Day on Torts

June 14, 2021

Noneconomic damages cap applied to injured plaintiff and loss of consortium plaintiff jointly.

When an injured plaintiff’s spouse asserts a loss of consortium claim, the noneconomic damages cap found in Tenn. Code Ann. § 29-39-102 “allows both plaintiffs to recover only $750,000 in the aggregate for noneconomic damages.” In Yebuah v. Center for Urological Treatment, PLC, No. M2018-01652-SC-R11-CV (Tenn. June 2, 2021), plaintiffs filed an HCLA claim after plaintiff wife’s surgeon left a medical device in her abdominal cavity while removing her kidney, causing her pain and chronic inflammation until the device was discovered during an unrelated procedure eight years later. The jury had awarded plaintiff wife $4,000,000 in pain and suffering and loss of enjoyment of life damages, and awarded $500,000 in damages to plaintiff husband for loss of consortium. The trial court originally ruled that the damages in total would be reduced to $750,000 pursuant to the damages cap, but then amended the ruling and held that the cap should be applied to each plaintiff separately, meaning that the wife would receive $750,000 and husband would receive $500,000. The Court of Appeals affirmed this application of the damages cap.

During this appeal to the Supreme Court, the facts of the case were not at issue. The only issue here was how Tennessee’s cap on noneconomic damages should be applied when the injured plaintiff is seeking noneconomic damages and his or her spouse is also pursuing a loss of consortium claim (but not a claim for personal injuries).

June 2, 2021

Tort Salad: Defamation, Conversion, Trespass to Chattels, False Light Invasion of Privacy, Trespass, NIED, IIED and Negligence

by The Law Offices of John Day, P.C.

Where plaintiff alleging defamation was a public figure but had pleaded in the complaint that defendants were “negligent and/or reckless in ascertaining the truth” of the statements, the trial court incorrectly granted judgment on the pleadings on the defamation and false light invasion of privacy claims. Further, where defendants had counterclaimed for trespass to chattels, conversion, negligence, and trespass, and the “countercomplaint [had] factual allegations to support the required elements” of those claims, dismissal was reversed. In Kauffman v. Forsythe, No. E2019-02196-COA-R3-CV (Tenn. Ct. App. May 25, 2021), plaintiff shot and injured defendant’s dog when it was on plaintiff’s property. According to plaintiff, the dog had cornered his cat and he feared for its safety. After this incident, the dog’s owner, Ms. Bishop, and an individual unrelated to the dog, Mr. Williams, posted negative opinions about plaintiff on social media.

Sometime after this incident, plaintiff ran for county commissioner. During the campaign, Ms. Bishop and Mr. Williams continued posting negative opinions and information about plaintiff. Ms. Bishop’s children’s grandfather, Mr. Forsythe, also posted negative comments about plaintiff on social media. Plaintiff lost the election.

May 28, 2021

HIPAA authorization deemed compliant despite return of no records.

by The Law Offices of John Day, P.C.

Where plaintiffs filed an Tennesseee medical malpractice (HCLA) claim on behalf of their stillborn child and made no claims “for damages for harm or injury to Savannah Jackson (‘Mother’),” the HIPAA authorization form provided by plaintiffs that identified the stillborn child as the patient and released records in his name was proper, and the claims commission was correct to deny summary judgment to defendants. The fact that the health care providers did not have records under the child’s name and thus did not disclose any records in response to defendants’ request did not change that analysis. In Jackson v. State, No. E2020-01232-COA-R9-CV (Tenn. Ct. App. April 20, 2021), plaintiffs were the parents of a stillborn child. Plaintiffs sent proper pre-suit notice with a HIPAA authorization to defendant, and the authorization stated that the patient name was “Branson Vance Jackson,” the name of the deceased child. Plaintiff mother signed the authorization in her capacity as the mother, but no HIPAA authorization was sent regarding the mother’s files, as no “claim was presented for damages for harm or injury” to the mother.

The State sent the HIPAA authorization to four medical providers who were sent notice and identified by plaintiff, and none of the providers produced any medical records in response to the request. Two providers specifically responded that they had no record of a patient with that name or date of birth on file.

May 10, 2021

Summary judgment reversed where tombstone fell and injured plaintiff.

by The Law Offices of John Day, P.C.

Where plaintiff responded to a summary judgment motion by “offering proof of the cause of her injuries” from which a “rational trier of fact” could find in her favor, summary judgment should not have been granted. In Davis v. Keith Monuments, No. E2020-00792-COA-R3-CV (Tenn. Ct. App. April 29, 2021), plaintiff was injured when she was visiting her brother’s grave and the tombstone fell onto her hand. Plaintiff filed this negligence suit against defendant, alleging in the complaint that defendant was “negligent in the construction, placement, and maintenance of the gravestone.”

Defendant moved for summary judgment, and the trial court granted the motion. The trial court ruled that there was “not sufficient proof that [defendant] used the wrong adhesive or otherwise improperly installed the gravestone,” and that there were other reasonably probable causes, including that the gravestone could have been run over by lawnmowers or other vehicles. On appeal, summary judgment was partially reversed.

May 5, 2021

Insurance statute did not create private right of action for general contractor

by The Law Offices of John Day, P.C.

The Tennessee Supreme Court recently explained the analysis for whether a statute creates a private right of action.

In Affordable Construction Services, Inc. v. Auto-Owners Insurance Company, No. M2020-01417-SC-R23-CV (Tenn. April 26, 2021), plaintiff was a general contractor who had been hired to repair property owned by a property association that had been damaged by severe weather. When the association and defendant insurance company settled the matter, defendant issued a check payable only to the association. Plaintiff general contractor brought this action in chancery court, asserting that it had a private right of action pursuant to a Tennessee statute. The case was removed to federal court under diversity jurisdiction, and the district court certified three questions to the Tennessee Supreme Court. The only question considered by the Court, because it was dispositive of the case, was whether the statute cited by plaintiff created a private right of action.

Tenn. Code Ann. § 56-7-111 states that “when an insured property owner’s home or other structure sustains more than $1,000 in damages, the property or casualty insurance company shall name the general contractor of an uncompleted construction contract as a payee when issuing payment to the owner for the loss.” The issue here was whether plaintiff general contractor could bring a private right of action against defendant insurance company who failed to include plaintiff as a payee on the insurance proceeds.

May 4, 2021

Traffic Citations: Their Impact on Statutes of Limitations in Tennessee Personal Injury and Wrongful Death Cases

by The Law Offices of John Day, P.C.

My newest column it Tennessee Bar Journal: Traffic Citations: Their Impact on Statutes of Limitations in Personal Injury and Wrongful Death Cases.”

April 29, 2021

Second Pre-Suit Notice Required After Voluntary Dismissal of First HCLA Complaint

by The Law Offices of John Day, P.C.

Where plaintiff nonsuits a complaint that contains medical malpractice (now known as health care liability action or “HCLA”) claims then later re-files a different complaint containing HCLA claims against the same defendant, she must give a new, separate pre-suit notice for the re-filed complaint.

In Byington v. Reaves, No. E2020-01211-COA-R3-CV (Tenn. Ct. App. April 20, 2021), plaintiff was treated by defendant for cancer on her nose. The treatment recommended by defendant eventually led to “removal of [plaintiff’s] right nostril, leaving her noticeably disfigured.” Plaintiff sent pre-suit notice of her HCLA claims on April 23, 2019 to defendant doctor and clinic, then filed a complaint the next day on April 24, 2019. This first complaint alleged that defendants fraudulently induced plaintiff into going through with the surgery, that there was a lack of informed consent due to the fraudulent inducement, that defendant doctor “failed to adhere to the standard of care,” and that defendant doctor did not tell plaintiff about alternative treatment options.

Defendants filed a motion to dismiss, asserting that plaintiff failed to comply with the HCLA by providing them pre-suit notice less than 60 days prior to filing her complaint, and that plaintiff failed to file a certificate of good faith. Plaintiff then voluntarily dismissed this first complaint.

April 27, 2021

TN GTLA immunity retained where claim related to excessive use of police force.

by The Law Offices of John Day, P.C.

Where plaintiff’s Tennessee GTLA claims all related to the allegation that airport officers used excessive force when interacting with and eventually detaining him, defendant airport authority “retained immunity under the civil rights exception in [Tenn. Code Ann.] § 29-20-205(2).” In Nichols v. Metropolitan Nashville Airport Authority, No. M2020-00593-COA-R3-CV (Tenn. Ct. App. April 15, 2021), plaintiff was asked to leave the Nashville airport by airport police officers. While the officers were escorting plaintiff to the exit, they “attempted an ‘arm bar’ restraint,” which led to plaintiff falling and sustaining facial injuries.

Plaintiff filed this suit under the GTLA, asserting claims against the airport authority for “(1) negligence; (2) negligent infliction of emotional distress; and (3) negligent hiring, training, supervision, and retention.” Defendant filed a motion to dismiss, arguing that this claim arose out of civil rights and that immunity was therefore retained under the GTLA. Although the trial court initially denied the motion, it granted the motion after the opinion in Cochran v. Town of Jonesborough, 586 S.W.3d 909 (Tenn. Ct. App. 2019), was designated for publication. On appeal, dismissal was affirmed.

April 22, 2021

Failure to Address Each Ground of Dismissal on Appeals – Dismissal Affirmed

by The Law Offices of John Day, P.C.

Where plaintiff alleged negligence per se and invasion of privacy based on the unauthorized access and disclosure of her medical records, but she failed to allege in her complaint that the disclosure was made by an employee or agent of defendant or “otherwise explain how [defendant] could be liable for the actions” of another legal entity, and she failed to address an independent ground for dismissal in her appeal, dismissal was affirmed.

In Prewitt v. Saint Thomas Health, No. M2020-00858-COA-R3-CV (Tenn. Ct. App. April 14, 2021), plaintiff filed a pro se complaint against defendant Saint Thomas Health asserting claims for negligence per se and invasion of privacy. Plaintiff’s complaint alleged that she was treated and gave birth at a hospital owned and operated by defendant, and that the father of the child subsequently obtained information about the child’s birth from the hospital. Specifically, the complaint read: “[T]he plaintiff received documents that included the date of her Cesarean section that took place at Defendant Saint Thomas’ hospital. The information had apparently been disseminated and obtained by a violent and abusive man.”

April 21, 2021

HIPAA authorization single-provider exception did not apply where 21 providers were sent HCLA pre-suit notice.

by The Law Offices of John Day, P.C.

Where an HCLA plaintiff sent pre-suit notice to twenty-one healthcare providers but failed to provide HIPAA authorizations for at least nineteen of those providers, dismissal was affirmed. In Shaw v. Gross, No. W2019-01448-COA-R3-CV (Tenn. Ct. App. April 13, 2021), plaintiff filed suit as the administrator of the decedent’s estate after decedent died of sepsis. Decedent had presented at defendant hospital and been treated by defendant doctor before being released with a dehydration diagnosis, but he returned to defendant hospital the next day and was diagnosed with sepsis, which eventually led to his death.

Before filing her complaint, plaintiff sent pre-suit notice to defendant hospital, defendant doctor, and nineteen other medical providers. After an initial grant of summary judgment, appeal, and remand, defendants filed motions to dismiss on the basis that plaintiff’s HIPAA authorizations sent with her pre-suit notice were incomplete, and that the HIPAA authorizations did not allow defendants to obtain records from the nineteen other providers that were sent notice. After the motion to dismiss was filed, plaintiff amended her complaint, alleging that “all doctors and providers to include Dr. Gross only saw and treated Decedent at Methodist Hospital.” The trial court granted the motion to dismiss, finding that plaintiff had failed to comply with the pre-suit notice requirements and thus was not entitled to the 120-day extension of the statute of limitations, making her complaint untimely, and the Court of Appeals affirmed.