Have you checked out my new blog, “Practical Procedure and Evidence?”
The blog concentrates on Tennessee procedure and evidence issues, although occasionally I review out-of-state decisions that I think may be of interest to Tennessee lawyers. Thirty-seven posts have already been published on a variety of topics of interest to Tennessee civil practice lawyers.
Stop by for a visit. And add it to your bookmarks.
Where an Tennessee HCLA plaintiff’s HIPAA authorization had an error in the “purpose” section, but the potential defendants only included two physicians who were employed by the third potential defendant health system and plaintiff asserted that the defendant health system was the only potential defendant who possessed any relevant medical records, the Court of Appeals vacated dismissal based on the noncompliant HIPAA authorization and held that plaintiff should have been allowed “to conduct limited discovery to determine whether [defendant health system] had been prejudiced by Plaintiff’s failure to provide a HIPAA-compliant medical authorization[.]”
In Hayward v. Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System, No. E2022-00488-COA-R3-CV (Tenn. Ct. App. April 27, 2023), plaintiff filed an HCLA claim against defendants related to a bladder surgery and related complications. Before filing suit, plaintiff sent pre-suit notice to three potential defendants, including two physicians and one health system (“Erlanger”). A HIPAA authorization was included with the pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E).
After suit was filed, Erlanger filed a motion to dismiss based on the HIPAA authorization being noncompliant. Specifically, Erlanger pointed out that the purpose section of the HIPAA authorization, which is one of the six core elements required on a HIPAA authorization, only permitted disclosure of records to plaintiff’s attorney. Erlanger argued that this prevented the potential defendants from obtaining records from each other and that dismissal was thus appropriate.
Information is now available on the number of tort trials and jury verdicts in Putnam County, Tennessee (county seat: Cookeville) for the fiscal year ending June 30, 2022.
There were 93 personal injury and wrongful death cases closed in Putnam County (not including health care liability act cases) and not a single trial. Here is how that compares with prior years:
Is it possible that this is correct? That Putnam County, home to 80,000 people that is the home of miles and miles of Interstate 40, has not have a single personal injury or wrongful death trial in the last six fiscal years?
Information is now available on the number of personal injury and wrongful death trials and jury verdicts in Maury County, Tennessee for the fiscal year ending June 30, 2022.
There were 157 personal injury and wrongful death cases closed in Maury County (not including health care liability act cases) and no personal injury or wrongful death trials. Here is how that compares with prior years:
Over the years, about 1% of closed cases result in a trial When your client asks you “what are the odds my Maury County personal injury case will go to trial” you can say that, on average, 99% of filed cases are resolved (through voluntary dismissal, dismissal on motion, or settlement) before a jury verdict or judgment is announced.
Information is now available on the number of tort trials and jury verdicts in Sumner County, Tennessee (county seat: Gallatin) for the fiscal year ending June 30, 2022.
There were 236 personal injury and wrongful death cases closed in Sumner County (not including health care liability act cases) and 5 trials. Here is how that compares with prior years:
Of the five cases that were tried, two were jury trials and three were nonjury trials. . The plaintiff made a financial recovery in two of the five trials cases. Note: the fact that the plaintiff recovered in about 60% of the cases does not mean the plaintiff “won” about 40% of the cases. Why? Because we do not know whether the plaintiff’s recovery exceeded the pretrial offer. We can say that in Shelby County last year defendants received a defense judgment in about 60% of the cases that were tried. Here is the data in a graph:
Information is now available on the number of tort trials and jury verdicts in Knox County, Tennessee for the fiscal year ending June 30, 2022.
There were 2164 tort cases closed in Knox County (not including health care liability act cases) and 40 tort trials. Here is how that compares with prior years:
The number of trials – 40 – tells only part of the story, however. Some 29 of those trials were jury trials – the other 11 were tried to the court. The plaintiff made a financial recovery in 9 of those cases that were tried to a judge or jury. Note: the fact that the plaintiff recovered in about 25% of the cases does not mean the plaintiff “won” about 25% of the cases. Why? Because we do not know whether the plaintiff’s recovery exceeded the pretrial offer. We can say that in Knox County last year defendants received a defense judgment in about 75% of the cases that were tried. Here is the data in a graph:
The statute of repose for defective improvements to real property did not apply where defendants were the property owners of the pipe culvert at issue in the case.
In Clayton v. Dixon, No. M2021-00521-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2023), plaintiff property owner sued defendants, who owned the adjacent property, “for damages allegedly caused by the installation of a pipe culvert.” Plaintiff asserted that the pipe culvert was improperly installed in 2011 and caused flooding on his property.
Plaintiff filed suit in 2019 for negligence, nuisance, and trespass. The parties entered into a settlement agreement whereby defendants installed a larger pipe, but plaintiff refused to dismiss the suit after this pipe installation. Defendants then filed a motion to dismiss as well as a counterclaim seeking specific enforcement of the settlement agreement. The parties then filed cross-motions for summary judgment, with plaintiff arguing that he was entitled to summary judgment because defendants had “violated the codes when they installed the pipe culvert,” and defendants asserting that plaintiff’s claim was barred by the statute of repose. The trial court found that “the statute of repose for defective improvements to real estate barred [plaintiff’s] action” and granted summary judgment to defendants. On appeal, summary judgment was reversed.
In an HCLA case where plaintiff named a physician employed by a governmental entity as a defendant but did not name the governmental entity, dismissal was affirmed. Further, plaintiff’s motion to amend to name the governmental entity was properly denied as futile where plaintiff did not give pre-suit notice to the governmental entity and, therefore, the claim against the governmental entity would be time-barred even if it related back to the filing of the complaint.
In Fisher v. Smith, No. W2022-00779-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2023), plaintiff’s HCLA claim arose from an abdominal surgery she had at a hospital in March 2020. Dr. Smith was the surgeon and was an employee of West Tennessee Medical Group (WTMG), which was a governmental entity. Until a year before the surgery at issue, Dr. Smith had been an employee of Jackson Surgical Associates, P.A. (JSA), but in March 2019 WTMG acquired JSA, thereafter operating the practice as Jackson Surgical Associates with no P.A. as part of the name.
In February 2021, plaintiffs sent pre-suit notice to Dr. Smith, JSA, the surgical center and the hospital, and amended pre-suit notices were sent to the same entities on March 1, 2021. No pre-suit notice was sent to WTMG. Dr. Smith, JSA, and the hospital responded to their notices “by informing the [plaintiffs] that Dr. Smith was employed by WTMG and not JSA and that WTMG was a governmental entity.” When plaintiffs filed their suit in June 2021, however, they named Dr. Smith and JSA as defendants.
Where plaintiff alleged that the nursing facility she lived in gave her a defective shower chair, and the broken wheel lock and torn netting on the chair caused her to fall and be injured, no certificate of good faith was required due to the common knowledge exception to Tennessee’s health care liability (historically referred to as “medical malpractice”) law.
In Mears v. Nashville Center for Rehabilitation and Healing, LLC, No. M2022-00490-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2023), plaintiff was a resident at defendant skilled nursing facility. Defendant’s policy required residents to use a shower chair when showering, and plaintiff was provided such a shower chair. According to plaintiff, the shower chair she was given was defective because the wheel lock did not work and the netting was torn. While showering, plaintiff fell out of the chair and was injured.
Plaintiff filed this suit against defendant asserting various acts of negligence. Plaintiff did not, however, provide pre-suit notice or a certificate of good faith under the HCLA, and defendant filed a motion to dismiss on that basis. The trial court agreed that the case fell within the HCLA and dismissed the suit without prejudice due to plaintiff’s failure to provide pre-suit notice. The court ruled, however, that the claims did “not require expert medical testimony and came within the common knowledge of laymen and, therefore, that a certificate of good faith [was] not required.” The trial court thus refused defendant’s request to dismiss the case with prejudice, which was affirmed on appeal.
Information is now available on the number of tort trials and jury verdicts in Davidson County, Tennessee for the fiscal year ending June 30, 2022.
There were 1883 tort cases filed in Davidson County (not including health care liability act cases) and 41 tort trials. Here is how that compares with prior years:
Note that barely 2% of all filed cases are tried to judgment, a number which is generally consistent with past years. When your client asks you “what are the odds my case will go to trial” you can say that, on average 98% of filed cases are resolved (through voluntary dismissal, dismissal on motion, or settlement) before a jury verdict or judgment is announced.
Day on Torts