SCOTN Rejects "Preemption Rule" That Would Prohibit Direct Negligent Claims Against a Principal When Vicarious Liability as to an Agent Has Been Admitted by Principal; SCOTN Also Holds That Claims for Negligent Activities May Be Pleaded in the Same Action Along with Premises Liability Claims

The Tennessee Supreme Court has released its opinion in Binns v. Trader Joe's East, Inc., No. M2022-01033-SC-R11-CV (Tenn. Apr. 8, 2024). The syllabus form the slip opinion reads: 

This interlocutory appeal involves an alleged slip and fall incident that occurred at the defendant’s grocery store. The plaintiff’s amended complaint included allegations of vicarious liability, premises liability, negligent training, and negligent supervision against the defendant. In an attempt to dismiss the plaintiff’s negligent training and supervision claims, the defendant filed a motion for partial judgment on the pleadings and asserted two alternative arguments, both of which the trial court rejected. First, the trial court rejected the defendant’s argument that courts must dismiss “negligent activity” claims, such as claims for negligent training and supervision, when asserted concurrently with a premises liability theory of recovery. Second, the trial court rejected the defendant’s argument that the plaintiff’s direct negligence claims were no longer legally viable due to the defendant admitting it was vicariously liable for the conduct of its employee, commonly referred to as the “preemption rule.” After denying the defendant’s motion, the trial court granted permission to file an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Appeals denied the defendant’s application. The defendant then appealed to this Court, and we granted review. We hold that the preemption rule is incompatible with Tennessee’s system of comparative fault and decline to adopt it. In addition, we decline to adopt the rule proposed by the defendant pertaining to “negligent activity” claims asserted alongside premises liability claims. As a result, we affirm the trial court’s order denying the defendant’s motion for partial judgment on the pleadings and remand to the trial court for further proceedings.

Here is a link to that opinion: 

https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20-%20M2022-01033-SC-R11-CV.pdf

NOTE: This is a must-read case for any lawyer who handles tort cases governed by Tennessee substantive law that have to do with agency and premises liability. 

New SCOTN Case: Trial Court's Decision Denying Arbitration in a Nursing Home Case Reversed on Appeal Because the Attorney-in-Fact Was Authorized to Sign Arbitration Agreement

The Tennessee Supreme Court has released its opinion in Williams v. Smyrna Residential, LLC, No. M2021-00927-SC-R11-CV (Tenn. Feb. 16, 2024). The syllabus from the majority opinion reads: 

Granville Williams, Jr., died while residing at an assisted-living facility. The central question in this appeal is whether his son’s ensuing wrongful-death action against the facility must be arbitrated. To answer that question, we must resolve two subsidiary issues—first, whether the attorney-in-fact who signed the arbitration agreement as Williams’s representative had authority to do so and, second, whether Williams’s son and other wrongful-death beneficiaries who were not parties to the arbitration agreement nevertheless are bound by it. We hold that signing an optional arbitration agreement—that is, one that is not a condition of admission to a health care facility—is not a “health care decision” within the meaning of the Durable Power of Attorney for Health Care Act. The durable power of attorney that gave Williams’s attorney-in-fact authority to act for him in “all claims and litigation matters” thus provided authority to enter the optional arbitration agreement even though it did not specifically grant authority to make health care decisions. We further hold that Williams’s son is bound by the arbitration agreement because his wrongful-death claims are derivative of his father’s claims. Because we conclude that the claims in this action are subject to arbitration, we reverse the Court of Appeals’ contrary decision and remand to the trial court.

Here is a link to that opinion: 

https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20-%20M2021-00927-SC-R11-CV.pdf.

Here is a link to Justice Lee's dissent:

https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Separate%20Opinion-%20M2021-00927-SC-R11-CV.pdf.

Here is Chief Justice Kirby's opinion joining Justice Lee's dissent:

https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Separate%20Opinion%20%282%29%20-M2021-00927-SC-R11-CV.pdf.

NOTE: This opinion reverses the one from the Tennessee Court of Appeals in this same case that was released on April 8, 2022, which is the subject of my blog post from April 9, 2022, to wit:

http://theduncanlawfirm.blogspot.com/2022/04/trial-courts-denial-of-defendants.html.

Grant of Summary Judgment Reversed on Appeal Because the Issue It Was Based on Was Not Raised in the Motion

The Tennessee Court of Appeals has released its opinion in Bakker v. Chattanooga-Hamilton County Hospital Authority, No. E2022-00872-COA-R3-CV (Tenn. Ct. App. Mar. 5, 2024). The syllabus from the slip opinion reads: 

The trial court granted summary judgment in favor of the defendant hospital in this premises liability case, finding that the defendant had no notice of the alleged dangerous or defective condition on its premises. The plaintiff has appealed. Following our review, we determine that the plaintiff was not provided notice and a reasonable opportunity to respond to all issues to be considered by the trial court at the summary judgment stage. Accordingly, we vacate the trial court's grant of summary judgment.

Here is the link to the opinion: 

Bakker, M.D. v. Chattanooga Hamilton Hospital Authority.pdf (tncourts.gov)

NOTE: This is an excellent opinion that addresses when a trial court grants summary judgment on an issue not raised in the motion seeking same and why that is error. This is a must-read opinin for any lawyer who handles civil actions in Tennessee state courts. 

New Health Care Liability Action: Trial Court's Imposition of Sanctions for Discovery Abuse Upheld on Appeal but Case Is Remanded to Calculate Amount of Sanctions under Applicable Law

The Tennessee Court of Appeals has released its opinion in Salas v. Rosdeutscher, Nos. M2021-00449-COA-R3-CV; M2022-00130-COA-R3-CV (Tenn. Ct. App. Jan. 9, 2024). The syllabus reads:

Plaintiff’s attorneys appeal the trial court’s imposition of sanctions against them in the amount of $68,617.28 and the denial of their second motion to disqualify the trial court judge. We affirm the trial court’s discretionary decision to impose sanctions, but we vacate the amount of sanctions awarded and remand for the trial court to calculate the reasonable amount of monetary sanctions in keeping with the procedures and considerations outlined in this opinion. We have determined that Plaintiff’s attorneys’ issue regarding the trial court’s denial of their second motion to recuse is moot. Finally, we decline to award attorney’s fees on appeal.

Here is a link to the slip opinion: Majority Opinion - M2021-00449-COA-R3-CV.pdf (tncourts.gov).

NOTE: This opinion is a good reminder why a lawyer should never misrepresent matters to a court. 

New Case on Pretrial Discovery Abuse and Sanctions: Trial Court's Dismissal of Action Upheld on Appeal.

The Tennessee Court of Appeals has released its opinion in Plofchan v. Hughey, No. M2021-00853-COA-R3-CV (Tenn. Ct. App. Jan. 5, 2023). The syllabus from the opinion reads:

A man sued his arresting officers and others. He claimed he was neither drunk nor violent when he was arrested and charged with public intoxication, resisting arrest, and assault on an officer. During discovery, the man claimed to have no communications between him and a companion that were not protected by attorney-client privilege or as work product. When such communications were uncovered, the defendants moved for sanctions and attorney’s fees. The trial court awarded attorney’s fees to the defendants and the companion. And it dismissed the case as a sanction. Discerning no abuse of discretion, we affirm.

Here is a link to the slip opinion: E-SIGNED-M2021-0853- COA-PLOFCHAN.pdf (tncourts.gov).

NOTE: This opinion offers a great discussion of discovery sanctions for pretrial discovery abuses, etc. It also notes that Tennessee does not recognize "motions to reconsider," slip. op. at 8. This is a must-read opinion for any Tennessee trial lawyer. 

New Premises Liability Case: Summary Judgment for the Defense Upheld on Appeal; Sanctions for Spoliation of Evidence Not Warranted

The Tennessee Court of Appeals has released its opinion in Beasley v. Jae Nails Bar, LLC, No. M2022-01330-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2023). The syllabus from the slip opinion reads:

This is a premises liability action in which the plaintiff slipped and fell while she was walking to a pedicure station in a nail salon. Two principal issues are presented. First, the plaintiff contends that the trial court erred by denying her Tenn. R. Civ. P. 34A.02 motion for spoliation of evidence by finding that the defendant was not put on notice that a video recording from a surveillance camera in the nail salon was relevant to pending or reasonably foreseeable litigation. Second, the plaintiff contends that the trial court erred by summarily dismissing her complaint on the basis that there was no proof that the defendant had created the allegedly hazardous condition in the nail salon or that the defendant had actual or constructive notice of the condition. We affirm.

Here is a link to the slip opinion: UNSIGNED-M2022-1330-COA-BEASLEY.pdf (tncourts.gov).

NOTE: In reverse order to that addressed by the court, this opinion offers a great analysis of the elements of a premises liability case and of what constitutes spoliation of evidence worthy of sanctions. 

New Health Care Liability Action Opinion: Trial Court's Dismissal of Complaint Upheld in Part and Reversed in Part Due to the Application of the Healthcare Operations Exception to the General Requirement That a HIPAA-compliant Authorization for the Release of Medical Records Be Included with the Presuit Notices Served on Potential Defendants

The Tennessee Court of Appeals has released its opinion in Christie v. Baptist Memorial Hospital, No. W2022-01296-COA-R3-CV (Tenn. Ct. App. Nov. 15. 2023). 

Plaintiffs appeal the dismissal of their health care liability claims against a hospital and two doctors who treated their daughter on the day of her birth and tragic death. The trial court reluctantly ruled that the plaintiffs failed to substantially comply with Tennessee Code Annotated section 29-26-121(a)(2)(E) and dismissed the claims as untimely. We conclude that the plaintiffs met their burden to show substantial compliance with section 29-26-121(a)(2)(E) as to the defendant hospital, but not the defendant doctors. We therefore affirm in part, reverse in part, and remand for further proceedings.

Here is a link to the slip opinion: ChristieLauraSOPN.pdf (tncourts.gov).

NOTE: This opinion does a good job of explaining the healthcare operations exception to the general requirement that presuit notice be accompanied by a HIPAA-complaint medical records authorization under Tenn. Code Ann. sec. 29-26-121. That exception is what saved the claim against the hospital because it allowed the Tennessee Court of Appeals to find that there had been substantial complaint with section 29-16-121(a)(2)(E). 

New Health Care Liability Action Opinion: Trial Court's Ruling Allowing Plaintiffs to Obtain Surveillance Videos Taken by Defense of a Plaintiff Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Locke v. Aston, No. M2022-01820-COA-R9-CV (Tenn. Ct. App. Sept. 25, 2023). The syllabus from the slip opinion reads:

This is a health care liability action filed by a patient and her husband alleging serious injury as a result of surgery. The plaintiffs learned that the defendants had taken surveillance videos and sought discovery of those videos. The trial court allowed discovery of only the videos that the defendants intended to use at trial for impeachment purposes. The trial court gave the plaintiffs permission to seek an appeal under Tenn. R. Civ. P. 9. This Court granted the appeal. We affirm the trial court’s decision.

Here is a link to the opinion: Majority Opinion - M2022-01820-COA-R9-CV.pdf (tncourts.gov).

NOTE: While this is a health care liability action (f/k/a a medical malpractice case), this opinion offers a much-needed discussion of the discoverability of surveillance video taken in conjunction with a Tennessee state court lawsuit. This is one every lawyer who practices civil law in Tennessee must read. 

New Health Care Liability Action Opinion: Trial Court's Grant of Summary Judgment to the Defense Reversed on Appeal Because There Are Genuine Issues of Material Fact as to When This Cause of Action Accrued, the Propriety of the Presuit Notice, and Causation and Damages

The Tennessee Court of Appeals released its opinion in Vilas v. Love, No. W2022-01071-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2023). The syllabus from the slip opinion reads:

In this health care liability action, the trial court granted summary judgment to the appellee surgeon based on the expiration of the statute of limitations and the appellant patient’s failure to show evidence of causation and damages. On appeal, we conclude that (1) there is a genuine dispute of material fact as to when the appellant’s cause of action accrued; (2) the trial court did not specifically rule on the propriety of appellant’s pre-suit notice; and (3) there are genuine disputes of material facts as to the causation and damages elements of the appellant’s claim. Accordingly, we reverse in part, vacate in part, and remand for further proceedings. 

Here is a link to the opinion: VilasJamesMiguelOPN.pdf (tncourts.gov).

NOTE: This is a great read because it offers excellent analysis of accrual of claims, presuit notice, and causation and damages in health care liability actions (f/k/a medical malpractice cases). 

New Health Care Liability Action Opinion: Trial Court's Dismissal of Vicarious Liability Claims Against Hospital Upheld on Appeal Because the Alleged Agent, a Physician, Had Been Released by the Plaintiff's Conservator

The Tennesse Court of Appeals has released its opinion in Hamilton ex rel. McGill v. Methodist Healthcare Memphis Hospitals, No. W2022-00054-COA-R3-CV (Tenn. Ct. App. Oct. 16, 2023). The opinion's syllabus reads:

This appeal arises from a health care liability action filed in circuit court by a conservator on behalf of a ward. After a three-week jury trial resulted in a mistrial, the conservator took a nonsuit. The conservator refiled the complaint against only one defendant hospital, asserting that it was vicariously liable for the actions of a doctor based on a theory of apparent agency. The defendant hospital moved for summary judgment on the basis that the conservator had entered into a consent agreement agreeing not to sue the doctor in the refiled suit if the doctor agreed to withdraw his motion for discretionary costs. According to the defendant hospital, this agreement releasing the alleged agent from liability extinguished the conservator’s right to pursue a vicarious liability claim against the principal. In response, the conservator took the position that the consent agreement was not binding because it was never approved by the probate court that appointed her. The circuit court granted summary judgment to the defendant hospital, finding that the order appointing the conservator authorized her to dispose of property, execute instruments, enter into contracts, pursue legal causes of action, and manage money, thereby authorizing her to enter into the consent agreement. The circuit court found nothing in the order of appointment, the relevant statutes, or caselaw that would impose a mandatory requirement for approval of the settlement by the probate court. Because the conservator had released the alleged agent from liability, the circuit court found that the conservator could not pursue vicarious liability claims against the defendant hospital. The conservator filed a motion to alter or amend, asking the circuit court to consider an “Advisory Opinion” of the probate court on the matter. The circuit court denied the motion, explaining that it respectfully disagreed with the Advisory Opinion of the probate court. The conservator appeals. We affirm and remand for further proceedings.

Here is a link to the opinion: HamiltonDianne2OPN.pdf (tncourts.gov).

NOTE: This opinion is correct and a reminder of why one does not release the agent if one wants to pursue a vicarious liability claim against the principal based on the agent's conduct. This opinion also offers a good discussion about the recent statutory changes affect settlements involving minors and the disabled. 

New Health Care Liability Action Opinion: Trial Court Reversed in Part as to the Sufficiency of the Presuit Notice Provided by Mother of Deceased on Behalf of the Deceased's Minor Children

The Tennessee Court of Appeals has released its opinion in Denson v. Methodist Medical Center of Oak Ridge, No. E2023-00027-COA-R9-CV (Tenn. Ct. App. Oct. 12, 2023). The syllabus reads:

This appeal arises from a health care liability action following the death of Ashley Denson from a cardiac event she suffered after being treated and released from Methodist Medical Center. Ms. Denson was unmarried and had two minor children at the time of her death. The statutorily-required pre-suit notice listed Ms. Denson’s mother, Bobbie J. Denson, as the claimant authorizing notice. The minor children were not identified anywhere in the notice. The subsequent complaint was filed by “ASHLEY DENSON, Deceased, by and through her Next Friend and Mother BOBBIE JO DENSON, and BOBBIE JO DENSON, Individually.” The body of the complaint lists, for the first time, Ashley Denson’s children, and states that Bobbie Denson “brings this action individually, and on behalf of Plaintiff, decedent’s surviving minor children … as Grandmother and Legal Guardian.” The defendants filed motions to dismiss, challenging Bobbie Denson’s standing to bring the action and contending that the pre-suit notice failed to comply with the requirements of the Tennessee Health Care Liability Act.[] The trial court initially granted the motions to dismiss but reversed course after the plaintiff filed a motion to reconsider. We hold that, although Grandmother has standing, the pre-suit notice does not comply with the requirements of the Tennessee Health Care Liability Act. The judgment of the trial court is ultimately affirmed in part and reversed in part.

(Footnote omitted.)

Here is a link the majority opinion: E2023-27 Maj..pdf (tncourts.gov).

Here is a link to Judge McClarty's partial dissent: E2023-27 Dis..pdf (tncourts.gov).

NOTE: Look for the plaintiff's counsel to ask the Tennessee Supreme Court for permission to appeal in this case. Given the importance of this issue of law, inter alia, I predict that permission to appeal will be granted by our High Court. Stay tuned. 

New Health Care Liability Action Opinion: Trial Court's Denial of a Protective Order Regarding What Was Said at a CANDOR Meeting Upheld on Appeal

The Tennessee Supreme Court has released its opinion in Catillo v. Rex, No. E2022-00322-COA-R9-CV (Tenn. Ct. App. Oct. 5, 2023). The syllabus reads:

The plaintiff filed this healthcare liability action against several healthcare providers following the death of her husband. We granted this interlocutory appeal in which the defendants request review of the trial court’s denial of their motion for a protective order to prohibit further inquiry into a meeting held between the defendant hospital and the decedent’s family. We affirm the trial court.

Here is a link to the slip opinion: Castillo v. Rex, M.D. Opinion UNSIGNED.pdf (tncourts.gov).

NOTE: This opinion does a great job of explaining why the quality improvement committee privilege does not apply in this situation. This is a must-read opinion for any lawyer who handles medical malpractice case (f/k/a medical malpractice cases) governed by Tennessee law.  

New Health Care Liability Action Opinion: Trial Court's Ruling Disallowing Defense from Attempting to Improperly Shift Blame to a Nonparty at Trial and Its Order Regarding the Applicaiton of Tennessee Code Annotated section 29-26-119 Upheld on Appeal

The Tennessee Supreme Court has released its highly anticipated opinion in Crotty v. Flora, No. M2021-01193-SC-R11-CV (Tenn. Sept. 29, 2023). The opinion's syllabus reads:

In this interlocutory appeal, the defendant physician in a health care liability action asks us to review two pretrial orders. In the first, the trial court excludes evidence that a nonparty physician was the cause-in-fact of the claimant’s injuries because the defendant never amended his answer to include that allegation, as required under Rule 8.03 of the Tennessee Rules of Civil Procedure as applied in George v. Alexander, 931 S.W.2d 517 (Tenn. 1996). Because he does not allege that the nonparty physician was negligent, the defendant asks us to modify our holding in George and reverse the trial court’s order. We respectfully decline to do so. In the second pretrial order on appeal, the trial court considered Tennessee Code Annotated section 29-26-119, a provision that partially abrogates the common law collateral source rule in health care liability actions. It held that section 29-26-119 does not abrogate the collateral source rule under the facts of this case. We agree with the trial court that the collateral source rule remains in effect in this case. We affirm both of the trial court’s pretrial rulings.

Here is a link to the majority slip opinion: 

CROTTY - Majority Opinion.pdf (tncourts.gov)

Here is a link to Justice Page's separate opinion, which concurred in part and dissented in part: 

CROTTY - Separate Opinion.pdf (tncourts.gov)

NOTE: This is a must-read opinion for any lawyer who handles health care liability actions (formerly called medical malpractice cases) governed by Tennessee substantive law. It reaffirms George, supra, and clarifies the application of the collateral source rule under the circumstances presented here. 

Trial Court's Grant of Voluntary Dismissal in Face of Pending Motion to Dismiss Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Westfield Group Insurance v. Embry, No. M2022-01301-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2023). The syllabus reads:

In this appeal, a defendant asserts that the trial court erred when it granted the plaintiff’s motion to voluntarily dismiss its complaint while the defendant’s motion to dismiss and for attorneys’ fees was pending. We hold that a pending motion to dismiss does not preclude the plaintiff from voluntarily dismissing its case pursuant to Tenn. R. Civ. P. 41.01. Likewise, the defendant’s request for attorneys’ fees did not create a “vested right” preventing the plaintiff from voluntarily dismissing its case. The ruling of the trial court is affirmed.

Here is a link to the slip opinion: 

E-SIGNED-M2022-1301-COA-WESTFIELD GROUP INS..pdf (tncourts.gov).

NOTE: This opinion explains very well how the law on voluntary dismissals (nonsuits) work in Tennessee state-court civil actions. 

New Health Care Liability Action Opinion: Trial Court's Grant of Summary Judgment Upheld on Appeal Due to Plaintiffs' Failure to Proffer Sufficient Expert Testimony Regarding Informed Consent

The Tennesse Court of Appeals has released its opinion in Jarnagan v. Vanderbilt University Medical Center, No. M2022-01012-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2023). The syllabus from the opinion reads:

The Plaintiff brought suit alleging the Defendants failed to obtain informed consent prior to conducting a medical procedure. The Defendants responded with a consent form signed by the Plaintiff detailing the potential side effects of the procedure of which the Plaintiff asserted he had not been informed, and they moved for summary judgment. The Plaintiff argued the consent form in the present case was inadequate to establish informed consent. The trial court granted summary judgment in favor of the Defendants. The Plaintiff appealed, challenging the validity of the signed consent form based on an alleged misrepresentation and his inability to read because of an eye condition, and arguing, therefore, that there is a material question of fact as to whether informed consent was obtained. We affirm the judgment of the trial court.

Here is a link to the slip opinion: UNSIGNED-M2022-01012-COA-JARNAGIN.pdf (tncourts.gov).

NOTE: This opinion is absolutely correct. 

Trial Court's Order Regarding Disbursement of Proceeds Reversed on Appeal Because Proceeds Were Personalty That Belonged to the Decedent's Estate and Not Wrongful Death Proceeds

The Tennessee Court of Appeals has released its opinion in Sanders v. Higgins, No. M2022-00892-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2023). The syllabus from the opinion reads:

This appeal involves the disbursement of settlement proceeds proffered by an insurance company in resolution of a claim against it. The plaintiff is the surviving spouse of the decedent, who was killed when she was struck by a vehicle while riding her bicycle. The plaintiff filed a wrongful death action against the vehicle’s driver and the driver’s parents, all of whom were subsequently dismissed from the lawsuit following a settlement unrelated to this appeal. Within the same action, the plaintiff asserted a claim against his and the decedent’s insurer for negligent misrepresentation and negligent failure to procure insurance. The insurer had previously paid a pre-suit settlement to the plaintiff related to uninsured/underinsured motorist coverage. In the complaint, the plaintiff alleged that the insurer had misrepresented additional coverage under an “umbrella policy,” leading the plaintiff and decedent to believe they were covered while failing to actually reinstate the umbrella policy when it had been temporarily cancelled months before the decedent’s death. The plaintiff and the insurer eventually reached a confidential settlement. To facilitate the release of claims by both the plaintiff and the decedent’s estate and upon the estate’s motion, the trial court entered an agreed order allowing the estate to intervene. The plaintiff then filed a motion to disburse the settlement proceeds to him, and the estate filed an intervening complaint and opposition to the plaintiff’s motion, asserting that the estate was entitled to one hundred percent of the settlement proceeds related to the umbrella policy claim. Following a hearing, the trial court entered an order granting the plaintiff’s motion to disburse the settlement proceeds to him upon finding that the cause of action against the insurer had not vested in the decedent prior to her death. The court subsequently denied the estate’s motion to alter or amend the judgment. The estate has appealed. Determining that the cause of action against the insurer was based in tort, rather than wrongful death, and accrued to the decedent at the time of her fatal injuries, we conclude that the right to the resulting settlement proceeds belongs to the decedent’s estate. We therefore reverse the trial court’s judgment and remand for entry of an order granting disbursal of the settlement funds to the estate.

Here is a link to the slip opinion: Majority Opinion - M2022-00892-COA-R3-CV.pdf (tncourts.gov).

NOTE: This opinion does a good job of explaining the difference between wrongful death proceeds and tort proceeds as to how they are distributed, which is confusing to a lot of lawyers in my experience. 

New Health Care Liability Action: Upon Remand from SCOTN to Resolve Previously Pretermitted Issues, the Trial Court's Grant of Summary Judgment to Defendant Physician Upheld on Appeal

The Tennessee Court of Appeals, on remand from the Tennessee Supreme Court, has issued its opinion in Ingram v. Gallagher, No. E2020-01222-COA-R3-CV (Tenn. Ct. App. July 18, 2023). The opinion's syllabus reads:

This is a health care liability case. George Gary Ingram ("Ingram") filed a health care liability action in the Circuit Court for Hamilton County ("the Trial Court") against, among others, Dr. Michael Gallagher ("Dr. Gallagher") and Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System ("Erlanger") ("Defendants," collectively). Plaintiff later filed an amended complaint naming Dr. Gallagher as the sole defendant. He thus removed the other defendants, including Erlanger, from the lawsuit. Dr. Gallagher then filed an answer asserting, as a defense, that his governmental employer, Erlanger, was not made a party to the action. Consequently, Plaintiff filed a motion to alter or amend the Trial Court's order of dismissal as to Erlanger, which was denied. Plaintiff's claims were dismissed. In Ingram v. Gallagher, No. E2020-01222-COA-R3-CV, 2021 Tenn. App. LEXIS 283, 2021 WL 3028161 (Tenn. Ct. App. July 19, 2021) ("Ingram I"), we reversed the Trial Court, holding that the Trial Court erred in denying Plaintiff's motion to revise the order of dismissal. We pretermitted all other issues. The Tennessee Supreme Court then reversed this Court, holding that Erlanger was removed from the lawsuit when Plaintiff filed his amended complaint and that the order of dismissal had no legal effect so there was no order to amend. Our Supreme Court remanded for us to address the remaining issues. We hold, inter alia, that the savings statute is inapplicable as the Governmental Tort Liability Act ("the GTLA") is implicated; that the Trial Court did not err in dismissing Erlanger for lack of pre-suit notice and a certificate of good faith; and that the Trial Court did not err in granting summary judgment to Dr. Gallagher as his governmental employer, Erlanger, was not made a party. We affirm.

Here is a link to the opinion: TN Courts (link will take you to page where opinion can be viewed).

NOTE: This is not a surprising result because the defendant-physician's employer was not made a party-defendant as well, which is required under the GTLA. 

Further, this post is related to my May 18, 2023-post, to wit: Tony Duncan Law: New Health Care Liability Action Opinion: SCOTN Determines Amended Complaint Filed as of Matter of Right Under Rule 15 of the Tennessee Rules of Civil Procedure Is Determinative and Remands Case Back to COATN to Address Issues Previously Deemed Pretermitted (theduncanlawfirm.blogspot.com).

Trial Court's Exclusion of Evidence Regarding Medical Bills Due to Lack of Expert Proof of Their Being Necessary Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Holzmer v. Estate of James F. Walsh, Jr., No. M2022-00616-COA-R3-CV (Tenn. Ct. App. July 28, 2023). The syllabus reads:

This is an appeal from a jury verdict awarding damages to a plaintiff injured in a car accident. The plaintiff asserts that the trial court erred in excluding evidence of her medical bills. Because the plaintiff failed to present expert proof that her medical expenses were necessary, we find that the trial court did not abuse its discretion in excluding the bills. The jury verdict is affirmed.

Here is a link to the opinion: 

Majority Opinion M2022-00616-COA-R3-CV.pdf (tncourts.gov)

NOTE: Look for this one to be appealed to the Tennessee Supreme Court. Time will tell. 

Two New SCOTN Health Care Liability Action Opinions: Court of Appeals' Reversal of Trial Court's Dismissal of Vicarious Liability Claims Against the Principals Upheld on Appeal Due to Tennessee's Health Care Liability Act's Abrogation of the Common Law's Operation-of-law Exception

The Tennessee Supreme Court issued its opinions in Ultsch v. HTI Memorial Hosp. Corp., No. M2020-00341-SC-R11-CV (Tenn. July 20, 2023) and Gardner v. Saint Thomas Midtown Hosp., No. M2019-02237-SC-R11-CV (Tenn. July 20, 2023). The syllabus from the majority slip opinions in Ultsch reads:

“When there is a conflict between the common law and a statute, the provision of the statute must prevail.” Graves v. Ill. Cent. R.R. Co., 148 S.W. 239, 242 (Tenn. 1912). That longstanding rule is the key to resolving this case, which pits a common-law rule governing vicarious liability claims against certain procedural provisions of Tennessee’s Health Care Liability Act. The defendant in this case moved to dismiss the plaintiff’s claims under the common-law rule. The trial court granted that motion, but the Court of Appeals reversed after concluding that application of the common-law rule would conflict with the Act. We agree that the Act necessarily implies an intent to abrogate the common-law rule in the circumstances of this case and affirm the Court of Appeals’ decision.

Ultsch, No. M2020-00341-SC-R11-CV, slip. op. at 1. 

The syllabus from Gardner reads the same. No. M2019-02237-SC-R11-CV, slip op. at 1. 

Here is the majority opinion in Ultsch: 

691fd502-7aa9-486c-a1b9-97092d595eb0.pdf (tncourts.gov)

Here is Justice Lee's opinion that concurs and dissents in part:  

ULTSCH-Separate Concur Opinion (J.Lee).pdf (tncourts.gov)

Here is Justices Page and Bivins's dissent: 

ULTSCH-Separate Dissent Opinion (J.Bivins).pdf (tncourts.gov)

Here is the majority opinion in Gardner: 

54eb201c-81d3-4f47-b239-aa6a1bdee20b.pdf (tncourts.gov)

Here is Justice Lee's opinion that concurs and dissents in part: 

GARDNER - Separate CONCUR IN PART Opinion (J.Lee).pdf (tncourts.gov)

Here is Justices Page and Bivins's dissent: 

GARDNER-Separate DISSENT Opinion (J.Bivins).pdf (tncourts.gov)

NOTE: These two decisions must be read by any lawyer who handles health care liability actions (f/k/a medical malpractice cases) governed by Tennessee substantive law because they will affect nearly every case of that sort, etc. 

New Health Care Liability Action Opinion: Trial Court's Dismissal of Case Refiled under the Saving Statute Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Richards v. Vanderbilt University Medical Center, No. M2022-00597-COA-R3-CV (Tenn. Ct. App. July 11, 2023). The syllabus reads:

This appeal concerns a complaint for health care liability. Although Tennessee Code Annotated section 29-26-121(c) provides for an extension of the applicable statutes of limitations in health care liability actions when pre-suit notice is given, it also specifies that “[i]n no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for health care liability, nor shall more than one (1) extension be applicable to any [health care] provider.” After a prior lawsuit was voluntarily dismissed without prejudice, Plaintiff provided new pre-suit notice and refiled in reliance on the Tennessee saving statute and an extension under Tennessee Code Annotated section 29-26-121(c). The trial court dismissed the refiled complaint with prejudice, however, holding, among other things, that Plaintiff could not utilize the statutory extension in his refiled action because he had already utilized a statutory extension in the first lawsuit. For the reasons discussed herein, we affirm the trial court’s dismissal of Plaintiff’s lawsuit. 

Here is a link to the majority opinion: Majority Opinion 2022-597-COA.pdf (tncourts.gov).

Here is a link to Judge Stafford's separate opinion: Separate Opinion 2022-597-COA.pdf (tncourts.gov).

NOTE: This is a case I am involved in; while I was not involved in the trial court proceedings, the plaintiff's counsel was nice enough to let me help on appeal. Because of this, I will not comment further except to note that we will more than likely seek review by SCOTN on this issue.