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Rush v. Jackson Surgical Associates PA

Court of Appeals of Tennessee, Jackson

February 13, 2017

GERALD RUSH, ET AL.
v.
JACKSON SURGICAL ASSOCIATES PA, ET AL.

          Session January 19, 2017

         Appeal from the Circuit Court for Madison County No. C-15-319 Kyle Atkins, Judge

         This is a healthcare liability action. After sustaining injuries as a result of alleged surgical error, Appellant filed this action against the surgeon and his medical group. Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated Section 29-26-121(a)(2)(E). The trial court granted the motion to dismiss, and Appellant appeals. Discerning no error, we affirm and remand.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed and Remanded.

          Matthew E. Wright, Franklin, Tennessee, for the appellants, Gerald Rush, and Betty Rush.

          Jerry D. Kizer, Brandon J. Stout, Jackson, Tennessee, for the appellees, Jackson Surgical Associates, PA, and David Villarreal.

          Kenny Armstrong, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE

         I. Background

         On November 6, 2015, Gerald and Betty Rush (together "Appellants") filed a healthcare liability complaint in Madison County Circuit Court against Jackson Surgical Associates ("JSA") and Dr. David Villarreal (together with JSA, "Appellees"). The complaint alleged that, on July 18, 2014, while performing gallbladder surgery on Mr. Rush, Dr. Villarreal negligently cut the wrong duct, clipped the hepatic artery, and cut the small intestine causing Mr. Rush serious injuries including organ failure.

         On December 9, 2015, Appellees filed a motion seeking dismissal of the lawsuit pursuant to Tennessee Rule of Civil Procedure 12.02 for failure to comply with the pre-suit notice requirements of Tennessee Code Annotated Section 29-26-121, which provides:

(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 . . . .
(2) The notice shall include:
***
(E) A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each ...

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