Articles Posted in Uncategorized

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The Tennessee Claims Commission has exclusive subject matter jurisdiction over a claim by a plaintiff that the state “negligently supervised and retained a prison guard who sexually assaulted [an] inmate.” In Vetrano v. State, No. M2015-02474-COA-R3-CV (Tenn. Ct. App. Aug. 8, 2017), the Court reversed the claim commission’s dismissal of a negligence suit. Plaintiff alleged that she was an inmate at a state women’s prison and was sexually assaulted by a prison guard. She filed an action with the Tennessee Claims Commission alleging that “state employees negligently supervised and retained the prison guard.” According to plaintiff, another inmate had filed a complaint against the guard for assault, and the guard’s supervisors “had actual and/or constructive knowledge that [the guard] was unfit for the job of corrections officer, and it was reasonably foreseeable that he posed an actual threat of harm to the inmates with whom he came in contact.”

The State moved to dismiss the complaint, alleging that under the Claims Commission Act it “could not be liable ‘for the willful, malicious, or criminal acts of state employees.’” (citing Tenn. Code Ann. § 9-8-307(d)). The Claims Commission granted the motion, but the Court of Appeals reversed.

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Depending on the circumstances, a police officer pulling a handcuffed person by the chain linking the two cuffs may be enough to support a claim for assault and battery in Tennessee, even without evidence of a significant injury.

In Stafford v. Jackson County, Tennessee, No. M2016-01883-COA-R3-CV (Tenn. Ct. App. Aug. 4, 2017), plaintiff sued a sheriff’s deputy, the sheriff, and the county after being arrested by the deputy. The deputy had pulled plaintiff’s husband over for speeding, and plaintiff and her son arrived on the scene after hearing about it on a police scanner. Plaintiff approached the deputy, and though there was a dispute regarding what was said and how cooperative or uncooperative plaintiff was, the deputy ultimately handcuffed and arrested plaintiff for obstructing a traffic stop. Regarding the handcuffing procedure, plaintiff testified in her deposition that the officer first cuffed her right hand, then her left, “then pulled me up by the chain, by the middle of the cuff, the chain.” Plaintiff testified that when the chain was pulled, it was painful and she screamed. When she arrived at the jail, plaintiff told personnel there that her wrists and shoulders hurt, and after her release she went to the local medical center, where she was x-rayed and given medication for her blood pressure.

Plaintiff brought suit, asserting several theories of liability. The trial court granted summary judgment to defendants on all claims, finding specifically that plaintiff had not established the elements of an intentional infliction of emotional distress claim, and that plaintiff had not shown damages to support her assault and battery claim. Plaintiff appealed the dismissal of the assault and battery and intentional infliction of emotional distress claims. On appeal, summary judgment on the emotional distress claim was affirmed, but the holding on the assault and battery claim was reversed.

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In Jones v. Behrman, No. W2016-00643-COA-R3-CV (Tenn. Ct. App. June 27, 2017), the Court of Appeals affirmed dismissal of an HCLA claim for failure to file within the applicable statute of limitations

Decedent suffered from several health problems, and in February 2011 she had a capsule endoscopy. Two days later, an x-ray showed that the “capsule was still present.” The following day, tests “showed no bowel obstruction but that the capsule remained in the right lower quadrant.” On February 20, 2011, decedent was admitted to the hospital and tests revealed a bowel obstruction. A procedure was performed, and at some point “the surgeons lacerated or penetrated the small bowel, which required them to resect a portion of the bowel.” The injured site or some other part of the small bowel leaked after the surgery, and decedent developed peritonitis and sepsis. Decedent died on April 21, 2011.

On January 24, 2012, decedent’s family members sent pre-suit notice to the doctors who did the capsule endoscopy and the subsequent bowel surgery. On August 13, 2012, plaintiffs filed their HCLA suit, but that case was voluntarily dismissed on September 27, 2012. Plaintiffs then gave pre-suit notice again before re-filing suit on September 26, 2013 pursuant to the savings statute.

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In Stockton v. Ford Motor Co., No. W2016-01175-COA-R3-CV (Tenn. Ct. App. May 12, 2017), the  Court of Appeals vacated a jury verdict in a Tennessee products liability case due to a defective jury verdict form.

Plaintiff was the wife of an auto mechanic who owned his own shop. Husband worked on all types of cars, including cars made by defendant Ford. It was undisputed that for a period of time, all car manufacturers, including Ford, used asbestos in their brake pads and linings. When brake pads and linings are replaced and/or grinded to the correct size, a dust is created, and the dust “can spread into the air and can be inhaled by mechanics and bystanders.” Plaintiff wife never worked directly with the brake pads or linings, but she cleaned the store twice a week and did her husband’s laundry. In 2011, plaintiff was diagnosed with mesothelioma, which was caused by exposure to asbestos.

Plaintiff filed this products liability suit against Ford seeking compensatory and punitive damages. During a jury trial, Ford pointed out that it had sent husband “warnings that brakes and other components contained asbestos,” and that husband had received training in 1977 and 1982 “explicitly warning that breathing dust from asbestos-containing automobile products could be hazardous…” The jury found Ford 71% at fault for plaintiff’s injuries, and plaintiff was awarded a total judgment of just over $3 million, which Ford appealed.

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In Battery Alliance, Inc. v. Allegiant Power, LLC, No. W2015-02389-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2017), the Court vacated a summary judgment order for defendants because the trial court failed to state the legal grounds for summary judgment before asking counsel for defendants to draft an order.

The facts underlying this case revolved around the president and other employees of a Tennessee battery company leaving and starting a competing battery company in Florida. Plaintiff, the Tennessee company, filed suit against the Florida company and several individual defendants, citing various causes of action including intentional interference with business relationships. Defendants filed a counterclaim against plaintiff and also filed a motion for summary judgment. In response to defendants’ filings, plaintiff filed a motion to dismiss the counterclaim.

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Numbers confirm what those of us who represent patients in Tennessee medical malpractice cases thought we knew:  the number of claims paid in medical malpractice cases is declining.

Using data gather from the National Practioner Data Bank, JAMA Internal Medicine  reports that the overall rate of claims paid on behalf of physicians deceased by 55.7% from 1992 to 2014. The mean compensation payment was $329, 565. The mean payment increased by 23.3%, from $286 ,751 in 1992-1996 to $353 ,473 in 2009-2014, a rate less than the increase in inflation (and far less than the rate of health care inflation, during the period.

Why did this happen?  Here is my view:

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In Redick v. Saint Thomas Midtown Hospital, No. M2016-00428-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2016), the Court addressed the need for a certificate of good faith in an HCLA (f/k/a Tennessee medical malpractice) claim when the breach of duty question falls within the common knowledge exception, but the causation portion of the claim would require expert testimony.

Here, plaintiff was admitted to the hospital with complaints of dizziness and falling. Certain fall precautions were put into place during her stay. Five days after she was admitted, a hospital employee was assisting her in using a portable toilet and allegedly did not follow the prescribed fall precautions—the toilet was not put within reach of the bed, and the employee did not adequately assist plaintiff in getting back to her bed. Plaintiff fell when trying to return to her bed and struck the bedside table, which prompted this suit.

Before filing suit, plaintiff did not give pre-suit notice under the HCLA, and she failed to file a certificate of good faith with her complaint. In response to defendant hospital’s motion to dismiss with prejudice due to the lack of a certificate of good faith, plaintiff asserted that “her claims [fell] within the common knowledge exception such that expert proof is not required, thus forgiving her failure to file a certificate of good faith.” After a hearing, the trial court held: “While this Court finds this case is appropriate for application of the common knowledge exception, expert testimony would still be required on the element of causation to show that ‘as a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.’” On appeal, the ruling was affirmed.

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In Estate of Cunningham v. Epstein Enterprises LLC, No. W2015-00498-COA-R3-CV (Tenn. Ct. App. June 30, 2016), the Court of Appeals affirmed summary judgment in a premises liability case where an armed security guard was shot and killed while on duty at an apartment complex.

The guard worked for a security company, and the company contracted with the apartment. The contract between the two entities provided that the security company was making “no representations that the security requested is reasonably adequate for the Client’s purpose,” and that the apartment was “relying upon its own knowledge and investigation as to the number and type of security personnel required.” On the night in question, the armed guard was on duty when “criminals, apparently fleeing from a nearby apartment complex, shot and killed [him].”

The guard’s wife filed a premises liability suit against the apartment, and the defendant apartment filed a motion for summary judgment. Defendant argued that “they did not owe a duty of care to [the guard] because the risk by which he was fatally injured was inherent in the performance of his duties as a security guard.” Defendant filed a statement of undisputed, material facts, to which plaintiff did not respond. Instead, plaintiff filed a memorandum stating that she did not dispute the facts and arguing that the apartment “owed [the guard] a duty as an employee of an independent contractor working within the bounds of an invitation to perform work,” and that because the criminal acts here were foreseeable, the apartment “owed a duty to protect [the guard] from such acts.” The trial court granted summary judgment to defendant, holding that the apartment had “no duty to [the guard] to protect him from a risk inherent in the task which he was hired to perform,” and the Court of Appeals affirmed.

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Judge Thomas Brothers of Nashville has declared Tenn. Code Ann. Section 29-26 -121(f)(1) and (2) unconstitutional.    Memorandum Order – Judge Brothers

The code section allows defense lawyers in Tennessee health care liability actions virtually unfettered  ex parte communications with the plaintiff’s non-party health care providers.   The code section was adopted by the Tennessee General Assembly in an attempt to override two  Tennessee Supreme Court  decisions.

The first of those cases was Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 20o2), which held that a covenant of confidentiality between patients and their treating physicians arises because of an implied understanding between patient and doctor and from a public policy concern that private medical information should be protected.

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Justice Programs will present its annual seminar program in Knoxville, Nashville and Memphis in a few weeks.   Former Justice Penny White and former Judge Joe Riley and I started this seminar over a decade ago.  Famed mediator Howard Vogel joins us as a participant this year.

I will be speaking about torts, comparative fault, and preparation for taking meaningful depositions.   Other topics are listed on the Justice Programs website.  Fifteen continuing legal education credits (which includes four ethics / professionalism / dual credits) will be awarded for those that attend the entire program

Hundreds of people attend this program every year, many coming year after year.  Please join us in

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