Day on TortsAbout eight months ago I started another blog, Practical Procedure and Evidence. I blog about issues relating to civil and appellate procedure and evidence that impact civil trial lawyers in Tennessee.
Here are some recent posts:
Articles Posted in Uncategorized
Malicious prosecution and abuse of process summary judgment affirmed.
Where plaintiff filed an action for malicious prosecution and abuse of process based on a criminal theft case, summary judgment for defendant was affirmed. A grand jury indicted plaintiff of the theft charges, which created a rebuttable presumption of probable cause for purposes of the malicious prosecution claim, and plaintiff was unable to prove the elements of her abuse of process claim.
In Christmas v. Kington, No. E2022-00699-COA-R3-CV (Tenn. Ct. App. Aug. 25, 2023), plaintiff and defendant had previously been in a romantic relationship. At two different times, defendant filed civil suits against plaintiff based on the theft of jewelry from defendant’s home, but those suits were both voluntarily dismissed. Defendant also called the local sheriff’s office to report the theft of several pieces of jewelry. Defendant informed the detective that plaintiff’s son had called and informed him that plaintiff had stolen and sold several pieces of jewelry, including a men’s Rolex watch. When defendant went to the store where plaintiff allegedly sold the jewelry, he saw the watch and a few other pieces he recognized.
The sheriff’s office investigated the matter and brought charges, and plaintiff was indicted by a grand jury for theft. Defendant did not testify before any court or grand jury and did not provide documents or records to the grand jury. The criminal charges were eventually dismissed by the State, but nothing in the record indicated that the dismissal was on the merits or based on a lack of evidence.
Practical Procedure and Evidence
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.
HCLA plaintiff entitled to limited discovery to show that defendant was not prejudiced by noncompliant HIPAA authorization.
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.
Stats About Personal Injury and Wrongful Death Cases and Verdicts in Putnam County, Tennessee
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?
Stats About Personal Injury and Wrongful Death Cases and Verdicts in Maury County, Tennessee
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.
Stats About Personal Injury and Wrongful Death Cases and Verdicts in Sumner County, Tennessee
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:
Stats on Personal Injury and Wrongful Death Filings and Trials in Knoxville and Knox County, Tennessee
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:
Property owner defendants could not rely on statute of repose for defective improvements to real property.
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.
HCLA dismissal affirmed based on plaintiffs’ failure to name governmental employer as defendant.
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.