New Health Care Liability Action Opinion: Effect of a Plaintiff's Waiver of a Defendant Having to File a Certificate of Good Faith When That Defendant Alleges Fault Against a Nonparty That Is Sued Based upon Defendant's Allegation of Fault

On December 30, 2014, the Tennessee Court of Appeals issued its opinion in Sirbaugh v. Vanderbilt Univ., No. M2014-00153-COA-R9-CV (Tenn. Ct. App. Dec. 30, 2014).  This opinion has to do with the effect of a waiver by the plaintiff of the defendant having to file a certificate of good faith when the defendant alleges fault against a nonparty health care provider.  

The summary from the opinion states as follows:

The plaintiff in this interlocutory appeal filed a complaint asserting health care liability claims against the original defendants, at which time she included a certificate of good faith in accordance with Tennessee Code Annotated section 29-26-122. The original defendants asserted comparative fault against non-party health care providers. The plaintiff waived compliance by the original defendants with section 29-26-122(b), which required the defendants to file a certificate of good faith regarding the non-party health care providers.  The plaintiff thereafter amended her complaint to add the named non-party health care providers as new defendants but did not file a new certificate of good faith. The new defendants moved to dismiss the amended complaint. The trial court denied the motions and granted this interlocutory appeal. We reverse.

Here's a link to the opinion:

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

New Health Care Liability Action Opinion: Expert Need Not Phrase Opinion in Perfect Legalese to Create Question of Fact for the Jury to Decide

The Tennessee Court of Appeals released its opinion in Dickson v. Kriger, No. W2013-02830-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2014) in late December 2014.  This is an important opinion in that it holds that an expert need not use perfect legalese or "magic words" to be qualified to give opinions on the standard of care and causation in a health care liability action, which creates questions of fact for the jury to decide.  As such, the Tennessee Court of Appeals reversed a directed verdict in favor of the defense.

The summary from the opinion states as follows:

Patient brought a health care liability action against his eye surgeon, alleging that the surgeon’s negligence in performing a LASIK procedure resulted in several eye injuries. The trial court granted a directed verdict for the surgeon, finding the patient failed to present evidence establishing the standard of care and causation. Because we find the evidence was sufficient to create an issue for the jury, we reverse and remand to the trial court.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/dicksonleonopn_0.pdf

New Health Care Liability Action Opinion: HIPAA Authorizations & Presuit Notice of Claim

The Eastern Section of the Tennessee Court of Appeals released its opinion on December 15, 2014, in Hamilton v. Abercrombie Radiological Consultants, Inc., No. E2014-00433-COA-R3-CV (Tenn. Ct. App. Dec. 15, 2014).  The summary from the opinion states as follows:

This is a health care liability action, arising from the death of Decedent, David Hamilton. Decedent’s surviving spouse, Donna Hamilton (Appellant), filed this action against Appellees, Abercrombie Radiological Consultants, Inc. and Dr. Donna K. Culhane.  Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated Section 29-26-121 et seq. Specifically, the Appellees challenged whether the medical release provided with the pre-suit notice letter was compliant with the Health Information Portability and Accountability Act (“HIPAA”). The trial court agreed with Appellees and dismissed the action with prejudice. Appellant timely appealed. We reverse and remand the matter to the trial court.

Here is a link to the opinion:

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

I've Been Away for Some Time But I Am Back Now

To my readers:

Sorry I haven't posted in a while.  Some things arose at the end of 2014 that could not be avoided and I had to tend to them.  I'm wrapping matters up now and will start posting again today.

Thanks for reading.

Tony

Offer of Judgment Made under Tenn. R. Civ . P. 68 Held to Be Irrevocable During Ten-day Period

The Tennessee Court of Appeals released its opinion Friday in McGinnis ex rel. McGinnis v. Cox, No. M2014-00102-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2014).  The summary from the opinion states as follows:

Plaintiffs presented Defendants with an offer of judgment pursuant to Rule 68 of the Tennessee Rules of Civil Procedure. Prior to Defendants’ acceptance, Plaintiffs attempted to rescind the offer. Defendants nevertheless accepted the offer within the time allowed by Rule 68 and attempted to enforce the offer of judgment. The trial court concluded that Plaintiffs were not entitled to revoke the offer of judgment and entered an order granting the motion to enforce the judgment. We affirm and remand.

Here is a link to the slip opinion:

https://www.tba.org/sites/default/files/mcginnisk_110314.pdf.

NOTE: the ten-day life of an offer of judgment can be extended via Rule 6 of the Tennessee Rules of Civil Procedure.  This is all the more reason that one must be very careful before making an offer of judgment under Rule 68.

New Health Care Liability Action Opinion: 120-day Extension to Statute of Limitations Applies to Governmental Entities

The Eastern Section of the Tennessee Court of Appeals released its opinion last week in Harper v. Bradley Cnty., No. E2014-00107-COA-R9-CV (Tenn. Ct. App. Oct. 30, 2014).  The summary from the slip opinion states as follows:

The issue presented on this appeal is whether a plaintiff who brings a health care liability action against a governmental entity under the Governmental Tort Liability Act (“the GTLA”) is entitled to the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121(c)(Supp. 2014) under the current version of the Health Care Liability Act (“the HCLA”). This inquiry focuses on the effect of the 2011 amendment to the HCLA that expressly includes “claims against the state or a political subdivision thereof” within the definition of “health care liability action.” Applying the principles set forth by the Supreme Court in Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), we hold that the 2011 amendment demonstrates a clear intent on the part of the General Assembly to allow the GTLA’s one-year statute of limitations to be extended by 120 days in cases where a plaintiff satisfies the requirements of the HCLA. We affirm the judgment of the trial court denying defendant Bradley County’s motion to dismiss.

(Emphasis and italics in original.)

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/harpersopncorr_0.pdf.

NOTE: This post should be read with my May 9, 2013 post discussing the Cunningham case cited in the summary above (with its footnotes foreshadowing this decision).  Here is a link to that post: 

http://theduncanlawfirm.blogspot.com/2013/05/medical-malpractice-nka-health-care.html.

Further, this is a must-read opinion for any lawyer who handles health care liability cases (f.k.a. medical malpractice cases).  If this case is taken up by the Tennessee Supreme Court, which is very likely, the Court will more than likely affirm the trial court as the lower appellate court did.  It is the correct decision in my humble opinion.

Lastly, it would be a safe assumption for one to think that the three-year statute of repose would be extended by 120 days via the 2011 amendment to Tenn. Code Ann. sec. 29-26-101, too. Compare Harper, supra, with T.C.A. § 29-26-121(c).  However, I am not aware of any case holding that way at this time.

Despite Multiple Malpractice Payouts, Doctors Often Keep Practicing

See story at this link:

http://www.cbsnews.com/news/despite-multiple-malpractice-payouts-doctors-often-keep-practicing/

Health Care Liability Action Dismissed via Summary Judgment

The Tennessee Court of Appeals released its opinion today in Buman v. Gibson, No. W2013-01867-COA-R3-CV (Tenn. Ct. App. Aug. 11, 2014).  The summary from the slip opinion states as follows:

This is a health care liability action involving a physician’s duties when supervising a physician’s assistant. The plaintiff alleged the supervising physician negligently supervised a physician’s assistant which resulted in the eventual amputation of the plaintiff’s leg. The physician moved for summary judgment, contending that he complied with all statutory duties. The plaintiff responded to this motion and simultaneously moved to amend her complaint to allege that the physician was vicariously liable for the negligent actions of the physician’s assistant. The trial court denied the plaintiff’s request to amend her complaint and granted the physician’s motion for summary judgment. Discerning no error, we affirm.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/bumanm_081114.pdf

New Tennessee Court of Appeals Opinion on Voir Dire, Remittitur, and Damages

The Court of Appeals recently issued its opinion in Borne v. Celadon Trucking Servs., Inc., No. W2013-01949-COA-R3-CV (Tenn. Ct. App. Jul. 31, 2014).  The summary from the majority opinion states as follows:

Plaintiff was injured in an accident involving three tractor-trailer trucks. Plaintiff, who was driving a tractor-trailer, sued the other truck drivers and the trucking company owners of the vehicles. However, prior to trial, Plaintiff entered into an agreement with one of the trucking companies whereby Plaintiff and the agreeing defendant agreed to cooperate regarding the litigation and to work together to expose the defenses asserted by the non-agreeing defendant. The jury returned an itemized verdict of $3,705,000 for the Plaintiff against the non-agreeing defendant. The trial court denied the non-agreeing defendant’s motion for a new trial, but it suggested a remittitur of $1,605,000, for a total award of $2,100,000.  Plaintiff accepted the remittitur under protest and the non-agreeing defendant appealed to this Court. For the following reasons, we affirm in part and we reverse in part. Specifically, we affirm the physical pain and mental anguish and permanent injury awards as reduced by the trial court; we reverse the trial court’s suggested remittitur of the loss of earning capacity award and we instead reinstate the jury verdict of $1,455,000; and we further reduce the loss of enjoyment of life award to $50,000. Thus, we approve a total award to Plaintiff of $2,105,000.

Here's a link to the majority opinion:

https://www.tba.org/sites/default/files/borned_073114.pdf

Here's a link to the partial dissent by Judge Stafford:

https://www.tba.org/sites/default/files/bornd_DIS_073114.pdf

NOTE: look for a Tenn. R. App. P. 11 application to be filed in this case.  I suspect the Tennessee Supreme Court might take it up given the very good points Judge Stafford made in his partial dissent.

New Health Care Liability Action Opinion

Yesterday the Tennessee Court of Appeals released its opinion in Johnson v. Parkwest Med. Ctr., No. E2013-01228-COA-R3-CV (Tenn. Ct. App. Jul. 31, 2014).  The summary from the opinion states as follows:

Eric Johnson, acting individually and as next of kin of the decedent,Jana Lanell Johnson, and the Estate of Jana Lanelle Johnson (“Plaintiffs”), filed the instant action on April 27, 2010, regarding Ms. Johnson’s death. The action alleged health care liability claims pursuant to Tennessee Code Annotated § 29-26-115, as well as other claims, including ordinary negligence and intentional infliction of emotional distress. An agreed order granting partial summary judgment to Parkwest Medical Center (“Parkwest”) was entered with regard toPlaintiffs’ non-medical claims. Parkwest subsequently filed a motion to dismiss, alleging that Plaintiffs failed to comply with all of the requirements of Tennessee Code Annotated § 29-26-121 regarding the health care liability claim. Upon hearing, the trial court granted the motion. Plaintiffs filed additional motions regarding newly discovered evidence, including a motion seeking to set aside the prior order granting partial summary judgment or to amend the complaint, a motion to amend the certificate of good faith, and a motion seeking sanctions. The trial court denied Plaintiffs’ motion seeking to set aside the prior order granting partial summary judgment or to amend the complaint, as well as Plaintiffs’ motion to amend the certificate of good faith. The trial court failed to rule on Plaintiffs’ motion seeking sanctions. Plaintiffs have appealed to this Court. We affirm the trial court’s dismissal of Plaintiffs’ health care liability claim based on Plaintiffs’ failure to substantially comply with the requirements of Tennessee Code Annotated § 29-26-121. We vacate the trial court’s rulings with regard to Plaintiffs’ motions to amend and motion to set aside the partial summary judgment order. We remand for further proceedings consistent with this opinion.

Here is a link to the opinion:

https://www.tba.org/sites/default/files/johnsone_073114.pdf

Flowchart of the Medicare Recovery Process (2.01.14)

https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Attorney-Services/Downloads/Beneficiary-NGHP-Recovery-Process-Flowchart.pdf

Case Dismissed Due to Plaintiff's Counsel's Failure to Effect Proper Service of Process

The Court of Appeals issued its opinion today in Doyle v. Town of Oakland, No. W2013-02078-COA-R3-CV (Tenn. Ct. App. Jul. 28, 2014).  The summary from the opinion states as follows:

This is an appeal from a dismissal for improper service of process. The plaintiff filed a complaint against the defendant municipality. The summons and complaint were served on the municipality’s finance director. In its answer, the municipality asserted improper service of process for failure to serve either the municipality’s chief executive or its city attorney.  Later, the municipality filed a motion for summary judgment. The motion asserted that, because service of process was insufficient under Tenn. R. Civ. P. 4.04, the complaint was time-barred under the applicable statute of limitations. The trial court granted summary judgment in favor of the municipality. The plaintiff appeals. Discerning no error, we affirm.

Here is a link to the opinion:

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

Six Children Injured in Crash on I-24

http://www.wsmv.com/story/26121545/6-children-injured-in-crash-along-i-24

New Medical Malpractice Case: Expert's Failure to Disclose Financial Information Leads to Disqualification

The Court of Appeals just issued its opinion in Lasseter v. Estate of Fernando Herrera, M.D., No. W2013-02105-COA-R3-CV (Tenn. Ct. App. Jul. 24, 2014).  The summary from the opinion states as follows:

This appeal involves a defendant’s attempts to discover certain financial information from the plaintiff’s medical expert in order to facilitate an inquiry into potential bias. The trial court entered several orders requiring the expert witness to provide the requested financial information, which related to his income and compensation, but the expert witness repeatedly failed to comply with the trial court’s orders. The trial court also ruled that the defendant would be permitted to question the expert witness about certain financial information during cross-examination at trial, and the expert witness communicated to the trial judge that he would refuse to answer any such questions. The trial court eventually excluded the medical expert as a witness and allowed the plaintiff time to find a replacement expert. When the plaintiff failed to identify another expert witness within the time allowed, the trial court dismissed the complaint. The plaintiff appeals. We affirm.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/laseterl_072414.pdf

Deadly Crash Shuts Down Briley Pkwy.

http://www.wsmv.com/story/26088923/deadly-crash-shuts-down-briley-pkwy

Are More Drivers Obeying the State's Move-over Law?

I thought this story might be of interest to you.  See link below.

http://www.wsmv.com/story/26087035/are-more-drivers-obeying-the-states-move-over-law

New Health Care Liability Opinion on Ex Parte Communications with a Plaintiff's Treating Physicians

The Tennessee Court of Appeals just released its opinion in Hall v. Crenshaw, No. W2013-00662-COA-R9-CV (Tenn. Ct. App. Jul. 18, 2014).  The summary from the opinion states as follows:

This interlocutory appeal involves ex parte communications between defense counsel for a defendant medical entity and non-party physicians who treated the plaintiff’s decedent and are employed by the defendant medical entity. The plaintiff filed this healthcare liability action against the defendant medical entity arising out of treatment of the plaintiff’s decedent. The trial court held that the attorneys for the defendant medical entity are barred under Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn. 2006), from conferring ex parte with treating physicians employed by the defendant medical entity who are not named as defendants in the lawsuit. The defendant medical entity was granted permission for this interlocutory appeal. We hold that the defendant medical entity has an independent right to communicate privately with its employees, and this right is not abrogated by the filing of the plaintiff’s healthcare liability lawsuit. Therefore, Alsip does not bar the medical entity’s attorneys from communicating ex parte with physicians employed by the medical entity about the physician employee’s medical treatment of the plaintiff’s decedent.  Accordingly, we reverse. 

(Bolding and italics in original.)

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/hallcopn_0.pdf

Vehicle Speed Calculator

I found this Web site this morning and thought I'd share.  See link below.

http://www.atlantaeng.com/calculatormultiple.html

New Tennessee Supreme Court Opinion on Summary Judgments: Trial Courts Must Explain Reasoning When Ruling on Summary Judgment Motions and Can't Delegate that Function to Counsel

The Tennessee Supreme Court just issued its opinion in Smith v. UHS Lakeside, Inc., No. W2011-02405-SC-R11-CV (Tenn. Jul. 15, 2014).  The summary from the opinion states as follows:

This appeal involves the manner in which a trial court granted motions for summary judgment in a proceeding involving the death of a patient whose treatment for viral encephalitis was delayed because he was also being assessed for involuntary commitment to a psychiatric hospital. The widow of the deceased patient filed suit against three health care providers in the Circuit Court for Shelby County. In her original complaint and four subsequent amended complaints, the widow asserted eight causes of action against one or more of the providers. The trial court eventually granted a series of summary judgments dismissing all the claims against one of the providers without explaining the grounds for its decisions and requested counsel for the provider to prepare appropriate orders “establish[ing] the rationale for the [c]ourt’s ruling in quite specific detail.” The provider’s counsel prepared detailed orders adopting all the arguments the provider had made in favor of its summary judgment motions, and the trial court signed these orders over the widow’s objections. The widow appealed, arguing that the trial court had failed to provide reasons for its decisions and that the orders did not accurately reflect what had occurred at the summary judgment hearings. The Court of Appeals vacated the disputed orders because the trial court had failed to state the legal grounds for its decisions as required by Tenn. R. Civ. P. 56.04 and remanded the case to the trial court. Smith v. UHS of Lakeside, Inc., No. W2011-02405-COA-R3-CV, 2013 WL 210250, at *12-13 (Tenn. Ct. App. Jan. 18, 2013). We granted the provider’s application for permission to appeal. We have determined that the record establishes that the contested orders were not the product of the trial court’s independent judgment, and therefore, we hold that the trial court failed to comply with Tenn. R. Civ. P. 56.04.

Here is a link to the slip opinion:

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

New Medical Malpractice Case (n.k.a. Health Care Liability Action): Plaintiff's Claim Against Additional Defendants Held to Be Time-barred

The Tennessee Court of Appeals issued its opinion today in Robinson v. Baptist Memorial Hospital, No. W2013-01198-COA-R3-CV (Tenn. Ct. App. Jul. 11, 2014).  Here is the summary from the opinion:

This is a medical negligence/wrongful death case. Following their mother’s death, Appellants’ filed the instant lawsuit against several doctors who provided treatment to their mother. During discovery, Appellants allegedly learned that the Appellee physician had amended his original consultation report to correct a mis-diagnosis of the Decedent’s condition. Appellants were granted leave to amend their complaint to add the Appellee and his medical practice as defendants to the lawsuit. The amended complaint naming the Appellees was filed some five years after the filing of the original lawsuit. Appellees moved for summary judgment on the ground that the statutes of limitations and repose barred Appellants’ case. The trial court granted summary judgment, finding that the Appellants had not shown facts sufficient to establish fraudulent concealment on the part of the Appellee physician so as to toll the applicable one-year statute of limitations and three-year statute of repose under Tennessee Code Annotated Section 29-26-116. The trial court also found that Appellants had failed to exercise due diligence in discovering the alleged fraudulent concealment. Appellants appeal. For the reasons stated herein, we affirm and remand.

Here is a link to the slip opinion:

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

Note: This case was decided under the old law in Tennessee before cases were referred to by statute as "health care liability actions."  This does not, however, appear to affect the holding of this case.