Articles Posted in Tort Reform

This week, the Tennessee Supreme Court overruled Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008), “return[ing] to a summary judgment standard consistent with Rule 56 of the Federal Rules of Civil Procedure.”

In Rye v. Women’s Care Center of Memphis, PLLC, No. W2013-00804-R11-CV (Oct. 26, 2015), plaintiff had Rh negative blood, and defendant failed to test and subsequently treat her with a specific injection during her third pregnancy. Because she was not treated, plaintiff became Rh-sensitized. The record contained extensive testimony regarding the risks to plaintiff and to any future pregnancies. Essentially, regarding future children, the evidence showed that if several contingencies occurred—“a future pregnancy, an Rh positive fetus, antibodies crossing the placenta—it [was] undisputed that the unborn fetus would face a number of risks, ranging from mild to severe.” Because plaintiff and her husband were Catholic, they asserted that they were limited in what steps they could take to avoid future pregnancies. Regarding the harm or risks to plaintiff herself, plaintiff’s own expert testified that the risk to her was that if she had an emergency situation and needed blood, the transfusion process could be longer because finding a match for sensitized blood could take more time.

Plaintiffs’ complaint asserted causes of action for health care liability, negligent infliction of emotional distress (NIED) for both plaintiff and her husband, and disruption of family planning. Defendants moved for summary judgment, arguing that the plaintiffs had “no existing actual injuries or damages resulting from the deviation,” that plaintiffs had “failed to allege future injuries to a reasonable medical certainty,” and that plaintiffs did not properly support their NIED claims. The trial court granted summary judgment as to all claims “for future damages to [plaintiff] arising from blood transfusions or future pregnancies,” finding that those damages had “yet to be sustained” and were speculative. The trial court also granted summary judgment on husband’s NIED claim, as he had not suffered physical injury and had not offered the required expert proof for an emotional distress action. Finally, the trial court granted summary judgment as to plaintiff’s “independent cause of action for disruption of family planning,” finding that Tennessee did not recognize such a claim. The court, however, denied summary judgment on plaintiff wife’s NIED claim, ruling that there was a genuine issue of material fact as to whether the change in her blood constituted a physical injury and also holding that she would be allowed to present evidence regarding how her family plans had changed as an element of her damages.

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The Tennessee Supreme Court has ruled that the constitutionality of the artifical cap on non-economic damages in tort cases should not be examined by the courts until after a plaintiff receives a verdict in excess of the cap.

The decision comes in the Clark case out of Chattanooga.   The trial judge in that case ruled that the caps were unconstitutional.  Tennesssee’s High Court said the ruling was premature.  The Order can be reviewed by clicking on the link below

From a practical standpoint, this means that a supreme court review of the caps is at least two years off.  Why?  Because that is how long it takes, on average, from a verdict to go through the entire appellate process.   It is possible that a case with a verdict over the caps is in the pipeline right now but I have not heard of such a pending case.   Please let me know via a comment if you are aware of one.

The Tennessee Supreme Court just issued an important decision regarding how to decide whether a claim falls under the Health Care Liability Act (HCLA) or ordinary negligence. In Ellithorpe v. Weismark, No. M2014-00279-SC-R11-CV (Tenn. Oct. 8, 2015), the Court held that the previous nuanced approach detailed in Estate of French v. Stratford House, 33 S.W.3d 546 (Tenn. 2011) had been abrogated by the HCLA amendments passed by the Tennessee legislature in 2011, and that the definition contained in the HCLA is now the authority under which a court should determine whether a claim falls under the HCLA.

In Ellithorpe, plaintiffs were the biological parents of a minor child but had lost custody of the child. The custodian arranged for and/or permitted defendant social worker to provide counseling to the child without the parents’ knowledge or consent. When the parents found out about the counseling, they brought this claim against defendant social worker. It was undisputed that the parents did not give pre-suit notice or file a certificate of good faith pursuant to the HCLA.

Defendant filed a motion to dismiss based on parents’ failure to comply with the HCLA, to which parents responded that their claims sounded in ordinary negligence. The trial court, however, granted defendant’s motion and dismissed the complaint, verbally ruling that “the THCLA was very broad and encompassed Parents’ claims because they related to the provision of health care services by a health care provider as those terms are defined by statute.”

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A recent Tennessee Court of Appeals case dealt with the distinction between health care liability cases and claims of ordinary negligence. In Coggins v. Holston Valley Medical Center, No. E2014-00594-COA-R3-CV (Tenn. Ct. App. June 15, 2015), plaintiff filed suit alleging that she tripped over a feeding tube that had been left near a friend’s bed that she was visiting at the defendant medical center. Plaintiff was not a patient at the time of the incident, but was merely visiting her acquaintance there. Before filing suit, plaintiff provided defendant with pre-suit notice under the HCLA. Accordingly, plaintiff relied on the 120-day extension of the statute of limitations provided by the HCLA. The trial court, however, determined that plaintiff’s suit sounded in ordinary negligence, specifically premises liability, and dismissed the case as untimely.

On appeal, the Court’s first task was to determine whether this case fell under the HCLA. Plaintiff’s fall occurred in August 2011. The Tennessee legislature adopted major amendments to the HCLA in 2011, including a definition of “health care liability action,” but that definition did not take effect until October 1, 2011, after plaintiff’s fall. The trial court, then, incorrectly used that definition to examine plaintiff’s case, as that portion of the HCLA was not applicable here. Instead, the Court of Appeals looked to the Supreme Court’s analysis in Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), to determine what type of claim plaintiff was asserting here.

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In Kerr v. Thompson, No. W2014-00628-COA-R9-CV (Tenn. Ct. App. June 9, 2015), the Court of Appeals recently followed the Tennessee Supreme Court’s lead and held that a certificate of good faith (one must be filed with the complaint in medical malpractice cases) that did not state that the executing party had zero prior violations was still “fully compliant” with the Healthcare Liability Act (HCLA). This was the first opinion from the Court of Appeals following the Supreme Court’s binding decision on this issue in Davis v. Ibach, No. W2013-02514-SC-R11-CV (Tenn. May 29, 2015).

In Kerr, plaintiff filed a certificate of good faith but the certificate failed to state the number of prior violations as required by Tenn. Code Ann. § 29-26-122. The party executing the certificate, plaintiff’s attorney, had no prior violations. In its opinion, the Court quoted from the Davis case, stating that the HCLA “does not require disclosure of whether or not there have been any prior violations.…Logically, if there have not been any prior violations, there is no ‘number of violations’ to disclose.” Accordingly, the Court determined that plaintiff’s “failure to indicate the absence of any prior violations does not constitute a ‘failure…to file a certificate of good faith in compliance with Tennessee Code Annotated Section 29-26-122[.]” Plaintiff’s certificate of good faith was held to be fully compliant with the statute and the case was remanded to the trial court.

While this case adds nothing new beyond what the Supreme Court decided in Davis, it is good to see that this issue has been settled in this reasonable way. Plaintiffs who are dealing with this question should of course cite to Davis when making their case, but this new Court of Appeals opinion can lend additional support to the argument that stating that there have been zero prior violations is not required.

In Arden v. Kozawa, No. E2013-01598-SC-R11-CV (Tenn. June 30, 2015), the Supreme Court addressed the issue of whether a plaintiff in a medical malpractice ( now known as a “health care liability” ) lawsuit can send pre-suit notice via a commercial carrier like FedEx instead of through the U.S. mail. The Court’s sensible and clearly correct conclusion was that service by FedEx was allowed, finding that “[a]s long as a defendant is not prejudiced, it does not matter whether a commercial carrier or the U.S. Postal Service delivers the notice.”

In Arden, plaintiff gave proper notice in a timely fashion before filing a health care liability (HCLA) suit. The problem, as defendants pointed out in their motion for summary judgment, was that plaintiff sent the notice via FedEx Priority service. Tenn. Code Ann. § 29-26-121(a)(4) states that completion of the mailing requirements in the notice statute “shall be demonstrated by filing a certificate of mailing from the United States Postal Service stamped with the date of mailing and an affidavit of the party mailing the notice establishing that the specified notice was timely mailed by certified mail, return receipt requested.” Defendants did not assert that the notice was insufficient, untimely, or not received, but instead argued that plaintiff had failed to comply with the statutory pre-suit notice requirements by using FedEx instead of the post office. The trial court agreed, dismissing plaintiff’s case, and the Court of Appeals affirmed.

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In Hughes v. Henry Co. Med. Center, No. W2014-01973-COA-R3-CV (Tenn. Ct. App. June 9, 2015), plaintiffs filed a health care liability action against defendants Henry County Medical Center (“HCMC”) and Dr. Gold. The defendants filed motions to dismiss alleging that plaintiffs failed to comply with the pre-suit notice requirements in Tenn. Code Ann. § 29-26-121. Specifically, defendants asserted that plaintiffs did not include a HIPAA-compliant medical authorization as required by the statute because the authorization did not permit the providers receiving the notice to obtain medical records from each other. The form provided to defendants only allowed HCMC to use its own records in the suit.

Plaintiffs admitted that the form was technically deficient but argued that defendants were not prejudiced because “Dr. Gold only saw [plaintiff] at HCMC and had no records independent of HCMC’s records.” In fact, during the hearing on the motions to dismiss, “counsel for HCMC conceded that Dr. Gold had no records, and there was no actual prejudice in view of this fact.” Nevertheless, the trial court dismissed the action due to plaintiffs’ failure to substantially comply with the statutory requirements. Plaintiffs appealed this decision as to HCMC, and the Court of Appeals overturned the dismissal in favor of that defendant.

The Court rejected HCMC’s argument that prejudice need not be analyzed since the plaintiffs “plainly and entirely failed to substantially comply” with the statutory requirements. Instead, the Court noted that in Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547 (Tenn. 2013), the Tennessee Supreme Court stated that “in determining whether a plaintiff has substantially complied with a statutory requirement, a reviewing court should consider the extent and significance of the plaintiff’s errors and omissions and whether the defendant was prejudiced by the noncompliance. Not every non-compliant HIPAA medical authorization will result in prejudice.”

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The Tennessee Supreme Court recently issued an opinion reversing several poorly decided lower court cases regarding the failure to disclose zero prior violations on a Healthcare Liability Act (HCLA) certificate of good faith. In Davis ex rel. Davis v. Ibach, No. W2013-02514-SC-R11-CV (Tenn. May 29, 2015), plaintiff filed an HCLA claim against defendant, but plaintiff’s certificate of good faith failed to state that plaintiff’s counsel had zero prior violations under the statute. Defendants moved for dismissal on the grounds that plaintiff failed to comply with § 29-26-122(d)(4), which states that a “certificate of good faith shall disclose the number of prior violations of this section by the executing party,” but before the Court could hear the motion plaintiff requested a dismissal without prejudice. The trial court allowed the dismissal, and the Court of Appeals affirmed. Defendant argued, though, that because the certificate of good faith was noncompliant the Court was required to dismiss the case with prejudice.

The Supreme Court heard the case to determine “whether the failure to indicate the absence of any prior violations of the statute constitutes a failure to comply with the requirement of section 29-26-122(d)(4).” The Court noted that the Court of Appeals had previously held that a plaintiff’s failure to disclose zero prior violations required dismissal with prejudice. (See, e.g., Vaughn ex rel. Vaughn v. Mountain States Health Alliance, No. E2012-01042-COA-R3-CV, 2013 WL 817032 (Tenn. Ct. App. Mar. 5, 2013)). The Supreme Court expressly overruled those decisions, holding that the HCLA “does not require disclosure of the absence of any prior violations of the statute.” The Court reasoned:

 [The statute] does not require disclosure of whether or not there have been any prior violations. The General Assembly easily could have worded the statute to instruct a party to disclose whether or not there have been any prior violations and, if so, the number of such prior violations. It did not do so. Logically, if there have not been any prior violations there is no “number of prior violations” to disclose.

The Court of Appeals recently released an extensive opinion in a Tennessee car accident case, full of issues regarding evidence and trial questions. Three of the findings in this opinion are critical for tort lawyers to familiarize themselves with: (1) that where there is evidence that a plaintiff could not see an approaching car, a directed verdict for the defendant was not negligent would not be appropriate; (2) that long-term care damages can be causally related to the accident and recoverable, despite the age of the plaintiff; and (3) that an award of non-economic damages should be reduced by any comparative fault finding before the statutory cap is applied.

In Monypeny v. Kheiv, No. W2014-00656-COA-R3-CV (Tenn. Ct App. April 1, 2015), a married couple who were 82 and 90 years old were driving in a vehicle that was struck by defendant. Evidence showed that prior to the accident, the husband and wife were both quite active and lived completely independently. Following the accident, however, the wife died a few months later in the hospital as a result of injuries sustained therein, and the husband went through the hospital, rehabilitation facility, and then an assisted living center, never able to live independently again. Plaintiffs filed suit for economic and non-economic damages, asserting that defendant’s driving caused the crash, while defendant responded that plaintiff husband (the driver at the time) was at fault. Because the driver of the other car was not insured, plaintiffs’ uninsured motorist carrier acted as defendant. At trial, the jury found for plaintiffs, and the Court of Appeals affirmed.

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 In Harper v. Bradley County, No. E2014-COA-R9-CV (Tenn. Ct. App. Oct. 30, 2014), the Tennessee Supreme Court clarified one aspect of the interplay between the Health Care Liability Act (“HCLA”) and the Governmental Tort Liability Act (“GTLA”). The Court held that under the current version of the HCLA, health care liability actions against governmental entities are entitled to the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121(c).

To reach its decision, the Court relied heavily on Cunningham v. Williamson County Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013). In that case, the Tennessee Supreme Court found that the 120-day extension did not apply to medical malpractice claims arising under the GTLA. The Cunningham Court noted that “in the absence of specific statutory language permitting extension of the GTLA statute of limitations, …statutory provisions inconsistent with the GTLA may not extend the applicable statute of limitations period.” Despite its holding, the Supreme Court pointed out in a footnote that the legislature amended the HCLA in 2011 to modify the definition of “health care liability action” to include “claims against the state or a political subdivision thereof.”

 In the Harper case, the plaintiff’s claim arose after the effective date of the 2011 amendments. Thus, the Court of Appeals was tasked with determining whether the 2011 language change required a different outcome regarding applicability of the 120-day extension. The Court noted that the 2011 language changes “for the first time, expressly brings governmental entities…within the ambit of the HCLA.” Accordingly, the Court held that “the 2011 amendment, now codified at Tenn. Code Ann. § 29-26-101, clearly expresses a legislative intent to extend the statute of limitations in GTLA cases where the plaintiff has met the procedural requirements of the HCLA.”