Day On Torts : Tennessee Injury Lawyer & Attorney : John Day : Personal Injury, Accidents : Serving Memphis, Nashville, Knoxville

Tennessee personal injury lawyers know that the Tennessee General Assembly is a far different place than it used to be.  The Legislature is determined to change the rules of tort litigation for the benefit of defendants and those who would be defendants. 

What follows is a list of legislation enacted during the 2012 session that has been signed by the Governor and is available on the Tennessee Secretary of State's website as of Friday, May 4, 2012. I know that there are other bills that have been passed but have not yet found their way to the Secretary of State's site.  I will post on those public acts when they become available.

•  Public Chapter 506 requires that institutions of higher learning do background checks on those who have access to student rooms at those institutions. (This was passed in the last legislative session but I did not include it on last year's list.)
• Public Chapter 518 impacts the defense of "unclean hands."
• Public Chapter 539 exempts ambulances for certain requirements imposed on certain medical transportation companies.
• Public Chapter 552 creates a cause of action for those injured or otherwise harmed by mislabeled sorghum molasses.  Really. 
• Public Chapter 568 requires that all recreational vehicles available for rental or lease have functioning carbon monoxide detectors and provides that the failure to do so gives rise to civil liability, including payment of attorney's fees.
• Public Chapter 613 creates a cause of action for victims of human trafficking offenses.
• Public Chapter 649 allows nursing homes to employ physicians. 
• Public Chapter 678 provides that physician's assistants may not be subpoenaed to trial but may be required to give a deposition.
• Public Chapter 798 appears to be a house-keeping Act that primarily deletes reference to "medical malpractice" and substitutes the language "health care liability action." 
• Public Chapter 844 enacts "Jaclyn's Law," which grants civil immunity to first responders in certain circumstances involving entry into homes.

Public Chapter 862 limits the liability of whitewater rafting companies.

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Today, May 4, 2012, is the 20th anniversary of the landmark McIntyre v. Balentine opinion, the case where the Tennessee Supreme Court adopted modified comparative fault.

All in all, most would say that the comparative fault scheme in Tennessee improved the quality of the civil justice in Tennessee.  I agree.  For the most part, the Tennessee Supreme Court has done a fine job developing the common law in this important field.

There is one notable exception, although it is not entirely the Tennessee Supreme Court's fault.

Our Legislature has granted certain people and corporations privileged status in the law. Those special privileges have existed for decades, and the current General Assembly seems hell-bound to not only protect those that exist but expand them to others  who have the power to seek and obtain them.

What am I talking about?  First, governmental immunity.  Governmental immunity includes damage caps, although they are not typically labeled as such.  But, in my opinion, if the financial obligation for the harm you cause  is statutorily  limited you  enjoy a type of immunity.   The notion that our governments - federal, state, and local -  are not fully responsible for the harm they negligently causes its citizens is an outrage.  

Second, the immunity given to those special groups who benefit from statutes of repose.  Once again, some cringe when I label this as an immunity, but the fact of the matter is that statutes of repose are yet another way that people avoid responsible for harm they cause.  Tennessee has many of these statutes, the most offensive of which is the four-year statute of repose protecting engineers, architects, and contractors.  These statutes extinguish liability because of the mere passage of time, and they are wrong.

The Tennessee Supreme Court was well aware of these laws when it adopted a pure several liability system.  They did so, in dicta, in McIntyre.  They had the opportunity to fix that mistake in Dotson v. Blake, 29 S.W.3d 26 (Tenn. 2000) and Carroll v. Whitney, 29 S.W.3d 14 (Tenn. 2000).   Specifically, the Court had the opportunity to adopt a modified joint and several liability system that would have spread the cost of immunity of any type on all of those who benefit from the grant of immunity.  Instead, it chose to stick with several liability, and place all of the burden of a grant of immunity on the injured plaintiff.

What do I mean?  Take for example the grant of immunity to a local government for negligent inspection.  There are many circumstances under which a local government is required to inspect property, but the law grants that governmental entity  immunity from doing a sloppy inspection. Thus, if a building inspector negligently okays the electrical system in a new house and issues a certificate of occupancy, but an electrical fire consumes the house two days later and a family perishes, the government has no liability.

Now, the contractor can still be sued, but it can ask for fault to be assigned to the sloppy governmental inspector even though the plaintiff can not sue the government or the inspector.  Is that fair?  I mean really, is that fair?

I think not,  but consider this: the unfairness is heightened because of several liability.

Let me explain.  The alleged purpose behind the grant of immunity to governments which conduct negligent inspections is that expecting government  to do their job correctly would increase costs to taxpayers.  Thus, the argument goes, we all pay lower taxes because governments are not responsible for their actions.

Note the 'we all pay lower taxes" phrase in the preceding paragraph.  The negligent contractor pays lower taxes, too, not just the now deceased family.  But the contractor not only gets the benefit of paying lower taxes. It also gets the opportunity to reduce its fault by blaming someone the plaintiffs cannot sue in the event its negligence combines with the government's negligence to harm another.

Thus, the purported benefit of immunity flows to all, but all of the costs of immunity are borne by the injured and the dead.  

And that is wrong.  Dead wrong.

If we are going to grant privileged status (immunity of any type) to those with sufficient wealth or influence to obtain it, the cost of that immunity should be born pro rata by all those assessed with fault in a given incident.  It should not be thrust solely upon the dead and injured.  The opportunity to fix this problem is what  the Tennessee Supreme Court lost when it issued Dotson and Carroll in 2000.

Looking at it now, perhaps it would have made a difference for only a limited period of time anyway. There are those in the Republican party who not only want to abolish the few, limited situations where joint and several liability applies but also eliminate vicarious liability.  (Can you believe that - vicarious liability is on the chopping block?)  So, if the Court had done what I believe it should have done it undoubtedly would be repealed by our new General Assembly.

The last 20 years have been a fascinating time to be a tort lawyer in Tennessee.  Our Court is to be congratulated for having the courage to abolish contributory negligence as an affirmative defense, and for a great many other comparative fault and tort decisions that have advanced the cause of civil justice in Tennessee.  

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T.C.A. Section 20-1-119 is one of the most important statutes for those of us who practice personal injury law in Tennessee, and the recent Mills v. Fulmarque opinion issued by the Tennessee Supreme Court has changed the way many people thought about this statute.

Subject to several important limitations,  the purpose of section 20-1-119 is to provide plaintiffs with an opportunity to add additional defendants to a case in which comparative fault is an issue, notwithstanding the expiration of the statute of limitations.  The Mills court held that section 20-1-119 provides a ninety-day window in which a plaintiff may name a new non-party as a defendant only if the defendant alleging comparative fault against the new non-party was sued within the statute of limitations applicable to the plaintiff’s cause of action.

The Tennessee Bar Association has published an article I wrote on the statute and the  MIlls  opinion as the cover story for the May 2012 edition of the Tennessee Bar Journal.  

My thoughts about the impact of Mills are summarized in the conclusion to the article:

At the end of the day, Mills is not a catastrophic development in Tennessee tort law. Rather, it is just another decision that places a burden on plaintiff’s counsel to develop a strategy and employ tactics to attempt to avoid the risk of an empty chair at trial. The biggest hazard faced by plaintiffs occurs when the wrongdoers have a business or insurance coverage reason to collude with one another to create an empty chair.

I hope that this article will be a help to Tennessee lawyers who have questions with the statute. Tort lawyers will find additional guidance on the entire field of Tennessee comparative fault law in a book I wrote 15 years ago with Donald Capparella.  John Wood was added as an additional author in a later edition.  Tennessee Law of Comparative Fault is available for purchase from Thomson Reuters.

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Tennessee personal injury lawyers will read with interest this opinion from the Maryland Court of Appeals that declares that pit bulls are inherently dangerous and thus are not subject to the "first-bite" rule.  

In Tracey v. Solesky, No. 53 (MD. Ct. of App. Apr. 26, 2012) the dog bite arose from "an attack by a pit bull named Clifford. Notwithstanding his relatively benign name, Clifford possessed the aggressive and vicious characteristics of both Trouble and Rampage."

The Court examined the history of pit bulls and cited to various sources to document the dangerous propensities of these animals.  After a careful, thorough examination of the law and public policy, the Court concluded as follows:

We hold that upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit bull or a pit bull mix, and that the owner, or other person(s) who has the right to control the pit bull’s presence on the subject premises (including a landlord who has the right and/or opportunity to prohibit such dogs on leased premises as in this case) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull mix, that person is strictly liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner’s or lessor’s premises. [Footnote omitted.]

The Court expressly refused to consider whether the same rule would apply to another dangerous breed, Rottweilers.

The Court explained the change in the law with this footnote:

In this case, we are modifying one of the elements that must be proven in cases involving pit bull attacks from knowledge that a particular dog is dangerous to knowledge that the particular dog involved is a pit bull. If it is a pit bull the danger is inherent in that particular breed of dog and the knowledge element of scienter is met by knowledge that the dog is of that breed.

I agree wholeheartedly with this opinion, but note that it could have unintended consequences.  First, to the extent that homeowner's insurance companies will still insure homeowners who have these dogs, my guess is that there will be a blanket exclusion of these dogs from homeowners coverage in the future.  This will leave injured parties to look only to the assets of the dog owners and this will mean that many pit bull victims will be left without compensation.

Second, state and local governments should work to ban people from owning pit bulls unless they prove proof of insurance or other evidence  financial responsibility.  These dogs are inherently dangerous, and any person who is fool enough to have one should be required to demonstrate that they will be able to bear the financial consequences of their actions.

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The National Practioner Data Bank, the entity that gathers data about medical malpractice claims, reports that paid medical malpractice claims continue to drop.

In 2001, the total number of paid claims was 20,319.  In 2010, the number had dropped to 13,277. Now, a new report released by Kaiser citing data from the NPDB indicates that paid claims for 2011 totaled 9497.

(The NPDB data for 2001 through 2010 is set forth in  Appendix D, Table 1.)

This data is consistent with my experience in Tennessee.  The passage of various laws have made medical malpractice cases less attractive for patients and their lawyers to pursue, and the jury pool has been impacted by decades of misinformation about the civil justice system in general and medical malpractice cases in particular.  

Once again, recall that as many as 98,000 people die in our nation's hospitals each year as a result of medical malpractice.  Undoubtedly, many more are injured.  The fact that less than 10,000 of those people receive compensation for injury or death arising from medical malpractice tells us that the health industry plan to avoid accountability for errors is working all too well.

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"1-800-Ask-Gary" is a medical and legal referral service in Florida founded by Sarasota chiropractor Gary Kompothecras.  If you have been to Central Florida you have seen their billboards, television ads and radio ads.  Television ad costs exceed $12M per year.

Business must be good -  last June Kompothecras paid a little more than $1 million for a three-year deal to put his service’s name on the amphitheater in Tampa.  And he built a home of almost 30,000 square feet.

However, 1-800-Ask-Gary has created more than a little controversy.  The referral business sends people to some 40  clinics operated by Kompothecras.  Lawyers pay to join the referral network and get cases from the referral service.

The Florida Bar thinks that the referral system skirts the rules on lawyer advertising.  And, back in November of last year Bloomberg News reported that the company was undergoing investigation for fraud by Florida's Division of Insurance Fraud and that the FBI was also investigation his company, Physician's Group.  

Bloomberg reported that

State investigators are trying to determine whether clinics or lawyers in the networks make unlawful payments for referrals and whether patients are being treated for non-existent injuries, Smith recently told the Florida bar association. The FBI wants to know whether lawyers are directing treatment based on how much insurance coverage patients have, according to people familiar with the matter. Only licensed medical practitioners are permitted to decide treatment.

Lawyers outside the 1-800-Ask-Gary Network complain about that the ads are grabbing cases and steering them to lawyers who use the medical offices to drive up settlements that work to the primary benefit of the chiropractors.

The referral network concept has expanded, and now includes companies such as "411 Pain."  411 Pain is a business that sells off territories, like franchises, to medical clinics.  When an accident victim calls the 411 Pain lawyer referral service, that call essentially goes to a pain clinic hotline.

Now, a Florida lawyer is fighting back. He has registered a website with the domain name "1800askgarysucks.com"  and recently won a fight to keep the name.   The lawyer persuaded an arbitrator that he was not using the site for a commercial purpose but instead was exercising his right of free speech

In Middle Tennessee we have certain medical clinics that are calling accident victims.  The callers tell the accident victim that they need a lawyer - and then (I assume) refer the victim to a lawyer.  I think that if a lawyer is participating in this effort he or she is violating of ethics rules, which prohibit solicitation of clients and contacting potential clients within 30 days of an accident.   One cannot do indirectly what he or she cannot do directly.

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In Rose v. H.C.A. Health Servs., the plaintiffs  searched unsuccessfully in Tennessee and bordering states for an expert in hospital risk management and quality assurance. Plaintiffs’ counsel submitted an affidavit stating that health care professionals in these areas would talk to him only if they were not identified. The affidavit expressed counsel’s belief that the size of defendant H.C.A. would make it difficult to find a witness in Tennessee or a contiguous state. The plaintiffs asked the trial court to waive the contiguous state requirement, and this request was denied. The plaintiffs appealed. The appellate court found no abuse of the trial court’s discretion, holding that the difficulties described by plaintiffs’ counsel in that case were “generalized and unspecific,” and reflected “only a cursory effort to find an appropriate expert.”Additionally, the plaintiffs’ counsel cited only a conversation with a single hospital administration in support of his assertion that the large size of the defendant corporation would make it difficult to find an expert without a conflict of interest. [Citations omitted.]

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Tennessee law requires that the plaintiff present expert proof that the defendant violated the standard of care applicable in the community in which the care was given at the time the care was given.  Proof of the standard can come from an otherwise qualified expert who knows the standard of care in that community or in a similar community.  This rule is codified in Tenn. Code Ann. § 29-26-115(a). 

In Marsha McDonald v. Paul F. Shea, M.D. and Shea Ear Clinic, No. W2010-02317-COA-R3-CV (Tenn. Ct. App. February 16, 2012),  the Court of Appeals engaged in a lengthy discussion of whether Plaintiff ’s expert was qualified to testify under Tenn. Code Ann. § 29-26-115(a). The court’s reasoning was guided by the recent Tennessee Supreme Court case of Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). In Shipley, the Supreme Court rejected the notion that an expert must have personal, first-hand knowledge of the standard of care by actually practicing in a community. The Supreme Court also held that “expert medical testimony regarding a broader regional standard or a national standard should not be barred, but should be considered as an element of the expert witness’ knowledge of the standard of care in the same or similar community.”

These two holdings in Shipley gutted the majority of Defendants’ objections to the competency of Plaintiff ’s expert in this case.

Since I was not asked to do so during my deposition, I am providing such a comparison now. The Los Angeles and Memphis medical communities, though somewhat different in scale because of the difference in population, are nevertheless similar communities. They are both homes to university-based medical centers and university-based medical training programs. They both have community and specialty hospitals. They both offer a large number of medical specialties, including otology. Adjusting for the difference in population, Memphis and Los Angeles also have a comparable number of health care facilities and beds. In summary,  there is really no appreciable difference in the medical communities of Memphis and Los Angeles. At a minimum, they are similar communities. The medical and physiological considerations involved in the determination of whether to use transtympanic perfusion therapy on a patient, and whether to use Gentamycin or Streptomycin as the medication of choice in such a procedure, are not influenced any geographic differences between the Memphis and Shelby County, Tennessee community or the Los Angeles, California community. Physicians practicing otology in both of these communities have access to the same medical information concerning transtympanic perfusion therapy and whether to use Gentamycin or Streptomycin as the medication of choice in such a procedure. Further, the diagnosis of Ménière’s does not change from community to community. The diagnostic criteria are well understood within the specialties and do not change based on geographic location. All of this is true no matter the specialty nor [sic] location, but it is particularly true in sophisticated medical communities such as Los Angeles and Memphis. For consideration of all the issues that pertain to this case, it is my personal and medical belief that Los Angeles and Memphis are similar medical communities. This is not a situation where a community is impaired in its ability to deliver services because of lack of financial commitment, resources, information, or ability to provide services. In every way a patient presenting such as Marsha McDonald did to the Shea Clinic in July of 2004, should be subject to the same standards of care whether in Los Angeles, Memphis, or many other similar communities. Having pointed out the many similarities between the Los Angeles and Memphis medical communities, I can think of absolutely no differences between them for the purposes of this case other than the proportionally commensurate larger number of doctors and nurses in Los Angeles.

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The Pop Tort has done a nice job collecting information about Americans Legislative Exchange Council  (ALEC), the corporate, right-wing group that sponsors a terrible array of legislation  that has found its way to the Tennessee General Assembly.

Read and learn about the dirty underside of our poliltical process.

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