A plaintiff’s claim that the city had a duty to protect her against a dog owned by another citizen fell under the public duty doctrine, and summary judgment for defendant city was thus affirmed.

In Fleming v. City of Memphis, No. W2018-00984-COA-R3-CV (Tenn. Ct. App. Mar. 5, 2019), plaintiff filed suit against defendant city after she was attacked and mauled by a dog owned by a private citizen. Plaintiff alleged that the city “had actual prior notice of this dog’s vicious propensities” based on two prior attacks by the same dog. Defendant filed a motion for summary judgment based on the public duty doctrine, which the trial court granted and the Court of Appeals affirmed.

It was undisputed that the GTLA did not provide the City immunity in this case. After the dog bite preceding the attack on plaintiff, an animal control worker “did not believe there were grounds upon which [to seek] a petition to declare the dog dangerous and vicious under City ordinance,” and this decision by the government worker was determined to be operational. The issues raised by plaintiff, then, were “1) whether the GTLA supersedes the public duty doctrine; and 2) if the public duty doctrine survives, whether the trial court erred in finding that it applie[d]” here.

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In order to bring a direct claim against a plaintiff’s uninsured motorist insurance carrier, the plaintiff must have filed his initial complaint against the uninsured motorist (or “John Doe” if unknown) within the one-year statute of limitations.

In Fults v. MetLife Auto & Home Insurance Agency, Inc., No. M2018-00647-COA-R3-CV (Tenn. Ct. App. March 7, 2019), plaintiff was injured in a hit-and-run car accident on November 16, 2015, and the other driver was never identified. Plaintiff filed suit, naming his uninsured motorist carrier as defendant, on July 14, 2017. Defendant moved for dismissal, arguing that plaintiff’s claim was barred “on the ground that the complaint did not name or contain allegations against a “John Doe” driver, that no summons had been issued against “John Doe”…, and that the statute of limitations…would prevent John Doe from being named as a defendant.” Plaintiff moved to amend the complaint and add John Doe, but the trial court denied the motion to amend and granted the motion to dismiss. The Court of Appeals affirmed.

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Where the Claims Commissioner’s ruling for defendant on a negligence suit did not include conclusions of law regarding both of plaintiffs’ theories, the order of dismissal was deemed deficient and was vacated by the Court of Appeals.

In Kim v. State, No. W2018-00762-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2019), plaintiffs filed a negligence claim after their six-year-old son fell from a fifth-floor balcony at a state-owned hotel. Plaintiffs were guests of the hotel as part of a church group, and while checking out, the son became separated from his parents. The son went upstairs to the room that plaintiffs had been staying in, and despite having already been cleaned, the door to the room was ajar. The son entered the room, went onto the balcony, climbed on top of the railing, and ultimately fell, sustaining major injuries. Testimony at trial established that it was both hotel and industry policy for a housekeeper to ensure that the door to a hotel room was locked after it had been cleaned, and it was undisputed that the son could not have gained access to the room if it had been locked. It was further established that the housekeeper who cleaned this particular room “had previously been reprimanded for neglecting to secure a room after cleaning it.”

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A nurse who worked in an administrative capacity in the year preceding an incident underlying an HCLA claim may not be qualified to give expert testimony in the case.  A Rule 59.04 motion did not cure the deficiency in the initial affidavit.

In Smith v. Methodist Hospitals of Memphis, No. W2018-00435-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2019), plaintiff filed an HCLA suit alleging that defendant hospital failed to provide him proper postsurgical care, necessitating a subsequent hospitalization and surgery. This case was originally filed in 1999 and had already been through one round of appeals, but the issue in this opinion was whether the trial court rightly granted summary judgment on the basis that neither of plaintiff’s identified expert witnesses were competent to testify, and then properly denied a motion to alter or amend the judgment.

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Where plaintiff failed to present any proof that the stairs owned by defendant were defective, the trial court’s finding for defendant was affirmed.

In James v. City of Dyersburg, No. W2018-00614-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2019), plaintiff filed a GTLA premises liability suit after falling on stairs outside of a city building. In her complaint, plaintiff alleged that she fell due to the city’s negligence in “failing to provide a handrail on the steps, and in failing to correct a defect…being a separation between step and a metal strip[.]” At trial, plaintiff testified that she “stepped down from the top step with her right foot onto the second-step, but as she tried to step down with her left foot, the two-inch heel of her left shoe got caught on the metal strip on the stairs[.]” She also testified that she was unable to catch herself due to the absence of a handrail. Despite her allegation that the stairs were defective, plaintiff offered “no measurements…and no proof…of any code violations or applicable code requirements for the steps, stairway, or handrails,” nor did she present expert testimony.

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We have been reviewing data from the 2018 Tennessee Health Care Liability Claims Report, which reports data for claims closed in 2017 as well as other data.

Some additional statistics of note:

  • Health care facilities paid 46.44%  (738) of all claims paid in 2017.

Yesterday’s post addressed the number of resolved health care liability (formerly medical malpractice) claims in Tennessee in 2017.  Today we dive into the data a little deeper.

Here are the monies paid for claims closed in 2017:

Type of Injury              Number Closed       Closed W/ Payment    Closed W/ No Pay.   Average Amount Pd

The Tennessee Department of Commerce and Insurance has released the 2018 Tennessee Health Care Liability Claims Report (“Report”).  The 2018 Report was released in 2019 but contains data for 2017.   The Report is required as a result of legislation passed by the Tennessee General Assembly in 2004.

Some 1589 claims against Tennessee health care providers were closed in 2017.  Of those, 1242 (78.6%) were claims closed other than as the result of judgment, settlement or ADR.

Some 33 claims (2.08%) were closed as a result of judgment, 8 of which were defense verdicts in prior years but affirmed on appeal in 2017.  A total of 253 cases (15.92%) were settled, and another 61 (3.84%) were resolved via ADR.  (Do not ask me why these numbers are kept separately or whether they are accurate.)

Before granting a motion to dismiss, a trial court should fully consider a pending motion to amend the complaint.

In Grose v. Kustoff, No. W2017-01984-COA-R3-CV (Tenn. Ct. App. Jan. 17, 2019), plaintiffs filed a pro se legal malpractice claim against defendant attorney. Instead of filing an answer, defendant filed a motion to dismiss based on the statute of limitations. Plaintiffs followed by filing a motion to amend their complaint, and they attached their proposed amended complaint to the motion. The trial court granted defendant’s motion to dismiss, ruling that the claim was time-barred, but never specifically addressed the motion to amend in its ruling. Plaintiff appealed, and the Court of Appeals vacated the judgment.

The Court began by noting that because defendant had not filed a responsive pleading, plaintiffs were entitled to amend their complaint once as a matter of course without leave of the court pursuant to Tenn. R. Civ. P. 15.01. Because plaintiffs chose to file a motion to amend rather than simply filing their amended complaint, however, they could not rely on Rule 15.01 and did need leave of court to amend. In Tennessee, “even where leave of court is necessary to the filing of an amended pleading, the trial court must properly consider the motion pursuant to the liberal policy outlined by Rule 15.01.” (internal citation omitted).

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When a motion for summary judgment in an HCLA case was based solely on the failure to file a certificate of good faith with the complaint, the trial court rightly considered it a motion to dismiss and allowed plaintiff to take a voluntary dismissal.

In Renner v. Takoma Regional Hospital, No. E2018-00853-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2019), plaintiff filed an HCLA claim against defendants, but failed to file a certificate of good faith with her complaint. Defendants filed motions to dismiss on this basis, and plaintiff subsequently filed and served a certificate of good faith. Defendants then filed motions for summary judgment, with attached affidavits, arguing that they were entitled to judgment as a matter of law due to the failure to file the certificate of good faith with the complaint. Plaintiff filed a motion for voluntary dismissal, and defendants argued that Rule 41.01 prohibited voluntary dismissal when a motion for summary judgment was pending. The trial court ruled that the proper way to challenge the lack of a certificate of good faith was a motion to dismiss, and that the motion for summary judgment filed in this case was “in fact just a restyled motion to dismiss in that there are no facts that are necessary here.” The trial judge ruled that he was going to consider the motion a motion to dismiss, and thus allowed plaintiff to take a nonsuit.

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