New Health Care Liability Action Opinion: Saving Statute Held to Be Extended by 120 Days Due to Presuit Notice Letters Being Sent Out under Tenn. Code Ann. sec. 29-26-121

The Tennessee Court of Appeals issued its opinion today in Tinnel v. East Tennessee Ear, Nose, and Throat Specialists, P.C., No. E2014-00906-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2015).  The summary from the opinion states as follows:

This is a medical malpractice action. Plaintiff filed a complaint after 2 sending pre-suit notices to Defendants. After voluntarily dismissing the complaint, Plaintiff filed a second set of pre-suit notices before re-filing the complaint. The pre-suit notices were filed within one year of the voluntary dismissal. Defendants moved for summary judgment, alleging that the re-filed complaint was untimely because it was not filed within one year of the dismissal pursuant to the saving statute. Plaintiff responded that the re-filed complaint was timely because the pre-suit notices entitled her to a 120-day extension of the saving statute pursuant to Tennessee Code Annotated section 29-26-121(c). The trial court dismissed the action.  Plaintiff appeals. We reverse the decision of the trial court.  

Here's a link to the opinion:

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

Tennessee Supreme Court Denies Appeal in Harper v. Jackson-Madison Cnty. Gen. Hosp. Dist.

Last Thursday (Feb. 19, 2015) the Tennessee Supreme Court denied the defendant's application for permission to appeal under Rule 11 of the Tennessee Rules of Appellate Procedure in Harper v. Bradley Cnty.  This is a significant denial of an appeal because it allows the previous ruling to stand in that a plaintiff now gets the 120-day extension of the statute of limitations against a governmental entity (when proper presuit notices have been effected, of course) under the 2011 amendment in question.

Here is a link to the Tennessee Administrative Office of the Court's Web site where a copy of the order denying permission to appeal can be obtained, to wit:

 http://www2.tncourts.gov/PublicCaseHistory/CaseDetails.aspx?id=62136&Party=True

Further, please note that this post is a follow-up post to ones I made on this blog on January 31, 2015:

http://theduncanlawfirm.blogspot.com/2015/01/another-new-health-care-liability.html; and

November 3, 2014: 

http://theduncanlawfirm.blogspot.com/2014/11/new-health-care-liability-opinion-120.html.

Moreover, the Court of Appeals' opinion in this case may very well become a reported decision under Tennessee Supreme Court Rule 4.  If it does, Harper will become controlling authority for all purposes under said rule.

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

The Tennessee Court of Appeals recently released its opinion in Wade v. Jackson-Madison Cnty. Gen. Hosp. Dist., No. W2014-01103-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2015).  This opinion held that a plaintiff gets the benefit of the 120-day extension of the statute of limitations (provider proper presuit notice letters are delivered, of course) when the defendant is a governmental entity.  

The summary of the opinion states as follows:

The trial court granted summary judgment to the defendant medical providers on the basis that the plaintiffs’ health care liability complaint was filed after the expiration of the Governmental Tort Liability Act statute of limitations. Because we conclude that, under Tennessee Code Annotated Section 29-26-121(c), plaintiffs were entitled to a 120-day extension on the applicable statute of limitations, we reverse and remand.

Here is a link to the opinion:

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

NOTE: This post should be read in conjunction with my Nov. 03, 2014 post, which is at the following link:

http://theduncanlawfirm.blogspot.com/2014/11/new-health-care-liability-opinion-120.html

Further, all three sections of the Tennessee Court of Appeals have held that the 120-day extension applies to governmental entities if proper presuit notice is sent out.  Wade, supra, is from the Western Section.  Harper, which is the subject of my Nov. 3 post, is from the Eastern Section.  (A Tenn. R. App. P. 11 was filed in late Dec. 2014.) And the Middle Section has held similarly in Banks v. Bordeaux Long Term Care, Nos. M2013-01775-COA-R3-CV & M2014-00119-COA-R9-CV (Tenn. Ct. App. Dec. 4, 2014), app. for perm. app. filed, (No. M2013-01775-SC-R11-CV, Dec. 26, 2014).

As you can discern, if the Tennessee Supreme Court accepts the application in either Harper or Banks, these decisions may be reversed.  However, if an application is denied in either case and the case ends up being reported, it will be controlling authority for all purposes under Tennessee Supreme Court Rule 4(G).  Stay tuned.

New Tennessee Supreme Court Opinion on Presuit Notice in Health Care Liability Actions: Presuit Notice Must Be Sent Prior to Case Being Refiled under the Saving Statute; Case Dismissed Without Prejudice

The Tennessee Supreme Court issued its opinion today in Foster v. Chiles, No. E2012-01780-SC-R11-CV (Tenn. Jan. 27, 2015).  The court held that presuit notices must be sent prior to a case being refiled under the saving statute and dismissed the case without prejudice. Justice Wade dissented.  

Here is the summary from the majority opinion:

This appeal presents two issues for review: 1) whether a person asserting a health care liability claim must give written notice of the claim to all potential health care defendants before re-filing a complaint, or whether notice given before filing the first complaint is sufficient notice for a subsequently filed complaint against the same defendants; and 2) if pre-suit notice is required for each complaint, whether the sanction for noncompliance is a dismissal with or without prejudice. The plaintiffs, before filing their health care liability complaint, gave the defendants written notice under Tenn. Code Ann. § 29-26-121(a)(1). Thereafter, the plaintiffs voluntarily dismissed their complaint. The plaintiffs re-filed their complaint but did not provide the defendants with notice before the re-filing. The trial court dismissed the complaint with prejudice for failure to comply with the notice requirement of Tenn. Code Ann. § 29-26-121(a)(1). The Court of Appeals reversed, holding that the plaintiffs had to give pre-suit notice only once and that pre-suit notice for the first complaint was sufficient for any subsequently filed complaints asserting the same claims against the same defendants. We hold that Tenn. Code Ann. § 29-26-121(a)(1) requires that plaintiffs notify prospective defendants of a forthcoming health care liability lawsuit before the filing of each complaint. The sanction for failure to comply with Tenn. Code Ann. § 29-26-121(a)(1) is a dismissal without prejudice.

Here is a link to the majority opinion and Justice Wade's dissent, respectively:

http://www.tncourts.gov/sites/default/files/fostersamuel.opn_2.pdf

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

The opinion from the Tennessee Court of Appeals can be found at my October 12, 2013 post on this blog.

New Health Care Liability Action Opinion: What Limits May a Trial Court Place upon a Defendant's Ex Parte Contact with a Plaintiff's Treating Physicians under Tenn. Code Ann. sec. 29-26-121(f)? Limits by Trial in This Case Disallowed.

Today the Tennessee Court of Appeals issued its opinion in Dean-Hayslett v. Methodist Healthcare, No. W2014-00625-COA-R10-CV (Tenn. Ct. App. Jan. 20, 2015).  This opinion deals with qualified protective orders allowing ex parte contact with a Plaintiff's treating physicians under Tenn. Code Ann. sec. 29-26-121(f). 

The majority opinion summary states as follows:

This is a healthcare liability action. The trial court granted Defendants’ joint motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f)(1), but added several conditions not specifically provided in the statute. The trial court denied Defendants’ joint motion for permission to seek an interlocutory appeal, and we granted Defendants’ motion for an extraordinary appeal to this Court under Rule 10 of the Tennessee Rules of Appellate Procedure.  We reverse in part, affirm in part, and remand for further proceedings.

Here are links to the majority opinion and Judge Stafford's concurring-in-results-only opinion:

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

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

NOTE: It is important to keep on mind that this is an interlocutory appeal under Rule 10 of the Tennessee Rules of Appellate Procedure where the the focus is upon what restrictions a trial court can place upon a qualified protective order under -121(f); that is it.  Per this opinion, a trial court may not require that the interviewed providers respond under oath; that a court reporter be present; or that the recorded interviews be filed under seal.

Further, Judge Stafford's concurring opinion foreshadows an effective constitutional challenge to -121(f).  While it doesn't mention it per se, I think it lends a lot of credibility to a separation-of-powers challenge.

Lastly, this opinion is the first Tennessee state-court appellate opinion that I am aware of that directly addresses -121(f).

New Health Care Liability Action Opinion: Must an Expert Nurse Be Compensated During Prior Employment as a Nurse to Render an Opinion

On January 13, 2014, the Tennessee Court of Appeals rendered its opinion in Adkins v. Associates of the Mem'l/ Mission Outpatient Surgery Ctr., LLC, No. E2014-00790-COA-R3-CV (Tenn. Ct. App. Jan. 13, 2014).  The opinion dealt with whether a nurse had to be compensated for her prior work as a nurse to be qualified to render expert opinion testimony in a health care liability action.

The summary of the opinion states as follows:

This is a health care liability action in which Defendant sought summary[] judgment, claiming that Plaintiffs’ expert was not qualified to render an expert opinion because she was not practicing in her field during the year preceding the date of the injury. The trial court agreed and dismissed the action. Plaintiffs appeal. We reverse the decision of the trial court.

(Footnote omitted.)

Here is a link to the opinion:

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

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