Kelly on Malpractice

In Wilson v. Schwind, 2007 WL 4554735 (Tenn.Ct.App.), Plaintiffs filed a medical malpractice action against an anesthesiologist and medical group responsible for administering anesthesia for Mr. Wilson’s cataract surgery. Plaintiffs alleged that the improper administration of anesthetic resulted in permanent blindness in Mr. Wilson’s right eye. The Defendants filed a Motion for Summary Judgment and attached an affidavit and deposition of an expert witness. At the hearing on the summary judgment motion, the trial court granted Plaintiffs’ oral motion to take a voluntary dismissal of their case without prejudice. The Defendants filed a motion to alter or amend the order of dismissal so as to be “with prejudice,” and the trial court granted the defendants’ motion. Plaintiffs filed a motion requesting a rehearing. At the hearing on Plaintiffs’ motion, the trial court set aside its order amending the dismissal to be with prejudice and allowed Plaintiffs 30 days to file an expert witness affidavit in response to the Defendants’ Motion for Summary Judgment. Plaintiffs attempted to fax file an affidavit in opposition to the Motion for Summary Judgment. A few months later, Plaintiffs filed a second lawsuit in the same court against the same parties, alleging the same malpractice that was the basis of the first lawsuit. The Defendants filed a Motion to Dismiss the second lawsuit. Following a hearing on both cases, the trial court found that fax filing an affidavit was not permitted by the Tennessee Rules of Civil Procedure, and therefore, Plaintiffs had not responded to the Defendants’ Motion for Summary Judgment. Consequently, the trial court granted summary judgment to the Defendants in the first case. The trial court dismissed the second lawsuit upon finding that the first case was pending when the second case was filed and when the Motion to Dismiss was heard. Plaintiffs appealed. Although the Court of Appeals discussed the Prior Suit Pending Doctrine, what destroyed the Plaintiffs’ case was fax filing their expert affidavit. Rule 5A.02(4)(c) of the Tennessee Rules of Civil Procedure provides that: “(4) The following documents shall not be filed in the trial court by facsimile transmission: … (c) A will or codicil to a will; a bond; or any pleading or document requiring an official seal….” TENN.R.CIV.P. 5A.02(4)(c). An affidavit requires an official seal in the form of a notarized signature. The primary lesson is simple in this case. Never file your expert affidavit by facsimile. The secondary lesson is never wait until the last minute to get your expert affidavit prepared and filed to oppose the defendant’s motion for summary in a medical malpractice case.