Court reviews jurisdiction of a wrongful death case against a nursing home

ALLISON J. PERSON ET AL. v. KINDRED HEALTHCARE, INC., d/b/a PRIMACY HEALTHCARE AND REHABILITATION CENTER, ET AL. (Tenn. Ct. App May 7, 2010)

This is an action for negligence and wrongful death filed against a nursing home by the administrator of decedent patient's estate. The trial court denied Defendant nursing home's motion to dismiss or, in the alternative, for summary judgment upon finding decedent patient was not competent to execute the power of attorney pursuant to which decedent's daughter had executed an arbitration agreement with Defendant. Defendant appeals. We dismiss the appeal for lack of jurisdiction.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/persona_050710.pdf

Intentional delay in advancing claim based on defendant health and misunderstanding of state intention to delay not sufficient to overcome statute of limitations.

HARRY SKIPPER, et ux v. STATE OF TENNESSEE (Tenn. Ct. App. July 31, 2009.)

Mr. Skipper filed a claim with the Tennessee Claims Commission, alleging that Tennessee Department of Transportation snow plow operator Dennis Burns crossed the center line, striking him. Mr. Burns became ill with cancer, and his deposition was scheduled three times before it was successfully taken. Following Mr. Burns' deposition, Mr. Skipper failed to advance his claim for a period of one year, and the Claims Commission dismissed his claim pursuant to Tennessee Code Annotated section 9-8-402(b). Mr. Skipper sought relief from the dismissal pursuant to Tennessee Rules of Civil Procedure 6.02, 59, and 60.02. Mr. Skipper's counsel claimed that he failed to act in order to allow Mr. Burns time to recover, so that he could testify live at trial. He further stated that it was his understanding that the State would contact him once such recovery was made. The Claims Commission denied Mr. Skipper relief from the order of dismissal, and Mr. Skipper appealed to this Court. We affirm.

Full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/skipperh_080309.pdf

Court reviews sufficiency of service of process in a medical malpractice case

STEPHANIE JONES and HOWARD JONES v. RENGA I. VASU, M.D., THE NEUROLOGY CLINIC, and METHODIST LEBONHEUR HOSPITAL (Tenn. Ct. App. April 22, 2010)

This appeal involves delay of service of process. The plaintiffs filed a complaint against the defendants, alleging medical malpractice by the defendants almost a year earlier. The plaintiffs delayed service on the defendants until they had an expert witness review their claim. Summonses were issued to the defendants over eleven months after the complaint was filed. The defendants filed a motion to dismiss or for summary judgment, alleging insufficiency of service of process, and asserting that the plaintiffs' claims were barred by the one-year statute of limitations. The trial court denied the defendants' motion. The defendants appeal. We reverse and remand for entry of an order dismissing the complaint, finding that the delay of prompt service of process rendered the filing of the complaint ineffective to commence the action and stop the running of the statute of limitations.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/joness_042210.pdf

Court reviews trial court's rulings on the sufficiency of an amended complaint and its dismissal of wrongful death and loss of consortium claims in a medical malpractice case.

TINA TAYLOR, ET AL. v. LAKESIDE BEHAVIORAL HEALTH SYSTEM (Tenn. Ct. App. March 15, 2010)

This is a medical malpractice case. Appellant filed suit against Appellee Hospital after Appellant's decedent suffered several falls and a broken hip while a patient at Appellee Hospital.

The trial court granted Appellee Hospital's Tenn. R. Civ. P. 12.02(6) motion, thereby dismissing Appellant's amended complaint. Specifically, the trial court held: (1) that the amended complaint was ineffective to give notice to Appellee Hospital because it did not reference the date(s) of decedent's falls, (2) that the medical malpractice claim and hedonic damages of the widow arising therefrom were dismissed by previous orders of the court, and (3) that the proof did not support the averments made in the amended complaint.

After review, we conclude: (1) that the amended complaint is sufficiently specific to satisfy Tenn. R. Civ. P. 8, and to state a claim for medical malpractice against the Appellee Hospital, (2) that the previous orders of the trial court only dismissed the wrongful death claims and widow's loss of consortium claims arising therefrom, and not the medical malpractice claims, and (3) that the trial court reviewed matters outside the pleadings so as to trigger summary judgment analysis under Tenn. R. Civ. P. 12.03, and (4) that there are disputes of material fact in this case so as to necessitate a full evidentiary hearing on the medical malpractice claim. Reversed and remanded for an evidentiary hearing on the medical malpractice claim against Appellee Hospital and on the widow's loss of consortium claims arising from the alleged medical malpractice.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/taylort_031510.pdf

Appeal denied as frivolous based on TN Rules of Civil Procedure 41.01, Voluntary Dismissals

RICK PETERS, ET AL. v. RAY LAMB, M.D., ET AL. (Tenn. Ct. App. May 27, 2009)

This is a medical malpractice action by Rick Peters and Rob Watts ("Plaintiffs"), the surviving spouse and child respectively of Elizabeth Peters, deceased, filed against Dr. Ray Lamb and his practice group, McLeod Cancer and Blood Center of East Tennessee (collectively "Defendants"). Mrs. Peters unexpectedly died shortly after Defendants began treating her for her recently-diagnosed anal cancer. Pre-trial, Plaintiffs lodged a proposed motion and order of nonsuit by placing it in the trial judge's "in-box." By the time the judge discovered the document, a motion for summary judgment had been filed by Defendants and was pending. The trial court did not sign the order of nonsuit. Following a summary judgment hearing seven months later, the trial court entered an order denying the motion for nonsuit and granting Defendants summary judgment. Plaintiffs appeal. The sole question Plaintiffs raise is whether the trial court erred in ruling that the lodging of the motion and order for nonsuit was ineffectual to dismiss their action without prejudice. Defendants claim this appeal is frivolous and seek an award of damages pursuant to the provisions of Tenn. Code Ann. section 27-1-122 (2000).

We conclude that the appeal is frivolous because the issue Plaintiffs raised had no reasonable chance of success. We affirm the judgment of the trial court and remand for a determination as to the damages due Defendants.

The full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/petersr_052709.pdf

Court reviews dismissal of case without prejudice due to noncompliance of Plaintiff with court orders

MIN GONG v. IDA L. POYNTER (Tenn. Ct. App. February 1, 2010)

Min Gong ("the plaintiff") filed this action against Ida L. Poynter ("the defendant") for injuries she sustained when, as a pedestrian on the sidewalk, she was struck by an automobile driven by the defendant, all as alleged in her filing. The "complaint" was filed pro se in the form of a long letter with approximately 200 pages of accompanying documents.

The defendant served written discovery on the plaintiff consisting of six interrogatories and one document request. The plaintiff submitted an unsworn response in which she objected to answering the defendant's discovery on the grounds that "individuals" are not subject to written discovery and that the information requested was protected by the attorney-client privilege or the work product doctrine. The defendant filed a motion to compel which the trial court granted after a hearing held on January 29, 2009. The order, filed January 29, 2009, compelled "the Plaintiff [to] submit written responses to Defendant's discovery within thirty (30) days from the date of this Order or Plaintiff's suit will be dismissed."

The plaintiff did not appear at the January 29, 2009, hearing, but did file several "motions" of her own. In addition, she sent written notification that she had scheduled the matter for a four-hour trial on April 2, 2009. As to the motion to compel, the plaintiff asserted that the defendant had misinterpreted "Rule 33 of the Tennessee Rules of Civil Procedure" and that it is not applicable to individuals. Counsel for the defendant filed an affidavit on March 11, 2009, stating that the plaintiff had not complied with the order and that the plaintiff, as late as March 9, 2009, continued to resist discovery on the grounds previously stated by her. On March 25, 2009, the trial court entered an order dismissing the case "without prejudice." The plaintiff appeals. We affirm.

Opinion can be found at:
http://www.tba2.org/tba_files/TCA/2010/poynterl_020110.pdf