New Health Care Liability Action Opinion: Trial Court's Dismissal Reversed as to Some Defendants

The Tennessee Court of Appeals just released its opinion in Brookins v. Tabor, No. W2017-00576-COA-R3-CV (Tenn. Ct. App. May 8, 2018).  The syllabus from the slip opinion states as follows:

A plaintiff filed a health care liability complaint in 2015 against several physicians and entities that he later non-suited in order to comply with the pre-suit notice requirements set forth in Tenn. Code Ann. § 29-26-121(a). The plaintiff then filed a second complaint against the same defendants, relying on the saving statutes of Tenn. Code Ann. § 28-1- 105 and Tenn. Code Ann. § 29-26-121(c) to extend his statute of limitations. The plaintiff’s wife joined him as a plaintiff in the second complaint. The defendants filed motions to dismiss, alleging non-compliance with the pre-suit notice requirements and the statute of limitations. The trial court granted all of the defendants’ motions and dismissed the complaint. The plaintiffs appealed the trial court’s dismissal of the complaint against the physicians. Interpreting the complaint liberally and presuming the truth of plaintiffs’ allegations regarding the HIPAA authorizations, we reverse the trial court’s dismissal of the complaint against two of the physicians and affirm the dismissal of the complaint against one of the physicians on statute of limitations grounds. We affirm the trial court’s judgment dismissing the wife’s claims against all of the defendants.

Here is a link to the slip opinion:

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

NOTE: We are blessed to have some really good judges and justices on our appellate courts in Tennessee.  This opinion is one example of why that is the case: it discusses presuit notice in health care liability actions (med mal cases), the saving statute, the discovery rule, etc.  It's a good read in my humble opinion.

Docket Info. for Various Counties in Tenn.

Useful links to various court dockets across Tennessee, to wit:

https://tncrtinfo.com/

New Tennessee Supreme Court Opinion: Wrongful Death Claim of Surviving Spouse Trumps Claim Made by Deceased's Children in This Intance

The Supreme Court of Tennessee just issued its opinion in Nelson v. Myres, No. M2015-01857-SC-R11-CV (Tenn. Mar. 5, 2017).  The syllabus from the slip opinion reads as follows:

The primary issue in this appeal is whether a surviving spouse maintains priority to file a wrongful death action when the decedent’s child has also filed a wrongful death action in which the child alleges that the surviving spouse negligently caused the decedent’s death. The trial court dismissed the daughter’s wrongful death complaint, but the Court of Appeals reversed the trial court, ruling that under the circumstances presented in this case, the surviving spouse was disqualified from filing the wrongful death action. Because the wrongful death statutes do not include an exception to the spousal priority rule and because the surviving spouse did not waive his right to file the wrongful death action, we hold that the trial court properly dismissed the daughter’s wrongful death action. The judgment of the Court of Appeals is reversed and the cause remanded to the trial court. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/nelson.brittany.opn__0.pdf

NOTE: This is a follow-up post to my January 19, 2017 blog post about this same case after the Court of Appeals issued its decision.  Here is a link to that post:

http://theduncanlawfirm.blogspot.com/2017/01/new-wrongful-death-opinion-surviving.html

Also, this opinion, as are all opinions from the Tennessee Supreme Court, is a must-read opinion and a reminder that wrongful death claims are creatures of statute and must be construed under the canons of statutory construction.  In this instance, there is no statutory exception to spousal priority to file and maintain such an action.

New Opinion on Motions to Strike and Tennessee Code Annotated section 20-1-119

The Tennessee Court of Appeals just issued its opinion in Santore v. Stevenson, No. W2017-01098-COA-R3-CV (Tenn. Ct. App. Feb. 20, 2018).  The syllabus from the slip opinion states as follows:

At issue in this personal injury action is whether the trial court erred by striking the defendant’s affirmative defense that an unknown “John Doe” driver of an Averitt Express truck was comparatively at fault for the plaintiff’s injuries. Relying on Brown v. WalMart Discount Cities, 12 S.W.3d 785 (Tenn. 2000) and Tenn. Code Ann. § 20-1-119, the trial court struck the affirmative defense as to John Doe and Averitt Express upon the finding that the defendant failed to sufficiently identify John Doe so that the plaintiff may serve process on John Doe. We have determined the trial court’s discretionary decision to strike the affirmative defense of comparative fault as to John Doe and Averitt Express was premature because the defendant was not afforded a reasonable opportunity to engage in pre-trial discovery to endeavor as to the identity of John Doe in sufficient detail for the plaintiff to serve process on John Doe. Therefore, we reverse and remand for further proceedings consistent with this opinion.

Here is a link to the opinion:

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

NOTE: This opinion does a good job of explaining motions to dismiss under Rule 12 and its interpretive case law.  However, it appears to be in conflict with two cases: Breeding v. Edwards, 62 S.W.3d 170, 171 (Tenn. Ct. App. 2001), https://scholar.google.com/scholar_case?case=17466177028433188467&q=Breeding+v.+Edwards&hl=en&as_sdt=4,43, and Marler v. Scoggins, 105 S.W.3d 596, 597 (Tenn. Ct. App. 2002), https://scholar.google.com/scholar_case?case=12866630331774870801&q=Marler+v.+Scoggins&hl=en&as_sdt=4,43.  Both of those cases acknowledge an exception to the rule against faulting a phantom (i.e., John Doe) tortfeasor, which is relied upon in this case.  It is also interesting that this opinion makes no mention of Breeding or Marler, which are reported opinions and controlling authority under Tennessee Supreme Court Rule 4(G)(2).  I might need to give this case another think (I've been up since 4:30 a.m.), but, as for now, I cannot reconcile it with Breeding or Marler.  Perhaps the litigants did not bring Breeding or Marler to the Court's attention.  

New Health Care Liability Action Opinion: Trial Court Reversed Due to Discovery Rule, Its Decision Vacated Because It Failed to Adhere to the Proper Summary Judgment Standard, Which Leads to a Remand by Court of Appeals

The Court of Appeals issued its opinion in Shaw v. Gross, No. W2017-00441-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2018).  The syllabus from the slip opinion states as follows:

The plaintiff in a health care liability action appeals the dismissal of her claim on the basis of the expiration of the statute of limitations and the failure to provide pre-suit notice compliant with Tennessee Code Annotated section 29-26-121(a)(3)(B). Because the undisputed facts in the record fail to establish that decedent was aware of the alleged misdiagnosis prior to his death, we reverse the trial court’s ruling on this issue. We also determine that the trial court failed to apply the appropriate standard or adequately explain its decision regarding the plaintiff’s alleged non-compliance with section 29-26-121(a)(3)(B). We therefore vacate the dismissal of the complaint on this basis and remand for reconsideration in light of the appropriate standard. Reversed in part, vacated in part, and remanded.

Here is a link to the slip opinion:

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

NOTE: This is a good opinion on the application of the discovery rule in health care liability actions (formerly known as medical malpractice actions or cases) and a trial court's duty when granting summary judgment, inter alia.  I highly recommend reading this opinion.  

New Wrongful Death Case on the Number of Peremptory Challenges That Parents Have Who Both Join in a Suit for the Wrongful Death of Their Child

The Tennessee Court of Appeals just issued its opinion in O'Dneal v. Baptist Mem'l Hosp.-Tipton, No. W2016-01912-COA-R3-CV (Tenn. Ct. App. Feb. 6, 2018).  The syllabus from the slip opinion reads:

Plaintiff parents of infant who died in child birth appeal a jury verdict in favor of the medical provider defendants. During voir dire, the trial court denied Plaintiffs’ request for additional peremptory challenges under Tennessee Code Annotated section 22-3-104(b) on the basis that Plaintiffs were bringing their claim on behalf of the decedent infant. Based upon the Tennessee Supreme Court’s decision in Beard v. Branson, 528 S.W.3d 487 (Tenn. 2017), we conclude that the trial court erred in treating Plaintiffs as a single “party plaintiff” and that Plaintiffs were entitled to eight peremptory challenges under the statute at issue. We also hold that under Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 107 (Tenn. 1996), the trial court’s error resulted in prejudice to the judicial process that necessitates a new trial. All other issues are pretermitted. Reversed and remanded. 

Here is a link to the slip opinion:

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

NOTE: This is a must-read opinion for any Tennessee trial lawyer who handles wrongful death cases.

New Health Care Liability Action Opinion: Refiled Case Time-barred Because Prior Case That Was Nonsuited Was Untimely Filed

The Tennessee Court of Appeals just issued its opinion in Dortch v. Methodist Healthcare Memphis Hosp., No. W2017-01121-COA-R3-CV (Tenn. Ct. App. Feb. 5, 2018).  The syllabus from the slip opinion reads as follows:

This is a health care liability case. Appellant/Plaintiff first filed suit against Appellees/Defendants for medical malpractice in April 2014. Defendants filed motions to dismiss based on Plaintiff’s failure to comply with the pre-suit notice requirements for health care liability claims. Before the trial court could hear Defendants’ motions to dismiss, Plaintiff filed a notice of voluntary nonsuit, and an order was entered thereon. Plaintiff subsequently re-filed her case against Defendants in September 2016 in reliance on the one year savings statute. Defendants moved the court to dismiss Plaintiff’s suit based on the statute of limitations. The trial court granted Defendants’ motions and dismissed Plaintiff’s claims with prejudice, holding that, because Plaintiff’s original presuit notice was defective, her first complaint was untimely and she could not rely on the savings statute to revive a time-barred cause of action. We affirm the judgment of the trial court.

Here is a link to the slip opinion:

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

NOTE: This case is a reminder of two things: first, a case can only be filed under the saving statute if it was timely filed before it was nonsuited; and, second, health care liability actions are very difficult to prosecute.

New Tennessee Court of Appeals' Opinion on Tennessee Code Annotated section 20-1-119

The Tennessee Court of Appeals just issued its opinion in Scales v. H.G. Hill Realty Co., No. M2017-00906-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2018).  The syllabus from the slip opinion is as follows:

A customer slipped and fell at a grocery store and sued four different entities that owned and/or operated the store. When two of the defendants filed a motion to compel the plaintiff to respond to discovery responses, the plaintiff voluntarily dismissed these defendants from the action. Then, in response to an answer to an amended complaint in which another defendant asserted the comparative fault of the dismissed defendants, the plaintiff filed a second amended complaint adding the dismissed defendants back in as named defendants pursuant to Tenn. Code Ann. § 20-1-119. The newly added defendants filed a motion to dismiss, which the trial court granted. The plaintiff appealed, and we reverse the trial court’s judgment. We hold that the statute permitted the plaintiff to add the formerly dismissed defendants back into the lawsuit.

Here is a link to the slip opinion:

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

NOTE: This is my case.  I represent the plaintiff.  In my totally biased opinion, I think the Court of Appeals got this one right.  Also, this is a must-read opinion as to section 20-1-119 and how it is to be construed and applied.

New Opinion: How Long Does a Plaintiff Have to File Suit When the Tortfeasor Dies After the Wrongful Conduct? This Opinion Answers That Question.

The Tennessee Court of Appeals has issued its opinion in Putnam v. Leach, No. W2017-00728-COA-R3-CV (Tenn. Ct. App. Jan. 23, 2018).  The syllabus from the slip opinion is as follows:

This is a personal injury case involving a motor vehicle accident. The alleged tortfeasor died subsequent to the injury-causing accident. The plaintiffs were unaware of the decedent’s death and commenced this suit naming him as a defendant. Some months later, after learning of the decedent’s death, the plaintiffs sought the appointment of an administrator ad litem in the Probate Court and amended their complaint naming the administrator ad litem as a party as required by the survival statute. The defendant filed a motion to dismiss arguing that the plaintiffs’ complaint was not properly filed until after the expiration of the applicable statute of limitations. The trial court agreed and granted the defendant’s motion to dismiss. The plaintiffs timely appealed. Having concluded that the plaintiffs did not properly commence their lawsuit within the time afforded by the applicable statute of limitations, we affirm. 

Here is a link to the slip opinion:

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

NOTE: This opinion contains a great discussion of the statute of limitations in personal injury actions, the discovery rule, and what happens when a tortfeasor dies and a lawsuit must be commenced against the tortfeasor (and when an adminstrator ad litem needs to be appointed).  This is a must-read opinion for any Tennessee lawyer who handles tort cases.

New Health Care Liability Action Opinion: Intentional Acts Are Not Covered by the Tennessee Health Care Liability Act; Negligent Training and Supervision Claims Are Covered by the THCLA; and If Wrongful Acts Fall Within the Common-knowledge Exception to Expert Testimony No Certificate of Good Faith Is Required to Be Filed

The Tennessee Court of Appeals just issued it opinion in C.D. v. Keystone Continuum, LLC, No. E2016-02528-COA-R3-CV (Tenn. Ct. App. Jan. 22, 2018).  The syllabus from the slip opinion reads: 

The plaintiff, C.D., a minor, was a resident of Mountain Youth Academy, a trauma focused residential treatment facility,1 when he got into a physical altercation with an employee of the defendant Keystone Continuum, LLC doing business as Mountain Youth Academy. The employee, Jacob Spencer, is described by the defendant as a “mental health associate.” The plaintiffs describe him as a “third shift night guard.” The minor’s mother filed this action, proceeding both individually and on behalf of her son. The complaint alleges, among other things, that Spencer pulled the minor plaintiff to the ground and stomped on his foot, causing him injury. Defendant moved to dismiss and/or for summary judgment, arguing that the complaint in this case alleges health care liability claims. Defendant argued that because of plaintiffs’ (1) failure to provide pre-suit notice under the Tennessee Health Care Liability Act (the THCLA), Tenn. Code Ann. § 29-26- 121 (Supp. 2017), and (2) their failure to file a certificate of good faith with the complaint, id. § 29-26-122, the lawsuit should be dismissed with prejudice. The trial court held that plaintiffs’ claims sounded in health care liability. It dismissed the mother’s action with prejudice. The court also dismissed the minor’s action, but did so without prejudice.2 Defendant appeals, arguing that the minor’s action should have been dismissed with prejudice. The plaintiffs also present issues. They argue that the trial court erred in ruling that their claims are based upon health care liability. Additionally and alternatively, plaintiffs argue that their claims fall within the “common knowledge” exception to the general requirement of expert testimony in a health care liability action. We hold that plaintiffs’ claims for assault and battery are unrelated to the provision of, or failure to provide, health care services. As a consequence of this, we hold that the plaintiffs’ assault and battery claims do not fall within the ambit of a “health care liability action” as defined by the statute. We further hold that plaintiffs’ direct claims against the defendant, for negligent supervision and/or training of its employees, are health care liability claims but ones involving matters that ordinary laypersons will be able to assess by their common knowledge. Hence, expert medical testimony is not required. The trial court’s judgment dismissing the plaintiffs’ claims for assault and battery is vacated. We further hold that mother’s failure to provide the defendant with pre-suit notice mandates a dismissal of her claim for negligent supervision and/or training, but that dismissal should have been without prejudice rather than with prejudice. Accordingly, the trial court’s judgment on this part of mother’s claim is modified to reflect that the dismissal is without prejudice. We affirm the trial court’s judgment dismissing the minor’s claim of negligent supervision and/or training and further affirm the trial court’s judgment that this dismissal is without prejudice.

Here is a link to the slip opinion: 

http://www.tncourts.gov/sites/default/files/c.d._et_al._v._keystone_continuum_llc_dba_mountain_youth_academy.pdf

New Opinion: Contractual Indemnification Claim Against a Health Care Provider Not a Health Care Liability Action

The Tennessee Court of Appeals recently released its opinion in Johnson v. Rutherford County, Tenn., No. M2017-00618-COA-R3-CV (Tenn. Ct. App. Jan. 11, 2018).  The syllabus from the slip opinion states as follows:

The plaintiffs, as co-conservators for their adult son, filed this action against the county, seeking payment of medical expenses incurred by their son following an assault upon him by another inmate while he was incarcerated at the county jail facility. The plaintiffs later amended their complaint to add allegations of civil rights violations, general negligence, and health care liability. The county filed a third-party complaint against the medical provider with whom the county had contracted to provide medical services for the inmates at the jail. The third-party complaint was based upon an indemnity clause contained within the respective parties’ contract. The medical provider filed a motion to dismiss the county’s third-party complaint because the county had not complied with the requirements of the Tennessee Health Care Liability Act (“THCLA”). Following a hearing, the trial court dismissed the county’s third-party complaint by reason of the county’s failure to comply with the requirements of the THCLA. The county timely appealed. Having determined that the trial court erred by treating the county’s third-party complaint as a THCLA claim, we reverse the court’s dismissal of the county’s third-party complaint.

Here is a link to the slip opinion:

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

New Tennessee Supreme Court Opinion: Court Holds Child Support Arrearage Will Not Disqualify Surviving Spouse from Pursuing a Claim for His or Her Deceased Spouse's Wrongful Death or Sharing in the Proceeds from Such a Claim

The Tennessee Supreme Court just issued its opinion in Spires v. Simpson, No. E2015-00697-SC-R11-CV (Tenn. Dec. 27, 2017).  The syllabus from the slip opinion states as follows:

We granted permission to appeal in this case to clarify when two Tennessee statutes would apply to preclude a parent who owes child support arrearages from recovering proceeds from a wrongful death lawsuit. In this case, the plaintiff and the decedent were married and had one child; the plaintiff abandoned the decedent and their son soon after the child was born. The plaintiff and the decedent never divorced. The decedent spouse died unexpectedly, and soon afterward the plaintiff surviving spouse filed this wrongful death action. At the time, the plaintiff surviving spouse owed child support arrearages for four other children unrelated to the decedent. The trial court dismissed the plaintiff surviving spouse from the wrongful death lawsuit based on a provision in Tennessee’s wrongful death statutes, Tennessee Code Annotated section 20-5-107(b) (2009 & Supp. 2017), and a similar provision in Tennessee’s intestate succession statutes, Tennessee Code Annotated section 31-2-105(b) (2015 & Supp. 2017). It held that these two statutes disqualified the plaintiff from filing the wrongful death action or recovering the proceeds from it because he never provided financial support for his child with the decedent spouse and because he had child support arrearages for his four children unrelated to the decedent spouse. The Court of Appeals affirmed in part and reversed in part. It held that the two statutes did not bar the plaintiff from commencing the lawsuit for the wrongful death of his spouse, but it also held that they precluded him from recovering proceeds from the wrongful death lawsuit until his outstanding child support arrearages were satisfied. Consequently, the Court of Appeals ordered that the plaintiff’s recovery from the wrongful death action be paid toward satisfaction of his child support arrearages for his four children who were unrelated to the decedent spouse. On appeal, we hold that the prohibitions in Tennessee Code Annotated sections 20-5-107(b) and 31-2-105(b) apply only when (1) the “parent” who seeks to recover in the wrongful death lawsuit is a parent of the decedent child, and (2) that parent’s child support arrearage is owed for the support of that decedent child. Therefore, neither statute is applicable under the facts of this case. Accordingly, the decisions of the lower courts are reversed and vacated insofar as they applied those two statutes to this case. We affirm the Court of Appeals’ holding that newly enacted wrongful death statutes regarding a surviving spouse’s waiver based on abandonment of a decedent spouse may not be applied retroactively. 

Here is a link to the opinion: 

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

NOTE: This is a very good opinion that delves into Tennessee's wrongful-death statutes and statutory construction.  This is a very good read for the Tennessee practitioner if she or he handles wrongful death cases.  

New Laws Effective in Tennessee on Jan. 1, 2018

http://www.capitol.tn.gov/legislation/publications/01-01-2018%20effective.pdf

New Tennessee Supreme Court Opinion: Rule 60 Motions Analyzed in Detail

The Tennessee Supreme Court issued its opinion yesterday in Hussey v. Woods, No. W2014-01235-SC-R11-CV (Tenn. Ct. App. Dec. 18, 2017).  The syllabus from the slip opinion states as follows:

Tennessee Rule of Civil Procedure 60.02 allows a trial court to set aside a final judgment under certain circumstances, including when the judgment is void or “for any other reason justifying relief.” Here, a decedent’s mother, in her capacity as her unmarried son’s next of kin, filed a lawsuit seeking damages for his wrongful death. The case was settled and dismissed. Nearly twenty months later, the decedent’s alleged minor child filed a Rule 60.02 motion to set aside the order of dismissal and to be substituted as the plaintiff. The motion asserted that the child was the decedent’s next of kin and the proper party to pursue the wrongful death claim, based on the decedent’s execution of an acknowledgment of paternity and a Mississippi trial court order for support. The trial court denied the motion, finding it was not timely filed. The Court of Appeals vacated the trial court’s ruling, holding that the Rule 60.02 motion was not ripe for adjudication until the trial court conclusively established the child’s paternity. We find the Court of Appeals erred by focusing on issues surrounding the child’s paternity rather than reviewing the correctness of the trial court’s ruling on the Rule 60.02 motion. We hold that the trial court properly denied relief under Rule 60.02. The judgment of the Court of Appeals is reversed, and the judgment of the trial court is reinstated.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/hussey.derrick.opn_.pdf

NOTE: This opinion does a very good job of explaining the intricacies of motions seeking relief under Rule 60 of the Tennessee Rules of Civil Procedure.  It's a must-read opinion.

New Tennessee Supreme Court Opinion: Mary Carter Agreements, Remittitur & Causation

The Tennessee Supreme Court recently issued its opinion in Borne v. Celdaon Trucking Services, Inc., No. W2013-01949-SC-R11-CV (Tenn. Oct. 20, 2017).  The syllabus from the slip opinion states as follows:

This appeal arises out of sequential rear-end collisions involving three tractor trailer vehicles. The plaintiff’s tractor trailer was rear-ended by a tractor trailer owned by the defendant, which was in turn rear-ended by a third tractor trailer. The plaintiff sued the owners and drivers of both of the other tractor trailers, seeking compensation for personal injuries. Before trial, the plaintiff entered into an agreement with the owner of the third tractor trailer that neither would take any action adverse to the other and that the owner of the third tractor trailer would only owe the plaintiff half of any judgment entered against it. The owner of the third tractor trailer was later dismissed on a directed verdict. The jury returned a verdict for the plaintiff against the defendant. The trial court denied the defendant’s motion for new trial and, with little explanation, also suggested a remittitur of the jury’s verdict in all four categories of damages awarded. After the defendant appealed, the Court of Appeals affirmed the trial court’s rulings regarding the pretrial agreement between the plaintiff and the owner of the third tractor trailer. Regarding the trial court’s remittitur, the Court of Appeals reinstated the jury’s award for lost earning capacity, suggested a further remittitur to the award for loss of enjoyment of life, and affirmed the remitted award in the remaining two categories of damages. On appeal, we affirm the trial court’s rulings regarding the pretrial agreement. We find no error in the trial court’s decision not to give the jury a special instruction on superseding cause. We hold that the Court of Appeals had no authority to suggest a further remittitur absent a finding that the jury’s award—as remitted by the trial court—exceeds the uppermost boundary of the range of reasonableness under the evidence at trial, and so we reverse the Court of Appeals’ remittitur of the award for loss of enjoyment of life. As to the trial court’s remittitur, in view of the sharply conflicting evidence on the plaintiff’s damages, the trial court’s failure to indicate the reasons for its suggested remittitur leaves us unable to determine whether the evidence preponderates against the remittitur and, consequently, unable to conduct a proper appellate review of the trial court’s remittitur decision. Accordingly, we remand the case to the trial court for explanation of its reasons for suggesting remittitur of the jury’s award. For the same reason, the Court of Appeals was without sufficient information to perform a meaningful review of the trial court’s suggested remittitur, so we vacate the Court of Appeals’ decision to reverse the trial court’s remittitur of the award on lost earning capacity. The decision of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the trial court for further proceedings. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/borne.donriel.opn_.pdf

Justice Lee wrote a separate opinion in which she concurred in part and dissented in part, to wit:

https://www.tncourts.gov/sites/default/files/borne.donriel.sep_.opn_.pdf

NOTE: Like all opinions from the Tennessee Supreme Court this one is a must-read opinion.

New Tennessee Supreme Court Opinion: The Collateral Source Rule Is Alive and Well!

Today the Tennessee Supreme Court issued its opinion in Dedmon v. Steelman, No. No. W2015-01462-SC-R11-CV (Tenn. Nov. 17, 2017).  The syllabus from the slip opinion states as follows:

We granted this appeal to address whether our holding in West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014), applies in personal injury cases. We hold that it does not. West held that “reasonable charges” for medical services under Tennessee’s Hospital Lien Act, Tennessee Code Annotated sections 29-22-101 to –107 (2012), are the discounted amounts a hospital accepts as full payment from patients’ private insurers, not the full, undiscounted amounts billed to patients. West, 459 S.W.3d at 46. West defined “reasonable charges” in the context of interpreting the Hospital Lien Act, and its holding is limited to that Act. As an alternative argument, we are asked in this appeal to consider applying the principles in West to the determination of reasonable medical expenses in personal injury cases. Doing so involves the collateral source rule, which excludes evidence of benefits to the plaintiff from sources collateral to the tortfeasor and precludes the reduction of the plaintiff’s damage award by such collateral payments. The rule is based on the principles that tortfeasors should be responsible for all of the harm they cause and that payments from collateral sources intended to benefit an injured party should not be used to reduce the liability of the party who inflicted the injury. After a thorough review of court decisions in Tennessee and across the country on the collateral source rule, we decline to alter existing law in Tennessee. We hold that the collateral source rule applies in this personal injury case, in which the collateral benefit at issue is private insurance. Consequently, the plaintiffs may submit evidence of the injured party’s full, undiscounted medical bills as proof of reasonable medical expenses. Furthermore, the defendants are precluded from submitting evidence of discounted rates accepted by medical providers from the insurer to rebut the plaintiffs’ proof that the full, undiscounted charges are reasonable. The defendants remain free to submit any other competent evidence to rebut the plaintiffs’ proof on the reasonableness of the medical expenses, so long as that evidence does not contravene the collateral source rule. The decision of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the trial court for further proceedings.

(Emphasis added via italics and bolding.)  Here is a link to the slip opinion:

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

NOTE: This is a big win for the people of Tennessee.  The Tennessee Supreme Court made certain that the citizens of Tennessee were protected with this decision.  And for that, I am grateful. 

New Health Care Liability Action Opinion: Defense Verdict Upheld on Appeal

The Tennessee Court of Appeals recently issued its opinion in Commercial Bank & Trust Co. v. Children's Anesthesiologists, P.C., No.  E2016-01747-COA-R3-CV (Tenn. Ct. App. Oct. 25, 2017).  The syllabus from the slip opinion states as follows:

Commercial Bank & Trust Company, Legal Guardian of the Estate of Albert P. Mjekiqi, a Disabled Minor; Omer Mjekiqi and Gabriela Mjekiqi, Individually and as Legal Guardians of the Person of Albert P. Mjekiqi; and Volunteer State Health Plan, Inc. ... sued Children’s Anesthesiologists, P.C.; Heather D. Phillips, D.O.; Kari L. Clinton; Neurosurgical Associates, P.C.; Lewis W. Harris, M.D.; and East Tennessee Children’s Hospital Association, Inc. d/b/a East Tennessee Children’s Hospital alleging health care liability in connection with surgery performed on Albert P. Mjekiqi [] in May of 2011. After a trial, the Circuit Court for Knox County ... entered judgment on the jury’s verdict finding no liability on the part of the defendants. Plaintiffs appeal to this Court raising issues with regard to admission of evidence and jury instructions. We discern no error, and we affirm.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/commercial_bank__trust_company_et_al._v_childrens_anesthesiologists_p.c._et_al..pdf

New Health Care Liability Action Opinion: Trial Court's Dismissal Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Youngblood ex rel. Estate of Vaughn v. River Park Hospital, LLC, No. M2016-02311-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2017).  The syllabus from the slip opinion states as follows:

On July 11, 2015, Daniel Vaughn, an 86-year-old patient, was recovering from surgery in the intensive care unit of the defendant River Park Hospital. A nurse brought Mr. Vaughn some coffee, after which she left the room. He spilled the coffee on himself, suffering burns to his body. Nancy Youngblood, the executor of Mr. Vaughn’s estate, brought this action alleging that, given his condition, he “should not have been left alone to manage an extremely hot beverage.” River Park, arguing that her claim is a health care liability action subject to the Tennessee Health Care Liability Act (THCLA), Tenn. Code Ann. § 29-26-101 et seq. (2012 & Supp. 2017), moved to dismiss based on plaintiff’s failure to provide pre-suit notice and a certificate of good faith as required by the THCLA. Plaintiff argued that her claim does not fall within the definition of a “health care liability action.” The trial court disagreed and dismissed her action. We hold that the trial court correctly held her claim to be a health care liability complaint. Accordingly, we affirm.

Here is a link to the slip opinion:

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

NOTE: This case evinces just how broad the definition of "health care liability action" is under Tennessee Code Annotated section 29-26-101(a)(1).  Presuit notice should have been set here under section 29-26-121 in my humble opinion.

New Health Care Liability Action Opinion: Defense Verdict Reversed on Appeal Due to Erroneous Jury Instruction on Sudden Emergency

The Tennessee Court of Appeals just issued its opinion in VanDyke v. Foulk, No. E2016-00584-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2017).  The syllabus from the slip opinion states as follows:

This is a medical malpractice action [(now known as a health care liability action)] in which the plaintiff filed suit against the hospital and her physicians following the death of her newborn son hours after his delivery. The case proceeded to a jury trial. The jury found in favor of the defendants. Following the denial of post-trial motions, the plaintiff appeals, claiming the trial court erred in excluding testimony and when it gave a jury instruction on the sudden emergency doctrine. We reverse and remand for a new trial. 

(Footnote omitted.)

Here is a link to the slip opinion: 

http://www.tncourts.gov/sites/default/files/brittany_nicole_vandyke_v._brooke_e._foulk_m.d._et_al..pdf

NOTE: This is a must-read opinion for any trial lawyer who practices in Tennessee and handles health care liability actions.  It contains an excellent discussion of the law on sudden emergency in a health care setting.  

New Health Care Liability Action Opinion: Tennessee Supreme Court Upholds Trial Court's Denial of Summary Judgment and Jury Verdict Because Surviving Spouse's Initial Pro Se Filing of Wrongful Death Action Was Not Void Ab Initio

The Tennessee Supreme Court issued its opinion in Beard v. Branson, No. M2014-01770-SC-R11-CV (Tenn. Aug. 30, 2017).  The syllabus from the slip opinion states as follows:

We granted permission for this appeal to determine whether a surviving spouse who files a wrongful death lawsuit is acting as a legal representative of the decedent and whether a wrongful death lawsuit filed pro se by the surviving spouse is void ab initio based on the spouse’s pro se status. In this case, the decedent’s surviving spouse filed a pro se wrongful death health care liability lawsuit shortly before the one-year statute of limitations lapsed. After expiration of the limitations period, the spouse retained an attorney and filed an amended complaint. In the ensuing discovery, the defendants learned that the decedent had two daughters, both of whom were statutory beneficiaries in the wrongful death action. The defendants filed motions for summary judgment. They argued that the spouse’s initial pro se complaint was filed in a representative capacity on behalf of the decedent and the other statutory beneficiaries and that it was, therefore, void ab initio; thus, the filing of the amended complaint could not relate back to the date of the initial complaint, and the lawsuit was time-barred. The trial court denied the summary judgment motions and permitted the amended complaint to relate back to the date of the initial pro se complaint. It then conducted a jury trial; the jury found both defendants liable and awarded damages. The defendant hospital appealed the denial of summary judgment. Adopting the defendant’s argument, the Court of Appeals reversed. The plaintiff now appeals. Under the plain language of Tennessee’s wrongful death statutes, the decedent’s right of action “pass[es] to” the surviving spouse upon the decedent’s death, and the surviving spouse asserts the right of action for the benefit of himself and other beneficiaries. Tenn. Code Ann. § 20-5-106(a) (2009 & Supp. 2016). Consequently, we hold that the surviving spouse did not file the initial pro se complaint as the legal representative of either the decedent or the decedent’s estate. As we construe our wrongful death statutes, in filing the pro se complaint, the surviving spouse was acting to a large extent on his own behalf and for his own benefit pursuant to his right of self-representation. Under the facts of this case, we hold that the initial pro se complaint was not void ab initio, it served to toll the statute of limitations, and the trial court did not err in allowing the filing of the amended complaint to relate back to the date of the initial complaint. Accordingly, we reverse the decision of the Court of Appeals, affirm the trial court’s denial of summary judgment, and remand to the Court of Appeals for consideration of the other issues that were properly raised on appeal but not addressed.

Here is link to the slip opinion:

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

New Health Care Liability Action Opinion: Trial Court's Dismissal Overturned on Appeal

The Tennessee Court of Appeals just issued its opinion in Clary v. Miller, No. M2016-00794-COA-R3-CV (Tenn. Ct. App. Aug. 8, 2017).  The syllabus from the slip opinion states as follows:

This appeal concerns the dismissal of a health care liability action for noncompliance with the Health Care Liability Act, specifically Tennessee Code Annotated § 29-26-121 (Supp. 2016). Before filing this action, the plaintiff gave timely written pre-suit notice of her health care liability claim, including the required medical authorizations, to all potential defendants. But when she filed her complaint, the plaintiff failed to provide copies of the medical authorizations as required by statute. Both defendants filed motions to dismiss based on the missing documents. The trial court determined that the plaintiff had substantially complied with the statute and that the defendants were not prejudiced by the omission. Even so, the court dismissed the complaint with prejudice after concluding that strict compliance with the statute was required when the defendant was a governmental entity. Upon review, we conclude that substantial compliance with the documentation requirement in Tennessee Code Annotated § 29-26-121(b) is sufficient even when the defendant is a governmental entity. Thus, we reverse the dismissal of the complaint.

Here is a link to the slip opinion:

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

New Health Care Liability Action Opinion: Trial Court's Admission of Previously Undisclosed Defense Expert Testimony Overturned on Appeal and New Trial Granted

The Tennessee Court of Appeals recently released its opinion in Collier v. Roussis, No. E2016-01591-COA-R3-CV (Tenn. Ct. App. Aug. 7, 2017).  The syllabus from the slip opinion states as follows:

Chayce Collier, a minor, by and through his natural parent and next friend, Kendall Collier (“Plaintiff”) sued Periclis Roussis, M.D. and Fort Sanders Perinatal Center and Fort Sanders Regional Medical Center (“the Hospital”) for injuries allegedly suffered by Plaintiff when his mother had an allergic reaction during labor. After trial before a jury, the Circuit Court for Knox County (“the Trial Court”) entered judgment on the jury’s verdict that Dr. Roussis was not negligent and that the nurses employed by the Hospital were not negligent and dismissed the suit. Plaintiff appeals to this Court raising several issues including whether the Trial Court erred in allowing the admission of previously undisclosed testimony from the nurses and a defense expert witness, among other things. We find and hold that the Trial Court erred in allowing the previously undisclosed testimony of the nurses and the defense expert witness. We, therefore, vacate the Trial Court’s judgment and remand this case for a new trial.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/collier_v_roussis_m.d._et_al..pdf

NOTE: This opinion covers more than just undisclosed expert-witness testimony: it covers, inter alia, expert testimony in a health care liability action in general along with improper defense closing argument.  This is a must-read opinion for any lawyer who handles health care liability actions in Tennessee or just tries cases in general.

New Health Care Liability Action Opinion: Trial Court's Dismissal Overturned on Appeal in Accord with Recent Tennessee Supreme Court Precedent

This is a follow-up post to my Jul. 5, 2017 post (http://theduncanlawfirm.blogspot.com/2017/07/new-health-care-liability-action.html).  The Tennessee Court of Appeals just released its opinion in Grizzle v. Park West Medical Center, No. E2016-01068-COA-R3-CV (Tenn. Ct. App. Jul. 25, 2017).  The syllabus from the slip opinion states as follows:

The plaintiff initiated this health care liability action on January 25, 2016. The defendant medical provider filed a motion to dismiss, asserting that the plaintiff had failed to attach the documentation required by Tennessee Code Annotated § 29-26-121(b) to demonstrate that proper pre-suit notice had been transmitted. The defendant also asserted that the plaintiff’s claims should be dismissed for failure to substantially comply with the requirements of Tennessee Code Annotated § 29-26-121(a)(2)(E) regarding a medical authorization compliant with the Health Insurance Portability and Accountability Act (“HIPAA”). While noting that the plaintiff had substantially complied with Tennessee Code Annotated § 29-26-121(a)(4) and (b), the trial court found that the medical authorization forwarded by the plaintiff was incomplete and failed to comply with HIPAA’s release requirements. The trial court therefore dismissed the plaintiff’s claims. The plaintiff has timely appealed. We affirm the trial court’s determination that the plaintiff substantially complied with Tennessee Code Annotated § 29-26-121(a)(4) and (b). We reverse, however, the trial court’s determination that the plaintiff’s claims should be dismissed for failure to substantially comply with Tennessee Code Annotated § 29-26- 121(a)(2)(E).

Here is a link to the slip opinion, to wit:

http://www.tncourts.gov/sites/default/files/betty_grizzle_v._parkwest_medical_center.pdf

NOTE: The Court of Appeals correctly applied the law from Bray v. Khuri to overturn the dismissal below under Tenn. Code Ann. sec. 29-26-121(a)(2)(E).  It did, however, affirm the trial court's determination that Plaintiff had substantially complied with Tenn. Code Ann. sec. 29-26-121(a)(4), (b).  This is a correct decision that is consistent with Tennessee law.

New Health Care Liability Action Opinion: Tennessee Supreme Court Holds That a HIPAA-compliant Medical Authorization Is Not Required to Be Sent When Only One Defendant Is Being Sent Presuit Notice of a Potential Claim

The Tennessee Supreme Court released its opinion today in Bray v. Khuri, No. W2015-00397-SC-R11-CV (Tenn. Jul. 5, 2017).  The syllabus from the slip opinion states as follows:

Tennessee Code Annotated section 29-26-121(a)(2)(E) requires a person who asserts a potential claim for healthcare liability to include with pre-suit notice a HIPAA-compliant medical authorization permitting the healthcare provider who receives the notice to obtain complete medical records “from each other provider being sent the notice.” Tenn. Code Ann. § 29-26-121(a)(2)(E). Here, the plaintiff sent pre-suit notice of her claim to a single healthcare provider and included a medical authorization. After the plaintiff filed suit, the defendant healthcare provider moved to dismiss, asserting the plaintiff had failed to provide a HIPAA-compliant medical authorization. The trial court granted the motion, and the Court of Appeals affirmed. We hold that a prospective plaintiff who provides pre-suit notice to one potential defendant is not required under Tennessee Code Annotated section 29-26-121(a)(2)(E) to provide the single potential defendant with a HIPAA-compliant medical authorization. We reverse the judgments of the trial court and the Court of Appeals and remand this case to the trial court for further proceedings. 

(Footnote omitted.)

Here is a link to the slip opinion:

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

NOTE: This decision is correct and a commonsense construction of Tenn. Code Ann. sec. 29-26-121(a)(2)(E).  My hat's off to the Tennessee Supreme Court for this decision.

New Laws Effective in Tennessee on July 1, 2017

Here is an abstract of the new laws that go into effect in Tennessee on July 1, 2017, to wit:

http://www.capitol.tn.gov/legislation/publications/effective07-01-2017.pdf

New Health Care Liability Action Opinion: Trial Court's Grant of Summary Judgment to Defense Upheld on Appeal Due to Lack of Sufficient Expert Testimony

The Tennessee Court of Appeals, Western Section, released its opinion Graham v. Family Cancer Center, PLLC, No. W2016-00859-COA-R3-CV (Tenn. Ct. App. Jun. 5, 2017).  Here is the syllabus from the slip opinion:

This is a medical malpractice action.  The plaintiffs timely filed suit against the defendants concerning the failure to timely diagnose the husband’s prostate cancer. After voluntarily dismissing the initial suit, the plaintiffs provided pre-suit notice before filing a second suit pursuant to the saving statute. The defendants moved for summary judgment, arguing that the plaintiffs lacked sufficient expert testimony to establish their claim. The court agreed and granted summary judgment. We affirm.

(Footnote omitted.)

Here is a link to the slip opinion:

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

New NIED Opinion: Trial Court's Dismissal of Claim Reversed on Appeal

The Tennessee Court of Appeals, Middle Section, issued its opinion in Henderson v. Vanderbilt University, No. M2016-01876-COA-R9-CV (Tenn. Ct. App. May 31, 2017).  Here is the syllabus from the slip opinion:

The trial court granted partial summary judgment to the defendant hospital on the ground hat the plaintiffs could not establish that they witnessed or perceived an injury-producing event for purposes of their negligent infliction of emotional distress claims. We hold that the alleged failure of the defendant hospital to provide care to the plaintiffs’ daughter, despite repeated assurances from the hospital that it would occur, constitutes an injury-producing event that was witnessed by plaintiffs. Accordingly, the trial court erred in dismissing plaintiffs’ negligent infliction of emotional distress claims on this basis.

Here is a link to the slip opinion:

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

Here is a link to Judge Gibson's dissent:

http://www.tncourts.gov/sites/default/files/henderson.rodney.diss_.opn_.pdf

NOTE: The majority opinion does a good job of outlining the current state of NIED claims in Tennessee.

New Health Care Liability Action Opinion: Trial Court's Dismissal of Mother's Claim as Being Time-barred Upheld on Appeal; Trial Court's Dismissal of Child's Claim Is Reversed, However, Due to Extension of Statute of Repose via Proper Presuit Notification to Defendants of That Claim

The Tennessee Court of Appeals, Western Section, issued its opinion in Woodruff v. Walker, No. W2016-01895-COA-R3-CV (Tenn. Ct. App. May 26, 2017).  The syllabus from the slip opinion states as follows:

The plaintiffs, a mother and her child, filed this health care liability action in September 2015. The complaint alleged that both plaintiffs suffered permanent injuries resulting from the defendant health care providers’ negligent care during the child’s birth in June 2012. The defendants moved to dismiss the mother’s claims based on expiration of the one-year statute of limitations in Tennessee Code Annotated section 29-26-116(a)(1) and to dismiss the claims of both plaintiffs based on expiration of the three-year statute of repose in Tennessee Code Annotated section 29-26-116(a)(3). With regard to the statute of limitations, the plaintiffs argued that the mother’s claims were timely filed because the discovery rule delayed the accrual of her claims until March 2015 and because she had been “adjudicated incompetent” within the meaning of Tennessee Code Annotated section 28-1-106 such that the limitations period was tolled as to her claims. With regard to the statute of repose, the plaintiffs argued that their claims were timely filed because they were entitled to rely on Tennessee Code Annotated section 29-26-121(c), which extends the three-year statute of repose by 120 days when sufficient pre-suit notice is given. Following a hearing, the trial court concluded that neither the discovery rule nor Tennessee Code Annotated section 28-1-106 applied to the mother’s claims and that her claims were therefore filed after expiration of the one-year statute of limitations. Additionally, the trial court concluded that the plaintiffs failed to provide sufficient presuit notice because the medical authorizations included in their pre-suit notice did not permit the defendants to obtain their complete medical records. Specifically, the trial court found the authorizations insufficient because they did not permit the defendants to obtain relevant medical records from prenatal treatment that the mother received prior to the date of the delivery. The trial court therefore concluded that the plaintiffs were not entitled to rely on the 120-day extended filing period and their claims were filed after expiration of the three-year statute of repose. The trial court dismissed all of the plaintiffs’ claims, and the plaintiffs appealed. Having reviewed the record submitted on appeal, we hold that the trial court properly dismissed the mother’s claims based on expiration of the one-year statute of limitations. We further hold, however, that the trial court erred in dismissing the child’s claims based on expiration of the three-year statute of repose. Records from prenatal treatment that the mother received prior to the date of the delivery were the mother’s medical records, and the child could not have unilaterally authorized their release. As such, his failure to do so did not render the medical authorizations provided with his pre-suit notice insufficient. The defendants have not asserted any other deficiencies in the child’s pre-suit notice. Because the child provided sufficient pre-suit notice, he was entitled to rely on Tennessee Code Annotated section 29-26-121(c), which extended the filing period by 120 days. The child’s claims were therefore timely filed prior to expiration of the extended statute of repose in October 2015. The judgment of the trial court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

Here is a link to the opinion:

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

Twenty-five Years of Modified Comparative Fault in Tennessee

On May 4, 1992, the Tennessee Supreme Court adopted a system of modified comparative fault in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992).  The petition for rehearing was denied June 1, 1992. Accordingly, we are in the midst of the twenty-fifth anniversary of McIntyre.

The significance of that case cannot be understated.  Its affect upon Tennessee tort law remains strong even today.  It is worth rereading on occasion. As such, here is a link to that case:

https://scholar.google.com/scholar_case?case=1993852268612836205&q=mcintyre+v+balentine&hl=en&as_sdt=4,43

Defense Verdict Upheld on Appeal in an Auto Tort Case

Yesterday the Tennessee Court of Appeals issued its opinion in Higgins v. Green, No. M2016-01369-COA-R3-CV (Tenn. Ct. App. May 11, 2017).  Here is the syllabus from the slip opinion:

This appeal arises from a two-car accident. In her complaint, Plaintiff alleged that the collision occurred because Defendant violated several statutory rules of the road by failing to yield the right of way and making a turn across traffic without confirming it was safe to do so. Defendant denied any negligence and claimed that Plaintiff was more than 50% at fault. Following a trial, the jury found that Plaintiff was 75% at fault; as a result, judgment was entered for Defendant. On appeal Plaintiff contends she is entitled to a new trial for two reasons. She contends the trial court abused its discretion by limiting the testimony of the investigating police officer to what the parties told him at the scene and to matters that are reflected in his accident report. She also contends she is entitled to a new trial due to jury misconduct. Finding no abuse of discretion, we affirm.

Here is a link to the slip opinion:

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

New Health Care Liability Action Opinion: Dismissal of Pro Se Plaintiff's Claims by Trial Court Upheld on Appeal in Part

The Tennessee Court of Appeals issued its opinion in Lacy v. Saint Thomas Hospital West, No. M2016-01272-COA-R3-CV (Tenn. Ct. App. May 4, 2017).  The syllabus from the opinion states as follows:

Appellant brought a pro se action against several medical providers for injuries sustained when she was allegedly beaten during medical procedures. The trial court dismissed the complaint, under Tennessee Rule of Civil Procedure 12.02, for failure to comply with the procedural requirements of the Tennessee Health Care Liability Act (THCLA). On appeal, Appellant contends that she was not obligated to comply with the THCLA’s procedural requirements because her claim was based in tort and did not assert a health care liability claim. After reviewing the complaint, we conclude that it asserts several distinct claims, some of which are health care liability claims and some are not. We, therefore, affirm the trial court’s dismissal of the health care liability claims, but reverse the trial court’s grant of Appellees’ motions to dismiss the non-health care liability claims. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/lacy.deborahv.saintthomas.opn_.pdf

New Health Care Liability Action Opinion: The Common-knowledge Exception Dispenses with the Need to File a Certificate of Good Faith

The Tennessee Court of Appeals just issued its opinion in Zink v. Rural/Metro of Tenn., L.P., No. E2016-01581-COA-R3-CV (Tenn. Ct. App. May 2, 2017).  The syllabus from the slip opinion reads:

In this action regarding injury allegedly caused by an emergency medical technician in the course of rendering medical aid, the trial court determined that the plaintiff’s claims were subject to the Tennessee Health Care Liability Act (“THCLA”) and dismissed the claims with prejudice based on the plaintiff’s failure to file a certificate of good faith pursuant to Tennessee Code Annotated § 29-26-122. The plaintiff has appealed, conceding that his claims sounded in health care liability but asserting that they should not have been dismissed with prejudice because a certificate of good faith was not required. Following our review of the complaint, we conclude that the plaintiff’s claims were subject to the common knowledge exception such that a certificate of good faith was not required pursuant to Tennessee Code Annotated § 29-26-122. We therefore reverse the trial court’s dismissal with prejudice and remand this matter to the trial court for entry of an order dismissing the plaintiff’s claims without prejudice based upon his failure to provide pre-suit notice.

Here is a link to the slip opinion:

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

NOTE: This opinion makes clear that certificates of good faith are only required to be filed with a complaint in a health care liability action when the common-knowledge exception does not apply, which can be tricky to determine.

How a Defendant's Bankruptcy Affects the Timeliness of a Tort Action Filed Against That Defendant

The Tennessee Court of Appeals recently issued an excellent opinion that sets out how a defendant's bankruptcy affect the timeliness of a tort action filed against the defendant in McCollough v. Vaughn, 

No. M2016-01458-COA-R3-CV (Tenn. Ct. App. Apr. 27, 2017).  Here is the syllabus from the slip opinion:

This action arises out of a two-car accident. Prior to the commencement of this action, the driver of the vehicle who is the defendant in this action filed a petition in bankruptcy court. Shortly thereafter, and being unaware of the bankruptcy proceeding, Plaintiffs commenced this action naming the driver of the other vehicle as the only named defendant. Summons was issued for the defendant driver as well as Plaintiffs’ uninsured motorist insurance carrier. Summons was served on the carrier; however, summons for Defendant was returned unserved, and more than a year passed before Plaintiffs requested issuance of an alias summons. Upon motions of the defendant and the uninsured motorist carrier, the trial court dismissed all claims as time barred upon the finding that Plaintiffs failed to comply with Tenn. R. Civ. P. 3 by obtaining the issuance of a new summons for service of process on the defendant within one year of the issuance of the previous summons that was not served. Plaintiffs appeal contending their claims are not time barred because the defendant filed her bankruptcy petition prior to the commencement of this action and Tenn. Code Ann. § 28-1-109 expressly states, “When the commencement of an action is stayed by injunction, the time of the continuance of the injunction is not to be counted.” We agree. The bankruptcy court’s automatic stay not only enjoined the commencement of this action but the issuance of process, and Tenn. Code Ann. § 28-1-109 expressly states that the time of the continuance of an injunction is not to be counted in calculating the statute of limitations. The bankruptcy injunction remained in effect for 202 days; therefore, that period is not to be counted. With the addition of 202 days to the period within which Plaintiffs could obtain the issuance of an alias summons under Tenn. R. Civ. P. 3, the issuance of the alias summons was timely. As a consequence, the trial court’s order dismissing this case is vacated, and this matter is remanded with instructions to reinstate the complaint as to the defendant driver and the uninsured motorist carrier for further proceedings consistent with this opinion. 

Here is a link to the slip opinion:

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

NOTE: This is a must-read opinion for any Tennessee practitioner who handles tort cases.

Trial Court's Grant of Summary Judgment to Defense Overturned on Appeal

The Tennessee Court of Appeals recently released its opinion in Helyukh v. Buddy Head Livestock & Trucking, Inc., No. W2015-01354-COA-R3-CV (Tenn. Ct. App. Apr. 24, 2017).  Here is the syllabus from the slip opinion:

The plaintiffs appeal the grant of summary judgment in a negligence case. One of the plaintiffs, a truck driver, suffered injuries stemming from a collision with another tractor- trailer owned by the defendant and operated by its employee. The plaintiffs claimed that the employee's negligence proximately caused the accident. The owner of the overturned tractor-trailer moved for summary judgment on the ground that the plaintiffs could not establish that its employee's conduct fell below the applicable standard of care. The trial court agreed and granted summary judgment. On appeal, the plaintiffs argue, among other things, that owner of the overturned tractor-trailed failed to meet its burden of production in moving for summary judgment. Because we conclude that the movant failed to demonstrate the absence of material facts that would create genuine issues for trial, we reverse the grant of summary judgment.

Here is a link to the slip opinion:

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

New Tennessee Supreme Court Opinion on Res Ipsa Loquitur

The Tennessee Supreme Court recently issued its opinion in Jenkins v. Big City Remodeling, No. E2014-01612-SC-R11-CV (Tenn. Apr. 5, 2017).  The syllabus from the slip opinion reads as follows:

At issue in this appeal is the liability of a general contractor and two flooring subcontractors for damages sustained by the plaintiffs when a fire destroyed their partially completed house. The plaintiffs alleged that the negligence of the general contractor and the subcontractors caused the fire and that the general contractor had breached the construction contract. The trial court granted summary judgment to the general contractor, holding that the plaintiffs could not rely on res ipsa loquitur to establish an inference of negligence; granted summary judgment to the subcontractors based on the plaintiffs' failure to prove that any negligence of the subcontractors caused the fire; and granted summary judgment to the general contractor based on evidence that the plaintiffs were the first party to materially breach the construction contract. The Court of Appeals, in a divided opinion, affirmed summary judgment to the general contractor based on the inapplicability of res ipsa loquitur; and reversed summary judgment to the subcontractors on the negligence claim and to the general contractor on the breach of contract claim, finding genuine issues of disputed material fact. We hold that the plaintiffs cannot rely on res ipsa loquitur because they did not produce sufficient evidence that the general contractor was in exclusive control of the specific cause or all reasonably probable causes of the fire. We further hold that the plaintiffs did not produce sufficient evidence to establish that any negligence of the subcontractors was the cause in fact of the fire. For these reasons, the general contractor and flooring subcontractors are entitled to summary judgment on plaintiffs' claims based on negligence and breach of contract. We affirm the trial court's grant of summary judgment.

Here is a link to the slip opinion:

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

New Opinion: Trial Court's Remittitur of Jury Verdict Upheld on Appeal

Yesterday the Tennessee Court of Appeals, Eastern Grand Division, issued its opinion in West v. Epiphany Salon & Day Spa, LLC, No. E2016-01860-COA-R3-CV (Tenn. Ct. App. Apr. 25, 2017). Here is a link to the syllabus from the slip opinion:  

This appeal concerns a jury award of damages in a negligence case. Suzanne Bishop West (“West”) sued Epiphany Salon & Day Spa, LLC (“Epiphany”) in the Circuit Court for Hamilton County (“the Trial Court”) for damages resulting from a facial she received that burned her face. Epiphany conceded liability and the matter went before a jury for a determination of damages. The jury awarded West $125,000 in damages. Epiphany filed a motion for remittitur. The Trial Court, finding the award excessive, reduced the award from $125,000 to $47,800. West appeals to this Court, asking that we restore the original jury award of $125,000. Finding no reversible error, we affirm the judgment of the Trial Court.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/west_v._epiphany_salon.pdf

New Health Care Liability Action Opinion: Defense Verdict Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Popick v. Vanderbilt University Hospital, No. M2015-01271-COA-R3-CV (Tenn. Ct. App. Mar. 13, 2017).  Here is the syllabus from the slip opinion:

The plaintiff filed this health care liability action against the defendant hospital after the death of her husband, alleging that his death was the result of negligent medical treatment. The jury returned a verdict in favor of the defendant. On appeal, the plaintiff argues that the trial court committed reversible error in: (1) excluding certain email messages as hearsay; (2) overruling her objections to defense counsel‟s crossexamination of a witness; (3) failing to instruct the jury to ignore statements made by defense counsel in closing argument; (4) refusing a request for a special jury instruction; and (5) declining to change the special verdict form. Discerning no reversible error, we affirm the decision of the trial court. 

Here's a link to the slip opinion:

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

New Opinion: Dismissal of Plaintiff's Case Overturned on Appeal

The Tennessee Court of Appeals recently issued its opinion in Cordell v. Cleveland Tennessee Hospital, LLC, No. M2016-01466-COA-R3-CV (Tenn. Ct. App. Feb. 2, 2017).  The syllabus from the slip opinion states as follows:

The trial court, pursuant to a motion to dismiss filed by defendants, dismissed the plaintiff’s lawsuit because she did not comply with certain aspects of the Tennessee Healthcare Liability Act incident to the filing of her original complaint. Because we do not construe the allegations in the original complaint as presenting any health care liability claims, we reverse the trial court’s dismissal of this lawsuit and remand for further proceedings consistent with this Opinion.

Here is a link to the slip opinion:

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

  

New Opinion on Protective Orders and Their Modification

The Tennessee Court of Appeals just released its opinion in Autin v. Goetz, No. W2016-00099-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2017).  It is a good read on protective orders and their modification.   Here is the syllabus form the slip opinion:

The trial court entered a protective order under Rule 26.03 of the Tennessee Rules of Civil Procedure while the case was ongoing. After the plaintiffs filed a notice of voluntary dismissal, the trial court entered an order confirming the dismissal and extending the protective order "in perpetuity."  The defendant did not appeal the final order, but years later filed a motion to modify the protective order. The trial court denied the motion as barred by the doctrine of res judicata. On appeal, the defendant argues that the trial court lacked subject matter jurisdiction to extend the protective order after plaintiffs nonsuited their case. As an issue of first impression, we conclude that the trial court retained jurisdiction to extend and modify its previously entered protective order notwithstanding the voluntary dismissal of the underlying action. We further hold that modification of existing protective orders is authorized by the holding in Ballard v. Herzke, 924 S.W.2d 652, 658 (Tenn. 1996); accordingly, we vacate the trial court's denial of defendant's motion to modify and remand for reconsideration in light of our supreme court's established precedent.

(Bolding in original.)

Here is a link to the opinion:

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

New Health Care Liability Action Opinion: Jury Verdict for Defense Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Bogner v. Vanderbilt University, No. M2015-00669-COA-R3-CV (Tenn. Ct. App. Feb. 23, 2017).  he syllabus from the slip opinion states as follows:

This is an appeal from a judgment entered on a jury verdict in favor of the defendant in a health care liability action. The plaintiff filed suit against the defendant hospital for medical malpractice, medical battery, and lack of informed consent. The trial court granted a partial directed verdict in favor of the defendant after the plaintiff presented evidence. At the close of all the proof, the trial court denied the plaintiff's motion for a directed verdict on the remaining issues of medical battery and informed consent. On appeal, the plaintiff claims that the trial court erred in denying the motion for a directed verdict, in refusing to adopt the plaintiff's special jury instructions, and in using a confusing special verdict form. Discerning no reversible error, we affirm the judgment of the trial court. 

Here is a link to the slip opinion:

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

New Health Care Liability Action Opinion: Trial Court's Dismissal of Action Upheld on Appeal Due to Ineffective HIPAA Authorization

The Tennessee Court of Appeals recently issued its opinion in Rush v. Jackson Surgical Assocs., P.A., W2016-01289-COA-R3-CV (Tenn. Ct. App. Feb. 13, 2017).  The syllabus from the slip opinion states as follows:

This is a healthcare liability action. After sustaining injuries as a result of alleged surgical error, Appellant filed this action against the surgeon and his medical group. Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated Section 29-26-121(a)(2)(E). The trial court granted the motion to dismiss, and Appellant appeals. Discerning no error, we affirm and remand.

Here's a link to the slip opinion:

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

NOTE: The syllabus is short and sweet and you have to read the opinion to get an idea of why the case was dismissed.  However, I direct you to my blog post of Nov. 19, 2016, which supports my belief that defendants in a health care liability action do not need a HIPAA-compliant authorization to review a patient's PHI/medical records, and, as result, cannot be "prejudiced" by not getting such an authorization as part of a claimant's presuit notice, to wit: 

http://theduncanlawfirm.blogspot.com/2016/11/new-health-care-liability-action.html

New Health Care Liability Action Opinion: Trial Court's Decision Finding That Presuit Notice Was Effective and Grant of Leave to Amend Complaint Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Runions v. Jackson-Madison County Hospital District, No. W2016-00901-COA-R9-CV (Tenn. Ct. App. Feb. 7, 2017).  The syllabus from the opinion states as follows:

This is an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. In this health care liability action, we must determine whether the plaintiff properly complied with the pre-suit notice requirement found in Tennessee Code Annotated section 29-26-121(a)(1). The original defendants in this matter all filed a motion to dismiss and/or for summary judgment alleging that they did not provide medical treatment to the plaintiff/appellee. Subsequently, the plaintiff filed a response to the defendants' motion acknowledging that she had mistakenly identified a proper defendant in this suit. The plaintiff also filed a motion to amend her complaint attempting to remedy that mistake by substituting in the proper defendant. After both motions were heard, the trial court denied the original defendants' motion to dismiss and/or for summary judgment and granted the plaintiff/appellee's motion to amend her complaint. For the following reasons, we affirm the decision of the trial court and remand for further proceedings.

Here is a link to the opinion: http://www.tncourts.gov/sites/default/files/runionstopn.pdf

Judge Gibson issued a separate opinion concurring in part and dissenting in part, which can be found at this link: http://www.tncourts.gov/sites/default/files/runionstiffinnedis.pdf

NOTE: This case was reversed on appeal to the Tennessee Supreme Court on Jun. 6, 2018.  That opinion can be found at this link, to wit:

http://theduncanlawfirm.blogspot.com/2018/06/new-tennessee-supreme-court-health-care.html

New Wrongful Death Opinion: Surviving Spouse's Prosecution of Claim Disallowed on Appeal; Decedent's Daughter Allowed to Prosecute Claim Instead

The Tennessee Court of Appeals, Middle Section, just released its opinion in Nelson v. Myres, No. M2015-01857-COA-R3-CV (Tenn. Ct. App. Jan. 18, 2017). The syllabus from the slip opinion states as follows:

A woman died in a multi-vehicle accident. Two wrongful death actions were filed, one by the woman's daughter, the other by the woman's husband. The daughter's suit named the husband and others as defendants. The husband's suit named one of the other drivers as the only defendant. The trial court dismissed the daughter's complaint, holding that Tennessee's wrongful death statute creates only one cause of action and that the husband, as the surviving spouse, was granted priority to prosecute the action under the statute. The daughter appeals the dismissal of her complaint. Because the husband is unable to name himself as a defendant in the suit he has filed, he is not able to prosecute the wrongful death action in a manner consistent with the right of the decedent to sue all wrongdoers whose actions are alleged to have led to her death; accordingly, we reverse the judgment of the trial court dismissing the daughter's complaint, reinstate the complaint, and remand the case for further proceedings.

(Emphasis added.)

 Here is a link to the slip opinion:

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

NOTE: This is a must-read opinion for any Tennessee practitioner who handles wrongful death claims.  

New Laws Effective in Tennessee on Jan. 1, 2017

http://www.capitol.tn.gov/legislation/publications/effective%2001-01-2017.pdf

New Tennessee Supreme Court Opinion: Seller of Automated External Defibrillator Granted Summary Judgment on Appeal

The Tennessee Supreme Court just issued its opinion in Wallis v. Brainerd Baptist Church, No. E2015-01827-SC-R11-CV (Tenn. Dec. 22, 2016).  The summary from the slip opinion states as follows:

The plaintiff‟s husband collapsed and died after participating in a cycling class at a fitness and recreation facility owned and operated by the church. Although the cycling class instructor and others present at the fitness facility attended the plaintiff's husband and called 911 soon after his collapse, they did not utilize the automated external defibrillator (“AED”) on site at the facility. The plaintiff filed a wrongful death action against the church, alleging, among other things, that the church had negligently failed to utilize the onsite AED, to train facility personnel on the proper use of the AED, and to comply with applicable state statutes. The church denied negligence and subsequently filed a third-party complaint against the company that sold it the AED, asserting that the seller had contractually agreed to provide a physician oversight program, which, among other things, included oversight of the church's compliance with federal, state, and local regulations. The church alleged that, should the plaintiff recover a judgment against it for failing to comply with statutes, the seller should be solely responsible for the judgment. The plaintiff then filed a second amended complaint naming the seller as a defendant and alleging, as relevant to this interlocutory appeal, that: (1) the seller had negligently breached a duty it owed to her husband and others using the fitness facility to properly maintain the AEDs, to ensure that they were accessible, and to ensure that the church's employees had the knowledge, training, and ability to operate the AEDs; (2) the seller had breached its contract with the church; (3) her husband was a third-party beneficiary of the contract; and (4) the seller's negligence and breaches of contract caused her husband's death, entitling her to recover against the seller on her wrongful death and loss of consortium claims.

The seller moved for summary judgment against the plaintiff and the church, arguing that: (1) it owed no duty of care to the plaintiff or her husband; (2) the church had no common law or statutory duty to acquire or use an AED; (3) neither the plaintiff nor her husband were third-party beneficiaries of the seller's contract with the church; (4) the undisputed facts established that the seller had not breached its contract with the church; and (5) the undisputed facts failed to establish that any of the alleged breaches of contract caused the plaintiff‟s husband's death. The trial court denied the seller's motion for summary judgment, concluding that disputes of material fact remained, but it granted the seller permission to seek an interlocutory appeal. The Court of Appeals denied the seller's application for an interlocutory appeal, but this Court granted the seller permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure. We conclude that the seller did not owe a duty of care to the plaintiff's husband or other users of the fitness facility independent of its contract with the church and that the church had no statutory or common law duty to acquire or use the AED it purchased from the seller, and as a result, the plaintiff's husband was not a third-party beneficiary of the church's contract with the seller. For these reasons, the seller is entitled to summary judgment on the plaintiff's second amended complaint and the church's third-party complaint. Accordingly, we reverse the judgment of the trial court and remand for entry of summary judgment in favor of the seller on all claims and for any other necessary and appropriate proceedings consistent with this decision.

Here is a link to the slip opinion: http://www.tsc.state.tn.us/sites/default/files/wallissopn.pdf.

NOTE: In addition to the discussion on the law surrounding the seller of an AED's liability in Tennessee, this opinion sheds further light on the post-Rye summary judgment standard in our state, which makes it a must-read for that fact alone.

New Health Care Liability Action Opinion: Trial Court's Exclusion of Plaintiff's Treating Physician as a Causation Expert and Resulting Grant of Summary Judgment to the Defense Reveresed on Appeal

The Tennessee Court of Appeals issued its opinion in Holmes v. Christ Community Health Services, Inc., No. W2016-00207-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2016).  The syllabus from the opinion states as follows:

The plaintiff filed this action alleging medical malpractice against a physician who examined the plaintiff five days after injury to her shoulder, as well as the facility wherein the physician practiced. The plaintiff alleged, inter alia, that the defendant physician failed to properly diagnose a fracture dislocation in her shoulder, causing a delay in appropriate treatment. The plaintiff‘s subsequent treating physician opined in his deposition and via affidavit that if the plaintiff‘s injury had been diagnosed earlier, the plaintiff would likely have avoided an extensive surgical procedure, resultant infection stemming from such surgery, and residual impairment to her shoulder. The trial court excluded this testimony as speculative, granting summary judgment in favor of the defendant physician and hospital. The plaintiff has appealed. We determine that the trial court erred in excluding the causation evidence as speculative. We therefore vacate the court‘s grant of summary judgment in favor of the co-defendants.

Here is a link to the slip opinion:

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

New Health Care Liability Action Opinion: Trial Court's Dismissal Based upon Claim Being Time-barred for Failure to Comply with Onerous Presuit Notice Requirements Upheld on Appeal; Constitutional Challenge of Tenn. Code Ann. sec. 29-26-121 Deemed to Be Without Merit

The Tennessee Court of Appeals recently issued its opinion in J.A.C. ex rel. Lesha Carter v. Methodist Healthcare Memphis Hospitals, No. W2016-00024-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2016).  The syllabus from the opinion states as follows:

In this health care liability action, Defendants moved to dismiss based on the Plaintiffs' failure to provide the Health Insurance Portability and Accountability Act ("HIPAA") medical authorization required by Tennessee Code Annotated section 29-26-121(a)(2)(E). Based on its determination that the Plaintiffs failed to substantially comply with the foregoing statute, the trial court held that the Plaintiffs were not entitled to an extension of the applicable statutes of limitations and repose under Tennessee Code Annotated section 29-26-121(c) and accordingly concluded that the Plaintiffs' claims were time-barred. The trial court also concluded that the Plaintiffs' constitutional challenges to the viability of Tennessee Code Annotated section 29-26-121 were without merit. We affirm and remand for further proceedings consistent with this Opinion.

Here is a link to the slip opinion: http://www.tncourts.gov/sites/default/files/carterleshaopn.pdf

NOTE: I find it interesting that the courts in Tennessee---and many lawyers---have not picked up on the fact that a defendant (or potential defendant) in a health care liability action does not have to have a HIPAA-compliant authorization to share a patient's or plaintiff's protected health information ("PHI") with other defendants and their legal counsel under 45 C.F.R. sections 164.501, -502(b), -.514(d) to investigate potential medical negligence.  See http://www.hhs.gov/hipaa/for-professionals/faq/705/may-a-covered-entity-in-a-legal-proceeding-use-protected-health-information/index.html (last visited Nov. 19, 2016).  As such, dismissal of a health care liability action because a defendant did not get a HIPAA-compliant authorization for a patient's PHI would be improper because Tenn. Code Ann. sec. 29-26-121's requirement that such an authorization be enclosed as part of a claimant's presuit notice appears to be preempted by HIPAA. 

New Health Care Liability Action Opinion: Common-knowledge Exception Applies to the Breach of Duty But Not to Causation; Trial Court's Dimissal with Prejudice Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Redick v. Saint Thomas Midtown Hospital, No. M2016-00428-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2016).  The syllabus from the slip opinion states as follows:  

Vicki J. Redick (“Plaintiff”) appeals the dismissal with prejudice of her health care liability action against Saint Thomas Midtown Hospital (“the Hospital”) and Jane Doe, an employee of the Hospital. We find and hold that Plaintiff, despite application of the common knowledge exception when appropriate, would be unable to prove her claim without expert proof, and therefore, Plaintiff was required to file a certificate of good faith in compliance with Tenn. Code Ann. § 29-26-122. As Plaintiff failed to file the required certificate of good faith, we find no error in the judgment of the Circuit Court for Davidson County (“the Trial Court”) dismissing Plaintiff‟s case with prejudice for failure to comply with Tenn. Code Ann. § 29-26-122.

Here is a link to the slip opinion: http://www.tncourts.gov/sites/default/files/redickv.j.opn_.pdf

NOTE: In this opinion, the court held that while the common-knowledge exception applied to the breach of duty, Redick v. Saint Thomas Midtown Hospital, No. M2016-00428-COA-R3-CV, slip op. at  8 (Tenn. Ct. App. Oct. 26, 2016), it did not apply to causation, inter alia, because what injuries the plaintiff suffered were not within the common knowledge of laypersons (unlike when a wrong body part is operated on or a foreign object is unintentionally left in a patient's body after surgery), id. 

New Health Care Liability Action Opinion: Trial Court's Dismissal of Refiled Case Overturned on Appeal Due to the Saving Statute

The Tennessee Court of Appeals just issued its opinion in Robinson v. Robbins, No. W2016-00381-COA-R3-CV (Tenn. Ct. App. Oct. 19, 1996).  The syllabus from the slip opinion states as follows:

This is a health care liability action.  The plaintiffs timely filed suit against the defendant concerning the inadequate care and treatment received by the decedent. After voluntarily dismissing the initial suit, the plaintiffs provided pre-suit notice before filing a second suit pursuant to the saving statute. The defendant moved to dismiss, arguing that the saving statute did not apply because there was no identity of parties between the actions. He explained that the second complaint was filed against him in his individual capacity while the initial complaint was lodged against him in his corporate capacity. The court agreed and held that the second action was barred for failure to file within the applicable statute of limitations. We reverse.

 (Footnote omitted.)

Here is a link to the slip opinion:

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

New Health Care Liability Action Opinion: Another Opinion Acknowledging That a Plaintiff Has the Right to Take a Voluntary Dismissal Without Prejudice Even If a Motion to Dismiss Is Pending

The Tennessee Court of Appeals has issued another opinion concerning a plaintiff's right to take a nonsuit in a health care liability action when a motion to dismiss is pending.  The case is Hurley v. Pickens, No. E2015-02089-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2016).  The syllabus from the slip opinion states as follows:

Dallas K. Hurley, Jr. (“Plaintiff”) sued Ryan B. Pickens, M.D. and University Urology, P.C. (“Defendants”) alleging claims for health care liability. Defendants filed a motion to dismiss. While the motion to dismiss was pending, Plaintiff filed a notice of and motion for voluntary dismissal pursuant to Tenn. R. Civ. P. 41. The Circuit Court for Knox County (“the Trial Court”) granted Plaintiff a voluntary dismissal without prejudice. Defendants appeal to this Court raising issues regarding whether Plaintiff had the right to take a voluntary dismissal without prejudice when a motion to dismiss was pending and whether Plaintiff failed to comply with Tenn. Code Ann. § 29-26-122 requiring dismissal of Plaintiff’s suit with prejudice. We find and hold that Plaintiff had the right to take a voluntary dismissal even while a motion to dismiss was pending. Our resolution of this issue renders Defendants’ second issue moot. We, therefore, affirm the Trial Court’s order granting Plaintiff a voluntary dismissal.

Here's a link to the slip opinion:

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

New Health Care Liability Action Opinion: Plaintiff Allowed to Take a Voluntary Dismissal Without Prejudice Despite Pending Motion to Dismiss

Recently the Tennessee Court of Appeals issued its opinion in Clark v. Werther, No. M2014-00844-COA-R3-CV (Tenn. Ct. App. Sept. 27, 2016).  The syllabus from the slip opinion states as follows:

The plaintiff, acting pro se, filed a complaint in this health care liability action without attaching a certificate of good faith. Several defendants filed motions to dismiss based on the missing certificate. The plaintiff responded to the motions and filed a notice of voluntary nonsuit. Some of the defendants objected to the voluntary dismissal, arguing the complaint should be dismissed with prejudice. The trial court dismissed the plaintiff‟s claims against the non-objecting defendants without prejudice but dismissed the plaintiff‟s claims against the objecting defendants with prejudice. The plaintiff appealed all of the court‟s dismissal orders on numerous grounds. Upon review, we conclude that Rule 41.01 of the Tennessee Rules of Civil Procedure afforded the plaintiff the right to a voluntary dismissal without prejudice as to all defendants. Accordingly, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.

Here's a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/clark.robert.v.werther.opn_.pdf