Each one of us has, from time to time, picked up a brief written by an opponent and felt a sharp pain in the chest – our opponent has landed what seems to be a mortal blow.
This article – "The Best Lawyers Demonstrate the Best Ways to Attack Adverse Authority" – explains what to next. It is excellent.
The Tennessee Court of Appeals has affirmed a trial court’s decision to grant an extension to file certificate of good faith in a medical malpractice case, finding “good cause” based on parties’ confusion on Tennessee case law.
In Stovall v. UHS of Lakeside, LLC , No. W2013-01504-COA-R9-CV (Tenn. Ct. App. April 22, 2014), the Tennessee Court of Appeals rejected defendant medical providers’ attempts to dismiss plaintiff’s medical malpractice suit for failure to strictly comply with the certificate of good faith requirements set forth in Tennessee’s health care liability act.
In December 2010, Mrs. Stovall filed a medical malpractice suit against defendants for allegedly causing the death of her husband. A certificate of good faith was filed with the complaint, as required by Tenn. Code. Ann. §29-26-122(d)(4). That statute states that “the certificate of good faith shall disclose the number of prior violations of this section by the executing party.” Here, however, the certificate attached to the complaint did not assert that Mrs. Stovall’s counsel had no prior violations of the good faith certificate statute.
Our office is fortunate to be sought out in a large number of Tennessee medical malpractice cases involving cancer. Most of the cases involve a delay in the diagnosis of cancer, that is, that the patient presented with certain symptoms or physical findings that should have triggered a diagnosis of cancer earlier than the cancer was actually diagnosed.
Our internal review of these cases often cause us to conclude that the health care provider failed to properly and / or promptly respond the the patient’s complaints, condition and symptoms. Where we often get hung up, however, is what lawyers causally call the "so what?" question. In other words, even if we can establish that an error was made, how did the delay in diagnosis (and the start of treatment) harm the patient?
We know, or at least think we know, that prompt treatment is good and delayed treatment is bad. Prompt treatment cannot start without prompt diagnosis. Thus, the thought goes, a delay in diagnosis always harms the patient because treatment was by definition delayed.
Although Rule 4.03 of the Tennessee Rules of Civil Procedure requires return of process within ninety days of its issuance, a plaintiff failing to comply with this standard may still keep his or her case alive under Rule 3. In the recent case of Monday v. Thomas, the Tennessee Court of Appeals explored the interplay between Rules 3 and 4.03. A plaintiff in Monday had been hit by a truck driven by an individual, and plaintiffs alleged the truck was owned by three other individuals and/or two businesses. In total, the plaintiffs named and alleged fault against 6 defendants (the driver, three individual owners, and two business owners).
Plaintiffs filed suit within the appropriate one-year statute of limitations, and initially had six summonses issued in September 2010. In May 2011, the plaintiffs had four alias summons issued against the driver, two of the individual owners, and one of the business owners. In January 2012, another set of alias summonses was issued, this time to the driver, one of the individual owners and the business owner included in the 2011 summonses, and one of the individual owners who was not included in the 2011 summonses. Finally, in November 2012, process was issued to the individual owner who was included in the May 2011 summonses but excluded from those issued in January 2012.
Rule 4.03(1) of the Tennessee Rules of Civil Procedure requires that a summons, even if not served, be returned to the court within ninety days of issuance. Rule 3 provides that if process is not served within ninety days of being issued, plaintiffs cannot rely on their original filing to toll any statutes of limitation “unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process.”
It is a classic line in the movie Caddyshack, but it quickly sums up the end result in this case too. This is a two car, intersection case in which both drivers sought damages from the other. After a two day trial, the jury returned a verdict finding both the plaintiff and the defendant 50% at fault. Plaintiff filed a motion for new trial which was denied. An appeal followed.
The following relevant facts were established at trial:
1. Plaintiff was traveling south on U.S. 11-E with the intention of turning right on Allison Road.
Georgia lawyer David T. Lashgari thought it was a good idea to distribute $500,000 in personal injury settlement proceeds knowing that there was an ERISA-protected subrogation interest for $180,000.
Then he thought it was a good idea to fight an effort by the subrogee to get the money from him and his client.
Then he thought it was a good idea not to obey a court order that required him and his client to put $180,000 into his trust fund pending final judgment in the case. (He said he and his client didn’t have the money.)
This is a slip and fall case. The plaintiff was engaged to the defendants’ daughter. On multiple occasions, the defendants had hosted the plaintiff at their lake home for extended visits. In the summer of 2010, the plaintiff was again the invited guest of the defendants. Shortly before his visit, the power company had cut down numerous trees and bushes on the property but failed to remove them. In an effort to make himself useful, the plaintiff began helping his fiance’s mother remove the brush and trees. While performing the work, the plaintiff slipped on a large rock on the ground and fell and broke his arm in two places. The following facts were not in dispute:
· The plaintiff had worked in that area for two or three days before the fall.
· The accident occurred in the daylight.
Effective July 1, 2014 state law will grant Tennessee lawyers and accountants a five-year statute of repose for malpractice claims. The only exception is for fraudulent concealment by the defendant, in which event the claim must be filed within one year of the date of discovery.
A one year statute of limitations still applies in malpractice cases against lawyers and accountants and the discovery rule is still applicable to those claims. However, the new statute of repose cuts off the right of the claimant five years after the negligent act or omission occurred (absent fraudulent concealment).
Presumably, the test for fraudulent concealment for accountants and lawyers would be the same as it is for physicians and other health care providers. Here is the test for health care providers: a plaintiff must establish that (1) the health care provider took affirmative action to conceal the wrongdoing or remained silent and failed to disclose material facts despite a duty to do so, (2) the plaintiff could not have discovered the wrong despite exercising reasonable care and diligence, (3) the health care provider knew of the facts giving rise to the cause of action and, (4) a concealment, which may consist of the defendant withholding material information, making use of some device to mislead the plaintiff, or simply remaining silent and failing to disclose material facts when there was a duty to speak." Shadrick v. Coker, 963 S.W.2d 726, 736 (Tenn. 1998).
In Tennessee, before a plaintiff may file a lawsuit for medical malpractice, he or she must give pre-suit notice to the defendants in compliance with a Tennessee statute, Tenn. Code Ann. § 29-26-121(a).
In Potter v. Perrigan, the Court of Appeals recently addressed whether a plaintiff who properly gives notice and files a medical negligence lawsuit but later voluntarily dismisses the lawsuit must give notice again before re-filing the case. In Potter, the trial court dismissed the second lawsuit finding the plaintiff failed to comply with the requirement of pre-suit notice since the plaintiff did not give notice a second time before re-filing the lawsuit.
The Court of Appeals disagreed with the trial court finding that the applicable notice statute required notice sixty days in advance of the filing of a lawsuit and that plaintiff gave notice more than sixty days prior to filing the suit the second time when the plaintiff gave notice before the initial filing of the case. The Court of Appeals noted that the second lawsuit asserted the same cause of action against the same defendants.
The Tennessee Court of Appeals recently decided Wilkins v. GGNSC Springfield, a case involving alleged nursing home abuse and neglect in which the decedent’s health care power of attorney signed an optional arbitration agreement on behalf of the decedent. The nursing home sought to compel arbitration, but the trial court denied the motion holding that the POA did not have authority to sign the arbitration agreement on behalf of the decedent. The Court of Appeals upheld this decision of the trial court.
n this case, the Court of Appeals reminds us of Tennessee law regarding powers of attorney:
The execution of a power of attorney creates a principal–agent relationship. Tenn. Farmers Life Reassurance Co. v. Rose, 239 S.W.3d 743, 749 (Tenn. 2007). “[A] person executing a power of attorney may empower his or her agent to do the same acts, to make the same contracts, and to achieve the same legal consequences as the principal would be personally empowered to do.” Id. “The language of a power of attorney determines the extent of the authority conveyed.” Id. (quoting Armstrong v. Roberts, 211 S.W.3d 867, 869 (Tex. Ct. App. 2006). “The more specific a power of attorney is concerning the performance of particular acts, the more the agent is restricted from performing acts beyond the specific authority granted.” Id. A power of attorney evidences to third parties the purpose of the agency and the extent of the agent’s powers. Id. A power of attorney “should be construed using the same rules of construction generally applicable to contracts and other written instruments, except to the extent that the fiduciary relationship between the principal and the agent requires otherwise.” Id. at 749–50 (footnote omitted). The legal effect of a written contract or other written instrument is a question of law. Id. at 750.
