New Health Care Liability Action Opinion: Plaintiff's Case Dismissed Due to Failure to Comply with Presuit and Filing Requirements

The Tennessee Court of Appeals recently issued its opinion in Travis v. Cookeville Regional Medical Center, No. M2015-01989-COA-R3-CV (Tenn. Ct. App. Sept. 21, 2016).  The syllabus from the slip opinion states as follows:

In this health care liability case, the defendants moved to dismiss the complaint on the grounds that the plaintiff failed to comply with Tenn. Code Ann. § 29-26-121, part of Tennessee‟s Health Care Liability Act. Specifically, the defendants argue that the plaintiff failed to provide a statement in the pleadings that he complied with Tenn. Code Ann. § 29-26-121(a), failed to file, with the complaint, documentation demonstrating compliance with Tenn. Code Ann. § 29-26-121(a), failed to file, with the complaint, an affidavit of the person who mailed pre-suit notice to the defendants, and failed to provide a HIPAA compliant medical authorization form. The trial court dismissed the case. We have reviewed the record and find that the plaintiff failed to substantially comply with Tenn. Code Ann. § 29-26-121(b). We affirm the judgment of the trial court.

Here is a link to the slip opinion: http://www.tncourts.gov/sites/default/files/travist.opn_.pdf

 

New Health Care Liability Action Opinion: Partial Summary Judgment for Plainitffs as to an Affirmative Defense of Comparative Fault Reversed on Appeal

Yesterday the Tennessee Court of Appeals issued its opinion in Young v. Jordan, No. W2015-02453-COA-R9-CV (Tenn. Ct. App. Sept. 20, 2016).  Here is the syllabus from the slip opinion:

This is a healthcare liability case. Appellees, patient and her husband, filed suit against Appellants, physician and employer. Appellants raised the affirmative defense of comparative fault based on the fact that Appellee/patient had been non-compliant with medical advice. Appellees moved for partial summary judgment on the affirmative defense of comparative fault. The trial court granted the motion, and Appellants appeal. Because expert testimony adduced during discovery creates a dispute of material fact as to the question of Appellees’ non-compliance with medical advice and the effect of such non-compliance on Appellees’ injury, the grant of summary judgment was error.

Here is a link to the opinion: http://www.tncourts.gov/sites/default/files/youngstephnyopn.pdf

New Health Care Liability Action Opinion: Plaintiff Waived Requirement That Defendant File a Certificate of Good Faith to Support Claim Against a New Defendant; Case Against Newly Added Defendant Dimissed Due to Plaintff's Failure to Then File a Certificate of Good Faith in Support of Claim Against the New Defendant

Yesterday the Tennessee Court of Appeals issued its opinion in Peatross v. Graceland Nursing Home Center, LLC, No. W2015-01412-COA-R3-CV (Tenn. Ct. App. Sept. 20, 2016).  Here is the syllabus from the slip opinion:

This is a health care liability action.  The plaintiff filed suit against the defendants concerning the inadequate care and treatment received by the decedent. He then amended his complaint to add the defendant hospital as a party after the defendants alleged comparative fault. The defendant hospital moved to dismiss, arguing that the failure to attach a certificate of good faith applicable to it required dismissal. The trial court granted the motion to dismiss, citing this court’s opinion in Sirbaugh v. Vanderbilt University, 469 S.W.3d 46 (Tenn. Ct. App. 2014). The plaintiff appeals. We affirm. 

 (Footnote omitted.)

Here is a link to that slip opinion: http://www.tncourts.gov/sites/default/files/peatrossopn.pdf

NOTE: This opinion is a good reminder that unless the common-knowledge exception applies in a health care liability action in Tennessee, a certificate of good faith is required to support such a claim---and some party has to file one.

Also, Sirbaugh, supra, is the subject of my Jan. 20, 2015 post on this blog, to wit: http://theduncanlawfirm.blogspot.com/2015/01/new-health-care-liability-opinion.html.

New Saving Statute Case: Plaintiff's Lawsuit Dismissed Because It Was Refiled for a Second Time More Than One Year from First Voluntary Dismissal

The Tennessee Court of Appeals recently issued its opinion in Greenwood v. Nat'l Dentex Corp., No. W2015-01889-COA-R3-CV (Tenn. Ct. App. Aug. 30, 2016).  The syllabus from the slip opinion states as follows:

This is a saving statute case, Tennessee Code Annotated Section 28-1-105. The trial court dismissed Appellant’s third product-liability case, which was filed within one year of the dismissal of her second lawsuit, but more than one year after the entry of the initial nonsuit in Appellant’s first lawsuit. Discerning no error, we affirm.

Here is a link to the slip opinion: 

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

As my good friend Donald Capparella says: "Nonsuits are tricky."  They certainly are!

New Health Care Liability Action Opinion: Summary Judgment for Defense Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Duncan v. Ledford, No. W2015-02370-COA-R3-CV (Tenn. Ct. App. Aug. 24, 2015).  The summary from the slip opinion states as follows:

This is a healthcare liability case. The trial court granted summary judgment in favor of Appellees, Appellant’s treating physician and her employer. Summary judgment was based on the trial court’s finding that Appellants had failed to meet their burden of proof to show that Appellee doctor deviated from the standard of care or that the treatment provided caused Appellant to sustain injuries that otherwise would not have occurred. Discerning no error, we affirm.

Here is a link to the slip opinion:

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

What Is Required to Maintain a Personl Injury Lawsuit When the Plaintiff Dies from a Subsequent Injury Unrelated to the Injury That Birthed the Personal Injury Lawsuit

The Tennessee Court of Appeals just issued its opinion in Dubis v. Loyd, No. W2015-02192-COA-R3-CV (Tenn. Ct. App. Aug. 15, 2016).  The summary from the opinion states as follows:

After the death of the original plaintiff while this case was pending, a timely motion for substitution was filed to substitute the original plaintiff's parents as the real party in interest pursuant to Rule 25.01 of the Tennessee Rules of Civil Procedure. The motion indicated that the original plaintiff‟s parents were her only heirs and that no estate was to be opened for the original plaintiff in her home state of Missouri. The defendant filed an objection to the substitution asserting that the original plaintiff's heirs were not the proper parties, but the trial court eventually allowed parents to be substituted as plaintiffs. After the parties became aware that an estate had been opened for the original plaintiff in Missouri, defendant filed a motion to dismiss based upon non-compliance with Tennessee Code Annotated [s]ection 20-5-104, which requires a showing that no person is willing to administer the estate of a deceased party before his or her heirs may revive a claim. Parents filed a response in opposition and, in the alternative, a motion for enlargement of time to file a motion to substitute the original plaintiff‟s personal representative. The trial court denied the motion for enlargement of time and granted the defendant‟s motion to dismiss. Because parents have shown excusable neglect sufficient to justify an enlargement of time under Rule 6.02 of the Tennessee Rules of Civil Procedure, we reverse and remand for further proceedings.

Here is a link to the opinion:

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

NOTE: I applaud the Court of Appeals here because Tennessee has a long-standing, well-thought-out policy of allowing claims to be resolved upon their merits and not upon procedural technicalities, which is noted on page 12 of the opinion.

New Health Care Liability Action Opinion: Plaintiff's Case Dismissed Due to Counsel's Failure to Comply with Onerous Presuit Notice and Filing Requirements; Common-knowledge Exception Found Not to Apply

The Tennessee Court of Appeals recently issued its opinion in Newman v. Guardian Healthcare Providers, Inc., No. M2015-01315-COA-R3-CV (Jul. 27, 2016).  The summary from the slip opinion states as follows:

On August 4, 2013, Kevin Beazley, a resident at Middle Tennessee Mental Health Institute (MTMHI), attacked Billy Joe Newman, another patient and resident, causing injuries that resulted in Newman‟s death. His widow, Unitta Sue Newman (plaintiff), brought this action against several corporations (defendants) that provided nursing and medical staff to MTMHI. The trial court dismissed the complaint with prejudice, on the grounds that it was governed by the Tennessee Health Care Liability Act (THCLA), and plaintiff did not comply with either the pre-suit notice requirement of Tenn. Code Ann. § 29-26-121 (Supp. 2015), or the certificate of good faith requirement of § 29-26-122 (2012). Plaintiff argues that the allegations of her complaint fall under the “common knowledge” exception to the general rule requiring expert testimony to establish medical negligence, and, thus, she was not required to file a certificate of good faith. She asserts that the trial court should have dismissed her complaint without prejudice. Because plaintiff‟s negligence claims involve matters of professional medical knowledge, judgment, and treatment not within the common knowledge of ordinary lay persons, we affirm.

Here's a link to the slip opinion, to wit:

http://www.tsc.state.tn.us/sites/default/files/newman.unittav.guardianhealthcareproviders.opn_.pdf

New Health Care Liability Action Opinion: Court of Appeals Reverses Grant of Summary Judgment to Defense; Extraordinary Cause Found to Exist, Which Excused Compliance with Tennessee Code Annotated section 29-26-121(b)

The Tennessee Court of Appeals just issued its opinion in Kirby v. Sumner County Regional Medical Center, No. M2015-01181-COA-R3-CV (Tenn. Ct. App. Jul. 12, 2016).  The summary from the slip opinion states as follows:

This is a health care liability action.  The plaintiff suffered permanent damage after receiving medical treatment from the defendant hospital. The plaintiff filed suit exactly one year after her hospital stay. The defendant hospital moved to dismiss, arguing that the plaintiff failed to comply with the pre-suit notice and good faith requirements applicable to health care liability actions. The plaintiff later argued that the failure to comply with the necessary requirements should be excused for extraordinary cause as evidenced by the passing of her legal counsel‟s son four days prior to the filing of the complaint. The trial court granted summary judgment, finding that no extraordinary cause existed. The plaintiff appeals. We reverse the judgment of the trial court.

(Footnote omitted.)

Here is a link to the opinion:

 http://www.tncourts.gov/sites/default/files/kirbybetty.opn.pdf

NOTE: If EVER there was a case where "extraordinary cause" existed, which would excuse compliance with Tenn. Code Ann. sec. 29-26-121(b), it is this case.  Plaintiff's counsel's infant son passed away, which prevented Plaintiff's counsel from complying with -121(b). 

New Opinion on Sudden Emergency and Loss of Consciousness: Trial Court's Jury Instructions Held Not to Be Error on Appeal

The Tennessee Court of Appeals recently issued its opinion in Boshears v. Brooks, No. E2015-01915-COA-R3-CV (Tenn. Ct. App. Jul. 6, 2016).  The syllabus from the slip opinion states as follows:

This appeal arises from a negligence case brought after an automobile accident. James Boshears (“Boshears”) was a passenger in a vehicle driven by his girlfriend that was struck by a vehicle driven by Cleave C. Brooks (“Brooks”). Boshears sued Brooks in the Circuit Court for Anderson County (“the Trial Court”). Boshears alleged that Brooks was negligent in operating his vehicle. Brooks asserted that he suffered a stroke immediately prior to the accident, that he lost consciousness, and that, consequently, he could not be found negligent. The case was tried to a jury. The jury found that Brooks was not at fault. Boshears appealed to this Court. On appeal, Boshears argues that the Trial Court erred in charging the jury with sudden emergency when comparative fault was not raised by Brooks. Boshears also asserts that the Trial Court erred in charging the jury on both sudden emergency and loss of consciousness. We affirm the judgment of the Trial Court.

Here is a link to the opinion:

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

Happy Independence Day!

I almost talked myself out of posting this video clip (why, I don't know), but then I thought better of it; here it is: https://www.youtube.com/watch?v=DSKOx8DKPIg.

I love this video!  I have since I first came across it years ago.

And, as John Adams wrote:

[I] am apt to believe that [Independence Day] will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated as the day of deliverance by solemn acts of devotion to God Almighty; it ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires and illuminations from one end of this continent to the other, from this time forward forever more....

Available at https://www.nps.gov/subjects/nationalmall4th/history-of-independence-day.htm (last visited Jul. 4, 2016).

Celebrate the liberty we enjoy this day; and teach your kids why we do so, too. 

My two cents' worth.

New Laws Effective in Tennessee on Jul. 1, 2016

http://www.wbbjtv.com/wp-content/uploads/2016/06/New-Tennessee-Laws.pdf

Link repaired as if Dec. 20, 2016.

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