Articles Posted in Civil Procedure

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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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 Chambers v. Illinois Central Railroad Co., No. W2013-02671-COA-R3-CV (Tenn. Ct. App. May 5, 2015), plaintiffs brought a negligence action against defendant for property damage sustained in a flood. A culvert ran under defendant’s railroad track, and according to plaintiffs, the failure to maintain and keep this culvert free from debris was the cause of the flooding on plaintiffs’ property.

Defendant filed a motion for summary judgment, which the trial court eventually granted on two grounds. First, the trial court found that a relevant federal regulation “substantially subsumed the subject matter of the plaintiffs’ state law claim,” such that if defendant had complied with the regulation the action was preempted. The trial court determined that defendant had presented uncontroverted testimony regarding the condition of the culvert before the flood and thus proved the “affirmative defense of preemption.” Second, the trial court determined that expert proof was required on this issue of causation, and since plaintiffs had no expert to contradict the condition of the culvert immediately before the flooding, plaintiffs could not prove causation, an essential element of their negligence claim. The Court of Appeals, however, reversed on both of these grounds.

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In a recent case that fell under the Governmental Tort Liability Act (GTLA), the Tennessee Court of Appeals addressed the discretionary function exception to the GTLA as well as the findings a trial court must make to support a summary judgment decision.

In Lewis v. Shelby County, No. W2014-00408-COA-R3-CV (Tenn. Ct. App. April 17, 2015), two counselors who worked at a correctional facility in Shelby County sued for negligence related to injuries they sustained when attacked by an inmate. Plaintiffs alleged that on the night of the attack, the facility was understaffed; that they radioed their supervisor two times prior to the attack but he failed to appear; and that they made four “code red” calls for assistance during the attack, but that no one responded. Their suit was based on each of these three allegedly negligent acts.

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In Holder v. Shelby County, No. W2014-01910-COA-R3-CV (Tenn. Ct. App. April 21, 2015), a father sued the county for acts of negligence by a county employee that he alleged caused the death of his son. The son was involved in a car accident and subsequently arrested. Upon evaluation, the son was determined to have a mental condition that caused him to be a threat to himself and others. He was accordingly put into a special housing unit for unstable inmates, where policy dictated that a guard perform mandatory safety checks of all inmates every thirty minutes.

Officer Moore was on duty from 2:00 pm to 10:00 pm on the day the son was in the facility. Moore later admitted that he did not do any safety checks during that time, despite writing in the log book that he did and that at 9:16 pm all the inmates, including plaintiff’s son, were resting peacefully. After the 10:00 shift change, another deputy performed a safety check at 10:14 pm and found the son hanging in his cell by a bed sheet. The son still had a pulse but was not breathing, and he eventually died from his injuries.

Plaintiff filed suit alleging that his son died as a “result of Deputy Moore’s negligence and that Shelby County was vicariously liable.” The County filed a motion to dismiss for failure to state a claim on the grounds that 1) the complaint alleged only intentional acts and 2) Officer Moore was not acting within the scope of his employment, either of which would be enough to find that immunity was not removed under the Governmental Tort Liability Act (GTLA). The trial court granted the County’s motion, finding that the complaint failed to allege any negligent acts and that Moore’s falsification of the logs was not within the scope of his employment. The Court of Appeals, however, reversed this decision.

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At what point do email blasts from one state into another allow a defendant to be sued in the state where the emails were sent (and where the plaintiff resides)?

Plaintiff lived in Illinois and was injured at a ski resort in Wisconsin.  He sued the resort in Illinois and the resort moved to dismiss for lack of personal jurisdiction.

The evidence indicated that 65 – 70% of the guests at the ski resort were from Illinois and that representatives of the resort attended a trade show in Chicago each year.  The resort did no print or other ads in Illinois.  It did collect email addresses from people, including those from Illinois, and did email blasts in an effort to solicit customers.  It also had a website where people from Illinois and elsewhere could reserve rooms (but not purchase lift tickets.  Finally, it offered tour packages from Chicago to the resort.

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While some parts of the Health Care Liability Act (HCLA) are making their way towards substantial compliance, the Court of Appeals recently reiterated that the requirement to file a certificate of good faith under Tenn. Code Ann. § 29-26-122 is mandatory. In Dennis v. Smith, No. E2014-00636-COA-R3-CV (Tenn. Ct. App. March 31, 2015), plaintiffs filed an HCLA claim against defendant. Defendant filed a motion to dismiss on the grounds (1) that plaintiffs did not comply with the pre-suit notice requirements because plaintiffs did not attach a HIPAA compliant authorization form to the notice letter, did not attach a list of all heath care providers receiving notice, and did not list the address of the claimant, and (2) that plaintiffs failed to file a certificate of good faith and failed to disclose the number of prior disclosure violations under § 29-26-122(d)(4). The trial court granted defendant’s motion to dismiss, and the Court of Appeals affirmed.

On appeal, the Court focused solely on the certificate of good faith issue, as failure to comply with the certificate of good faith requirements leads to dismissal with prejudice and would therefore be dispositive of the case. Plaintiffs here “concede[d] in their brief on appeal that instead of filing a certificate of good faith in compliance with the statute, plaintiffs filed a statement signed by their expert.” According to plaintiffs, this filing “over-complied by providing more information than the statute requires.” Essentially, plaintiffs argued that they provided the required information plus some and thus should be excused for not technically complying with the statute. The Court firmly disagreed.

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Although summary judgment is often thought of as a tool for defendants, plaintiffs in personal injury cases should remember that motions for summary judgment can be beneficial and successful for them as well. In Bloomfield v. Metro. Govt. of Nashville and Davidson Co., No. M2014-00438-COA-R3-CV (Tenn. Ct. App. March 26, 2015), plaintiff was a firefighter employed by Metro. He responded to a call regarding an elderly patient who was in a wheelchair. When a paramedic arrived to assist in moving the patient, the plaintiff and the paramedic moved the patient in the wheelchair towards the door of the home, where they realized that the patient would have to be lifted to clear a door threshold and step down. Plaintiff was at the head of the chair while the paramedic was at the foot. Plaintiff told the paramedic to hold on a second and turned to get information from family members, but the paramedic lifted the foot of the wheelchair without communicating to plaintiff first. When plaintiff saw that the chair was about to tip backwards he grabbed it, injuring himself.

Because the paramedic was also employed by Metro, plaintiff sued Metro for the injuries he alleged to have sustained due to the paramedic’s negligence. Plaintiff used the deposition testimony of several Metro employees to show that there was a standard for lifting a patient in a wheelchair and that the person at the head of the wheelchair was responsible for initiating the lift. Further, plaintiff used the paramedic’s own deposition testimony, wherein he admitted that he violated procedure by lifting at the foot before everyone was ready. Relying on these facts, plaintiff successfully moved for summary judgment as to liability for the paramedic’s negligence, and a trial was conducted on damages only, wherein plaintiff was awarded the maximum amount allowed under the Governmental Tort Liability Act.

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