New Case on Waiver of Affirmative Defenses and Summary Judgment: Trial Court's Grant of Summary Judgment Upheld on Appeal

The Tennessee Court of Appeals issued its opinion in F & M Bank v. Fleming, No. M2020-01086-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2021).  The syllabus from the slip opinion reads:

Appellant debtor appeals the trial court’s decision to find certain affirmative defenses waived, to deny his motion to continue the summary judgment hearing in order to conduct discovery, and to grant summary judgment to the defendant bank. Discerning no reversible error, we affirm. 

Here is a link to that opinion:

https://www.tncourts.gov/sites/default/files/f__m_bankv.fleming.opn_.pdf.

NOTE: This opinion is a one that every trial lawyer in Tennessee must read because it addresses waiver of affirmative defenses, motions filed under Rule 56.07 of the Tennessee Rules of Civil Procedure seeking additional time to respond to motions for summary judgment, and summary judgments in general.  Keep this one handy.       

New Case on Judgment on the Pleadings and the Discovery Rule to Toll the Statute of Limitations in a Legal Malpractice Case

In October 2020, the Tennessee Court of Appeals released its opinion in Culpepper v. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., No. E2019-01932-COA-R3-CV (Oct. 16, 2020).  The syllabus from the slip opinion reads:

In this legal malpractice action, the trial court granted judgment on the pleadings in favor of the defendants, determining that the plaintiff had waived any conflict of interest in his signed engagement letter. The court also ruled that the plaintiff’s legal malpractice claims were barred by the applicable statute of limitations. The plaintiff has appealed. Upon our review of the pleadings and acceptance as true of all well-pleaded facts contained in the plaintiff’s complaint and the reasonable inferences that may be drawn therefrom, we determine that the plaintiff has pled sufficient facts in support of his claim of legal malpractice. We therefore reverse the trial court’s grant of judgment on the pleadings with regard to the plaintiff’s legal malpractice claim.

(Footnote omitted.)

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/culpepper_v._baker_donelson_e2019-01932.pdf

NOTE: This case discusses judgment on the pleadings and the discovery rule under Tennessee law.  It is a good read.  Please note, however, that it was appealed to SCOTN on January 11, 2021 (https://www2.tncourts.gov/PublicCaseHistory/) and no decision has been made as to whether SCOTN will take it up yet.  Until that happens, one must, obviously, monitor this case before citing it.  Stay tuned.  

New Opinion on Recently Enacted Tennessee Law Extending One-year Statute of Limitations for Personal Injury Actions to Two Years Based upon Certain Criminal Charges Being Brought Against Tortfeasor: Trial Court's Denial of Defendant's Motion for Summary Judgment Based upon That New Law Upheld on Appeal

Yesterday the Tennessee Court of Appeals released its decision in Younger v. Okbahhanes, No. E2020-00429-COA-R10-CV (Tenn. Ct. App. Jan,. 28, 2021).  The syllabus from the slip opinion reads:

This appeal arises from a personal injury action. The plaintiff filed this action more than one year after the vehicle collision from which the cause of action accrued. The defendant filed a motion for summary judgment, arguing that the plaintiff’s action was untimely. The plaintiff filed a response arguing that the statute of limitations for personal injury actions was extended to two years, pursuant to Tennessee Code Annotated § 28-3-104(a)(2), due to the traffic citation issued to the defendant for failure to exercise due care in violation of section 55-8-136 as a result of the vehicle collision. The Trial Court found that section 28-3-104(a)(2) was applicable to extend the statute of limitations to two years because the defendant had been charged with a criminal offense and a criminal prosecution had been commenced against him. Discerning no error, we affirm.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/e2020-429_younger_v._okbahhanes.pdf

NOTE: This opinion hinges on statutory construction.  As it points out, the primary goal of a court in interpreting a statute is to "apply the plain meaning of a statute’s words in normal and accepted usage without a forced interpretation."  Younger, slip op. at 5 (emphasis added) (quoting Baker v. State, 417 S.W.3d 428, 433 (Tenn. 2013).  That is exactly what the court did here.  

Further, another canon of statutory construction is reductio ad absurdum, which means reduction to the absurd; such an interpretation is to be avoided. Ronald Benton Brown & Sharon Jacobs Brown, Statutory Interpretation: The Search for Legislative Intent 73 (NITA 2d. ed. 2011) [hereinafter Intent at _____ ].  I would submit that the defendant's offered interpretation of Tenn. Code Ann. sec. 28-3-104(a)(2) is a reduction to the absurd, and that is yet another reason (aside from just the statute's plain meaning) to reject that forced interpretation. Compare Tenn. Code Ann. § 28-3-104(a)(2) (LEXIS through 2020 Reg. Sess. and Second Extraordinary Sess.) with Intent, supra, at 73; see also Black's Law Dictionary 1283 (West Grp. 7th ed. 1999) (defining reductio ad absurdum).

Lastly, this decision is absolutely correct in my professional opinion.  However, look for the defendant to seek review of it by SCOTN via an application for permission to appeal via Rule 11 of the Tenn. Rules of Civil Procedure.  Due to this portion of the statute's novelty (enacted in 2015; amended subsection (a)), I think SCOTN might take this one up.  However, I also think if it does it will affirm this decision.  My two cents' worth.

New Decision from the Tennessee Court of Appeals on Premises Liability: Summary Judgment for Defendant Reversed on Appeal

The Tennessee Court of Appeals released its decision today in Vaughn v. DMC-Memphis, LLC, No. W2019-00886-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2021).  The syllabus from the slip opinion reads:

Plaintiff filed a claim in general sessions court for injuries she allegedly received when she fell in standing water on the defendant’s premises. Judgment was rendered in favor of the defendant, and the plaintiff appealed to circuit court. The defendant then filed a motion for summary judgment arguing that it owed no duty to the plaintiff and that she was at least 50% at fault for her injuries. In support, the defendant relied on plaintiff’s testimony from the trial in general sessions court. The circuit court granted the motion for summary judgment, and plaintiff again appealed. We vacate the judgment of the trial court.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/vaughntopn_1.pdf

NOTE: This case is a premises liability case.  This decision offers an excellent analysis of Tennessee law on the element of duty in a negligence action and the affirmative defense of a plaintiff’s comparative fault.  It is worth the read in my humble opinion.  

New Health Care Liability Action Opinion: Tennessee Supreme Court Upholds Dismissal of Defendants

The Tennessee Supreme Court just released its decision in Bidwell ex rel. Bidwell v. Strait, No. E2018-02211-SC-R11-CV (Tenn. Jan. 26, 2021).  The syllabus from the slip opinion reads:

James Bidwell filed this health care liability action individually and on behalf of his deceased wife, Clarissa Bidwell, and her estate against Drs. Timothy Strait and Jeffrey Colburn (“the physician Defendants”) and the entities he believed to be their employers—the Neurosurgical Group of Chattanooga, P.C., EmCare Inc., and Envision Healthcare Corporation. Mr. Bidwell timely provided pre-suit notice to the named defendants and timely filed his lawsuit. Mr. Bidwell did not provide Chattanooga-Hamilton County Hospital Authority (“Erlanger”) with pre-suit notice, nor did he name Erlanger as a defendant. Furthermore, Dr. Strait and Dr. Colburn did not provide Mr. Bidwell written notice of Erlanger as their correct employer within thirty days of receiving pre-suit notice. See Tenn. Code Ann. § 29-26-121(a)(5). Dr. Strait answered Mr. Bidwell’s complaint, denying the allegations made against him and asserting that he was employed by Erlanger at all relevant times. Dr. Colburn similarly answered, denying the allegations made against him and that either EmCare Inc. or Envision Healthcare Corporation was his employer. Drs. Strait and Colburn then moved for summary judgment arguing that, pursuant to the Governmental Tort Liability Act, no judgment could be rendered against them because Mr. Bidwell had failed to name as a defendant their actual employer, Erlanger. See Tenn. Code Ann. § 29-20-310(b). Within ninety days of Dr. Strait’s and Dr. Colburn’s answers, Mr. Bidwell filed two motions for leave to amend his complaint to add Erlanger as a defendant. Mr. Bidwell relied on Tennessee Code Annotated section 20-1-119, which provides a plaintiff with a ninety-day “grace period” within which to amend a complaint when comparative fault “is or becomes an issue,” and section 29-26-121(a)(5), which he argued required the physician Defendants to notify him of Erlanger within thirty days of receiving pre-suit notice. The trial court granted Dr. Strait’s and Dr. Colburn’s motions for summary judgment, finding that Mr. Bidwell’s motions to amend were futile because he had not provided Erlanger with presuit notice. Mr. Bidwell appealed, and the Court of Appeals vacated the trial court’s orders granting summary judgment and remanded the case for further proceedings. Dr. Strait and Dr. Colburn subsequently filed an application for permission to appeal with this Court. We hold that, although the physician Defendants failed to comply with section Tennessee Code Annotated 29-26-121(a)(5), the statute provides no remedy for noncompliance, and their noncompliance does not constitute extraordinary cause sufficient to excuse Mr. Bidwell’s failure to provide Erlanger with pre-suit notice. However, we additionally hold that Dr. Strait’s and Dr. Colburn’s answers sufficiently asserted Erlanger’s comparative fault. Therefore, Mr. Bidwell was entitled to amend his complaint to name Erlanger as a defendant pursuant to section 20-1-119, so long as he amended his complaint and caused process to issue to Erlanger within ninety days of Dr. Strait’s answer—the first answer alleging Erlanger’s fault. Because section 20-1-119 applied, Mr. Bidwell was not obligated to provide Erlanger with pre-suit notice under Tennessee Code Annotated section 29-26-121(c). We conclude that, because the record on appeal reflects that Mr. Bidwell failed to file an amended complaint and cause process to issue, he is not entitled to amend his complaint to add Erlanger as a defendant. Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals on the grounds stated herein and reinstate the trial court’s orders granting the physician Defendants’ motions for summary judgment and denying the Plaintiff’s motions to amend.

Here is a link to the majority opinion:

http://www.tncourts.gov/sites/default/files/bidwell.clarissa.opn_.pdf

Here is a link to Justice Lee's partial concurrence and dissent:

http://www.tncourts.gov/sites/default/files/bidwell.clarissa.l._sep.opn_.pdf

Here is Justice Kirby's concurrence:

http://www.tncourts.gov/sites/default/files/bidwell.clarissa.k.sep_._opn.pdf

NOTE: There is a lot going on in this opinion.  Taken down to its base element, it appears that the physician-employees were sued before the statute of limitations had expired but the hospital-employer was not, which meant the physicians could not be sued individually because the hospital happened to be a governmental entity, and also because the hospital was not added as a party-defendant within ninety days of an answer being filed as allowed by Tenn. Code Ann. sec. 20-1-119.  

Lastly, there are no consequences for when a defendant fails to notify a claimant of other potentially at-fault persons as required by Tenn. Code Ann. sec. 29-26-121(a)(5). 

New Health Care Liability Action Opinion: Trial Court’s Grant of Summary Judgment to the Defendant Upheld on Appeal in GTLA Case

The Tennessee Court of Appeals recently released its opinion in Williamson v. Regional One Health, No. W2019-02213-COA-R3-CV (Tenn. Ct. App. Jan. 15, 2021).  The syllabus from the slip opinion reads:

In this healthcare liability action, Appellant/patient appeals the trial court’s grant of summary judgment in favor of Appellee/hospital. The trial court granted summary judgment based, inter alia, on its conclusion that Appellant failed to provide evidence that Appellee’s immunity under the Governmental Tort Liability Act is waived due to some action/inaction of its employee. Affirmed and remanded.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/williamsondennisopn.pdf.

NOTE: This opinion offers a good explanation of Tennessee’s law on health care liability (formerly medical malpractice) as it intersects with its law on governmental tort liability.  It is worth the read if you handle these types of cases.  

New Health Care Liability Action Opinion: Trial Court Upheld on Appeal; Tennessee Health Care Liability Act Does Not Apply to Claims for Intentional Misrepresentation, Medical Batter, Civil Conspiracy, Loss of Consortium

Last month, the Tennessee Court of Appeals released its decision in Cooper v. Mandy, No. M2019-01748-COA-R9-CV (Tenn. Ct. App. Nov. 17, 2020).  The slip opinion reads:

The principal issue in this interlocutory appeal is whether intentional misrepresentations made by health care providers to induce a prospective patient to engage the health care providers’ services are within the purview of the Tennessee Health Care Liability Act (“the Act”), Tenn. Code Ann. § 29-26-101 to -122. The complaint filed by the patient, Donna Cooper (“Mrs. Cooper”), and her husband alleges that Dr. Mason Wesley Mandy (“Dr. Mandy”) and Rachelle Norris (“Ms. Norris”) with NuBody Concepts, LLC, intentionally misrepresented that Dr. Mandy was a board-certified plastic surgeon and, based on their misrepresentation, Mrs. Cooper gave Dr. Mandy her consent to perform the surgery. Following “painful, disastrous results,” the plaintiffs asserted four claims: (1) intentional misrepresentation; (2) medical battery; (3) civil conspiracy; and (4) loss of consortium. Defendants filed a Tenn. R. Civ. P. 12 motion to dismiss for failure to comply with the presuit notice and filing requirements of the Act, specifically Tenn. Code Ann. §§ 29-26-121 and -122. The trial court denied the motion to dismiss, finding the Act did not apply. This interlocutory appeal followed. We hold that Mrs. Cooper is entitled to proceed on her claims of intentional misrepresentation and civil conspiracy because the alleged misrepresentations were inducements made prior to the existence of a patient-physician relationship; thus, the claims were not related to “the provision of . . . health care services.” See Tenn. Code Ann. § 29-26-101(a)(1). We also affirm its ruling on the medical battery claim because a physician’s misrepresentation of a material fact, if proven, may vitiate consent, and, without consent, the very act of touching Mrs. Cooper may constitute an unlawful and offensive act that is not related to the provision of health care services. See Holt v. Alexander, No. W2003-02541-COA-R3-CV, 2005 WL 94370, at *6 (Tenn. Ct. App. Jan. 13, 2005). Further, we affirm the trial court’s ruling on Mr. Cooper’s claim for loss of consortium because, as the trial court held, his claims relate to Dr. Mandy’s and Ms. Norris’s false representations of Dr. Mandy’s credentials, not to a provision of, or a failure to provide, a health care service. Accordingly, we affirm the trial court in all respects and remand for further proceedings consistent with this opinion.

Here is a link to that opinion:

http://www.tncourts.gov/sites/default/files/cooper.donna_.opn_.pdf.

NOTE: This opinion delves into the torts of intentional misrepresentation, medical battery, and civil conspiracy; it also touches upon claims for loss of consortium.  It is a must-read decision for any lawyer whose practice is affected by Tennessee substantive law.  

Also, look for the defendants to ask SCOTN to take a look at this case.  

UPDATE: SCOTN overruled this decision on Jan. 20, 2022, which can be verified at this link: 

http://theduncanlawfirm.blogspot.com/2022/01/tennessee-supreme-court-holds-that.html.

New Health Care Liability Action Opinion: Summary Judgment for Defendant Reversed Because Plaintiff Demonstrated That There Was a Genuine Issue of Material Fact as to the Applicable Standard of Care, Its Breach, and Causation; Intervening and Superseding Cause Does Not Exist at Present

The Tennessee Court of Appeals recently released its decision in Davis v. Ellis, No. W2019-01367-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2020).  The syllabus from the slip opinion reads:

This is a health care liability case. The trial court granted summary judgment in favor of Appellee/doctor finding that Appellant’s expert witness failed to connect the decedent’s death to Appellee’s alleged deviation from the standard of care. We conclude that Appellant presented sufficient evidence, at the summary judgment stage, to create a dispute of fact concerning deviation from the standard of care and causation. Accordingly, we reverse the trial court’s grant of summary judgment. 

Here is a link to the decision:

http://www.tncourts.gov/sites/default/files/daviskerryopn.pdf.

NOTE: This is a must-read opinion for any lawyer who practices in the area of health care liability (f.k.a., medical malpractice) where the case is governed by Tennessee substantive law.  It addresses expert testimony as to the applicable standard of care, causation of injury, and intervening-superseding causes, which makes it a great primer for a new lawyer and a great refresher for the seasoned practitioner.    

New Opinion on the Discovery Rule and Governmental Tort Liability Under Tennessee Substantive Law

Today, the Tennessee Court of Appeals released its decision in Durham v. Estate of Losleben, No. W2019-01623-COA-R3-CV (Tenn. Ct. App. Dec. 8, 2020).  The syllabus from the slip opinion reads:

A Hardin County firefighter and Appellant’s husband died after their vehicles collided. Appellant alleged that the firefighter had negligently caused the accident, and thus filed tort claims against Hardin County under a theory of vicarious liability and Tennessee’s Governmental Tort Liability Act. She filed her claims more than one year after the accident, so the trial court dismissed them as barred by the applicable one-year statute of limitations. She appeals, and we affirm.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/durhamsusanopn.pdf.

NOTE: Among other things, this opinion explains the discovery rule and how it affects the running of the one-year statute of limitations in tort actions, especially in civil actions under the Tennessee Governmental Tort Act (GTLA).  This decision reaffirms the application of the discovery rule to GTLA cases, but holds that it did not apply under the facts presented herein.  This is a very informative read in my humble opinion.  

New Case on Uninsured Motorist Coverage and Amended Pleadings

The Tennessee Court of Appeals released it decision in Evans v. Croxdale, No. E2019-01880-COA-R3-CV (Tenn. Ct. App. Dec. 2, 2020).  The syllabus from the slip opinion reads: 

This appeal concerns the trial court’s summary judgment dismissal of the plaintiff’s uninsured motorist insurance claim filed against his employer following a car accident. We affirm the judgment of the trial court. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/kevin_e_evans_et_al_v._ricki_k._croxdale_et_al..pdf.

NOTE: This is a pretty straight forward opinion.  It offers quick guidance on uninsured motorist claims and amended pleading under Tennessee law.  

New Case Concerning Motions to Dismiss Under Rule 12.02(6) of the Tennessee Rules of Civil Procedure and When a Duty Arises in Negligence Cases

The Tennessee Court of Appeals recently released its decision in Thompson v. Southland Constructors, No. M2019-02060-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2020).  The syllabus from the slip opinion reads:

This action involves a tragic accident resulting in the death of Tommy Smith (“Decedent”), who was working as a plumber connecting a sewer line when the trench he was in collapsed and crushed him. Decedent’s children (“Plaintiffs”) sued, among others, Focus Design Builders, LLC, general contractors for the building project, alleging negligence. The trial court granted Focus Design’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Tenn. R. Civ. P. 12.02(6). The trial court held that Focus Design did not owe a duty of reasonable care under the circumstances because Decedent’s death was unforeseeable. We hold the complaint states a cause of action for negligence and consequently reverse the judgment of the trial court.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/thompson.melanie.opn_.pdf.

NOTE: This is a great opinion because it gives us a good overview of the current state of the law on motions to dismiss under Rule 12.02(6), Tenn. R. Civ. P., and when a duty arises in negligence cases. 

New Case on Who Is Able to Bring a Tort Claim on Behalf of a Decedent Who Died Before Suit Is Filed from Causes Unrelated to the Tort Action in Question

The Tennessee Court of Appeals recently released its opinion in Jones v. Martin, No. W2019-02047-COA-R3-CV (Tenn. Ct. App. Nov. 20, 2020).  The syllabus from the slip opinion reads:

Appellant and her son were driver and passenger, respectively, in a motor vehicle when they were struck in the rear by a vehicle driven by one of the Appellees. Appellant’s son later died from medical causes not related to the accident. Appellant then filed suit for injuries in her own name and as next of kin of her deceased son. Following arguments by the Appellees that Appellant had no authority to prosecute the case on behalf of her son, the trial court dismissed the claim corresponding to the injuries allegedly sustained by the son. Appellant then took a nonsuit of her remaining claim. This appeal concerns initially whether or not the judgment on appeal is a final judgment and, if so, the application of Tennessee Code Annotated section 20-5-102 to this case. Tennessee Code Annotated section 20-5-102, which provides for the survival of actions despite the death of the person wronged, specifies that the right of action shall pass “in like manner as the right of action described in § 20-5-106.” By way of that referenced authority, it is clear that a next of kin is one of the persons authorized to bring an action that survives under section 20-5-102. For the reasons set out herein, we conclude that we have jurisdiction to hear this appeal and reverse the trial court’s dismissal. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/jonesgloriaopn.pdf.

NOTE: As the title of this blog post indicates, this opinion does a good job of explaining who may bring a tort claim on behalf of a decedent who dies before suit is filed from causes unrelated to the tort action in question.  Pay attention to footnote 4 and its citation to Tenn. Code Ann. sec. 20-5-104; a prerequisite to being able to revive the tort suit via the deceased's heirs is that it be shown that no person will administer the deceased's estate.   (Be mindful, too, that any recovery made in instances like the one presented in this case is property of the deceased's estate.)  

New Health Care Liability Action Opinion: Dismissal of Claim Against Provider Upheld on Appeal Due to Improper Service of Presuit Notice of the Claim to the Provider

The Tennessee Court of Appeals recently released its opinion in Webb v. Trevecca Center for Rehabilitation and Healing, LLC, No. No. M2019-01300-COA-R3-CV (Tenn. Ct. App. Nov. 10, 2020).  They syllabus from the slip opinion reads:

This appeal concerns the dismissal of a health care liability action against a long-term care facility. The trial court dismissed the complaint without prejudice because the plaintiff did not provide the long-term care facility with pre-suit notice of her claim as required by statute. The plaintiff argues that the notice she mailed to the facility’s administrator at the facility’s business address satisfied the statutory requirement. Because her letter was not directed to the facility, we affirm the dismissal of her complaint. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/webb.judy_.opn_.pdf.

NOTE: This opinion emphasizes the importance of proper service of presuit notice of a potential health care liability action claim.  It is very difficult to do that a lot of the time due to one not being able to determine what entity is the correct one to send notice to before suit is filed.  However, in this instance, it appears that the procedure set out under Tenn. Code Ann. sec. 29-26-121(a)(3)(B)(ii), which governs notice that must be sent to "a health care provider that is a corporation or other business entity," was not followed.        

New Opinion on Prejudgment Interest in Uninsured Motorist Cases: Propriety of Prejudgment Interest to Be Determined by the Trial Court on Remand

The Tennessee Court of Appeals recently released its opinion in Lewis v. State Farm, No. W2019-01493-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2020).  The syllabus from the slip opinion reads:

Appellant was injured in an automobile accident, and a jury found that an unknown motorist was 100% at fault and awarded damages in favor of Appellant. Thereafter, the trial court denied Appellant prejudgment interest on its finding that Appellant’s uninsured automobile insurance policy with Appellee State Farm Mutual Automobile Insurance Company precludes an award of prejudgment interest. We conclude that the policy language “all damages” is sufficiently broad to include prejudgment interest. However, because the award of prejudgment interest is an equitable consideration within the discretion of the trial court, we decline to address Appellant’s issue concerning whether prejudgment interest is necessary and equitable in this case. This question is remanded to the trial court. Vacated and remanded.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/lewisalvinopn.pdf.

NOTE: This opinion offers a good analysis of prejudgment interest in a uninsured-motorist case.  

New Health Care Liability Action Opinion: Dismissal of Plaintiff's Case (Erroneously?) Upheld on Appeal Due to Defective HIPAA-compliant Authorizations

Yesterday, the Tennessee Court of Appeals released its opinion in Dial v. Klemis, No. W2019-02115-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2020).  The syllabus from the slip opinion reads:

This is a health care liability case. The defendants moved to dismiss the complaint due to the plaintiff’s failure to comply with Tennessee Code Annotated section 29-26- 121(a)(2)(E), arguing that the plaintiff had not provided them HIPAA compliant medical authorizations allowing them to receive medical records from the other providers being sent statutorily-required pre-suit notice. The trial court agreed with the defendants’ argument and, upon observing that the plaintiff was not entitled to rely on the 120-day extension of the statutory limitation period pursuant to Tennessee Code Annotated section 29-26-121(c), held that the complaint was time-barred and should be dismissed with prejudice. Discerning no error, we affirm.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/dialjudithopn.pdf.

NOTE: I think this opinion missed something, respectfully, because the defendants could have actually gotten the decedent's protected health information without a authorization at all as part of their "health care operations."  Tony Duncan, New Health Care Liability Action Opinion: Trial Court's Dismissal of Action as Time-barred Overturned on Appeal, TONY DUNCAN L. BLOG, Note (Jul. 3, 2018, 3:58 PM), http://theduncanlawfirm.blogspot.com/2018/07/new-health-care-liability-action.html.

New Motor Vehicle Collision Case: Jury Verdict for Defendant Upheld on Appeal

The Tennessee Court of Appeals recently rendered its decision Justice v. Gaiter, No. M2019-01299-COA-R3-CV (Tenn. Ct. App. Oct. 15, 2020).  The syllabus from the slip opinion reads:

This appeal arises from a motor vehicle accident in a shopping center complex during the Christmas season. Plaintiff appeals the jury’s finding that he was sixty percent at fault for the accident and the trial court’s denial of his motion for a new trial. Finding that the jury’s apportionment of fault is supported by material evidence and that the trial court did not abuse its discretion in denying the motion for a new trial, we affirm the trial court in all respects.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/justice.james_.opn_.pdf.

NOTE: There is a lot going on in this opinion for it to be only six pages long: namely, comparative fault, motions for new trial, the material evidence rule, the thirteenth juror rule, abuse of discretion, etc.  Primarily, what I took from it is the discussion of the material evidence rule, which is great in my opinion.  For that reason alone, this is a must-read decision for any lawyer who has handles auto cases governed by Tennessee substantive law.  

Also, I think the plaintiff left out a potentially culpable person by not suing the driver who waived the defendant into the lane, which probably cost him a win here.  That could have been accomplished via the discovery rule or Tenn. Code Ann. sec. 20-1-119 (the comparative fault joinder statute), even if that driver was unknown (with -119 being the more likely way to have done that).  Here is why: while a "phantom" tortfeasor or a "John Doe" is generally not allowed in Tennessee under our system of modified comparative fault, see Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 786 (Tenn. 2000) ("[W]e conclude that the defendant may not attribute fault to a nonparty who is not identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-1-119 . . . ."), they are allowed in auto cases, see, e.g., Breeding v. Edwards, 62 S.W.3d 170, 171 (Tenn. Ct. App. 2001) (allowing fault to be attributed to an unknown tortfeasor in a auto case and a monetary recovery for that fault to be made from plaintiff's underinsured-motorist insurance (UIM)); Marler v. Scoggins, 105 S.W.3d 596, (Tenn. Ct. App. 2002) (allowing fault to be attributed to a John Doe in an auto case under Tennessee law even if there is no UIM to pay plaintiff for fault attributed to the Doe).  Doing that would have made a difference in the outcome here because under our state's system of modified comparative fault, a plaintiff may only recover if he is 49% at fault of less.  Had the driver been made a party and been found to be more than 10% at fault, which is probable, the plaintiff would have recovered something (minus his fault, of course (which would probably not have been 60% and would have been less than 50% had the driver been added as a John Doe party-defendant)).  

Trial practice is not easy, folks.  There are so many moving parts in a case at times that it is like herding cats. Lord willing, me all make our way.  

P.S.  And, of course, if the driver's identity was known (or became known), the plaintiff could have added her as a named party-defendant and the fault calculations above would probably have played out the same way in my opinion.  Assuming the addition was timely done.  

New Case on Service of Leading Process and the Tolling of the Statute of Limitations: Dismissal of the Case Vacated and Remanded Because Trial Court Did Not Consider Enlargement of Time to Effect Service of Leading Process First

The Tennessee Court of Appeals has released its opinion in Stafford v. Lucas, No. W2019-01438-COA-R3-CV (Tenn. Ct. App. Oct. 15, 2020).  The syllabus from the slip opinion reads:

The trial court dismissed this lawsuit for failure to timely serve the defendants after finding that it was “unaware of an exception to this rule or authority to expand the time for service.”  Prior to the hearing, however, the plaintiffs filed a motion for enlargement of time under Rule 6.02 of the Tennessee Rules of Civil Procedure. The trial court did not specifically address this motion. As such, the trial court’s dismissal of the complaint is vacated, and this matter is remanded with instructions for the trial court to rule on plaintiffs’ motion for an enlargement of time. 

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/staffordrodneyopn.pdf.

NOTE: This case is a "MEMORANDUM OPINION" and "shall not be published, and shall not be cited or relied on for any reason in any unrelated case."  Stafford, No. W2019-01438-COA-R3-CV, slip op. n.1, at 1 (quoting Tenn. Ct. App. R. 10).  However, even with that admonition in mind, this is still a must-read opinion for any lawyer who practices in Tennessee state courts.  Here's why: even though this case appears to be a "health care liability action," compare id., passim, with T.C.A. § 29-26-101(a) (LEXIS through 2020 Reg. Sess.) (defining a "health care liability action" in Tennessee to be an a civil action against a health care provider or providers arising from an injury caused by the provision of, or failure to provide, health care services to a person), the enlargement of time dealt with herein applies to all cases in Tennessee trail courts of record.  Tenn. R. Civ. P. 1 (2005) (noting that "the Rules of Civil Procedure shall govern procedure in the circuit or chancery courts in all civil actions, whether at law or in equity, and in all other courts while exercising the civil jurisdiction of the circuit or chancery courts" (emphasis added)).  And, of course, the authorities cited in this opinion can be cited in other cases based upon their respective weight of authority.  See generally Tenn. Sup Ct. R. 4(G) (2015) (discussing weight to be given to Tennessee decisions).  

To cut to the chase, this case deals with the enlargement of time to effect service of leading process upon a defendant.  Stafford, supra, passim.  While the plaintiff in this case could have made things a lot easier on the trial court by paying better attention to the service-of-process issue and not letting the issue arise, I think this opinion is correctly decided.  Assuming the plaintiff can meet the criteria to establish excusable neglect upon remand, see id. at 6, the case should be allowed to proceed for at least two reasons: first, continued litigation in and of itself is not prejudicial to a defendant in Tenn., see Henry v. Goins, 104 S.W.3d 475, (Tenn. 2003) ("Simply having to proceed to trial does not constitute prejudice, nor does the mere passage of time."  (Citations omitted.)); second, Tennessee has a long-established policy of settling cases upon their merits and not upon procedural technicalities, Branch v. Warren, 527 S.W.2d 89, 91 (Tenn. 1975) (noting that civil actions are to be determined upon their merits and not on procedural technicalities); accord Karash v. Piggott, 530 S.W.2d 775, 777 (Tenn. 1975) (same); Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn. 1996) (same); Doyle v. Frost, 49 S.W.3d 853, 856 (Tenn. 2001) (same); Foster v. St. Joseph Hosp., 158 S.W.3d 418, 422 (Tenn. Ct. App. 2004) (same); Jones v. Prof'l Motorcycle Escort Serv., L.L.C., 193 S.W.3d 564, 572 (Tenn.2006) (same); Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 432 (Tenn. 2011) (same); see also Abraham Caruthers, History of a Lawsuit § 1, at 2 (Sam B. Gilreath & Bobby R. Aderholt eds., 8th ed. 1963, The W.H. Anderson Co.) (discussing, inter alia, the reasons our state's courts exist). 

New Health Care Liability Action Opinion: Trial Court's Denial of Sanctions Sought by Defendant-Physician Against Other Defendants for the Latter's Failure to Support Claim Against Defendant-Physician with Competent Expert Testimony Under Tenn. Code Ann. sec. 29-26-122 Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Smih v. Outen, No. W2019-01226-COA-R3-CV (Tenn. Ct. App. Oct. 9, 2020).  The syllabus from the slip opinion reads:

In this health care liability action, the defendant pharmacists were sued for dispensing the wrong medication to the plaintiff. The defendants then alleged comparative fault against Appellant doctor, who was treating the patient. The plaintiff amended her complaint to allege fault against the doctor. However, the doctor was eventually granted summary judgment when no expert was produced to support the claim. Appellant doctor then sought sanctions pursuant to Tennessee Code Annotated section 29-26-122(d)(3) on the basis that, inter alia, the defendants’ certificate of good faith was supported by the written statement of an incompetent expert witness. The trial court denied the motion for sanctions. We affirm. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/smithdebraopn_0.pdf.

NOTE: This opinion analyzes the effects of a defendant failing to comply with Tenn. Code Ann. sec. 29-26-122.  It is a must-read opinion for any lawyer who handles health care liability actions (f.k.a. medical malpractice cases) governed by Tennessee law.  

P.S. On February 5, 2021 this opinion was designated as "Not for Citation" by the Tennessee Supreme Court under its Rule 4.  

New Health Care Liability Action Opinion: Summary Judgment and Multiple Defendants; Respondeat Superior Claim to Be Considered upon Remand

The Tennessee Court of Appeals issued its opinion yesterday in Kidd v. Dickerson, No. M2018-01133-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2020).  The syllabus reads:

In this health care liability action, the surviving daughter of a woman who died as a result of a stroke brought suit as executrix of her mother’s estate and as her next-of-kin against two physicians and their practice group as well as a pharmacist who filled a prescription for her and the pharmacist’s employer. Plaintiff alleged that the death occurred due to a stroke her mother suffered as a result of taking the drug Pradaxa, which had been prescribed by the defendant doctors and filled by the defendant pharmacist and the defendant pharmacy (the “pharmacy defendants”). The trial court granted summary judgment to the pharmacy defendants on all claims, holding that the proof submitted by Plaintiff was insufficient to establish the element of causation; the court granted summary judgment to the defendant doctors on Plaintiff’s claims that their negligence caused and hastened the decedent’s death, and the claim that the doctors did not have the decedent’s informed consent to administer Pradaxa; the court granted summary judgment to one doctor on all claims; and the court denied summary judgment to one doctor and the practice group on the remaining claims. Plaintiff appeals the grant of summary judgment to the pharmacy defendants and the doctors; the remaining doctor and practice group appeal the denial of their motions for summary judgment on the remaining claims. Upon our de novo review, we affirm the grant of summary judgment to the pharmacy defendants; we affirm the grant of summary judgment to Dr. Thomas Farmer in toto; we affirm in part the grant of partial summary judgment to the doctors and their group and remand for further proceedings on whether the nurse practitioner’s actions caused Ms. Grimes’ injury and suffering during the period of October 20 until she was stabilized in the hospital, as well as whether the remaining doctor and practice group are liable for that negligence under a respondeat superior theory. 

Here is a link to the slip opinion: 

http://www.tncourts.gov/sites/default/files/kidd.teresa.opn_.pdf

NOTE: This opinion is long for a state-court opinion.  However, it is a good read if one handles health care liability cases (f.k.a. medical malpractice cases) governed by Tennessee substantive law.  

New Health Care Liability Action Opinion: Defendant-Physician Blamed Nurses Without Pleading Their Comparative Fault as Required by Law, Which Necessitated a New Trial, Etc.

The Tennessee Court of Appeals released its opinion today in Kanipe v. Patel, No. E2019-01211-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2020).  The syllabus from the slip opinion reads:

This appeal arises from a health care liability lawsuit. In 2013, Sandra Kanipe . . . died from an undiagnosed aortic dissection while in the care of Dr. Pragnesh Patel, M.D. . . .  Travis Kanipe . . . , Ms. Kanipe’s son, sued Dr. Patel in the Circuit Court for Hamblen County . . . .  After a trial, the jury found in favor of Dr. Patel. The Trial Court granted Mr. Kanipe’s motion for a new trial on grounds that Dr. Patel had, through his testimony, shifted blame to a non-party despite having never pled comparative fault. After a second trial, the jury found in favor of Mr. Kanipe. Dr. Patel appeals, arguing among other things that he never shifted blame. From our review of the record, we conclude that Dr. Patel did, in fact, shift blame to a non-party when he testified in the first trial that the nurses never notified him of Ms. Kanipe’s ongoing chest pain. In view of our Supreme Court’s holding in George v. Alexander, 931 S.W.2d 517 (Tenn. 1996), the Trial Court did not abuse its discretion in ordering a retrial. We affirm the judgment of the Trial Court. 

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/kanipe_v._patel_e2019-01211.pdf

NOTE: This is a must-read opinion for any lawyer who handles tort cases governed by Tennessee substantive law where our system of modified comparative fault comes into play.  Oftentimes, defendants will try to shift blame (and fault) to nonparties in an attempt to avoid liability without complying with Rule 8.03 of the Tennessee Rules of Civil Procedure (which requires facts to be pleaded to support such a defense as well as the identity or description of any alleged nonparty tortfeasor).  As this opinion reminds us, Rule 8.03 is to be "strictly adhered to" by the courts.  Kanipe,  No. E2019-01211-COA-R3-CV, slip. op. at 14 (emphasis added) (citations omitted).    

This opinion also offers up a good explanation of Tennessee's peer review privilege and the "thirteenth juror" rule.  Id. at 15–18.