New Opinion on the Collateral Source Rule

The Tennessee Court of Appeals recently released its opinion in Dedmon v. Steelman, No. W2015-01462-COA-R9-CV (Tenn. Ct. App. Jun. 2, 2016).  The summary from the slip opinion states as follows:

This interlocutory appeal requires review of a ruling on a motion in limine in a personal injury case. Prior to trial, the plaintiffs submitted expert testimony from a treating physician to establish the reasonableness of their claimed medical expenses. The defendants filed a motion in limine seeking to exclude evidence of what they deemed ―unreasonable‖ medical expenses. They argued that the Tennessee Supreme Court‘s decision in West v. Shelby County Healthcare Corporation, 459 S.W.3d 33 (Tenn. 2014), established a new standard in Tennessee for determining the reasonable amount of medical expenses as a matter of law. The trial court granted the defendants‘ motion in limine, thus excluding the testimony of the treating physician. For the following reasons, the trial court‘s order is reversed and this matter is remanded for further proceedings.

Here are the links to the majority opinion and the concurring opinion by the special judge:

http://www.tsc.state.tn.us/sites/default/files/dedmonjeanopn_0.pdf

http://www.tsc.state.tn.us/sites/default/files/dedmonjeancon_0.pdf

New Opinion on Qualified Protective Orders under Tennessee Code Annotated section 29-26-121(f)

The Tennessee Court of Appeals recently issued its opinion in Caldwell v. Baptist Memorial Hospital, No. W2015-01076-COA-R10-CV (Tenn. Ct. App. Jun. 3, 2016).  The summary from the slip opinion states as follows:

In this health care liability action, this Court granted the defendants‟ application pursuant to Tenn. R. App. P. 10 to address two issues. We have determined that: (1) the Health Insurance Portability and Accountability Act (“HIPAA”) does not preempt Tenn. Code Ann. § 29-26-121(f); and (2) the trial court erred in denying the defendants‟ petition for a qualified protective order pursuant to Tenn. Code Ann. § 29-26-121(f) because it is undisputed that the defendants complied with the procedural requirements of subsection (f), and the plaintiff did not file an objection as permitted under the statute. We, therefore, reverse the trial court‟s decision and remand for the entry of a qualified protective order.

Here is a link to the opinion:

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

Trial Court's Denial of Summary Judgment Reversed and Summary Judgment for Defendant Granted Due to Express Assumption of Risk

The Tennessee Court of Appeals recently released its opinion in Gibson v. Young Men's Christian Association of Middle Tennessee, No. M2015-01465-COA-R9-CV (Tenn. Ct. App. May 16, 2016).  The summary form the slip opinion states as follows:

This is an appeal from an order denying summary judgment. The appellee signed a YMCA membership application and release agreement prior to tripping and falling on a sidewalk in front of the YMCA. The appellee filed suit, alleging negligence. The YMCA then filed a motion for summary judgment, claiming that the appellee expressly assumed the risk of her injuries. The trial court denied the YMCA’s motion for summary judgment but granted a motion for interlocutory appeal. We reverse the trial court’s order denying summary judgment and remand with instructions to enter summary judgment.

Here is a link to the opinion:

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

NOTE: This opinion is a good reminder of how express assumption of risk might affect a tort case.

New Wrongful Death Opinion: Trial Court's Disqualification of Surviving Spouse under Tennessee Code Annotated section 20-5-107(b) Reversed on Appeal

The Tennessee Court of Appeals just released its opinion in Spires v. Simpson, No. E2015-00697-COA-R3-CV (Tenn. Ct. App. Apr. 26, 2016).  The summary from the opinion reads as follows:

The surviving spouse in this wrongful death action appeals the trial court‟s dismissal of him as a plaintiff. The decedent and surviving spouse had one child together, who was eighteen months old at the time of the decedent‟s fatal automobile accident in October 2010. The decedent and surviving spouse were living apart, and the child had been residing solely with the decedent. On November 18, 2010, the surviving spouse, acting on behalf of the decedent, the child, and himself, filed the instant action in the Monroe County Circuit Court (“trial court”) against the seventeen-year-old driver of the other vehicle involved in the accident and her parents, who were the owners of the vehicle.  Also in November 2010, the Monroe County Juvenile Court granted custody of the child to the maternal grandmother. Upon a subsequent petition filed by the maternal grandmother and maternal uncle in the Blount County Chancery Court, the surviving spouse's parental rights to the child were terminated and a decree of adoption was granted to the maternal uncle on August 8, 2012. The child's maternal grandmother and adoptive father subsequently filed successive motions to intervene in this action on behalf o[f] the child. Upon announcement of an agreement as to the settlement amount offered by the defendants' insurance company, the trial court entered an agreed order awarding a $100,000.00 judgment against the defendants.  Following a bench trial regarding the remaining issues, the court found that pursuant to Tennessee Code Annotated § 20-5-107(b), the surviving spouse was statutorily disqualified from commencing and maintaining this action or collecting any portion of a settlement because he owed outstanding child support arrearages on behalf of children born to four women other than the decedent. We determine that although Tennessee Code Annotated § 20-5-107(b) operates to prohibit the surviving spouse's recovery of his one-half of the settlement until his child support obligations are paid, it does not operate to disqualify him from commencing and maintaining this wrongful death action. We therefore reverse the trial court's dismissal of the surviving spouse as a plaintiff and the court's substitution of the adoptive father as an intervening plaintiff. We remand for distribution of the wrongful death settlement proceeds, one-half toward payment of the surviving spouse's child support arrearages with interest, pursuant to Tennessee Code Annotated § 20-5-107(b), and one-half to the minor child in trust with the adoptive father as trustee. We affirm the trial court's judgment in all other respects.

Here is a link to the slip opinion:

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

New Tennessee Supreme Court Opinion on the Saving Statute

On March 7, 2016, the Tennessee Supreme Court issued its opinion in Circle C Construction, LLC v. D. Sean Nilsen, No. M2013-02330-SC-R11-CV (Tenn. Mar. 7, 2016).  The summary from the majority opinion states as follows:

The issue we address is whether the savings statute applies to save an action that was filed within the extended statute of limitations set by a tolling agreement, was voluntarily nonsuited, and was refiled within one year, but after the extended statute of limitations in the tolling agreement. The trial court granted summary judgment, ruling that the case was not timely filed. The Court of Appeals affirmed, holding that the tolling agreement precluded application of the savings statute. We hold that the party filing the suit complied with the tolling agreement by filing the first suit within the extended statute of limitations set by the agreement. The savings statute applies to save the action; therefore, the refiled suit was timely filed. We reverse the decision of the Court of Appeals and remand this case to the trial court.

Here is a link to the majority opinion:

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

Here is a link to Justice Kirby's opinion where She concurs in part and dissents in part:

http://www.tncourts.gov/sites/default/files/circlecconstruction.sepopn.pdf

NOTE: This is a good read for the Tennessee practitioner.

New Wrongful Death Opinion: Hataway Redux

On March 11, 2016 the Tennessee Court of Appeals issued its opinion in Sterchi v. Savard, No. E2015-00928-COA-R3-CV (Tenn. Ct. App. Mar. 11, 2016).  This opinion involves a wrongful death case where the death actually occurred in Florida but suit was filed here in Tennessee.  It serves as a reminder that Tennessee abandoned the doctrine of lex loci delicti in Hataway v. McKinley, 820 S.W.2d 53 (Tenn. 1992) and adopted the "most significant relationship" approach when determining what substantive law applies when a conflict of law arises as described herein.  

The summary from the majority opinion states as follows:

This appeal concerns a conflict of law choice between Tennessee and Florida law.  James R. Sterchi, Jr. (“Mr. Sterchi”) sued L. Basil Savard (“Mr. Savard”) in the Circuit Court for Bradley County (“the Trial Court”) for the wrongful death of Mr. Sterchi’s mother Rosalind Savard (“Mrs. Savard”) in a car accident in Florida.  Mr. Savard filed a motion for summary judgment. Florida law prevents Mr. Sterchi from pursuing his claim while Tennessee law does not.  All interested parties were domiciled in Tennessee.  The Trial Court held that Florida law applies and granted Mr. Savard’s motion for summary judgment.  Mr. Sterchi filed an appeal to this Court.  We hold that under “the most significant relationship” test as adopted by our Supreme Court in Hataway v. McKinley, 830 S.W.2d 53 (Tenn. 1992), Tennessee has the more significant relationship to the occurrence and parties in this case, and, therefore, Tennessee substantive law applies to Mr. Sterchi’s wrongful death action. We reverse the judgment of the Trial Court.

Here is a link to the majority opinion:

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

Here is a link to Judge Frierson's concurring opinion (which deals with the applicability of Tenn. Code Ann. sec. 20-16-101):

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

Tenth Anniversary!

This post is a little belated, but, as of January of this year, this blog is ten years old!  

Doesn't seem like it's been a decade already.  Whew!

Thanks to all of you who read this blog and email me with questions, comments, etc. 

New Health Care Liability Action Opinion: Trial Court's Grant of Summary Judgment to One Defendant Reversed on Appeal Due to the Application of the Discovery Rule

The Tennessee Court of Appeals just issued its opinion in Rogers v. Blount Mem'l Hosp., Inc., No. E2015-00136-COA-R3-CV (Tenn. Ct. App. Feb. 29, 2016).  The summary from the opinion states as follows:

This appeal involves a health care liability action filed by the plaintiff against Blount Memorial Hospital, Inc. (“BMHI”) and the doctor who treated the plaintiff at BMHI from September 8, 2012, to September 13, 2012. The plaintiff filed his complaint on December 13, 2013, alleging that the defendant doctor had misdiagnosed his illness, causing a delay in treatment and resultant permanent injuries. Both defendants filed motions to dismiss, which were converted into motions for summary judgment with the filing of additional affidavits. The trial court granted summary judgment in favor of BMHI based on, inter alia, the applicable statute of limitations and BMHI's immunity as a governmental entity. The court subsequently granted summary judgment to the defendant doctor based on the statute of limitations. The plaintiff timely appealed. Determining that a genuine issue of material fact exists regarding when the plaintiff was aware of facts sufficient to place him on notice that his injury was allegedly the result of the defendant doctor's wrongful conduct, we conclude that summary judgment was improperly granted to the defendant doctor. We affirm the trial court‟s grant of summary judgment in favor of BMHI.

Here is a link to the opinion:

https://www.tba.org/sites/default/files/rogersj_022916.pdf

Just Swiney issued a separate concurring opinion also, which can be found at this link:

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

NOTE: This opinion offers a good discussion of the discovery rule in health care liability actions.

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