TDLA is currently working on several Amicus Briefs. Below is an outline of those Amicus Briefs for our membership.

1. TDLA’s Professional Negligence and Healthcare Committee Co-Chair, Chris Vrettos: On April 7, 2021, the Supreme Court granted Defendants’ application for permission to appeal in Cooper v. Mandy, et al. Cooper involved claims of a negligently performed breast reduction surgery in which the patient maintained she never would have undergone the procedure but for the physician and his practice group’s alleged misrepresentation regarding his credentials. After Plaintiffs’ counsel failed to comply with pre-suit notice requirements on both filing and re-filing of the lawsuit, the Trial Court denied Defendants’ Motion to Dismiss on the grounds that all of Plaintiffs’ claims—including one for medical battery—flowed from the alleged initial misrepresentation. Consequently, Tennessee’s Health Care Liability Act did not apply. The Court of Appeals affirmed in November 2020. Brie Stewart of Spears, Moore, Rebman & Williams in Chattanooga will prepare an amicus brief on behalf of the Tennessee Defense Lawyers Association.
   
   
2. TDLA’s Tort Committee Co-Chair, Sean Martin: Younger v. Okbahhanes is an action for personal injury arising out of a motor vehicle accident. Plaintiff filed a lawsuit against Defendant more than 1 year after the accident. Defendant filed a motion for summary judgment arguing that Plaintiff’s action was untimely. Plaintiff argued in response that T.C.A. § 28-3-104(a)(2) operated to extend the statute of limitations to two years because Defendant was issued a traffic citation for failure to exercise due care in violation of § 55-8-136. T.C.A. § 28-3-104(a)(2) extends the statute of limitations to two years if “(A) Criminal charges are brought against any person alleged to have caused or contributed to the injury; (B) The conduct, transaction, or occurrence that gives rise to the cause of action for civil damages is the subject of a criminal prosecution commenced within one (1) year by: (i) A law enforcement officer; (ii) A district attorney general; or (iii) A grand jury; and (C) The cause of action is brought by the person injured by the criminal conduct against the party prosecuted for such conduct.” The trial court found that T.C.A. § 28-3-104(a)(2) extended the statute of limitations to two years because Defendant was charged with a criminal offense and a criminal prosecution had been commenced against him. Addressing this as a matter of first impression, the Tennessee Court of Appeals affirmed, holding that “the traffic citation issued to Defendant for failure to exercise due care, which had been prepared, accepted, and the original citation filed with the court, [wa]s a criminal charge and a criminal prosecution by a law enforcement officer, such that [T.C.A. § 28-3-104(a)(2)] was applicable to extend the statute of limitations to two years.” Therefore, the Court of Appeals upheld the trial court’s denial of summary judgment to Defendant. Defendant filed a Rule 11 Application for Permission to Appeal with the Tennessee Supreme Court at the end of March 2021. Plaintiff filed a timely response in opposition in April 2021. We are currently waiting for the Tennessee Supreme Court to decide whether to grant permission to appeal. Hannah Lowe of Trammell Adkins & Ward in Knoxville is working on an amicus brief that will be ready to be filed on behalf of TDLA should the Tennessee Supreme Court accept the application and grant permission for the appeal.
   
   
3. Todd Presnell with Bradley’s Nashville office is drafting an Amicus Brief on behalf of TDLA. This brief will be in support of Nashville Ready Mix’s Rule 11 Application in Story v. Meadows, Court of Appeals No. M2019-01011-COA-R3-CV. This submission is also being considered in partnership with DRI's national Amicus Committee. 

On January 28, 2021, the Court of Appeals for the Eastern Section, in a case of first impression, interpreted Tennessee Code Annotated §28-3-104(a)(2) to extend the statute of limitations to two years when a traffic citation for failure to exercise due care was issued at the scene of the accident.  See Younger vs. Okbahhanes, 2011 Tenn. App. Lexis 33 (January 28, 2021). 

            TDLA member Sean Martin with Carr Allison in Chattanooga is the attorney for the appellant. To aid in his application to the Tennessee Supreme Court, he would like to know whether you have had or currently have a case involving Tennessee Code Annotated section 28-3-104 (a)(2).  He is also interested in learning if you have received a new lawsuit since January 28, 2021 that attempts to revive a case thought to have been barred by the one year statute of limitations but now has a two year statute based on this holding.

            Please forward any information or comments to swmartin@carrallison.com.

Thank you to the TDLA Professional Negligence & Healthcare section chair Chris Vrettos with Gideon, Cooper, and Essary PLC for the TDLA Amicus Brief on this case culminating in a favorable result. Please see summary and opinions below.

The Supreme Court just released its opinion in Martin v. Rolling Hills Hospital, a pre-suit notice case involving deficiencies in the HIPAA authorization.  The Supreme Court’s decision resulted in a reinstatement of the dismissal originally granted to the Defendants by the trial court.

Just as importantly, the Supreme Court addressed some questions—particular to HIPAA authorization deficiency cases—that up until now had been answered inconsistently by various Courts.  In summary:

• Defendants wishing to challenge a Plaintiff’s compliance with the pre-suit notice statute should show how Plaintiff’s noncompliance frustrated the purpose of the statute, or denied the defendants a benefit conferred by the statute.
• One way to do this is to show that the HIPAA authorization accompanying the notice lacked one or more of the 6 core elements required by federal regulations.
• While Defendants must still explain how they were prejudiced by Plaintiff’s noncompliance, they need not attempt to “test” a deficient HIPAA authorization.
• Once Defendants have met the burden described above, the burden shifts back to Plaintiffs to show substantial compliance with, or extraordinary cause for failure to comply with, pre-suit notice requirements.
• Notably, prejudice is relevant to the question of substantial compliance, but it is not its own analytical element in ruling upon a Rule 12.06 motion regarding Plaintiff’s failure to comply with pre-suit notice requirements.

Majority Opinion: click here

Separate Opinion: click here

TDLA members Ashley Cleek and Brandon Stout with Rainey, Kizer, Reviere & Bell in Jackson, TN were attorneys for the appellants, Rolling Hills Hospital, LLC, and Universal Health Services, Inc.

TDLA Members: If you would like to submit a request for TDLA Amicus Brief consideration, please email office@tdla.net

Update from Chris Vrettos and Drew Reynolds, chairs of the TDLA Healthcare & Professional Negligence Section:

More info: click here and here

Please see the link below regarding the Tennessee Supreme Court decision holding that statutory caps on noneconomic damages does not violate the Tennessee constitution.

Thanks to Sean Martin with Carr Allison and his team for providing the TDLA Amicus Brief on this issue to the court.

TN Supreme Court Majority Opinion may be seen by clicking here.

Summary of the decision: click here

TN Supreme Court has issued its opinion in the DeBruce case. This was an insurance coverage / dec action case in which TDLA members Hank Spragins, Elijah Settlemyre and Hannah Lowe wrote the Amicus brief on behalf of TDLA.  The court agreed with TDLA’s (and Tennessee Farmers’) position and found that the tort plaintiff is not a necessary party to a dec action between an insurance company and its insured. 

To read the Supreme Court decision: click here

The Professional Negligence and Healthcare co-chairs Drew Reynolds and Chris Vrettos have brought a case to watch to TDLA's attention. The Tennessee Court of Appeals issued an opinion last week that might be of interest to attorneys in the Professional Negligence and Health Care Section. For a PDF of the opinion, Bidwell v. Strait et al., click here.

Bidwell appears to be the first appellate opinion to address the “notice back” provision set forth in Tenn. Code Ann. § 29-26-121(a)(5). Among other things, Bidwell holds that the onus is no longer solely on the claimant to identify all necessary parties to a health care liability action; rather, based on § 29-26-121(a)(5), a defendant may not withhold the identity of a known or necessary person, entity, or health care provider who may be a properly named defendant.

Although Bidwell involved issues relating to the Governmental Tort Liability Act that will not arise in most health care liability actions, the plaintiffs’ bar may seize on the above-referenced language from the opinion in order to argue that defendants must provide written notice of any persons, entities, or health care providers who may be properly named defendants within 30 days of receiving pre-suit notice in all health care liability actions. Based on the holding of Bidwell, however, the scope of the obligation imposed on such defendants is not entirely clear. Accordingly, it would be worthwhile for attorneys representing defendants in health care liability actions to review this opinion and monitor any potential appeal, as well as Tennessee courts’ interpretation of § 29-26-121(a)(5) going forward.

Rule 26 Request - The Tennessee Supreme Court is seeking written comments concerning recommended amendments from the Advisory Commission on the Rules of Practice and Procedure.  Specifically, the Commission has recommended an amendment to Rule 26 of the Rules of Civil Procedure which would require initial disclosures in state court.  TDLA would appreciate receiving your comments regarding the proposed rule change so that we can draft a comment to submit on behalf of our membership.  The deadline to submit comments is December 13.  If you would like to also send your comments directly to the Commission, you can e-mail them to appellatecourtclerk@tncourts.gov or mail them to James Hivner, Clerk, Re: 2020 Rules Package, 100 Supreme Court Building, 401 7^th Avenue North, Nashville, TN 37219-1407.

Order seen by clicking here.

One of the membership benefits at TDLA is being part of an organization that can make a difference in Tennessee law. TDLA has submitted several Amicus Briefs in the last few months and below is a summary of those efforts.

Individual Healthcare Specialists, Inc. v. Bluecross Blueshield of Tennessee, Inc. - TDLA garnered national attention from DRI for its involvement in this case. The Tennessee Supreme Court issued an opinion in January addressing the issues discussed in the Amicus Brief filed by DRI with the assistance of TDLA last year. In the case, the Court found Defendants breached its contract with Plaintiffs by failing to pay post-termination commissions, but the discovery rule did not apply because the alleged breach did was not "inherently undiscoverable. While the Court did not reject the discovery rule with respect to all breach of contract cases, the opinion indicated that the discovery rule would apply in very narrow circumstances, if at all.

Martin et. al v. Rolling Hills Hospital, LLC - This is a healthcare liability case in which the Court of Appeals reversed the trial court’s dismissal of the claim based on plaintiffs’ incomplete HIPAA authorization and failure to comply with Tenn. Code Ann. section 29-26-121. The Supreme Court accepted the parties’ application and has asked for briefs regarding the role of prejudice in a substantial compliance analysis and when a plaintiff fails to provide a HIPAA-compliant authorization with the pre- suit notice letter. The parties’ briefing of these issues is completed, and TTLA has submitted an Amicus Brief. In response, TDLA Professional Negligence and Medical Malpractice Chair Chris Vrettos of Gideon, Cooper & Essary has filed an Amicus Brief on behalf of TDLA last week. More to come on this case.

Tennessee Farmers v. DeBruce - TDLA members Hannah Lowe of Trammell, Adkins and Ward and Hank Spragins of Hickman, Goza and Spragins have agreed to co-author an Amicus Brief on behalf of TDLA regarding this significant case. The Tennessee Declaratory Judgment Act (Tenn. Code Ann. 29-14-107(a)) requires that “all persons shall be made parties who have or claim an interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings.” To date, Tennessee appellate courts have never gone so far as to hold that a court would not have subject matter jurisdiction to hear a declaratory judgment action when the insurer failed to include a party that claims an interest in the declaration. This case makes doing so a possibility.

TDLA was presented the Rudolph A. Janata award at the DRI Annual Meeting in San Francisco, CA earlier this month. The award is presented to an outstanding state & legal defense bar organization that has undertaken an innovative or unique program contributing to the goals and objectives of the organized defense bar. We are honored to receive this national award, and we recognize all TDLA leadership, past and present, who have tirelessly volunteered their time to achieve this honor! 

Onwards and upwards!