All firm news and articles of Brewer, Krause, Brooks, Chastain & Burrow.


Tennessee Supreme Court Decides Failure to Satisfy Pre-Suit Notice Requirements for Healthcare Liability Action Results in Dismissal Without Prejudice

A recent Tennessee Supreme Court decision, Samuel E. Foster v. Walter William Chiles, III, M.D., et al., No. E2012-01780-SC-R11-CV, 2015 WL 343872 (Tenn. 2015), decided the appropriate remedy for non-compliance with pre-suit notice requirements in T.C.A. § 29-26-121 for a healthcare liability action under Tennessee law.  Specifically, T.C.A. § 29-26-121(a)(1) provides the following requirements:

(a)(1) Any person, or that person’s authorized agent, asserting a potential claim for health care liability shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint based upon health care liability in any court of this state.
(2) The notice shall include:
(A) The full name and date of birth of the patient whose treatment is at issue;
(B) The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient;
(C) The name and address of the attorney sending the notice, if applicable;
(D) A list of the name and address of all providers being sent a notice; and
(E) A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.




Can an unrepresented employee have a workers’ compensation settlement approved by affidavit for injuries which occurred on July 1, 2014 or subsequently in Tennessee?

In the past courts in the State of Tennessee approved settlements of employees who were not represented by affidavit.  This is especially true for those claims in which the claimant was receiving an award which approximated the value of the claim and the employee retained the right to open medical treatment per the terms and conditions of the Tennessee Workers’ Compensation Act.  For injuries which occurred on July 1, 2014 or subsequently, however, the legislature has created a new statute which precludes this.

More specifically, Tennessee Code Annotated § 50-6-240 states, “in approving settlements, a workers’ compensation judge shall consider all pertinent factors and if the injured employee is not represented by counsel, then the workers’ compensation judge shall thoroughly inform the employee of the scope of benefits available under this chapter and the employee’s rights and the procedures necessary to protect those rights.

When this was first drafted it seemed the administrative law judges may handle settlements of this type telephonically.  Based upon representations made by the Department of Labor, they are not going to handle settlements of this type in this fashion at the outset.  As a result, if the injured employee is not represented by counsel then that employee will need to present to the Tennessee Department of Labor for approval of his/her workers’ compensation settlement.


When Should a Tennessee Probate Estate Should be Opened?

I get a lot of interesting questions when I tell people that I practice Probate law in Tennessee.  One of the things that is most confusing to people is how to know when an actual estate needs to be opened for their loved one.  As a general rule, Tennessee probate estates only need to be opened when there are probate assets.  Probate assets include bank accounts that are not joint and do not have any “pay on death” or “transfer on death” designations.  Other probate assets include real estate when there is no joint, right of survivorship, co-owner.  Probate assets can also include life insurance policies and retirement accounts that do not have a beneficiary or that list the estate as the beneficiary.  These are the most common probate assets that can require an estate to be opened in Tennessee….



Tennessee Premises Owners Not Responsible to Protect Patrons from Violence that Occurs Off of Their Property

The Tennessee Court of Appeals decided a recent interesting case involving a shooting that occurred just outside of the property of a youth outreach ministry. The Jerterrius Marshawn Akridge v. Fathom, Inc., No. 2014-00711-COA-R9-CV, 2015 WL 97946 (Tenn. 2015) decision dealt with a shooting that occurred close to, but clearly outside of the property of the defendant. The plaintiffs alleged they were attending a public music event at Club Fathom. Club Fathom provides outreach to at-risk youth, including gang members. At the event the plaintiffs assert certain individuals wore gang colors and an altercation erupted inside the building. The defendant’s security personnel forced all patrons to leave the building and the premises. The plaintiffs were subsequently caught in a shooting which occurred off the premises.

The plaintiffs claimed the defendant had a history of violence and numerous incidents of crime and public disorder on their property….