Where plaintiff could only show that his expert in an HCLA case was a neurosurgeon consultant during the year prior to the incident, yet the alleged negligence was committed by a medical assistant and licensed practical nurse (LPN) in an urgent care clinic, plaintiff’s expert was not qualified to testify…
When an HCLA plaintiff decides to serve pre-suit notice via personal service, such service must actually be completed in accordance with the statute in order for the plaintiff to take advantage of the 120-day extension of the statute of limitations. In Webb v. Magee, No. 2018-01305-COA-R3-CV (Tenn. Ct. App. April…
A nurse who worked in an administrative capacity in the year preceding an incident underlying an HCLA claim may not be qualified to give expert testimony in the case. A Rule 59.04 motion did not cure the deficiency in the initial affidavit. In Smith v. Methodist Hospitals of Memphis, No.…
When a plaintiff filed suit against a massage therapist and his employer alleging various claims based on an intentional sexual assault, the requirements of the HCLA did not apply to the intentional tort claims against the massage therapist. For the negligent retention or supervision claim against the employer, however, a…
Where a plaintiff in an Tennessee HCLA (medical malpractice) case “failed to obtain a competent expert witness to testify on the applicable standard of care,” summary judgment as to all of her claims was affirmed. In Akers v. Heritage Medical Associates, P.C., No. M2017-02470-COA-R3-CV (Tenn. Ct. App. Jan. 4, 2019),…
Where plaintiff gave pre-suit notice of an HCLA suit to two defendants related by employment, but her HIPAA authorization failed to identify to whom medical records could be disclosed, the Court of Appeals analyzed whether each defendant was individually prejudiced by the lack of compliance. The Court ultimately concluded that…
When an HCLA plaintiff proceeds under a res ipsa loquitur theory, her expert is not required to opine on the same elements as in a traditional HCLA claim. In Anderson v. Wang, No. M2018-00184-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2018), plaintiff had laser cataract surgery performed on both eyes…
When a plaintiff’s lawyer terminates his representation just weeks before the statute of limitations is set to expire on a health care liability claim, this termination may constitute extraordinary cause to excuse the plaintiff’s noncompliance with certain pre-suit notice and certificate of good faith requirements. In Reed v. West Tennessee…
When a defendant files a motion “requesting the court to compel the plaintiff or his counsel to provide the court with a copy of the expert’s signed written statement that was relied upon in executing the certificate of good faith” pursuant to Tenn. Code Ann. Section 29-26-122 of the HCLA,…
Failure to comply with HCLA pre-suit notice requirements will not be excused due to local practice, and a final order dismissing defendants from a suit that is not appealed cannot later be revised by the trial court through a decision in a second suit. In Smith v. Wellmont Health System,…