Day on Torts

Want to protect patients and reduce the cost of medical malpractice insurance?  Identify and insist on retraining for the 1% of doctors who account for 32% of medical malpractice claims.

In Willis v. McDonald’s Restaurants of Tennessee, Inc., No. E2015-00615-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015), plaintiff’s inability to prove the cause of her fall proved fatal to her premises liability action. Plaintiff and her husband entered a McDonald’s restaurant that they had been to several times. Husband sat at…

In 2007, the Tennessee legislature enacted Tenn. Code Ann. § 44-8-413, which addresses injuries caused by dogs. This statute draws a distinction between (1) injuries caused by a dog “running at large” and (2) injuries caused by a dog on its owner’s property. For the latter group, the statute provides…

A continued problem for HCLA plaintiffs seems to be complying with the requirement to provide a HIPAA authorization with their pre-suit notice. In Dolman v. Donovan, No. W2015-00392-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015), another HCLA claim was dismissed due to the inadequacy of plaintiffs’ HIPAA authorizations. Plaintiffs’ claims related…

In 2011, the Tennessee legislature amended Tenn. Code. Ann. § 28-1-106 regarding tolling of statutes of limitations, replacing the language “of unsound mind” and “after the removal of such disability” with “adjudicated incompetent” and “after legal rights are restored.” The current version of the statute reads: If the person entitled…

The medical community in Tennessee doesn’t want judges and juries to know how much money they make from testifying as expert witnesses.   So they have persuaded two members of the General Assembly to introduce legislation that applies not only to medical doctors but to every type of expert witness.…

In Steele v. Primehealth Med. Center, P.C., No. W2015-00056-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2015), the  Tennessee Court of Appeals affirmed summary judgment for defendant in a premises liability case, “concluding that the plaintiffs presented insufficient evidence to demonstrate that the sidewalk [at issue] was unreasonably dangerous.” Plaintiff was an…

In a case that could have only arisen in Shelby County,  Weatherspoon v. Minard, No. W2015-01099-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2015), the Court of Appeals affirmed a trial court’s decision to dismiss a health care liability claim after excluding the plaintiff’s expert witness five days before trial. The alleged…

The HIPAA release required by the Health Care Liability Act and the standards for HIPAA compliance continue to be a litigated issues in this evolving area of Tennessee law. In Bray v. Khuri, No. W2015-00397-COA-R3-CV (Tenn. Ct. App. Dec. 3, 2015), plaintiff was the surviving spouse of a patient who…

In Kuhn v. Panter, No. M2015-00260-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2015), the Court of Appeals affirmed a finding of gross negligence against the owners of a mini storage facility. Here, defendants had advertised the mini storage facility as “clean and dry.” Plaintiffs rented one of the units in 2011…