2015 Tennessee Tort Reform Compendium Available

The most recent version of my book, Compendium of Tort Reform Statutes and Related Case Law, 2008-2014, is now available.  

The book includes tort reform statutes enacted by the Tennessee General Assembly in the period indicated and reference to the appellate court decisions to-date that have interpreted those laws;

The book contains over 200 pages of references to important changes in Tennessee common law of torts and statutory changes to the law of civil procedure that impact tort lawyers.

The book is available for purchase by clicking on the link.

Experts in Med Mal Cases: Must Prior Experience Have Been For Pay?

           A plaintiff filing a claim under the Tennessee Health Care Liability Act (HCLA) must prove certain elements, such as the recognized standard of practice, by expert testimony. Tenn. Code Ann. § 29-26-115(b) contains requirements for experts to qualify under the Act, including that the expert was licensed to practice in Tennessee or a contiguous state in a relevant profession or specialty and that the person practiced that profession or specialty in such a state during the year preceding the alleged injury. According to a recent Tennessee Court of Appeals case, however, the HCLA does not require a purported expert to have received monetary compensation for the practice in order to qualify under the Act.

               In Adkins v. Assoc. of the Memorial/Mission Outpatient Surgery Ctr., LLC, No. E2014-00790-COA-R3-CV (Tenn. Ct. App. Jan. 13, 2015), plaintiff had received a nerve block during a knee procedure, rendering her leg immobile. Her leg was still immobile upon discharge, so a nurse helped plaintiff to her vehicle in a wheelchair and proceeded to lift her into the car. While assisting plaintiff, the nurse dropped plaintiff between the front seat and dashboard of the vehicle, and plaintiff sustained injuries.

               Plaintiff gave proper pre-suit notice and filed her complaint, attaching a certificate of good faith as required by the HCLA. The only expert identified by plaintiff was Sandra Gupton, R.N. Defendant moved for summary judgment on the grounds that Gupton was not qualified as an expert because she was not a practicing nurse in the year preceding the incident. Defendant pointed to Gupton’s deposition testimony where “she stated she had not practiced in the nursing profession during the time period in question.” Plaintiff argued that Gupton had testified that she was busy with her mother-in-law, and that Gupton had in fact been her mother-in-law’s private nurse during this time. Defendant asserted that the alleged employment with her mother-in-law was not sufficient to qualify her as an expert because she was not compensated.

               The trial court found for defendant, relying on the fact that there was no evidence Gupton had been compensated for nursing services during the relevant year. The Court of Appeals, however, overturned this ruling.

               The Court first noted that while the requirements for an expert under the HCLA are that the expert be licensed to practice and have practiced within a relevant time frame, the HCLA does not define the term practice. Defendant pointed to Tenn. Code Ann. § 63-7-103(a)(1), a separate portion of the Tennessee Code related to professions of the healing arts, which defines the “practice of professional nursing” as the “performance for compensation of any act [falling within a certain definition]….” The Court of Appeals pointed out, however, that in 2005 the legislature amended the introductory section of this chapter to remove any reference to compensation. See Tenn. Code Ann. § 63-7-101. By taking out the compensation reference, the Court concluded that “the legislature recognized what this court also recognizes, namely that one may practice the nursing profession with our without receiving compensation.” The Court further found that the HCLA expert statute “does not contain a compensation requirement, and to read one into the statute would be contrary to the legislature’s intent.”

               The Court of Appeals thus held that “monetary compensation is not required to establish that an expert has practiced in his or her field,” overturned the summary judgment for defendant, and found that Gupton’s failure to receive compensation for the services she provided her mother-in-law did not bar her from being qualified as an expert under the HCLA.

               This was clearly the correct result in this case. Whether a person has practiced a health care profession (and thus is familiar with the standard of care)  is not necessarily contingent on whether he or she was paid for those services. One can think of a myriad of situations where a person might not receive traditional compensation, such as caring for a friend or family member or performing volunteer work. Deciding to practice in one of these scenarios should not operate as an automatic bar to expert qualification under the HCLA.  Rather, the jury should consider all prior experience, for pay and otherwise, in determining whether the expert is truly aware of the standard of care.

No Liability Where Customer Walked Backwards over an Obvious Curb

         In Holland v. K-VA-T Food Stores, Inc., No. E2013-02798-COA-R3-CV (Tenn. Ct. App. Jan. 13, 2015) we have a rather typical trip and fall case - one similar to that Tennessee personal injury lawyers  are called about quite frequently.

          Ms. Holland  sued defendant property owner for injuries incurred when she fell over a curb in a parking lot. The parking lot in question was used for two businesses, a grocery store and a bank, and the two properties were divided by a continuous curb. This curb was unmarked and had weeds growing around it, but was clearly visible. Its purpose was to keep cars parked at the grocery store from driving into the drive-through area of the bank. Plaintiff and her husband parked perpendicular to the curb at the edge of the grocery store parking lot. After shopping in the grocery store, plaintiff was stepping backward while opening the passenger door and tripped on the curb, falling to the ground.

            Defendant filed a motion for summary judgment, which the trial court granted. The trial court stated that defendant “had no duty to warn plaintiff of the curb when the curb at issue was open and obvious and when it was not reasonably foreseeable that plaintiff would walk backward without looking and trip and fall over the curb.” Further, the trial court found that a reasonable jury would have to conclude that plaintiff was 50 percent or more at fault for her injuries. The Court of Appeals affirmed judgment for the defendant.

            In its analysis, the Court of Appeals quoted previous case law holding that a property owner may have a duty “even where the injury-causing condition is alleged to be open and obvious to the plaintiff…the duty must be analyzed with regard to foreseeability and gravity of harm….” Holland (quoting Green v. Roberts, 398 S.W.3d 172, 177 (Tenn. Ct. App. 2012)). Here, the Court found that it was not reasonably foreseeable that a patron would walk backwards over the curb in question, and that defendant therefore did not have a duty to warn plaintiff. The Court noted that plaintiff admitted “that she was walking backward, that the curb was visible, and that she would have noticed it if she had been looking for it or if someone had drawn her attention to it.” The Court further pointed out that the curb served a purpose, separating grocery traffic from the bank drive-through, and was not simply a “random, superfluous” structure. Because the Court held that “Defendant did not have a duty to warn Plaintiff of the curb and because Plaintiff’s mode of travel, namely walking backward, was the cause of her injury,” the Court of Appeals did not address the issue of comparative fault.

            This case is a reminder that not all slip and falls and trip and falls on a business’s premises will result in liability for the property or business owner. If the injured person’s actions could not have been expected or foreseen, making a case for premises liability may be a difficult task.  Most consumers think just the opposite - that if you fall on someone else property any injuries and damages are the responsibility of the property owner and occupier - but that understanding is incorrect.  The devil - and the case - is in the details. 

No Liability Where Customer Walked Backwards over an Obvious Curb

         In Holland v. K-VA-T Food Stores, Inc., No. E2013-02798-COA-R3-CV (Tenn. Ct. App. Jan. 13, 2015) we have a rather typical trip and fall case - one similar to that Tennessee personal injury lawyers  are called about quite frequently.

          Ms. Holland  sued defendant property owner for injuries incurred when she fell over a curb in a parking lot. The parking lot in question was used for two businesses, a grocery store and a bank, and the two properties were divided by a continuous curb. This curb was unmarked and had weeds growing around it, but was clearly visible. Its purpose was to keep cars parked at the grocery store from driving into the drive-through area of the bank. Plaintiff and her husband parked perpendicular to the curb at the edge of the grocery store parking lot. After shopping in the grocery store, plaintiff was stepping backward while opening the passenger door and tripped on the curb, falling to the ground.

            Defendant filed a motion for summary judgment, which the trial court granted. The trial court stated that defendant “had no duty to warn plaintiff of the curb when the curb at issue was open and obvious and when it was not reasonably foreseeable that plaintiff would walk backward without looking and trip and fall over the curb.” Further, the trial court found that a reasonable jury would have to conclude that plaintiff was 50 percent or more at fault for her injuries. The Court of Appeals affirmed judgment for the defendant.

            In its analysis, the Court of Appeals quoted previous case law holding that a property owner may have a duty “even where the injury-causing condition is alleged to be open and obvious to the plaintiff…the duty must be analyzed with regard to foreseeability and gravity of harm….” Holland (quoting Green v. Roberts, 398 S.W.3d 172, 177 (Tenn. Ct. App. 2012)). Here, the Court found that it was not reasonably foreseeable that a patron would walk backwards over the curb in question, and that defendant therefore did not have a duty to warn plaintiff. The Court noted that plaintiff admitted “that she was walking backward, that the curb was visible, and that she would have noticed it if she had been looking for it or if someone had drawn her attention to it.” The Court further pointed out that the curb served a purpose, separating grocery traffic from the bank drive-through, and was not simply a “random, superfluous” structure. Because the Court held that “Defendant did not have a duty to warn Plaintiff of the curb and because Plaintiff’s mode of travel, namely walking backward, was the cause of her injury,” the Court of Appeals did not address the issue of comparative fault.

            This case is a reminder that not all slip and falls and trip and falls on a business’s premises will result in liability for the property or business owner. If the injured person’s actions could not have been expected or foreseen, making a case for premises liability may be a difficult task.  Most consumers think just the opposite - that if you fall on someone else property any injuries and damages are the responsibility of the property owner and occupier - but that understanding is incorrect.  The devil - and the case - is in the details. 

Certificates of Good Faith After Defendant Alleges Fault

          Yet another case about the Tennessee law requiring certificates of good faith in medical malpractice (now called health care liability) cases, this one with a twist.

           In Sirbaugh v. Vanderbilt Univ., d/b/a Vanderbilt Univ. Med. Ctr., No. M2014-00153-COA-R9-CV (Tenn. Ct. App. Dec. 30, 2014), plaintiff originally brought suit against two defendants related to a surgical sponge being left in her body. In this initial filing, plaintiff gave proper pre-suit notice to the defendants and attached a certificate of good faith to her complaint in accordance with the Health Care Liability Act. When the original defendants filed their answer, they asserted comparative fault against two non-parties. Pursuant to Tenn. Code Ann. § 29-26-122(b), these original defendants were required to file a certificate of good faith regarding their comparative fault allegations against the new non-parties, but plaintiff chose to waive that requirement under § 29-26-122(c).

               After the answer was filed, plaintiff amended her complaint to add the two non-parties that defendant had named. When filing her amended complaint, though, she did not file a new certificate of good faith. The new defendants moved to dismiss based on this failure. Plaintiff argued that the requirement to file a good faith certificate only applied to the initial complaint, with plaintiff’s counsel asserting that if the legislature “had meant that Plaintiff had to file a certificate of good faith upon waiving the Defendant’s obligation to do so, they would have said that.” Plaintiff argued that the statute made a distinction between the process for filing an initial health care liability complaint and filing an amended complaint based on an allegation of comparative fault. If the processes did not vary, plaintiff’s counsel asserted that the statutes allowing for waiver would essentially have no meaning. The new defendants, however, argued that plaintiff’s “waiver of the Original Defendants’ requirement to file a certificate of good faith addressing their comparative fault claims did not release her from the obligation to file a certificate of good faith when she added the New Defendants to the lawsuit.”

               The trial court ruled that plaintiff did not have to file a certificate of good faith when adding the new defendants but granted interlocutory appeal. The Court of Appeals subsequently overturned this decision, remanding with an order to dismiss the case as to the new defendants.

               In its analysis, the Court of Appeals noted that the Supreme Court has held certificates of good faith to be mandatory, requiring strict compliance with the statute. The Court emphasized that Tenn. Code Ann. §29-26-122(a)(2)(B), a portion of the certificate of good faith statute, “specifically references ‘each defendant.’” When considering the interplay of a defendant who alleges comparative fault in its answer, the Court stated that a plaintiff in such a situation has three options: 1) let the defendant file a certificate of good faith as required by the statute and then either file suit against the non-party subject to 29-26-122(a) or risk fault being assigned to the non-party; 2) waive the requirement that the defendant file a certificate of good faith, then either file suit against the non-party subject to 29-26-122(a) or risk fault being assigned to the non-party; or 3) if the defendant fails to file a certificate of good faith, move to strike the comparative fault allegations.

               When considering the instant case, then, the Court determined that after plaintiff learned about the potential new parties through the comparative fault allegations, waived defendant’s obligation to file a good faith certificate, and decided to file her amended complaint adding the new defendants, she was required to file a certificate of good faith as to those new parties. The liability was based on different facts and a new expert review was necessary to comply with the statutory requirements. “[Plaintiff] could not rely on the certificate of good faith filed with the initial complaint because that certificate was predicated on an expert’s belief that there was a good faith basis to maintain the cause of action against the Original Defendants and not the New Defendants.” Accordingly, the Court held that the claims against the new defendants should be dismissed.

                As I read the statute, the plaintiff can rely on an appropriate certificate of good faith actually filed by the defendant because, at the end of the day, the ultimate burden of proof on the fault of the "new" defendant is on the "old" defendant asserting fault.  The "new" defendant  has a right to a piece of paper that a qualified expert thinks there is a good faith basis for the claim against it, and whether that comes from the "old" defendant who has the ultimate burden of proof on the issue or the plaintiff should not make any difference.  

                  I think it is also clear that if the defendant, for whatever reason, doesn't file a certificate of good faith a plaintiff can step in and file one and assert a claim against the "new" defendant.  But the Court of Appeals tells us here that someone must do it, and that the plaintiff's decision to waive compliance with the good faith certificate provision does not mean that the "new" defendant is not entitled to a certificate of good faith.

                  The scary thing here is that by waiving the filing of a certificate of good faith the "old" defendant will presumably have an empty chair to blame at trial, forcing the plaintiff to in effect defend the empty chair. If the plaintiff had not waived the filing of a certificate of good faith, the plaintiff could have moved the strike the allegations of fault against the non-party health car providers as an insufficient affirmative defense or, as indicated above, obtained its own certificate of good faith and filed suit against the non-party providers.  Thus, plaintiff is in the worst of all worlds.

                  All that said, no court has yet ruled that a plaintiff may rely on the "old" defendant's certificate of good faith against a "new" defendant.  Thus, the belt and suspenders approach would be for the plaintiff electing to bring suit against the "new" defendant to also file a certificate of good faith against that "new" defendant.  As I said, I don't think that is necessary given the language of the statute but this case sheds no particular light on that subject and there is no case directly on point. 

 

 

 

 

Joint Commission Publishes New Safety Chapter

The 2015 Comprehensive Accreditation Manual for Hospitals includes the new "Patient Safety Systems" chapter, a blueprint for leaders that uses existing standards to achieve an integrated approach to patient safety. Apparently, the Joint Commission believes so strongly in this approach that the chapter is being made available online to anyone who wishes to read it. 

The Commission indicates that "quality and safety are inextricably linked.  Quality in health care is the degree to which its processes and results meet or exceed the needs and desires of the people it serves.  Those needs and desires include safety."   

 

                  

 

 

 

Business Owners who Ejected Patrons into Street Just Before Shootout Avoid Liability

          In Akridge v. Fathom, No. E2014-0071-COA-R9-CV (Tenn. Ct. App. Jan. 7, 2015), plaintiffs filed a premises liability action after being injured in a shooting that occurred just outside defendants’ business. Defendants operated a music venue/club targeted to at-risk youth including gang members. Plaintiffs attended a public event there on Christmas Eve, and during the event some of the attendees wore gang colors and an altercation broke out inside the building. Defendants’ security personnel stopped the event and made everyone, including plaintiffs, leave the building. Upon exiting, plaintiffs were “caught in the crossfire of a shootout” and were injured.

            Defendants moved to dismiss the complaint, arguing that they only owned and occupied the building and that the tortious conduct alleged happened outside the building. Thus, defendants argued, they could not be held liable. Plaintiffs responded that defendants had a duty to operate their business in a reasonably safe manner and that such duty had been violated. Because both parties submitted materials outside the pleadings, the motion was converted to one for summary judgment, which the trial court denied. The trial court found that since the shooting occurred just steps outside defendants’ business and since defendants’ employees had made plaintiffs exit the building into this foreseeably dangerous situation, liability could exist. On interlocutory appeal, however, the Court of Appeals overturned this ruling.

            The key issue in this case was whether “defendants owed a duty of care to plaintiffs, who were injured by the criminal acts of third parties that occurred outside the premises occupied by [one defendant] and owned by [two others].” The Court of Appeals recognized that a special relationship giving rise to a “duty to control the conduct of a third party so as to prevent the third party from causing harm” may exist in a factual scenario such as this, where plaintiffs were invitees of defendants who held premises open to the public. Where the Court of Appeals disagreed with the trial court, however, was regarding whether “such a duty continued once the invitees exited defendants’ business premises.” The Court stated that there was no Tennessee precedent for extending a business owners’ duty of care to its patrons after the patrons left the premises.

            The plaintiffs’ main argument was that defendants’ security employees had forced them out of the building and into the dangerous situation. The Court rejected this argument, however, and found that because defendants had no special relationship with the third-party tortfeasors (the shooters) and because plaintiffs were not on defendants’ property when the injuries occurred, defendants had no duty to protect plaintiffs from harm. “[T]he only duty owed by these Defendants was to protect business patrons from harm, a duty which would exist while the patrons were on the business premises.” The Court of Appeals held that summary judgment should have been granted to defendants on this issue.

            While apparently in line with Tennessee case law, it seems that this holding could lead to rather absurd results. It is true that business owners’ liability arising out of criminal acts of third persons  must be limited in some reasonable way; being a customer at a business does not entitle you to unlimited protection from that business owner. And in most cases, limiting an owner’s liability to incidents that occur on or in the business premises is a reasonable limitation. One can imagine, however, a situation similar to the one in the instant case, where a business owner who has reason to know that a situation is likely to escalate can escape liability simply by forcing people to leave its premises. By ejecting people from its property, a business owner under the Akridge rationale can avoid a premises liability action in almost any altercation-type situation.  

            It would be important to me to understand how much time elapsed from the time the patrons were ejected from the building and the time the later incident occurred.    The opinion states that the second incident occurred "shortly after the patrons exited [sic] the club," but does not give the exact time between the two incidents.  
 

Local Rule Changes in the 21st Judicial District

 The Judges in the Chancery and Circuit Courts for Williamson, Hickman, Perry and Lewis Counties have announced substantial changes to the local rules of court.  The changes were effective December 1, 2014.

Among other significant changes, the local rules  now require that one who objects to a motion filed by an opponent file written opposition to the motion. Rule 5.03(c).  Regular motions must be filed at least fourteen days before a hearing, and opposition to the motion filed and served at least 4 days before the hearing. 

City Immune from Suit where it does not Own or Control Property Where Injury Occurred

          Under the Governmental Tort Liability Act (GTLA), governmental immunity is removed in specific circumstances. Where the government does not own or control the property on which the alleged injury took place, however, the GTLA does not apply and immunity remains intact.

            In Turner v. City of Bean Station, No. E2013-02630-COA-R9-CV (Tenn. Ct. App. Dec. 30, 2014), plaintiff sued the city, among others, for injuries allegedly sustained while playing softball in a charity tournament. The city moved for summary judgment on the basis that it neither controlled nor owned the field, and that the GTLA therefore did not apply and the city was immune from suit. The trial court denied the motion, but the Court of Appeals reversed that decision and dismissed the case against the city.

            The city had presented evidence that the field in question was owned by the Tennessee Valley Authority, which had given the city a license to occupy and use the field as a recreational ball park. The city, in turn, leased the license to the local little league, and the little league oversaw the maintenance of the park and field. On the date of the alleged injury, the little league had “subleased” its license to the person running the charity tournament (another of the defendants in this case).

            In Tenn. Code Ann. § 29-20-204(a), the GTLA removes governmental liability for “any injury caused by the dangerous or defective condition of any public building, structure, . . . or other public improvement owned and controlled by [a] governmental entity.” To prove a premises liability claim under the GTLA claim, then, a plaintiff must show that the governmental entity both owns and controls the location where the injury occurred. Through affidavits, discovery, and exhibits, the city showed that it neither owned the ball field in question nor did it control its upkeep and maintenance, and under the GTLA plaintiff would have had to prove both. Accordingly, the Court of Appeals held that “the City has demonstrated that plaintiff cannot establish an essential element of his premises liability claim…. Consequently, the GTLA does not remove the City’s governmental immunity.”

            Although this appears to be a harsh result, it is probably correct given the facts of this case. This scenario serves to remind practitioners to fully research a case before filing, especially when depending on the GTLA. In a premises liability case, it is important to identify all entities that exert ownership or control over a property to ensure that the correct parties are all named in a timely fashion. 

            Note with interest the "owned and controlled" language.  Does this mean that a local government can never be sued when it leases land, with the sole duty to maintain it, and unquestionably controls it?  Perhaps suit would have to be filed under a different section of the GTLA to avoid this issue.

"Magic Words" and Medical Malpractice Litigation

While a plaintiff in a health care liability action must prove certain elements through an expert witness, that expert witness is not necessarily required to use “precise legal language.” A medical expert’s failure to use perfect terminology will not automatically result in a victory for defendant, as recently illustrated by the case of Dickson v. Kriger, No. W2013-02830-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2014).

In Dickson, plaintiff sued an ophthalmologist for complications allegedly caused by the negligent performance of LASIK surgery. The case went to trial, and after plaintiff’s proof, the trial court granted defendant’s motion for directed verdict on the basis that plaintiff had failed to establish (1) the standard of care for ophthalmologists in the area at the time of the procedure and (2) that defendant’s negligence was the proximate cause of the damages. The Court of Appeals, however, reversed this directed verdict, finding that the trial court had held plaintiff’s expert to too specific of a language requirement.

“Directed verdicts are only appropriate when reasonable minds could reach only one conclusion from the evidence.” If there is any material evidence to support plaintiff’s theories, then plaintiff should survive a motion for directed verdict. Here, the Court of Appeals found that a reasonable juror could find that plaintiff established the necessary elements of his case.

As to the standard of care, plaintiff’s expert testified that he knew the standard of care in this community for eye surgeons; that defendant’s continuation of the procedure after cutting an irregular flap was a deviation from the standard of care; that he held this opinion to a reasonable degree of medical certainty; and that in the situation, “I would have put this flap back down and come back another day, and he would not have had these problems.”  Defendant argued that, based on this testimony, the expert “did not state that he was familiar with the standard of care for the time period when [plaintiff’s] surgery occurred,” instead testifying regarding the standard of care “during surgery” and “in [plaintiff’s] case.” Although the Court called the phrases used by plaintiff’s expert “less than ideal,” it found that such terminology “would not prevent a jury from determining the time period involved.” The Court stated that the expert testimony regarding plaintiff’s surgery could only apply to the relevant time period, as only one surgery was performed. In analyzing the issue, the Court stated:

We have never required perfect language from medical experts in healthcare liability actions in order for the case to proceed to the jury. Imprecise statements by an expert witness will not prevent the plaintiff from establishing a prima facie case if a reasonable juror could conclude that the expert had established the standard of care at the time of the incident giving rise to plaintiff’s injuries.

Regarding the expert’s standard of care testimony, the trial court had also identified as a flaw that the expert testified regarding what he personally would have done. The Court of Appeals noted that this particular testimony was inadmissible to establish the standard of care, but found that such inadmissible testimony “does not negate his later admissible statements regarding the standard of care.”

Defendant’s second argument was that plaintiff’s expert “did not testify that [plaintiff’s] injuries would not have otherwise occurred but for the alleged medical negligence.” At trial, plaintiff’s expert read from a letter he had previously written, stating “plaintiff’s problems were a direct result of his LASIK procedure” and that plaintiff’s problems “are due to complications of LASIK that [defendant] deviated from the standard of care when he created an irregular flap and still proceeded with the laser procedure.” Again, the Court of Appeals found that a reasonable juror could find that plaintiff met his causation burden through this testimony. “To require medical expert witnesses to use precise legal language when discussing causation is ‘expecting too much.’” The Court stated that a reasonable juror could interpret the testimony to mean that the injuries were caused by either the LASIK procedure itself or by defendant’s negligence, and for the purpose of directed verdict, the interpretation most favorable to plaintiff must be adopted. Thus, while open to some interpretation, the expert’s testimony was enough to reasonably establish causation in this case.

Because the most plaintiff-friendly view of the evidence presented established both standard of care and causation, the grant of directed verdict was reversed and the case was remanded to the trial court.

The Court of Appeals reached the correct result in this case. As the Court repeatedly pointed out, medical experts are not lawyers. They cannot always be expected to testify in perfect legalese. Requiring magic words from expert witnesses would be unfair to plaintiffs, and this case is a helpful tool in the arsenal of health care liability plaintiff’s attorneys should the sufficiency of their expert’s testimony be challenged.