Claims Against the Government

April 6, 2016

HCLA Statute of Limitations Issue A Jury Question

A recent appeal in a claim filed under the Health Care Liability Act (HCLA) turned on when the statute of limitations began to run and whether a doctor was an employee under the Governmental Tort Liability Act (GTLA).

In Rogers v. Blount Memorial Hospital, Inc., No. E2015-00136-COA-R3-CV (Tenn. Ct. App. Feb. 29, 2016), plaintiff arrived at the Blount Memorial Hospital’s (“Hospital”) emergency room on September 8, 2012. He was treated by Dr. Bhatti (“Doctor”), who diagnosed him with and began treating him for Guillain-Barre Syndrome (“GBS”). According to plaintiff, he later found out he never had GBS, but instead had a spinal abscess, and the delay in diagnosis and treatment of the abscess “resulted in permanent and irreplaceable spinal cord damage.”

Plaintiff sent pre-suit notice of this suit to the hospital on August 20, 2013, and to the doctor on October 7, 2013. The complaint was then filed on December 13, 2013. Both defendants filed motions for summary judgment, both of which were granted by the trial court for different reasons.

For the doctor, the trial court granted summary judgment based on the statute of limitations, finding that plaintiff “was aware of facts sufficient to place a reasonable person on inquiry notice that he had suffered an injury as a result of Dr. Bhatti’s alleged misdiagnosis” on September 13, 2012, or at least by October 5, 2012. According to the trial court, plaintiff’s pre-suit notice sent on October 7, 2013, was thus sent outside the statute of limitations. Plaintiff argued, though, that “he had no reason to suspect that the initial diagnosis of GBS was incorrect until he was informed by another medical practitioner in mid-October 2012 that he never had GBS.” Plaintiff asserted that although he had continuing symptoms and was told in the hospital that he would be treated for a spinal abscess, he thought the symptoms and abscess were consequences of the GBS and was never told otherwise.

January 5, 2016

Article in TBA Journal About Comparative Fault Issue

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

The Tennessee Bar Association has published my article about the recent Moreno decision and the unintended consequences of that decision.

The article is titled “Donald Margolis, “Moreno,’ and Unintended Consequences.”

An excerpt:

November 9, 2015

Alleged Road Defect Case Rejected by Tennessee Court of Appeals

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

The Court of Appeals recently overturned a trial court’s decision that a somewhat recently reconstructed road constituted a dangerous road condition. In Church v. Charles Blalock & Sons, Inc., No. E2014-02077-COA-R3-CV (Tenn. Ct. App. Oct. 9, 2015), plaintiffs filed suit on behalf of two women who died in an automobile accident. The facts showed that a highway had been reconfigured to bypass a town. Before the construction, highway drivers had no stop signs and simply proceeded on a curvy road. The new configuration, which included a stop sign at a “T” style intersection and a subsequent turn, opened on July 13, 2009. When it opened, the new roadway had a stop sign, a white stop bar on the pavement, and a “stop ahead” sign.

After the road opened, the State learned that many drivers were failing to stop at the new sign. In an email from a TDOT engineer to superintendent of maintenance, the engineer said that rumble strips had been suggested as a possible solution at the intersection. Rumble strips were never added, but changes were made following an accident in October 2009. In December, a junction sign was added before the intersection; large “stop ahead” signs were placed 320 feet before the intersection on both sides of the road; a directional sign with an arrow was placed before the intersection; two larger stop signs were placed on both sides of the road; and a two-headed arrow sign was placed across from the intersection.

On January 23, 2010, the driver here failed to stop her car at the stop sign and instead immediately proceeded to the right. She entered the path of oncoming traffic, causing a collision which killed her and her passenger. The evidence suggested that this was most likely her first time to drive through the newly constructed intersection, as she had been recovering from a back surgery.

November 4, 2015

Medical Malpractice Plaintiff Burned by Pre-2011 Notice Law

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

Several cases have now held that the 2011 amendments to the Health Care Liability Act (HCLA), which added language referring to governmental entities, allow plaintiffs bringing an HCLA claim under the GTLA to take advantage of the 120-day extension of the statute of limitations after giving proper pre-suit notice. Recently, though, a plaintiff whose claim arose before the enactment of this amendment tried to creatively argue that she too should be allowed the extra 120 days.

In Miller ex rel. Miller v. Cookeville Regional Med. Ctr., No. M2014-01917-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2015), plaintiff’s husband had died after being given an excessive dose of blood thinners. The husband died on May 18, 2010. Plaintiff gave pre-suit notice on May 11, 2011, and then filed suit on September 8, 2011, one year and 113 days after the death. Upon motion by the defendant, the trial court dismissed the claim as untimely, relying on the Tennessee Supreme Court’s decision in Cunningham v. Williamson County Hospital District, 405 S.W.3d 41 (Tenn. 2013). In Cunningham, the Supreme Court held that the HCLA as it existed prior to the 2011 amendments did not allow GTLA plaintiffs to take advantage of the 120-day statute of limitations extension.

In the present case, the Court noted that “the relevant date in determining whether the 2011 amendment to the HCLA applies to a case is the date on which the cause of action accrues.” Since the injury here occurred in May 2010, well before the October 1, 2011 enactment date of the 2011 amendment, “the statute of limitations was not extended by giving pre-suit notice[.]”

October 6, 2015

Tennessee Effectively Reduces Statute of Limitations in Claims Filed Against the State

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

In Moreno v. City of Clarksville, No. M2013-01465-SC-R11-CV (Tenn. Sept. 18, 2015), the central issue surrounded the interplay of the 90-day window provided by Tenn. Code Ann. § 20-1-119 to add a non-party named by a defendant as a comparative tortfeasor and the process for filing a claim under the Tennessee Claims Commission Act.

Plaintiff was injured when a tree fell on his car as he was driving across a bridge on December 24, 2009. Within one year of the accident, plaintiff followed the procedure outlined by the Claims Commission and filed written notice of his claim against the State of Tennessee with the appropriate authority, the Division of Claims. The Division of Claims neither honored nor denied plaintiff’s claim within the 90-day period set out in the Claims Commission Act, and the claim was accordingly transferred to the administrative clerk of the Claims Commission. Plaintiff received an order from the Claims Commissioner on March 30, 2011, stating that he needed to file a complaint, which he did on April 14, 2011. The State filed an answer to the complaint on May 18, 2011, but did not mention comparative tortfeasors. On September 18, 2012, sixteen months after the initial answer, however, the State moved to amend its answer to name the City of Clarksville as being comparatively at fault. Pursuant to this new answer, plaintiff initially filed a motion to amend his complaint in the Claims Commission to add the City of Clarksville. He later, however, withdrew this amendment and instead filed suit against the City of Clarksville in Circuit Court.

August 11, 2015

Evidence of Injury Not Enough to Prove Fall-Down Case

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

In Newcomb v. State, No. M2014-00804-COA-R3-CV (Tenn. Ct. App. June 26, 2015), the Court of Appeals affirmed the Tennessee Claims Commission’s dismissal of a plaintiff’s premises liability action. Plaintiff fell down a flight of stairs in front of a state owned building. It was raining on the day of the injury, and plaintiff asserted that she reached out for the handrail but that it was out of reach. She argued that the handrail started one stair down from the top and that the steps had no nonskid material, both of which made the stairway unsafe.

At the Claims Commission hearing, the State called two witnesses who worked in facility administration at the building to testify. Both witnesses stated that the steps were the main entrance to the building which was used frequently, that any problems with the steps would have been “quickly noticed and corrected,” and that there had been no prior incidents on the steps. Based on this evidence, the Claims Commissioner dismissed plaintiff’s case, concluding that she “failed to prove that the steps and handrail were a dangerous condition or that, assuming they were dangerous, the State knew or should have known that they constituted a dangerous condition.” The Court of Appeals affirmed.

April 12, 2015

Ill-Maintained Bridge Leads to Premises Liability for City

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

Tennessee cities, counties and other types of governmental entities are generally immune from suit for damages arising from personal injury and wrongful death claims. However, a special law, the Governmental Tort Liability Act (GTLA), allows Tennessee cites and counties to be sued for pseronal injury or wrongful death under certain circumstances by removing that immunity.

One special circumstance where a city or county can be held responsible for a personal injury is where injury is caused by “the dangerous or defective condition of any public building, structure,…or other public improvement owned and controlled by such governmental entity.” Tenn. Code Ann. § 29-20-204(a). In order for liability to be removed pursuant to this statute, the governmental entity in question must have had actual or constructive notice of the dangerous condition. “[A] governmental entity will be charged with constructive notice of a fact or information, if the fact or information could have been discovered by reasonable diligence and the governmental entity had a duty to exercise reasonable diligence to inquire into the matter.” (Quoting Hawks v. City of Westmoreland, 960 S.W.2d 10 (Tenn. 1997)).

In Kee v. City of Jackson, No. W2013-02754-COA-R3-CV (Tenn. Ct. App. March 30, 2015), plaintiff was injured while walking across a wooden bridge from a parking area to the city fairgrounds during a flea market. The bridge was owned and maintained by the city. Plaintiff brought a premises liability claim against the city, and the trial court found for plaintiff, deeming the city liable but finding that plaintiff was 40% comparatively negligent and reducing her award accordingly. The city appealed, and the Court of Appeals affirmed the trial court’s judgment.

Plaintiff alleged that the bridge had a “broken rotten runner,” “nails sticking up in more than one place,” and that “the planks were not even and that gaps exist between the boards in various places on the bridge,” as shown by pictures taken two days after the incident. Although there was no allegation or evidence that the city had actual notice of the dangerous condition of the bridge, the Court determined that plaintiff was proceeding under the “common occurrence” theory, meaning that “a plaintiff can show constructive notice by proving that a pattern of conduct, recurring incident, or general continuing condition caused the dangerous condition.” (Quoting Benn v. Public Bldg. Authority of Knox County, 2010 WL 2593932 (Tenn. Ct. App. June 28, 2010)). Continue reading

February 3, 2015

Med-Mal Claims Under the GTLA – Limitation of Actions

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

In 2011, the Tennessee legislature amended the Health Care Liability Act (“HCLA”) to add language regarding governmental entities to the chapter. Per the amendments, health care liability action now specifically includes “claims against the state or a political subdivision thereof,” and health care provider includes “those physicians and nurses employed by a governmental health facility.” Tenn. Code Ann. § 29-26-101. The Court of Appeals first found that this language meant that the 120-day extension of the statute of limitations applies to HCLA cases that fall under the Governmental Tort Liability Act in Harper v. Bradley County, No. E2014-00107-COA-R9-CV, 2014 WL 5487788 (Tenn. Ct. App. Oct. 30, 2014). Now the Court has come to that same conclusion in two additional opinions.

Before the 2011 amendments took effect, the HCLA contained no reference to governmental entities. In Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), the Tennessee Supreme Court determined that the HCLA, as it existed prior to the 2011 amendments, did not “evince an express legislative intent to extend the statute of limitations in GTLA cases.” Accordingly, a plaintiff bringing an HCLA claim against a governmental entity was still constricted by the one-year statute of limitations and unable to take advantage of the 120-day extension granted to plaintiffs who give proper pre-suit notice.

Although the Supreme Court has not addressed the interplay of the GTLA and HCLA since the 2011 amendments took effect, the Court of Appeals has now found in three cases that, pursuant to the new language, plaintiffs suing governmental entities under the HCLA are entitled to the 120-day extension so long as they provide proper pre-suit notice. After Harper, the Court reaffirmed its reasoning in Banks v. Bordeaux Long Term Care, 2014 WL 6872979 (Tenn. Ct. App. Dec. 4, 2014). Here, plaintiff sent pre-suit notice prior to the expiration of the one-year statute of limitations then filed suit within the subsequent 120-day window. The trial court dismissed plaintiff’s claim as untimely, but the Court of Appeals reversed. After citing the changes to the HCLA and the reasoning from Harper, the Court held that “Plaintiff’s pre-suit ‘notice’ to the governmental entities was sufficient in all respects; therefore, the GTLA statute of limitations was tolled for an additional 120 days.”

November 19, 2014

Court Torpedos 911-Related Negligence Claim

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

Under the Governmental Tort Liability Act (“GTLA”), governmental entities are immune from lawsuits that arise from the “exercise and discharge” of their functions. There are a very few, specific exceptions to the GTLA listed in the statute. Due to this statutory immunity, making a case for negligence against a government agency can be quite difficult.

In Estate of Quinn v. Henderson, No. E2013-02398-COA-R3-CV (Tenn. Ct. App. Nov. 13, 2014), plaintiff brought a wrongful death suit against both the Blount County fire department and the Blount County 911 center. The action arose out of an incident wherein the deceased’s boyfriend had set fire to her attached garage while the deceased was in the home. The deceased called 911, who then dispatched the fire department. Upon arriving at the scene, however, the fire department could not immediately act. Instead, they followed fire department protocol and waited for the domestic violence situation to be secured by the police before fighting the fire and entering the home. The deceased was removed from the home after it was secured, but died two days later from smoke inhalation.

The trial court granted summary judgment for 911 and the fire department based on the GTLA, finding that the entities “were engaged in planning functions, such that their actions were immune pursuant to the [GTLA].” The trial court further based its decision on the public duty doctrine and comparative fault. The appellate court affirmed, though it based its decision on different reasons. Instead of finding that the entities were engaged in planning functions, the Court of Appeals determined that both 911 and the fire department retained immunity because both negated essential elements of plaintiff’s claims.