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August 13, 2019

Suicide and Foreseeability

Where a defendant (who happened to by a psychiatrist) knew of decedent’s past suicide attempt, knew he had just ended his relationship with her, and let the decedent stay in his home alone with an unsecured gun, the Tennessee Supreme Court reinstated the trial court’s grant of summary judgment on a negligence case against defendant related to decedent’s suicide, holding that the “suicide constitutes a superseding intervening event that breaks the chain of proximate causation.”

In Cotten v. Wilson, No. M2016-02402-SC-R11-CV (Tenn. June 19, 2019), the personal representative of decedent’s estate brought suit against defendant for negligence, seeking to “hold the defendant liable for negligently facilitating the decedent’s suicide.” Decedent was married and had a son when she met and began an affair with defendant. Decedent was a nurse at Skyline Hospital, and defendant was a psychiatrist there. Decedent divorced her husband in 2012, but she retained equal co-parenting time of her son. Two years after beginning the relationship, in October 2013, decedent moved in with defendant, at which time defendant “noticed that [she] was having frequent crying spells and seemed to be struggling with eviction, job loss, and her new job not working out.” Defendant stated that decedent was “not as energetic and motivated as she once was, and on certain days she did not take care of herself.”

August 5, 2019

No Continuance for HCLA Plaintiff Who Did Not Have Expert Affidavit After Eight Months

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

Where plaintiff’s expert witness in an HCLA case unexpectedly decided to no longer provide testimony soon before plaintiff’s response to a motion for summary judgment was due, and plaintiff sought to continue the motion and hold a hearing on possible witness tampering, the trial court erred by granting summary judgment to some defendants. For defendants not affected by the allegedly tampered-with witness, however, summary judgment was affirmed due to the plaintiff’s failure to obtain an expert affidavit in the eight months the case was pending.

In Stubblefield v. Morristown-Hamblen Hospital Association, No. E2017-00994-COA-R3-CV (Tenn. Ct. App. June 11, 2019), plaintiff filed an HCLA claim related to allegedly negligent post-operative care after a cardiac catheterization. Plaintiff named as defendants the hospital, the nurse who treated her overnight after her surgery, a physician group, and the physician who was first paged when a complication was discovered and who ordered treatment for plaintiff without actually going to the hospital to see her.

July 30, 2019

Tennessee Law of Civil Trial (Second Edition) – 2019

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

The printer just sent word that the proof for the second edition of Tennessee Law of Civil Trial has been shipped to my Brentwood office. I intend to review the proof over the weekend and place the order next week. The books should be in-hand by mid-September.

Those of you who purchased the first edition of the book should have received a letter from me giving you a discount on the second edition if you ordered it by August 10. Those who order by that date will save over 50% of the cost of the book. Those who order the book after August 10 will pay the full retail price, $119.00 plus shipping and handling and sales tax.

The second edition includes updated case law released since the book was first published in 2014. Several chapters have been substantially rewritten and updates have been made to virtually every chapter.

July 8, 2019

Corporations as “People:” How The Legal Fiction Arose

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

An interesting article in The Atlantic about how the law came to treat corporations as people.

An excerpt:

Somewhat unintuitively, American corporations today enjoy many of the same rights as American citizens. Both, for instance, are entitled to the freedom of speech and the freedom of religion. How exactly did corporations come to be understood as “people” bestowed with the most fundamental constitutional rights? The answer can be found in a bizarre—even farcical—series of lawsuits over 130 years ago involving a lawyer who lied to the Supreme Court, an ethically challenged justice, and one of the most powerful corporations of the day.

March 18, 2019

2017 Tennessee Health Care Liability Statistics – Part 1

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

The Tennessee Department of Commerce and Insurance has released the 2018 Tennessee Health Care Liability Claims Report (“Report”). The 2018 Report was released in 2019 but contains data for 2017. The Report is required as a result of legislation passed by the Tennessee General Assembly in 2004.

Some 1589 claims against Tennessee health care providers were closed in 2017. Of those, 1242 (78.6%) were claims closed other than as the result of judgment, settlement or ADR.

Some 33 claims (2.08%) were closed as a result of judgment, 8 of which were defense verdicts in prior years but affirmed on appeal in 2017. A total of 253 cases (15.92%) were settled, and another 61 (3.84%) were resolved via ADR. (Do not ask me why these numbers are kept separately or whether they are accurate.)

March 13, 2019

Certificates of Good Faith and Voluntary Dismissals Pending a Motion

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

When a motion for summary judgment in an HCLA case was based solely on the failure to file a certificate of good faith with the complaint, the trial court rightly considered it a motion to dismiss and allowed plaintiff to take a voluntary dismissal.

In Renner v. Takoma Regional Hospital, No. E2018-00853-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2019), plaintiff filed an HCLA claim against defendants, but failed to file a certificate of good faith with her complaint. Defendants filed motions to dismiss on this basis, and plaintiff subsequently filed and served a certificate of good faith. Defendants then filed motions for summary judgment, with attached affidavits, arguing that they were entitled to judgment as a matter of law due to the failure to file the certificate of good faith with the complaint. Plaintiff filed a motion for voluntary dismissal, and defendants argued that Rule 41.01 prohibited voluntary dismissal when a motion for summary judgment was pending. The trial court ruled that the proper way to challenge the lack of a certificate of good faith was a motion to dismiss, and that the motion for summary judgment filed in this case was “in fact just a restyled motion to dismiss in that there are no facts that are necessary here.” The trial judge ruled that he was going to consider the motion a motion to dismiss, and thus allowed plaintiff to take a nonsuit.

September 27, 2018

What To Do When the Tortfeasor Dies Before Suit is Filed

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

Here is the beginning of my “Day on Torts” column for the Tennessee Bar Journal on what a plaintiff should do if the tortfeasor dies before suit is filed. Click on the link to read the full text of the article.

Your new client thought she could avoid hiring a lawyer and instead work out on her own a settlement with the insurance claims representative for the other driver. The dance lasted 10 months. “Wait until the end of medical treatment.” “Sign these forms.” “Send me your medical bills.” “I need your EOB forms.” “Your employer needs to confirm in writing your lost wages.” And so on.

She (finally) has concerns about whether she is going to be treated fairly and hires you as her lawyer. You have two months to investigate and evaluate the case, and to file a lawsuit. Your chance to settle the case pre-suit is long gone.

May 4, 2018

Plaintiff Fails to Prove City Owned or Operated Drainage Pipe

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

A city government cannot be held liable in tort for a drainage problem on a road it does not own or operate caused by a malfunctioning pipe it did not install.

In Walker v. Metropolitan Government of Nashville & Davidson County, No. M2016-00030-COA-R3-CV (Tenn. Ct. App. Feb. 13, 2018), plaintiff homeowner sued defendant city “for damages to his property caused by storm water runoff under the tort theory of a temporary continuous nuisance.” Plaintiff alleged that storm water runoff from the road he lived on flooded his property, basement and foundation each time it rained, and that he had asked defendant several times to fix a malfunctioning drainage pipe. Defendant moved for summary judgment on the basis that a previous homeowner had actually installed the malfunctioning pipe and that the city was accordingly immune from suit under the GTLA. The trial court granted summary judgment for defendant, and the Court of Appeals affirmed.

The evidence submitted in support of defendant’s motion for summary judgment showed that the road plaintiff’s property was on was a state highway, not a city street, and that before plaintiff owned the property the state had “acquired a permanent drainage easement” from the former owners. The state had installed a drainage pipe that funneled water to a ditch, which then funneled water to a creek. Before plaintiff bought the property, however, the previous homeowners enclosed the ditch and put a drainage pipe under the ground where the ditch was previously located, using a mix of both concrete and corrugated metal pipe. Defendant city did not install the pipe or fill in the ditch in question.

October 17, 2017

UM Carrier Obtains Dismissal Because of Failure to Obtain Service on Driver

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

Where plaintiff failed to have service issued for over a year against the defendant driver in a car accident case, her claim against her uninsured motorist insurance carrier was barred.

In Davis v. Grange Mutual Casualty Group, No. M2016-02239-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2017), plaintiff filed suit on March 20, 2015 after a car accident, naming both the defendant driver and her uninsured motorist carrier. The suit was filed within the one-year statute of limitations for personal injury actions, but plaintiff “did not cause a summons to issue to either defendant” until April 19, 2016, which was thirteen months after the complaint was filed. The summons was issued to the driver at his last known address and was returned unserved on April 21^st by the sheriff with a notation that the driver was “not to be found in my county.”

On April 25^th, “the trial court sua sponte dismissed the action for failure to prosecute.” Plaintiff filed a motion to set the dismissal aside on May 24^th, and on the same day process for the insurance company was returned unserved. Second summonses were issued for both defendants on June 6^th and 7^th, and the driver’s was returned unserved indicating that he had died.

September 28, 2017

Confinement to Prison Isn’t “Extraordinary Cause”

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

Being incarcerated does not constitute extraordinary cause and does not waive the pre-suit notice and certificate of good faith requirements of the HCLA.

In Kinsey v. Schwarz, No. M2016-02028-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2017), a pro se prison inmate filed an HCLA suit regarding an allegedly “botched surgical procedure performed on his lower back.” Defendants included two doctors and a medical center. In plaintiff’s complaint, he stated that he “attempted to give [the two doctors] pre-suit notice on February 8, 2016 at their place of employment (or business address) by certified mail returned receipt as required…, but that both notices were returned to him as ‘refused’ by the defendants.” Plaintiff filed his complaint on March 28, 2016, without sending additional notice, and he did not attach a certificate of good faith.

Defendants filed motions to dismiss based on the lack of pre-suit notice and certificate of good faith, prompting plaintiff to file “a document entitled ‘Certificate of Good Faith’ in which he asked the trial court to waive the requirement that he file a certificate of good faith because of his alleged inability to comply due to reasons outside of his control.” Specifically, plaintiff stated that the prison doctor “refuse[d] to get involved in this case” and that his incarceration meant he was “unable to freely consult with other physicians.”