New Medical Malpractice Opinion: Court Holds That Case Was Not Subject to Dismissal Due to an Omitted Affidavit at Filing

The Tennessee Court of appeals just issued its opinion in Chambers ex rel. Chambers v. Bradley Cnty., No. E2013-01064-COA-R10-CV (Tenn. Ct. App. Mar. 28, 2014).   

In this medical malpractice[] case, the defendants moved to dismiss the complaint with prejudice on the grounds that plaintiff failed to file, with his complaint, the affidavit of the person who mailed pre-suit notice to the defendants. The trial court, noting that plaintiff complied with Tenn. Code Ann. § 29-26-121 (Supp. 2013) in every respect except for filing the affidavit, and that he filed the affidavit shortly after the complaint, denied the motion to dismiss on the ground that plaintiff had substantially complied with the statute. We affirm the judgment of the trial court. 

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

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

NOTE: Medical malpractice actions are now known as "health care liability actions" for cases that accrued on or after April 23, 2012.  This case, however, accrued before that date, which is why it is referred to by the old name as explained by footnote 1 of the opinion.

New Medical Malpractice Opinion: Court of Appeals Holds That Case Refiled under the Saving Statute Was Not Subject to Dismissal Because Plaintiffs Did Not Resend Presuit Notices Before Refiling the Case

The Tennessee Court of Appeals recently released its opinion in Potter v. Perrigan, No. E2013-01442-COA-R3-CV (Tenn. Ct. App. Mar. 27, 2014).  The summary from the opinion states as follows:

This is a medical malpractice[] action. Plaintiffs timely filed a complaint after properly sending pre-suit notices to Defendants. After voluntarily dismissing the initial complaint, Plaintiffs filed a second complaint pursuant to the saving statute with an attached certificate of good faith and a copy of the original pre-suit notices. Defendants moved to dismiss the second complaint for failure to comply with the notice requirements set out in Tennessee Code Annotated section 29-26-121(a). The trial court agreed and dismissed the action. Plaintiffs appeal. We reverse the decision of the trial court. 

Here is a link to the opinion, to wit:

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

NOTE: Medical malpractice actions are now known as "health care liability actions" for cases that accrued on or after April 23, 2012.  This case, however, accrued before that date, which is why it is referred to by the old name as explained by footnote 1 of the opinion.

Florida Supreme Court Declares Caps on Noneconomic Damages Unconstitutional

In an opinion released today (see link below), the Florida Supreme Court declared caps on noneconomic damages to be unconstitutional in wrongful death, medical malpractice cases on equal protection grounds under the Florida Constitution.  The case is Estate of McCall v. United States, No. SC11-1148 (Fla. Mar. 13, 2014).  It was a certified question from the Eleventh Circuit Court of Appeals.

http://www.floridasupremecourt.org/decisions/2014/sc11-1148.pdf

New Tennessee Supreme Court Opinion on Tennessee Code Annotated section 20-1-119

The Tennessee Supreme Court issued its opinion today in Becker v. Ford Motor Co., No. M2013-02546-SC-R23-CV (Tenn. Mar. 7, 2014).  The summary from the slip opinion states as follows:

This appeal involves a question of law concerning the interpretation and application of Tenn. Code Ann. § 20-1-119 (2009) certified by the United States District Court for the Eastern District of Tennessee. Based on the undisputed facts, the District Court has asked this Court to determine whether, after a defendant asserts a comparative fault claim against a non-party tortfeasor who was known to the plaintiff when the original suit was filed, Tenn. Code Ann. § 20-1-119 permits the plaintiff to amend its complaint to assert a claim directly against the tortfeasor named by the defendant, even though the statute of limitations on that claim has expired. We hold that the application of Tenn. Code Ann. § 20-1-119 is not restricted to tortfeasors who were unknown to the plaintiff when its original complaint was filed.  Therefore, Tenn. Code Ann. § 20-1-119 permits a plaintiff to file an amended complaint against the tortfeasor named by the defendant within ninety days after the filing of the answer or amended answer in which the defendant first asserts a comparative fault claim against the tortfeasor.

Here's a link to the opinion:

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

This opinion is no real surprise as far as Tennessee's law of comparative fault is concerned.  It is a more current version of another reported decision on this issue.  See generally Townes v. Sunbeam Oster Co., 50 S.W.3d 446 (Tenn. Ct. App. 2001).  However, as the Tennessee Supreme Court pointed out, this certified question was taken to clarify Tennessee's substantive law of comparative fault for the federal courts (which have, respectfully, misinterpreted Tennessee's law of comparative fault for a long time now).

Plaintiffs Capped by the Ad Damnum in The Complaint

The Tennessee Court of Appeals just issued its opinion in Wilson v. Americare Systems, Inc., No. M2013-00690-COA-RM-CV (Tenn. Ct. App. Feb. 25, 2014).  The summary in the slip opinion states as follows:

A defendant appeals the award of punitive damages arising from the death of a patient at an assisted living facility, which the defendant managed. We affirm the trial court’s review of the Hodges factors and the due process analysis relating to the punitive damage award. We also affirm the trial court’s directed verdict making the defendant liable for the actions of the assisted living facility’s employees. We must modify the amount of the punitive damage award by reducing it to comply with the amount the plaintiff requested in the ad damnum clause of their complaint.

Here is a link to the opinion:

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

This opinion is a harsh reminder that a plaintiff is limited by the ad damnum in the complaint in a Tennessee state court civil action, which is contrary to the rule in federal court.

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