Summary Judgment for Defense Reversed on Appeal Because Trial Court Did Not Follow the Proper Procedure in Granting Summary Judgment

The Tennessee Court of Appeals has released its decision in Auto Owners Insurance v. Thompson, No. W2021-00268-COA-R3-CV (Tenn. Ct. App. Apr. 21, 2022). The syllabus from the slip opinion reads:

The plaintiff challenges the trial court’s order granting the defendant’s Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss as a Tennessee Rule of Civil Procedure 56 motion for summary judgment and dismissing the plaintiff’s cause of action with prejudice. The trial court granted the defendant’s motion both as a Rule 12.02(6) motion to dismiss and as a Rule 56 motion for summary judgment despite stating in its order that it had not excluded extraneous evidence presented by the defendant and that it would treat the motion as one for summary judgment. We conclude that the trial court erred by granting the defendant’s motion as a Rule 12.02(6) motion to dismiss after having considered extraneous evidence and that the trial court erred by failing to include in its order the legal grounds for its decision to grant the defendant’s motion as a Rule 56 motion for summary judgment. Inasmuch as the plaintiff failed to file a proposed amended complaint in the trial court, we are unable to address the issue raised concerning the motion to amend the complaint. We vacate the trial court’s order and remand for further proceedings consistent with this opinion and Rule 56.

Here is a link to the opinion:

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

NOTE: There is a lot going on in this opinion but the gist of it is that the trial court converted the defendant's motion to dismiss to one for summary judgment and then it did not comply with the Tennessee Rules of Civil Procedure in granting summary judgment. 

This opinion does a good job of summing up the current standard or review applicable to motions for summary judgment in a Tennessee state court. Accordingly, this is a must-read case in my opinion.

As an aside, the plaintiff could have amended its complaint as a matter of right before an answer was filed and while the motion to dismiss was pending because a motion to dismiss is not a responsive pleading that would prevent amendment as of right under Rule 15 of the Tennessee Rules of Civil Procedure. (It does not appear that the plaintiff in this case was aware of that fact.) Adams v. Carter Cnty. Mem'l Hosp., 548 S.W.2d 307, 309 (Tenn. 1977) (noting that a motion is not a responsive pleading that would prevent an amended complaint from being filed as a matter of right under Rule 15); Vincent v. CNA Ins. Co., No. M2001-02213-COA-R9-CV, 2002 Tenn. App. LEXIS 907, 2002 WL 31863290, at *5 n.4 (Tenn. Ct. App. Dec. 23, 2002), (same).

Trial Court's Denial of Motion Seeking Recusal Reversed on Appeal Due to Judge's Internet Activity

The Tennessee Court of Appeals has released its opinion in Clay County v. Purdue Pharma, L.P., No. E2022-00349-COA-T10B-CV (Tenn. Ct. App. Apr. 20, 2022). The syllabus from the slip opinion reads:

A Tennessee Supreme Court Rule 10B petition for recusal appeal was filed in this Court following the denial of a motion that sought the disqualification of the trial court judge. As explained herein, because we conclude that concerns contributing to an appearance of partiality necessitate the trial judge’s recusal, we reverse. In addition, we vacate an order on substantive matters that was signed by the trial judge while the recusal motion was pending.

Here is a link to the 

opinion: https://www.tncourts.gov/sites/default/files/clay_county_et_al._v._purdue_pharma_l.p.____opinion.pdf.

NOTE: This is the first opinion I have ever posted on a recusal. It is worth reading in my humble opinion because it touches on the importance of fair trials and the appearance of impropriety in judicial proceedings. 

New Tennessee Health Care Liability Action Opinion: The Denial of the State's Motion to Dismiss Reversed on Appeal Due to a Defective Certificate of Good Faith Being Filed to Support the Claim

The Tennessee Court of Appeals has released its opinion in Gilbert v. State, E2021-00881-COA-R9-CV (Tenn. Ct. App. Apr. 14. 2022). The syllabus from the slip opinion reads: 

This appeal relates to a healthcare liability action, The Claims Commission denied the State’s motion to dismiss based upon the claimants’ failure to satisfy the requirements of Tennessee Code Annotated section 29-26-122 [(which concerns certificates of good faith that must be filed to support claims where expert testimony is required)]. We reverse the trial court and remand for dismissal.

NOTE: Look for the claimants to ask the Tennessee Supreme Court to take a look at this one. I will keep you posted.  

Trial Court's Denial of Defendants' Motion to Compel Arbitration Upheld on Appeal Because Family Member Who Signed Arbitration Agreement Was Not Authorized to Do So

The Tennessee Court of Appeals has issued its opinion in Williams v. Smyrna Residential, LLC, No. M2021-00927-COA-R3-CV (Tenn. Ct. App. Apr. 8, 2022). The syllabus form the slip opinion reads:

This appeal concerns the enforceability of an arbitration agreement in a wrongful death lawsuit. James Williams [], individually as next of kin and on behalf of the wrongful death beneficiaries of Granville Earl Williams, Jr., deceased [], sued Smyrna Residential, LLC d/b/a Azalea Court and Americare Systems, Inc. [] n the Circuit Court for Rutherford County []. Decedent was a resident of Azalea Court, an assisted living facility. Plaintiff alleged his father died because of Defendants’ negligence. Defendants filed a motion to compel arbitration, citing an arbitration agreement [] entered into by Decedent’s daughter and durable power of attorney Karen Sams [] on behalf of Decedent when the latter was admitted to Azalea Court. Notably, the durable power of attorney [] did not cover healthcare decision-making. The Trial Court held that Sams lacked authority to enter into the Agreement and that, in any event, the wrongful death beneficiaries would not be bound by the Agreement even if it were enforceable. Defendants appeal. We affirm. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/james.williams.opn_.pdf.

NOTE: The Tennessee Supreme Court has reversed this opinion. That opinion from SCOTN can be found at this link, to wit: http://theduncanlawfirm.blogspot.com/2024/04/new-scotn-case-trial-courts-decision.html.

New Health Care Liability Action: Denial of Summary Judgment to Defense Reversed on Appeal Because Certificate of Good Faith Was Not Properly Presented

The Tennessee Court of Appeals has released its opinion in Estate of Blankenship v. Bradley Healthcare and Rehabilitation Center,  No. E2021-00714-COA-R10-CV (Tenn. Ct. App. Mar. 30, 2022). The syllabus reads:

In this health[]care liability action, a decedent’s estate and her son sued a nursing home and the county that owned the nursing home, alleging that the nursing home was negligent in the care of the decedent. The nursing home and the county filed a motion to dismiss [(which was converted to a motion for summary judgment because matters outside the pleadings were considered)] the case for failure to comply with the certificate of good faith filing requirement in Tenn. Code Ann. § 29-26-122. The trial court denied the motion, finding that an exhibit attached to the complaint satisfied the certificate of good faith filing requirement. Because the exhibit did not contain all of the information required for a certificate of good faith, we reverse and remand.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/estate_of_beulah_blankenship_et_al._v._bradley_healthcare_and_rehabilitation_center_et_al..pdf .

NOTE: This is a must-read decision for anyone who is involved with medical malpractice cases (n/k/a health care liability actions) governed by Tennessee substantive law because it offers up a good discussions of certificates of good faith that are required under Tennessee Code Annotated section 29-26-122 in these types of cases.

Summary Judgment for Defense Reversed on Appeal Because Trial Court Failed to Support and Explain Its Reasoning in Its Order

The Tennessee Court of Appeals has released its opinion in Smith v. Walker, No. W2021-00241-COA-R3-CV (Tenn. Ct. App. Mar. 22, 2022). The syllabus from the slip opinion reads:

Appellants purchased a home from Appellee that was contaminated with mold. Appellants therefore filed suit against Appellee. The trial court granted summary judgment in Appellee’s favor. Because the trial court’s order does not comply with Rule 56.04 of the Tennessee Rules of Civil Procedure or Smith v. UHS of Lakeside, Inc., we vacate and remand.

Here is a link to the opinion:

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

NOTE: While this is a memorandum opinion and cannot be cited by others as authority, Smith v. Walker, No. W2021-00241-COA-R3-CV, slip op. at 1, n.1 (Tenn. Ct. App. Mar. 22, 2022) (citing Tenn. Ct. App. R. 10), the authorities therein can be cited by others. Further, this opinion (and the authorities it cites) is instructive and a must read for anyone who is involved with a motion for summary judgment in a Tennessee state court.  

Constitutionality of a Metro. Davidson County (Tenn.) Ordinance and the Presumption Thereunder Upheld on Appeal

The Tennessee Court of Appeals has upheld the presumption under Section 12.68.180 of The Code of The Metropolitan Government of Nashville and Davidson County, Tenn. in Metro. Gove't of Nashville and Davidson County, Tenn. v. Gelle, No. M2020-01360-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2022). The syllabus from the majority slip opinion reads:

The defendant appeals the trial court’s judgment finding that he violated a reckless driving city ordinance, Metropolitan Code . . . § 12.68.180, when he drove 65 miles per hour in a 45-mile-per-hour zone. During trial, Metropolitan Government of Nashville & Davidson County, Tennessee [] presented evidence regarding the defendant’s speed to support its allegation that the defendant was driving recklessly. Following proof of the defendant’s excessive speed, the trial court found that the defendant had failed to rebut the presumption created by ordinance that he was driving in such a way as to demonstrate “a wilful and wanton disregard for the safety of persons or property.” The defendant challenges the constitutionality of such ordinance, which provides a rebuttable presumption that the defendant was driving recklessly when driving at least fifteen miles per hour over the speed limit. However, the defendant’s issues concerning constitutionality of the ordinance were not properly raised or decided by the trial court, and upon our determination that the ordinance is not facially unconstitutional, we hold that the defendant has waived his issues regarding the constitutionality of the ordinance. Upon our review of the record, we affirm the trial court’s judgment that the defendant violated Metropolitan Code . . . § 12.68.180.

Here is a link to the majority slip opinion: 

https://www.tncourts.gov/sites/default/files/abdiqani.gelle_.opn_.pdf.

Here is a link to Judge McClarty's dissent: 

https://www.tncourts.gov/sites/default/files/abdiqani.gelle_.separateopn.pdf.

Here's a link the Metro Code: 

https://library.municode.com/tn/metro_government_of_nashville_and_davidson_county/codes/code_of_ordinances.

NOTE: Judge McClarty makes some very good points here in the dissent.  Because of that, I would not be surprised if the Tennessee Supreme Court doesn't take this one up on appeal.

Trial Court's Grant of Motion to Dismiss Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Mack v. Cable Equipment Services, Inc., No. W2020-00862-COA-R3-CV (Feb. 9, 2022). The syllabus from the slip opinion reads:

This appeal arises from litigation involving an incident that occurred in 2010. Suit was originally filed in 2011. After a voluntary nonsuit, the complaint was refiled in 2014. Years later, the plaintiffs moved to amend their complaint to add additional defendants. The trial court granted leave to amend but reserved ruling on whether the claims against the new parties would relate back to the date of the original complaint under the provisions of Tennessee Rule of Civil Procedure 15.03. The amended complaint was filed in 2018. The newly added defendants moved to dismiss on the basis that none of the elements required for relation back under Rule 15.03 had been shown to exist. After a hearing, the trial judge agreed and provided an oral ruling in favor of the defendants. Before a written order was entered to that effect, the plaintiffs filed a notice of voluntary nonsuit without prejudice. The trial court subsequently entered an order granting the defendants’ motion to dismiss. The trial court found that at that point in the proceeding, the allowance of a nonsuit was discretionary, and permitting a nonsuit after its oral ruling would have been unfairly prejudicial to the defendants. As such, it granted the motion to dismiss for failure to state a claim on the basis that the claims were barred by the statute of limitations and did not relate back to the filing of the original or refiled complaint. The plaintiffs filed motions to alter or amend or set aside the order, arguing that the trial court lost jurisdiction at the moment the plaintiffs filed their notice of nonsuit, and therefore, the order of dismissal was void. They also argued that the trial court impermissibly relied on facts that were not found within the amended complaint in resolving the motion to dismiss. The trial court denied both motions. The plaintiffs appeal. We affirm.

Here is a link to the opinion: 

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

NOTE:  There is a lot going on in this opinion. It deals with whether an amendment adding defendants relates back for purposes of defeating a defense based on the expiration of the statute of limitations, how motions to dismiss should be handled by trial courts, etc. This opinion also addresses the waiver of issues on appeal due to an appellant's failure to properly present them on appeal as required by the Tennessee Rules of Appellate Procedure (the acronym being "T.R.A.P." for a reason). This is a must-read opinion for any lawyer who practices in Tennessee state courts.  

Judgment of Dismissal in a Health Care Liability Action in Tennessee Claims Commission Upheld on Appeal

The Tennessee Court of Appeals has released its decision in Cavaliere v. State, No. M2021-00038-COA-R3-CV (Tenn. Ct. App. Feb. 3, 2022). The slip opinion reads:

This appeal arises from proceedings in the Tennessee Claims Commission and follows a trial concerning care received by the decedent while at the Tennessee State Veterans Home. The Claims Commission ultimately found that the claimants had failed to establish a health care liability claim and therefore dismissed the case. For the reasons stated herein, we affirm the judgment of dismissal.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/wanda.cavaliere.opn_.pdf.

NOTE: This decision emphasizes just how difficult health care liability actions (f/k/a/ medical malpractice cases) are in Tennessee—especially in the Claims Commission. In addition to the normal issues that arise in these types of cases, this one involves waiver of issues on appeal due to counsel's failure to follow the appellate rules. This decision also offers a good explanation of the standard of review on appeal from Claims Commission cases. This one is worth reading in my humble opinion.  

Summary Judgment for One Defendant Reversed on Appeal Because a Duty Existed Due to Pigs Running at Large

The Tennessee Court of Appeals has released its decision in Cook v. Fuqua, No. M2021-00107-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2022). The syllabus from the slip opinion reads:

A woman sued a homeowner for negligence due to injuries she sustained when a potbellied pig maintained on the homeowner’s property jumped on her and knocked her off of the homeowner’s front porch. The homeowner filed a motion for summary judgment arguing that he did not owe the woman a duty of reasonable care because she was a trespasser. The trial court granted the motion for summary judgment, and the woman appealed. Determining that genuine issues of material fact still exist because the homeowner failed to establish that the woman was a trespasser, we reverse the trial court’s judgment.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/eltricia.cook_.opn_.pdf. 

NOTE: This is a very good read for anyone interested in the elements of negligence and summary judgment practice.  

Summary Judgment for the Defense Upheld on Appeal to Property Owner After Minor Was Injured by Felled Power Lines on the Property

The Tennessee Court of Appeals has released its opinion in Kelly v. Debre Keranio Medhanialem Ethiopian Orthodox Tewahedo Church, No. M2019-02238-COA-R3-CV (Tenn. Ct. App. Jan. 24, 2022). The syllabus form the slip opinion reads:

Parents sued a property owner after their child, while playing on the property, received an electrical shock from a downed [4,000-volt] power line. The property owner moved for summary judgment. Based on the undisputed facts, the trial court determined that the property owner was essentially a landlord and had neither actual nor constructive knowledge of the downed power line. So the court dismissed the parents’ claims against the property owner. On appeal, the parents argue that the property owner was a co-possessor of the portion of the property where the child was injured rather than a landlord. And, as a result, they contend that the property owner owed a duty to inspect the property to discover dangerous conditions such as the downed power line. At the very least, they contend that the question of constructive notice was for the jury. We affirm the grant of summary judgment. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/roy.kelly_._opn.pdf,

NOTE: This opinion offers a good analysis of premises liability claims and summary judgment practice under Tennessee substantive law. (While I am not familiar with all the facts of this case, I wonder if a theory of recovery based on inherently dangerous activity (coupled with in loco parentis) should have been pursued, too; I am just not sure.) 

Trial Court's Dismissal of Personal Injury Action as Time-barred (Because It Purportedly Did Not Fit Within the One-year Extension under Tenn. Code Ann. sec. 28-3-104(a)(2)) Overturned on Appeal Because the Court Below Failed to Support Its Ruling in a Way that Facilitated Appellate Review

The Tennessee Court of Appeals has issued its opinion in Peterson v. Carey, No. E2021-00430-COA-R3-CV (Tenn. Ct. App. Jan. 24, 2021). The syllabus from the slip opinion reads:

This negligence case arises from a one-car accident in which the Plaintiff Jason M. Peterson, a passenger in a car driven by Defendant Jodi L. Carey, was injured. Plaintiff filed his complaint more than one year after he was injured. Defendant moved to dismiss on the ground that the one-year statute of limitations for personal injuries, Tenn. Code Ann. § 28-3-104(a)(1)(A), had run and the case was untimely filed. Plaintiff argued that because Defendant was given a citation for failure to exercise due care, Tenn. Code Ann. § 28-3- 104(a)(2), which provides for a two-year limitations period if “[c]riminal charges are brought against any person alleged to have caused or contributed to the injury,” applies. Defendant responded that because the police issued her citation under the Kingsport Municipal Code, the total fine was fifty dollars, a penalty that was civil and not criminal in nature. The trial court dismissed Plaintiff’s action with prejudice, holding it was filed too late. Because no evidence of the citation was presented to the trial court, and there is no indication in the trial court’s final judgment that it considered the arguments regarding the citation, we vacate and remand for the trial court to consider the evidence and rule on the issue presented.

Here is the link to the opinion: 

https://www.tncourts.gov/sites/default/files/e2021-00430_peterson_v._carey.pdf.

NOTE: Tenn. Code Ann. sec. 28-3-104(a) was amended in 2015 to extend Tennessee's one-year personal injury statute of limitations by one year if criminally charged conduct was involved. How this new part of that statute will be interpreted by the courts is still a novel concept that one who deals with personal injury actions governed by Tennessee substantive law would be wise to follow. This case is one to follow because it will surely be back before the Tennessee Court of Appeals soon.  My two cents' worth.   

Tennessee Court of Appeals Reverses Trial Court's Grant of Summary Judgment to the Defense Because the Trial Court Did Not Support Its Ruling as Required by Applicable Law

The Tennessee Court of Appeals recently released its decision in Boyd v. Gibson, No. W2020-01305-COA-R3-CV (Tenn. Ct. App. Jan. 10, 2022).  The syllabus from the slip opinion reads:

This is a lawsuit that challenges the appropriateness of care received by a cancer patient. Plaintiff originally filed suit in January 2018 and asserted a number of claims, some of which were predicated on alleged conduct occurring as early as August 2014. In an amended complaint, Plaintiff expanded her allegations, taking issue with conduct occurring as late as September 2016. The trial court ultimately dismissed Plaintiff’s complaint in toto as it concerned the Defendants at issue in this appeal. Due to a lack of clarity regarding the court’s specific bases for dismissal with respect to each of the claims involved, we vacate the judgment and remand for further consideration and findings. 

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/boydlisaopn1.pdf.

NOTE: This case offers a great analysis of what a trial court must do in granting summary judgment (in a health care liability action (f/k/a medical malpractice case)). This is a must-read decision for any lawyer dealing with summary judgment under Tennessee substantive law.    

Tennessee Supreme Court Holds that Tennessee's Health Care Liability Act Applies to Medical Battery and Intentional Misrepresentation Claims Against Health Care Providers for Injuries Arising from Surgical Procedures

The Tennessee Supreme Court has released its opinion in Copper v. Mandy, No. M2019-01748-SC-R11-CV (Tenn. Jan. 20, 2022). The syllabus form the slip opinion reads:

The issue presented in this interlocutory appeal is whether the Health Care Liability Act, Tennessee Code Annotated sections 29-26-101 to -122, applies to medical battery and intentional misrepresentation claims against health care providers for injuries arising from a surgical procedure. The defendant doctor told the plaintiff he was an experienced board-certified plastic surgeon, and the plaintiff consented to surgery. But the doctor was not a board-certified plastic surgeon, and the surgery did not go well. The plaintiff and her husband sued the doctor and his medical practice for her injuries, alleging medical battery and intentional misrepresentation. The defendants moved to dismiss because the plaintiffs had not complied with the pre-suit notice and filing requirements of the Health Care Liability Act. The plaintiffs, conceding their noncompliance, argued the Act did not apply to their medical battery and intentional misrepresentation claims. The trial court agreed with the plaintiffs, ruling that the defendants’ misrepresentations were made before any health care services were rendered and thus did not relate to the provision of health care services. On interlocutory review, the Court of Appeals affirmed. We reverse and hold that the Health Care Liability Act applies to the plaintiffs’ claims. The Act broadly defines a “health care liability action” to include claims alleging that a health care provider caused an injury that related to the provision of health care services, regardless of the theory of liability. Based on the allegations in the complaint, the plaintiffs’ medical battery and intentional misrepresentation claims fall within the definition of a “health care liability action” under the Act. We remand to the trial court for further proceedings consistent with this opinion. 

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/majority_opinion_-_sct_1-20-2022.pdf.

NOTE: This decision is a reminder of how broad the Tennessee Health Care Liability Act is; this decision is also a cautionary tale that must be read by any lawyer who handles health care liability actions under Tennessee law.  

This post relates to my December 15, 2020-post that can be found at this link: 

http://theduncanlawfirm.blogspot.com/2020/12/new-health-care-liability-action_15.html.

Tennessee Supreme Court Upholds Dismissal of Spouse's Loss of Consortium Claim in the Claims Commission Because Notice of It Was Not Submitted Before Complaint Was Filed as Required by Statute

The Tennessee Supreme Court has released its opinion in Kampmeyer v. State, No. M2019-01196-SC-R11-CV (Tenn. Jan. 13, 2022).  The slip opinion reads:

This case involves claims against the State of Tennessee asserted by a husband and wife. The claimant husband suffered injuries when his car collided with a Tennessee state vehicle parked in the roadway. He gave written notice of his claim to the Tennessee Division of Claims and Risk Management. The Division did not resolve it, so the Division transferred the claim to the Tennessee Claims Commission. The husband and wife then filed a complaint with the Claims Commission. The complaint contained a loss of consortium claim by the wife that was not in the written notice the husband gave to the Division of Claims and Risk Management. The Claims Commission complaint was filed within the applicable one-year statute of limitations. The Claims Commission granted the State’s motion to dismiss the wife’s loss of consortium claim as time-barred because she did not give the Division of Claims and Risk Management written notice of her claim within the limitations period. The Court of Appeals affirmed. The claimants appeal, relying on the holding in Hunter v. State, No. 01-A-01-9210-BC00425, 1993 WL 133240 (Tenn. Ct. App. Apr. 28, 1993), that a complaint filed with the Claims Commission within the statute of limitations fulfills the requirement in Tennessee Code Annotated § 9-8-402(a)(1) that claimants give timely written notice of their claim against the State to the Division of Claims and Risk Management. We reject this argument, overrule Hunter v. State, and affirm the Claims Commission’s dismissal of the wife’s claim for loss of consortium

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/majority_opinion_14.pdf.

NOTE: This decision offers a good reminder of the importance of properly presenting a claim to the Tennessee Division of Claims and Risk Management when it comes to a spouse's loss of consortium claim.  Although such a claim is derivative of the injured spouse's claim, it must still be presented for presuit review just like the injured spouse's personal injury claim; if it is not, it will be subject to dismissal due to failure to comply with the statute,  

Trial Court's Grant of Summary Judgment to Defense Upheld on Appeal Due to Plaintiff's Counsel's Lack of Due Diligence in Suing the Correct Entity in a Timely Fashion

The Tennessee Court of Appeals has issued its opinion in Bodine v. Long John Silver's, LLC, No. M2021-00168-COA-R3-CV (Tenn. Ct. App. Jan. 14, 2022). The syllabus from the slip opinion reads:

This is a lawsuit that challenges the appropriateness of care received by a cancer patient. Plaintiff originally filed suit in January 2018 and asserted a number of claims, some of which were predicated on alleged conduct occurring as early as August 2014. In an amended complaint, Plaintiff expanded her allegations, taking issue with conduct occurring as late as September 2016. The trial court ultimately dismissed Plaintiff’s complaint in toto as it concerned the Defendants at issue in this appeal. Due to a lack of clarity regarding the court’s specific bases for dismissal with respect to each of the claims involved, we vacate the judgment and remand for further consideration and findings.

 Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/bonnie.bodine.opn_.pdf.

NOTE: There is a lot going on in this opinion. However, this is a must-read decision for any lawyer who seeks to amend a complaint to bring someone in as a party-defendant under Rule 15.03 of the Tennessee Rules of Civil Procedure after the statute of limitations has run. Read it as a cautionary tale.    

Summary Judgment for Defense in a Premises Liability Case Reversed on Appeal

The Tennessee Court of Appeals has released its opinion in Biggs v. Town of Nolensville, No. M2021-00397-COA-R3-CV (Tenn. Ct. App. Jan. 5. 2022).  The syllabus from the slip opinion reads:

This is an appeal from a governmental tort liability [act (GTLA)] case in which the trial court granted summary judgment in favor of the defendant governmental entity on the basis that it retained its immunity. Plaintiffs now appeal, arguing that the trial court erred in granting summary judgment. Specifically, plaintiffs contend that the trial court failed to consider their expert affidavit. On appeal, we reverse the trial court’s entry of summary judgment and remand for further proceedings.

Here is a link to that opinion:

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

NOTE: This is the correct decision; not sure why the trial court granted summary judgment in this one.  This opinion offers a good analysis of summary judgment along with premises liability in a GTLA case.  It is a must-read opinion for anyone handling this kind of case.  

 

Trial Court's Finding that No Underinsured Coverage Was Available to Plaintiff Is Upheld on Appeal

The Tennessee Court of Appeals has issued released its opinion in Hughes v. Liberty Mutual Fire Insurance Co., No. E2020-00225-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2021).  The syllabus from the slip opinion reads:

The driver of a vehicle covered by a general automobile liability policy notified the insurance carrier of a potential uninsured motorist [(UM)] claim. The insurance carrier responded that the named insured had rejected in writing uninsured motorist coverage for vehicles in use in Tennessee. The driver claimed that the prior rejection was no longer effective because the named insured had submitted a new application during the renewal process. After a bench trial, the court ruled that the policy did not include uninsured motorist coverage. We conclude that the prior written rejection remained in effect when the policy was renewed. And because the named insured did not submit a new application in connection with the renewal transaction, we affirm. 

Here is a link to that opinion:

https://www.tncourts.gov/sites/default/files/hughes_v._liberty_mutual_fire_insurance_opinion_unsigned.pdf.

NOTE: There is oftentimes a battle as to whether there is UM coverage at the time of a collision that causes personal injuries.  This opinion offers a good explanation as to when UM coverage is in fact available under Tennessee law.  

Summary Judgment for Defense in a Personal Injury Action Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Malone v. Viele, No. E2021-00637-COA-R3-CV (Tenn. Ct. App. Dec. 27, 2021). The syllabus from the slip opinion reads:  

This is a negligence case arising out of an injury suffered by the plaintiff when he fell off a ladder at the defendant’s cabin which was then under construction. The trial court granted the defendant’s motion for summary judgment, holding that there was no genuine issue as to any material fact and that the plaintiff’s evidence was insufficient to establish his claim. The plaintiff appeals. We conclude that there is no dispute of material fact and that summary judgment in favor of the defendant was properly granted. Accordingly, we affirm.

Here is a link to that opinion: 

https://www.tncourts.gov/sites/default/files/malone_v._viele_opinion_e2021-637-coa_unsigned_opinion.pdf.

NOTE: This opinion offers up a good analysis of Tennessee summary judgment practice.  It is worth reading in my opinion.  

West Virginia Personal Injury Settlement Proceeds Could Not Be Recharacterized as Wrongful Death Proceeds When Deceased Died After His Personal Injury Suit Was Settled

The Tennessee Court of Appeals has issued its opinion in Welch v. Welch, No. M2021-00081-COA-R3-CV (Tenn. Ct. App. Dec. 10, 2021).  The syllabus reads: 

Prior to his death, the decedent brought suit for personal injury and loss of consortium in the Circuit Court of Kanawha County, West Virginia against more than seventy defendants after being diagnosed with mesothelioma. Ultimately, the parties in that matter reached a settlement. After informing the West Virginia court of the resolution of the matter, the case was closed by the court. Shortly thereafter, and prior to full disbursement of the settlement proceeds, the decedent died from mesothelioma. Several of the decedent’s heirs then brought the present action in Tennessee, seeking to have the settlement proceeds received pursuant to the West Virginia litigation characterized as wrongful death proceeds. The trial court dismissed the heirs’ action, and this appeal followed. We affirm the trial court’s dismissal. 

Here is a link to the slip opinion:

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

NOTE: Despite a creative legal argument made by the losing side, this is the correct decision.  Once the W. Va. personal injury case was settled, prior to the injured plaintiff's death, the proceeds became personalty, which in turn became property of the his probate estate on his death.  The significance of this fact is that those proceeds pass under his will and not under the laws of intestacy as wrongful death proceeds pass.  See Welch, No. M2021-00081-COA-R3-CV, slip op. at 3–6.  While the opinion does not address this issue directly, obviously the plaintiffs below stood to receive (more) money if the proceeds were declared to be wrongful death proceeds that passed outside of the probate estate and under the laws of intestacy.  See id.

Death of a Party in a Pending Civil Action: Trial Court's Dismissal of Plaintiff's Claim Upheld on Appeal Because Counsel Failed to Properly Revive the Suit Within the Time Allotted by Law and Trial Court Found No Reason to Enlarge Time for a Revivor to Be Effected

The Tennessee Court of Appeals has released its opinion in Mead v. Tucker, No. M2020-01512-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2021).  The syllabus from the slip opinion reads:

In this personal injury negligence action, the defendant died while the litigation was pending. The plaintiff failed to file a motion for substitution of party within ninety days of the original defendant’s death being suggested on the record. Over a month later, the plaintiff moved the trial court to enlarge the time to substitute the parties pursuant to Tennessee Rule of Civil Procedure 6.02(2). The trial court denied the motion for an enlargement of time. Because the trial court did not abuse its discretion, we affirm.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/mead._deric.j._opn.pdf.

NOTE: This case reminds one of how important it is to properly revive a case against a deceased party and that an enlargement of time to do that is not always granted after the time to act has expired.  

New Case on Service of Leading Process: Trial Court's Dismissal of Plaintiff's Lawsuit Due to Counsel's Intentional Delay in Effecting Service Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Bridges v. Roth, No. W2020-01508-COA-R3-CV (Tenn. Ct. App. Nov. 5. 2011).  The syllabus reads:  

This appeal involves a Tennessee Rule of Civil Procedure 4.01(3) summons issue. The trial court granted defendant’s motion to dismiss after finding that plaintiff intentionally delayed the issuance of the summons for the complaint in contradiction to Rule 4.01(3) of the Tennessee Rules of Civil Procedure. Plaintiff appeals. We affirm. 

Here is a link to the opinion: 

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

NOTE: This opinion accentuates the fact that filing a complaint on time is 1(a) and effecting service of leading process os 1(b).  Both are so important.  

New Tennessee Claims Commission Case: Summary Judgment for the State Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Victory v. State, No. M2020-01610-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2021).  The syllabus from the slip opinion reads:

This appeal arises from an action before the Tennessee Claims Commission for personal injuries filed on behalf of a minor child who broke her arm when she fell from playground equipment at Tims Ford State Park. The complaint asserted claims for negligence, gross negligence, and gross negligence per se. It alleged that the State was negligent by failing to adequately maintain its property, and by failing to discover, rectify, and/or warn against a dangerous condition, and allowing park visitors “to use the playground which did not have a safe surface area.” The State denied liability under Tenn. Code Ann. § 9-8- 307(a)(1)(C), insisting it had no notice of any dangerous condition; it also raised the “Recreational Use Statute,” Tenn. Code Ann. §§ 70-7-101 to -105, as an affirmative defense. Following discovery, the State filed a motion for summary judgment, which the claims commissioner granted. The commissioner found the State was entitled to judgment as a matter of law on two grounds. The commissioner found that Tenn. Code Ann. § 70-7- 102 of the Recreational Use Statute provided immunity to the State as a landowner against premises-liability claims and that the gross negligence exception under the statute, Tenn. Code Ann. § 70-7-104(a)(1), did not apply. The commissioner also held that the claimants failed to show that notice of the alleged dangerous condition had been provided to the State, which is an essential element of the Claims Commission Act. The plaintiffs appeal one issue, asserting a genuine issue of material fact existed concerning whether the State’s failure to maintain the playground was gross negligence. We affirm the Commissioner’s decision on both grounds. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/victory.rachel.opn_.pdf

NOTE: This opinion is an all-too-common reminder of the harsh effects of the Tennessee Recreational Use Statute [hereinafter Act] because it provides immunity to landowners and leaves persons who have been injured due to negligence uncompensated.  See Victory v. State, No. M2020-01610-COA-R3-CV, slip. op., passim (Tenn. Ct. App. Oct. 29, 2021).

This opinion also offers up a good explanation of gross negligence under the Act. Id. at 4.   

Lastly, the opinion reminds us of an important point regarding appellate practice, to wit:

     The State also argues that we should affirm the Commissioner’s decision because the Commissioner provided two independent grounds for summary judgment, and Plaintiffs appealed only one. “Tennessee law . . . provide[s] that where a trial court provides more than one separate and independent ground for its judgment and a party fails to appeal one or more of the independent grounds, we must affirm the judgment of the trial court on the ground that was not challenged on appeal.” Buckley v. Elephant Sanctuary in Tennessee, Inc., No. M2020-00804-COA-R10-CV, 2021 WL 2450456, at *12 (Tenn. Ct. App. June 16, 2021) (citations omitted)[, perm. app. denied (Tenn. Oct. 14, 2021)]. 

     In addition to finding insufficient evidence of gross negligence, the Commissioner determined that Plaintiffs failed to establish an essential element of their claim under § 9- 8-307(a)(1)(C) of the Claims Commission Act because there was no evidence that the proper state official had been given notice of the playground’s condition. Plaintiff did not appeal this finding. Accordingly, we are compelled to affirm the Commissioner on this ground as well. 

Id. at 5. 

New Health Care Liability Action Opinion: Trial Court's Striking of Affirmative Defense Because a Certificate of Good Faith Was Not Filed to Support the Defense Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Hanson v. Levan, No. E2020-01581-COA-R9-CV (Tenn. Ct. App. Oct. 25, 2021).  The syllabus form the slip opinion reads:

In this healthcare liability action, the plaintiff sued several medical professionals and facilities. Following an amended complaint, which had removed multiple parties from the action, the remaining defendants filed their answer to the amended complaint that included allegations of comparative fault against a doctor that the plaintiff had removed as a party to the action in the amended complaint. The defendants did not file a certificate of good faith in compliance with Tennessee Code Annotated § 29-26-122, which is required when a defendant alleges comparative fault against a “non-party.” Following a motion by the plaintiff, the trial court entered an order striking the defendants’ allegations of comparative fault. The trial court further found that the defendants had not demonstrated good cause to support an extension of time to file a certificate of good faith. Discerning no error, we affirm.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/brett_hanson_et_al._v._sarah_j._levan_et_al._0.pdf.

NOTE: This is the correct result under Tenn. Code Ann. sec. 29-26-122.  

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

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

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

Here is a link to that opinion:

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

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

Trial Court's Denial of Directed Verdict to Insuror in Declaratory Judgment Action Reversed on Appeal

The Tennessee Court of Appeals has recently released its decision Tennessee Farmers Mutual Insurance Co. v. Simmons, No. E2020-00791-COA-R3-CV (Tenn. Ct. App. Sept. 14, 2021).  The syllabus from the slip opinion reads:

In the underlying declaratory judgment action, an insurance company sought a judgment that an automobile insurance policy issued to a mechanic does not provide coverage for an accident involving the mechanic. After examining the mechanic under oath, the insurance company moved for summary judgment, arguing that the policy contained a business purpose exclusion for accidents occurring while road testing a vehicle, which the mechanic stated he was doing at the time the accident occurred. The mechanic responded with an affidavit asserting that he was driving the vehicle for personal errands. The trial court denied the motion, finding that there was a genuine issue of material fact as to the mechanic’s purpose for driving the vehicle. At trial, the mechanic testified that he was running personal errands at the time of the accident but offered no explanation for his contradictory sworn statements. Following the close of proof, the insurance company renewed its argument regarding the policy’s exclusion and moved for a directed verdict. The trial court denied the motion and submitted the matter to a jury, which found that the exclusion did not preclude coverage of the accident. On appeal, the insurance company contends that the trial court erred by not applying the cancellation rule. We agree and hold that if the rule had been applied, no genuine issue existed for the jury to consider with respect to the mechanic’s business purpose at the time the accident occurred. Thus, the trial court should have directed a verdict in favor of the insurance company. The judgment of the trial court approving the jury verdict is vacated and the case is remanded.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/e2020-791_tn_ins._v._simmons.pdf.

NOTE: This opinion offers a good discussion of Tennessee insurance policies, the cancellation rule, etc.  It is worth reading in my humble opinion.  

New Tennessee Claims Commission Case: Dismissal of Claim Upheld on Appeal

The Tennessee Court of Appeals recently released its decision in Howard v. State, No. M2020-00735-COA-R3-CV (Tenn. Ct. App. Aug. 26, 2021).  The syllabus from the slip opinion reads:

Following a car accident involving an employee of the State of Tennessee, Irene Howard . . . sought damages against the State based on alleged injuries arising from the accident.  The claim was denied by the Division of Claims and Risk Management . . . , and Claimant thereafter appealed to the Claims Commission . . . .  Because Claimant failed to appeal the DCRM’s decision within ninety days, however, the Commission concluded it lacked jurisdiction over the case and dismissed the appeal. We affirm. 

Here is a link to that opinion:

https://www.tncourts.gov/sites/default/files/howard.irene_.opn_.pdf.

NOTE: This opinion offers a good discussion on filing claims in Tennessee Claims Commission and the  procedure associated with doing that.  A must read for one who handles claims against the State of Tennessee.     

  

New Health Care Liability Action Opinion: Trial Court's Dismissal of Plaintiff's Claim Due to Defective Presuit Medical Records Authorization Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Reese v. Waters of Clinton, LLC, No. E2020-01466-COA-R3-CV (Tenn. Ct. App. Aug. 4, 2021).  The syllabus from the slip opinion reads:

This healthcare liability action was brought against a skilled nursing facility. The plaintiff sent pre-suit notice to multiple potential defendants prior to initiating the action. The plaintiff, however, failed to include as part of the pre-suit notice a HIPAA-compliant medical authorization as one of the six core elements was missing from the authorization. Following a motion to dismiss filed pursuant to Tennessee Rule of Civil Procedure 12.02(6), the Trial Court granted the motion and dismissed the action against the defendant due to noncompliance with Tennessee Code Annotated § 29-26-121 and as being untimely. The Trial Court denied the plaintiff’s request to compel discovery in this matter concerning whether the plaintiff had substantially complied with the pre-suit notice requirement. The plaintiff argues on appeal that the Trial Court erred by not treating the defendant’s motion as a motion for summary judgment and by preventing the plaintiff from conducting discovery regarding the plaintiff’s compliance with Section 29-26-121, as well as the resulting prejudice to the defendant. Discerning no error, we affirm the Trial Court’s judgment in all respects.

Here is a link to that opinion:

https://www.tncourts.gov/sites/default/files/e2020-1466_reese_v._clinton.pdf.

NOTE: This case offers a good discussion on what needs to be done to comply with HIPAA as it relates to authorizations to share and receive a patient's protected health information (PHI); those authorizations are supposed to be included as part of any presuit notice package sent to a potential defendant under Tennessee Code Annotated section 29-26-121.  In this case, a blank was left in each authorization so that the provider receiving presuit notice could ostensibly fill it in.  Reese, E2020-01466-COA-R3-CV, slip op. at 2.  That practice, however, has been held to not comply with HIPAA.  Id. at 13–14.  Since the authorizations did not comply with HIPAA, the plaintiff's claim fails as a matter of law.  See T.C.A. § 29-26-121 (LexisNexis 2021).  

This case also offers a good discussion of motions to dismiss versus motions for summary judgment to the extent that both challenge a plaintiff's noncompliance the presuit notice requirements contained in Tenn. Code Ann. sec. 29-26-121.  See id., passim.

Also, this opinion touches upon an attorney-in-fact (agent) acting on behalf of a patient in a Tennessee health care liability action (formerly known as a "medical malpractice case").  Id. at 2.  To the extent that the agent signs an authorization required for the release and sharing of a patient's PHI under -121 via a power of attorney form (POA), that form must be for health care purposes and not a general POA.  See June M. Sullivan & Shannon B. Hartsfield, HIPAA: A Practical Guide to the Privacy and Security of Health Data 39–40 (2d ed. 2020) ("For purposes of HIPAA, an individual's personal representative is a person with authority under state law to make health care decisions for the individual."  (Footnote omitted.)).  

New Tennessee Supreme Court Case: The Economic Loss Doctrine Clarified; Jury Verdict for Plaintiff Overturned, Etc.

The Tennessee Supreme Court has released its opinion in Milan Supply Chain Solutions, Inc. v. Navistar, Inc., No. W2018-00084-SC-R11-CV (Tenn. Aug. 8, 2021).  The syllabus from the slip opinion reads:

We granted permission to appeal primarily to consider how, if at all, the economic loss doctrine, which generally precludes recovery for purely economic losses in tort actions, applies in Tennessee to claims of fraudulent inducement. We hold that when, as here, a fraud claim seeks recovery of only economic losses and is premised solely on misrepresentations or nondisclosures about the quality of goods that are the subject of a contract between sophisticated commercial parties, the economic loss doctrine applies. Accordingly, we affirm the judgment of the Court of Appeals holding that the economic loss doctrine bars the plaintiff’s fraudulent inducement claim. We also affirm the judgment of the Court of Appeals holding that the plaintiff’s claim under the Tennessee Consumer Protection Act (“TCPA”) is barred as a matter of law because the trucks at issue are not “goods” as that term is defined by the portion of the TCPA on which the plaintiff relied. Tenn. Code Ann. § 47-18-104(b)(7) (2013 & Supp. 2020). We, therefore, set aside the plaintiff’s award of attorney’s fees and costs based on the TCPA. In all other respects, we affirm the judgment of the Court of Appeals on the separate grounds stated herein. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/milansupplychainv.navistar.opn_.pdf.

NOTE: As a matter of full disclosure, I represented some of the amici in this case.  This opinion clarifies the law in Tennessee concerning the economic loss doctrine, which was unclear till now.    

New Uninsured Motorist (UM) Insurance Coverage Case: Trial Court's Finding of No UM Coverage for the Plaintiff Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Medders v. Newby, No. M2020-01094-COA-R3-CV (Tenn. Ct. App. July 6, 2021).  The syllabus from the slip opinion reads:

An insurance company denied coverage for an accident its insured had with an uninsured/underinsured motorist because the insured had a “non-owner’s” policy, and the car she was driving did not fit the definition of a “non-owned auto.” The trial court concluded, following a bench trial on the bifurcated issue of coverage, that the insured’s policy did not cover the accident, and the insured appealed. We affirm the trial court’s judgment. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/medders.kimberly.opn_.pdf.

NOTE: This is a good opinion to read for some insight into Tennessee's UM law., especially when it comes to the construction of insurance policies (which are contracts).  

New Wrongful Death Opinion: Grant of Summary Judgment to Defendant Upheld on Appeal

The Tennessee Court of Appeals released its opinion in O'Guin v. State, No. M2020-00732-COA-R3-CV (Tenn. Ct. App. July 28, 2021).  Here is the syllabus from the slip opinion:

A patient died after a fall at a state-owned rehabilitation facility. The administrator of the deceased patient’s estate filed a monetary claim against the State of Tennessee for negligently creating or maintaining a dangerous condition on real property. The State moved for summary judgment arguing that the claimant lacked sufficient evidence of causation. The Claims Commission agreed and granted summary judgment to the State. Because the claimant lacked sufficient evidence that the State’s conduct more likely than not caused the patient’s fall, we affirm.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/oguin.timothy.opn_.pdf.

NOTE: This opinion offers a good discussion of causation of injury (in this case, death) under Tennessee law.  

New Health Care Liability Action Opinion: Trial Court's Denial of Motion to Revise Interlocutory Order Reversed on Appeal

The Tennessee Court of Appeals has released its opinion in Ingram v. Gallagher, No. E2020-01222-COA-R3-CV (Tenn. Ct. App. July 19, 2021).  The syllabus from the slip opinion reads:

This appeal arises from a healthcare liability action wherein the plaintiff initially sued the doctor, the hospital, and two other defendants. The plaintiff voluntarily dismissed the action without prejudice against all defendants except for the doctor. The doctor subsequently filed an answer to the complaint, stating that the action should be dismissed under the Governmental Tort Liability Act because the hospital, a governmental hospital entity and the doctor’s employer, was not a party to the action. Shortly thereafter, the plaintiff filed a “Motion to Alter or Amend,” seeking to set aside the Trial Court’s order of dismissal in order to withdraw his voluntary dismissal of the hospital as a party. The Trial Court denied the plaintiff’s motion to alter or amend, determining that the voluntary dismissal order was a final order and that the plaintiff knew about the doctor’s employment with the hospital prior to the voluntary dismissal. We determine that the Trial Court erred by treating the plaintiff’s motion as a Tennessee Rule of Civil Procedure 60 motion, instead of a motion to revise pursuant to Rule 54.02, and further hold that the Trial Court erred by denying the plaintiff’s motion to revise the non-final order of voluntary dismissal.

Here is a link to the slip opinion: 

https://www.tncourts.gov/sites/default/files/ingram_vs._gallagher_coa_opinion.pdf.

NOTE: Procedurally, this case is a mess.  There was a lot going on in the trial court below.  This opinion, however, is a great one that addresses motions to revise interlocutory orders under Rule 54 of the Tennessee Rules of Civil Procedure.  A lot of lawyers file motions to "alter or amend" interlocutory (nonfinal) orders, which is procedurally improper; this opinion sheds light on the issue and hopefully will clear up any confusion on this issue.  

Also, practically speaking, the plaintiff could have added the hospital as a party-defendant under Tennessee's comparative fault joinder statute, Tennessee Code Annotated section 20-1-119, after the doctor's answer was filed indicating that he was an employee of the hospital at the time in question.  That would have remedied the problem of the employer not being a party to the lawsuit under Tennessee's Governmental Tort Liability Action (and would have been an easy fix, too).  See Bidwell ex rel. Bidwell v. Strait, 618 S.W.3d 309, 323–30 (Tenn. 2021), https://scholar.google.com/scholar_case?case=12106812184700824746&q=618+S.W.3d+309&hl=en&as_sdt=4,43.

New Health Care Liability Action Opinion: Trial Court's Dismissal of Case Upheld on Appeal Because Defendant-physician's Employer Not Added as a Party-defendant as Required by Statute

The Tennessee Court of Appeals has issued its opinion in Braylon W. v. Walker, No. W2020-00692-COA-R3-CV (Tenn. Ct. App. July 15, 2021).  The syllabus reads:

This appeal stems from a dismissal pursuant to Tennessee’s Governmental Tort Liability Act [(GTLA)]. Suit was filed against Appellant’s treating physician, among other defendants, for health care liability involving Appellant’s birth. The trial court ultimately granted summary judgment in favor of the physician, finding that, because the physician was an employee of a governmental entity at the time of the incident, Appellant was required by statute to name the physician’s employing governmental entity as a party defendant. Because Appellant failed to do so, the lawsuit against the treating physician could not proceed. Appellant now appeals the trial court’s grant of summary judgment. Discerning no error, we affirm the trial court’s dismissal.

Here is a link to the opinion: 

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

NOTE: This case is one that used to be called a "medical malpractice case," but is now called a "health care liability action" by statute; that change was effected by Tennessee Code Annotated section 29-26-101.  

This case accentuates the importance of naming a defendant "health care practitioner's" employer as a party-defendant if the case is a health care liability action that falls under the GTLA; failing to do that is generally fatal to the case, as pointed out here.  Plaintiff, however, could have added Dr. Walker's employer as a party-defendant under Tennessee Code Annotated section 20-1-119 (commonly referred to as the "comparative fault joinder statute" or just "-119") after her answer was filed indicating who her employer was at the time of the complained of negligence.  Bidwell ex rel. Bidwell v. Strait, 618 S.W.3d 309, 323–29 (Tenn. 2021) (explaining how -119 can be used to add a defendant's employer in a health care liability action covered by the GTLA), https://scholar.google.com/scholar_case?case=12106812184700824746&q=618+S.W.3d+309&hl=en&as_sdt=4,43.  I am not sure what that was not done here.  

New Case on the Tennessee Governmental Tort Liability Act: Liability Based on Negligence, Gross Negligence, Recklessness, and Exceptions to the Public Duty Doctrine Save the Day; Trial Court's Dismissal Reversed on Appeal

The Tennessee Court of Appeals released its opinion in Lawson v. Hawkins County, No. E2020-01529-COA-R3-CV (Tenn. Ct. App. July 14, 2021.  The syllabus from the slip opinion reads:

This appeal arises from litigation concerning a fatal road accident. Steven W. Lawson [] , by and through his wife, Penny Lawson, and on behalf of Corey Lawson, Decedent’s child . . . , sued the Hawkins County Emergency Communications District Board [] , Hawkins County, Tennessee and Hawkins County Emergency Management Agency . . .  in the Circuit Court for Hawkins County . . . alleging negligence, gross negligence, and recklessness in Defendants’ response to a road washout that led to Decedent’s death. Plaintiffs specifically alleged nepotism in Defendants’ hiring practices and a failure to train. Defendants filed motions for judgment on the pleadings, which the Trial Court granted partly on grounds that claims of recklessness could not proceed against the Defendant entities under the Governmental Tort Liability Act (“the GTLA”). Plaintiffs appeal. We hold that Plaintiffs could, in fact, proceed with their claims of recklessness and gross negligence under the GTLA, and the facts pled by Plaintiffs were sufficient to state claims based upon recklessness and gross negligence. We hold further that, based on the facts alleged at this stage, the third special duty exception to the public duty doctrine applies so as to remove Defendants’ immunity. We reverse the judgment of the Trial Court. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/penny_lawson_v._hawkins_county_coa_opinion.pdf.

NOTE: This is a good opinion for any judge or lawyer who has a case governed by the GTLA.  

THIS OPINION HAS BEEN OVERRULED ON FURTHER APPEAL BY THE TENNESSEE SUPREME COURT. That opinion is at this link:

Tony Duncan Law: New SCOTN Opinion: Dismissal of Complaint Due to the Fact that Governmental Immunity Is Removed for "Negligent" Employee Conduct and Not "Reckless" Conduct Upheld on Appeal (theduncanlawfirm.blogspot.com).

New Case on the Collateral Source Rule: Trial Court's Ruling that Disallowed Information About Collateral Sources Upheld on Appeal

The Tennessee Court of Appeals released its opinion in Doty v. City of Johnson City, No. E2020-00054-COA-R3-CV (Tenn. Ct. App. July 7, 2021).  The syllabus from the slip opinion reads:

This is a personal injury action in which the defendant tortfeasor claims that the trial court erroneously excluded evidence concerning plaintiff’s claimed medical expenses. On appeal, we affirm the trial court’s rulings on the admissibility of evidence. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/doty_vs._city_of_johnson_city_coa_opinion.pdf.

NOTE: This opinion is a must-read one for any lawyer who handles personal injury cases governed by Tennessee substantive law.  Also, in my humble opinion, this is a correct decision, too, based upon the applicable law.  

New Health Care Liability Action Opinion: New Trial Ordered Due to Trial Court Errors as to Expert Witness Testimony and Premajority Medical Expenses

The Tennessee Court of Appeals has released its opinion in Borngne ex rel. Hyter v. Chattanooga-Hamilton County Hospital Authority, No. E2020-00158-COA-R3-CV (Tenn. Ct. App. July 1, 2021).  The syllabus from the slip opinion reads: 

This health care liability action arises from injuries suffered by a minor, Miyona Hyter, during her birth. Miyona Hyter, a minor by and through her next friend and mother, Brittany Borngne[,]  . . . sued, among others, Dr. Michael Seeber who delivered the child via cesarean section and certified nurse midwife Jennifer Mercer who assisted with the birthing process. Plaintiff alleged that Nurse Mercer was negligent by failing to recognize concerning signs on the fetal monitoring strip and by failing to call Dr. Seeber for assistance sooner than she did. The Circuit Court for Hamilton County . . . , by agreed order, granted Dr. Seeber partial summary judgment on all claims of direct negligence against him; he remained in the case as a defendant only upon Plaintiff’s theory that he was vicariously liable for Nurse Mercer’s actions as her supervising physician. During his deposition, Dr. Seeber declined to answer questions that he argued required him to render an expert opinion regarding Nurse Mercer’s care during times that Dr. Seeber was not present and had no involvement in Plaintiff’s care. The Trial Court declined to require Dr. Seeber to answer questions that “call[] for an opinion by Dr. Seeber that asks him to comment on the actions of other healthcare providers and does not involve his own actions, as required by Lewis v. Brooks,” 66 S.W.3d 883, 887-88 (Tenn. Ct. App. 2001). After Nurse Mercer’s deposition, she submitted an errata sheet that substantively altered her answers to some of the questions. Plaintiff moved to suppress the errata sheet, arguing that Tenn. R. Civ. P. 30.05 does not allow a witness to make substantive changes to her deposition testimony. The Trial Court denied the motion but allowed Plaintiff the opportunity to reopen Nurse Mercer’s deposition and to fully cross-examine her at trial about the changes. The case proceeded to trial before a jury, which returned a verdict in Defendants’ favor. We hold that the Trial Court erred by refusing to order Dr. Seeber to answer the questions at issue in his deposition. Deeming this case distinguishable from Lewis v. Brooks, we reverse the Trial Court in its declining to compel Dr. Seeber to testify concerning the conduct of his supervisee, Nurse Mercer, and remand for a new trial. We also reverse the Trial Court in its decision to exclude proof of Miyona Hyter’s pre-majority medical expenses. We affirm the Trial Court as to the remaining issues.

Here is a link to the majority opinion:

https://www.tncourts.gov/sites/default/files/e2020-158_borngne_v._chattanooga.pdf.

Here is Judge Davis's opinion that concurs in part and dissents in part:

https://www.tncourts.gov/sites/default/files/e2020-158_borngne_v._chattanooga_sep_opin.pdf.

NOTE: This decision offers a good discussion of deposition testimony and errata sheets under Rule 30.05 of the Tennessee Rules of Civil Procedure, expert witness testimony (especially related to subordinate providers), and premajority medical expenses. 

Once can be certain that the Tennessee Supreme Court will be asked to review this case via an application for permission to appeal under Rule 11 of the Tennessee Rules of Appellate Procedure.  More to come.  

UPDATE: SCOTN granted permission to appeal in this case on Oct. 16, 2021, to wit: https://tncourts.gov/sites/default/files/sc_discretionary_appeals_list_2021oct18.pdf.

Tennessee Appellate Practice: Jury Verdict for the Defense Upheld on Appeal Because It Was Supported by Material Evidence

The Tennessee Court of Appeals has issued its decision in Justice v. Hyatt, No. M2019-02105-COA-R3-CV (Tenn. Ct. App. June 30, 2021).  The syllabus from the slip opinion reads:

Two cars collided at a four-way stop. One driver filed a personal injury action against the other. At trial, the two sides presented conflicting descriptions of the accident. The jury found the defendant driver was not at fault. And the trial court, as thirteenth juror, approved the jury verdict. Because the jury verdict is supported by material evidence, we affirm. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/justice.james_.opn__0.pdf.

NOTE: This decision is a good refresher of the importance and effect Rule 13(d) of the Tennessee Rules of Appellate Procedure has on appeals of jury verdicts.  

Tennessee Civil Procedure: A Plaintiff May Amend Complaint Any Time Before a Responsive Pleading Is Filed or the Dismissal of Initial Complaint Becomes Final

The Tennessee Court of Appeals has released its opinion in Justice v. Nordquist, No. E2020-01152-COA-R3-CV (Tenn. Ct. App. June 29, 2021).  Here is the syllabus from the slip opinion:

Loring Justice . . . [,] individually and as next friend of N.N./N.J.],] . . . sued Vey Michael Nordquist, Ph.D.  . . . in the Circuit Court for Knox County . . . over Defendant’s actions in connection with paternity litigation to which Plaintiff was a party. Defendant filed a motion to dismiss, but never filed a responsive pleading to the original complaint. The Trial Court granted Defendant’s motion to dismiss. Before time for appeal expired, Plaintiff filed an amended complaint as he was entitled to do under Tenn. R. Civ. P. 15.01 given that Defendant never filed a responsive pleading to the original complaint. However, the Trial Court never ruled on Plaintiff’s amended complaint. The order appealed from is not a final judgment, meaning we lack subject matter jurisdiction to hear this appeal. Therefore, we dismiss this appeal.

Here is a link to the slip opinion: 

https://www.tncourts.gov/sites/default/files/e2020-01152_justice_v._nordquist.pdf.

NOTE: This opinion is a good reminder that a motion to dismiss is not a responsive pleading that would prohibit free amendment under Rule 15 of the Tennessee Rules of Civil Procedure.  

New Health Care Liability Action Opinion: Defense Verdict in Second Trial (Which Was Bifurcated) Upheld on Appeal

The Tennessee Court of Appeals released its decision in Jernigan v. Paasche, No. No. M2020-00673-COA-R3-CV (Tenn. Ct. App. June 21, 2021).  The syllabus from the slip opinion reads:

In this health care liability action, an initial jury trial resulted in a verdict for the defendant physicians. The plaintiff filed a motion for new trial, which the trial court granted. Prior to the second jury trial, the trial court determined that the trial should be bifurcated such that the first phase would address only the applicable standard of care and whether the defendants deviated therefrom, and the second phase would address causation. Following completion of the standard of care phase, the jury again ruled in favor of the defendants. The plaintiff filed a second motion for new trial, which the trial court denied. The plaintiff timely appealed. Discerning no reversible error, we affirm.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/jernigan.david_.opn_.pdf.

NOTE: This opinion deals with the bifurcation of issues for trial, the admission of expert witness testimony, and waiver of issues.  It is a must-read decision for any lawyer who handled health care liability actions governed by Tennessee substantive law.  

Further, I expect the Tennessee Supreme Court will be asked (via an application for permission to appeal) to review this decision.  The bifurcation below might be what gets that application granted; we shall see.   

New Tennessee Case on Recently Enacted Anti-SLAPP Statute: Dismissal of Action Under New Statute Upheld on Appeal

On Friday, the Tennessee Court of Appeals released its decision in Nandigam Neurology, PLC v. Beavers, No. M2020-00553-COA-R3-CV (Tenn. Ct. App. June 18, 2021).  The syllabus from the slip opinion reads:

This case arises from a defamation and false light lawsuit filed in the General Sessions Court for Wilson County . . . .  The action was dismissed pursuant to the Tennessee Public Participation Act . . . and the plaintiffs appealed the dismissal to the Circuit Court for Wilson County . . . .  After concluding that it lacked subject matter jurisdiction to hear the appeal, the circuit court transferred the case to this Court. On appeal, the parties dispute whether this Court has subject matter jurisdiction, and the defendant argues that the ruling of the general sessions court should be affirmed. We conclude that this Court has subject matter jurisdiction to decide this appeal and, discerning no error, we affirm the decision of the general sessions court dismissing the plaintiffs’ legal action pursuant to the TPPA. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/nandigamneurologyv.beavers.opn_.pdf.

NOTE: This is a case of first impression on the recently enacted Tennessee Public Participation Act. Judge Davis does an excellent job of explaining this new law and its application to the facts herein.  Look for the plaintiffs to ask the Tennessee Supreme Court for further review, which might occur given the novelty of this law.  Stay tuned.    

New Laws Effective in Tennessee on July 1, 2021

Here is an abstract of the new laws that go into effect in Tennessee on July 1, 2021, to wit:

https://www.capitol.tn.gov/Archives/Joint/publications/effective%20date%20_7-1-21_and_later.pdf.

New Health Care Liability Action Opinion: Tennessee Supreme Court Holds That Cap on Noneconomic Damages Applies to Claims of Injured Spouse and Derivative Loss-of-consortium Claim in the Aggregate

The Tennessee Supreme Court released its decision today in Yebuah v. Center for Urological Treatment, PLC, No. M2018-01652-SC-R11-CV (Tenn. June 2, 2021).  The syllabus from the slip opinion reads:

This is a healthcare liability action involving the application of the statutory cap on noneconomic damages to loss of consortium claims. The issue before the Court is whether the statutory cap on noneconomic damages applies separately to a spouse’s loss of consortium claim pursuant to Tennessee Code Annotated section 29-39-102, thus allowing each plaintiff to receive an award of up to $750,000 in noneconomic damages. Here, the surgery patient filed suit for noneconomic damages resulting from the defendant physicians’ negligence, namely that a portion of a Gelport device was unintentionally left in her body after surgery. In the same suit, the patient’s spouse claimed damages for loss of consortium. The jury awarded the patient $4,000,000 in damages for pain and suffering and loss of enjoyment of life. The jury also awarded her husband $500,000 in damages for loss of consortium. The trial court initially applied the statutory cap on noneconomic damages by entering a judgment in favor of both plaintiffs collectively for a total judgment of $750,000. However, the trial court subsequently granted the plaintiffs’ motion to alter or amend and applied the statutory cap to each plaintiff separately, thereby entering a judgment of $750,000 for the patient and $500,000 for her husband. The Court of Appeals affirmed. We hold that the language of Tennessee Code Annotated section 29-39-102 allows both plaintiffs to recover only $750,000 in the aggregate for noneconomic damages. We therefore reverse the holding of the Court of Appeals and the trial court.

Here is a link to the majority opinion: 

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

Justices Lee, joined by Justice Clark, dissented; here is that opinion:

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

NOTE: This decision is yet another result of the tort reform pushed by ALEC et al. that treats the citizens of Tennessee unfairly

New Summary Judgment Opinion: Summary Judgment for Defendant Upheld on Appeal Because Plaintiff Failed to Comply with Rule 56.03, Tenn. R. Civ. P.

The Tennessee Court of Appeals has released its decision in Brennan v. Goble, No. E2020-00671-COA-R3-CV (Tenn. Ct. App. May 27, 2021).  The syllabus from the slip opinion reads:

This appeal arose from a personal injury action. The defendant filed a motion for summary judgment, accompanied by a statement of material facts in compliance with Tennessee Rule of Civil Procedure 56.03. The plaintiff responded to the defendant’s motion for summary judgment but failed to respond to the separate statement of material facts. As a result of the plaintiff’s failure to respond to the statement of material facts, the Trial Court deemed those facts as stated by the defendant as admitted and granted summary judgment in favor of the defendant upon its determination that the defendant had negated an essential element of the plaintiff’s claim. Discerning no error, we affirm.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/e2020-671_brennan_v._goble.pdf.

NOTE: This is a correct result.  I have seen both movants and nonmovants fail to comply with Rule 56.03's requirement of citing to the record to support or oppose a motion for summary judgment (which does not end well for the noncompliant party).  As noted on page 10 of this decision, Rule 56.03 exists so that a court does not have to unnecessarily dig through an entire record just to determine if a dispute exists as to a material fact.  

New Health Care Liability Action Opinion: Denial of Summary Judgment for a Defendant Upheld on Appeal; Authorization for Medical Records Substantially Complied with HIPAA

The Tennessee Court of Appeals released its decision today in Savannah v. State, No. E2020-01232-COA-R9-CV (Tenn. Ct. App. May 19, 2021).  The syllabus from the slip opinion reads:

Parents filed a healthcare liability and wrongful death complaint after the mother delivered a stillborn infant. We granted this interlocutory appeal to review whether the claims commission erred in denying summary judgment to the defendants. Finding no error in the Commission’s ruling, we affirm. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/savannah_leigh_jackson_et_al._v._the_state_of_tennessee_et_al..pdf.

NOTE: This is a must-read decision for any lawyer who handles health care liability action (HCLA) cases governed by Tennessee substantive law.  It addresses whether an authorization required under Tenn. Code Ann. sec. 29-26-121 complies with HIPAA, which has become all-too-common issues in HCLA cases.  

New Tort Opinion: Summary Judgment for Defense Reversed on Appeal Because Plaintiff Had Demonstrated That a Genuine Issue of Material Fact Existed for Trial

The Tennessee Court of Appeals released its opinion the other day in Davis v. Keith Monuments, No. E2020-00792-COA-R3-CV (Tenn. Ct. App. Apr. 29, 2021).  The syllabus from the slip opinion reads:

Plaintiff filed suit for damages alleging that she had been injured when the headstone at her deceased brother’s grave fell on her and broke bones in her hand. After Defendant, the installer of the headstone, moved for summary judgment, the trial court dismissed Plaintiff’s claims with prejudice. On appeal, we reverse that portion of the trial court’s summary judgment order dismissing Plaintiff’s claim which is based on Defendant’s alleged negligence in installing the headstone.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/sylvia_davis_v._keith_monuments.pdf.

NOTE: This is a great opinion!  It addresses the proper application of the standard of review in summary judgment proceedings, computation of time, and expert-witness qualifications.  If you have to deal with a motion for summary judgment under Tennessee law, you need to read this opinion.   

New Health Care Liability Action Opinion: Trial Court's Dismissal of Refiled Suit Upheld on Appeal Due to Failure to Provide Statutorily Required Presuit Notice of Second Suit

The Tennessee Court of Appeals has released its opinion in Byington v. Reaves, No. E2020-01211-COA-R3-CV.  Here is the syllabus from the slip opinion:

This is a health care liability case. The trial court granted Appellees’ motion to dismiss because Appellant failed to provide Appellees with the proper pre-suit notice under Tennessee Code Annotated section 29-26-121(a)(1). Discerning no error, we affirm.

Here is the link to the slip opinion:  

https://www.tncourts.gov/sites/default/files/debra_sue_byington_v._jamie_reaves_d.o._et_al..pdf.

NOTE: Procedurally, this case is mess.  In a nutshell, the suit that is the subject of this appeal, which was plaintiff's second suit against the defendants, was dismissed because the plaintiffs failed to send to the defendants the statutorily required presuit notice letters.  Byington, slip op. at 4–5.  

Health Care Liability Action Opinion: Trial Court's Grant of Relief Under Rule 60.02, Tenn. R. Civ. P., Reversed on Appeal

The Tennessee Court of Appeals recently released its decision in Mack v. Baptist Memorial Hospital, No. W2020-00809-COA-R3-CV (Tenn. Ct. App. Mar. 30, 2021).  The syllabus form the slip opinion reads:

This appeal arises from a health care liability action. Darryl G. Rush-Mack . . . died while receiving care at Baptist Memorial Hospital . . . .  Alvin Mack . . . , Kevin Mack, and Darwisha Mack Williams . . . sued the Hospital and Dr. Aaron Kuperman . . . in the Circuit Court for Shelby County . . . .  Defendants filed motions to dismiss, which the Trial Court granted. Thirty days from entry of the order passed without Plaintiffs filing a notice of appeal. Plaintiffs later filed a motion to set aside pursuant to Tenn. R. Civ. P. 60.02 asserting that the order was not stamped to be mailed until six days after it was filed and it went to a PO Box Plaintiffs’ counsel does not use for business. The Trial Court granted the motion and entered a new order of dismissal, from which Mr. Mack appeals. We find that Mr. Mack failed to meet the clear and convincing evidentiary burden necessary for Rule 60.02 relief; indeed, the Trial Court relied only upon statements of counsel rather than evidence. We, therefore, reverse the Trial Court’s grant of Plaintiffs’ Rule 60.02 motion. 

Here is a link to the slip opinion:

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

NOTE: This case is a reminder of the high burden to meet under the clear-and-convincing standard of evidentiary proof.  

New Health Care Liability Action Opinion: Trial Court's Dismissal of Case as Being Time-barred Due to a Failure to Comply with Presuit Notice Requirements Upheld on Appeal

The Tennessee Court of Appeals has released its decision in Shaw v. Gross, No. W2019-01448-COA-R3-CV (Tenn. Ct. App. Apr. 13, 2021).  The syllabus form the slip opinion reads:

Appellant appeals the dismissal of her health care liability complaint on the basis of the expiration of the applicable statute of limitations. Because Appellant did not substantially comply with Tennessee Code Annotated section 29-26-121(a)(2)(E), she was not entitled to an extension on the statute of limitations. The trial court’s decision that her complaint should be dismissed is affirmed. 

Here is a link to the slip opinion:

 https://www.tncourts.gov/sites/default/files/shawhelen2opn.pdf.

NOTE: This case is related to my Feb. 9, 2018-blog post.  Tony Duncan, 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, TONY DUNCAN L. BLOG (Feb. 9, 2018, 6:28 PM), http://theduncanlawfirm.blogspot.com/2018/02/new-health-care-liability-action_9.html.

New Case on Attorney Signature to Complaint: Trial Court's Dismissal Reversed on Appeal Because Signature Complied with Tenn. R. Civ. P. 11

The Tennessee Court of Appeals recently issued its decision in Smith v. Gonzalez, No. W2019-02028-COA-R3-CV (Tenn. Ct. App. Apr. 1, 2021).  The syllabus from the slip opinion reads:

This appeal involves a challenge to the trial court’s dismissal of Plaintiff’s complaint. Specifically, Plaintiff contends that the trial court erred in finding that his complaint was deficient per the signature requirements in Rule 11.01(a) of the Tennessee Rules of Civil Procedure. For the reasons stated herein, we reverse the trial court’s dismissal of Plaintiff’s complaint and conclude it is in compliance with the requirements of Rule 11.01. 

Here is link to the slip opinion:

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

NOTE: I am surprised this appeal had to happen.  Lawyers sign for other lawyers "by permission" all . . . the . . . time!  Glad the Tennessee Court of Appeals got this one right.  

Two New Health Care Liability Action Opinions on Same Issue: Trial Court's Grant of Summary Judgment and Motion to Dismiss Reversed on Appeal Due to Statutory Changes as They Relate to Vicarious Liability

Today, the Tennessee Court of Appeals released its decisions in Gardner v. Saint Thomas Midtown Hospital, No. M2019-02237-COA-R3-CV (Tenn. Ct. App. Apr. 1, 2021) and Ultsch v. HTI Memorial Hospital Corporation, No. M2020-00341-COA-R9-CV (Tenn. Ct. App. Apr. 1, 2021).  Both cases hinge on the same issue and arise from the same trial court.  The common issue being whether a principal in a health care liability action may be held vicariously liable for the acts or omissions of its employees and agents if the statute of limitations was extended as to the principal but not the employees and agents via service of presuit notice letters under Tenn. Code Ann. sec. 29-26-121.  

The syllabus from the slip opinion in Gardner reads:

A patient filed a health care liability claim against a hospital, asserting the hospital was vicariously liable for injuries she suffered as a result of the anesthesia providers’ conduct. The hospital moved for summary judgment, arguing that the anesthesia providers were not employed by the hospital and the hospital was, therefore, not liable for the anesthetists’ actions as a matter of law because the statute of limitations had run on the plaintiff’s direct claims against the anesthesia providers by the time the plaintiff filed her complaint against the hospital. The trial court granted the hospital’s motion and dismissed the plaintiff’s complaint, relying on the common law set forth in Abshure v. Methodist HealthcareMemphis Hospitals, 325 S.W.3d 98 (Tenn. 2010). Acknowledging the conflict between provisions of the Tennessee Health Care Liability Act and the common law, we hold that the statute prevails. Accordingly, we reverse the trial court’s judgment and remand the case for further proceedings.

Here is a link to the Gardner slip opinion:

https://www.tncourts.gov/sites/default/files/gardner.beverly.opn_.pdf.

The syllabus from the slip opinion in Ultsch reads:

This appeal concerns the interplay between the Tennessee Health Care Liability Act [] and the common law on vicarious liability with respect to pre-suit notice in a health care liability claim against the principal only. We have determined that the provisions of the HCLA take precedence over the common law and that the plaintiff’s claims in this case were timely filed. Therefore, we reverse the decision of the trial court.

Here is a link to the Ultsch slip opinion:

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

NOTE: Both of these opinions offer an excellent explanation of how a vicarious liability claim may be prosecuted under Tennessee's Health Care Liability Act (f/k/a the Tennessee Medical Malpractice Act). SCOTN will be asked to review these two decisions via a Rule 11 application.  It may deny review, however, because these decision are very well reasoned and jibe with applicable Tennessee law in my humble opinion.  

UPDATE (Oct. 1, 2021): I was wrong.  SCOTN has granted permission to appeal in both cases on Sept. 24, 2021, to wit:

https://tncourts.gov/sites/default/files/sc_discretionary_appeals_list_2021sept27.pdf.