Articles Posted in Civil Procedure

Tennessee Courts continue to make it clear that each time you re-file a previously dismissed Tennessee medical malpractice (now health care liability) claim, you must abide by the statutory requirements. In Cright v. Overly, No. E2015-01215-COA-R3-CV (Tenn. Ct. App. Oct. 17, 2016), the Court of Appeals addressed the need for a plaintiff who was re-filing a previously nonsuited complaint to attach a new HIPAA-compliant release to the second pre-suit notice letter, determining that her failure to do so meant the complaint should be dismissed.

Plaintiff sued multiple defendants related to the treatment and death of her husband. In August 2009, before filing the first suit, plaintiff sent pre-suit notices with a HIPAA-compliant medical authorization to each of the defendants. This action proceeded through discovery and eventually made it to trial, but three days into trial plaintiff moved for a voluntary dismissal.

After the dismissal, plaintiff sent pre-suit notices to the defendants again, but this time she did not include a HIPAA release. Instead, the letter stated: “Medical records of the entire UT Hospital admission at issue have been previously provided to you, as well as any other records you wished to obtain pursuant to an Agreed RAS Order entered in the [original suit].” When plaintiff filed her second complaint, defendants all filed motions to dismiss based on plaintiff’s failure to include a HIPAA-compliant release with her pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121. Plaintiff’s attorney asserted that a HIPAA release “was not attached, because the parties had previously entered an agreed order that the RAS service and record ordering procedure was to be the exclusive means for obtaining the deceased’s medical records, to the exclusion of any medical authorizations previously provided.” The trial court, however, granted the motions to dismiss, and the Court of Appeals affirmed.

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Judge Thomas Brothers of Nashville has declared Tenn. Code Ann. Section 29-26 -121(f)(1) and (2) unconstitutional.    Memorandum Order – Judge Brothers

The code section allows defense lawyers in Tennessee health care liability actions virtually unfettered  ex parte communications with the plaintiff’s non-party health care providers.   The code section was adopted by the Tennessee General Assembly in an attempt to override two  Tennessee Supreme Court  decisions.

The first of those cases was Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 20o2), which held that a covenant of confidentiality between patients and their treating physicians arises because of an implied understanding between patient and doctor and from a public policy concern that private medical information should be protected.

In Hurley v. Pickens, No. E2015-02089-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2016), the Court of Appeals once again held that a plaintiff in a medical malpractice case can take a voluntary nonsuit without prejudice while a motion to dismiss based on an insufficient certificate of good faith is pending.

This opinion was very similar to Clark v. Werther, No. M2014-00844-COA-R3-CV (Tenn. Ct. App. Sept. 27, 2016) and discussed in this Day on Torts post, which came out just two days prior to the instant matter. In Clark, though, plaintiff was pro se and had failed to attach a certificate of good faith to his complaint. Here, plaintiff was represented by counsel and had attached a certificate of good faith, but defendants alleged the certificate was deficient and filed motions to dismiss accordingly.

While the motions to dismiss were pending, plaintiff filed a corrected certificate of good faith, a motion for extension of time to file a corrected certificate of good faith, and a motion for and notice of voluntary dismissal without prejudice. At a hearing on all of the pending motions, and before any argument on the motions to dismiss, plaintiff “announced that he wanted to take a voluntary dismissal pursuant to Tenn. R. Civ. P. 41,” which the trial court allowed. Defendants appealed the dismissal without prejudice, and the Court of Appeals affirmed.

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In Clark v. Werther, No. M2014-00844-COA-R3-CV (Tenn. Ct. App. Sept. 27, 2016), the Tennessee Court of Appeals held that nothing about the Health Care Liability Act (HCLA)  certificate of good faith requirement prohibited a plaintiff from taking a TRCP Rule 41 voluntary nonsuit while a motion to dismiss was pending.

Here, a pro se plaintiff filed a health care liability suit against fourteen healthcare providers. When filing his complaint, however, he failed to attach a certificate of good faith as required by Tenn. Code Ann. § 29-26-122. Several of the defendants filed motions to dismiss on this basis. In response, and before any hearing on the motions to dismiss, plaintiff filed a notice of voluntary nonsuit and proposed order. Some of the defendants “opposed [plaintiff’s] notice of nonsuit on the ground that his complaint should be dismissed with prejudice because of the missing certificate of good faith,” as that is the appropriate penalty under the statute. After a hearing, the trial court dismissed without prejudice the claims against the non-objecting defendants, but dismissed with prejudice the claims against the defendants who objected to the nonsuit.

On appeal, the Court noted that Tenn. R. Civ. P. 41.01 governs voluntary nonsuits and precludes a nonsuit in certain situations, including “in a class action case, in a shareholder derivative action, in a case in which a receiver has been appointed, or while an opposing party’s motion for summary judgment is pending,” or “when it would deprive the defendant of some vested right.” (citation omitted). Otherwise, a plaintiff’s ability to take a voluntary nonsuit is “free and unrestricted…before the jury retires.” (citation omitted).

In Newman v. Guardian Healthcare Providers, Inc., No. M2015-01315-COA-R3-CV (Tenn. Ct. App. July 27, 2016), the Court of Appeals affirmed the dismissal with prejudice of a medical malpractice (now known as a “health care liability” or “HCLA”) claim because the plaintiff failed to file a certificate of good faith, and expert testimony was required in the case.

Plaintiff sued various companies that provided nursing and medical staff to a psychiatric facility. According to the complaint, plaintiff’s husband, who was a patient and resident at the facility, sustained life-ending injuries when he was attacked by another resident. Plaintiff alleged that defendants were negligence because her husband, who died, was supposed to have one-to-one care and supposed to have a wheelchair, yet had neither. She also alleged that the attacker was supposed to have one-to-one care and was known to be violent, and that defendants failed to take measures to protect the patients from the attacker.

When plaintiff filed her complaint, she did not give pre-suit notice or attach a certificate of good faith to her complaint, as required by the HCLA. At the time of this appeal, it was uncontested that this claim fell under the HCLA.

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In Denton v. Taylor, No. E2015-01726-COA-R3-CV (Tenn. Ct. App. July 25, 2016), the Court of Appeals affirmed summary judgment in a car accident case because “plaintiff provided no evidence establishing that the decedent’s negligence caused the accident.”

Plaintiff and the decedent, whose wife was the defendant here, were involved in a car accident in March 2013. Plaintiff could not remember anything about the accident, and the other driver was pronounced dead at the scene. In March 2014, plaintiff filed this negligence action.

Defendant moved for summary judgment fifteen months after the complaint was filed, submitting an affidavit from a sheriff’s deputy who stated that there were no witnesses to the accident and that a review of photographs and other evidence “was not able to determine the point of impact.” Defendant argued that plaintiff could not show that decedent’s alleged negligence had caused the accident. Plaintiff responded, relying on the post-mortem toxicology results that showed that decedent had hydrocodone and hydromorphone in his system.

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The Court of Appeals recently examined whether the sickness and death of a lawyer’s child constituted extraordinary cause under the HCLA, finding that it did in fact excuse noncompliance with the statute.

In Kirby v. Sumner Regional Medical Center, No. M2015-01181-COA-R3-CV (Tenn. Ct. App. July 12, 2016), plaintiff was treated at the defendant hospital in June 2013, and plaintiff alleged that the treatment she received fell short of the required standard of care. Well before the one-year statute of limitations, on January 31, 2014, plaintiff’s counsel sent a fax to defendant regarding the claim. No other correspondence was sent, but on the day the one-year statute of limitations was to expire, plaintiff filed suit. Plaintiff attached a certificate of good faith to her complaint, but she admittedly had not served the statutorily required pre-suit notice with attached HIPAA release.

Defendant moved to dismiss the case based on the lack of pre-suit notice. In response, plaintiff’s counsel pointed out that his son was born on March 6, 2014, and subsequently died on June 20, 2014, just days before the statute of limitations was set to expire on this claim. Counsel stated that “[f]or the few months my son lived, there were frequent periodic indications that each day could be his last, including a few serious hospitalizations.” In his memorandum opposing dismissal, plaintiff’s counsel asserted:

In Boshears v. Brooks, No. E2015-01915-COA-R3-CV (Tenn. Ct. App. July 6, 2016), plaintiff asserted on appeal that the trial judge had given incorrect jury instructions in the underlying jury trial. The Court of Appeals, however, affirmed.

Plaintiff was riding in a car with his girlfriend when they were hit by a vehicle driven by defendant. Defendant was 78-years-old and blind in one eye, and he had been to his doctor that day to report blurry vision. His doctor had referred him to the ER, and the accident occurred after defendant had been released from the ER. Defendant’s theory at trial was that he had a stroke while driving, “which resulted in an unforeseeable loss of consciousness leading to the accident.” Defendant presented expert testimony supporting his theory of the case. Plaintiff, on the other hand, attempted to show that defendant “had suffered vision problems for years, and that, essentially, he had no business driving on the day of the accident.” Plaintiff “attempted to cast doubt on whether [defendant] had been unconscious during the accident,” and witness statements regarding defendant’s condition after the wreck varied.

While charging the jury, the trial court included instructions on both sudden emergency and loss of consciousness. The jury instructions included the following:

…A person faced with a sudden emergency is required to act as a reasonably careful person placed in a similar position. A sudden emergency will not excuse the actions of a person whose own negligence created the emergency.

If you find there was a sudden emergency that was not caused by any fault of the person whose actions you are judging, you must consider this factor in determining and comparing fault.

A sudden loss of consciousness or physical incapacity experienced while driving which is not reasonably foreseeable is a defense to a negligent action. …To constitute a defense, the defendant must establish that the sudden loss of consciousness or physical capacity was not reasonably foreseeable to a prudent person…

After deliberation, the jury found defendant not at fault for the accident.

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Tennessee law requires that personal injury cases for minors be approved by the court.

Tenn. Code Ann. § 29-34-105 provides:

(a) Notwithstanding any other law or rule to the contrary, a judge or chancellor may sign an order approving any tort claim settlement involving a minor that is less than ten thousand dollars ($10,000) by relying on affidavits from the legal guardian. The court shall conduct a chambers hearing at which the minor and legal guardian are present to approve any tort claim settlement involving a minor that is ten thousand dollars ($10,000) or more.

In Commercial Painting Co., Inc. v. The Weitz Co., LLC, No. W2013-01989-COA-R3-CV (Tenn. Ct. App. June 20, 2016), the Court of Appeals reversed a trial court’s grant of summary judgment on claims for negligent and intentional misrepresentation.

Plaintiff was a drywall subcontractor, and defendant was a general contractor with whom plaintiff had entered into an agreement to perform work on a construction project. According to the complaint, plaintiff alleged that:

  • Defendant had revised the project schedule with the project owner to show that a longer construction timeline was needed, yet the “out-of-date and erroneous schedule” was used when negotiating with plaintiff;