Recent Tennessee Legislation Affecting Transportation Network Companies Like Uber, Lyft, Sidecar, Wingz, and Summon, Etc.

The Tennessee General Assembly recently enacted legislation that deals with what is now called a transportation network company ("TNC"). A TNC is a company like Uber, Lyft, Sidecar, Wingz, and Summon.  TNCs have become increasingly popular of late and their popularity shows no signs of waning. As a result, this legislation seemed necessary. The cite to it is as follows: Act of Apr. 22, 2015, ch. 520, 2015 Tenn. Pub. Acts 648 (enacting the Transportation Network Company Services Act, codified at T.C.A. §§ 55-12-141, 56-7-1118 & 65-15-301 to -311), available at http://share.tn.gov/sos/acts/109/pub/pc0520.pdf (last visited Aug. 20, 2015).

This legislation deals with, among other things, priority-of-coverage and amount-of-coverage issues. If you are a lawyer who has an auto tort case in Tennessee involving a TNC driver, this is must-read legislation.  

New Health Care Liability Action Opinion: Trial Court's Allowance of a Nonsuit to Cure Noncompliance with Presuit Notice Requirements Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Phillips v. Casey, No. E2014-01563-COA-R9-CV (Tenn. Ct. App. Jul. 21, 2015).  The summary from the opinion states as follows:

This is a health care liability action. The plaintiff‟s late husband died following a bilateral tonsillectomy surgery. An autopsy determined that the cause of death was angioedema. The plaintiff filed suit against the defendants exactly one year after her husband‟s death. The complaint did not comply with the pre-suit notice requirements for health care liability suits. The plaintiff voluntarily dismissed the suit without prejudice and re-filed suit. The defendants moved to dismiss, claiming that the re-filed suit was barred. The trial court denied the motion to dismiss and a subsequent motion to reconsider but granted permission to file an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. We granted permission to appeal and now affirm the decision of the trial court.

(Footnote omitted.)

Here is a link to the opinion:

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

New Tennessee Supreme Court Health Care Liability Action Opinion: Delivery of Presuit Notices via FedEx Substantially Complies with Presuit Notice Statute

The Tennessee Supreme Court recently released its opinion in Arden v. Kozawa,No. E2013-01598-SC-R11-CV (Tenn. Jun. 30, 2015).  The summary from the opinion reads as follows:

The primary issue presented is whether a health care liability case must be dismissed because the plaintiff sent the health care defendants pre-suit notice of the claim via a commercial carrier, FedEx, instead of using certified mail, return receipt requested, through the United States Postal Service. The defendants moved for summary judgment, asserting that the plaintiff failed to comply with the requirements of Tennessee Code Annotated sections 29-26-121(a)(3)(B) and (a)(4) (2012). The defendants did not allege they failed to receive notice or were prejudiced by the plaintiff's method of service. The trial court dismissed the complaint, holding that strict compliance with the manner and proof of service requirements of Tennessee Code Annotated sections 29-26-121(a)(3)(B) and (a)(4) was required. The Court of Appeals affirmed, holding that substantial compliance was sufficient to satisfy the statutory content requirements of the notice, but that the plaintiff's failure to send the notice by certified mail constituted deficient service.  We hold that the manner and proof of service prescribed by Tennessee Code Annotated sections 29-26-121(a)(3)(B) and (a)(4) may be achieved through substantial compliance.  The defendants received notice and were not prejudiced by the manner of service.  Therefore, the use of FedEx to deliver the notice and the filing of proof of service with the complaint constituted substantial compliance with the manner and proof of service requirements of the pre-suit notice statute. The judgment of the Court of Appeals is reversed, and the case is remanded to the trial court for further proceedings.

Here's a link to the opinion:

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

NOTE: This is a good decision because Tennessee has a long-established, oft-repeated policy of deciding cases on their merits and not on procedural technicalities.  I applaud the Tennessee Supreme Court for doing the right thing in this instance. 

New Laws Effective in Tennessee in 2015

Jan. 1, 2015:

http://www.capitol.tn.gov/legislation/publications/1-1-2015%20effective.pdf

Jul. 1, 2015:

http://www.capitol.tn.gov/legislation/publications/07-01-2015%20effective.pdf

New Health Care Liability Action Opinion: Trial Court's Dismissal of Plaintiffs' Case Due to a "Defective" HIPAA Authorization Overturned on Appeal

The Tennessee Court of Appeals recently released its opinion in Hughes v. Henry Cnty. Med. Ctr., No. W2014-01973-COA-R3-CV (Tenn. Ct. App. Jun. 9, 2015).  The slip opinion states as follows:

This is a healthcare liability action, arising from alleged injuries to Appellant, Melba Hughes. Mrs. Hughes' husband, Robert Hughes, filed this action against Appellee, Henry County Medical Center (“HCMC”), and Dr. Donald Gold, who is not a party to this appeal. Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated Section 29-26-121. Specifically, Appellee challenged whether the medical authorization provided with the pre-suit notice letter was compliant with Tennessee Code Annotated 29-26-121(a)(2)(E). An error in the medical authorization form provided to HCMC did not permit HCMC to obtain medical records from Dr. Gold. However, Dr. Gold saw the patient only at HCMC, and he had no records independent of the hospital‟s records. Following a hearing on the motion, the trial court dismissed the action without prejudice. Mr. and Mrs. Hughes timely filed their appeal. We reverse and remand the matter to the trial court.

Here is a link to the opinion:

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

New Health Care Liability Action Opinion: Trial Court's Denial of Motion to Dismiss Based upon a "Defective" Certificate of Good Faith Affirmed on Appeal

The Tennessee Court of Appeals just issued its opinion in Kerr v. Thompson, No. W2014-01973-COA-R3-CV (Tenn. Ct. App. Jun. 9, 2015).  The summary from the slip opinion states as follows:

The trial court denied the defendant doctor’s motion to dismiss this medical malpractice action on the ground that the plaintiff had substantially complied with Tennessee Code Annotated Section 29-26-122, despite the fact that her certificate of good faith did not contain a statement that the executing party had no prior violations of the good faith certificate requirement. This Court granted an interlocutory appeal. While this appeal was pending, the Tennessee Supreme Court issued its Opinion in Davis v. Ibach, No. W2013-02514-SC-R11-CV, --- S.W.3d ---, 2015 WL 3451613 (Tenn. May 29, 2015), ruling that Tennessee Code Annotated Section 29-26-122 does not require a party executing a certificate of good faith to note the absence of any prior violations of the good faith certificate requirement. Based on Davis, we conclude that plaintiff’s certificate of good faith was fully compliant with Tennessee Code Annotated Section 29-26-122. Accordingly, although we rely on different grounds, we affirm the trial court’s ruling denying the defendant doctor’s motion to dismiss.

(Emphasis in original.)

Here is a link to the opinion:

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

NOTE: This post relates to my May 29, 2015 post.

New Tennessee Supreme Court Health Care Liability Action Opinion: Trial Court's Ruling, Which Allowed Plaintiff to Nonsuit the Case Without Prejudice, Upheld on Appeal

The Tennessee Supreme Court issued its opinion today in Davis v. Ibach, No. W2013-02514-SC-R11-CV (Tenn. Mar. 29, 2015).  The summary from the slip opinion states as follows:

The Plaintiff filed a medical malpractice action against the Defendants. Following the Defendants' motions to dismiss the action, asserting that the certificate of good faith was noncompliant with the requirement in Tennessee Code Annotated section 29-26-122(d)(4) (Supp. 2008), the trial court granted the Plaintiff's request to voluntarily dismiss the action. The Defendants appealed, and the Court of Appeals affirmed the order of the trial court. We granted review to determine whether the requirement of Tennessee Code Annotated section 29-26-122(d)(4) that a certificate of good faith filed in a medical malpractice action disclose the number of prior violations of the statute by the executing party also requires disclosure of the absence of any prior violations of the statute. We hold that it does not. Accordingly, the judgment of the Court of Appeals is affirmed.

Here's a link to the opinion:

https://www.tncourts.gov/sites/default/files/davistopn_1.pdf

New Tennessee Supreme Court Opinion on Informed Consent

The Tennessee Supreme Court just issued its opinion in White v. Beeks, No. E2012-02443-SC-R11-CV (Tenn. May 18, 2015).  The summary from the slip opinion states as follows:

The issue in this health care informed consent case is whether the trial court erred by limiting the testimony of plaintiff patient’s expert witness regarding the risks that the defendant doctor was required to disclose to obtain the patient’s informed consent for surgery. The doctor performed a spinal fusion on the patient. His back pain initially improved, but subsequently worsened. The patient sued the doctor, claiming his back pain was caused by nerve compression due to ectopic bone growth at the site of the fusion. The patient alleged that the doctor failed to give him adequate information to enable him to give an informed consent to the surgery. In a pretrial deposition, the patient’s expert testified that to obtain informed consent, the doctor was required to advise the patient that he would use a bone-grafting protein and inform the patient about all the potential risks arising from its use, including risks that allegedly caused harm and risks that did not cause harm. The trial court granted the doctor’s motion to limit the patient’s expert witness testimony to only those risks that allegedly materialized and injured the patient. The jury returned a verdict in favor of the doctor. In a divided opinion, the Court of Appeals affirmed the trial court’s exclusion of the expert medical testimony. We hold that the trial court erred by excluding expert testimony regarding undisclosed medical risks that had not materialized. Because this error, more probably than not, influenced the jury’s verdict, the patient is awarded a new trial.

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/whitei.opn_1.pdf

NOTE: This is a must-read opinion for any lawyer who has a case with an informed-consent element that is to be decided under Tennessee law.

New Health Care Liability Action Opinion: Case Dismissed Due to Noncompliance with Onerous and Unfair Presuit Notice Requirements

The Tennessee Court of Appeals recently issued its opinion in Harmon v. Shore, No. M2014-01339-COA-R3-CV (Tenn. Ct. App. Apr. 23, 2015).  The summary from the opinion states as follows:

This is a Health Care Liability case. Appellees are the treating physician and hospital. The trial court granted Appellees‟ Tennessee Rule of Civil Procedure 12.02 motions to dismiss Appellant‟s lawsuit for failure to comply with the Tennessee Code Annotated Section 29-26-121(a)(2)(E) notice provision for health care liability claims. Specifically, the trial court determined that the required Health Insurance Portability and Accountability Act (HIPAA) medical authorization provided by Appellant was not substantially compliant with the statutory requirements in that the relevant medical records were released only to Appellant‟s lawyer. Discerning no error, we affirm and remand.

Here is a link to the opinion:

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

New Health Care Liability Action & Comparative Fault Opinion: Joinder of a Nonparty under Tenn. Code Ann. sec. 20-1-119

The Tennessee Court of Appeals recently released its opinion in Swearengen v. DMC-Memphis, No. W2014-00724-COA-R3-CV (Tenn. Ct. App. Apr. 2, 2015).  The summary from the opinion states as follows:

This is an appeal from the trial court‟s grant of a motion to dismiss Appellant‟s medical malpractice action[] against defendants named in Appellant‟s amended complaint filed more than one year after the cause of action accrued. The trial court found that Appellant‟s claims against the additional parties were time barred because the amended complaint adding these parties was not filed within ninety days of the original answer asserting comparative fault against non-parties. Discerning no error, we affirm and remand. 

Here is a link to the opinion: 

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

NOTE: Respectfully, I think this opinion is wrongly decided,  This is because it appears to be contrary to the Tennessee Supreme Court opinion issued in the case of Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn. 2000), available at https://scholar.google.com/scholar_case?case=4690641893954946747&q=Brown+v.+Wal-Mart&hl=en&as_sdt=4,43 (last visited Apr. 6, 2015). Per Brown, and Rule 8.03, Tenn. R. Civ. P., it appears that a defendant must be more specific in pleading the fault of a nonparty as an affirmative defense than was allowed in this opinion.  Brown, 12 S.W.3d at 789.

New Opinion on Trial Practice in a Tort Case

The Tennessee Court of Appeals recently released its opinion in Monypeny v. Kheiv, No. W2014-00656-COA-R3-CV (Tenn. Ct. App. Apr. 1, 2015).  The summary from the opinion states as follows:

This is an appeal from a judgment entered on a jury verdict. The case arises from a motor vehicle accident. Appellant State Farm defended the case as the original plaintiffs’ uninsured motorist carrier. The original plaintiffs subsequently died, one as a direct result of injuries sustained in the accident, the other some two years after the accident. The plaintiffs’ children were substituted as plaintiffs/appellees. State Farm appeals the judgment on the jury verdict on numerous grounds, including: (1) denial of its motion for directed verdict; (2) scope of cross-examination; (3) denial of its motion for mistrial based upon inappropriate closing argument; (4) exclusion of notations on medical records; (5) various acts of alleged wrongdoing on the part of Appellees’ attorneys; (6) jury instructions; (7) admission of medical bills for original plaintiff’s long term assisted living expenses; (8) excessive verdict; (9) incorrect application of statutory cap on non-economic damages; (10) denial of credit for medical and death payments made by State Farm under the insurance policy; and (11) award of discretionary costs. Because there is material evidence to support the jury’s verdict, and because the trial court did not abuse its discretion, we affirm and remand.

Here is a link to the opinion:

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

NOTE: This opinion offers a good discussion for the Tennessee trial lawyer as it relates to the trial of a tort suit in this state.  It is a must-read case in my opinion.

New Wrongful Death Opinion: Disqualification of Surviving Spouse under Recent Changes to Tennessee's Wrongful Death Law

The Tennessee Court of Appeals recently released its opinion in Baugh v. United Parcel Serv., No. M2014-00353-COA-R3-CV (Tenn. Ct. App. Mar. 31, 2015).  The summary from the opinion states as follows:

In this wrongful death appeal, the main issue is whether, under Tenn. Code Ann. § 20-5-106(c)(1), a surviving spouse must have abandoned the decedent for a period of two years to have waived his or her right to institute an action or collect proceeds under that section.  We have concluded that the two-year period in Tenn. Code Ann. § 20-5-106(c)(1) applies only to “willful withdrawal.”

Here's a link to the opinion:

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

NOTE: This opinion offers an analysis of the recent changes to our state's wrongful death law, which was recently amended.

New Health Care Liability Action Opinion: Case Refiled under Saving Statute Dismissed Because Plainitffs Did Not Resend Presuit Notices Before Filing Second Suit

The Tennessee Court of Appeals recently issued its opinion on Potter v. Perrigan, No. E2013-01442-R3-CV (Tenn. Ct. App. Mar. 26, 2015).  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 appealed. We reversed the decision of the trial court. Defendants filed an application for permission to appeal. The Tennessee Supreme Court granted the application and remanded the case for reconsideration in light of its opinion in Foster v. Chiles, No. E2012-01780-SC-R11-CV, 2015 WL 343872 (Tenn. Jan. 27, 2015). Upon remand, we affirm the decision of the trial court.

(Footnote omitted.)

Here is a link to the opinion:

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

Tony Duncan Receives Highest Rating Possible from Martindale-Hubbell: AV Preeminent

I am honored and humbled to have recently received the highest rating possible from Martindale-Hubbell, which is an AV Preeminent rating.  Here is a link to my rating page: 

http://www.martindale.com/H-Anthony-Duncan/1601302-lawyer.htm?view=cr

Again, I am honored and humbled.  This is a milestone that I will always cherish.

New Health Care Liability Opinion: Plaintiffs' Failure to File Certificate of Good Faith Leads to a Dismissal of Their Case with Prejudice

The Tennessee Court of Appeals recently issued its opinion in Dennis v. Smith, No. E2014-00636-COA-R3-CV (Tenn. Ct. App. Mar. 31, 2015).  The summary from the opinion states as follows:

Linda Dennis and Creed Dennis [] filed a healthcare liability action against Dr. Robert G. Smith [] and others. Defendant filed a motion to dismiss. After a hearing, the Circuit Court for Knox County [] dismissed Plaintiffs’ claims after finding and holding, inter alia, that Plaintiffs had failed to comply with Tenn. Code Ann. §§ 29-26-121 and 29-26-122. Plaintiffs appeal the dismissal of their claims to this Court. We find and hold that because Plaintiffs failed to comply with Tenn. Code Ann. § 29-26-122, their action was subject to dismissal with prejudice upon motion. We, therefore, affirm the Trial Court’s dismissal of Plaintiffs’ claims.

Here is a link to the opinion:

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

New Health Care Liability Action Opinion: A Spouse's Loss-of-consortium Claim and Presuit Notice

The Tennessee Court of Appeals recently issued its opinion in Igou v. Vanderbilt Univ., No. M2013-02837-COA-R3-CV (Tenn. Ct. App. Mar. 27, 2015).  This opinion has to do with a spouse's derivative loss-of-consortium claim in conjunction with a health care liability action.  The summary from the opinion states as follows: 

This appeal asks whether a wife‘s loss of consortium claim, brought pursuant to her husband‘s underlying health care liability action, is itself a health care liability action subject to the pre-suit notice provision of the Tennessee Health Care Liability Act. The trial court granted the hospital‘s motion to dismiss, finding that the wife‘s claim was a health care liability action under the Act and that she had failed to comply with the pre-suit notice provision. As an alternative ground for dismissal, the court also found that the wife had failed to file suit within the statute of limitation. We vacate the trial court‘s order of dismissal with prejudice and remand.

Here is a link to the opinion:

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

New Health Care Liability Action Opinion: Foreign Object Case Is a Health Care Liability Action; Not a Case That Can Be Classified as One of Ordinary Negligence as Plaintiff Contends

The Tennessee Court of Appeals issued its opinion today in Smith v. Testerman, No. E2014-00956-COA-R9-CV (Tenn. Ct. App. Mar. 10, 2015).  The opinion has to do with a foreign object, a surgical sponge, left in a wound to help treat a post-surgical infection; it does not deal with a sponge left in during surgery, which is significant in my opinion as to whether a certificate of good faith is required under Tenn. Code Ann. sec. 29-26-122.

The summary from the opinion states as follows:

This is a case alleging negligence by the defendants which resulted in injury to a patient, Dennis Smith. Following hernia surgery, Mr. Smith was fitted for a wound vacuum because an infection had developed at the surgical site. A sponge was placed to absorb the infection.  The defendants removed the wound vacuum when the infection dissipated, but they failed to remove the sponge, which later caused the wound to burst. Mr. Smith filed suit, and the defendants asserted that dismissal was appropriate because Mr. Smith had not complied with the filing requirements of the health care liability statute. Mr. Smith 1 responded that his complaint sounded in ordinary negligence, not health care liability. The trial court agreed and denied the motions but also granted permission for the defendants to pursue an interlocutory appeal. We granted the application for permission to appeal and now reverse the decision of the trial court.

Here is a link to the opinion:

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

Tennessee Trial Court Declares Caps on Noneconomic Damages Unconstitutional

http://www.timesfreepress.com/news/local/story/2015/mar/09/judge-rules-tennessees-cap-jury-damages-unconstitutional/292361/

Another 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)?

The Tennessee Court of Appeals issued its opinion recently in S.W. ex rel. Warren v. Baptist Mem'l Hosp., No. W2014-00621-COA-R10-CV (Tenn. Ct. App. Feb. 27, 2015).  It is a companion case to the Dean-Hayslett case that is the subject of my Jan. 20, 2015, which can be viewed a few posts below.

The summary from the majority opinion states as follows:

This is a healthcare liability action. The trial court granted Defendants’ motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f)(1), but set-forth several conditions, including: 1) a court reporter must be present at the ex parte interviews with Plaintiff’s treating healthcare providers and record all questions and answers; 2) all answers during the interviews must be under oath; 3) the interview transcripts shall be filed under seal and with permission of the trial court, and after showing of good cause, Plaintiff may access the transcripts for the purpose of determining whether a violation of privacy under HIPAA occurred during the interviews; and 4) Defendants should not attempt to elicit or discuss protected health information which is not relevant to the issues in this lawsuit. The order also provided “[t]his does not restrict the Defendants or their attorneys from discussing non-substantive matters unrelated to the patient’s protected health information.” The trial court denied Defendants’ joint motion for interlocutory appeal of the order and Defendants filed an application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. We granted the appeal for the sole purpose of determining whether, under section 29-26-121(f), the trial court erred by adding the four conditions noted above to its order. We reverse in part, affirm in part, and remand for further proceedings.

Here is a link to that opinion:

http://www.tba.org/sites/default/files/warrenh_030215.pdf

This decision is atypical in that there are two concurring opinions: one by Judge Stafford and the other by Judge Dinkins, to wit:

http://www.tba.org/sites/default/files/warrenh_CON_030215.pdf

http://www.tba.org/sites/default/files/warrenh_CON2_030215.pdf

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