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If an HCLA plaintiff fails to provide proper pre-suit notice and files her first complaint after the statute of limitations has passed (but within the 120-day grace period), her case will not be saved by voluntarily dismissing and trying to use the savings statute to refile.

In Dortch v. Methodist Healthcare Memphis Hospitals, No. W2017-01121-COA-R3-CV (Tenn. Ct. App. Feb. 5, 2018), plaintiff filed a health care liability suit against defendants based on the death of her son following a surgery on April 3, 2014. On April 6, 2015, plaintiff’s counsel served a purported pre-suit notice of her HCLA claim on defendants, pursuant to Tenn. Code Ann. § 29-26-121. This notice contained HIPAA authorization forms that “only permitted the recipient entity to send the medical records of [the deceased] to plaintiff’s counsel.” The statute, however, requires that the HIPAA forms included with the notice permit “the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.” (Tenn. Code Ann. § 29-26-121(a)(2)(E)).

Plaintiff filed her initial complaint on July 1, 2015, after which defendants filed a motion to dismiss based on the deficiencies in the pre-suit notice. Plaintiff then filed a notice of voluntary dismissal, and an order of dismissal was entered on September 17, 2015.

On July 6, 2016, plaintiff sent a second pre-suit notice to defendants, then she re-filed her complaint on September 16, 2016. Defendants moved to dismiss this complaint, alleging that plaintiff’s first complaint was untimely and that she was thus not entitled to take advantage of the one-year savings statute. The trial court agreed, granting the motion to dismiss, and the Court of Appeals affirmed.

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If a plaintiff originally names a defendant then later voluntarily dismisses that defendant, the plaintiff may be able to re-name the defendant in an amended complaint pursuant to Tenn. Code Ann. § 20-1-119 after another defendant asserts comparative fault against the previously nonsuited defendant. This result may not be affected by the fact that the same defendant was named as a potential comparative tortfeasor in the answer to the original complaint.

In Scales v. H.G. Hill Realty Co., LLC, No. M2017-00906-R3-CV (Tenn. Ct. App. Jan. 30, 2018), plaintiff fell in a grocery store on February 19, 2014. She filed suit against four entities that owned or operated the store on December 4, 2014 for various negligence and premises liability claims. The defendants included two entities related to Publix (the Publix defendants) and two related to the owners of the property (the Hill defendants). The Publix defendants filed an answer on January 8, 2015, in which they asserted as an affirmative defense the comparative fault of the Hill defendants.

After serving discovery requests on plaintiff, the Hill defendants filed a motion to compel. Plaintiff subsequently voluntarily dismissed the Hill defendants, with an order of dismissal without prejudice being entered on May 29, 2015.

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A door that opened into a lobby area and had no warning signs has been held to not be a dangerous condition under certain circumstances.

In Wimmer v. Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System, No. E2017-00352-COA-R3-CV (Tenn. Ct. App. Jan. 26, 2018), plaintiff had just finished a doctor’s appointment and was waiting for a van from her assisted living facility to pick her up. So that she could see the van approaching, she was standing just inside the building near the glass sliding entry doors, but she was not in the vestibule area between two sets of sliding doors. While she was waiting, a man in scrubs opened a door from a fire stairwell that opened into the lobby, and the door hit plaintiff, knocking her over and injuring her. The door was a “wooden door with a black metal frame surrounded by red brick.” Plaintiff testified that she “did not see the door until after she was hit,” and that she “didn’t even realize there was a door at that time because I wasn’t paying any attention to the fact that there might be a door there.” The door did not have any warning that it opened into the lobby, and it did not have a window panel, so people coming through the door could not see whether there was anyone on the other side.

At trial, both sides presented expert testimony. When asked whether the door was a dangerous condition, plaintiff’s expert testified that “as you learn more about what occurred, you can see why things could become hazardous, if certain sets of circumstances were to prevail…” He also testified that it would have been appropriate for the door to have a warning, and that if there had been a panel of glass in the door, it “may not stop it from happening, but they’ll at least have some idea that it’s getting ready to happen.” Plaintiff also called as a witness one of defendant’s former security employees, who testified that the door in question was “an odd door,” and that there were a few doors at defendant’s facility “that you can be standing there and someone may push that door out and you may not be—they may not know someone is standing on the other side.” He stated that he had taken reports of people being injured by doors during his employment with defendant.

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When a potential personal injury defendant dies after an alleged tort, the survival statute will extend the running of the statute of limitations “for a maximum of six months from the date of the death of the tortfeasor or until a personal representative has been appointed.” The fact that a plaintiff may not have actually discovered the death of the potential defendant is not relevant to the tolling of the statute of limitations.

In Putnam v. Leach, No. W2017-00728-COA-R3-CV (Tenn. Ct. App. Jan. 23, 2018), plaintiff was injured in a car accident when defendant crossed the center line and struck her vehicle. The accident occurred on February 2, 2015. Defendant died on January 4, 2016, though plaintiff was unaware of this death. Plaintiff filed suit against defendant on February 2, 2016, and service was returned on February 26, 2016 with a note “indicating that [defendant] was deceased.” Plaintiff’s attorney, however, did not read the note at that time. On July 18, 2016, plaintiff called her attorney to check on the case, at which time the attorney saw the note indicating that defendant was deceased. On October 21, 2016, plaintiff petitioned the probate court to appoint an administrator ad litem, and plaintiff filed an amended complaint naming the administrator ad litem on October 31, 2016.

Defendant administrator filed a motion to dismiss, asserting that plaintiff’s complaint was not timely filed. The trial court granted the motion, and the Court of Appeals affirmed.

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A plaintiff’s claim for assault and battery within a medical facility may not fall under the HCLA, and thus not be subject to its pre-suit notice and certificate of good faith requirements.

In C.D. v. Keystone Continuum, LLC d/b/a Mountain Youth Academy, No. E2016-02528-COA-R3-CV (Tenn. Ct. App. Jan. 22, 2018), plaintiff, a minor, was a resident of defendant youth residential treatment facility, which the Court described as part mental healthcare facility and part detention center. According to plaintiff, an employee who was a “third shift night guard” was responsible for taking plaintiff to the bathroom so he “could get ready for the day,” and on one particular occasion, the employee and the plaintiff had a disagreement during which the employee eventually “grabbed [plaintiff’s] right shoulder and pushed the back of [his] left shoulder, causing [him] to turn and fall to the ground.” Plaintiff alleged that while he was lying on the ground, the employee “stomped on [his] right foot.” Defendant disputed plaintiff’s description of the employee as a night guard, instead calling him a “mental health associate.”

Defendant filed a motion to dismiss, arguing that all of plaintiff’s claims were subject to the HCLA and that his failure to provide pre-suit notice and a certificate of good faith were thus fatal to his claim. The trial court agreed, dismissing the mother’s action with prejudice and the minor’s without prejudice (apparently making this distinction solely because he was a minor).

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When an medical malpractice defendant files a third-party complaint based on a contractual indemnity provision, that third-party complaint may not fall within Tennessee’s Health Care Liability Act.

In Johnson v. Rutherford County, Tennessee, No. M2017-00618-COA-R3-CV (Tenn. Ct. App. Jan. 11, 2018), plaintiffs sued various government entities for extreme injuries their son received when attacked by another inmate in the Rutherford County Adult Detention Center. In an amended complaint, plaintiffs alleged that the director of health services at the jail had been warned about the other inmate’s violent tendencies. When filing its answer, the County also filed a third-party complaint against the director of health services’ employer, Rudd Medical Services, which was the “entity that provided medical services to prisoners housed” at the jail. “The County alleged that it had entered into a contract with Rudd for the provision of health care services to inmates, which contract contained a clause requiring Rudd to indemnify and hold the County harmless from any claims based upon…the actions of Rudd employees.”

Rudd filed a motion to dismiss, asserting that the third-party complaint fell within the parameters of the HCLA and that the County had failed to file a certificate of good faith. The trial court granted the motion, but the Court of Appeals overturned the dismissal.

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A new study reveals that “diagnosis-related events are the single largest root cause of medical professional liability claims.”

The study “provides insight into the root causes of diagnosis-related claims based on an analysis of 10,618 closed medical professional liability claims at Coverys across a five-year period (2013-2017).

The study found that 33% of all claims and 47% of all indemnity payments in the five years of claims that were studied.  A whopping 54% of diagnosis-related claims results in serious injury and 36% result in death.

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When a plaintiff asserts the discovery rule as a response to a statute of limitations defense, some documents covered by the attorney-client privilege may become discoverable.

In Outpost Solar, LLC v. Henry, Henry & Underwood, P.C., No. M2016-00297-COA-R9-CV (Tenn. Ct. App. Dec. 29, 2017), “two companies brought suit against their former attorney for legal malpractice.” Defendant attorney moved for summary judgment based on the statute of limitations, and plaintiff “responded that it learned of its cause of action within one year of the assertion of the claim.” Defendant tried to use discovery requests to obtain communications between plaintiff and the new attorney, but plaintiff refused, asserting the attorney-client privilege. Defendant moved to compel production, which the trial court granted, “holding that the client impliedly waived attorney-client privilege in asserting that the client discovered the cause of action within the year preceding the assertion of the claim.”

The trial court appointed a special master “to determine whether any of the 151 documents which [plaintiff] had withheld from production as privileged were relevant to [defendant’s] statute of limitations defense.” The special master found that eight were relevant, and the trial court ordered that those eight documents be produced, noting that “plaintiffs put their privileged information at issue by pleading the discovery rule.” On appeal, the decision and process was affirmed.

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The American College of Trial Lawyers recently released on white paper on attorney-client privilege.  The paper updates an earlier publication on the subject.

The paper is an excellent summary of the law in this area, and is especially helpful to those of us in smaller states that have a less established body of law in this field.

 

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When a trial court awards punitive damages, it must engage in sufficient analysis on the relevant factors, and its “order must clearly demonstrate how each factor impacted the court’s decision.”

In Cox v. Cox, No. E2016-01097-COA-R3-CV (Tenn. Ct. App. Dec. 29, 2017), plaintiff husband filed suit against defendant wife for both a divorce and an assault tort claim. Prior to the lawsuit, wife had “entered the marital residence and stabbed husband twice in the neck.” Wife stipulated to the divorce and assault, so the only issue was damages.

In the trial court, husband testified that “as a result of his injuries, he missed one month of work and lost approximately $20,000 in income,” but later admitted that “he had never reported $20,000 in business income in previous years.” He also testified that since the stabbing, he had been forced to reduce his work hours as a mechanic. Husband did not submit any medical bills or expert testimony during the proof portion of the case, but the court allowed him to submit invoices from his doctor after the hearing. The trial court ultimately awarded husband $15,000 in compensatory damages and $10,000 in punitive damages on his tort claim.

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