Her Being an Employee of the University of Tennessee and Immune from Suit

The Tennessee Court of Appeals has released its opinion in Parker ex rel. Parker v. Dassow, No. E2021-01402-COA-R3-CV (Tenn. Ct. App. Oct. 20, 2022). The syllabus from the opinion reads:

This appeal involves a healthcare liability action. The plaintiff sued a physician who had interpreted the results of her fetal ultrasound. The physician was employed by a Tennessee state university as a professor. Her job duties included both educational responsibilities and clinical care to patients in the residency clinics. The trial court granted summary judgment in favor of the physician, finding that she had received no personal gain by her act of interpreting the ultrasound. Therefore, the physician possessed absolute immunity under the Tennessee Claims Commission Act for her actions within the scope of her state employment. Discerning no error, we affirm.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/alexandrea_parker_v_jeanie_d._dassow_m.d..pdf.

NOTE: This opinion offers a great discussion of Tennessee's current summary judgment standard and physician immunity in a health care liability action (née medical malpractice case) when the physician is a state employee only not acting for personal gain. 

New Health Care Liability Action Opinion: Summary Judgment for Hospital that Was a Governmental Entity Upheld on Appeal Because It Could Not Be Held Vicariously Liable for the Negligence of Nonemployee Physicians

The Tennessee Court of Appeals released its opinion Howell v. Chattanooga-Hamilton County Hospital Authority, No. E2021-01197-COA-R3-CV (Tenn. Ct. App. Oct. 7, 2022). The syllabus from the slip opinion reads: 

This appeal involves a healthcare liability action. The plaintiffs filed suit against the defendant hospital, which is a governmental entity, alleging negligence by physicians practicing medicine within the hospital emergency department. The supervising physician was not an employee of the defendant hospital but an employee of a company contracting with the defendant hospital. The medical resident physician and medical student treating the patient in the emergency department also were not employees of the defendant hospital. During summary judgment proceedings, the plaintiffs presented no evidence of direct liability by the defendant hospital or of negligence by the nursing staff at the defendant hospital. Plaintiffs presented such evidence only as to physicians not directly employed by the defendant hospital. Determining that the physicians were not employees of the defendant hospital, the trial court held that the defendant hospital could not be held vicariously liable for the actions of these non-employee physicians under the Governmental Tort Liability Act []. As such, the trial court granted summary judgment in favor of the defendant hospital. Discerning no error, we affirm.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/jefferson_howell_v._chattanooga_hamilton_county_hospital.pdf.

NOTE: The bottom line from this opinion is this: a hospital cannot be held vicariously liable for the actions of nonemployee physicians under the Governmental Tort Liability Act.

New Health Care Liability Action Opinion: Motion for Extension of Time to File a Certificate of Good Faith Is Governed under "Good Cause" Standard, Etc.

The Tennessee Court of Appeals has released its decision in Estate of Vickers v. Diversicare Leasing Corp., No. M2021-00894-COA-R3-CV (Tenn. Ct. App. June 13, 2022). The syllabus from the slip opinion reads:

A nursing home resident commenced this health care liability action after she had 18 teeth extracted, after which she suffered excessive bleeding. Before suing, the plaintiff’s daughter, acting as her mother’s attorney in fact, provided each prospective defendant with a form that purported to authorize the release of the plaintiff’s health information as required by Tennessee Code Annotated § 29-26-121(a)(1). Four months later, the plaintiff filed her complaint and a certificate of good faith as required by § 29-26-122(a). The defendants responded by moving to dismiss the complaint, arguing that the pre-suit authorizations were invalid because the daughter lacked the authority to make “health care decisions” for the plaintiff. The trial court denied the motions, finding the general power of attorney authorized the daughter to release the plaintiff’s medical records. After the plaintiff filed an amended complaint to add a claim for lack of informed consent, the defendants moved to dismiss all claims set forth in the amended complaint based on the plaintiff’s failure to file a new certificate of good faith. The plaintiff argued that a new certificate was unnecessary; nevertheless, she moved for an extension of time to comply. Following a hearing, the court found that a new certificate of good faith was required by § 29-26-122(a) because the amended complaint asserted a new claim. The court also denied the plaintiff’s motion for an extension of time to comply on the ground that the plaintiff failed to establish “extraordinary cause” to justify an extension. Based on these findings, the court granted the defendants’ motions to dismiss all claims. This appeal followed. We agree that a new certificate of good faith was required; however, we find that the trial court applied an incorrect legal standard to deny the motion for an extension of time in which to comply. This is because the standard applicable to a motion for an extension of time to comply is “good cause,” not “extraordinary cause,” and good cause is a less exacting standard than extraordinary cause. See Stovall v. UHS Lakeside, LLC, No. W2013-01504- COA-R9-CV, 2014 WL 2155345, at *12 (Tenn. Ct. App. Apr. 22, 2014) (citations omitted), overruled on other grounds by Davis ex rel. Davis v. Ibach, 465 S.W.3d 570 (Tenn. 2015). Accordingly, this issue, along with the trial court’s decision to dismiss the entire amended complaint, are vacated and remanded for further consideration by the trial court. As a result, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/estate.of_.jennifer.d.vickers.opn_.pdf.

NOTE: This is an informative read for any lawyer who handles Tennessee health care liability actions (f/k/a medical malpractice cases). It lets one know when an new certificate of good faith is needed and how that is to be handled if not filed with the complaint or an amended complaint (under a "good cause" standard), etc. It also offers a great analysis of when an attorney-in-fact may authorize the release of a principal's medical records via a general power of attorney in these types of cases. 

New Health Care Liability Action: Trial Court's Denial of Dismissal Upheld on Appeal Due to the Application of the Discovery Rule

The Tennessee Court of Appeals has released its decision in Archer v. Sodexo Operations, LLC, No. W2020-01176-COA-R9-CV (Tenn. Ct. App. May 25, 2022). The opinion's syllabus reads:

This interlocutory appeal arises from a health care liability action. The defendant filed a motion to dismiss based on the statute of limitations. In response, the plaintiff invoked the discovery rule and argued that his claim was timely filed after he learned the identity of the defendant. The plaintiff submitted an affidavit of counsel in an effort to detail the due diligence undertaken by the plaintiff to ascertain the identity of the defendant. Upon considering the affidavit, the trial court denied the defendant’s motion to dismiss. However, the trial court granted permission for the defendant to seek an interlocutory appeal. This Court granted the defendant’s application. We now affirm the trial court’s order and remand for further proceedings. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/archerstevenopn_0.pdf.

NOTE: This decision offers up a great explanation of the current state of the discovery rule in health care liability actions (HCLA)  (f/k/a medical malpractice cases). It is a must-read case for any lawyer who handles HCLAs under Tennessee substantive law. 

New Health Care Liability Action: Trial Court's Dismissal of the Lawsuit as a Nullity Upheld on Appeal Because Suit Was Filed in the Name of the Deceased Plaintiff

The Tennessee Court of Appeals has released its opinion in Owen v. Grinspun, No. M2021-00681-COA-R3-CV (Tenn. Ct. App. May 25, 2022). The syllabus from the opinion reads:

Appellant appeals the trial court’s dismissal of this cause of action on the basis that it was filed by a deceased plaintiff and therefore a nullity that could not be corrected via amendment. We affirm.

Here is a link to the slip opinion:  

https://www.tncourts.gov/sites/default/files/dennis.owen_.opn_.pdf.

NOTE: To boil this opinion down to its essence, a personal injury lawsuit (not a wrongful death suit) that is filed on behalf of a deceased plaintiff is a nullity and void ab initio; it is of no consequence and that error cannot be remedied via substitution of a proper representative plaintiff after the statute of limitations has run.