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! 

Past TDLA President Brad Box with Rainey, Kizer, Reviere and Bell provided this legislative update for TDLA membership.

As the 2018 General Assembly draws to a close, here are a few interesting updates for you:

1. The Phantom Damages Elimination Act (Dedmon/West issue).  This bill was introduced to deal with the disappointing opinion by the TN Supreme Court in the Dedmon case.  I spoke with a lobbyist for Farm Bureau and he said that this bill died in committee because it didn’t have enough support in committee to move it out in the house of representatives.  The chair of the house sub-committee was against it and so it never came out of committee.  I suspect that it will generate more discussion next year.  Of course there are lots of contested elections across the state, so that will have an impact on the future of this bill.
   
   
2. A Notary bill (SA0790), which I have attached, Click here to view. It will allow for documents to be electronically notarized.  It has passed the Senate and will be on the house floor next week. The attached is the Senate amendment. The amendment rewrites the bill so this is the bill.
   
   
3. SB1862. This bill was introduced to respond to the American Law Institute restatement of liability insurance.  This bill has been signed by the Governor and is now effective. Click here to view

The Dedmon v. Steelman case and the Tennessee Supreme Court ruling may be read by clicking here.

TDLA's Professional Negligence and Healthcare Section has filed an Amicus Brief on behalf of TDLA in the Willeford case regarding the separation of powers challenge to T.C.A. § 29-26-121(f). TDLA Member Peter Winterburn with Lewis Thomason is the lead on this Amicus Brief. This case has not yet been set for oral argument.

Please find documents below.

Brief click here

Brief of Amicus Curiae click here

Joint Brief of Defendants click here

Reply Brief of Willeford click here

If you have any questions, please do not hesitate to contact attorney Peter Winterburn pwinterburn@lewisthomason.com

A reminder of the amendments to the rules of appellate procedure that go into effect on July 1, 2017. Specifically, Rule 3 has been amended such that notice of appeal is filed ONLY with the appellate court clerk.

To view the full list of the amended TN Rules of Appellate Procedure that go into effect on July 1, 2017 click here, or visit the AOC website.