Where HCLA (Tennessee medical malpractice) defendants knew that their hospital employer was a necessary party under the GTLA yet failed to identify them to plaintiff pursuant to Tenn. Code Ann. §29-26-121(a)(5), plaintiff was entitled to add the hospital under comparative fault statute when it was later identified in defendants’ answers.…
Where plaintiff sent a HIPAA authorization with his pre-suit notice that was HIPAA compliant but authorized the disclosure of records, rather than the obtaining of records, the Court of Appeals ruled that he substantially complied with the HCLA. In Short v. Metro Knoxville HMA, LLC, No. E2018-02292-COA-R3-CV (Tenn. Ct. App.…
In order to take advantage of the 120-day extension of the Tennessee HCLA provided by giving pre-suit notice, a plaintiff must have provided a HIPAA-compliant medical authorization with the notice. The case of Webb v. AMISUB (SFH) Inc., No. W2017-02539-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2019), concerned whether a…
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…