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

If you have a potential claim for professional misconduct against a therapist for sexually abusing or inappropriately touching a patient, don't forget that Tennessee has a special act for such torts. 

The act is known as the "Therapist Sexual Misconduct Victims Compensation Act."  It is codified at T.C.A. Section 29-26-201 et seq.  

Under the Act a therapist is "any person who performs therapy regardless of whether the person is licensed by the state."

The Act also has a longer statute of limitations that traditional tort cases in Tennessee.    The statute of limitations is set forth in T.C.A. Section 29-26-208.   Generally speaking, the statute of limitations in such claims is two years and is subject to a "discovery rule" but discovery of the injury does not occur until after the therapy ends.

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The Kentucky Court of Appeals has ruled that a product manufacturer "should be estopped as a matter of law from relying on the statute of limitations by virtue of its fraudulent concealment of defects associated with its product." 

Plaintiffs claimed that they were injured by a defective voltage meter.  The manufacturer of the product asserted a statute of limitations defense.  Plaintiffs argued that the "statute of limitations had been tolled by Fluke’s fraudulent concealment of the [meter's] defect. They contended that as early as 1991, Fluke knew that operating the [meter] at low-battery status could result in inaccurate voltage readings, thus posing a risk of grave danger to its user. Nonetheless, they argued that Fluke ignored its reporting obligation and failed to disclose the potentially dangerous condition of its product to the federal Consumer Product Safety Commission (CPSC). The plaintiffs contended that Fluke should not be permitted or entitled to rely on the statute of limitations defense since it had engaged in a fraudulent concealment of its product’s defect."

The Court agreed, saying "[t]he common law principle of equitable estoppel is soundly established in Kentucky law. [citation omitted.]  It is aptly applied to prevent a defendant from asserting the statute of limitations defense." ... [I]t appears that the manufacturer indeed remained silent when it had an affirmative statutory obligation to report information relative to the safety of its product. We adopt the cogent reasoning of the Supreme Court of Alaska and hold that parties are entitled to assume that a product is safe if there is no adverse information reported as required to indicate that it may pose a danger."

The case is LeMaster v. Fluke Corporation,  NO. 2006-CA-002373-MR (Ky. Ct. App. June 27, 2008).  Read the opinion here.

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The Tennessee Supreme Court has ruled that the fact that an injured plaintiff had given his son a durable power of attorney did not prevent the plaintiff from relying on the "mental disability" tolling statute and bringing suit more than one year after an incident.

The nursing home where plaintiff lives asserted a statute of limitations defense to his claim.  Plaintiff asserted that his claim was not time barred because he suffered from a disability within the meaning of T.C.A.Sec. 28-1-106.   That statute provides that

"If the person entitled to commence an action is, at the time the action accrued, either under the age of eighteen (18) years, or of unsound mind, such person, or such person’s representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability."

The nursing home proved that the power of attorney that plaintiff had executed in favor of his son gave the son the right to "act in my name, place and stead in any way to which I myself could do, if I were personally present, with respect to . . . claims and litigation.” The document also stated that the power of attorney “shall not be affected by the subsequent disability or incompetence of the grantor.”

Chief Justice Barker authored the opinion for the Tennessee Supreme Court.  The Court held that plaintiff claims  "are not barred by the one-year statute of limitations because the statute of limitations was tolled by Tennessee Code Annotated section 28-1-106. We also hold that the existence of a durable power of attorney does not remove the protection afforded by section 28-1- 106."

Here is part of the Court's rationale:

If we were to construe the language in the Tolling Statute—“the person entitled to commence an action”—to include anyone with the authority to commence an action, the Tolling Statute would never apply in any case when a person is deemed to have the authority to act for someone who is disabled because of age or unsound mind. Such a construction would conflict not only with the purpose of the statute but also with our previous jurisprudence, holding that the appointment of a guardian or conservator does not affect the tolling of a statute of limitations. See Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 103 (Tenn. 2006). In addition, all minors have some person, either a guardian or a parent or a next friend, who has the authority to file a lawsuit on their behalf. It is our opinion, therefore, that “the person entitled to commence an action,” refers to the person who suffered the legal wrong or to whom the claim belongs. Accordingly, we hold that the statute of limitations is tolled for purposes of the Tolling Statute for so long as the person to whom the claim belongs is under a disability because of age or unsound mind."

The case is Sullivan v. Chattanooga Medical Investors, Inc.,  M2004-02264-SC-R11-CV (April 24, 2007).  Read it here.

There are no particular surprises in this opinion.  The rationale of Abels largely controlled the result.  The case has the practical effect of extending the statute of limitations for all persons smart enough to have a durable power of attorney in place before they became of unsound mind.

Practitioners then need to inquire whether the potential plaintiff had a power of attorney in place before the injury occurred and then calculate the "new" statute of limitations deadline by determining how long the period of disability lasted.  These calculations are fraught with peril and practitioners should bring suit within one year of the date of the injury if reasonably possible under the circumstances.

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The Tennessee Court of Appeals has ruled that a minor can sue to recover medical expenses paid to treat injuries received by the minor as a result of the negligence of another.  Although most of us (at least those of us who represent plaintiffs) have thought this was probably the law, it is nice to see an opinion from this century addressing the issue directly.

Here is the entire section of the opinion on the subject that addresses this important issue:

"As a final matter, Defendant contends that the trial court erred in admitting evidence of
Plaintiff’s pre-majority medical expenses since a minor does not having standing to assert a claim for expenses incurred on his behalf and Mrs. Craig was not a party to the suit. Tennessee Code Annotated section 20-1-105 provides that a claim for medical expenses incurred by a minor during his or her minority does not belong to the minor, but rather to the minor’s parents. See also Burke v. Ellis, 58 S.W. 855, 857 (Tenn.1900). However, in Smith v. King, No. Civ.A. 958, 1984 WL  586817, at *2 (Tenn.Ct.App. Sept. 21, 1984), the court addressed a substantially similar issue and determined that a minor plaintiff may maintain his or her own cause of action for medical expenses and include the amount of medical expenses incurred on behalf of the minor as an element of his or her damages.

In Smith, Barbara Ellen Smith, a minor, by and through her parents as next friends, sued
defendant for personal injuries received when the school bus in which she was a passenger was
struck by defendant’s vehicle. Smith, 1984 WL 586817, at *1. Because the suit was filed more than a year after the accident, the parent’s cause of action for pre-majority medical expenses was barred by the statute of limitations. Smith, 1984 WL 586817, at *1. Instead of precluding any recovery for the minor’s pre-majority medical expenses, the court adopted the waiver rule and held that “a child under circumstances where the parent has acted as next friend may maintain an action for his medical expenses provided that [the parent] has paid for them...or is legally obligated to pay them.” Smith, 1984 WL 586817, at *2. The court reasoned that pursuant to the waiver rule, “the parent by bringing the suit on behalf of the minor has waived any claim that he might have” thereby eliminating the concern of double recoveries for pre-majority medical expenses. Smith, 1984 WL 586817, at *2.

Applying the holding in Smith, we find that Plaintiff could properly maintain his own action for pre-majority medical expenses incurred or likely to be incurred by Mrs. Craig on his behalf and
thus the trial court did not err in admitting evidence of Plaintiff’s pre-majority medical expenses. Since the jury awarded Plaintiff $300,000.00 in pre-majority economic damages, Mrs. Craig i precluded from any further individual recovery under the waiver rule enunciated in Smith."

The case is Palanki v. Vanderbilt University , No. M2005-02220-COA-R3-CV (Tenn. Ct. App. Nov 13, 2006).  Read it here.

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Tenn. Code Ann. § 28-3-104(a)(1) (2000) provides a one year statute of limitations in personal injury cases (the shortest such statute in the nation).  However, Tenn. Code Ann. § 28-1-106 (2000) creates two  exceptions to the rule; it provides as follows:

"[i]f the person entitled to commence an action is, at the time the cause of action  accrued, either under the age of eighteen (18) years, or of unsound mind, such person, or such person’s representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability."

But what happens when the person of "unsound mind" has a person appointed by the court to look out for him (a conservator)?  The Tennessee Supreme Court looked at that issue in an opinion released yesterday.  Here are the precise questions posed to the Tennessee Supreme Court from the United States District Court for the Western District of Tennessee.

"1. Whether Tennessee’s “discovery rule” exception to the accrual of a cause of action refers to the knowledge and diligence of the injured person or to the knowledge and diligence of a legal representative who has accepted responsibility for the injured person’s tort claims arising out of a single incident?

2. Whether, under Tennessee Code Annotated section 28-1-106, the disability of “unsound mind” is “removed” when the injured person’s legal representative accepts responsibility for the injured person’s tort claims arising out of a single incident?"

Justice Clark wrote the opinion for the Court.  Looking first to the second question posed by the federal court, the Supreme Court held  "the cause of action remains personal to the plaintiff  insofar as the running of the statute of limitations is concerned. That is, the statute of limitations either runs or is tolled depending upon the status of the plaintiff, irrespective of whether a legal guardian exists. If the plaintiff is under some form of legally recognized disability which tolls the statute of limitations, the statute of limitations remains tolled despite the possibility that some representative could bring the action on the plaintiff’s behalf."

The Court went on to say that "[t]he disability of unsound mind is removed when the individual is no longer of unsound mind, due either to a change in the individual’s condition or the individual’s death. The statute contains no language which would lead us to conclude that the legislature intended for removal of either of these two disabilities upon appointment of a guardian. Had the General Assembly intended to include such a provision, it could have done so."

The Court then turned to the first question and held that the discovery rule "does not ...overcome the operation of the tolling provision of our legal disability statute. Thus, so long as the applicable statute of limitations is tolled due to a plaintiff’s disability, either minority or unsound mind, the 'discovery rule' is inapposite." 

The case is Abels v. Genie Industries. Inc.,  No. M2005-02597-SC-R23-CQ (Sept. 14, 2006).  Read it here. 

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