Articles Posted in Tort Reform

Tennessee’s personal injury and wrongful death jury trials and judgment amounts continue at historic lows.

In the fiscal year ending June 30, 2016, only 396 personal injury and wrongful death cases went to trial.  Of those 396  trials, only 190 were jury trials – the rest (206) were non-jury trials. For the year earlier (2014-15) there were 367 trials, 183 of which were jury trials and the balance (187) were non-jury trials.

At first glance this shows that the number of jury trials actually increased in 2015-16 190 vs. 183), but it is important to note that the number of tort cases disposed of during 2015-16 actually went up  over 10% (10,951 vs. 9695) so one would have expected an even larger increase in the number of  jury trials.  Only 3.5% of a case dispositions were resolved by a jury or non-jury trial – the other 96.5% of cases were settled or dismissed.

An article in Becker’s Hospital Review demonstrates the need for careful review of any article that purports to give information about medical malpractice (which Tennessee now calls “health care liability”) lawsuits.

The article purports to list the number of filings per state per 100,000 residents and ranks Tennesseans as the 5th highest filers of malpractice lawsuits – at the rate of 33 per 100,000 people.  That would mean that Tennesseans file about 2145 such lawsuits per year (we have a little over 6,500,000 people living here).

But that number is wrong.  Information compiled by Tennessee’s Administrative Office of the Courts demonstrates that there were 374 medical malpractice suits filed in 2013-2014 and 356 suits filed in 2014-2015. (Data is kept on a July 1 – June 30 fiscal year; 2015-2016 data is not yet publicly available). My guess is that the number of suits filed in all of 2015 was down from what it was in fiscal year 2014-2015, but even assuming that it was the same (356), the rate of filed suits was less than 5.5 per 100,000.  That simply didn’t happen.

The  Tennessee Court of Appeals recently considered an issue of first impression in Tennessee—whether a plaintiff who sues an employee and employer for negligence can proceed on direct negligence claims against the employer after the employer admits that they are vicariously liable for the employee’s negligence. After considering arguments both ways, the Court determined that in Tennessee, “an employer’s admission of vicarious liability does not bar a plaintiff from proceeding against the employer on independent claims of negligence.”

In Jones v. Windham, No. W2015-00973-COA-R10-CV (Tenn. Ct. App. Mar. 11, 2016), employee, acting within the scope of her employment with a local daycare, was transporting kids in a van when she struck a minor child. The child’s mother, plaintiff, brought an action for negligence against employee, and also asserted claims for negligence per se, negligent hiring, and negligent retention against employers, as well as a claim for punitive damages against all the defendants. In their answer, employers conceded that they were vicariously liable for any negligence attributed to employee. Accordingly, employers moved for summary judgment on the direct negligence claims against them, arguing that Tennessee should adopt a rule adopted by other states “under which a plaintiff would be prevented from proceeding on any direct negligence claim against an employer once vicarious liability has been admitted.” The trial court granted summary judgment as to all direct negligence claims against the employer, though it denied summary judgment on the punitive damages claim. This Rule 10 appeal followed.

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In a recent premises liability case, a Tennessee statute shielded the property owner from liability for a four-wheeler accident that occurred on his property. In McCaig v. Whitmore, No. W2015-00646-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2016), plaintiff and his family were attending a social gathering at defendant’s home, which consisted of around seven acres of land and a house. Defendant had ATVs, and took rides with plaintiff’s wife and son, giving them instructions about how to drive safely and what areas to avoid. Plaintiff “neither asked for nor received the same detailed instructions from [defendant].” While riding and following his wife, who was driving another ATV, plaintiff’s ATV flipped and landed on top of him, causing severe injuries.

Plaintiff filed a negligence suit, alleging that defendant was “liable to them for negligence as a result of failing to properly instruct [plaintiff] on how to operate the ATV and by failing to warn [plaintiff] of dangerous and concealed conditions on his property that were known to [defendant].” Defendant filed a motion for summary judgment, arguing that the Tennessee Recreational Use Statute (TRUS), Tenn. Code Ann. § 70-7-101 et. seq., barred recovery by plaintiff. The trial court granted summary judgment, finding that pursuant to the TRUS, defendant owed no duty to plaintiff, and the Court of Appeals affirmed.

Tenn. Code Ann. § 70-7-102 states:

  (a) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as…off-road vehicle riding…and nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes, except as provided in § 70-7-104.

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In late 2015, the Tennessee Supreme Court overturned the nuanced approach previously used to distinguish ordinary negligence from medical malpractice. In Ellithorpe v. Weismark, No. M2014-00279-SC-R11-CV, 2015 WL 5853872 (Tenn. Oct. 8, 2015), the Supreme Court held that the statutory definition of “health care liability act” contained in the amendments to the HCLA passed in 2011 statutorily abrogated the nuanced approach, and that the definition contained in the statute was now the only guidance a court should consider when determining whether a claim fell under the HCLA. This ruling greatly broadened the scope of cases falling under the HCLA, and a recent Court of Appeals case is a good illustration of the effect of the Ellithorpe holding.

In Osunde v. Delta Medical Center, No. W2015-01005-COA-R9-CV (Tenn. Ct. App. Feb. 10, 2016), plaintiff sued defendant medical center after falling and sustaining a fibular fracture while getting an x-ray taken. Plaintiff went to the medical center complaining of ankle pain and was taken to radiology. There, the “radiology technician instructed [plaintiff] to stand up on a stool.” According to plaintiff, the stool was wooden and did not have rubber tips or handrails. When plaintiff was stepping off the stool, she fell. Plaintiff alleged that the stool was uneven and faulty.

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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 to the treatment of their father at Methodist Hospital. In their suit, plaintiffs named two doctors, Methodist LeBonheur Healthcare, Memphis Vascular Center, and Memphis Radiological, P.C. as defendants. In addition to the named defendants, pre-suit notice was served on an additional three parties—another doctor, Methodist Healthcare Germantown, and Mid-South Pulmonary Specialists. “The notice letters were accompanied by three Methodist LeBonheur Healthcare medical records authorizations forms. Substantively, the three authorizations were identical, but each was signed by a different [plaintiff].”

After suit was filed, defendants moved to dismiss, asserting that the authorizations did not comply with the HCLA statute in that they “only allow[ed] the release of records from Methodist LeBonheur Healthcare” and “did not enable them to obtain the records from ‘each provider being sent a notice’ as required by statute.” In response, plaintiffs argued that the HIPAA authorizations were compliant because they authorized the release of records from “Methodist LeBonheur Healthcare and its affiliates,” and that “the doctors and other named healthcare providers were ‘affiliates’ of Methodist….” Finding that the authorizations were not statutorily compliant, the trial court dismissed the case, and the Court of Appeals affirmed.

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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.

This is the substance of HB 1466:

Except for good cause shown and pursuant to court order, a party may not discover a statement of compensation that is paid to an expert witness for any study and testimony in a case.

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 committed suicide while admitted to a hospital under defendant doctor’s care. Before filing suit, plaintiff sent a notice letter and a medical authorization form to defendant. Once plaintiff filed her complaint, defendant filed a motion to dismiss, arguing that plaintiff failed to provide a HIPAA-compliant medical authorization as required by Tenn. Code Ann. § 29-26-121(a)(2)(E) because the authorization provided “did not include a description of the information to be used and it failed to identify which health care providers were authorized to make the requested disclosure.” Plaintiff opposed the motion to dismiss, asserting that she did not have to provide a HIPAA-compliant authorization since the only health care provider at issue was defendant, and that “the form she provided was not deficient when read in conjunction with the potential claim letter accompanying it.”  The trial court agreed with defendant, dismissing plaintiff’s claim, and the Court of Appeals affirmed.

The first issue on appeal was whether plaintiff was required to provide defendant with a HIPAA-compliant authorization when defendant “was the only medical provider being sent the notice of potential claim.” In support of her argument that no medical authorization was required here, plaintiff pointed to the language of the statute, which states that a plaintiff’s written notice “shall include…[a] HIPAA compliant medical authorization permitting 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 asserted that “the inclusion of the phrase ‘from each other provider’ signals that it is unnecessary to include an authorization when only one provider is receiving the notice because that provider already has all the relevant records in its possession.”

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In early October, the Tennessee Supreme Court decided in Ellithorpe v. Weismark, 2015 WL 5853873 (Tenn. Oct. 8, 2015) that the statutory definition of “health care liability act” contained in the 2011 amendments to the HCLA abrogated the previously used nuanced approach for distinguishing between health care actions and common law negligence. In light of the broad language used in the statutory definition, the Ellithorpe decision made it highly unlikely that any negligence claim related to a health care professional would be deemed ordinary negligence, and litigants are now beginning to feel the effects of this opinion.


In Estate of Thibodeau v. St. Thomas Hospital, No. M2014-02030-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2015), plaintiff sued defendant hospital after she was injured when hospital employees failed to “properly support [her] as they attempted to transfer her from a bariatric stretcher to her automobile.” Plaintiff was on a road trip with her husband, and while in Nashville she began having arthritic knee pain. She was transported by ambulance to the hospital, and after being seen and discharged, she was assisted to her car by two registered nurses and a patient care technician. Plaintiff weighed almost 500 pounds, and the hospital employees worked with plaintiff and her husband to develop a plan to move her back to her vehicle while requiring her to stand as few times as possible because of her knee pain. The employees transferred plaintiff by bariatric stretcher to her waiting car, but when plaintiff was “near her vehicle and ready to come to a standing position, she fell and experienced the onset of ‘terrible pain’ in her left ankle.” She was then readmitted to the hospital and treated.

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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[.]”

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