Davidson County lawyer Kevin McLean Kelly received a public censure from the Board of Professional Responsibility of the Tennessee Supreme Court today for violating Rule of Professional Conduct 1.3 (diligence); 1.4 (communication); 1.16 (terminating representation); and 3.2 (expediting litigation). Kelly failed to stay abreast of a Tennessee Court of Criminal Appeals opinion issued on Nov. 30, 2020, failed to apprise his client of the opinion and failed to preserve his client’s right to appeal. Kelly also did not timely withdraw from the representation, which would have allowed his client to retain new appellate counsel or proceed pro se.

This is a wrongful-death health care liability action against a skilled nursing facility, the Tennessee State Veterans’ Home in Clarksville (“TSVH-Clarksville”), which is owned and operated by the State of Tennessee. The claimant, Linda Black (“Claimant”), is the surviving spouse of Robert Junious Black, deceased, who was a resident of TSVHClarksville from December 16, 2016, through January 9, 2017. Claimant asserted that TSVH-Clarksville proximately caused Mr. Black’s death by failing to monitor and report his symptoms under the applicable standard of care. In particular, Claimant alleged that the staff at TSVH-Clarksville (1) failed to follow Mr. Black’s care plan for risk of dehydration; (2) failed to prevent Mr. Black from developing a urinary tract infection; (3) failed to notify Mr. Black’s physician of a significant changes in his clinical status; and (4) failed to properly assess Mr. Black. Following a two-day bench trial, the Claims Commissioner found that Claimant failed to establish a health care liability claim because, inter alia, the State complied with the applicable standards of care and Claimant failed to establish causation. This appeal followed. We affirm.

In this interlocutory appeal, the workers’ compensation insurer questions the trial court’s refusal to consider its motion for declaratory judgment and asserts it should be dismissed from the case because the employee was unable to establish a date of injury within its policy period at the expedited hearing. The employee filed a petition for benefit determination alleging a date of injury within the policy period and testified to that date of injury at the expedited hearing. The insurer filed a motion for declaratory judgment because other documentation admitted into evidence suggested other possible dates of injury, some of which were outside the policy period. The trial court determined that while the employee had not shown he was likely to establish the date alleged in his petition at trial was the correct date of injury, he had shown he was likely to prevail in proving that he suffered an injury at work and reported it timely. As such, the court ordered the employer to provide a panel. The trial court declined to consider the motion for declaratory judgment, stating that it did not have subject matter jurisdiction and that, even if it did, the matter was not ripe for determination. Upon carefully considering the record, the relevant precedent, and the arguments of counsel, we affirm the trial court’s order and remand the case.

Knox County lawyer Darren Vincent Berg was temporarily suspended from the practice of law today in Tennessee. The court took the action upon finding that Berg poses a threat of substantial harm to the public. Berg is immediately precluded from accepting any new cases and must cease representing existing clients by Aug. 24. After that date, Berg shall not use any indicia of lawyer, legal assistant or law clerk, nor maintain a presence where the practice of law is conducted.

The attorney general’s office of consumer protection is advising student loan borrowers that due to a Department of Education announcement on June 14 automatically discharging certain qualifying student loans, borrowers should be on the look out for companies offering relief that they cannot provide. For information about your federal student loan or to learn if you qualify for the Department of Education’s loan programs, visit the Federal Student Aid website.

Two transgender patients whose medical records were acquired as part of an investigation into potential billing fraud at Vanderbilt University Medical Center (VUMC) have filed a class-action suit against the hospital in chancery court, reports the Nashville Scene. The suit alleges the medical center shared the patient’s medical information in violation of hospital privacy policies and the Health Insurance Portability and Accountability Act (HIPAA). In addition, the suit alleges, “VUMC knew about the State’s active targeting of the transgender community.” The suit goes on to claim some of the patient records that were disclosed were not patients of the VUMC Transgender Health Clinic; that patient’s personal information was not protected; and that patients were not informed their records had been acquired by the Tennessee attorney general’s office.

The TBA Attorney Well Being Committee will present a free webinar, Ready for Wellness? Taking Next Steps Into Therapy, tomorrow from 2:30-3:30 p.m. CDT. The webinar will provide insight into how to find a therapist who fits your individual needs. Register here to learn more about the guest speakers.

U.S. Rep. Steve Cohen of Memphis has asked Gov. Bill Lee to make a disaster declaration for Shelby County, after severe thunderstorms last week damaged businesses, homes and utilities, Action News 5 reports. Shelby County Mayor Lee Harris declared a local state of emergency on July 21. In his letter to the governor, Cohen noted that the West Tennessee Emergency Management Agency (TEMA) has estimated that damage from high winds will exceed $11 million. In addition, a diesel fuel leak from a generator in Germantown has affected approximately 4.5 million gallons of water. Germantown Mayor Mike Palazzolo told a press conference that the diesel-contaminated water will be "pumped away" from homes into the stormwater conveyance system that leads to the Wolf River, reports the Commercial Appeal.

Make plans now to attend the TBA’s 2023 Administrative Law Forum on Dec. 8 from 9 a.m. to 1 p.m. CST. Thanks to Jonathan Fly, administrative judge for the Tennessee Department of Human Services, for producing this program. Watch for program topics and speakers coming soon.

Tennessee Attorney Jonathan Skrmetti on Friday released a statement intended to clarify his opposition to a proposed U.S. Department of Health and Human Services’ privacy rule under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Skrmetti recently joined with 18 other state attorneys general in opposing the rule and said that some commentators have equated this opposition to asserting a right to prosecute women who go out of state for abortions. “This is simply not true,” he said Friday. “Tennessee’s abortion law does not apply to women who seek abortions, I have no enforcement authority with respect to Tennessee’s abortion law, and I am the attorney general of Tennessee and not some other state.” He said he opposed the rule because it is “a hastily-assembled mess that is bad for Tennessee and bad for America.” Read the full statement.