In Kerr v. Thompson, No. W2014-00628-COA-R9-CV (Tenn. Ct. App. June 9, 2015), the Court of Appeals recently followed the Tennessee Supreme Court’s lead and held that a certificate of good faith (one must be filed with the complaint in medical malpractice cases) that did not state that the executing party had zero prior violations was still “fully compliant” with the Healthcare Liability Act (HCLA). This was the first opinion from the Court of Appeals following the Supreme Court’s binding decision on this issue in Davis v. Ibach, No. W2013-02514-SC-R11-CV (Tenn. May 29, 2015).

In Kerr, plaintiff filed a certificate of good faith but the certificate failed to state the number of prior violations as required by Tenn. Code Ann. § 29-26-122. The party executing the certificate, plaintiff’s attorney, had no prior violations. In its opinion, the Court quoted from the Davis case, stating that the HCLA “does not require disclosure of whether or not there have been any prior violations.…Logically, if there have not been any prior violations, there is no ‘number of violations’ to disclose.” Accordingly, the Court determined that plaintiff’s “failure to indicate the absence of any prior violations does not constitute a ‘failure…to file a certificate of good faith in compliance with Tennessee Code Annotated Section 29-26-122[.]” Plaintiff’s certificate of good faith was held to be fully compliant with the statute and the case was remanded to the trial court.

While this case adds nothing new beyond what the Supreme Court decided in Davis, it is good to see that this issue has been settled in this reasonable way. Plaintiffs who are dealing with this question should of course cite to Davis when making their case, but this new Court of Appeals opinion can lend additional support to the argument that stating that there have been zero prior violations is not required.

In Arden v. Kozawa, No. E2013-01598-SC-R11-CV (Tenn. June 30, 2015), the Supreme Court addressed the issue of whether a plaintiff in a medical malpractice ( now known as a “health care liability” ) lawsuit can send pre-suit notice via a commercial carrier like FedEx instead of through the U.S. mail. The Court’s sensible and clearly correct conclusion was that service by FedEx was allowed, finding that “[a]s long as a defendant is not prejudiced, it does not matter whether a commercial carrier or the U.S. Postal Service delivers the notice.”

In Arden, plaintiff gave proper notice in a timely fashion before filing a health care liability (HCLA) suit. The problem, as defendants pointed out in their motion for summary judgment, was that plaintiff sent the notice via FedEx Priority service. Tenn. Code Ann. § 29-26-121(a)(4) states that completion of the mailing requirements in the notice statute “shall be demonstrated by filing a certificate of mailing from the United States Postal Service stamped with the date of mailing and an affidavit of the party mailing the notice establishing that the specified notice was timely mailed by certified mail, return receipt requested.” Defendants did not assert that the notice was insufficient, untimely, or not received, but instead argued that plaintiff had failed to comply with the statutory pre-suit notice requirements by using FedEx instead of the post office. The trial court agreed, dismissing plaintiff’s case, and the Court of Appeals affirmed.

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A recent Court of Appeals decision serves as a good refresher on the elements and defenses in a malicious prosecution case. In Preston v. Blalock, No. M2014-01739-COA-R3-CV (Tenn. Ct. App. May 29, 2015), tenant’s plastic surgery business had signed a lease to rent landlord’s office suite. Tenant stopped paying rent, and landlord filed a breach of contract claim for rent, build-out costs and attorneys’ fees. Landlord was awarded a default judgment, and tenant eventually paid to satisfy that judgment. Landlord subsequently filed another complaint seeking additional attorneys’ fees. Landlord then nonsuited that complaint but filed again seeking additional rent that he claimed had come due.

While this complaint was pending, tenant filed an abuse of process complaint against landlord. The factual basis for tenant’s complaint was that landlord had filed against tenant personally as a guarantor before filing against the business as the principal, that landlord had filed a document entitled partial satisfaction of judgment when tenant had paid the entire judgment, that landlord had given “false and misleading testimony at depositions,” and that landlord had filed “a multiplicity of claims in order to drive up the amount of attorney’s fees.” The trial court granted summary judgment to landlord in the abuse of process case.

After the abuse of process case was finalized, landlord filed a complaint alleging malicious prosecution against tenant and tenant’s lawyer. He asserted that “defendants filed the abuse of process suit…for an improper purpose and without probable cause in an attempt to gain an advantage in the pending breach of lease litigation[.]” The trial court granted summary judgment to tenant/defendant, and the Court of Appeals affirmed.

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In Tennessee, the construction statute of repose begins to run when a project reaches substantial completion, which is when it can be used for its intended purpose. A flaw in the project will not prevent it from being substantially complete for statute of repose purposes, as recently demonstrated in the case of Raby v. Covenant Health, No. E2014-01399-COA-R3-CV (Tenn. Ct. App. June 9, 2015).*

In Raby, plaintiff worked at Methodist Hospital. The emergency room at the hospital was “substantially completed and opened in February of 2006.” Apparently a portion of lead-lined wall was left out when the radiology facilities were built, and plaintiff’s suit alleged that she was accordingly exposed to excessive radiation. In December 2013 a lead-lined wall was constructed, but during the entire time between 2006 and 2013 the facility was in use as intended. Plaintiff filed her suit in January 2014.

The trial court granted summary judgment to defendants based on the construction statute of repose found in Tenn. Code Ann. § 28-3-202 which requires that actions based on the construction of an improvement to real properly be brought within four years “after substantial completion of such an improvement.” The trial court found that the hospital radiology department was substantially completed in March 2006 when it became “available for its intended use as an emergency room.” Accordingly, the trial court held that plaintiff’s claim was untimely under the statute of repose, and the Court of Appeals affirmed.

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In Hughes v. Henry Co. Med. Center, No. W2014-01973-COA-R3-CV (Tenn. Ct. App. June 9, 2015), plaintiffs filed a health care liability action against defendants Henry County Medical Center (“HCMC”) and Dr. Gold. The defendants filed motions to dismiss alleging that plaintiffs failed to comply with the pre-suit notice requirements in Tenn. Code Ann. § 29-26-121. Specifically, defendants asserted that plaintiffs did not include a HIPAA-compliant medical authorization as required by the statute because the authorization did not permit the providers receiving the notice to obtain medical records from each other. The form provided to defendants only allowed HCMC to use its own records in the suit.

Plaintiffs admitted that the form was technically deficient but argued that defendants were not prejudiced because “Dr. Gold only saw [plaintiff] at HCMC and had no records independent of HCMC’s records.” In fact, during the hearing on the motions to dismiss, “counsel for HCMC conceded that Dr. Gold had no records, and there was no actual prejudice in view of this fact.” Nevertheless, the trial court dismissed the action due to plaintiffs’ failure to substantially comply with the statutory requirements. Plaintiffs appealed this decision as to HCMC, and the Court of Appeals overturned the dismissal in favor of that defendant.

The Court rejected HCMC’s argument that prejudice need not be analyzed since the plaintiffs “plainly and entirely failed to substantially comply” with the statutory requirements. Instead, the Court noted that in Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547 (Tenn. 2013), the Tennessee Supreme Court stated that “in determining whether a plaintiff has substantially complied with a statutory requirement, a reviewing court should consider the extent and significance of the plaintiff’s errors and omissions and whether the defendant was prejudiced by the noncompliance. Not every non-compliant HIPAA medical authorization will result in prejudice.”

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In Palmer v. Kees, No. E2014-00239-COA-R3-CV (Tenn. Ct. App. June 1, 2015), a recent premises liability case, plaintiff leased an apartment from defendant and sued defendant for injuries sustained when a board on the stairs leading from the apartment to the ground collapsed. The deck and stairs at the apartment had been built two days before plaintiff began his lease on March 1, 2011. According to plaintiff, during the fall of 2011 he complained to defendant landlord about some wood boards on the deck and stairs that were warped. Defendant hired a repairman to fix the warped boards, and the repairman stated that he left the deck and stairs in good condition. Plaintiff’s fall occurred on April 30, 2012, and he did not present any evidence that he informed defendant about problems with the stairs between the repair and the fall or that defendant otherwise had knowledge of any alleged problems preceding the fall.

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The ABA’s Litigation News has an interesting story on a defense lawyer in a medical malpractice case who was found to have knowingly violated an order on a motion in limine and sanctioned almost $1,000,000.

A court order is an order, not a suggestion.  It is possible, in the heat of trial, to make an error and violate an order.  While this is and should be consequences of such a mistake, but when, as the trial judge said here,   “it is glaringly apparent that [defense counsel’s] conduct was orchestrated to improperly influence the outcome of this trial” there will be hell, or almost $1,000,000, to pay.

I love to win and I hate to lose.  I despise people, including lawyers, who feel the need to cheat to win.  I cannot see why any responsible insurer, company or individual would ever hire this lawyer in the future.

 

The Tennessee Supreme Court recently issued an opinion reversing several poorly decided lower court cases regarding the failure to disclose zero prior violations on a Healthcare Liability Act (HCLA) certificate of good faith. In Davis ex rel. Davis v. Ibach, No. W2013-02514-SC-R11-CV (Tenn. May 29, 2015), plaintiff filed an HCLA claim against defendant, but plaintiff’s certificate of good faith failed to state that plaintiff’s counsel had zero prior violations under the statute. Defendants moved for dismissal on the grounds that plaintiff failed to comply with § 29-26-122(d)(4), which states that a “certificate of good faith shall disclose the number of prior violations of this section by the executing party,” but before the Court could hear the motion plaintiff requested a dismissal without prejudice. The trial court allowed the dismissal, and the Court of Appeals affirmed. Defendant argued, though, that because the certificate of good faith was noncompliant the Court was required to dismiss the case with prejudice.

The Supreme Court heard the case to determine “whether the failure to indicate the absence of any prior violations of the statute constitutes a failure to comply with the requirement of section 29-26-122(d)(4).” The Court noted that the Court of Appeals had previously held that a plaintiff’s failure to disclose zero prior violations required dismissal with prejudice. (See, e.g., Vaughn ex rel. Vaughn v. Mountain States Health Alliance, No. E2012-01042-COA-R3-CV, 2013 WL 817032 (Tenn. Ct. App. Mar. 5, 2013)). The Supreme Court expressly overruled those decisions, holding that the HCLA “does not require disclosure of the absence of any prior violations of the statute.” The Court reasoned:

 [The statute] does not require disclosure of whether or not there have been any prior violations. The General Assembly easily could have worded the statute to instruct a party to disclose whether or not there have been any prior violations and, if so, the number of such prior violations. It did not do so. Logically, if there have not been any prior violations there is no “number of prior violations” to disclose.

Accordingly, the Court held that the trial court did have the authority to dismiss plaintiff’s case without prejudice.

This was definitely the correct interpretation of the HCLA. As the Supreme Court noted, the Court of Appeals has either affirmed or ordered dismissal of several cases because the certificate of good faith did not state that the executing party had zero prior violations. This was an absurd result. As the plaintiff’s argued here and the Supreme Court agreed with, if there are no prior violations there is nothing to disclose. A sensible final resolution to an issue that has plagued many healthcare liability plaintiffs’ attorneys over the last few years.

In a recent Tennessee car accident case, the Court of Appeals affirmed summary judgment for defendant on the theories of family purpose doctrine and negligent entrustment. In Daniels v. Huffaker, No. E2014-00869-COA-R3-CV (Tenn. Ct. App. May 12, 2015), plaintiff’s vehicle was hit by a truck driven by Huffaker as Huffaker drove to her boyfriend’s apartment. The truck driven by Huffaker was owned by Mr. Norris, Huffaker’s brother-in-law, who was deployed on active duty to Iraq at the time of the accident. While Mr. Norris was in Iraq, Huffaker split her time between her boyfriend’s apartment and her sister’s (Ms. Norris’s) home. Ms. Norris allowed Huffaker to drive Mr. Norris’s truck during his deployment since the truck was not otherwise in use. By the time of the appeal, Mr. Norris had conceded that Huffaker was a permissive user of the truck.

Plaintiff sued Huffaker and Mr. Norris for her damages related to the accident, making claims against Mr. Norris under the theories of the family purpose doctrine and negligent entrustment. Because Huffaker was never properly served, Mr. Norris was ultimately the only defendant in the case. After a hearing, the trial court granted Mr. Norris’s motion for summary judgment on both of plaintiff’s theories of liability, and the Court of Appeals affirmed.

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A recent informed consent case provided the Supreme Court with the opportunity to analyze what risks a plaintiffs’ expert should be allowed to testify about at trial. In White v. Beeks, No. E2012-02443-SC-R11-CV (Tenn. May 18, 2015), plaintiff had undergone spinal fusion surgery after other attempts at pain management were unsuccessful. After the surgery, plaintiff’s pain initially improved but then became worse, and plaintiff alleged that this was because of an ectopic bone growth caused by the surgery. Plaintiff filed suit against defendant doctor asserting that the doctor had not given him adequate information before the surgery to enable him to give informed consent. Specifically, plaintiff alleged that the doctor failed to inform him that a bone mass product called InFuse would be used, how such product would be used, or the risks associated with InFuse.

To prove his informed consent case, plaintiff needed to “prove by expert testimony 1) the information that [defendant] should have disclosed to [plaintiff] to obtain his informed consent for the surgery, as established by the recognized standard of acceptable professional practice in the specialty [in the same or similar community], 2) whether [defendant] disclosed appropriate information to [plaintiff] to comply with the [standard of care], and 3) whether a reasonable person in [plaintiff’s] position would have consented to the surgery if he had been provided with the information required by the recognized acceptable professional practice.”

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