New Health Care Liability Action Opinion: Plaintiff's Case Dismissed Due to Counsel's Failure to Comply with Onerous Presuit Notice and Filing Requirements; Common-knowledge Exception Found Not to Apply

The Tennessee Court of Appeals recently issued its opinion in Newman v. Guardian Healthcare Providers, Inc., No. M2015-01315-COA-R3-CV (Jul. 27, 2016).  The summary from the slip opinion states as follows:

On August 4, 2013, Kevin Beazley, a resident at Middle Tennessee Mental Health Institute (MTMHI), attacked Billy Joe Newman, another patient and resident, causing injuries that resulted in Newman‟s death. His widow, Unitta Sue Newman (plaintiff), brought this action against several corporations (defendants) that provided nursing and medical staff to MTMHI. The trial court dismissed the complaint with prejudice, on the grounds that it was governed by the Tennessee Health Care Liability Act (THCLA), and plaintiff did not comply with either the pre-suit notice requirement of Tenn. Code Ann. § 29-26-121 (Supp. 2015), or the certificate of good faith requirement of § 29-26-122 (2012). Plaintiff argues that the allegations of her complaint fall under the “common knowledge” exception to the general rule requiring expert testimony to establish medical negligence, and, thus, she was not required to file a certificate of good faith. She asserts that the trial court should have dismissed her complaint without prejudice. Because plaintiff‟s negligence claims involve matters of professional medical knowledge, judgment, and treatment not within the common knowledge of ordinary lay persons, we affirm.

Here's a link to the slip opinion, to wit:

http://www.tsc.state.tn.us/sites/default/files/newman.unittav.guardianhealthcareproviders.opn_.pdf

New Health Care Liability Action Opinion: Court of Appeals Reverses Grant of Summary Judgment to Defense; Extraordinary Cause Found to Exist, Which Excused Compliance with Tennessee Code Annotated section 29-26-121(b)

The Tennessee Court of Appeals just issued its opinion in Kirby v. Sumner County Regional Medical Center, No. M2015-01181-COA-R3-CV (Tenn. Ct. App. Jul. 12, 2016).  The summary from the slip opinion states as follows:

This is a health care liability action.  The plaintiff suffered permanent damage after receiving medical treatment from the defendant hospital. The plaintiff filed suit exactly one year after her hospital stay. The defendant hospital moved to dismiss, arguing that the plaintiff failed to comply with the pre-suit notice and good faith requirements applicable to health care liability actions. The plaintiff later argued that the failure to comply with the necessary requirements should be excused for extraordinary cause as evidenced by the passing of her legal counsel‟s son four days prior to the filing of the complaint. The trial court granted summary judgment, finding that no extraordinary cause existed. The plaintiff appeals. We reverse the judgment of the trial court.

(Footnote omitted.)

Here is a link to the opinion:

 http://www.tncourts.gov/sites/default/files/kirbybetty.opn.pdf

NOTE: If EVER there was a case where "extraordinary cause" existed, which would excuse compliance with Tenn. Code Ann. sec. 29-26-121(b), it is this case.  Plaintiff's counsel's infant son passed away, which prevented Plaintiff's counsel from complying with -121(b). 

New Opinion on Sudden Emergency and Loss of Consciousness: Trial Court's Jury Instructions Held Not to Be Error on Appeal

The Tennessee Court of Appeals recently issued its opinion in Boshears v. Brooks, No. E2015-01915-COA-R3-CV (Tenn. Ct. App. Jul. 6, 2016).  The syllabus from the slip opinion states as follows:

This appeal arises from a negligence case brought after an automobile accident. James Boshears (“Boshears”) was a passenger in a vehicle driven by his girlfriend that was struck by a vehicle driven by Cleave C. Brooks (“Brooks”). Boshears sued Brooks in the Circuit Court for Anderson County (“the Trial Court”). Boshears alleged that Brooks was negligent in operating his vehicle. Brooks asserted that he suffered a stroke immediately prior to the accident, that he lost consciousness, and that, consequently, he could not be found negligent. The case was tried to a jury. The jury found that Brooks was not at fault. Boshears appealed to this Court. On appeal, Boshears argues that the Trial Court erred in charging the jury with sudden emergency when comparative fault was not raised by Brooks. Boshears also asserts that the Trial Court erred in charging the jury on both sudden emergency and loss of consciousness. We affirm the judgment of the Trial Court.

Here is a link to the opinion:

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

Happy Independence Day!

I almost talked myself out of posting this video clip (why, I don't know), but then I thought better of it; here it is: https://www.youtube.com/watch?v=DSKOx8DKPIg.

I love this video!  I have since I first came across it years ago.

And, as John Adams wrote:

[I] am apt to believe that [Independence Day] will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated as the day of deliverance by solemn acts of devotion to God Almighty; it ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires and illuminations from one end of this continent to the other, from this time forward forever more....

Available at https://www.nps.gov/subjects/nationalmall4th/history-of-independence-day.htm (last visited Jul. 4, 2016).

Celebrate the liberty we enjoy this day; and teach your kids why we do so, too. 

My two cents' worth.

New Laws Effective in Tennessee on Jul. 1, 2016

http://www.wbbjtv.com/wp-content/uploads/2016/06/New-Tennessee-Laws.pdf

Link repaired as if Dec. 20, 2016.

New Opinion on the Collateral Source Rule

The Tennessee Court of Appeals recently released its opinion in Dedmon v. Steelman, No. W2015-01462-COA-R9-CV (Tenn. Ct. App. Jun. 2, 2016).  The summary from the slip opinion states as follows:

This interlocutory appeal requires review of a ruling on a motion in limine in a personal injury case. Prior to trial, the plaintiffs submitted expert testimony from a treating physician to establish the reasonableness of their claimed medical expenses. The defendants filed a motion in limine seeking to exclude evidence of what they deemed ―unreasonable‖ medical expenses. They argued that the Tennessee Supreme Court‘s decision in West v. Shelby County Healthcare Corporation, 459 S.W.3d 33 (Tenn. 2014), established a new standard in Tennessee for determining the reasonable amount of medical expenses as a matter of law. The trial court granted the defendants‘ motion in limine, thus excluding the testimony of the treating physician. For the following reasons, the trial court‘s order is reversed and this matter is remanded for further proceedings.

Here are the links to the majority opinion and the concurring opinion by the special judge:

http://www.tsc.state.tn.us/sites/default/files/dedmonjeanopn_0.pdf

http://www.tsc.state.tn.us/sites/default/files/dedmonjeancon_0.pdf

New Opinion on Qualified Protective Orders under Tennessee Code Annotated section 29-26-121(f)

The Tennessee Court of Appeals recently issued its opinion in Caldwell v. Baptist Memorial Hospital, No. W2015-01076-COA-R10-CV (Tenn. Ct. App. Jun. 3, 2016).  The summary from the slip opinion states as follows:

In this health care liability action, this Court granted the defendants‟ application pursuant to Tenn. R. App. P. 10 to address two issues. We have determined that: (1) the Health Insurance Portability and Accountability Act (“HIPAA”) does not preempt Tenn. Code Ann. § 29-26-121(f); and (2) the trial court erred in denying the defendants‟ petition for a qualified protective order pursuant to Tenn. Code Ann. § 29-26-121(f) because it is undisputed that the defendants complied with the procedural requirements of subsection (f), and the plaintiff did not file an objection as permitted under the statute. We, therefore, reverse the trial court‟s decision and remand for the entry of a qualified protective order.

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/caldwellaopn.pdf

Trial Court's Denial of Summary Judgment Reversed and Summary Judgment for Defendant Granted Due to Express Assumption of Risk

The Tennessee Court of Appeals recently released its opinion in Gibson v. Young Men's Christian Association of Middle Tennessee, No. M2015-01465-COA-R9-CV (Tenn. Ct. App. May 16, 2016).  The summary form the slip opinion states as follows:

This is an appeal from an order denying summary judgment. The appellee signed a YMCA membership application and release agreement prior to tripping and falling on a sidewalk in front of the YMCA. The appellee filed suit, alleging negligence. The YMCA then filed a motion for summary judgment, claiming that the appellee expressly assumed the risk of her injuries. The trial court denied the YMCA’s motion for summary judgment but granted a motion for interlocutory appeal. We reverse the trial court’s order denying summary judgment and remand with instructions to enter summary judgment.

Here is a link to the opinion:

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

NOTE: This opinion is a good reminder of how express assumption of risk might affect a tort case.

New Wrongful Death Opinion: Trial Court's Disqualification of Surviving Spouse under Tennessee Code Annotated section 20-5-107(b) Reversed on Appeal

The Tennessee Court of Appeals just released its opinion in Spires v. Simpson, No. E2015-00697-COA-R3-CV (Tenn. Ct. App. Apr. 26, 2016).  The summary from the opinion reads as follows:

The surviving spouse in this wrongful death action appeals the trial court‟s dismissal of him as a plaintiff. The decedent and surviving spouse had one child together, who was eighteen months old at the time of the decedent‟s fatal automobile accident in October 2010. The decedent and surviving spouse were living apart, and the child had been residing solely with the decedent. On November 18, 2010, the surviving spouse, acting on behalf of the decedent, the child, and himself, filed the instant action in the Monroe County Circuit Court (“trial court”) against the seventeen-year-old driver of the other vehicle involved in the accident and her parents, who were the owners of the vehicle.  Also in November 2010, the Monroe County Juvenile Court granted custody of the child to the maternal grandmother. Upon a subsequent petition filed by the maternal grandmother and maternal uncle in the Blount County Chancery Court, the surviving spouse's parental rights to the child were terminated and a decree of adoption was granted to the maternal uncle on August 8, 2012. The child's maternal grandmother and adoptive father subsequently filed successive motions to intervene in this action on behalf o[f] the child. Upon announcement of an agreement as to the settlement amount offered by the defendants' insurance company, the trial court entered an agreed order awarding a $100,000.00 judgment against the defendants.  Following a bench trial regarding the remaining issues, the court found that pursuant to Tennessee Code Annotated § 20-5-107(b), the surviving spouse was statutorily disqualified from commencing and maintaining this action or collecting any portion of a settlement because he owed outstanding child support arrearages on behalf of children born to four women other than the decedent. We determine that although Tennessee Code Annotated § 20-5-107(b) operates to prohibit the surviving spouse's recovery of his one-half of the settlement until his child support obligations are paid, it does not operate to disqualify him from commencing and maintaining this wrongful death action. We therefore reverse the trial court's dismissal of the surviving spouse as a plaintiff and the court's substitution of the adoptive father as an intervening plaintiff. We remand for distribution of the wrongful death settlement proceeds, one-half toward payment of the surviving spouse's child support arrearages with interest, pursuant to Tennessee Code Annotated § 20-5-107(b), and one-half to the minor child in trust with the adoptive father as trustee. We affirm the trial court's judgment in all other respects.

Here is a link to the slip opinion:

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

New Tennessee Supreme Court Opinion on the Saving Statute

On March 7, 2016, the Tennessee Supreme Court issued its opinion in Circle C Construction, LLC v. D. Sean Nilsen, No. M2013-02330-SC-R11-CV (Tenn. Mar. 7, 2016).  The summary from the majority opinion states as follows:

The issue we address is whether the savings statute applies to save an action that was filed within the extended statute of limitations set by a tolling agreement, was voluntarily nonsuited, and was refiled within one year, but after the extended statute of limitations in the tolling agreement. The trial court granted summary judgment, ruling that the case was not timely filed. The Court of Appeals affirmed, holding that the tolling agreement precluded application of the savings statute. We hold that the party filing the suit complied with the tolling agreement by filing the first suit within the extended statute of limitations set by the agreement. The savings statute applies to save the action; therefore, the refiled suit was timely filed. We reverse the decision of the Court of Appeals and remand this case to the trial court.

Here is a link to the majority opinion:

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

Here is a link to Justice Kirby's opinion where She concurs in part and dissents in part:

http://www.tncourts.gov/sites/default/files/circlecconstruction.sepopn.pdf

NOTE: This is a good read for the Tennessee practitioner.

New Wrongful Death Opinion: Hataway Redux

On March 11, 2016 the Tennessee Court of Appeals issued its opinion in Sterchi v. Savard, No. E2015-00928-COA-R3-CV (Tenn. Ct. App. Mar. 11, 2016).  This opinion involves a wrongful death case where the death actually occurred in Florida but suit was filed here in Tennessee.  It serves as a reminder that Tennessee abandoned the doctrine of lex loci delicti in Hataway v. McKinley, 820 S.W.2d 53 (Tenn. 1992) and adopted the "most significant relationship" approach when determining what substantive law applies when a conflict of law arises as described herein.  

The summary from the majority opinion states as follows:

This appeal concerns a conflict of law choice between Tennessee and Florida law.  James R. Sterchi, Jr. (“Mr. Sterchi”) sued L. Basil Savard (“Mr. Savard”) in the Circuit Court for Bradley County (“the Trial Court”) for the wrongful death of Mr. Sterchi’s mother Rosalind Savard (“Mrs. Savard”) in a car accident in Florida.  Mr. Savard filed a motion for summary judgment. Florida law prevents Mr. Sterchi from pursuing his claim while Tennessee law does not.  All interested parties were domiciled in Tennessee.  The Trial Court held that Florida law applies and granted Mr. Savard’s motion for summary judgment.  Mr. Sterchi filed an appeal to this Court.  We hold that under “the most significant relationship” test as adopted by our Supreme Court in Hataway v. McKinley, 830 S.W.2d 53 (Tenn. 1992), Tennessee has the more significant relationship to the occurrence and parties in this case, and, therefore, Tennessee substantive law applies to Mr. Sterchi’s wrongful death action. We reverse the judgment of the Trial Court.

Here is a link to the majority opinion:

http://www.tsc.state.tn.us/sites/default/files/sterchijrjropn.pdf

Here is a link to Judge Frierson's concurring opinion (which deals with the applicability of Tenn. Code Ann. sec. 20-16-101):

http://www.tsc.state.tn.us/sites/default/files/sterchi_concurrence.pdf

Tenth Anniversary!

This post is a little belated, but, as of January of this year, this blog is ten years old!  

Doesn't seem like it's been a decade already.  Whew!

Thanks to all of you who read this blog and email me with questions, comments, etc. 

New Health Care Liability Action Opinion: Trial Court's Grant of Summary Judgment to One Defendant Reversed on Appeal Due to the Application of the Discovery Rule

The Tennessee Court of Appeals just issued its opinion in Rogers v. Blount Mem'l Hosp., Inc., No. E2015-00136-COA-R3-CV (Tenn. Ct. App. Feb. 29, 2016).  The summary from the opinion states as follows:

This appeal involves a health care liability action filed by the plaintiff against Blount Memorial Hospital, Inc. (“BMHI”) and the doctor who treated the plaintiff at BMHI from September 8, 2012, to September 13, 2012. The plaintiff filed his complaint on December 13, 2013, alleging that the defendant doctor had misdiagnosed his illness, causing a delay in treatment and resultant permanent injuries. Both defendants filed motions to dismiss, which were converted into motions for summary judgment with the filing of additional affidavits. The trial court granted summary judgment in favor of BMHI based on, inter alia, the applicable statute of limitations and BMHI's immunity as a governmental entity. The court subsequently granted summary judgment to the defendant doctor based on the statute of limitations. The plaintiff timely appealed. Determining that a genuine issue of material fact exists regarding when the plaintiff was aware of facts sufficient to place him on notice that his injury was allegedly the result of the defendant doctor's wrongful conduct, we conclude that summary judgment was improperly granted to the defendant doctor. We affirm the trial court‟s grant of summary judgment in favor of BMHI.

Here is a link to the opinion:

https://www.tba.org/sites/default/files/rogersj_022916.pdf

Just Swiney issued a separate concurring opinion also, which can be found at this link:

https://www.tba.org/sites/default/files/SWINEYconcurring.pdf

NOTE: This opinion offers a good discussion of the discovery rule in health care liability actions.

New Health Care Liability Action Opinion: The Common-knowledge Exception Is Alive and Well

The Tennessee Court of Appeals issued its opinion today in Osunde v. Delta Medical Center, No. W2015-01005-COA-R9-CV (Tenn. Ct. App. Feb. 10, 2016).  The summary from the opinion states as follows:

This interlocutory appeal concerns the trial court‟s partial dismissal of a case concerning
alleged negligence committed against Plaintiff/Appellee Brenda Osunde (“Mrs. Osunde”).  Mrs. Osunde filed a complaint in the trial court alleging a medical malpractice claim against DMC-Memphis, Inc. (“DMC”), as well as a claim for common law negligence, after she sustained a fall while at DMC's hospital, Delta Medical Center. When Mrs. Osunde failed to disclose any experts pursuant to the trial court‟s scheduling order, DMC moved for summary judgment. In adjudicating DMC's motion, the trial court drew a distinction between Mrs. Osunde's “health care liability action,” which it dismissed for her failure to produce an expert, and Mrs. Osunde's common law negligence claim, which it ruled should proceed to trial. After ruling on the motion for summary judgment, the trial court stayed further proceedings and granted DMC leave to pursue interlocutory review in this Court. Although we agree with DMC that all of Mrs. Osunde's asserted claims give rise to a “health care liability action” within the meaning of the Tennessee Code, we disagree with DMC's assertion that expert testimony is required to prove Mrs. Osundes allegations of negligence.  As such, we reverse the trial court‟s order to the extent that it purports to dismiss Mrs.Osunde's health care liability action, and we affirm the trial court‟s decision to allow this
case to proceed to trial.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/brendaosundeetal_021116.pdf

NOTE: This opinion cites Deuel v. The Surgical Clinic, PLLC, No. M2009-01551-COA-R3-CV, 2010 WL 3237297, at *9-14 (Tenn. Ct. App. Aug. 16, 2010), available at https://scholar.google.com/scholar_case?case=12032494268351347403&q=Deuel&hl=en&as_sdt=4,43 (last visited Feb. 10, 2016).  Deuel was my case and I am happy to see it being cited for the proposition that the common-knowledge exception to expert testimony is alive and well in Tennessee.  There is also persuasive authority that supports Deuel and Osunde from one of our sister states, New Jersey, to wit: Hubbard ex rel. Hubbard v. Reed, 774 A.2d 495 (N.J. 2001), available at https://scholar.google.com/scholar_case?case=14138098579974599499&q=Hubbard&hl=en&as_sdt=4,31 (last visited Feb. 10, 2016).

Further, even if the common knowledge exception applies in a health care liability action, presuit notices must still be mailed out per Tenn. Code Ann. sec. 29-26-121, even if a certificate of good faith is not required per Tenn. Code Ann. sec. 29-16-122.  See Hubbard, supra, and my post from March 10, 2015, to wit:

http://theduncanlawfirm.blogspot.com/2015/03/new-health-care-liability-action.html

New Medical Malpractice Opinion: Plaintiffs' Case Dismissed Due to Numerous Reasons

The Tennessee Court of Appeals recently released its opinion in Mikheil v. Nashville General Hospital at Meharry, No. No. M2014-02301-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2016).  The summary of the opinion states as follows:

In this health care liability action, the plaintiffs disagree with a number of the trial court’s rulings upon which it based its decision to grant summary judgment in favor of the defendants. The trial court excluded the plaintiffs’ life care planner due to their failure to provide a complete disclosure of the life care planner’s opinions in a timely manner. The trial court ruled that the plaintiffs’ sole standard of care expert, a neurosurgeon, was not competent to testify as to the standard of care of the defendant nurse practitioner.  Furthermore, the trial court precluded the plaintiffs’ standard of care expert from testifying at all due to the plaintiffs’ repeated failure to comply with the court’s orders regarding discovery. We find no abuse of discretion with respect to the trial court’s decisions and affirm the judgment.

Here is a link to the opinion:

https://www.tba.org/sites/default/files/mikheilm_020116.pdf#page=1&zoom=auto,-99,798

NOTE: This case is still a "medical malpractice case" as opposed to a "health care liability action" because it arose before the statutory name change in 2011.

New Laws Effective in Tennessee on Jan. 1, 2016

http://www.capitol.tn.gov/legislation/publications/01-01-2016_effective.pdf

New Health Care Liability Action Opinion: Dismissal of Representaitve Plaintiffs' Claims by Trial Court Upheld on Appeal Due to Their Failure to Provide HIPAA-complaint Authorization as Required by Tenn. Code Ann. sec. 29-26-121(a)(2)(E)

The Tennessee Supreme Court just released its opinion in Dolman v. Donovan, No. W2015-00392-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015).  Here is the summary from the opinion:

This is a healthcare liability action arising from the death of the decedent, Melinda Dolman.  Appellants, daughters of the decedent, filed this action against Appellees, Timothy Donovan, M.D., Brixey Shelton, M.D., Memphis Vascular Center, Memphis Radiological, P.C., and Memphis LeBonheur Healthcare. Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated section 29-26-121.  Specifically, Appellees challenged whether the medical authorization provided with the presuit notice letter was compliant with Tennessee Code Annotated section 29-26-121(a)(2)(E).  Following a hearing on the motion, the trial court agreed with Appellees and dismissed the action. Appellants timely appealed. We affirm and remand.

Here is a link to the opinion:

https://www.tba.org/sites/default/files/melindadolman_122215.pdf

New Health Care Liability Action Opinion: Trial Court's Dismissal of Claim as Being Time-barred Upheld on Appeal; Plaintiff's Deceased Not "Adjuciated Incompetent" so as to Toll the Statute of Limitations

The Tennessee Court of Appeals just released its opinion in Johnson v. UHS of Lakeside, LLC, No. W2015-01022-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015).  The summary from the opinion is as follows:

Plaintiff filed a health care liability action on behalf of her deceased husband. Plaintiff provided pre-suit notice more than one year after the cause of action accrued and subsequently filed a complaint. Defendant filed a motion to dismiss based on the applicable one-year statute of limitations. Plaintiff argued that her husband had been “adjudicated incompetent” within the meaning of Tennessee Code Annotated Section 28-1-106 and that the statute of limitations was accordingly tolled. The trial court dismissed Plaintiff‟s case with prejudice finding that the statute unambiguously required a judicial adjudication of incompetency in order to toll the statute of limitations, and Plaintiff‟s husband had not been judicially adjudicated incompetent within the meaning of the statute at the time the cause of action accrued. Discerning no error, we affirm.

Here is a link to the opinion:

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

New Health Care Liability Action Opinion: Plaintiff's Expert Struck for Failing to Disclose Financial Documents; Case Dimissed by Trial Court

The Tennessee Court of Appeals just released its opinion in Weatherspoon v. Minard, No. W2015-01099-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2015).  Here is the summary from the opinion:

Plaintiff filed this health care liability action against the defendant doctor in 2000 and voluntarily non-suited it in 2008. Plaintiff re-filed the action in 2009. The defendant moved to exclude the plaintiff‟s standard-of-care expert for his failure to produce certain financial documents. The trial court granted the motion and excluded the expert five days before the scheduled trial date. Plaintiff requested leave to employ another standard-of-care expert in the five days before trial, which the trial court denied. The trial court ultimately dismissed the plaintiff‟s entire case because, without a standard-of-care expert, he was unable to state a health care liability claim. Plaintiff appealed, arguing that the trial court abused its discretion when it did not permit him to “emergently arrange” for an expert in the five days preceding the scheduled trial date. Discerning no error, we affirm.

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/weatherspoondopn.pdf

New Health Care Liability Action Opinion: Court of Appeals Upholds Trial Court's Dismissal Due to Failure to Comply with Presuit Notice Requirements

The Tennessee Court of Appeals just issued its opinion in Bray v. Khuri, No. W2015-00397-COA-R3-CV (Tenn. Ct. App. Dec. 3, 2015).  The summary of the opinion states as follows:

This is a health care liability action arising from decedent’s death.  Appellant filed this action against Dr. Radwan Khuri. Dr. Khuri moved to dismiss this action for failure to comply with the notice requirement of Tennessee Code Annotated section 29-26-121 et seq. Specifically, Dr. Khuri challenged whether the medical release provided with the pre-suit notice letter was compliant with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). The trial court agreed with Dr. Khuri and dismissed the action with prejudice. Appellant timely appealed. We affirm.

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/braydeborahopn.pdf

New Tennessee Supreme Court Health Care Liability Action Opinion: Hannan v. Alltel Overruled by the Court; Summary Judgment Granted to Defense on All Claims

Today, the Tennessee released its opinion in Rye v. Women's Care Ctr. of Memphis, MPLLC, No. W2013-00804-SC-R11-CV (Tenn. Oct. 26, 2015).  Here is the summary from the opinion:

We granted permission to appeal in this healthcare liability action to reconsider the summary judgment standard adopted in Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008). The Court of Appeals concluded that the Hannan standard requires reversal of the trial court‘s decision granting summary judgment to the defendants on certain of the plaintiffs‘ claims. We hereby overrule Hannan and return to a summary judgment standard consistent with Rule 56 of the Federal Rules of Civil Procedure. We hold, therefore, that a moving party may satisfy its initial burden of production and shift the burden of production to the nonmoving party by demonstrating that the nonmoving party‘s evidence is insufficient as a matter of law at the summary judgment stage to establish the nonmoving party‘s claim or defense. Applying our holding to the record in this case, we conclude that the defendants are entitled to summary judgment on all the plaintiffs‘ claims at issue in this appeal. Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals and remand this matter to the trial court for entry of summary judgment on these issues and for any other proceedings that may be necessary.

Here is a link to the majority opinion:

http://www.tsc.state.tn.us/sites/default/files/ryem.m.opn_.pdf

Justice Kirby did not participate in the decision.

Justice Lee authored a concurring opinion that can be found at this link:

http://www.tsc.state.tn.us/sites/default/files/ryem_con_lee.opn_.pdf

Justice Bivins  authored a concurring opinion also, which can be found at this link:

http://www.tsc.state.tn.us/sites/default/files/ryem_con_bivins.opn_.pdf

Justice Wade authored a dissenting opinion that can be found at this link:

 http://www.tsc.state.tn.us/sites/default/files/ryem_dis_wade.opn_.pdf

The Tennessee Supreme Court Rules That the Issue of Whether Caps on Noneconomic Damages Are Constitutional Is Not Ripe at This Time

The Tennessee Supreme Court ruled that the issue of whether caps on noneconomic damages are unconstitutional is not ripe at this time.  Clark v. Cain, No. E2015-00949-SC-R11-CV (Tenn. Oct. 16, 2015) (per curiam), available at http://www2.tncourts.gov/PublicCaseHistory/CaseDetails.aspx?id=64104&Business=True (last visited Oct. 17, 2015).  (Please scroll down under the heading of "Case History" to view the order.)

With this order, the Court accepted the defendants' and the State's applications for permission to appeal, ruled that this issue was not ripe at this time, vacated the trial court's ruling that caps were unconstitutional, and remanded the matter back to the trial court.  (Id.)

As much as I would have liked to have seen this issue decided now, this appears to the correct decision by the Court.  However, the plaintiffs had to challenge the caps preverdict because it had been decided by at least one other state's high court that a plaintiff was precluding from challenging that state’s caps postverdict and should have done so preverdict. 

NOTE: Thanks to Jon Peeler of Nashville, Tenn. for bringing this to my attention last night.

P.S.  Here is what I think about tort "reform," which caps on noneconomic damages are a part of.  Watch the clip below: pay attention to it at about the one-minute mark, to wit:

https://www.youtube.com/watch?v=NXvcleOF798

New Tennessee Supreme Court Health Care Liability Action Opinion: Trial Court's Dismissal of Plaintiffs' Lawsuit Due to Their Failure to Provide the Statutorily Required Presuit Notice and File a Certificate of Good Faith Reinstated by the Court

The Tennessee Supreme Court released its opinion today in Ellithorpe v. Weismark, No. M2014-00279-SC-R11-CV (Tenn. Oct. 8, 2015).  The summary of the opinion states as follows:

We granted review in this health care liability action to decide whether the trial court erred by failing to apply this Court's analysis in Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), in determining whether it was necessary for plaintiffs to provide pre-suit notice and a certificate of good faith under the Tennessee Health Care Liability Act (“THCLA”), Tenn. Code Ann. § 29-26-101 et seq. We hold that the Tennessee Civil Justice Act of 2011, which amended the THCLA, statutorily abrogated our decision in Estate of French by providing that “[a]ny such civil action or claim is subject to [the THCLA] regardless of any other claims, causes of action, or theories of liability alleged in the complaint.” Because it is undisputed that the plaintiffs in this case failed to provide pre-suit notice or file a certificate of good faith, the judgment of the Court of Appeals is reversed and the judgment of the trial court dismissing the plaintiffs‟ complaint with prejudice is reinstated.

(Alterations in original.)

Here's a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/ellithorpea_opn.pdf

NOTE: This case eviscerates the holding in French, supra, and disallows claims for ordinary negligence against providers listed in Tenn. Code Ann. sec. 29-16-101.  It does, however, acknowledge that the common knowledge exception to expert testimony remains extant.

New Health Care Liability Action Opinion: Trial Court's Dismissal of Plaintiff's Claim as Untimely per the GTLA Upheld on Appeal

The Tennessee Court of Appeals released its opinion yesterday in Miller v. Cookeville Reg'l Med. Ctr., No. M2014-01917-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2015).  The summary from the opinion states as follows:

Plaintiff filed this medical malpractice action on September 8, 2011, pursuant to the Tennessee Medical Malpractice Act (“the TMMA”) against Cookeville Regional Medical Center, which is a governmental entity subject to the Governmental Tort Liability Act (“the GTLA”). The Medical Center filed a motion to dismiss for failure to state a claim, relying upon the Supreme Court’s decision in Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), to support its assertion that Plaintiff’s suit was untimely filed because it was not filed within the one-year statute of limitations set forth in the GTLA, Tenn. Code Ann. § 29-20-305(b) (2012). Plaintiff responded contending that the Cunningham decision should be applied prospectively only, so as to preserve Plaintiff’s claim as timely. The trial court found the decision in Cunningham controlling and dismissed the complaint as untimely filed. We affirm.

(Footnote omitted.)

Here is a link to the opinion: https://www.tba.org/sites/default/files/millerf_093015.pdf

NOTE: The one-year statute of limitations is now extended by proper presuit notice sent pursuant to Tenn. Code Ann. sec. 29-26-121 due to a statutory amendment, which is mentioned in this opinion.  That amendment did not apply to this case because the claim accrued before the amendment's effective date.

New Health Care Liability Action Opinion: Tenn. Code Ann. sec. 20-1-119 and Venue

The Tennessee Court of Appeals released its opinion today in Barrett v. Chesney, No. W2014-01921-COA-R9-CV (Tenn. Ct. App. Sept. 28, 2015).  The summary from the opinion states as follows:

This interlocutory appeal arises from a health care liability action and concerns the question of proper venue. Plaintiff filed her original lawsuit in Shelby County against the Appellants, a pathology group located in Shelby County. Appellants answered the complaint and raised, as an affirmative defense, the comparative negligence of Appellees, plaintiff‟s primary care physician and his employer, who are residents of Sumner County. Plaintiff then moved, under Tennessee Code Annotated Section 20-1-119, for leave to amend her complaint to add the Sumner County residents to the lawsuit. Leave was granted, and plaintiff filed an amended complaint under Tennessee Rule of Civil Procedure 15.01. Appellees answered the complaint and averred that venue was improper in Shelby County under Tennessee Code Annotated Section 20-4-101(b). Appellees asked for dismissal of the lawsuit; however, rather than dismissing the lawsuit, the Shelby County court transferred the case to Sumner County. Appellants appeal. We affirm and remand.

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/barrettkathleenopn.pdf

New Health Care Liability Action Opinion: Trial Court's Denial of Defendants' Motions to Dimiss Due to Plaintiffs' Alleged Failure to Comply with Presuit Notice Requirements, Etc., Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Hunt v. Nair, No. E2014-01261-COA-R9-CV (Tenn. Ct. App. Sept. 25, 2015).  The summary from the opinion states as follows:

This interlocutory appeal involves a health care liability action. The plaintiffs, Margie Hunt and husband, Rickey Hunt, claim that Mrs. Hunt suffered injuries proximately caused by the conduct of the defendants with respect to two surgeries. Prior to filing their complaint, the plaintiffs gave timely written notice of their claim to potential defendants. See Tenn. Code Ann. § 29-26-121(c) (Supp. 2013). Each of the three defendants moved to dismiss the complaint. Their separate motions were predicated on their assertion that the plaintiffs‟ pre-suit notice failed to comply with the requirements of Tenn. Code Ann. § 29-26-121, part of the Tennessee‟s Health Care Liability Act. Specifically, the defendants argue that the plaintiffs failed to provide a HIPAA-compliant medical authorization with their pre-suit notice. They also contend that the plaintiffs failed to attach to the complaint the medical authorization and also the pre-suit notice served upon the defendants. The defendant Dr. Nitin J. Rangnekar also relies upon the ground of insufficiency of service of process. The trial court denied each defendant‟s motion. On the defendants‟ further motions, the court granted them permission to pursue an interlocutory appeal pursuant to the provisions of Tenn. R. App. P. 9. We likewise granted the defendants permission to file a Rule 9 appeal. We affirm the judgment of the trial court.

(Footnotes omitted.) 

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/hunt_v._nair_m.d.pdf

NOTE: This is a must-read opinion for any lawyer who handles health care liability actions in Tennessee given the fact that it discusses substantial compliance of presuit notice procedures, filing requirements, and the waiver of affirmative defenses for failing to comply with Rule 8.03, Tenn. R. Civ. P.

New Tennessee Supreme Court Opinion Relating to Cases Filed in the Claims Commission, the Tennessee Governmental Tort Liability Act, and Tenn. Code Ann. sec. 20-1-119

The Tennessee Supreme Court just released its opinion in Moreno v. City of Clarksville, No. 2014-01465-CS-R11-CV (Tenn. Sept. 18, 2015), available at http://www.tncourts.gov/sites/default/files/morenorichard.opn_.pdf (last visited Sept. 20, 2015).

Justice Wade filed a dissenting opinion, which can be found at this link: Moreno v. City of Clarksville, No. 2014-01465-CS-R11-CV (Tenn. Sept. 18, 2015) (Wade, J., dissenting), available at   http://www.tncourts.gov/sites/default/files/morenorichardopn_dissent_final.pdf (last visited Sept. 20, 2015).

These are must-read opinions that discuss the interplay between sovereign immunity and comparative fault. 

Recent Tennessee Legislation Affecting Transportation Network Companies Like Uber, Lyft, Sidecar, Wingz, and Summon, Etc.

The Tennessee General Assembly recently enacted legislation that deals with what is now called a transportation network company ("TNC"). A TNC is a company like Uber, Lyft, Sidecar, Wingz, and Summon.  TNCs have become increasingly popular of late and their popularity shows no signs of waning. As a result, this legislation seemed necessary. The cite to it is as follows: Act of Apr. 22, 2015, ch. 520, 2015 Tenn. Pub. Acts 648 (enacting the Transportation Network Company Services Act, codified at T.C.A. §§ 55-12-141, 56-7-1118 & 65-15-301 to -311), available at http://share.tn.gov/sos/acts/109/pub/pc0520.pdf (last visited Aug. 20, 2015).

This legislation deals with, among other things, priority-of-coverage and amount-of-coverage issues. If you are a lawyer who has an auto tort case in Tennessee involving a TNC driver, this is must-read legislation.  

New Health Care Liability Action Opinion: Trial Court's Allowance of a Nonsuit to Cure Noncompliance with Presuit Notice Requirements Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Phillips v. Casey, No. E2014-01563-COA-R9-CV (Tenn. Ct. App. Jul. 21, 2015).  The summary from the opinion states as follows:

This is a health care liability action. The plaintiff‟s late husband died following a bilateral tonsillectomy surgery. An autopsy determined that the cause of death was angioedema. The plaintiff filed suit against the defendants exactly one year after her husband‟s death. The complaint did not comply with the pre-suit notice requirements for health care liability suits. The plaintiff voluntarily dismissed the suit without prejudice and re-filed suit. The defendants moved to dismiss, claiming that the re-filed suit was barred. The trial court denied the motion to dismiss and a subsequent motion to reconsider but granted permission to file an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. We granted permission to appeal and now affirm the decision of the trial court.

(Footnote omitted.)

Here is a link to the opinion:

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

New Tennessee Supreme Court Health Care Liability Action Opinion: Delivery of Presuit Notices via FedEx Substantially Complies with Presuit Notice Statute

The Tennessee Supreme Court recently released its opinion in Arden v. Kozawa,No. E2013-01598-SC-R11-CV (Tenn. Jun. 30, 2015).  The summary from the opinion reads as follows:

The primary issue presented is whether a health care liability case must be dismissed because the plaintiff sent the health care defendants pre-suit notice of the claim via a commercial carrier, FedEx, instead of using certified mail, return receipt requested, through the United States Postal Service. The defendants moved for summary judgment, asserting that the plaintiff failed to comply with the requirements of Tennessee Code Annotated sections 29-26-121(a)(3)(B) and (a)(4) (2012). The defendants did not allege they failed to receive notice or were prejudiced by the plaintiff's method of service. The trial court dismissed the complaint, holding that strict compliance with the manner and proof of service requirements of Tennessee Code Annotated sections 29-26-121(a)(3)(B) and (a)(4) was required. The Court of Appeals affirmed, holding that substantial compliance was sufficient to satisfy the statutory content requirements of the notice, but that the plaintiff's failure to send the notice by certified mail constituted deficient service.  We hold that the manner and proof of service prescribed by Tennessee Code Annotated sections 29-26-121(a)(3)(B) and (a)(4) may be achieved through substantial compliance.  The defendants received notice and were not prejudiced by the manner of service.  Therefore, the use of FedEx to deliver the notice and the filing of proof of service with the complaint constituted substantial compliance with the manner and proof of service requirements of the pre-suit notice statute. The judgment of the Court of Appeals is reversed, and the case is remanded to the trial court for further proceedings.

Here's a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/ardenc.opn_.pdf

NOTE: This is a good decision because Tennessee has a long-established, oft-repeated policy of deciding cases on their merits and not on procedural technicalities.  I applaud the Tennessee Supreme Court for doing the right thing in this instance. 

New Laws Effective in Tennessee in 2015

Jan. 1, 2015:

http://www.capitol.tn.gov/legislation/publications/1-1-2015%20effective.pdf

Jul. 1, 2015:

http://www.capitol.tn.gov/legislation/publications/07-01-2015%20effective.pdf

New Health Care Liability Action Opinion: Trial Court's Dismissal of Plaintiffs' Case Due to a "Defective" HIPAA Authorization Overturned on Appeal

The Tennessee Court of Appeals recently released its opinion in Hughes v. Henry Cnty. Med. Ctr., No. W2014-01973-COA-R3-CV (Tenn. Ct. App. Jun. 9, 2015).  The slip opinion states as follows:

This is a healthcare liability action, arising from alleged injuries to Appellant, Melba Hughes. Mrs. Hughes' husband, Robert Hughes, filed this action against Appellee, Henry County Medical Center (“HCMC”), and Dr. Donald Gold, who is not a party to this appeal. Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated Section 29-26-121. Specifically, Appellee challenged whether the medical authorization provided with the pre-suit notice letter was compliant with Tennessee Code Annotated 29-26-121(a)(2)(E). An error in the medical authorization form provided to HCMC did not permit HCMC to obtain medical records from Dr. Gold. However, Dr. Gold saw the patient only at HCMC, and he had no records independent of the hospital‟s records. Following a hearing on the motion, the trial court dismissed the action without prejudice. Mr. and Mrs. Hughes timely filed their appeal. We reverse and remand the matter to the trial court.

Here is a link to the opinion:

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

New Health Care Liability Action Opinion: Trial Court's Denial of Motion to Dismiss Based upon a "Defective" Certificate of Good Faith Affirmed on Appeal

The Tennessee Court of Appeals just issued its opinion in Kerr v. Thompson, No. W2014-01973-COA-R3-CV (Tenn. Ct. App. Jun. 9, 2015).  The summary from the slip opinion states as follows:

The trial court denied the defendant doctor’s motion to dismiss this medical malpractice action on the ground that the plaintiff had substantially complied with Tennessee Code Annotated Section 29-26-122, despite the fact that her certificate of good faith did not contain a statement that the executing party had no prior violations of the good faith certificate requirement. This Court granted an interlocutory appeal. While this appeal was pending, the Tennessee Supreme Court issued its Opinion in Davis v. Ibach, No. W2013-02514-SC-R11-CV, --- S.W.3d ---, 2015 WL 3451613 (Tenn. May 29, 2015), ruling that Tennessee Code Annotated Section 29-26-122 does not require a party executing a certificate of good faith to note the absence of any prior violations of the good faith certificate requirement. Based on Davis, we conclude that plaintiff’s certificate of good faith was fully compliant with Tennessee Code Annotated Section 29-26-122. Accordingly, although we rely on different grounds, we affirm the trial court’s ruling denying the defendant doctor’s motion to dismiss.

(Emphasis in original.)

Here is a link to the opinion:

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

NOTE: This post relates to my May 29, 2015 post.

New Tennessee Supreme Court Health Care Liability Action Opinion: Trial Court's Ruling, Which Allowed Plaintiff to Nonsuit the Case Without Prejudice, Upheld on Appeal

The Tennessee Supreme Court issued its opinion today in Davis v. Ibach, No. W2013-02514-SC-R11-CV (Tenn. Mar. 29, 2015).  The summary from the slip opinion states as follows:

The Plaintiff filed a medical malpractice action against the Defendants. Following the Defendants' motions to dismiss the action, asserting that the certificate of good faith was noncompliant with the requirement in Tennessee Code Annotated section 29-26-122(d)(4) (Supp. 2008), the trial court granted the Plaintiff's request to voluntarily dismiss the action. The Defendants appealed, and the Court of Appeals affirmed the order of the trial court. We granted review to determine whether the requirement of Tennessee Code Annotated section 29-26-122(d)(4) that a certificate of good faith filed in a medical malpractice action disclose the number of prior violations of the statute by the executing party also requires disclosure of the absence of any prior violations of the statute. We hold that it does not. Accordingly, the judgment of the Court of Appeals is affirmed.

Here's a link to the opinion:

https://www.tncourts.gov/sites/default/files/davistopn_1.pdf

New Tennessee Supreme Court Opinion on Informed Consent

The Tennessee Supreme Court just issued its opinion in White v. Beeks, No. E2012-02443-SC-R11-CV (Tenn. May 18, 2015).  The summary from the slip opinion states as follows:

The issue in this health care informed consent case is whether the trial court erred by limiting the testimony of plaintiff patient’s expert witness regarding the risks that the defendant doctor was required to disclose to obtain the patient’s informed consent for surgery. The doctor performed a spinal fusion on the patient. His back pain initially improved, but subsequently worsened. The patient sued the doctor, claiming his back pain was caused by nerve compression due to ectopic bone growth at the site of the fusion. The patient alleged that the doctor failed to give him adequate information to enable him to give an informed consent to the surgery. In a pretrial deposition, the patient’s expert testified that to obtain informed consent, the doctor was required to advise the patient that he would use a bone-grafting protein and inform the patient about all the potential risks arising from its use, including risks that allegedly caused harm and risks that did not cause harm. The trial court granted the doctor’s motion to limit the patient’s expert witness testimony to only those risks that allegedly materialized and injured the patient. The jury returned a verdict in favor of the doctor. In a divided opinion, the Court of Appeals affirmed the trial court’s exclusion of the expert medical testimony. We hold that the trial court erred by excluding expert testimony regarding undisclosed medical risks that had not materialized. Because this error, more probably than not, influenced the jury’s verdict, the patient is awarded a new trial.

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/whitei.opn_1.pdf

NOTE: This is a must-read opinion for any lawyer who has a case with an informed-consent element that is to be decided under Tennessee law.

New Health Care Liability Action Opinion: Case Dismissed Due to Noncompliance with Onerous and Unfair Presuit Notice Requirements

The Tennessee Court of Appeals recently issued its opinion in Harmon v. Shore, No. M2014-01339-COA-R3-CV (Tenn. Ct. App. Apr. 23, 2015).  The summary from the opinion states as follows:

This is a Health Care Liability case. Appellees are the treating physician and hospital. The trial court granted Appellees‟ Tennessee Rule of Civil Procedure 12.02 motions to dismiss Appellant‟s lawsuit for failure to comply with the Tennessee Code Annotated Section 29-26-121(a)(2)(E) notice provision for health care liability claims. Specifically, the trial court determined that the required Health Insurance Portability and Accountability Act (HIPAA) medical authorization provided by Appellant was not substantially compliant with the statutory requirements in that the relevant medical records were released only to Appellant‟s lawyer. Discerning no error, we affirm and remand.

Here is a link to the opinion:

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

New Health Care Liability Action & Comparative Fault Opinion: Joinder of a Nonparty under Tenn. Code Ann. sec. 20-1-119

The Tennessee Court of Appeals recently released its opinion in Swearengen v. DMC-Memphis, No. W2014-00724-COA-R3-CV (Tenn. Ct. App. Apr. 2, 2015).  The summary from the opinion states as follows:

This is an appeal from the trial court‟s grant of a motion to dismiss Appellant‟s medical malpractice action[] against defendants named in Appellant‟s amended complaint filed more than one year after the cause of action accrued. The trial court found that Appellant‟s claims against the additional parties were time barred because the amended complaint adding these parties was not filed within ninety days of the original answer asserting comparative fault against non-parties. Discerning no error, we affirm and remand. 

Here is a link to the opinion: 

http://www.tsc.state.tn.us/sites/default/files/swearengencliffordopn.pdf

NOTE: Respectfully, I think this opinion is wrongly decided,  This is because it appears to be contrary to the Tennessee Supreme Court opinion issued in the case of Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn. 2000), available at https://scholar.google.com/scholar_case?case=4690641893954946747&q=Brown+v.+Wal-Mart&hl=en&as_sdt=4,43 (last visited Apr. 6, 2015). Per Brown, and Rule 8.03, Tenn. R. Civ. P., it appears that a defendant must be more specific in pleading the fault of a nonparty as an affirmative defense than was allowed in this opinion.  Brown, 12 S.W.3d at 789.

New Opinion on Trial Practice in a Tort Case

The Tennessee Court of Appeals recently released its opinion in Monypeny v. Kheiv, No. W2014-00656-COA-R3-CV (Tenn. Ct. App. Apr. 1, 2015).  The summary from the opinion states as follows:

This is an appeal from a judgment entered on a jury verdict. The case arises from a motor vehicle accident. Appellant State Farm defended the case as the original plaintiffs’ uninsured motorist carrier. The original plaintiffs subsequently died, one as a direct result of injuries sustained in the accident, the other some two years after the accident. The plaintiffs’ children were substituted as plaintiffs/appellees. State Farm appeals the judgment on the jury verdict on numerous grounds, including: (1) denial of its motion for directed verdict; (2) scope of cross-examination; (3) denial of its motion for mistrial based upon inappropriate closing argument; (4) exclusion of notations on medical records; (5) various acts of alleged wrongdoing on the part of Appellees’ attorneys; (6) jury instructions; (7) admission of medical bills for original plaintiff’s long term assisted living expenses; (8) excessive verdict; (9) incorrect application of statutory cap on non-economic damages; (10) denial of credit for medical and death payments made by State Farm under the insurance policy; and (11) award of discretionary costs. Because there is material evidence to support the jury’s verdict, and because the trial court did not abuse its discretion, we affirm and remand.

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/monypenybrooksopn.pdf

NOTE: This opinion offers a good discussion for the Tennessee trial lawyer as it relates to the trial of a tort suit in this state.  It is a must-read case in my opinion.

New Wrongful Death Opinion: Disqualification of Surviving Spouse under Recent Changes to Tennessee's Wrongful Death Law

The Tennessee Court of Appeals recently released its opinion in Baugh v. United Parcel Serv., No. M2014-00353-COA-R3-CV (Tenn. Ct. App. Mar. 31, 2015).  The summary from the opinion states as follows:

In this wrongful death appeal, the main issue is whether, under Tenn. Code Ann. § 20-5-106(c)(1), a surviving spouse must have abandoned the decedent for a period of two years to have waived his or her right to institute an action or collect proceeds under that section.  We have concluded that the two-year period in Tenn. Code Ann. § 20-5-106(c)(1) applies only to “willful withdrawal.”

Here's a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/baughl.opn_.pdf

NOTE: This opinion offers an analysis of the recent changes to our state's wrongful death law, which was recently amended.

New Health Care Liability Action Opinion: Case Refiled under Saving Statute Dismissed Because Plainitffs Did Not Resend Presuit Notices Before Filing Second Suit

The Tennessee Court of Appeals recently issued its opinion on Potter v. Perrigan, No. E2013-01442-R3-CV (Tenn. Ct. App. Mar. 26, 2015).  The summary from the opinion states as follows:

This is a medical malpractice action. Plaintiffs timely filed a complaint [] after properly sending pre-suit notices to Defendants. After voluntarily dismissing the initial complaint, Plaintiffs filed a second complaint pursuant to the saving statute with an attached certificate of good faith and a copy of the original pre-suit notices. Defendants moved to dismiss the second complaint for failure to comply with the notice requirements set out in Tennessee Code Annotated section 29-26-121(a). The trial court agreed and dismissed the action.  Plaintiffs appealed. We reversed the decision of the trial court. Defendants filed an application for permission to appeal. The Tennessee Supreme Court granted the application and remanded the case for reconsideration in light of its opinion in Foster v. Chiles, No. E2012-01780-SC-R11-CV, 2015 WL 343872 (Tenn. Jan. 27, 2015). Upon remand, we affirm the decision of the trial court.

(Footnote omitted.)

Here is a link to the opinion:

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

Tony Duncan Receives Highest Rating Possible from Martindale-Hubbell: AV Preeminent

I am honored and humbled to have recently received the highest rating possible from Martindale-Hubbell, which is an AV Preeminent rating.  Here is a link to my rating page: 

http://www.martindale.com/H-Anthony-Duncan/1601302-lawyer.htm?view=cr

Again, I am honored and humbled.  This is a milestone that I will always cherish.

New Health Care Liability Opinion: Plaintiffs' Failure to File Certificate of Good Faith Leads to a Dismissal of Their Case with Prejudice

The Tennessee Court of Appeals recently issued its opinion in Dennis v. Smith, No. E2014-00636-COA-R3-CV (Tenn. Ct. App. Mar. 31, 2015).  The summary from the opinion states as follows:

Linda Dennis and Creed Dennis [] filed a healthcare liability action against Dr. Robert G. Smith [] and others. Defendant filed a motion to dismiss. After a hearing, the Circuit Court for Knox County [] dismissed Plaintiffs’ claims after finding and holding, inter alia, that Plaintiffs had failed to comply with Tenn. Code Ann. §§ 29-26-121 and 29-26-122. Plaintiffs appeal the dismissal of their claims to this Court. We find and hold that because Plaintiffs failed to comply with Tenn. Code Ann. § 29-26-122, their action was subject to dismissal with prejudice upon motion. We, therefore, affirm the Trial Court’s dismissal of Plaintiffs’ claims.

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/dennislopn.pdf

New Health Care Liability Action Opinion: A Spouse's Loss-of-consortium Claim and Presuit Notice

The Tennessee Court of Appeals recently issued its opinion in Igou v. Vanderbilt Univ., No. M2013-02837-COA-R3-CV (Tenn. Ct. App. Mar. 27, 2015).  This opinion has to do with a spouse's derivative loss-of-consortium claim in conjunction with a health care liability action.  The summary from the opinion states as follows: 

This appeal asks whether a wife‘s loss of consortium claim, brought pursuant to her husband‘s underlying health care liability action, is itself a health care liability action subject to the pre-suit notice provision of the Tennessee Health Care Liability Act. The trial court granted the hospital‘s motion to dismiss, finding that the wife‘s claim was a health care liability action under the Act and that she had failed to comply with the pre-suit notice provision. As an alternative ground for dismissal, the court also found that the wife had failed to file suit within the statute of limitation. We vacate the trial court‘s order of dismissal with prejudice and remand.

Here is a link to the opinion:

 http://www.tsc.state.tn.us/sites/default/files/igouj.opn_.pdf

New Health Care Liability Action Opinion: Foreign Object Case Is a Health Care Liability Action; Not a Case That Can Be Classified as One of Ordinary Negligence as Plaintiff Contends

The Tennessee Court of Appeals issued its opinion today in Smith v. Testerman, No. E2014-00956-COA-R9-CV (Tenn. Ct. App. Mar. 10, 2015).  The opinion has to do with a foreign object, a surgical sponge, left in a wound to help treat a post-surgical infection; it does not deal with a sponge left in during surgery, which is significant in my opinion as to whether a certificate of good faith is required under Tenn. Code Ann. sec. 29-26-122.

The summary from the opinion states as follows:

This is a case alleging negligence by the defendants which resulted in injury to a patient, Dennis Smith. Following hernia surgery, Mr. Smith was fitted for a wound vacuum because an infection had developed at the surgical site. A sponge was placed to absorb the infection.  The defendants removed the wound vacuum when the infection dissipated, but they failed to remove the sponge, which later caused the wound to burst. Mr. Smith filed suit, and the defendants asserted that dismissal was appropriate because Mr. Smith had not complied with the filing requirements of the health care liability statute. Mr. Smith 1 responded that his complaint sounded in ordinary negligence, not health care liability. The trial court agreed and denied the motions but also granted permission for the defendants to pursue an interlocutory appeal. We granted the application for permission to appeal and now reverse the decision of the trial court.

Here is a link to the opinion:

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

Tennessee Trial Court Declares Caps on Noneconomic Damages Unconstitutional

http://www.timesfreepress.com/news/local/story/2015/mar/09/judge-rules-tennessees-cap-jury-damages-unconstitutional/292361/

Another Health Care Liability Action Opinion: What Limits May a Trial Court Place upon a Defendant's Ex Parte Contact with a Plaintiff's Treating Physicians under Tenn. Code Ann. sec. 29-26-121(f)?

The Tennessee Court of Appeals issued its opinion recently in S.W. ex rel. Warren v. Baptist Mem'l Hosp., No. W2014-00621-COA-R10-CV (Tenn. Ct. App. Feb. 27, 2015).  It is a companion case to the Dean-Hayslett case that is the subject of my Jan. 20, 2015, which can be viewed a few posts below.

The summary from the majority opinion states as follows:

This is a healthcare liability action. The trial court granted Defendants’ motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f)(1), but set-forth several conditions, including: 1) a court reporter must be present at the ex parte interviews with Plaintiff’s treating healthcare providers and record all questions and answers; 2) all answers during the interviews must be under oath; 3) the interview transcripts shall be filed under seal and with permission of the trial court, and after showing of good cause, Plaintiff may access the transcripts for the purpose of determining whether a violation of privacy under HIPAA occurred during the interviews; and 4) Defendants should not attempt to elicit or discuss protected health information which is not relevant to the issues in this lawsuit. The order also provided “[t]his does not restrict the Defendants or their attorneys from discussing non-substantive matters unrelated to the patient’s protected health information.” The trial court denied Defendants’ joint motion for interlocutory appeal of the order and Defendants filed an application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. We granted the appeal for the sole purpose of determining whether, under section 29-26-121(f), the trial court erred by adding the four conditions noted above to its order. We reverse in part, affirm in part, and remand for further proceedings.

Here is a link to that opinion:

http://www.tba.org/sites/default/files/warrenh_030215.pdf

This decision is atypical in that there are two concurring opinions: one by Judge Stafford and the other by Judge Dinkins, to wit:

http://www.tba.org/sites/default/files/warrenh_CON_030215.pdf

http://www.tba.org/sites/default/files/warrenh_CON2_030215.pdf

New Health Care Liability Action Opinion: Saving Statute Held to Be Extended by 120 Days Due to Presuit Notice Letters Being Sent Out under Tenn. Code Ann. sec. 29-26-121

The Tennessee Court of Appeals issued its opinion today in Tinnel v. East Tennessee Ear, Nose, and Throat Specialists, P.C., No. E2014-00906-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2015).  The summary from the opinion states as follows:

This is a medical malpractice action. Plaintiff filed a complaint after 2 sending pre-suit notices to Defendants. After voluntarily dismissing the complaint, Plaintiff filed a second set of pre-suit notices before re-filing the complaint. The pre-suit notices were filed within one year of the voluntary dismissal. Defendants moved for summary judgment, alleging that the re-filed complaint was untimely because it was not filed within one year of the dismissal pursuant to the saving statute. Plaintiff responded that the re-filed complaint was timely because the pre-suit notices entitled her to a 120-day extension of the saving statute pursuant to Tennessee Code Annotated section 29-26-121(c). The trial court dismissed the action.  Plaintiff appeals. We reverse the decision of the trial court.  

Here's a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/tinnelopn.pdf

Tennessee Supreme Court Denies Appeal in Harper v. Jackson-Madison Cnty. Gen. Hosp. Dist.

Last Thursday (Feb. 19, 2015) the Tennessee Supreme Court denied the defendant's application for permission to appeal under Rule 11 of the Tennessee Rules of Appellate Procedure in Harper v. Bradley Cnty.  This is a significant denial of an appeal because it allows the previous ruling to stand in that a plaintiff now gets the 120-day extension of the statute of limitations against a governmental entity (when proper presuit notices have been effected, of course) under the 2011 amendment in question.

Here is a link to the Tennessee Administrative Office of the Court's Web site where a copy of the order denying permission to appeal can be obtained, to wit:

 http://www2.tncourts.gov/PublicCaseHistory/CaseDetails.aspx?id=62136&Party=True

Further, please note that this post is a follow-up post to ones I made on this blog on January 31, 2015:

http://theduncanlawfirm.blogspot.com/2015/01/another-new-health-care-liability.html; and

November 3, 2014: 

http://theduncanlawfirm.blogspot.com/2014/11/new-health-care-liability-opinion-120.html.

Moreover, the Court of Appeals' opinion in this case may very well become a reported decision under Tennessee Supreme Court Rule 4.  If it does, Harper will become controlling authority for all purposes under said rule.

Another Health Care Liability Action Opinion Holding 120-day Extension to Statute of Limitations Applies to Governmental Entities

The Tennessee Court of Appeals recently released its opinion in Wade v. Jackson-Madison Cnty. Gen. Hosp. Dist., No. W2014-01103-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2015).  This opinion held that a plaintiff gets the benefit of the 120-day extension of the statute of limitations (provider proper presuit notice letters are delivered, of course) when the defendant is a governmental entity.  

The summary of the opinion states as follows:

The trial court granted summary judgment to the defendant medical providers on the basis that the plaintiffs’ health care liability complaint was filed after the expiration of the Governmental Tort Liability Act statute of limitations. Because we conclude that, under Tennessee Code Annotated Section 29-26-121(c), plaintiffs were entitled to a 120-day extension on the applicable statute of limitations, we reverse and remand.

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/wadeeropn.pdf

NOTE: This post should be read in conjunction with my Nov. 03, 2014 post, which is at the following link:

http://theduncanlawfirm.blogspot.com/2014/11/new-health-care-liability-opinion-120.html

Further, all three sections of the Tennessee Court of Appeals have held that the 120-day extension applies to governmental entities if proper presuit notice is sent out.  Wade, supra, is from the Western Section.  Harper, which is the subject of my Nov. 3 post, is from the Eastern Section.  (A Tenn. R. App. P. 11 was filed in late Dec. 2014.) And the Middle Section has held similarly in Banks v. Bordeaux Long Term Care, Nos. M2013-01775-COA-R3-CV & M2014-00119-COA-R9-CV (Tenn. Ct. App. Dec. 4, 2014), app. for perm. app. filed, (No. M2013-01775-SC-R11-CV, Dec. 26, 2014).

As you can discern, if the Tennessee Supreme Court accepts the application in either Harper or Banks, these decisions may be reversed.  However, if an application is denied in either case and the case ends up being reported, it will be controlling authority for all purposes under Tennessee Supreme Court Rule 4(G).  Stay tuned.

New Tennessee Supreme Court Opinion on Presuit Notice in Health Care Liability Actions: Presuit Notice Must Be Sent Prior to Case Being Refiled under the Saving Statute; Case Dismissed Without Prejudice

The Tennessee Supreme Court issued its opinion today in Foster v. Chiles, No. E2012-01780-SC-R11-CV (Tenn. Jan. 27, 2015).  The court held that presuit notices must be sent prior to a case being refiled under the saving statute and dismissed the case without prejudice. Justice Wade dissented.  

Here is the summary from the majority opinion:

This appeal presents two issues for review: 1) whether a person asserting a health care liability claim must give written notice of the claim to all potential health care defendants before re-filing a complaint, or whether notice given before filing the first complaint is sufficient notice for a subsequently filed complaint against the same defendants; and 2) if pre-suit notice is required for each complaint, whether the sanction for noncompliance is a dismissal with or without prejudice. The plaintiffs, before filing their health care liability complaint, gave the defendants written notice under Tenn. Code Ann. § 29-26-121(a)(1). Thereafter, the plaintiffs voluntarily dismissed their complaint. The plaintiffs re-filed their complaint but did not provide the defendants with notice before the re-filing. The trial court dismissed the complaint with prejudice for failure to comply with the notice requirement of Tenn. Code Ann. § 29-26-121(a)(1). The Court of Appeals reversed, holding that the plaintiffs had to give pre-suit notice only once and that pre-suit notice for the first complaint was sufficient for any subsequently filed complaints asserting the same claims against the same defendants. We hold that Tenn. Code Ann. § 29-26-121(a)(1) requires that plaintiffs notify prospective defendants of a forthcoming health care liability lawsuit before the filing of each complaint. The sanction for failure to comply with Tenn. Code Ann. § 29-26-121(a)(1) is a dismissal without prejudice.

Here is a link to the majority opinion and Justice Wade's dissent, respectively:

http://www.tncourts.gov/sites/default/files/fostersamuel.opn_2.pdf

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

The opinion from the Tennessee Court of Appeals can be found at my October 12, 2013 post on this blog.

New Health Care Liability Action Opinion: What Limits May a Trial Court Place upon a Defendant's Ex Parte Contact with a Plaintiff's Treating Physicians under Tenn. Code Ann. sec. 29-26-121(f)? Limits by Trial in This Case Disallowed.

Today the Tennessee Court of Appeals issued its opinion in Dean-Hayslett v. Methodist Healthcare, No. W2014-00625-COA-R10-CV (Tenn. Ct. App. Jan. 20, 2015).  This opinion deals with qualified protective orders allowing ex parte contact with a Plaintiff's treating physicians under Tenn. Code Ann. sec. 29-26-121(f). 

The majority opinion summary states as follows:

This is a healthcare liability action. The trial court granted Defendants’ joint motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f)(1), but added several conditions not specifically provided in the statute. The trial court denied Defendants’ joint motion for permission to seek an interlocutory appeal, and we granted Defendants’ motion for an extraordinary appeal to this Court under Rule 10 of the Tennessee Rules of Appellate Procedure.  We reverse in part, affirm in part, and remand for further proceedings.

Here are links to the majority opinion and Judge Stafford's concurring-in-results-only opinion:

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

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

NOTE: It is important to keep on mind that this is an interlocutory appeal under Rule 10 of the Tennessee Rules of Appellate Procedure where the the focus is upon what restrictions a trial court can place upon a qualified protective order under -121(f); that is it.  Per this opinion, a trial court may not require that the interviewed providers respond under oath; that a court reporter be present; or that the recorded interviews be filed under seal.

Further, Judge Stafford's concurring opinion foreshadows an effective constitutional challenge to -121(f).  While it doesn't mention it per se, I think it lends a lot of credibility to a separation-of-powers challenge.

Lastly, this opinion is the first Tennessee state-court appellate opinion that I am aware of that directly addresses -121(f).

New Health Care Liability Action Opinion: Must an Expert Nurse Be Compensated During Prior Employment as a Nurse to Render an Opinion

On January 13, 2014, the Tennessee Court of Appeals rendered its opinion in Adkins v. Associates of the Mem'l/ Mission Outpatient Surgery Ctr., LLC, No. E2014-00790-COA-R3-CV (Tenn. Ct. App. Jan. 13, 2014).  The opinion dealt with whether a nurse had to be compensated for her prior work as a nurse to be qualified to render expert opinion testimony in a health care liability action.

The summary of the opinion states as follows:

This is a health care liability action in which Defendant sought summary[] judgment, claiming that Plaintiffs’ expert was not qualified to render an expert opinion because she was not practicing in her field during the year preceding the date of the injury. The trial court agreed and dismissed the action. Plaintiffs appeal. We reverse the decision of the trial court.

(Footnote omitted.)

Here is a link to the opinion:

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

New Health Care Liability Action Opinion: Effect of a Plaintiff's Waiver of a Defendant Having to File a Certificate of Good Faith When That Defendant Alleges Fault Against a Nonparty That Is Sued Based upon Defendant's Allegation of Fault

On December 30, 2014, the Tennessee Court of Appeals issued its opinion in Sirbaugh v. Vanderbilt Univ., No. M2014-00153-COA-R9-CV (Tenn. Ct. App. Dec. 30, 2014).  This opinion has to do with the effect of a waiver by the plaintiff of the defendant having to file a certificate of good faith when the defendant alleges fault against a nonparty health care provider.  

The summary from the opinion states as follows:

The plaintiff in this interlocutory appeal filed a complaint asserting health care liability claims against the original defendants, at which time she included a certificate of good faith in accordance with Tennessee Code Annotated section 29-26-122. The original defendants asserted comparative fault against non-party health care providers. The plaintiff waived compliance by the original defendants with section 29-26-122(b), which required the defendants to file a certificate of good faith regarding the non-party health care providers.  The plaintiff thereafter amended her complaint to add the named non-party health care providers as new defendants but did not file a new certificate of good faith. The new defendants moved to dismiss the amended complaint. The trial court denied the motions and granted this interlocutory appeal. We reverse.

Here's a link to the opinion:

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

New Health Care Liability Action Opinion: Expert Need Not Phrase Opinion in Perfect Legalese to Create Question of Fact for the Jury to Decide

The Tennessee Court of Appeals released its opinion in Dickson v. Kriger, No. W2013-02830-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2014) in late December 2014.  This is an important opinion in that it holds that an expert need not use perfect legalese or "magic words" to be qualified to give opinions on the standard of care and causation in a health care liability action, which creates questions of fact for the jury to decide.  As such, the Tennessee Court of Appeals reversed a directed verdict in favor of the defense.

The summary from the opinion states as follows:

Patient brought a health care liability action against his eye surgeon, alleging that the surgeon’s negligence in performing a LASIK procedure resulted in several eye injuries. The trial court granted a directed verdict for the surgeon, finding the patient failed to present evidence establishing the standard of care and causation. Because we find the evidence was sufficient to create an issue for the jury, we reverse and remand to the trial court.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/dicksonleonopn_0.pdf

New Health Care Liability Action Opinion: HIPAA Authorizations & Presuit Notice of Claim

The Eastern Section of the Tennessee Court of Appeals released its opinion on December 15, 2014, in Hamilton v. Abercrombie Radiological Consultants, Inc., No. E2014-00433-COA-R3-CV (Tenn. Ct. App. Dec. 15, 2014).  The summary from the opinion states as follows:

This is a health care liability action, arising from the death of Decedent, David Hamilton. Decedent’s surviving spouse, Donna Hamilton (Appellant), filed this action against Appellees, Abercrombie Radiological Consultants, Inc. and Dr. Donna K. Culhane.  Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated Section 29-26-121 et seq. Specifically, the Appellees challenged whether the medical release provided with the pre-suit notice letter was compliant with the Health Information Portability and Accountability Act (“HIPAA”). The trial court agreed with Appellees and dismissed the action with prejudice. Appellant timely appealed. We reverse and remand the matter to the trial court.

Here is a link to the opinion:

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

I've Been Away for Some Time But I Am Back Now

To my readers:

Sorry I haven't posted in a while.  Some things arose at the end of 2014 that could not be avoided and I had to tend to them.  I'm wrapping matters up now and will start posting again today.

Thanks for reading.

Tony

Offer of Judgment Made under Tenn. R. Civ . P. 68 Held to Be Irrevocable During Ten-day Period

The Tennessee Court of Appeals released its opinion Friday in McGinnis ex rel. McGinnis v. Cox, No. M2014-00102-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2014).  The summary from the opinion states as follows:

Plaintiffs presented Defendants with an offer of judgment pursuant to Rule 68 of the Tennessee Rules of Civil Procedure. Prior to Defendants’ acceptance, Plaintiffs attempted to rescind the offer. Defendants nevertheless accepted the offer within the time allowed by Rule 68 and attempted to enforce the offer of judgment. The trial court concluded that Plaintiffs were not entitled to revoke the offer of judgment and entered an order granting the motion to enforce the judgment. We affirm and remand.

Here is a link to the slip opinion:

https://www.tba.org/sites/default/files/mcginnisk_110314.pdf.

NOTE: the ten-day life of an offer of judgment can be extended via Rule 6 of the Tennessee Rules of Civil Procedure.  This is all the more reason that one must be very careful before making an offer of judgment under Rule 68.

New Health Care Liability Action Opinion: 120-day Extension to Statute of Limitations Applies to Governmental Entities

The Eastern Section of the Tennessee Court of Appeals released its opinion last week in Harper v. Bradley Cnty., No. E2014-00107-COA-R9-CV (Tenn. Ct. App. Oct. 30, 2014).  The summary from the slip opinion states as follows:

The issue presented on this appeal is whether a plaintiff who brings a health care liability action against a governmental entity under the Governmental Tort Liability Act (“the GTLA”) is entitled to the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121(c)(Supp. 2014) under the current version of the Health Care Liability Act (“the HCLA”). This inquiry focuses on the effect of the 2011 amendment to the HCLA that expressly includes “claims against the state or a political subdivision thereof” within the definition of “health care liability action.” Applying the principles set forth by the Supreme Court in Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), we hold that the 2011 amendment demonstrates a clear intent on the part of the General Assembly to allow the GTLA’s one-year statute of limitations to be extended by 120 days in cases where a plaintiff satisfies the requirements of the HCLA. We affirm the judgment of the trial court denying defendant Bradley County’s motion to dismiss.

(Emphasis and italics in original.)

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/harpersopncorr_0.pdf.

NOTE: This post should be read with my May 9, 2013 post discussing the Cunningham case cited in the summary above (with its footnotes foreshadowing this decision).  Here is a link to that post: 

http://theduncanlawfirm.blogspot.com/2013/05/medical-malpractice-nka-health-care.html.

Further, this is a must-read opinion for any lawyer who handles health care liability cases (f.k.a. medical malpractice cases).  If this case is taken up by the Tennessee Supreme Court, which is very likely, the Court will more than likely affirm the trial court as the lower appellate court did.  It is the correct decision in my humble opinion.

Lastly, it would be a safe assumption for one to think that the three-year statute of repose would be extended by 120 days via the 2011 amendment to Tenn. Code Ann. sec. 29-26-101, too. Compare Harper, supra, with T.C.A. § 29-26-121(c).  However, I am not aware of any case holding that way at this time.