TLI NEWS September 2017

TLI NEWS September 2017

Tennessee Supreme Court Clarifies Wrongful
Death Suit Law and Procedure

 

The Supreme Court just decided a fascinating tort/civil procedure/ethics case, Beard v. Branson(Tenn., Kirby, Aug. 30, 2017).  Ruth Hartley died after colon surgery. Immediately before the statute of limitations ran, her husband, pro se, filed a wrongful death health care liability action against her surgeon and hospital. Although he was unofficially assisted by counsel, he signed the complaint as surviving spouse of the decedent. No attorney was listed. No attorney signed the complaint.

The defendants filed motions to dismiss, alleging that the complaint was brought by the spouse in a representative capacity on behalf of the decedent and her estate, and that a non-attorney cannot file a complaint on behalf of another. After the statute of limitations had run, the complaint was amended and the surviving spouse was represented by counsel. The trial court denied the motions to dismiss, finding that, as the only statutory beneficiary, the husband could bring the case pro se. It was later determined that the Hartleys had two adult children. The Court of Appeals reversed, holding that the complaint was filed by a non-lawyer in a representative capacity, was void ab initio, and thus did not toll the statute of limitations.

The Supreme Court noted the well-settled law that a person may handle his own case and then analyzed the wrongful death statute and the extensive body of case law about that cause of action, some of which has been inconsistent. The court noted that the decedent’s right of action is not extinguished by her death but instead passes by statute not to her estate, but to her surviving spouse, if any, and if none, to her children or next of kin. Therefore, in this case, it is surviving spouse’s cause of action. He was entitled to represent himself in his initial complaint, alleging his own cause of action, and it tolled the statute of limitations. And a substantial judgment stands.

To learn more about this case and other important and timely legal developments, please join us for the Tennessee Law Institute’s Forty-Sixth Annual Review Seminar. We open in Knoxville in just a couple of weeks. Our schedule is as follows:

Mon.-Tues., September 18-19        Knoxville Convention Center
Thur.-Fri., September 28-29          Gatlinburg Convention Center
Thur.-Fri., October 12-13             Nashville Music City Center
Thur.-Fri., November 2-3             Memphis Convention Center
Wed.-Thur., November 29-30        Chattanooga Convention Center
Tues.-Wed., December 12-13        Nashville Music City Center

To register or for more information, call  (865) 531-8219 or 1-800-827-6716 or visit our website at www.tennesseelawinstitute.com

For the Institute,
Sarah Sheppeard

 

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