Do the Health Care Liability Action pre-suit notice requirements and tolling provisions found in T.C.A. § 29-26-122 apply to a GTLA (Governmental Tort Liability Act) case in Tennessee?

Brief Summary:  In a Tennessee GTLA Health Care Liability Action, the statute of limitations tolling provisions found in T.C.A. § 29-26-121 for the pre-suit notice requirements do not apply.  A Health Care Liability Action brought under the GTLA must therefore be filed within the one year statute of limitations with no tolling available under this statute.

Analysis:  In Betty Lou Lawing v. Greene County EMS, No. E2011-01201-COA-R9-CV, 2012 WL 6562155 (Tenn. Ct. App. December 17, 2012) the Tennessee Court of Appeals discussed the Health Care Liability Action (Medical Malpractice) pre-suit notice requirements and their applicability in a GTLA case (the Tennessee Governmental Tort Liability Act can be found in T.C.A. § 29-20-101 et seq.).  In the Lawing case there was an alleged medical malpractice event on July 8, 2009 that resulted in an injury.  Notice pursuant to T.C.A. § 29-26-121 was provided on July 2^nd, 2010, which was within the one year statute of limitations.  The lawsuit was then filed on October 27, 2010, outside of the one year statute of limitations but within the 120 day tolling provision contained in T.C.A. § 29-26-121 (the statute provides a 120 day extension of the one year statute of limitations when notice is provided to the opposing party within the one year statute of limitations).  The question, therefore, was whether the plaintiff could take advantage of the tolling provisions found in T.C.A. § 29-26-121 for this Health Care Liability Action brought under the GTLA.

The Tennessee Supreme Court has previously held that claims against governmental entities “must be brought in strict compliance with the GTLA, and that our courts have thus held that the savings statute as well as joinder provisions in the comparative fault statute do not operate to extend the statute of limitations in the GTLA because the legislature did not expressly provide that they would apply to claims under the GTLA”.  Lawing at 2 (citing Lynn v. City of Jackson, 63 S.W.3d 332 (Tenn. 2001); Daniel v. Hardin County General Hospital, 971 S.W.2d 21 (Tenn. Ct. App. 1997)) (Note that T.C.A. § 20-1-119 was amended by the legislature in 1999 after the Daniel decision to explicitly apply the comparative fault joinder provisions to GTLA cases – however it took a specific act of the Tennessee legislature to make this clear as required under the GTLA).

Protective Orders - What is a party required to establish in order to obtain a protective order under Tennessee Rule of Civil Procedure § 26.03?

Analysis:  Tennessee Rule of Civil Procedure § 26.03 allows a party to file a motion for a protective order preventing or limiting discovery that is requested by the opposing party under certain circumstances.  Rule 26.03 provides that the party requesting the protective order must show "good cause" and the specifically listed circumstances that allow a party to obtain a protective order include when "justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."  Tennessee Rule of Civil Procedure § 26.03

Tennessee Rule of Civil Procedure § 26.03 provides a list of things the court can do in a protective order.  This list includes the following

(1) that the discovery not be had;

(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;

(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

(5) that discovery be conducted with no one present except persons designated by the court;

(6) that a deposition after being sealed be opened only by order of the court;

(7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;

(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

In Ballard v. Herzke, 924 S.W.2d 652 (Tenn. 1996) the Tennes...

Contract law - When is an individual liable as a personal guarantor for a company's lease contract obligations?

Analysis:  The recent Tennessee Court of Appeals decision of Creekside Partners v. Albert Nathan Scott, No. M2012-00623-COA-R3-CV, 2013 WL 139573 (Tenn. Ct. App. January 10, 2013) discussed the liability of an individual as a personal guarantor for a corporate tenants lease obligations.  This case comes on the heels of the recent Tennessee Supreme Court decision of 84 Lumber Co. v. Smith, 356 S.W.3d 380 (Tenn. 2011) which is a very important Tennessee case on this issue.  The Creekside case provides further explanation on how Tennessee courts will analyze this type of a situation following the 84 Lumber Co. decision.

In this case the individual in question, Albert Nathan Scott, signed the written contract as follows:

What Tennessee jurisdictions were the most conservative for personal injury or death trials in fiscal year 2011-2012?

Every year the Tennessee Administrative Office of the Courts publishes the “Annual Report of the Tennessee Judiciary” to provide information on cases filed and/or decided in Tennessee.  The fiscal year 2011-2012 report covers all cases from July 1, 2011 through June 30, 2012 and was recently released.  Part of this report specifically deals with personal injury and death cases and whether damages were awarded at trial. 

One question I am often asked is how conservative a jurisdiction is for personal injury or death cases.  Below is a table of information I compiled from the report for fiscal year 2011-2012 showing statistics on damages and tort cases involving personal injury or death in Tennessee.  This chart shows the cases that went to trial (jury trial and non-jury trial) and how many of those cases resulted in damage awards.  I will list the counties in order with the most conservative at the beginning of the list by percentage of cases where damages were awarded:

Obviously, some of the statistics are not very reliable to provide an accurate depiction of how conservative or liberal a particular jurisdiction is because of the low number of cases that actually went to trial.  However, this gives a good general statistical picture for each Tennessee district.  Some standouts include the largest jurisdictions in Tennessee.  Not surprisingly Shelby County was the most liberal of the large jurisdictions with 63.3% of cases resulting in damage awards.  Davidson County Tennessee had a rate of 52.2% of cases resulting in damage awards.  Knox and Hamilton counties, expectedly, showed up as the most conservative of the large Tennessee jurisdictions where 37.7% and 35.7% of cases resulted in a damages award. 

Another interesting note concerns District 8 which includes Campbell, Claiborne, Fentress, Scott and Union counties.  In these counties there were a total of 39 trials involving personal injury or death.  A total of 0 of these cases resulted in a damages award!

A total of 37 Tennessee counties had no trials involving personal injury or death in the 2011-2012 fiscal year.  A total of 47 counties did not have any jury trials in this same time period.  That means that in almost half of the counties in Tennessee there were no jury trials (there are 95 counties in the State of Tennessee).

For the entire State of Tennessee there were a total of 204 cases where damages were awarded at trial.  Out of these, a total of 158 of them had an award between $1.00 and $99,999.99.  Twenty-Nine of these cases resulted in awards in the range of $100,000.00 to $999,999.99.  Seventeen of these cases resulted in awards of $1,000,000.00 or greater.