New Health Care Liability Action: Dismissal of Plaintiffs' Case Upheld on Appeal: Nurse Cannot Provide Causation Testimony; Issue Waived on Appeal Because It Was Not Properly Raised

The Tennessee Court of Appeals just released its opinion in Lovelace v. Baptist Memorial Hosp. - Memphis, No. W2019-00453-COA-R3-CV (Tenn. Ct. App. Jan. 16, 2020).  The syllabus from the slip opinion reads:

Plaintiff filed a health care liability action against Defendant hospital following the death of Plaintiff’s husband in 2014. The trial court granted summary judgment to the hospital on two alternative, independent grounds: that the Plaintiff’s expert witness, a registered nurse, was not competent to testify as an expert witness, and that the expert witness failed to provide causation testimony as required to prove liability. Plaintiff appealed the trial court’s ruling about the competency of her expert witness, but she failed to raise the failure to provide causation testimony as an issue on appeal. As no argument was made to challenge a distinct ground for summary judgment, we consider the argument waived and affirm the trial court’s order granting summary judgment. 

Here is the link to the opinion:

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

NOTE: Two things stand out from reading this opinion: first, a nurse cannot render causation testimony in a health care liability action in Tennessee.  Richberger v. West Clinic, P.C., 152 S.W.3d 505, 506 (Tenn. Ct. App. 2004), perm app. denied (Oct. 4, 2004). Second, appellate work is difficult, and can be somewhat arcane unless one does it regularly.  The abbreviation of the Tennessee Rules of Appellate Procedure is "T.R.A.P." for a reason.  However, while this case points out how waiver can occur on appeal, the lack of competent expert testimony is what killed the case.  And that is unfortunate.  

New Laws Effective in Tennessee on Jan. 1, 2020

http://www.capitol.tn.gov/Archives/Joint/publications/effective%201-1-2020.pdf

New Health Care Liability Action: Case Remanded Because Order Was Not Final; Trial Court Sanctions Plaintiffs' Counsel

The Tennessee Court of Appeals released its opinion in Ibsen v. Summit View of Farragut, LLC, No. E2018-01249-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2019).  The syllabus from the slip opinion reads:

In this healthcare liability action, the defendants filed a motion for a qualified protective order allowing them to conduct ex parte interviews with some of the plaintiffs’ treating healthcare providers pursuant to Tenn. Code Ann. [sec.] 29-26-121(f). After the trial court granted the qualified protective order allowing the interviews, plaintiffs’ counsel wrote a letter to plaintiffs’ treating providers concerning the interviews. The defendants then filed a joint motion for sanctions asserting that the letters sent by plaintiffs’ counsel violated the trial court’s order by attempting to prevent the treating providers from participating in the interviews. The trial court granted monetary sanctions against the plaintiffs and their counsel and ordered plaintiffs’ counsel to send retraction letters to plaintiffs’ treating providers. The plaintiffs appeal. We have determined that the order on appeal is not a final order and, therefore, dismiss the appeal.

Here is a link to the opinion:

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

NOTE: Sending letters to treating providers like this is not uncommon or per se wrong.  See Brazier v. Crockett Hosp., No. M2004-02941-COA-R10-CV, 2006 WL 2040408, 2006 Tenn. App. LEXIS 483, at *4–8 (Tenn. Ct. App. July 20, 2006).  However, Brazier was decided before Tenn. Code Ann. sec. 29-26-121(f) was enacted.  Compare id. at *1 with T.C.A. § 29-26-121(f), Stat. Hist. (LexisNexis, Lexis Advance, current thought 2019 Reg. Sess.).  What got the plaintiffs in trouble here is that they did what the trial court told them not to do.   

New Health Care Liability Action: Trial Court's Dismissal of Plaintiffs' Case Based upon Deficient HIPAA-compliant Authorization Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Moore-Pitts v. Bradley, No. No. E2018-01729-COA-R3-CV (Tenn. Ct. App. Dec. 9, 2019).  The syllabus from the slip opinion reads:

This appeal concerns a healthcare liability action filed by Jennifer Moore-Pitts and David Pitts ("Plaintiffs") in the Knox County Circuit Court ("Trial Court") against Carl A. Bradley, DDS, MAGD ("Defendant"). Defendant filed a motion to dismiss Plaintiffs' action on the basis of noncompliance with Tennessee Code Annotated § 29-26- 121(a)(2)(E), which requires that pre-suit notice include a HIPAA-compliant medical authorization allowing the healthcare provider receiving the notice to obtain complete medical records from every other provider that is sent a notice.' Approximately forty healthcare providers, including Defendant, received pre-suit notice from Plaintiffs. On the medical authorization provided to Defendant, Plaintiffs left blank the name of the individual or entity authorized to make the disclosure of medical records to Defendant but provided an attachment of the names and addresses of the other providers receiving notice. The Trial Court found that Plaintiffs' medical authorization provided to Defendant was not sufficient to allow Defendant to obtain Ms. Moore-Pitts's medical records from the other providers who received the pre-suit notice. As such, the Trial Court found that Plaintiffs could not rely on Tennessee Code Annotated § 29-26-121(c) to extend the statute of limitations for 120 days. Because Plaintiffs' action was filed one year and 118 days after the cause of action accrued, the Trial Court determined that Plaintiffs' action was untimely. The Trial Court, therefore, granted Defendant's motion to dismiss. Discerning no error, we affirm the judgment of the Trial Court. 

Here is a link to the opinion: 

http://www.tncourts.gov/sites/default/files/jennifer_moore-pitts_et_al._v._carl_a._bradley_dds_2.pdf

NOTE: Respectfully, I think this opinion was decided incorrectly, which is explained in a one of my prior posts to this blog: 

http://theduncanlawfirm.blogspot.com/2018/08/new-health-care-liability-action.html

New Case on Proper Way to Maintain Suit When Plaintiff Dies from Something Other Than Injuries That Form the Basis of the Pending Suit; Case Remanded to Determine If Substitution May Be Had Based on Excusable Neglect

The Tennessee Court of Appeals just released its opinion in Joshlin v. Halford, No. W2018-02290-COA-R9-CV (Tenn. Ct. App. Nov. 6, 2019).  The syllabus from the slip opinion reads:

In this interlocutory appeal, the defendants appeal the trial court’s denial of their motion to dismiss a medical malpractice lawsuit on the ground that the plaintiffs failed to comply with Tennessee Rule of Civil Procedure 25.01. We reverse the decision of the trial court and remand the case for further proceedings.

Here is a link to the opinion:

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

NOTE: Like the case in my prior post, this is also a must-read decision about the difference between a wrongful death claim and an injury claim that survives the death of the injured person under Tennessee’s survival statues.  Those two types of claims are different because the former is not property of the deceased’s estate while the latter is.  That distinction makes a big difference when it comes to maintaining the claims postmortem.

New Case on Proper Way to Sue When Defendant Dies Before Suit Is Filed: Case Dismissed Because Plaintiff Failed to Properly Bring Suit Within Time Allowed by Law

The Tennessee Court of Appeals just issued its decision in Khah v. Capley, No. M2018-02189-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2019).  The syllabus from the slip opinion reads:

This appeal arises from the dismissal of a personal injury action in which the alleged tortfeasor died before suit was filed. Upon a motion to dismiss, the trial court determined that the suit was barred by the applicable statute of limitations. Because no personal representative was appointed for the deceased tortfeasor and more than a year had elapsed following the accrual of the plaintiff’s cause of action, we affirm the dismissal.

Here is a link to that opinion: http://www.tncourts.gov/sites/default/files/khah.vivian.opn_.pdf.

NOTE: This is a must-read case for any lawyer who handles motor-vehicle tort cases (and any other case where a defendant dies prior to suit being filed).

This is a Davidson County (Nashville) case.  Plaintiff’s lawyers are from Shelby County (Memphis).  I do not know this to be fact, but, I suspect that Plaintiff’s lawyers did not have access to CaseLink (a system much like PACER in fed. ct. that is used in Davidson County).  Had they had access, they could have seen that the first return in general sessions court (Tenn. small claims court) was due to the tortfeasor’s death, and, hopefully, revived the case properly.  

Further, this case illustrates why I am of the opinion that cases like this should be filed a step up in circuit court for myriad reasons.  This is an unfortunate result.

New SCOTN Case: Court Holds That Plaintiff in Tort Action Not Necessary Party for Purposes of Defendant's Insuror Seeking a Declaratory Judgment on Coverage Issues

The Tennessee Supreme Court recently released its opinion in Tenn. Farmers Mutual Ins. Co. v. DeBruce, No. E2017-02078-SC-R11-CV (Tenn. Oct. 16, 2019).  The syllabus from the slip opinion reads:

We granted review to determine whether a trial court had authority in a declaratory judgment action to resolve coverage issues between an insurance company and its insured when a claimant, who had sued the insured but did not have a judgment against him, was not a party to the action. Here, the claimant sued the insured for damages arising from an automobile accident. The insured did not cooperate with his insurance company. The insurance company sued its insured, seeking a declaratory judgment that the company did not have to provide liability coverage based on the insured’s lack of cooperation. The trial court awarded the insurance company a default judgment, holding that the company did not have to provide coverage under the policy. Nearly two years later, the claimant moved the trial court to set aside the default judgment and allow her to intervene, asserting that she was a necessary party. The trial court denied the motion. The Court of Appeals ruled that the trial court lacked jurisdiction over the declaratory judgment action because the claimant was a necessary party, and the insurance company had not joined the claimant in the action. We hold that the insurance company and its insured—not the claimant—were necessary parties to the declaratory judgment action. The trial court could decide the coverage dispute between the insurance company and its insured with finality and certainty without the claimant’s participation in the action. The claimant, who had no judgment against the insured and could not bring a direct action against the insurance company to collect any damages caused by the insured, had no interest affected by the dispute between the company and its insured. The trial court had authority to grant declaratory relief because all necessary parties were before the court.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/tennesseefarmersmutualinsuranceco.v.debruce.opn_.pdf

NOTE: This is a must-read opinion for any lawyer who handles auto-crash cases in Tennessee.  It offers the definitive word on who is a necessary party under the circumstances described in this case.  Good stuff.

New Health Care Liability Action Opinion: Plaintiff’s Claim Time-barred Because Presuit Notice Was Not Sent Out in Time

The Tennessee Court of Appeals recently released its opinion in Daffron v. Memorial Health Care System, Inc., No. E2018-02199-COA-R3-CV (Tenn. Ct. App. Oct. 7, 2019).  The syllabus from the slip opinion reads:

This appeal arises from a wrongful death action based on health care liability. Wiley E. Daffron (“Decedent”) received medical treatment from Memorial Health Care System, Inc. (“Memorial”) in 2013. During his stay at Memorial, Decedent developed a pressure ulcer. Decedent died a few months after he was discharged from Memorial. Teresa M. Daffron (“Ms. Daffron”), Decedent’s adult daughter, obtained Decedent’s medical records from Memorial. Some 13 months later, Ms. Daffron sent pre-suit notice of her intent to sue Memorial. A few months after that, Ms. Daffron filed suit against Memorial in the Circuit Court for Hamilton County (“the Trial Court”). Memorial filed a motion for summary judgment asserting the statute of limitations, which the Trial Court granted. The Trial Court held that Ms. Daffron knew or should have known of Decedent’s injury and its possible cause more than one year before the pre-suit notice was sent and, therefore, her complaint was filed outside the statute of limitations. On appeal, Ms. Daffron argues that the statute of limitations did not begin to run until an expert informed her that Decedent’s injury was caused by Memorial. We hold that, pursuant to the discovery rule, and, as evidenced by, among other things, her seeking through counsel Decedent’s medical records, Ms. Daffron had constructive knowledge of Decedent’s claim more than one year before she sent pre-suit notice and, therefore, the complaint was not timely filed. Ms. Daffron’s claim brought on behalf of her father is barred by the statute of limitations. We affirm the judgment of the Trial Court.

Here is a link to that opinion:

http://www.tncourts.gov/sites/default/files/daffron_v._memorail_health_e2018-02199.pdf

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

New Health Care Liability Action: Defendants' Failure to Comply with Tenn. Code Ann. sec. 29-26-121(a)(5) Proves Fatal to Their Motions for Summary Judgment; Adding Nonparties as Defendants under Tenn. Code Ann. sec. 20-1-119, Etc.

The Tennessee Court of Appeals just issued its opinion in Bidwell v. Strait, No. E2018-02211-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2019).  The syllabus from the slip opinion reads:

Plaintiff, James Bidwell, took his wife, Clarissa Bidwell, to Starr Regional Medical Center for treatment. She was transferred to Chattanooga-Hamilton County Hospital Authority dba Erlanger Health System, a governmental hospital authority, where she was treated, but later died. Plaintiff provided statutorily compliant pre-suit notice of his intent to file a health care liability action against each health care provider that was named as a defendant in the complaint. See Tenn. Code Ann. § 29-26-121(a). Plaintiff did not provide pre-suit notice to Erlanger. Tenn. Code Ann. § 29-26-121(a)(5) requires a recipient of pre-suit notice to give written notice to a claimant of any other person, entity, or health care provider who may be properly named a defendant within thirty days of receiving pre-suit notice. However, Dr. Jeffery Colburn and Dr. Timothy A. Strait failed to identify Erlanger as their employer, i.e. a known and necessary party to the suit. Plaintiff timely filed his complaint within the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121. Defendants answered plaintiff’s complaint, each raising the affirmative defense of comparative fault. Dr. Colburn and Dr. Strait then moved for summary judgment arguing that, pursuant to the Governmental Tort Liability Act, without Erlanger as a party defendant no judgment could be rendered against them. See Tenn. Code Ann. § 29-20-310(b). In response, plaintiff filed two motions to amend his complaint to add Erlanger as a defendant, in reliance upon the extension to the statute of limitations provided in Tenn. Code Ann. § 20-1-119(a). After a hearing, the trial court held that plaintiff’s failure to provide pre-suit notice to Erlanger prevents him from adding them to his complaint. It granted Dr. Colburn and Dr. Strait’s motions for summary judgment. Plaintiff appeals. We hold that Tenn. Code Ann. § 29- 26-121(a)(5) required Dr. Colburn and Dr. Strait to identify Erlanger as a known and necessary party within thirty days after receiving pre-suit notice; they failed to comply with § 29-26-121(a)(5). We hold that, pursuant to Tenn. Code Ann. § 20-1-119, their subsequent declaration of the necessity of the nonparty to the suit, after the complaint was filed, granted plaintiff an additional ninety days following the filing of the first answer to amend his complaint in order to add the nonparty as a defendant. See Tenn. Code Ann. § 20-1-119; see also Tenn. Code Ann. § 20-1-119(g) (stating that this section applies to suits involving governmental entities). In addition, we hold that, pursuant to Tenn. Code Ann. § 29-26-121(c), plaintiff’s addition of the nonparty is not barred for failure to provide pre-suit notice. See Tenn. Code Ann. § 29-26-121(c). Therefore, we vacate the trial court’s award of summary judgment to defendants Dr. Colburn and Dr. Strait. We remand this matter for further proceedings, pursuant to applicable law, and consistent with this opinion.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/bidwell_v._strait_opinion.pdf

NOTE: This case is the first one I am aware of that addresses the effects of a defendant failing to comply with Tenn. Code Ann. sec. 29-26-121(a)(5).  Under -121(a)(5), the onus is on the defendant to identify "any other person, entity, or health care provider who may be a properly named defendant," after presuit notice is received by the defendant.  Bidwell, slip op. at 7–9.  The fact that this was a GTLA case further complicated things.  However, the Court of Appeals reached the correct conclusion here: Plaintiff moved to amend within ninety days and the fact that no presuit notice was sent to the hospital did not matter under these circumstances.  Id. at 17–18.

Additionally, under Rule 15, Tenn. R. Civ. P., and Tenn. Code Ann. sec. 20-1-119, Plaintiff did not have to file a motion seeking leave to add the hospital; Plaintiff could have just filed an amended complaint and had process issued within ninety days of the filing of an answer alleging fault against the hospital.  Tenn. R. Civ. P. 15.01; T.C.A. § 20-1-119(a)(1).  Again, if -119 applies, no motion need be filed before an amended complaint can be filed due to a 2007 amendment to Rule 15.01 after the Tennessee Supreme Court's decision in Jones v. Prof'l Motorcycle Escort Serv., LLC, 193 S.W.3d 564 (Tenn. 2006).  While a motion seeking leave to amend may be filed, it is unnecessary in instances like this one. 

UPDATE NO. 1 (May 9, 2019): The Tennessee Supreme Court granted the Rule 11 application (f/k/a certiorari) on Feb. 20, 2020.  Oral argument is currently set for May 19, 2020.  The case status can be checked at this link: https://www2.tncourts.gov/PublicCaseHistory/ (search case no. "E2018-02211-SC-R11-CV").

UPDATE NO. 2 (Jan. 26, 2021): SCOTN released its opinion in this case today.  Here is my blog post about it: http://theduncanlawfirm.blogspot.com/2021/01/new-health-care-liability-action_26.html.

New Case on Service of Leading Process, Dismissals Without Prejudice, and the Saving Statute

The Tennessee Court of Appeals recently issued its opinion in Villalba v. McCown, No. E2018-01433-COA-R3-CV (Tenn. Ct. App. 2019).  Here is the syllabus from the slip opinion:

In this personal injury action arising from an automobile accident, the trial court granted summary judgment in favor of the defendant upon finding that the plaintiffs had failed to demonstrate service of process in the originally filed action, which had been dismissed, such that the plaintiffs’ refiled action was barred by the applicable statute of limitations. The plaintiffs have appealed. Having determined that, pursuant to the version of Tennessee Rule of Civil Procedure 4.04(11) in effect at the time that the initial complaint was filed, the plaintiffs demonstrated valid service of process of the initial complaint, we reverse the grant of summary judgment to the defendant and grant partial summary judgment to the plaintiffs concerning the affirmative defenses of ineffective service of process and expiration of the statute of limitations. We remand this action for further proceedings consistent with this opinion.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/villalba_v._mccown_e2018-01433.pdf

NOTE: This is a must-read opinion for any lawyer who practices in Tennessee state courts.  And if you’re a Civ. Pro. junkie like I am, this case is just for you!  It has it all: service of leading process, return of service, dismissals without prejudice, and refiling under our saving statute.  Good stuff!

Also, I’m glad that Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013) helped in this case.  That is a case that the plaintiff’s counsel allowed me to assist on the appeal—and we won!  After all, cases in Tennessee are supposed to be determined upon their merits and not upon procedural technicalities.  

New Health Care Liability Action Opinion: Dismissal of Plaintiff's Case Reversed on Appeal

The Tennessee Court of Appeals recently issued its decision in Short ex rel. Short v. Metro Knoxville HMA, LLC, No. E2018-02292-COA-R3-CV (Tenn. Ct. App. Aug. 23, 2019).  The syllabus from the slip opinion reads as follows:

This appeal concerns healthcare liability. Carl Short (“Plaintiff”), widower of Allison Short (“Decedent”), filed suit in the Circuit Court for Knox County (“the Trial Court”) alleging negligence in his late wife’s medical treatment against a number of physicians (“Physician Defendants”) and Turkey Creek Medical Center (“the Hospital”) (“Defendants,” collectively). Defendants moved to dismiss on the basis of noncompliance with Tenn. Code Ann. § 29-26-121(a)(2)(E), which requires that pre-suit notice include a HIPAA compliant medical authorization allowing the healthcare provider receiving the notice to obtain complete medical records from every other provider that is sent a notice.1 Plaintiff’s authorizations allowed each provider to disclose complete medical records to each named provider although it did not state specifically that each provider could request records from the other. The Trial Court held that Plaintiff’s authorizations failed to substantially comply with the statute’s requirements because of this failure to explicitly allow each provider to obtain records. Plaintiff appeals. We hold that Plaintiff’s method of permitting Defendants access to Decedent’s medical records substantially complied with Tenn. Code Ann. § 29-26-121(a)(2)(E). We reverse the judgment of the Trial Court.

Here is a link to the majority opinion:

http://www.tncourts.gov/sites/default/files/short_v._metro_knoxville_majority_e2018-2292.pdf

Here is a link to the dissent:

http://www.tncourts.gov/sites/default/files/short_v._metro_knoxville_dissent_e2018-02292.pdf

NOTE: Look for the defendants to seek further review by the Tennessee Supreme Court via Rule 11 of the Tennessee Rules of Appellate Procedure.  Also, as I have noted in previous posts, a healthcare provider does not need a HIPAA-compliant medical authorization to investigate a liability claim (see note on this post: http://theduncanlawfirm.blogspot.com/2018/08/new-health-care-liability-action.html).

May an Attorney Be a Party to a Release in Tennessee?

An attorney may not be a party to a release under Tennessee law according to Tennessee Formal Ethics Op. 98-F-141, among other things.  Here's the link to that opinion:

https://www.tbpr.org/ethic_opinions/98-f-141

New Case on Discretionary Costs: Case Remanded (in Part) to Trial Court for Further Consideration

The Tennessee Court of Appeals recently released its opinion in Pinson v. DeBoer, No. M2018-00593-COA-R3-CV (Tenn. Ct. App. Jul. 30, 2019).  The syllabus from the slip opinion reads as follows:

Appeal of an award of discretionary costs to Defendants in healthcare liability action that had been voluntarily dismissed. The trial court initially awarded Defendants, inter alia, expert witness fees for medical providers who had treated Plaintiff, expenses for videotaped depositions, and costs for the travel time and deposition preparation time for Plaintiff’s vocational expert. On Plaintiff’s motion, the court modified the award to exclude videographer expenses, expenses attendant to the vocational expert’s deposition, and other court reporter expenses. We modify the award to exclude the witness fees for the providers who treated Plaintiff and to include the court reporter fee for the deposition of Plaintiff’s vocational expert; vacate the portion of the award that reduces the amount of court reporter fees and expenses and remand the case for reconsideration of the award; and reverse the order to the extent it requires the Plaintiff to post a bond or pay discretionary costs prior to re-filing the suit. 

Here is a link to the slip opinion:

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

NOTE: This case offers a good explanation of discretionary costs as contemplated in a Tennessee state court.  It is a must-read opinion for anyone who has questions on this matter. 

New Laws Effective in Tennessee on July 1, 2019

Here they are:

https://www.tn.gov/content/dam/tn/tccy/documents/leg/legislat.pdf

Based upon my cursory review of this list, these two are the most salient:

SB173/HB164 Driving laws related to mobile phone use, pp. 3–4; and

SB667/HB729 Court reporter compensation , pp. 70–71.

New SCOTN Opinion on Superseding and Intervening Cause in a Suicide Case

The Tennessee Supreme Court recently issued its opinion in Cotten v. Wilson, No. M2016-02402-SC-R11-CV (Tenn. Jun. 19, 2019).  The syllabus from the slip opinion reads:

In this wrongful death action, the plaintiff estate seeks to hold the defendant liable for negligently facilitating the decedent’s suicide. While staying alone in the defendant’s home, the adult decedent committed suicide by shooting herself with a gun that was unsecured in the defendant’s home. The decedent’s estate sued the defendant, alleging that he should have known the decedent was potentially suicidal and that he negligently facilitated the suicide by failing to secure the gun while the decedent was in his home. The trial court granted summary judgment in favor of the defendant, and the Court of Appeals reversed. We hold that the evidence is insufficient for a trier of fact to find that the decedent’s suicide was a reasonably foreseeable probability; consequently, the decedent’s suicide constitutes a superseding intervening event that breaks the chain of proximate causation. Accordingly, we reverse the Court of Appeals and affirm the trial court’s grant of summary judgment in favor of the defendant.

Here is a link to the majority opinion:

https://www.tncourts.gov/sites/default/files/cottenv.wilson.opn_.pdf

Here is a link to Justice Lee's dissent:

https://www.tncourts.gov/sites/default/files/cottenv.wilson.sep_.opn_.pdf

NOTE: This is a must-read opinion for any lawyer wanting to delve into Tennessee's law of intervening and superseding cause, especially in a suicide case.  

Another New Case on Summary Judgment; Summary Judgment for the Defense Reversed on Appeal

The Tennessee Court of Appeals recently released its opinion in Flagg v. Hudson Construction Co., No. E2017-01810-COA-R3-CV (Tenn. Ct. App. May 28, 2019).  The syllabus from the slip opinion reads as follows:

A motorcyclist sustained severe injuries in an accident on a recently paved portion of a state maintained highway. Alleging that his accident was caused by loose gravel on the highway from the recent paving project, the motorcyclist filed separate actions against the state contractor who resurfaced the state highway and the State of Tennessee. The two actions were consolidated in the circuit court for discovery and trial. Both defendants moved for summary judgment arguing that the plaintiff could not prove that the gravel came from the paving project or that the defendants had notice of the gravel before the accident. The state contractor also argued that it was discharged from liability under the State Construction Projects Liability Act. See Tenn. Code Ann. § 12-4-503 (2011). The trial court initially denied the motions. But after the defendants filed motions to alter or amend based on new evidence, the court reversed its decision and granted the defendants summary judgment on all claims. The plaintiff appealed. Upon review, we conclude that the trial court erred in excluding lay witness opinion testimony and in ruling that expert proof was necessary to determine the source of the gravel. Taking the strongest legitimate view of the evidence in favor of the nonmoving party, we conclude that the plaintiff demonstrated genuine issues of material fact precluding summary judgment. So we reverse.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/charles_m._flagg_jr._v._hudson_construction_company_et_al..pdf

NOTE: This opinion does an excellent job of describing when expert testimony is necessary and the summary judgment standard.  See my note from my prior post as to the applicable standard of review.

New Case on Summary Judgment; Grant of Summary Judgment for the Defense Reversed

The Tennessee Court of Appeals released its opinion the day before yesterday in Emert v. Millennium Taxi Service, LLC, No. E2018-01450-COA-R3-CV (Tenn. Ct. App. May 29, 2019).  The syllabus from the slip opinion reads as follows:

The trial court granted summary judgment to various of the defendants in a personal injury action. The Plaintiff appeals, contending that material facts are in dispute, precluding summary judgment. Finding that disputes of material fact exist, we reverse the judgment and remand the case for further proceedings.

The link the majority opinion is here:

http://www.tncourts.gov/sites/default/files/emert_vs._millennium_coa_majority_opinion.pdf

Judge Susano's dissenting opinion is here:

http://www.tncourts.gov/sites/default/files/emert_vs._millennium_taxi_servicesseparate_opinion.pdf

NOTE: This opinion is a good refresher on summary judgment procedure in Tennessee.  However, Tenn. Code Ann. sec.20-16-101, which purports to adopt a summary-judgment standard similar to the one in federal courts, may provide the applicable standard of review instead of Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235 (Tenn. 2015), because this case was filed after July 1, 2011.  Rye, 477 S.W.3d at 261 n.7 (pointing out that Tenn. Code Ann. sec. 20-16-101 did not apply therein because the Ryes filed suit before the statute's July 1, 2011 effective date).  However, that may be a distinction without a difference as the standard in 20-16-101 and Rye are consistent.  Rye, 477 S.W.3d at 274 (Bivins, J., concurring).  

New Case on Voluntary Dismissals ("Nonsuits") under Tenn. R. Civ. P. 41.01

The Tennessee Court of Appeals recently issued its opinion in Lemonte v. Lemonte,No. 63CC1-2018-CV-154 (Tenn. Ct. App. May 17, 2019).  The syllabus from the slip opinion reads:

The day before a hearing on a motion to dismiss for lack of prosecution was held, Plaintiff filed a notice of voluntary dismissal. Plaintiff did not appear at the hearing the following day. As such, the trial court granted the motion to dismiss and dismissed the case with prejudice. We reverse and remand for the entry of an order of dismissal without prejudice pursuant to Rule 41.01 of the Tennessee Rules of Civil Procedure.

Here is a link to the slip opinion:

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

NOTE: This is a great opinion and a must-read one for any lawyer who practices in the State of Tennessee's courts.  It's a good reminder that, absent few exceptions, a plaintiff has a right to take a voluntary dismissal (a "nonsuit") in civil actions in Tennessee.  No motion seeking leave to nonsuit needs to be filed as I have seen done in some cases; only a notice need be filed.  An order can be submitted later; and the one year to refile under the saving statute runs from the entry of that order.  Tenn. R. Civ. 41.01(3). 

Further, even if a motion for summary judgment is pending, which is one of the exceptions to having a right to take nonsuit, a voluntary dismissal without prejudice can still be taken with court permission.  Stewart v. Univ. of Tenn., 519 S.W.2d 591, 592–94 (Tenn. 1974).

New Health Care Liability Action Opinion: Plaintiff's Case Dismissed Due to a Failure to Submit a HIPAA-compliant Authorization (When One Was Not Needed?)

The Tennessee Court of Appeals just issued its decision in Williams v. Gateway Medical Center, No. M2018-00939-COA-R3-CV (Tenn. Ct. App. Apr. 18, 2019).  The syllabus from the slip opinion reads as follows:

In this health care liability action, the trial court dismissed the plaintiff’s claims for failure to substantially comply with the requirements of Tenn. Code Ann. § 29-26- 121(a)(2)(E) upon determining that the plaintiff’s pre-suit notice failed to include a HIPAA-compliant medical records authorization. The trial court found that the medical records authorizations provided by the plaintiff failed to include a “[d]escription of information to be used or disclosed” and an expiration date. The trial court further determined that these deficiencies prejudiced the defendants from mounting a defense because they were unable to obtain the relevant medical records. As a result, the plaintiff’s claims were dismissed without prejudice. The plaintiff timely appealed. We consider the plaintiff’s omission of an expiration date insignificant. The HIPAA form provided by the plaintiff failed to substantially comply with the statute because it did not include a description of the information to be used or disclosed, thereby causing prejudice to the defendants. We, therefore, affirm the trial court’s dismissal of the plaintiff’s claims. 

Here is a link to the majority opinion: 

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

Here is Judge Dinkin's partial concurrence and dissent:

http://www.tncourts.gov/sites/default/files/williams.steven.sep_.din_.opn_.pdf

Here is Judge Frierson's partial concurrence and dissent:

http://www.tncourts.gov/sites/default/files/williams.steven.sep_.frier_.opn_.pdf

NOTE:

I respectfully have a problem with this decision.  It misses the fact that no authorization was even required.  See Note at this prior blog post, to wit:

http://theduncanlawfirm.blogspot.com/2018/08/new-health-care-liability-action.html

New Tennessee Case on Hospital Liens & Tennessee Consumer Protection Act

The Tennessee Court of Appeals recently issued its opinion in Franks v. Sykes, No. W2018-00654-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2018).  The syllabus from the slip opinion reads:

This appeal concerns two separate plaintiffs’ claims under the Tennessee Consumer Protection Act (“TCPA”), alleging that the filing of undiscounted hospital liens violated the TCPA by “[r]epresenting that a consumer transaction confers or involves rights, remedies or obligations that it does not have or involve or which are prohibited by law.” The trial court dismissed one plaintiff’s claim based on the pleadings due to the plaintiff’s failure to bring a claim under the Hospital Lien Act and dismissed another plaintiff’s claim for improper venue. We affirm in part as modified, reverse in part, and remand for further proceedings.

Here is a link to the slip opinion:

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

NOTE: Please see the SCOTN opinion that was released on May 1, 2020 concerning the further appeal of this case, to wit:

http://theduncanlawfirm.blogspot.com/2020/05/new-scotn-case-court-holds-that.html.

New Health Care Liability Action Opinion: Plaintiff's Case Dismissed Due to Counsel's Failure to Comply with Onerous Presuit Notice and Filing Requirements

The Tennessee Court of Appeals recently issued its opinion in Newman v. State, No. M2018-00948-COA-R3-CV (Tenn. Ct. App. Feb. 15, 2019).  The syllabus form the slip opinion reads as follows:

A patient in a state psychiatric facility was killed by another patient. The surviving spouse of the deceased patient brought suit against the State and was awarded damages for the wrongful death of her husband. Because the Tennessee Health Care Liability Act applies to the surviving spouse’s claim, and because she failed to comply with the Act’s requirements of pre-suit notice and good faith certification, we must reverse the decision of the Claims Commission.

Here is a link to the slip opinion:

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

NOTE: This case is a companion case to the one discussed in my Aug. 8, 2016 blog post:

http://theduncanlawfirm.blogspot.com/2016/08/new-health-care-liability-action.html

Both of these cases demonstrate the importance of complying with Tenn. Code Ann. sec. 29-26-121 and -122; they also demonstrate the wide net cast by Tenn. Code Ann. sec. 29-26-101.  Health care liability actions are incredibly complicated and byzantine, which can cause problems for lawyers who do not practice in this area of the law.  

A person died due to alleged negligence here and the case(s) should be allowed to proceed as any other case would without being dismissed due to procedural technicalities.  That would be fair.

New Health Care Liability Action Opinion: Plaintiff Allowed to Take a Nonsuit Despite the Fact That a Certificate of Good Faith Was Not Filed with the Complaint

The Tennessee Court of Appeals recently released its opinion in Renner v. Takoma Regional Hospital, No. E2018-00853-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2019).  The syllabus from the slip opinion reads as follows:

This is a health care liability action in which the defendants filed a motion to dismiss based upon the plaintiff’s failure to file a certificate of good faith with the complaint. The plaintiff then filed the required certificate. The defendants responded with motions for summary judgment with attached affidavits, attesting that a certificate of good faith was not attached to the original complaint. The plaintiff moved for voluntary dismissal. The court granted the plaintiff’s motion and filed an order of voluntary dismissal. The defendants appeal, claiming that Rule 41.01 of the Tennessee Rules of Civil Procedure prohibits the taking a voluntary nonsuit when a summary judgment motion is pending. We affirm.

(Footnote omitted.)

Here is a link to the slip opinion: 

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

NOTE: Some things to take with you after reading this opinion: first, if a motion for summary judgment is not pending, a plaintiff, in a Tennessee state court civil action, has a right to take a nonsuit (a.k.a. a voluntary dismissal without prejudice) without having to file a motion.  Tenn. R. Civ. P. 41.01.  Second, if a motion for summary judgment is pending, a plaintiff may still take a nonsuit with a court's permission.  Stewart v. Univ. of Tenn., 519 S.W.2d 591,593–94 (Tenn. 1974).  

However, if a nonsuit is taken against a governmental entity, suit cannot be refiled under the saving statue because it does not save the action.  That subject is for a post on another day.

Comparative Fault: Another New Opinion on Tennessee Code Annotated section 20-1-119

On Dec. 13, 2018, the Tennessee Court of Appeals issued its opinion in Nationwide Mutual Fire Insurance Company v. Memphis Light, Gas and Water, No. W2017-02551-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2018).  The syllabus from the slip opinion states as follows:

Plaintiff/Appellant Nationwide appeals the trial court’s grant of Defendant/Appellee’s motion to dismiss for failure to state a claim for which relief can be granted. Defendant’s motion was based on the argument that Plaintiff’s claim was time-barred pursuant to the Tennessee Governmental Tort Liability Act, and that Tennessee Code Annotated section 20-1-119 did not allow Plaintiff to timely add Defendant to the suit. Because we conclude that the trial court incorrectly applied Tennessee’s comparative fault statute, we reverse.

Here is a link to the slip opinion:

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

NOTE: This opinion does a good job of analyzing and explaining Tenn. Code Ann. sec. 20-1-119 (our state's comparative fault joinder statute).  I am a little surprised the trial court granted the dismissal as this issue was addressed a few years ago in Queen’s Tree Surgery v. Metropolitan Government of Nashville and Davidson County, No. M2003-00228-COA-R3-CV, 2003 WL 22768689 (Tenn. Ct. App. Nov. 24, 2003).  For what it is worth, I had a similar issue come up a little while back in Scales v. H.G. Hill Realty Co., which is the subject of my Jan. 31, 2018 post: http://theduncanlawfirm.blogspot.com/2018/01/new-tennessee-court-of-appeals-opinion.html.

Trial Court's Dismissal of Case Against Truck Stop Reversed on Appeal Because Trial Court Misapplied Standard of Review in Granting Truck Stop's Motion to Dismiss

On Nov. 5, 2018, the Tennessee Court of Appeals issued its opinion in Mershon v. HPT TA Properties Trust, No. M2018-00315-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2018).  The syllabus from the slip opinion reads as follows:

A motor vehicle accident on the roadway abutting a truck stop resulted in the death of the plaintiff’s husband. The driver of the vehicle turning left into the truck stop was using the entrance meant for semi-trailer trucks and had a limited view of oncoming traffic due to a hill that crested a short distance ahead. The plaintiff filed a negligence claim against the truck stop owners and operators, asserting they created a hazardous condition by failing to place visible signage on their property directing passenger vehicles to the appropriate entrance. The defendants moved to dismiss the complaint, contending they owed no duty to the traveling public because the collision occurred on a municipal road, not on their property. The trial court granted the motion to dismiss, and the plaintiff appealed. We reverse the trial court’s judgment, holding that a balancing test is required to determine whether the defendants owed a duty to the plaintiff’s husband and that dismissing the complaint is premature at this stage of the proceedings.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/mershon.melba_.opn_.pdf

NOTE: This is an excellent opinion that discusses the standard of review to be applied for motions to dismiss and when a duty of care arises.  This is a must-read opinion for attorneys who are interested in these two matters.  

Tennessee's Peer Review Statute Cannot Be Used to Suborn Perjury!

On Dec. 11, 2018, the Tennessee Court of Appeals issued its opinion in Reynolds v. Gray Medical Investors, LLC, No. E2017-02403-COA-R9-CV (Tenn. Ct. App. Dec. 11, 2018).  The syllabus from the slip opinion reads:

We granted the Tenn. R. App. P. 9 application for interlocutory appeal in this case to consider whether a healthcare provider can use Tenn. Code Ann. § 68-11-272, (“the peer review statute”), to claim privilege and exclude evidence that an employee was threatened with dismissal or retaliation if the employee refused to change their story or alter documents in order to cover up possible negligent conduct. We find and hold that the peer review privilege contained within Tenn. Code Ann. § 68-11-272 never was intended to allow a healthcare provider to attempt without fear of adverse consequences to force an employee to commit perjury. We, therefore, reverse the July 31, 2017 order of the Circuit Court for Washington County ... excluding the testimony of defendants’ employee pursuant to the peer review privilege contained in Tenn. Code Ann. § 68-11-272 and remand this case for further proceedings consistent with this Opinion.

Here is a link to the slip opinion: 

http://www.tncourts.gov/sites/default/files/mark_reynolds_as_administrator_of_the_estate_of_carol_ann_reynolds_v._gray_medical_investors_llc._et_al..pdf

NOTE: The defendant herein was attempting to use the peer review statute to suborn perjury; take a minute for that to sink in.  Perjury!  That is why the panel, in construing the peer review statute, wrote: "[I]n no known universe does suborning perjury fit within the General Assembly’s stated purpose of Tenn. Code Ann. § 68-11-272...."  Reynolds, No. E2017-02403-COA-R9-CV, slip op. at 7 (emphasis added).  I am glad the panel did what it did and shut this sort of "argument" down, because what was being attempted was simply beyond the pale.

New Laws Effective in Tennessee on Jan. 1, 2019

http://www.capitol.tn.gov/Archives/Joint/publications/01-01-2019_effective.pdf

Dismissal of Plaintiffs' Lawsuit Upheld on Appeal Due to Their Failure to Properly Substitute a Representative of Deceased Tortfeasor Within the Time Prescribed by Applicable Law

The Tennessee Court of Appeals issued its opinion today in Owens v. Muenzel, No. E2018-00199-COA-R3-CV (Tenn. Ct. App. Dec. 21, 20180.  The syllabus from the slip opinion reads as follows:

This appeal arises from an action for personal injuries incurred in a vehicle collision. The alleged tortfeasor died subsequent to the injury-causing accident. The plaintiffs, unaware of the death of the decedent, commenced this action and named him as a defendant. The plaintiffs also sued their uninsured/underinsured motorist insurance carrier. Upon learning of the death of the decedent, the plaintiffs moved for the trial court to appoint an administrator ad litem. The trial court eventually dismissed the matter in its entirety with prejudice upon finding, inter alia, that it did not possess subject matter jurisdiction to appoint an administrator ad litem and that the action was barred by the statute of limitations. We affirm.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/bill_e._owens_et_al._v._otto_muenzel_jr._et_al..pdf

NOTE: This opinion does a great job of outlining what must be done by a plaintiff to "revive" (although that term is not technically used now under current law, see generally Tenn. R. Civ. P. 25.01, https://www.tncourts.gov/rules/rules-civil-procedure/2501) a claim against a deceased tortfeaso so that claims asserted in a civil action do not become time-barred.  

Grant of Summary Judgment Overturned Because Trial Court Failed to Follow Rule 56.04, Tenn. R. Civ. P.

The Tennessee Court of Appeals recently released its opinion in Bertucelli v. Haehner, No. E2017-02068-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2018).  The syllabus from the slip opinion reads as follows:

Appellants appeal the trial court’s order granting Appellees’ motion for summary judgment “as to all remaining issues” asserted by Appellants in their complaint. In its order granting summary judgment, the trial court failed to state the legal grounds on which it granted summary judgment on the remaining claims as required by Tennessee Rule of Civil Procedure 56.04. In the absence of such grounds, this Court cannot make a meaningful review of the trial court’s decision. We, therefore, vacate the trial court’s final order and remand the case for further proceedings. Vacated and remanded.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/raymond_bertuccelli_et_al._v._carl_mark_haehner_et_al..pdf

Here is a link to Rule 56.04, Tenn. R. Civ. P.:

http://www.tncourts.gov/rules/rules-civil-procedure/5604

Plaintiff's Case Not Subject to Dismissal Due to Lost Return of Proof of Service of Process

The Tennessee Court of Appeals recently released its opinion in Hart v. Memphis Light Gas & Water Division, No. W2018-00254-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2018).  The syllabus from the slip opinion reads as follows:

The parties dispute whether, under Tennessee Code Annotated section 16-15-710, the applicable statute of limitations was tolled by service of process when no proof of service was returned to the court as required under Tennessee Code Annotated section 16-15- 902(a). Under the holding in Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013), we conclude, as did the trial court, that Appellee’s failure to make return to the court did not, ipso facto, constitute a lack of service of process such that the statute of limitations expired.  Affirmed and remanded.

Here is a link to the slip opinion: 

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

NOTE: In my opinion, I think this case hinges upon the fact that the appellant-defendant's attorney admitted in court that her client had been served with leading process.  Hart, No. W2018-00254-COA-R3-CV, slip op. at 2.  And, I think it mattered that Plaintiff's prior counsel's credible testimony evinced that he had made a proper return of proof of service to the clerk's office.  Id.

This opinion also cites one of my cases, Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013), just like the one in my prior blog post.  Always nice to be part of a solid opinion that is relied upon for years to come.  

Trial Court's Dismissal of Civil Action Upheld on Appeal Because Plaintiff Failed to Have Leading Process Reissued and Properly Served upon a Defendant

The Tennessee Court of Appeals recently issued its opinion in Middleton v. City of Millington, No. W2018-00338-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2018).  The syllabus from the slip opinion reads as follows:

The trial court granted summary judgment to defendant city on the basis of the expiration of the statute of limitations. Specifically, the trial court ruled that plaintiff’s complaint was ineffective to toll the statute of limitations where service of process on the city clerk did not comply with Rule 4.04(8) of the Tennessee Rules of Civil Procedure and process was not reissued. Discerning no error, we affirm.

Here is a link to the slip opinion:

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

NOTE: This opinion cites one of my cases, Fair v. Cochran, 418 S.W.3d 542, 544 (Tenn. 2013).  Middleton, W2018-00338-COA-R3-CV, slip op. at 3.  Both this opinion and Fair are must-reads if you practice on the civil side in Tennessee state courts because they stress the point that while filing a civil action within the applicable statute of limitations is vitally important, the service of leading process is also vitally important to prevent claims in a civil action from becoming time-barred.  

What can a plaintiff do when insufficiency of service of process is pleaded as an affirmative defense like what was done in this case?  Take a look at Rule 4.07 of the Tennessee Rules of Civil Procedure, which can be viewed at this link: http://www.tncourts.gov/rules/rules-civil-procedure/407.

Rule 4.07 has a cost-shifting provision that helps ensure that a defendant is properly before a Tennessee state court (much like the similar federal provision).  It has some teeth.

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

The Tennessee Court of Appeals just released its opinion in Parks v. Walker, No. E2017-01603-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2018).  The syllabus from the majority opinion reads as follows:

This is a health care liability action. Plaintiff gave written pre-suit notice of her claim to potential defendants. See Tenn. Code Ann. § 29-26-121(c) (2018). She then filed her complaint. Defendants filed motions to dismiss. After a hearing, the trial court held that plaintiff failed to substantially comply with the requirements of the notice statute by failing to provide a HIPAA-compliant medical authorization, pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E). It entered an order granting defendants’ motions to dismiss. Plaintiff appeals. We affirm.

Here is a link to the majority opinion:

http://www.tncourts.gov/sites/default/files/parks_vs._walker_coa_majority_opinion.pdf

Judge Swiney authored a dissent, which can be found here:

http://www.tncourts.gov/sites/default/files/jennifer_parks_v._walker_dissenting_coa_separate_opinion.pdf

NOTE: Respectfully, I think the majority opinion is in error.  Again it confounds me that the courts of 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 because because doing that is part of a covered entity's "health care operations" as defined by 45 C.F.R. sections 164.501, -502(b), -.514(d).

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. 

Again, I think the dissent is in error for the reasons stated above.  

Here are some helpful links on this subject:

https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/permitted-uses/index.html

http://www.hhs.gov/hipaa/for-professionals/faq/705/may-a-covered-entity-in-a-legal-proceeding-use-protected-health-information/index.html.  

https://www.hhs.gov/hipaa/for-professionals/faq/704/may-a-covered-entity-use-protected-health-information-for-litigation/index.html

https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/disclosures-treatment-payment-health-care-operations/index.html

New Comparative Fault Opinion: Trial Court's Decision to Allow Fault to Be Allocated to an Agritourism Nonparty Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Green v. St. George's Episcopal Church, No. M2017-00413-COA-R3-CV (Tenn. Ct. App. Nov. 16, 2018).  The syllabus from the slip opinion reads as follows:

This appeal arises from a jury verdict in a personal injury action. The defendant alleged the comparative fault of a nonparty who was potentially immune from liability under Tennessee’s agritourism statute. See Tenn. Code Ann. §§ 43-39-101 to -103 (Supp. 2018). Before trial, the defendant asked the court to exclude all evidence and argument before the jury regarding statutory immunity as irrelevant and prejudicial. The court excluded argument and evidence of immunity but allowed the parties to present evidence on whether the nonparty had complied with the statute. At the conclusion of the trial, the court permitted the jury to apportion a percentage of fault to the nonparty without considering the nonparty’s compliance with the agritourism statute. On appeal, the plaintiff argues that the trial court erred in allowing the jury to allocate fault to the nonparty because the agritourism statute provided immunity from fault as well as liability. We conclude that nothing in the agritourism statute precludes the allocation of fault to a nonparty agritourism professional in a negligence action. So we affirm.

Here is a link to the slip opinion: 

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

NOTE: This opinion does a good job of explaining Tennessee's system of modified comparative fault and the allocation of fault under as affected by our agritourism statutes, which grant immunity under certain circumstances.  

Defense Verdict in Second Trial Upheld on Appeal

Yesterday the Tennessee Court of Appeals issued its opinion in Alumbaugh v. Wackenhut Corp., No. M2016-01530-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2018).  The syllabus from the slip opinion reads as follows:

After the plaintiff’s father was killed by an armed security guard, she filed a wrongful death action against the security guard’s employer. The complaint alleged both vicarious and direct liability and sought an award of compensatory and punitive damages. The employer maintained that the guard acted in self-defense. After the first trial, the jury rendered a verdict in favor of the plaintiff. But the trial court ordered a new trial based on errors in the calculation of damages. A second jury verdict apportioned the greater proportion of fault to the decedent, resulting in a defense judgment. On appeal, the plaintiff contends that the trial court made numerous errors in the conduct of the second trial. After a thorough review, we conclude that the trial court did not commit reversible error. So we affirm.

Here is a link to the slip opinion: 

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

NOTE: This opinion offers an interesting analysis of rebuttal evidence, directed verdicts, punitive damages (pre-2011), negligent supervision, amendments to conform to the evidence, and missing evidence and spoliation of evidence.  

New Health Care Liability Action Opinion: Trial Court's Denial of Motions to Dismiss Based upon a Finding of Extraordinary Cause Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Reed v. West Tennessee Healthcare, Inc., No. W2018-00227-COA-R9-CV (Tenn. Ct. App. Oct. 8, 2018).  Here is the syllabus from the slip opinion:

We granted this Rule 9 interlocutory appeal in this healthcare liabil[i]ty action to consider whether termination of representation by plaintiff’s prior legal counsel a few weeks before the expiration of the statute of limitations in this healthcare liability action constitutes sufficient extraordinary cause to excuse (1) plaintiff’s failure to wait at least sixty days to file the complaint after providing pre-suit notice as required by Tenn. Code Ann. § 29-26-121; and, (2) plaintiff’s failure to file a Certificate of Good Faith with the complaint as required by Tenn. Code Ann. § 29-26-122. We find and hold that the Trial Court did not err in finding and holding that termination of representation by plaintiff’s prior legal counsel a few weeks before the expiration of the applicable statute of limitations does constitute the type of extraordinary cause sufficient to excuse plaintiff’s failure to comply with Tenn. Code Ann. §§ 29-26-121 and 29-26-122. We, therefore, affirm the Trial Court’s orders denying the motions to dismiss.

Here is a link to the slip opinion:

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

NOTE: At times, "extraordinary cause" is required in some instances under our medical negligence law in Tennessee.  However, that phrase is not defined by statute, which is why this opinion helps shed some light on what it actually means.  As such, this is a must-read opinion for any lawyer who handles health care liability (f.k.a. medical malpractice) cases in Tenn.  

New Health Care Liability Opinion: Trial's Court's Grant of Summary Judgment Reversed on Appeal Due to the Application of Res Ipsa Loquitur

The Tennessee Court of Appeals recently released its opinion in Anderson v. Wang, No. M2018-00184-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2018).  The syllabus from the slip opinion reads as follows:

This is a health care liability case. The trial court granted Appellees’ motion for summary judgment on Appellant’s res ipsa loquitur claim under Tennessee Code Annotated section 29-26-115(c). Appellant appeals. Because Appellant presented sufficient evidence at the summary judgment stage to create a dispute of fact, we reverse the trial court’s grant of summary judgment.

Here is a link to the slip opinion:

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

NOTE: I'm glad my Deuel case helped in this one.  Anderson v. Wang, No. M2018-00184-COA-R3-CV, slip op. at 6–7 (Tenn. Ct. App. Oct. 5, 2018) (citing Deuel v. Surgical Clinic, PLLC,  No. M2009-01551-COA-R3-CV, 2010 WL 3237297, at *10 (Tenn. Ct. App. Aug. 16, 2010)).  In my humble opinion, the Tennessee Court of Appeals got this one right.  

New Tennessee Court of Appeals' Opinion: Trial Court Reversed Due to Erroneous Ruling as to the Admission of Medical Records

The Tennessee Court of Appeals recently issued its opinion in Goodwin v. Hanebis, No. M2017-01689-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2018).  Here is the syllabus from the slip opinion:

This is an appeal from a judgment entered on a jury verdict. The case arises from a motor vehicle accident. The jury returned a verdict in favor of Appellee, and the trial court entered a final judgment for $68,995.02. Because the trial court erred in excluding relevant medical records, we reverse the judgment and remand for a new jury trial.

Here is a link to the slip opinion:

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

NOTE: This opinion is a great reminder of Tenn. Code Ann. sec. 24-7-122 and its effects upon evidence at trial relating to the admission of medical records.  This is a must-read opinion for any trial lawyer who practices in Tennessee.  

New Health Care Liability Action Opinion: Trial Court's Grant of Motion to Dismiss Upheld on Appeal (Due to a Misunderstanding of HIPAA?)

The Tennessee Court of Appeals has issued its opinion in Buckman ex rel. Buckman v. Mountain States Health Alliance, No. E2017-01766-COA-R3-CV(Tenn. Ct. App. Jul. 26, 2018).  Here is the syllabus from the slip opinion:

This is a healthcare liability case. Before filing the complaint, the plaintiff gave written notice to the potential defendants of her healthcare liability claim against them. Tennessee Code Annotated section 29-26-121(a)(2)(E) requires that a plaintiff’s pre-suit notice include a HIPAA compliant medical authorization permitting the healthcare provider receiving the notice to obtain complete medical records from every other provider that is being sent a notice. After the plaintiff filed suit, the defendants moved to dismiss the complaint based on noncompliance with the statute, as the defendants alleged that the HIPAA authorization provided by the plaintiff had already expired when they received it. The trial court granted the defendants’ motion to dismiss, concluding that the HIPAA authorization was invalid due to the fact that the listed expiration date had already passed when the authorization was provided to the defendants with pre-suit notice. The plaintiff appeals. We affirm and remand for further proceedings.

Here is a link to that opinion:

http://www.tncourts.gov/sites/default/files/konah_evangeline_buckman_v._mountain_states_health_alliance.pdf

Here is a link to the separate concurring opinion by Judge Swiney (which is a must-read):

http://www.tncourts.gov/sites/default/files/konah_evangeline_buckman_v._mountain_states_health_alliance_et_al._-_concurring_opinion.pdf

NOTE: I think this opinion is in error.  Again it confounds me that the courts of 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 because because doing that is part of a covered entity's "health care operations" as defined by 45 C.F.R. sections 164.501, -502(b), -.514(d).

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. 

Here are some helpful links on this subject:

https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/permitted-uses/index.html

http://www.hhs.gov/hipaa/for-professionals/faq/705/may-a-covered-entity-in-a-legal-proceeding-use-protected-health-information/index.html.  

https://www.hhs.gov/hipaa/for-professionals/faq/704/may-a-covered-entity-use-protected-health-information-for-litigation/index.html

https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/disclosures-treatment-payment-health-care-operations/index.html

New Health Care Liability Action Opinion: Trial Court's Grant of Summary Judgment as to Causation Reversed on Appeal

The Tennessee Court of Appeals recently issued its opinion in Harmon v. Hickman County Health Services, Inc., No. M2016-02374-COA-R3-CV (Jun. 29, 2018).  Here is a link the syllabus from that opinion:

This suit was brought by the children of a woman who died while incarcerated at Hickman County Jail. Defendant is a contractor of the jail that provides medical services at the jail; a nurse in Defendant’s employment treated the decedent for symptoms of drug and alcohol withdrawal. She passed away shortly after. The children brought this suit under the Health Care Liability Act claiming negligence and negligent hiring, retention, and supervision. In due course, Defendant moved for summary judgment, arguing, among other things, that there was not a genuine issue of material fact as to causation and it was entitled to judgment as a matter of law on that element of Plaintiffs’ claim; the trial court granted Defendant’s motion and subsequently denied a motion to revise, filed by the Plaintiffs. This appeal followed.

Here is a link to the majority slip opinion: 

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

Here is a link to Judge McBrayer's dissent:

http://www.tncourts.gov/sites/default/files/harmon.bonnie.dissentingopn.pdf

NOTE: This decision can be confusing in my opinion as to the difference between a motion to revise a nonfinal, interlocutory order under Rule 54, Tenn. R. Civ. P., and a motion to alter or amend a final judgment under Rule 59, Tenn. R. Civ. P.  (A perusal of this blog can help explain the difference between those two motions.)

Respectfully, I think the majority opinion got this one right; footnote 13 in that opinion is worth reading—and memorizing—in my humble opinion.  This policy of resolving disputes upon their merits and not upon procedural technicalities is one that Justice (of the United States Supreme Court) Oliver Wendell Holmes, Jr. wrote about in The Common Law; that is because it avoids vigilantism (a "blood feud") from erupting in society.  And, it helps preserve the people's right to trial by jury, which "remains inviolate" in Tennessee (as to questions of fact, like agency and the amount of damages).  

New Health Care Liability Action Opinion: Trial Court's Denial of Defendants' Motions to Dismiss Overturned on Appeal

The Tennessee Court of Appeals issued its opinion today in Smith v. Wellmont Health Systems, No. E2017-00850-COA-R9-CV (Tenn. Ct. App. Jul. 9, 2018).  The syllabus from the opinion reads as follows:

This interlocutory appeal involves a health care liability action. Plaintiff gave potential defendants written notice of his malpractice claim. See Tenn. Code Ann. § 29-26-121(c). Plaintiff then filed his complaint. In doing so, he relied upon a 120-day extension of the one year statute of limitations as provided for in § 29-26-121(c). Each defendant moved to dismiss the plaintiff’s complaint. By an order entered April 1, 2015, the trial court granted the joint motion to dismiss of three of the defendants. The court’s order concluded that plaintiff’s complaint was time-barred. Plaintiff did not appeal the court’s judgment and, with the passage of time, it became final. Meanwhile, the motions to dismiss of the other defendants, all of which were essentially based upon the same ground as that of the joint motion of the dismissed defendants, were awaiting resolution by the trial court. Before this could happen, however, the plaintiff voluntarily dismissed his complaint. Nine months later, plaintiff sent a new pre-suit notice. Four months after that, plaintiff filed a second health care liability action against the same defendants, including those dismissed by the trial court in its April 1, 2015 order. All defendants again moved to dismiss the complaint. The trial court denied the motions. Later, the trial court decided that its April 1, 2015 dismissal order was incorrect. It concluded that plaintiff’s first complaint was not time-barred because, according to the court, plaintiff provided proper pre-suit notice. 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 did likewise. We now reverse the judgment of the trial court denying defendants’ motions to dismiss. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/ernest_smith_v._wellmont_health_system_et_al..pdf

NOTE: This opinion was consolidated for purpose of oral argument with Roberts v. Wellmont Health Systems, No. E2017-00845-COA-R9-CV (Tenn. Ct. App. Jul. 5, 2018), which is the subject of my July 6, 2018 blog post, to wit: http://theduncanlawfirm.blogspot.com/2018/07/new-health-care-liability-action_6.html.

New Health Care Liability Action Opinion: Despite Being Presented as a Declaratory Judgment Action, Trial Court Found the Action to Be a HCLA, Dismissed It as Being Time-Barred, and Dismissal Was Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Estate of Myers v. Questall, No. M2017-01954-COA-R3-CV (Tenn. Ct. App. Jul. 6, 2018).  The summary from the opinion reads:

Appellants appeal the trial court’s grant of summary judgment in favor of Appellee, medical doctor. The trial court found that Appellant’s petition for declaratory judgment sounded in health care liability and was barred by the statute of limitations. Tenn. Code Ann. § 29-26-116(a)(1). Discerning no error, we affirm and remand.

Here is a link to the slip opinion:

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

NOTE: Health care liability actions, formerly known as medical malpractice cases, are defined by statute in Tenn. Code Ann. sec. 29-26-101(a)(1).  And that definition is very broad, which this opinion points out.   While lawyers are required to be creative at times to get a case in front of a jury (count me among the "creative" types), this case demonstrates that health care liability actions are set up in a way to prohibit that type of creativity, which prevents an injured person from obtaining a remedy at law a lot of times.  

New Health Care Liability Action Opinion: Trial Court's Denial of Motions to Dismiss Reversed on Appeal; Claim Determined to Be Time-barred Due to Ineffective Presuit Notice (Defective (Partially Blank) HIPAA Auths.)

The Tennessee Court of Appeals recently issued its opinion in Roberts v. Wellmont Health Systems, No. E2017-00845-COA-R9-CV (Tenn. Ct. App. Jul. 5, 2018).  The syllabus from the slip opinion reads as follows:

This interlocutory appeal involves a health care liability action. Plaintiff gave written presuit notice of her claim to all potential defendants. See Tenn. Code Ann. § 29-26-121(c) (Supp. 2013). Later, she filed a complaint against the same defendants. In doing so, she relied upon the 120-day extension of the one-year statute of limitation as provided for in Tenn. Code Ann. § 29-26-121(c). Each defendant filed a motion to dismiss. Prior to a hearing on those motions, plaintiff voluntarily dismissed her complaint. Plaintiff subsequently served each defendant with new pre-suit notice and later re-filed her complaint in reliance on the one-year savings statute, Tenn. Code Ann. § 28-1-105, and the 120-day extension pursuant to § 29-26-121(c). Defendants moved to dismiss the second complaint. The trial court denied defendants’ motions. In doing so, the court took “judicial notice” of the practice of some attorneys in the Second Judicial District of providing their adversaries with “blank” authorizations. The court ultimately held that the medical authorizations in the first pre-suit notice were not only HIPAA compliant, but “overly” so. The trial court concluded that, because the first pre-suit notice was, according to the court, valid, the first-filed complaint was timely filed. Upon the request of the defendants, the court granted them permission to pursue an interlocutory appeal pursuant to the provisions of Tenn. R. App. P. 9. We likewise granted defendants permission to file a Rule 9 discretionary appeal. We reverse the judgment of the trial court and dismiss the plaintiff’s suit with full prejudice.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/desiree_dawn_roberts_et_al._v._wellmont_health.pdf

NOTE: As noted in this opinion, a partially blank HIPAA-compliant authorization is not HIPAA-effective because they do not contain the core elements required of medical records authorizations.  However, are HIPAA-compliant authorizations even needed in such instances, or, is the sharing of a patient's protected health information allowed under HIPAA's "health care operations" provisions?  See the note in my prior blog post for the answer.

New Health Care Liability Action Opinion: Trial Court's Dismissal of Action as Time-barred Overturned on Appeal

The Tennessee Court of Appeals recently issued its decision in Martin v. Rolling Hills Hospital, LLC, No. M2016-02214-COA-R3-CV (Tenn. Ct. App. Jun. 22, 2018).  The syllabus from the opinion reads:

This is an appeal in a health care liability action from the dismissal of the action for Plaintiffs’ failure to comply with Tennessee Code Annotated section 29-26-121(a)(2)(E) when they failed to provide the Defendants with HIPAA compliant authorizations for release of medical records. The trial court held that, as a result of the failure, Plaintiffs were not entitled to an extension of the one-year statute of limitations for bringing suit and the action was barred. Plaintiffs appeal. Upon our review, we find that Plaintiffs substantially complied with the requirements of section 29-26-121 and that the Defendants have not shown that they were prejudiced by the deficiencies in the authorizations; accordingly, we reverse the decision of the trial court and remand the case for further proceedings.

Here is a link to the slip opinion: 

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

NOTE: This is a must-read opinion because it delves into the intricacies of presuit notice as contemplated by Tenn. Code Ann. sec. 29-26-121, and its nuances.

Also, it confounds me that the courts of 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 because because doing that is part of a covered entity's "health care operations" as defined by 45 C.F.R. sections 164.501, -502(b), -.514(d).

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 contrary to HIPAA. 

Here are some helpful links on this subject:

https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/permitted-uses/index.html

http://www.hhs.gov/hipaa/for-professionals/faq/705/may-a-covered-entity-in-a-legal-proceeding-use-protected-health-information/index.html.  

https://www.hhs.gov/hipaa/for-professionals/faq/704/may-a-covered-entity-use-protected-health-information-for-litigation/index.html

https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/disclosures-treatment-payment-health-care-operations/index.html