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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.
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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

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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.)

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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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Where an expert in a professional negligence case against an insurance agent admitted that he had very limited experience with a certain type of policy, he was not qualified to testify as to the standard of care regarding that policy type.

In Littleton v. TIS Insurance Services, Inc., No. E2018-00477-COA-R3-CV (Tenn. Ct. App. Jan. 9, 2019), plaintiffs filed a professional negligence case against defendant insurance agent. The facts of this case revolved around a company, Merit Construction, asking its insurance agent to procure a commercial general liability insurance policy. Merit requested that the policy come from a company with an A rating, and defendant agent provided three options. Merit chose an option from Highlands, which actually had a rating of B++. Defendant procured this policy and also procured a cut-through endorsement, which defendant claimed was “to raise the Highlands policy to an A-rating…” At the time Merit was given the three options, it was not given financial information about any of the potential carriers, and defendant’s agent “indicated that all three companies were A-rated companies with the cut-through endorsement from Highlands[.]” More than a year after the policy was purchased, Highlands’ rating dropped to a B, and defendant did not inform Merit or move the coverage to a different carrier. There were subsequent issues collecting when a claim was made to Highlands because it had been placed in receivership.

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A motion for summary judgment cannot be based solely on “unverified reworded statements of some of the factual allegations of the complaint,” along with unsworn, unverified, and unsigned exhibits. In addition, when a defendant asserts their Fifth Amendment privilege against self incrimination in an answer or in response to discovery requests, such assertion cannot “in and of itself be taken as an admission of the allegations[,]” but a plaintiff should be allowed to “present corroborating evidence as to each fact for which it seeks a negative inference” in connection with the assertion of the privilege.

In Smith v. Palmer, No. M2017-01822-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2019), plaintiff filed a wrongful death suit against several defendants regarding the death of her daughter. The daughter and defendants were camping at a music festival, and daughter’s body was found one morning in the lake. There was a dispute as to the cause of death, and though criminal charges were not filed, plaintiff alleged that defendants “caused her daughter’s death and conspired to cover it up.”

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When a plaintiff filed suit against a massage therapist and his employer alleging various claims based on an intentional sexual assault, the requirements of the HCLA did not apply to the intentional tort claims against the massage therapist. For the negligent retention or supervision claim against the employer, however, a certificate of good faith was required under the HCLA.

In Jackson v. Burrell, No. W2018-00057-COA-R3-CV (Tenn. Ct. App. Jan. 16, 2019), plaintiff alleged that during a massage, defendant massage therapist sexually assaulted her, which resulted in a genital infection and eventual outpatient surgery. Plaintiff filed suit against the therapist and his day spa employer, alleging assault and battery, intentional infliction of emotional distress, and false imprisonment against the therapist, and asserting claims for vicarious liability and negligent supervision, retention and training against the employer. Plaintiff gave pre-suit notice of her claims pursuant to the HCLA, but she did not file a certificate of good faith with her complaint. Defendants both filed motions for summary judgment based on the lack of a certificate of good faith, and the trial court granted the motions. On appeal, summary judgment as to the therapist was reversed, but the ruling for the employer was affirmed.

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