The opinion in Beard v. Branson was published over thirteen years after the wrongful death at issue in the case. While this is a long post, it is a fascinating glimpse into the hurdles a layperson can face in navigating the healthcare system. Background On September 13, 2004, Ruth Hartley received colon surgery at Trinity Hospital, with Dr. James William Branson as her surgeon. Prior to...read more
Whenever any kind of injury claim arises in a medical setting, or involves a health care provider, expect a motion to dismiss claiming that the case is one governed by the Tennessee Health Care Liability Act. While the parameters of what falls under the restrictive healthcare liability law (or what we still sometimes refer to as medical malpractice cases) seem to have expanded in recent years, a...read more
Courts are not quick to find that extraordinary cause should excuse compliance with the pre-suit notice requirements in a medical malpractice lawsuit, so lawyers take notice when the appellate courts give guidance on when exceptions will apply. Background On June 24, 2014, Plaintiff Betty Kirby filed a health care liability lawsuit against Sumner Regional Medical Center. The complaint included...read more
Timing is everything when it comes to adding alleged comparative tortfeasors. Unfortunately, this lesson is too often learned the hard way. Where medical malpractice is concerned, the lack of coordination between the drafters of the Health Care Liability Act with the statute allowing a comparative tortfeasor to be added within 90 days of their being identified in an answer adds yet another...read more
Pending legislation can often be a harbinger of change, even if it doesn’t pass the first time around. This legislative session has seen several bills that, while unsuccessful this time, might still be of interest to legislators and lawyers next session… Third time wasn’t the charm for an idea first proposed in 2015 and revisited again in 2016 and 2017 that seeks to move...read more
The General Assembly is back in session and that means that more than a few items of interest will be considered in the next few months. Here are some matters under consideration that will impact the legal system and the ability of Tennesseans to have access to justice. Patients’ Compensation System Legislation proposed in 2015 and revisited in 2016 that seeks to move medical malpractice claims...read more
This fall, two opinions, issued two days apart and from different sections of the Tennessee Court of Appeals, have explored the same essential question: should a plaintiff in a health care liability action be permitted to voluntarily dismiss his lawsuit without prejudice in the face of a motion to dismiss arising from an inadequate certificate of good faith? Since the advent of the complex...read more
Last month we wrote about the common knowledge exception, and it crops up again this month. Lawyers, be warned: Even if the common knowledge exception applies in a health care liability case so that expert testimony is not required, the failure to file a certificate of good faith may still be fatal… Background This health care liability action was filed following a fall by Plaintiff, Vicki...read more
In Unitta Sue Newman v. Guardian Healthcare Providers, Inc., the Tennessee Court of Appeals addressed the “common knowledge” exception – an exception to the requirement of expert testimony in certain medical malpractice actions. Spoiler alert: the exception almost never applies… Background The plaintiff in the case is the surviving widow of Billy Joe Newman who was attacked and killed by...read more
The recent Court of Appeals case of Betty Kirby v. Sumner Regional Medical Center offers an example of the rare instance in which “extraordinary cause” will be found to excuse non-compliance with the pre-suit notice requirement in a medical malpractice suit. Background On June 24, 2014, Plaintiff Betty Kirby filed a health care liability lawsuit against Sumner Regional Medical Center. The...read more
Here are a few items of interest to the tort law practitioner stemming from the Tennessee General Assembly’s last session… There are two new laws that relate to healthcare liability actions. One such law (HB0713/SB0889, sponsored by Rep. Wilburn, R-Somerville, and Sen. Kelsey, R-Germantown) limits certain information about a healthcare provider that can be “used” in a healthcare...read more
Historically, a statute of limitations did not run against an injured party if the person was incompetent. The idea was that it was unfair to penalize someone for not bringing suit if he was incapable of doing so. A new Court of Appeals ruling offers the first analysis by a court of the 2011 amendment to Tenn. Code Ann. § 28-1-106, the statute tolling a statute of limitations on the basis of the...read more
In medical malpractice cases (or, as they are now called, “healthcare liability” actions), a HIPAA-compliant medical authorization is required so that defendants can obtain the complete medical records for the patient who is bringing suit. This helps everyone have complete information as they are preparing for trial. However, this is not as simple a requirement as it might...read more
Jefferson, Madison, and Hamilton could never agree on what "Necessary and Proper" meant in the Constitution.
200 years ago today, John Marshall wrote that Congress's acts must "consist with the letters and the spirit of the Constitution."
Happy Birthday, McCulloch v. Maryland https://t.co/Ofa6mb9y4s