New Health Care Liability Action Opinion: The Common-knowledge Exception Is Alive and Well

The Tennessee Court of Appeals issued its opinion today in Osunde v. Delta Medical Center, No. W2015-01005-COA-R9-CV (Tenn. Ct. App. Feb. 10, 2016).  The summary from the opinion states as follows:

This interlocutory appeal concerns the trial court‟s partial dismissal of a case concerning
alleged negligence committed against Plaintiff/Appellee Brenda Osunde (“Mrs. Osunde”).  Mrs. Osunde filed a complaint in the trial court alleging a medical malpractice claim against DMC-Memphis, Inc. (“DMC”), as well as a claim for common law negligence, after she sustained a fall while at DMC's hospital, Delta Medical Center. When Mrs. Osunde failed to disclose any experts pursuant to the trial court‟s scheduling order, DMC moved for summary judgment. In adjudicating DMC's motion, the trial court drew a distinction between Mrs. Osunde's “health care liability action,” which it dismissed for her failure to produce an expert, and Mrs. Osunde's common law negligence claim, which it ruled should proceed to trial. After ruling on the motion for summary judgment, the trial court stayed further proceedings and granted DMC leave to pursue interlocutory review in this Court. Although we agree with DMC that all of Mrs. Osunde's asserted claims give rise to a “health care liability action” within the meaning of the Tennessee Code, we disagree with DMC's assertion that expert testimony is required to prove Mrs. Osundes allegations of negligence.  As such, we reverse the trial court‟s order to the extent that it purports to dismiss Mrs.Osunde's health care liability action, and we affirm the trial court‟s decision to allow this
case to proceed to trial.

Here's a link to the opinion:

https://www.tba.org/sites/default/files/brendaosundeetal_021116.pdf

NOTE: This opinion cites Deuel v. The Surgical Clinic, PLLC, No. M2009-01551-COA-R3-CV, 2010 WL 3237297, at *9-14 (Tenn. Ct. App. Aug. 16, 2010), available at https://scholar.google.com/scholar_case?case=12032494268351347403&q=Deuel&hl=en&as_sdt=4,43 (last visited Feb. 10, 2016).  Deuel was my case and I am happy to see it being cited for the proposition that the common-knowledge exception to expert testimony is alive and well in Tennessee.  There is also persuasive authority that supports Deuel and Osunde from one of our sister states, New Jersey, to wit: Hubbard ex rel. Hubbard v. Reed, 774 A.2d 495 (N.J. 2001), available at https://scholar.google.com/scholar_case?case=14138098579974599499&q=Hubbard&hl=en&as_sdt=4,31 (last visited Feb. 10, 2016).

Further, even if the common knowledge exception applies in a health care liability action, presuit notices must still be mailed out per Tenn. Code Ann. sec. 29-26-121, even if a certificate of good faith is not required per Tenn. Code Ann. sec. 29-16-122.  See Hubbard, supra, and my post from March 10, 2015, to wit:

http://theduncanlawfirm.blogspot.com/2015/03/new-health-care-liability-action.html

New Medical Malpractice Opinion: Plaintiffs' Case Dismissed Due to Numerous Reasons

The Tennessee Court of Appeals recently released its opinion in Mikheil v. Nashville General Hospital at Meharry, No. No. M2014-02301-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2016).  The summary of the opinion states as follows:

In this health care liability action, the plaintiffs disagree with a number of the trial court’s rulings upon which it based its decision to grant summary judgment in favor of the defendants. The trial court excluded the plaintiffs’ life care planner due to their failure to provide a complete disclosure of the life care planner’s opinions in a timely manner. The trial court ruled that the plaintiffs’ sole standard of care expert, a neurosurgeon, was not competent to testify as to the standard of care of the defendant nurse practitioner.  Furthermore, the trial court precluded the plaintiffs’ standard of care expert from testifying at all due to the plaintiffs’ repeated failure to comply with the court’s orders regarding discovery. We find no abuse of discretion with respect to the trial court’s decisions and affirm the judgment.

Here is a link to the opinion:

https://www.tba.org/sites/default/files/mikheilm_020116.pdf#page=1&zoom=auto,-99,798

NOTE: This case is still a "medical malpractice case" as opposed to a "health care liability action" because it arose before the statutory name change in 2011.

New Laws Effective in Tennessee on Jan. 1, 2016

http://www.capitol.tn.gov/legislation/publications/01-01-2016_effective.pdf

New Health Care Liability Action Opinion: Dismissal of Representaitve Plaintiffs' Claims by Trial Court Upheld on Appeal Due to Their Failure to Provide HIPAA-complaint Authorization as Required by Tenn. Code Ann. sec. 29-26-121(a)(2)(E)

The Tennessee Supreme Court just released its opinion in Dolman v. Donovan, No. W2015-00392-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015).  Here is the summary from the opinion:

This is a healthcare liability action arising from the death of the decedent, Melinda Dolman.  Appellants, daughters of the decedent, filed this action against Appellees, Timothy Donovan, M.D., Brixey Shelton, M.D., Memphis Vascular Center, Memphis Radiological, P.C., and Memphis LeBonheur Healthcare. Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated section 29-26-121.  Specifically, Appellees challenged whether the medical authorization provided with the presuit notice letter was compliant with Tennessee Code Annotated section 29-26-121(a)(2)(E).  Following a hearing on the motion, the trial court agreed with Appellees and dismissed the action. Appellants timely appealed. We affirm and remand.

Here is a link to the opinion:

https://www.tba.org/sites/default/files/melindadolman_122215.pdf

New Health Care Liability Action Opinion: Trial Court's Dismissal of Claim as Being Time-barred Upheld on Appeal; Plaintiff's Deceased Not "Adjuciated Incompetent" so as to Toll the Statute of Limitations

The Tennessee Court of Appeals just released its opinion in Johnson v. UHS of Lakeside, LLC, No. W2015-01022-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015).  The summary from the opinion is as follows:

Plaintiff filed a health care liability action on behalf of her deceased husband. Plaintiff provided pre-suit notice more than one year after the cause of action accrued and subsequently filed a complaint. Defendant filed a motion to dismiss based on the applicable one-year statute of limitations. Plaintiff argued that her husband had been “adjudicated incompetent” within the meaning of Tennessee Code Annotated Section 28-1-106 and that the statute of limitations was accordingly tolled. The trial court dismissed Plaintiff‟s case with prejudice finding that the statute unambiguously required a judicial adjudication of incompetency in order to toll the statute of limitations, and Plaintiff‟s husband had not been judicially adjudicated incompetent within the meaning of the statute at the time the cause of action accrued. Discerning no error, we affirm.

Here is a link to the opinion:

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

New Health Care Liability Action Opinion: Plaintiff's Expert Struck for Failing to Disclose Financial Documents; Case Dimissed by Trial Court

The Tennessee Court of Appeals just released its opinion in Weatherspoon v. Minard, No. W2015-01099-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2015).  Here is the summary from the opinion:

Plaintiff filed this health care liability action against the defendant doctor in 2000 and voluntarily non-suited it in 2008. Plaintiff re-filed the action in 2009. The defendant moved to exclude the plaintiff‟s standard-of-care expert for his failure to produce certain financial documents. The trial court granted the motion and excluded the expert five days before the scheduled trial date. Plaintiff requested leave to employ another standard-of-care expert in the five days before trial, which the trial court denied. The trial court ultimately dismissed the plaintiff‟s entire case because, without a standard-of-care expert, he was unable to state a health care liability claim. Plaintiff appealed, arguing that the trial court abused its discretion when it did not permit him to “emergently arrange” for an expert in the five days preceding the scheduled trial date. Discerning no error, we affirm.

Here is a link to the opinion:

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

New Health Care Liability Action Opinion: Court of Appeals Upholds Trial Court's Dismissal Due to Failure to Comply with Presuit Notice Requirements

The Tennessee Court of Appeals just issued its opinion in Bray v. Khuri, No. W2015-00397-COA-R3-CV (Tenn. Ct. App. Dec. 3, 2015).  The summary of the opinion states as follows:

This is a health care liability action arising from decedent’s death.  Appellant filed this action against Dr. Radwan Khuri. Dr. Khuri moved to dismiss this action for failure to comply with the notice requirement of Tennessee Code Annotated section 29-26-121 et seq. Specifically, Dr. Khuri challenged whether the medical release provided with the pre-suit notice letter was compliant with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). The trial court agreed with Dr. Khuri and dismissed the action with prejudice. Appellant timely appealed. We affirm.

Here is a link to the opinion:

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

New Tennessee Supreme Court Health Care Liability Action Opinion: Hannan v. Alltel Overruled by the Court; Summary Judgment Granted to Defense on All Claims

Today, the Tennessee released its opinion in Rye v. Women's Care Ctr. of Memphis, MPLLC, No. W2013-00804-SC-R11-CV (Tenn. Oct. 26, 2015).  Here is the summary from the opinion:

We granted permission to appeal in this healthcare liability action to reconsider the summary judgment standard adopted in Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008). The Court of Appeals concluded that the Hannan standard requires reversal of the trial court‘s decision granting summary judgment to the defendants on certain of the plaintiffs‘ claims. We hereby overrule Hannan and return to a summary judgment standard consistent with Rule 56 of the Federal Rules of Civil Procedure. We hold, therefore, that a moving party may satisfy its initial burden of production and shift the burden of production to the nonmoving party by demonstrating that the nonmoving party‘s evidence is insufficient as a matter of law at the summary judgment stage to establish the nonmoving party‘s claim or defense. Applying our holding to the record in this case, we conclude that the defendants are entitled to summary judgment on all the plaintiffs‘ claims at issue in this appeal. Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals and remand this matter to the trial court for entry of summary judgment on these issues and for any other proceedings that may be necessary.

Here is a link to the majority opinion:

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

Justice Kirby did not participate in the decision.

Justice Lee authored a concurring opinion that can be found at this link:

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

Justice Bivins  authored a concurring opinion also, which can be found at this link:

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

Justice Wade authored a dissenting opinion that can be found at this link:

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

The Tennessee Supreme Court Rules That the Issue of Whether Caps on Noneconomic Damages Are Constitutional Is Not Ripe at This Time

The Tennessee Supreme Court ruled that the issue of whether caps on noneconomic damages are unconstitutional is not ripe at this time.  Clark v. Cain, No. E2015-00949-SC-R11-CV (Tenn. Oct. 16, 2015) (per curiam), available at http://www2.tncourts.gov/PublicCaseHistory/CaseDetails.aspx?id=64104&Business=True (last visited Oct. 17, 2015).  (Please scroll down under the heading of "Case History" to view the order.)

With this order, the Court accepted the defendants' and the State's applications for permission to appeal, ruled that this issue was not ripe at this time, vacated the trial court's ruling that caps were unconstitutional, and remanded the matter back to the trial court.  (Id.)

As much as I would have liked to have seen this issue decided now, this appears to the correct decision by the Court.  However, the plaintiffs had to challenge the caps preverdict because it had been decided by at least one other state's high court that a plaintiff was precluding from challenging that state’s caps postverdict and should have done so preverdict. 

NOTE: Thanks to Jon Peeler of Nashville, Tenn. for bringing this to my attention last night.

P.S.  Here is what I think about tort "reform," which caps on noneconomic damages are a part of.  Watch the clip below: pay attention to it at about the one-minute mark, to wit:

https://www.youtube.com/watch?v=NXvcleOF798

New Tennessee Supreme Court Health Care Liability Action Opinion: Trial Court's Dismissal of Plaintiffs' Lawsuit Due to Their Failure to Provide the Statutorily Required Presuit Notice and File a Certificate of Good Faith Reinstated by the Court

The Tennessee Supreme Court released its opinion today in Ellithorpe v. Weismark, No. M2014-00279-SC-R11-CV (Tenn. Oct. 8, 2015).  The summary of the opinion states as follows:

We granted review in this health care liability action to decide whether the trial court erred by failing to apply this Court's analysis in Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), in determining whether it was necessary for plaintiffs to provide pre-suit notice and a certificate of good faith under the Tennessee Health Care Liability Act (“THCLA”), Tenn. Code Ann. § 29-26-101 et seq. We hold that the Tennessee Civil Justice Act of 2011, which amended the THCLA, statutorily abrogated our decision in Estate of French by providing that “[a]ny such civil action or claim is subject to [the THCLA] regardless of any other claims, causes of action, or theories of liability alleged in the complaint.” Because it is undisputed that the plaintiffs in this case failed to provide pre-suit notice or file a certificate of good faith, the judgment of the Court of Appeals is reversed and the judgment of the trial court dismissing the plaintiffs‟ complaint with prejudice is reinstated.

(Alterations in original.)

Here's a link to the opinion:

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

NOTE: This case eviscerates the holding in French, supra, and disallows claims for ordinary negligence against providers listed in Tenn. Code Ann. sec. 29-16-101.  It does, however, acknowledge that the common knowledge exception to expert testimony remains extant.

New Health Care Liability Action Opinion: Trial Court's Dismissal of Plaintiff's Claim as Untimely per the GTLA Upheld on Appeal

The Tennessee Court of Appeals released its opinion yesterday in Miller v. Cookeville Reg'l Med. Ctr., No. M2014-01917-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2015).  The summary from the opinion states as follows:

Plaintiff filed this medical malpractice action on September 8, 2011, pursuant to the Tennessee Medical Malpractice Act (“the TMMA”) against Cookeville Regional Medical Center, which is a governmental entity subject to the Governmental Tort Liability Act (“the GTLA”). The Medical Center filed a motion to dismiss for failure to state a claim, relying upon the Supreme Court’s decision in Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), to support its assertion that Plaintiff’s suit was untimely filed because it was not filed within the one-year statute of limitations set forth in the GTLA, Tenn. Code Ann. § 29-20-305(b) (2012). Plaintiff responded contending that the Cunningham decision should be applied prospectively only, so as to preserve Plaintiff’s claim as timely. The trial court found the decision in Cunningham controlling and dismissed the complaint as untimely filed. We affirm.

(Footnote omitted.)

Here is a link to the opinion: https://www.tba.org/sites/default/files/millerf_093015.pdf

NOTE: The one-year statute of limitations is now extended by proper presuit notice sent pursuant to Tenn. Code Ann. sec. 29-26-121 due to a statutory amendment, which is mentioned in this opinion.  That amendment did not apply to this case because the claim accrued before the amendment's effective date.

New Health Care Liability Action Opinion: Tenn. Code Ann. sec. 20-1-119 and Venue

The Tennessee Court of Appeals released its opinion today in Barrett v. Chesney, No. W2014-01921-COA-R9-CV (Tenn. Ct. App. Sept. 28, 2015).  The summary from the opinion states as follows:

This interlocutory appeal arises from a health care liability action and concerns the question of proper venue. Plaintiff filed her original lawsuit in Shelby County against the Appellants, a pathology group located in Shelby County. Appellants answered the complaint and raised, as an affirmative defense, the comparative negligence of Appellees, plaintiff‟s primary care physician and his employer, who are residents of Sumner County. Plaintiff then moved, under Tennessee Code Annotated Section 20-1-119, for leave to amend her complaint to add the Sumner County residents to the lawsuit. Leave was granted, and plaintiff filed an amended complaint under Tennessee Rule of Civil Procedure 15.01. Appellees answered the complaint and averred that venue was improper in Shelby County under Tennessee Code Annotated Section 20-4-101(b). Appellees asked for dismissal of the lawsuit; however, rather than dismissing the lawsuit, the Shelby County court transferred the case to Sumner County. Appellants appeal. We affirm and remand.

Here is a link to the opinion:

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

New Health Care Liability Action Opinion: Trial Court's Denial of Defendants' Motions to Dimiss Due to Plaintiffs' Alleged Failure to Comply with Presuit Notice Requirements, Etc., Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Hunt v. Nair, No. E2014-01261-COA-R9-CV (Tenn. Ct. App. Sept. 25, 2015).  The summary from the opinion states as follows:

This interlocutory appeal involves a health care liability action. The plaintiffs, Margie Hunt and husband, Rickey Hunt, claim that Mrs. Hunt suffered injuries proximately caused by the conduct of the defendants with respect to two surgeries. Prior to filing their complaint, the plaintiffs gave timely written notice of their claim to potential defendants. See Tenn. Code Ann. § 29-26-121(c) (Supp. 2013). Each of the three defendants moved to dismiss the complaint. Their separate motions were predicated on their assertion that the plaintiffs‟ pre-suit notice failed to comply with the requirements of Tenn. Code Ann. § 29-26-121, part of the Tennessee‟s Health Care Liability Act. Specifically, the defendants argue that the plaintiffs failed to provide a HIPAA-compliant medical authorization with their pre-suit notice. They also contend that the plaintiffs failed to attach to the complaint the medical authorization and also the pre-suit notice served upon the defendants. The defendant Dr. Nitin J. Rangnekar also relies upon the ground of insufficiency of service of process. The trial court denied each defendant‟s motion. On the defendants‟ further motions, the court granted them permission to pursue an interlocutory appeal pursuant to the provisions of Tenn. R. App. P. 9. We likewise granted the defendants permission to file a Rule 9 appeal. We affirm the judgment of the trial court.

(Footnotes omitted.) 

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/hunt_v._nair_m.d.pdf

NOTE: This is a must-read opinion for any lawyer who handles health care liability actions in Tennessee given the fact that it discusses substantial compliance of presuit notice procedures, filing requirements, and the waiver of affirmative defenses for failing to comply with Rule 8.03, Tenn. R. Civ. P.

New Tennessee Supreme Court Opinion Relating to Cases Filed in the Claims Commission, the Tennessee Governmental Tort Liability Act, and Tenn. Code Ann. sec. 20-1-119

The Tennessee Supreme Court just released its opinion in Moreno v. City of Clarksville, No. 2014-01465-CS-R11-CV (Tenn. Sept. 18, 2015), available at http://www.tncourts.gov/sites/default/files/morenorichard.opn_.pdf (last visited Sept. 20, 2015).

Justice Wade filed a dissenting opinion, which can be found at this link: Moreno v. City of Clarksville, No. 2014-01465-CS-R11-CV (Tenn. Sept. 18, 2015) (Wade, J., dissenting), available at   http://www.tncourts.gov/sites/default/files/morenorichardopn_dissent_final.pdf (last visited Sept. 20, 2015).

These are must-read opinions that discuss the interplay between sovereign immunity and comparative fault. 

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.