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As HCLA cases continue to make their way through the court system, we are learning more about what will constitute substantial compliance with the pre-suit notice content requirements. In the recent case of Harmon v. Shore, No. M2014-01339-COA-R3-CV (Tenn. Ct. App. April 23, 2015), the Court of Appeals reaffirmed what seems like an overly harsh result related to substantial compliance with the required HIPAA authorization.

In Harmon, plaintiff was injured by a procedure performed solely by Dr. Shore. Plaintiff submitted pre-suit notice to the two defendants she later named in her suit, Dr. Shore and the relevant hospital. The HIPAA form enclosed, however, only released plaintiff’s medical records to her own lawyer. Defendants filed a motion to dismiss, which was initially denied in 2013, but following a denial of Rule 9 appeal from the Court of Appeals and then a remand from the Supreme Court to reconsider in light of the holding in Stevens v. Hickman Cmty. Health Care Servs., 418 S.W.3d 547 (Tenn. 2013), the motion to dismiss was granted by the trial court.

Plaintiff did not argue that her HIPAA form strictly complied with the statutory requirements. Instead, her essential argument was that her non-compliance with the technical requirements should be excused because the defendants already had all the records at issue in this case. In her reply to defendants’ motion to dismiss, plaintiff stated:

When a plaintiff files a auto or other personal injury lawsuit, he may not be aware of all the potential defendants that should be named. Fairly often, a plaintiff may seek leave to amend his complaint and add a defendant even after the statute of limitations on the underlying claim has passed, usually citing the discovery rule as justification for this allowance. In a recent negligence case, the Tennessee Court of Appeals explored some of the limits on such allowances.

In Smith v. Hauck, No. M2014-01383-COA-R3-CV (Tenn. Ct. App. March 25, 2015), plaintiffs were in a car struck from behind by a vehicle driven by defendant on an interstate exit ramp. The accident occurred on June 25, 2012, and at the time there was no indication that defendant was driving in the course of his employment—i.e., neither defendant nor the police report mentioned this fact, and he was driving his personal car with no employer insignia. Plaintiffs filed a negligence suit on June 7, 2013, within the one-year statute of limitations, which defendant answered on August 26, 2013. Defendant’s answer did not state or allude to the fact that he was driving on employer business at the time of the accident. Four days later, plaintiffs served interrogatories and requests for production of documents on defendant. These discovery requests included items seeking information related to defendant’s employer and his purpose for driving at the time of the accident. When defendant’s responses were six weeks past due, plaintiffs filed a motion to compel on November 8, 2013. Defendant responded to the interrogatories on December 4, 2013, and for the first time in those responses stated that “he was traveling to St. Thomas Hospital to participate in surgery as part of his employment with St. Jude Medical.” On the same day they received these responses, plaintiffs filed a motion to add St. Jude Medical as a defendant. The motion was granted and plaintiffs filed their amended complaint on December 20, 2013. St. Jude then filed a motion to dismiss based on the one-year statute of limitations, which the trial court granted, but the Court of Appeals overturned.

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The Tennessee Court of Appeals recently decided Wilkins v. GGNSC Springfield, a case involving alleged nursing home abuse and neglect in which the decedent’s health care power of attorney signed an optional arbitration agreement on behalf of the decedent. The nursing home sought to compel arbitration, but the trial court denied the motion holding that the POA did not have authority to sign the arbitration agreement on behalf of the decedent. The Court of Appeals upheld this decision of the trial court.

n this case, the Court of Appeals reminds us of Tennessee law regarding powers of attorney:

The execution of a power of attorney creates a principal–agent relationship. Tenn. Farmers Life Reassurance Co. v. Rose, 239 S.W.3d 743, 749 (Tenn. 2007). “[A] person executing a power of attorney may empower his or her agent to do the same acts, to make the same contracts, and to achieve the same legal consequences as the principal would be personally empowered to do.” Id. “The language of a power of attorney determines the extent of the authority conveyed.” Id. (quoting Armstrong v. Roberts, 211 S.W.3d 867, 869 (Tex. Ct. App. 2006). “The more specific a power of attorney is concerning the performance of particular acts, the more the agent is restricted from performing acts beyond the specific authority granted.” Id. A power of attorney evidences to third parties the purpose of the agency and the extent of the agent’s powers. Id. A power of attorney “should be construed using the same rules of construction generally applicable to contracts and other written instruments, except to the extent that the fiduciary relationship between the principal and the agent requires otherwise.” Id. at 749–50 (footnote omitted). The legal effect of a written contract or other written instrument is a question of law. Id. at 750.

A defendant’s failure to seek appropriate relief when filing a motion to dismiss deprived the Tennessee Court of Appeals of jurisdiction to hear the dispute.

Plaintiff was a family owned limited partnership that held a rare collection of William Eggleston photography. The family partnership contracted with Defendant Christie’s Inc., the world renowned auction company, to sell a dozen Eggleston’s photos. After the works arrived for auction in New York, Christie’s decided to remove five of the prints from the scheduled list of items up for sale, and then later Christie’s withdrew six more after their authenticity was called into question by the Eggleston Artistic Trust. Only one of the partnership’s photographs was auctioned and allegedly the other eleven were not returned by Christie’s. The family partnership then sued Christie’s for its refusal to honor the agreement to auction the Eggleston photographs.

The agreement between the parties had an alternative dispute resolution provision. Christie’s moved to dismiss but did not ask the court to compel arbitration or stay the litigation. The trial court denied Christie’s motion, finding that the language in the agreement bound only Christie’s, and not the family partnership, to submit a dispute to mediation. The court ruled that, because mediation was a condition precedent to arbitration, the family partnership was not required to arbitrate the dispute.

You won’t see the "good for the goose, good for the gander" rule articulated as such in many court opinions.  But stop by any courtroom in Tennessee on any motion day and you will hear it being argued by someone.  It is a fundamental concept that is part of the law of equity.

And here, the gander got bit square in the ass – the absolute right result.

Plaintiff bought a mobile home and entered into a retail installment contract with Defendant CMH Homes who then assigned the contract to Vanderbilt Mortgage.  Two years after the purchase, the plaintiff filed suit against both CMH Homes and Vanderbilt Mortgage alleging various theories of recovery including breach of express and implied warranties, violation of the Tennessee Consumer Protection Act, breach of contract and fraud.  Plaintiff also alleged the retail installment contract was unconscionable and void.  Defendants filed a motion to dismiss or to compel arbitration pursuant to the arbitration provision in the contract.  

Lawyers in Tennessee see more and more arbitration clauses in contracts and thus more and more people trying to avoid these provisions by arguing that the provision was waived or invalid because the contract requiring arbitration was a contract of adhesion.

In Skelton v. Freese Construction Company, Inc.  the Tennessee Court of Appeals gives us some insight into both these issues. In this case, the defendant did not file its motion to compel arbitration until three years after the commencement of the suit. During that time, the defendant had filed an answer, answered discovery and filed a motion to dismiss based on standing. 

However, in reviewing the record, the Court of Appeals determined that much of the delay had been occasioned by the plaintiff. Specifically, the plaintiff had failed to timely comply with court orders, had changed counsel and filed amended complaints to correct standing issues and other errors. In addition, some of the delay was related to the parties’ attempts to resolve the arbitration issue on their own. Moreover, the Court of Appeals noted the defendant had expressly reserved its right to arbitrate the dispute in its answer to the plaintiff’s second amended complaint and had filed its motion to compel within two months of the filing of the second amended complaint (which finally resolved the standing issues). Further, the Court of Appeals noted the defendant’s motion to dismiss was related to standing as opposed to the merits of the underlying case. All in all, there was not a "clear, unequivocal and decisive" act by the defendant which signaled its intention to forgo its right to arbitrate.

Rule 104 of the Tennessee Rules of Evidence permits the trial judge significant leeway in what may be considered in determining what evidence can be admitted at trial.  It provides as follows:

Rule 104. Preliminary questions. —(a) Questions of Admissibility Generally. —Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination the court is not bound by the rules of evidence except those with respect to privileges.

Here is subdivision (b):

My new book – Day on Torts:  A Handbook for Tennessee Tort Lawyers – was delivered yesterday (November 5).  It was promised for last week, but there were apparently some difficulties in the shipping process. 

The project started about eight months ago and the book was delivered within ten days of the original target date.  The printer did a great job getting the book out in a timely fashion despite an unexpected glitch with the texture of the copper band on the cover. 

The reason for the "thank you" is that a good number of you have already placed an order for one (or more) books.  We shipped twenty-five books yesterday and will ship about that many tomorrow.  Orders continue to arrive via

I got this comment from Steven concerning my post about the settlement of the medical malpractice lawsuit concerning John Ritter’s death:

“{T]his illustrates the insanity of the system. If a patient arrives in the ER with a ruptured AAA (abdominal aortic aneurysm), his chance of survival is ~50%. 25% die on the table. It is a very big surgery, and most die before making it to the hospital, making the actual mortality higher. An aortic dissection, can be a difficult diagnosis to make, and the surgery while not as challenging is still very difficult with a significant morbidity and mortality. Anyone who has ever had to work up chest pain knows this is part of the differential, but the odds are very small that this is the dx. Also, patients don’t show up and say I have “aortic dissection.” Doctors have to piece together many factors.
While his death is tragic, there is no guarantee that even if the doctor was superman (or superwoman) with Xray vision able to make a diagnosis instantaneously, John Ritter would have survived.
However, it is a sad story, so I guess if I was on the jury, I would listen to the sleazy trial attorney and decide to “award” the attorney some money for all his suffering. Who knows maybe the family will receive some of it.”

My response: