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June 5, 2017

Tennessee COA Reverses Order – Too Similar to that Drafted by Winning Party

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.

March 28, 2017

Medical Malpractice Claims Declining

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

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:

January 19, 2017

Certificate of Good Faith Required When Expert Must Prove Causation

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

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.

December 6, 2016

Security Guards and the Independent Contractor Rule

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

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.

November 22, 2016

Ex Parte Communications With Treating Physicians – TN Statute Ruled Unconstitutional

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

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.

November 13, 2016

Upcoming Seminar – Knoxville, Nashville and Memphis

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

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

October 23, 2016

Upcoming Seminar – Justice Programs

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

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

April 10, 2016

Vehicle Photos Allowed into Evidence in Rear-End Collision Case.

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

In Garvin v. Malone, No. M2015-00856-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2016), plaintiffs sued defendant after defendant’s van ran into the rear of plaintiffs’ car. After a jury found for defendant, the issue on appeal was whether photographs showing damage to the vehicles should have been admitted since plaintiffs had not made a claim for property damage.

Defendant was traveling behind plaintiffs, a husband and wife, when a police car traveling in the opposite lane allegedly crossed into plaintiffs’ path. Plaintiff husband was driving and slammed on the brakes. Defendant hit her brakes as well, but “was unable to prevent her van from hitting the rear bumper of the [plaintiffs’] vehicle.” Plaintiffs brought a negligence claim seeking personal injury damages and loss of consortium–$825,000 for husband and $75,000 for wife.

During trial, plaintiff husband testified that he felt a “heavy impact,” and that the accident “impacted [him] heavily.” He admitted that he had no cuts or bruises, and that his body did not touch anything during the accident, but that he was “moved around in [his] vehicle.” Likewise, plaintiff wife testified: “I wasn’t thrown; I was just thrown forward…my body didn’t hit anything except to just react.” Defendant testified, however, that the accident was much less substantial, stating that she “tapped the passenger side rear bumper, about maybe an eight-inch mark, but didn’t see any paint off or anything.”

February 24, 2016

Data on Medical Malpractice Claims Against Anesthesiologists

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

The following is taken from an article in Clinical Advisor:

A new study has revealed mostly good news for anesthesiologists – since 2005, anesthesia-related medical malpractice claims have decreased dramatically, particularly in inpatient situations. The study, “Comparison and Trends of Inpatient and Outpatient Anesthesia Claims Reported to the National Practitioner Data Bank,” examined inpatient and outpatient anesthesia-related clinician malpractice claims between 2005 and 2013. The study was presented at the 2015 Annual Meeting of the American Society of Anesthesiologists.

During the 9-year study period, anesthesia-related medical malpractice claim frequency decreased by a total of 41.4% (or 4.6% per year). Inpatient claims saw the greatest decrease (a total of 45.5%), while the decrease was significantly less in outpatient settings (a total of 23.5%). According to study author Richard J. Kelly, MD, JD, MPH, FCLM, an anesthesiologist from the University of California, Irvine School of Medicine, the proportion of claims for outpatient procedures has actually increased compared with inpatients, but the amount paid for outpatient claims is significantly less than for inpatient claims.

June 1, 2015

Summary Judgment Reversed Given Evidence of Opposing Party

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

In Chambers v. Illinois Central Railroad Co., No. W2013-02671-COA-R3-CV (Tenn. Ct. App. May 5, 2015), plaintiffs brought a negligence action against defendant for property damage sustained in a flood. A culvert ran under defendant’s railroad track, and according to plaintiffs, the failure to maintain and keep this culvert free from debris was the cause of the flooding on plaintiffs’ property.

Defendant filed a motion for summary judgment, which the trial court eventually granted on two grounds. First, the trial court found that a relevant federal regulation “substantially subsumed the subject matter of the plaintiffs’ state law claim,” such that if defendant had complied with the regulation the action was preempted. The trial court determined that defendant had presented uncontroverted testimony regarding the condition of the culvert before the flood and thus proved the “affirmative defense of preemption.” Second, the trial court determined that expert proof was required on this issue of causation, and since plaintiffs had no expert to contradict the condition of the culvert immediately before the flooding, plaintiffs could not prove causation, an essential element of their negligence claim. The Court of Appeals, however, reversed on both of these grounds.