New Medical Malpractice Case (n.k.a. Health Care Liability Action): Plaintiff Allowed to Nonsuit Case to Cure Allegedly Defective Certificate of Good Faith

The Tennessee Court of Appeals just issued its opinion in Davis v. Ibach, No. W2013-02514-COA-R3-CV (Tenn. Ct. App. Jul. 9, 2014).  The summary from the opinion states as follows:

This is a medical malpractice wrongful death action. After the plaintiff filed this lawsuit, he timely filed a certificate of good faith, as required by the medical malpractice statute. The certificate did not include a statement that the executing party had “zero” violations of the statute. The defendants filed a motion to dismiss based on this omission. The plaintiff in turn filed a notice of voluntary nonsuit without prejudice. The defendants objected to a dismissal without prejudice. The defendants argued that, if the certificate of good faith does not strictly comply with the statutes, the trial court must dismiss the case with prejudice. The trial court granted the voluntary nonsuit without prejudice, and the defendants now appeal that decision.
Discerning no error, we affirm.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/davistopn_0.pdf

Note: this opinion deals with some law that is no longer in effect.  However, that does not appear to affect the holding of this case.

Another Health Care Liability Action Opinion: Plaintiff's Case Dismissed Due to Running of Statute of Limitations That Was Not Extended by Presuit Notice That Was Transmitted in a Manner Proscribed by Statute

The Tennessee Court of Appeals recently issued its opinion in Arden v. Kozawa, No. E2013-01598-COA-R3-CV (Tenn. Ct. App. Jun. 18, 2014).  The summary from the opinion states as follows:

The plaintiff, as surviving spouse, appeals the trial court’s dismissal of his health care liability action against the defendant doctor who treated the plaintiff’s wife prior to her death and the hospital wherein the treatment occurred. The trial court granted the defendants’motions for summary judgment based upon the plaintiff’s failure to strictly comply with the pre-suit notice requirements of Tennessee Code Annotated § 29-26-121 (Supp. 2013). We reverse the trial court’s ruling that the plaintiff had to strictly comply with the provisions of the notice requirement and conclude that the plaintiff substantially complied with said requirement. We affirm, however, the trial court’s ruling that the plaintiff could not rely upon the statutory 120-day extension of the statute of limitations due to his failure to properly serve the notice. We therefore affirm the trial court’s dismissal of the plaintiff’s claims as barred by the statute of limitations.

Here is a link to the opinion:

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

The Declaration of Independence

Every Independence Day ("Fourth of July"), or around that time, I post this video on my blog.  Here it is again: 

http://www.youtube.com/watch?v=jYyttEu_NLU

Happy Independence Day everyone!

New Health Care Liability Action Opinion: Trial Court Erred in Excluding One of Plaintiff's Expert Witnesses; Error, However, Was Harmless under the Circumstances

The Tennessee Court of Appeals issued its opinion today in Evans v. Williams, No. W2013-02051-COA-R3-CV (Tenn. Ct. App. Jun. 30, 2014).  The summary from the opinion states as follows:

This is a health care liability action appeal.[]  The case was tried before a jury, resulting in a judgment for the defendant physicians. The trial court excluded the testimony of one of the plaintiff’s expert witnesses on the applicable standard of care after finding that he was not qualified under the locality rule. The plaintiff appealed to this Court arguing, among other things, that the trial court erred in its application of the locality rule. We hold that it was error for the trial court to exclude the witness, but find that any error was harmless under the facts of this case. We therefore affirm.

(Footnote omitted.)

Here is a link to the opinion:

https://www.tba.org/sites/default/files/evansb_063014.pdf

New Laws Effective in Tennessee in 2014

January 1, 2014:

http://www.capitol.tn.gov/legislation/publications/effective%2001-01-2014.pdf

July 1, 2014:

http://www.capitol.tn.gov/legislation/publications/Effective%207-1-2014.pdf

New Health Care Liability Opinion: Court Holds Plaintiffs Failed to Comply with the Onerous Presuit Notice Requirements; Lawsuit Dimisssed

The Tennessee Court of Appeals from the Eastern Section just released its opinion in Roberts v. Prill, No. E2013-02202-COA-R3-CV (Tenn. Ct. App. Jun. 26, 2014).  The summary from the opinion states as follows:

This is a health care liability[] action arising from the death of Decedent. Defendants moved to dismiss the action for failure to comply with the notice requirements set out in Tennessee Code Annotated section 29-26-121(a)(2)(E). The trial court agreed and dismissed the action without prejudice. Plaintiff appeals the dismissal to this court. We affirm the trial court’s dismissal. 

Here is a link to the opinion:

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

Lawyers May Look at What Jurors Post Online, But Only If It’s Available to the Public

If you have a trial practice, criminal or civil, the following article will be of interest to you, to wit:

http://www.abajournal.com/magazine/article/lawyers_may_look_at_what_jurors_post_online_but_only_if_its_available_to_th/?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly

New "Premises Liability" Case: Directed Verdict for the Defense Reversed on Appeal; Court Reminds Us That Causation and Fault Are Generally Questions for the Jury

The Tennessee Court of Appeals just issued its opinion in Wilson v. TMBC, LLC,  No. 2013-01907-COA-R3-CV (Tenn. Ct. App. May 27, 2014).  The summary from the opinion states as follows:

The plaintiff took his bass fishing boat to defendant’s business for it to repair a “rodbox lid” that did not fit properly. While the boat was there, defendant replaced the lid. Subsequently, plaintiff went to the defendant’s store and got in the boat, which was on a trailer in the parking lot, in order to examine the new lid. While attempting to exit the boat, plaintiff caught his foot on something, tripped, and fell out of the boat. Plaintiff’s theory was that an employee of the defendant had negligently left the old rodbox lid inside the boat and that plaintiff tripped over the old lid. At the close of plaintiff’s proof, defendant moved for a directed verdict, arguing that (1) plaintiff failed to prove breach of duty because, according to defendant, he offered no evidence of the object that caused his fall; and (2) defendant could not, as a matter of law, be liable because plaintiff was at least 50% at fault for his injuries. The trial court directed a verdict for defendant. We hold that plaintiff presented sufficient proof that the old lid caused him to trip and fall, and that a reasonable trier of fact could conclude that the employee had negligently caused plaintiff’s injury. We further hold that the question of comparative fault is properly for the jury to decide under the proof presented at this trial. We therefore vacate the directed verdict and remand for further proceedings. 

Here is a link to the opinion:

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

NOTE: in this case, at trial, a directed verdict was granted to the defense.  The Court of Appeals does a good job analyzing the law on this subject, and, again, reminds us that causation and fault are generally questions for the jury.

Memorial Day 2014

Please have a safe holiday weekend.  And remember our fallen soldiers.  They paid the ultimate sacrifice for you, me, and our posterity.

Help Keep the Tennessee Supreme Court Fair and Impartial: Vote to "RETAIN" Justices Clark, Lee, and Wade on Aug. 7, 2014

Members of the Tennessee Supreme Court are under attack by our state's Lt. Gov.  The attack is unfair, unwarranted, and just flat-out wrong.  See the news story at the following link below:

http://www.newschannel5.com/story/25446548/ramseys-supreme-court-claims-called-misleading

Further, the Lt. Gov. appears to be leading this attack for no other reason than his own political gain (think about it, he "wins" this one, he then gains favor from interests such as Big Money and Big Business, etc., which will help him run for governor---again!).

As such, if you are a registered voter in Tennessee, I am asking for your help.  Please Vote to "RETAIN" all three justices on August 7, 2014.  

Further, donations may be sent to the following, to wit:

Committee to Retain Justice Clark
918 Fair St.
Franklin, TN 37064
www.keepconnieclark.com

Committee to Retain Sharon Lee
P.O. Box 584
Knoxville, TN 37901
www.justicesharonlee.com

Friends of Gary Wade
P.O. Box 32676
Knoxville, TN 37930
www.friendsofgarywade.com

New Medical Malpractice Opinion on Presuit Notice to the State of Tennessee

The Tennessee Court of Appeals just released its opinion in Brown v. Samples, No. E2013-00799-COA-R9-CV (Tenn. Ct. App. Apr. 29, 2014).  The summary states as follows:

This is a medical malpractice action brought against the State of Tennessee and others. The issue as to the appealing State is whether the plaintiffs complied with the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121 (2012 & Supp. 2013). The State argues that the plaintiffs were required to send the pre-suit notice applicable to their claim against the State to either (1) the Attorney General of Tennessee or an Assistant Attorney General, or (2) the Division of Claims Administration of the State. The Tennessee Claims Commission denied the State’s motion to dismiss, finding (1) no statutory authority requiring that pre-suit notice as to the State be served upon one of the parties alluded to by the State, and (2) that the State received adequate pre-suit notice in this case. We affirm and hold that the plaintiffs complied with Section 121’s pre-suit notice requirements by providing notice to the University of Tennessee Graduate School of Medicine, a health care provider, which entity is a division of an agency of the State of Tennessee and also a named defendant in this case. 

Here is a link to the opinion:

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

NOTE: Please note that this case was filed before the statutory name change (from medical malpractice actions to health care liability actions), which is noted in footnote 1 of this opinion.

New Tennessee Supreme Court Opinion on Substantial Compliance as It Relates to the Filing of Affidavits Demonstrating Presuit Notice in a Health Care Liability Action

The Tennessee Supreme Court just released its opinion in Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLLC, No. M2012-02270-SC-R11-CV (Tenn. Apr. 24, 2014).  The summary from the opinion states as follows:

Sixty days prior to filing his complaint, the plaintiff in this health care liability action sent written notice of his potential claim to each of the health care providers that would be named as defendants. Tenn. Code Ann. § 29-26-121(a)(1) (2012 & Supp. 2013). The plaintiff served the pre-suit notice by certified mail, return receipt requested, as permitted by statute.  Id. § 29-26-121(a)(3)(B). In his subsequent complaint, the plaintiff alleged that he had complied with the statutory requirement of pre-suit notice, id. § 29-26-121(b), but the plaintiff failed to file with the complaint “an affidavit of the party mailing the [pre-suit] notice establishing that the specified notice was timely mailed by certified mail, return receipt requested,” id. § 29-26-121(a)(4). The defendants moved for dismissal of the lawsuit, citing the plaintiff’s failure to file with the complaint an affidavit of the person who had sent the pre-suit notice by certified mail. The defendants did not allege that the lack of the affidavit resulted in prejudice. Instead, the defendants contended that the pre-suit notice statute demands strict compliance with all its requirements and that dismissal is the mandatory remedy for noncompliance. The trial court “reluctantly” agreed with the defendants and dismissed the complaint. The Court of Appeals affirmed but noted the “harsh results” strict compliance produces in cases, such as this one, where no prejudice is alleged. We granted the plaintiff’s application for permission to appeal. We hold that the statutory requirement of an affidavit of the person who sent pre-suit notice by certified mail may be satisfied by substantial compliance. We also hold that the plaintiff substantially complied with the statute. Accordingly, the judgment of the Court of Appeals affirming the trial court’s dismissal of the complaint is reversed; the complaint is reinstated; and this matter is remanded to the trial court for further proceedings.

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/thurmondr_opn_1.pdf

Trial Court Ruling Allowing Plaintiff to File an Amended Certificate of Good Faith and Denying Defense Motion to Dismiss Upheld on Appeal

The Court of Appeals recently released its opinion in Stovall v. UHS of Lakeside, LLC, No. W2013-01504-COA-R9-CV (Tenn. Ct. App. Apr. 22, 2014).  The summary of the opinion states as follows:

Appellant medical providers appeal the trial court’s denial of their motions to dismiss a medical malpractice complaint for failure to strictly comply with Tennessee Code Annotated Section 29-26-122(d)(4). Because we conclude that the trial court had good cause to grant an extension, within which to file a certificate of good faith, we affirm the decision of the trial court. 

Here's a link to the opinion:

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

Health Care Liability Action: Court Reiterates That Statute of Repose Bars a Minor's Claim After Three Years; No Tolling Due to Minority in Such Cases

The Tennessee Court of Appeals just released its opinion in Bentley v. Wellmont Health Sys., No. E2013-01956-COA-R3-CV (Tenn. Ct. App. Apr. 10, 2014).  The summary from the opinion states as follows:

This is a health care liability action in which Defendants sought dismissal, claiming that the action was barred by the three-year statute of repose, codified at Tennessee Code Annotated section 29-26-116, as interpreted by Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005). Plaintiff alleged that the Court’s interpretation of the statute was unconstitutional as applied to his case. The trial court disagreed and dismissed the case. Plaintiff appeals. We affirm the decision of the trial court.

Here's a link to the opinion:

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

Video: Deposing Experts with Daubert in Mind

Here is a video from the ABA that I found informative on deposing expert witnesses.  It is available at the link below:

https://www.youtube.com/watch?v=Zk_jRK4tocg

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.