New Opinion on Tennessee Code Annotated section 20-1-119; the Governmental Tort Liability Act; and the Claims Commission

The Tennessee Court of Appeals just issued its opinion in Moreno v. City of Clarksville, No. M2013-01465-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2014).  The summary from the slip opinion reads as follows:

Plaintiff filed a timely claim with the Division of Claims Administration, which did not resolve the claim within the statutory period. The claim was transferred to the Claims Commission, and Plaintiff filed a complaint pursuant to the Claims Commission Rules. Much later, the State amended its answer to allege fault by the City of Clarksville. Plaintiff filed suit against the City. The suit was dismissed because the trial court found that the “original complaint” under Tenn. Code Ann. § 20-1-119 was not filed within a year of the alleged
injury. Plaintiff appealed. We reverse.

Here is a link to the opinion:

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

This opinion offers a very good discussion of Tenn. Code Ann. sec. 20-1-119; the Governmental Tort Liability Act; and the Claims Commission.  It is a must-read for any Tennessee trial lawyer.

Court of Appeals Upholds Trial Court's Dismissal of Plaintiff's Medical Malpractice Case Due to a Failure to Comply with Relatively New Tort Reform Statute That Required Sixty-day Presuit Notice

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Blankenship v. Anesthesiology Consultants Exchange, P.C., No. E2013-01674-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2014).  The summary from the slip opinion states as follows:

Kristine Blankenship (“Plaintiff”) sued Anesthesiology Consultants Exchange, P.C. (“Defendant”) alleging, in part, that as a result of Defendant’s failure to properly treat a surgical patient Plaintiff suffered injuries including “a severe and disabling injury to her back.” Defendant filed a motion for summary judgment. After a hearing, the Trial Court granted Defendant summary judgment after finding that Plaintiff had failed to comply with Tenn. Code Ann. § 29-26-121 by filing her complaint less than 60 days after sending the notice letter. Plaintiff appeals to this Court raising issues regarding whether Defendant waived the defense of failure to state a claim upon which relief can be granted based upon Plaintiff’s failure to comply with Tenn. Code Ann. § 29-26-121 and whether Tenn. Code Ann. § 29-26-121 conflicts with Rule 18.01 of the Tennessee Rules of Civil Procedure as applied to this case. We hold, as did the Trial Court, that Defendant did not waive the defense of failure to state a claim upon which relief can be granted based upon Plaintiff’s failure to comply with Tenn. Code Ann. § 29-26-121, and that Plaintiff waived her second issue by not raising it in the Trial Court. We affirm.

Here is a link to the opinion:

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

Needless to say, this is an unusual case that is muddled by the fact that it seems to sound in both medical negligence and ordinary negligence.  For the reader of this post, please be mindful of the timing of recent tort reform legislation as it applies to this case.

Health Care Liability Reports for the State of Tennessee from 2005-13

The State of Tennessee's Department of Commerce & Insurance publishes reports on health care liability actions (f.k.a. medical malpractice actions).  These reports have been published since 2005.  They are below:

• 2013 Report
• 2012 Report
• 2011 Report
• 2010 Report
• 2009 Report
• 2008 Report
• 2007 Report
• 2006 Report
• 2005 Report

These reports offer a lot of information on "med mal" claims in Tennessee.  Most importantly, the reports show that the number of med mal claims being filed each year are trending down; the amount of money paid to claimants is trending down; etc.  

Medical Malpractice Suits Drop in Tennessee; 2008 Reforms Praised, Panned

Here is a link to an article by Todd South from the Chattanooga Times Free Press.  It's worth the read. (Pay attention to the charts, too.)  To wit:

http://www.timesfreepress.com/news/2013/dec/03/medical-malpractice-suits-drop-reforms-that/

New Health Care Liability Action Regarding an Unavailable Expert Witness: New Trial Ordered

The Court of Appeals released its opinion in Cullum v. Baptist Hosp. Sys., Inc., No. M2012-02640-COA-R3-CV (Tenn. Ct. App. Feb. 12, 2014).  Here is the summary from the slip opinion:

The trial court prohibited the use of taped testimony from a prior trial when a doctor exercised his statutory right not to appear at trial, ordering that the doctor “needs to testify live or not at all.” Efforts of the defendants’ counsel to secure the doctor’s live testimony were successful, only to have the plaintiffs’ counsel argue that counsel was being ambushed.  The trial court finally determined not to allow the doctor to testify. The issues relating to prohibiting the doctor’s taped testimony and then prohibiting the doctor’s live testimony were appealed, along with other issues that arose during the trial. We find these two testimonial issues dispositive. We reverse the trial court on both issues and remand for a new trial.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/cullumj_021314.pdf

This will be the fourth trial of this case upon remand.

Child Safety Issues: Lion Force Recalls Boys' Puffer Coats Due to Strangulation Hazard; Sold Exclusively at Burlington Coat Factory

Here is a link that information:

http://www.prnewswire.com/news-releases/lion-force-recalls-boys-puffer-coats-due-to-strangulation-hazard-sold-exclusively-at-burlington-coat-factory-243532321.html

3T Design Recalls Cervelo Bicycles with Aduro Aero Handlebars Due to Risk of Injury

See link below:

http://www.prnewswire.com/news-releases/3t-design-recalls-cervelo-bicycles-with-aduro-aero-handlebars-due-to-risk-of-injury-243542191.html

New Health Care Liability Action Opinion: Saving Statute Extended in "Transitional Case" by Presuit Notice Being Given

Upon mandate from the Tennessee Supreme Court, the Tennessee Court of Appeals just issued its opinion in Johnson v. Floyd, No. W2012-00207-COA-R3-CV (Tenn. Ct. App. Feb. 6, 2014).  The summary from the opinion states as follows:

This case is before us upon mandate from the Tennessee Supreme Court for reconsideration of our previous opinion, Johnson v. Floyd, No. W2012-00207-COA-R3-CV, 2012 WL 2500900 (Tenn. Ct. App. June 29, 2012), in light of the Tennessee Supreme Court’s decision in Rajvongs v. Wright, --- S.W.3d ----, 2013 WL 6504425 (Tenn. 2013). Based on the Tennessee Supreme Court’s decision, we reverse the decision of the trial court and remand for further proceedings.

Here's a link to the slip opinion:

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

NOTE: In a nutshell, this opinion allowed a one-hundred-twenty-day extension to the saving statute because this case is a "transitional case."  This post, however, should be read in conjunction with my June 30, 2012 post to gain a better understanding of the issues at hand.

DepositionOnline.com

I came across this service the other day.  I have no idea if it works well or not (haven't used it) but it looks pretty interesting.  Please see link below:

http://depositiononline.com/

Child Safety Issues: Strollers Recalled by Britax Due to Partial Fingertip Amputation Hazard

Here's a link to the information about the recall:

http://www.prnewswire.com/news-releases/strollers-recalled-by-britax-due-to-partial-fingertip-amputation-hazard-242777071.html

Tennessee Court of Appeals Holds That Plaintiff's Failure to Effect Proper Presuit Notice Prevents Initial Action from Being Timely Filed, Which Prevents Case from Being Refiled under the Saving Statute

The Tennessee Court of Appeals released its opinion in Byrge v. Parkwest Med. Ctr., No. E2013-00927-COA-R3-CV (Jan. 30, 2014).  The summary from the slip opinion states as follows:

After taking a non-suit, Bobby J. Byrge, individually and as next of kin for the decedent Julia Kay Byrge, and the Estate of Julia Kay Byrge (“Plaintiff”) filed a second healthcare liability suit against Parkwest Medical Center (“Parkwest”) and Dr. John C. Showalter, M.D.[] Parkwest filed a motion to dismiss, and after a hearing, the Trial Court granted Parkwest’s motion finding and holding that Plaintiff’s suit was barred by the statute of limitations.  Plaintiff appeals to this Court asserting that his suit was not barred as he was entitled to rely upon Tenn. Code Ann. § 28-1-105, the saving statute. We affirm finding and holding, as did the Trial Court, that Plaintiff’s first suit was not timely filed because Plaintiff did not comply with Tenn. Code Ann. § 29-26-121, and, therefore, Plaintiff could not rely upon Tenn. Code Ann. § 28-1-105 to save his second suit.

Here's a link to the opinion:

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

New Tennessee Supreme Court Opinion: Health Care Liability Action Allowed to Proceed

The Tennessee Supreme Court released its opinion today in Cannon ex rel. Good v. Reddy, No. M2012-01332-SC-S10-CV (Tenn. Jan. 29, 2014).  The summary from the slip opinion reads as follows:

The plaintiff filed a health care liability action against the defendant. During the pendency of her action, the General Assembly enacted the pre-suit notice and certificate of good faith requirements of Tennessee Code Annotated sections 29-26-121 and -122. The plaintiff voluntarily dismissed her original action. The plaintiff then filed two successive actions.  First, the plaintiff filed a second action that did not comply with the pre-suit notice and certificate of good faith statutes. The plaintiff then filed a third action that complied with Tennessee Code Annotated sections 29-26-121 and -122. The plaintiff moved to consolidate her second and third actions, and the defendant moved to dismiss. The defendant contended that the plaintiff’s second action should be dismissed for failure to comply with the pre-suit notice and certificate of good faith requirements and that her third action should be dismissed based on the doctrine of prior suit pending. The trial court consolidated the lawsuits and denied the defendant’s motions to dismiss. The defendant moved for permission to file an interlocutory appeal, which the trial court denied. We granted the defendant’s  application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure.  During the pendency of the appeal, the plaintiff voluntarily dismissed her second action. As a result of the plaintiff’s voluntary dismissal and our recent holding in Rajvongs v. Wright, ___ S.W.3d ___, 2013 WL 6504425 (Tenn. Dec. 12, 2013), we hold that the plaintiff, who properly provided pre-suit notice of her claim prior to filing her third action, was entitled to a 120-day extension in which to refile her complaint pursuant to Tennessee Code Annotated section 29-26-121(c). The plaintiff’s third complaint was therefore timely filed. We affirm the judgment of the trial court and remand this case for further proceedings.

Here's a link to that opinion: http://www.tsc.state.tn.us/sites/default/files/cannonopn.pdf

Remembering Why We Stand Up for What Is Right

Today I attended a luncheon at the Gordon Jewish Community Center ("GJCC") here in Nashville (here is the GJCC's Web site: www.nashvillejcc.org).  (As an aside, the GJCC is a wonderful place.)

John Seigenthaler spoke about civil rights since the death of President John F. Kennedy, and, or course, about Dr. Martin Luther King Jr. in particular.  It was a very moving speech; one that reminded me why we must stand up for what is right.  What I took away from the speech, in part, is this: discrimination---in any form (especially coupled with ignorance)---is evil.  It has led to slavery, to the Holocaust, etc.  But I also took this way from his speech: things can change; and with a little help from regular people---folks like you and me---we can make a difference.  Now, it might not be easy; in fact, it might be really difficult at times. But if we stand up for the right thing, the world we live in (and the world we leave to our children) will be a much better place.  

I want to leave you all with this thought.  My son, who is three, loves a Dr. Seuss movie called The Lorax. There is a quote from the movie that states as follows: “Unless someone like you cares a whole awful lot, nothing is going to get better. It's not.” 

I'm extremely glad we had people like JFK and MLK who cared; and that we have people like Mr. Seigenthaler who cared---and still cares.  It does my heart good.

"Patient Harm: When An Attorney Won’t Take Your Case"

This article is very interesting.  See link below.

http://www.propublica.org/article/patient-harm-when-an-attorney-wont-take-your-case?utm_source=et&utm_medium=email&utm_campaign=dailynewsletter

GLOSSARY OF LEGAL TERMS

At this link:

http://www.tsc.state.tn.us/media/glossary-legal-terms

Holiday Message from TDL

Merry (belated) Christmas!  Happy New Year too!

I hope 2014 is your best year yet.  May it bring you much joy and happiness.

Lastly, please enjoy the holidays with your family and friends.  You won't regret it.

Understanding Your Court System: A Guide to the Judicial Branch

The link below leads to a booklet in pdf format published by the Tennessee Supreme Court and the Tennessee Administrative Office of the Courts that explains the judiciary branch on the federal and state levels, to wit:

http://www.tsc.state.tn.us/sites/default/files/citizenbook-revised.pdf

New Opinion on Tennessee Code Annotated section 20-1-119, Which Is the Comparative Fault Joinder Statute

The Tennessee Court of Appeals just issued its opinion in Morris v. Phillips, No. M2013-00417-COA-R9-CV (Tenn. Ct. App. Dec. 17, 2013).  The summary from the opinion states as follows:

A multi-vehicle accident occurred in August 2010. The plaintiff initially named only one of the drivers involved in the accident along with the record owner of the driver’s vehicle. The record owner filed an answer identifying three other drivers/tortfeasors involved in the accident in December 2011, and the driver identified the same three individuals as tortfeasors in his answer that was filed seven months later, in July 2012. The plaintiff did not file an amended complaint adding the individuals identified as defendants until August 2012, which was more than 90 days after the first answer was filed. One of the individuals named as a defendant filed a motion to dismiss, arguing the plaintiff waited too late to add her as a defendant. The trial court denied the motion. The late-added defendant appealed, and we reverse the trial court’s judgment.

Here is a link to the opinion:

http://www.tba.org/sites/default/files/morrisk_121813.pdf

New Tennessee Supreme Court Opinion: Element of Duty in a Premises Liability Case

The Tennessee Supreme Court released its opinion in Cullum v. McCool, No. E2012-00991-SC-R11-CV (Tenn. Dec. 18, 2013).  The summary from the slip opinion states as follows:

The issue presented in this premises liability case is whether a store owes a duty to protect its customer from a visibly intoxicated customer who was ordered to leave the store by store employees. A store patron sued a store for negligence after she was struck and injured in the store’s parking lot by a vehicle driven by another store patron. Store employees had refused to fill the other patron’s medical prescriptions because they believed she was intoxicated; she became belligerent, and store employees ordered her to leave the store knowing that she was alone and would be driving her vehicle. In response to the lawsuit, the store filed a motion to dismiss, contending that it did not have a legal duty to control the intoxicated patron after she left the store. The trial judge granted the store’s motion to dismiss. The Court of Appeals reversed, finding that the store owed the injured patron a duty of care to protect her from the intoxicated patron. Taking the plaintiffs’ allegations as true and drawing all reasonable inferences in her favor, we hold that the foreseeability of harm and the gravity of harm to the injured patron outweighed the burden placed on the store to protect the patron against that harm. Therefore, the store patron’s complaint contains sufficient allegations which, taken as true, establish that the store owed a duty of care to the injured patron. The trial court erred by granting the motion to dismiss.

Here's a link to the majority opinion:

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

Justice Holder issued a separate opinion concurring in part and dissenting in part.  Here is a link to that opinion:

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

New Tennessee Supreme Court Opinion: Presuit Notices Extend Saving Statute in This Particular Health Care Liability Action

The Tennessee Supreme Court just released its opinion in Rajvongs v. Wright, No. M2011-01889-SC-S09-CV (Tenn. Dec. 12, 2013).  The summary from the slip opinion states as follows:

The plaintiff filed his initial health care liability action against the defendant prior to the enactment of the pre-suit notice requirements of Tennessee Code Annotated section 29-26-121. The plaintiff voluntarily dismissed his original action. More than one year later, the plaintiff refiled his action after the effective date of section 29-26-121. The defendant moved for summary judgment, alleging that the plaintiff’s second action was barred by the statute of limitations. The plaintiff countered that his pre-suit notice commenced his new action prior to the expiration of the one-year saving statute. Alternatively, the plaintiff argued that Tennessee Code Annotated section 29-26-121 extended the saving statute by 120 days. The trial court denied the defendant’s motion for summary judgment but granted permission to file an interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Appeals granted the application for permission to appeal and affirmed the trial court’s denial of the motion for summary judgment. We hold that the plaintiff’s action was commenced by the filing of a second health care liability complaint rather than by providing pre-suit notice. We further hold that a plaintiff who files his initial action prior to the effective date of Tennessee Code Annotated section 29-26-121, dismisses his original action, properly provides pre-suit notice, and refiles his action after the effective date of the statute, is entitled to the 120-day extension. We therefore affirm the judgment of the Court of Appeals and remand this case to the trial court for further proceedings.

Here is a link to the unanimous opinion:

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

Practice tip: Pay close attention to page 7 of this opinion.

This post is related to two prior posts: one from June 21, 2012; and the other from June 30, 2012.  Links to both are below:

http://theduncanlawfirm.blogspot.com/2012/06/medical-malpractice-saving-statute.html

http://theduncanlawfirm.blogspot.com/2012/06/medical-malpractice-saving-statute-not.html