Plaintiffs seeking to introduce medical bills for the purpose of showing damages must present expert proof that that the medical expenses were necessary.

In Holzmer v. Estate of Walsh, No. M2022-00616-COA-R3-CV (Tenn. Ct. App. July 28, 2023), plaintiff sought to introduce her medical bills in support of claimed damages related to a car accident. Defendant admitted liability, and a jury trial was held to determine damages. At trial, plaintiff’s expert physician testified that the treatment plaintiff received was reasonable and necessary, but the physician had not reviewed the bills and did not testify as to their reasonableness and necessity.

Plaintiff had received treatment at three different facilities, and she had witnesses from those facilities testify as to the reasonableness of the bills, including a nurse auditor, an accounts receivable biller, and a senior director of revenue cycle. These witnesses, however, did not testify as to necessity. The trial court excluded the medical bills due to plaintiff’s failure to present expert testimony regarding their necessity, and that ruling was affirmed on appeal.

The Tennessee Bar Journal has just published my article, “Tennessee Supreme Court Creates the “Colleague Privilege.”  The article discusses the implications of a brand-new privilege which provides that “a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard,” and that this holding “stands regardless of any supervisory relationship between the providers.”

Where an HCLA plaintiff failed to establish a breach of the applicable standard of care, the Claims Commissioner’s ruling for the State was affirmed.

In Black v. State, No. M2022-00399-COA-R3-CV (Tenn. Ct. App. July 25, 2023), plaintiff filed suit on behalf of her husband, who died after a short stay in a skilled nursing facility owned and operated by the State of Tennessee. When the husband was admitted to the facility, he was 84-years-old and suffered from Alzheimer’s disease, diabetes, and many other health complications.

Plaintiff visited her husband every day in the facility, and on December 29, 2016, she told the staff that she suspected he had a urinary tract infection. The facility staff ran a test, which was negative, and created care plans for the husband the next day. Four days later, the facility staff completed a more detailed assessment of the husband’s condition and care needs. Four days after this assessment, the husband was taken to the emergency room, where he was found to be suffering from septic shock and aspiration pneumonia. Approximately two weeks later, the husband died at the hospital.

Where “application of the operation-of-law exception would bar a vicarious liability claim that is timely filed within the [HCLA’s] extended statute of limitations solely because the statute of limitations had expired for any claims against the principal’s agents, the exception must give way to the [HCLA].”

In two nearly identical opinions, the Tennessee Supreme Court addressed the interplay between claims for vicarious liability, common law exceptions to the ability to assert vicarious liability claims, and the HCLA. In Ultsch v. HTI Memorial Hospital Corp., No. M2020-00341-SC-R11-CV (Tenn. July 20, 2023) and Gardner v. Saint Thomas Midtown Hospital, No. M2019-02237-SC-R11-CV (Tenn. July 20, 2023), the Supreme Court held that a vicarious liability claim filed within the 120-day extension of the statute of limitations could proceed against a principal, even when the relevant agents were not named as defendants, were not given pre-suit notice and thus not subject to an extended statute of limitations, and were barred from being sued by the statute of limitations at the point the complaint was filed against the principal.

In both cases, the plaintiff sent pre-suit notice to the hospital at which they were treated, but did not send pre-suit notices to any agents of said hospitals. The statute of limitations as to claims against the hospitals were extended 120-days pursuant to the HCLA, and the plaintiffs filed their vicarious liability claims against the hospitals beyond the one-year mark but before the 120-day extension had run.

Where plaintiff created issues of genuine material fact regarding the potential liability of various defendants in the death of his minor son, who was killed while drinking and driving, summary judgment for most defendants was reversed. Further, the Court of Appeals found that the question of whether the decedent was “at least 50% at fault for comparative fault purposes [was] a question not properly resolvable at this summary judgment stage under the facts of this case.”

In Benbow v. L&S Family Entertainment, LLC, No. M2022-00491-COA-R3-CV (Tenn. Ct. App. July 12, 2023), plaintiff brought suit after his minor son, who was 20-years-old, died while drinking and driving. Plaintiff asserted that various defendants were negligent in the course of the evening that decedent died.

Decedent was out with a friend on the night he died, and that friend was 21-years-old. Plaintiff presented evidence that at defendant restaurant the server carded the friend but not decedent, and then brought a pitcher of beer and two cups to the table; that decedent and his friend appeared intoxicated when they arrived at defendant bowling alley; that a worker at defendant bowling alley carded the friend but not decedent, yet provided a pitcher of beer and two cups; that decedent and his friend went to a bar after the bowling alley, and that at that bar decedent’s debit card was used to buy drinks; that the friend’s mother came to the bar and that video evidence showed her possibly buying drinks that were then given to decedent; that the mother helped decedent into a car to be driven home; that decedent and the friend ended up going to the friend’s house; and that the friend and his father got into an argument, whereupon decedent drove himself away from the house and got into the fatal accident.

Where an HCLA plaintiff has previously given pre-suit notice, utilized the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121, filed suit, voluntarily dismissed the action, then chosen to refile pursuant to the savings statute, that plaintiff is not entitled to rely on the 120-day extension when refiling.  Instead, the action must be re-filed before the expiration of the one-year period for filing granted under the savings statute.

In Richards v. Vanderbilt University Medical Center, No. M2022-00597-COA-R3-CV (Tenn. Ct. App. July 11, 2023), plaintiff filed an HCLA case in 2014. When filing that case, plaintiff gave defendant proper pre-suit notice and relied on the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121(c). Plaintiff voluntarily dismissed that action on October 4, 2019, then gave pre-suit notice again and refiled his complaint on January 28, 2021. When refiling under the savings statute, plaintiff again relied on the 120-day statute of limitations extension provided by the HCLA.

Defendant filed a motion to dismiss, arguing that pursuant to the language of the statute, plaintiff was only entitled to utilize the 120-day extension in the original action. The trial court agreed, granting dismissal, and the Court of Appeals affirmed.

Where a defense verdict in a GTLA bench trial was based largely on credibility, the verdict was affirmed on appeal.

In Ware v. Metro Water Services, a Division/Agency of Metropolitan Government of Nashville, Davidson County, Tennessee, No. M2022-01114-COA-R3-CV (Tenn. Ct. App. May 30, 2023), plaintiff filed a GTLA case after she fell “due to an unsecure water meter valve cover” in her sister’s yard. During a bench trial, the evidence focused largely on the practice and habit of Metro employees in closing a water meter valve cover when they finished working on it. The evidence showed that the water meter plaintiff fell into had been serviced in July before plaintiff’s fall in September, and plaintiff asserted that said employee had been negligent by not properly recovering the meter.

The employee who performed that work in July testified that he had worked for Metro for over 19 years and typically worked on about 4,000 work orders per year. He testified that he always secured the cover before leaving a job, and that he always put his foot on the lid, stomped on it, and walked away by stepping on it. He testified that there was no doubt in his mind that he had secured the cover in question.

A Tennessee plaintiff asserting a claim for invasion of privacy based on intrusion upon seclusion was not required to show actual damages, as actual damages are not an essential element of an intrusion upon seclusion claim.

In Jones v. Life Care Centers of America d/b/a Life Care Center of Tullahoma, No. M2022-00471-COA-R3-CV (Tenn. Ct. App. May 16, 2023), plaintiff was a resident at defendant nursing home, and she brought this case through her conservator based on her naked body being exposed during a video call made by a nursing home employee. Plaintiff, who was cognitively limited, was being assisted in showering by defendant’s employees. One of the employees received a video call from her boyfriend, who was incarcerated, and the employee propped the phone on a shelf and continued helping plaintiff. During the call, plaintiff’s naked body was seen on the video feed. A sheriff’s department employee was monitoring the phone call and noticed that plaintiff could be seen, and defendant was accordingly alerted. Although plaintiff was admittedly unaware that she had been exposed, and never became aware, her daughter/ conservator was informed, and this suit was filed.

Plaintiff’s initial complaint asserted a claim of “Negligence Pursuant to the Tennessee Medical Malpractice Act” and a general claim for invasion of privacy. After defendant filed a motion for summary judgment, plaintiff filed a motion seeking to amend her complaint to assert claims for invasion of privacy based on intrusion upon seclusion and negligent supervision. The trial court granted summary judgment to defendant, finding that plaintiff could not “prove the existence of any cognizable injury or damages from the incident,” and it denied plaintiff’s motion to amend, ruling that a claim for invasion of privacy requires actual damages and thus the amendment would be futile. On appeal, those rulings were reversed.

Where a pro se plaintiff knew about defendants’ alleged legal malpractice more than one year before he filed suit, summary judgment based on the statute of limitations was affirmed.

In Garrett v. Weiss, No. E2022-01373-COA-R3-CV (Tenn. Ct. App. May 25, 2023), plaintiff filed a legal malpractice claim against defendant attorneys based on their representation of him in an underlying divorce case, which included an order of protection against plaintiff. The order of protection was entered on May 30, 2017, and stated that plaintiff could no longer reside at a Tellico Plains residence, but the order was supposed to specify a different residence located in Sweetwater.

Beginning in June 2017, “Plaintiff informed Defendants on more than one occasion that the Circuit Court had erred in its May 30, 2017 amended of or protection by listing the incorrect address[.]” In August 2017, plaintiff was arrested due to his refusal to leave the Tellico Plains address, and he was incarcerated for six months. On March 5, 2018, plaintiff filed a pro se motion to alter or amend the order of protection by correcting the address, which was granted in April 2018.

The Tennessee General Assembly has modified Tenn. Code Ann. Section 20-1-119 to make it clear that the plaintiff gets the benefits of the statute even if the fault allegations against a nonparty are made by a uninsured/underinsured motorist insurer.  The new legislation, Public Chapter No. 294, states as follows:

Section 1. Tennessee Code Annotated, Section 20-1-119(a), is amended by

redesignating the current language as subdivision (a)(1) and adding the following new

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