Day on Torts

December 27, 2014

The Contiguous State Rule for Expert Witnesses

The Tennessee Health Care Liability Act requires that health care professionals testifying as experts, in addition to other requirements, be licensed to practice in Tennessee or a bordering state. Tenn. Code Ann. § 29-26-115. In a recent decision, the Tennessee Supreme Court found that a trial court’s refusal to waive this requirement was not so far removed from the “usual course of judicial proceedings” so as to qualify for a Rule 10 appeal.

In Gilbert v. Wessels, No. E2013-00255-SC-R11-CV (Tenn. Dec. 18, 2014), plaintiff filed a health care liability action against an ophthalmologist who had performed YAG laser surgery on him. Less than a month before trial, the defendant doctor filed a motion to waive the contiguous state requirement. Defendant sought to have a doctor from Florida testify who was alleged to be one of the three doctors in the country with the most experience with this procedure. Defendant supported his motion with an affidavit saying that defense counsel had spent 35 hours attempting to identify an expert in Tennessee or a contiguous state, an affidavit from a Tennessee ophthalmologist stating that testimony should be provided by someone who had performed the procedure, and a portion of plaintiff’s expert’s deposition acknowledging that the Florida doctor was one of the most experienced in the county at the relevant procedure.

Plaintiff opposed defendant’s motion, and the trial court declined to waive the contiguous state requirement, finding that defendant “had not established that appropriate witnesses would otherwise be unavailable.” The trial court denied defendant’s petition for interlocutory appeal, but the Court of Appeals subsequently granted defendant’s application for a Rule 10 extraordinary appeal. After considering the case, the Court of Appeals held that the trial court did not abuse its discretion when it declined to waive the contiguous state requirement. The Supreme Court then granted defendant’s Rule 11 appeal.

December 20, 2014

Medical Malpractice Notice – Incomplete HIPAA Form

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

As Tennessee Courts continue to grapple with what exactly constitutes substantial compliance when sending pre-suit notice of a healthcare liability action, a recent case provides hope that a reasoned approach may ultimately prevail – a HIPAA form sent with the pre-suit notice letter was found to substantially comply with the notice statue despite the failure to Include the date on the form.

In Hamilton v. Abercombie Radiological Consultants, Inc., No. E2014-00433-COA-R3-CV (Tenn. Ct. App. Dec. 15, 2014), plaintiff sent a timely pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121 before filing her health care liability action. Defendant, however, moved to dismiss because plaintiff had signed the HIPAA release form but had left the date blank open. Plaintiff asserted that the date line was intentionally left blank so that defendant could fill it in and the “release form would not become stale.” The trial court, though, agreed with defendant and dismissed the case with prejudice, finding that the form was non-HIPAA compliant.

In its analysis, the Court of Appeals quoted heavily from Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512 (Tenn. 2014), which expounded upon the Supreme Court’s Stevens decision, the first decision in which the Court held that the content requirements of pre-suit notice could be satisfied with substantial compliance. According to Thurmond, “unless strict compliance with a notice content requirement is essential to avoid prejudicing an opposing litigant, substantial compliance with a content requirement will suffice.” “Non-substantive errors and omissions” and “a plaintiff’s less-than-perfect compliance with subsection 29-26-121(a)(2)(E) will not derail a healthcare liability claim so long as the medical authorization provided is sufficient to enable defendants to obtain and review a plaintiff’s relevant medical records.” Stevens v. Hickman Cmty. Healthcare Serv., Inc., 418 S.W.3d 547 (Tenn. 2013).

December 18, 2014

Seeking Reconsideration of Summary Judgment Motions in Tennessee

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

In Bilbo v. Ocoee Place Condominium Homeowners Ass’n, No. E2013-02532-COA-R3-CV (Tenn. Ct. App. Dec. 12, 2014), plaintiffs filed suit alleging negligent construction of condos. Defendant HOA filed a motion for summary judgment stating that it did not own the property the condos were built on and that the HOA had no control over the construction of the condos. For the purposes of the summary judgment motion, plaintiffs agreed that defendant “had no decision-making authority,” “did not have any role whatsoever in the construction,” and “did not own the land…upon which the condominiums were constructed.”

Based on these facts, the trial court granted defendant summary judgment. Plaintiffs subsequently filed a motion to alter or amend the summary judgment pursuant to Tennessee Rules of Civil Procedure 54.02 and 60.02 claiming to have newly discovered evidence. The Court of Appeals affirmed the trial court’s grant of summary judgment.

When a motion is made to alter summary judgment based on additional evidence under Rule 54.02, a court should consider:

December 15, 2014

Conversion of Motions to Dismiss Into Motions for Summary Judgment

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

In Tennessee, trial judges are allowed to convert Rule 12 Motions to Dismiss into Motions for Summary Judgment, but this action “should be taken only in rare cases and with meticulous care.” Thomas v. Transp. Ins. Co., 532 S.W.2d 266 (Tenn. 1976). The Court of Appeals recently overturned such a summary judgment in In Re Conservatorship of Starnes, No. W2013-02614-COA-R3-CV (Tenn. Ct. App. Dec. 10, 2014), because the trial court did not permit proper discovery before granting a motion it had converted from a motion to dismiss into a motion for summary judgment.

Petitioner in the Starnes case was a daughter who alleged that her father needed a conservator after his health declined following a stroke. Father filed a motion to dismiss, which the court declined to rule on until a guardian ad litem had been appointed. After appointment and his own discovery, the guardian ad litem filed a report finding that father did not need a conservator. Daughter filed an objection to this report, and father renewed his motion to dismiss. In an in-chambers conference with counsel, the trial judge determined that a physician should review father’s medical records, and the court chose a Dr. Golden to do so. After reviewing the records, Dr. Golden issued a report stating that father was “capable of making decisions directing his own affairs.” Daughter, on appeal, alleges that this report is not supported by an accompanying affidavit and relies largely on hearsay.

In September 2013, the trial court held a hearing on father’s motion to dismiss. The next month the judge issued an opinion and order dismissing daughter’s conservatorship petition. The trial court concluded that daughter’s petition was “legally sufficient and adequately set[] forth the requisite requirements for a petition to appoint a conservator” pursuant to Rule 12.02(6), but then went on to acknowledge that it considered evidence outside the pleadings and thus converted the motion, sua sponte, to one for summary judgment pursuant to Rule 56. Specifically, the court considered a copy of a doctor’s letter submitted by father, three affidavits submitted by father (two from doctors), the guardian ad litem report, and Dr. Golden’s report.

December 2, 2014

Products Liability Statute of Repose and its Exceptions Held to be Constituational

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

The Tennessee Court of Appeals recently upheld the constitutionality of both the ten-year statute of repose under the Tennessee Products Liability Act (“TPLA”) and the exceptions thereunder for asbestos and silicone gel breast implant claims. In Adams v. Air Liquide America, L.P., No. M2013-02607-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2014), plaintiff filed a products liability claim related to injuries from silica exposure in his employment. Plaintiff was diagnosed with cancer in 2010, filed the claim in 2011, and it was undisputed that 1991 was the very latest time at which plaintiff could have first used or come into contact with defendants’ products. Defendants filed a motion for summary judgment on the grounds that the action was time-barred by the ten-year statute of repose found in Tenn. Code Ann. § 29-28-103(a), and the trial court granted the motion.

On appeal, plaintiff asserted that the statute of repose violated the Equal Protection Clause of the US Constitution and Section 8 of the Tennessee Constitution because it carved out exceptions for asbestos and silicone gel breast implant related injuries, but not silica-related claims. Plaintiff asserted that the classes of claims for which there are exceptions were similarly situated to silica-related claims because both have long latency periods. According to plaintiff, there was no rational basis for distinguishing between these claims.

This constitutional challenge was examined under the rational basis standard, meaning that “if any state of facts can reasonably be conceived to justify the classification or if the reasonableness of the class is fairly debatable, the statute must be upheld.” Adams (citing Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1978)). In affirming the trial court’s summary judgment decision, the Court noted that “the statute of repose and its exceptions have been upheld under similar equal protection challenges[,]” including other challenges related to injuries with long latency periods. The Court essentially just adopted the reasoning of the trial court, quoting its conclusions that

November 24, 2014

No Evidence of Constructive Notice Leads to Summary Judgment in Tennessee Premises Liability Case

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

In Hannah v. Sherwood Forest Rentals, LLC, No. E2014-00082-COA-R3-CV (Tenn. Ct. App. Nov. 17, 2014), plaintiff filed a premises liability action against a cabin rental company and the cabin owners. Plaintiff, a guest at the cabin, alleged that she arrived at a rental cabin after dark, ascended the stairs to the front door, then later descended the same stairs to retrieve her luggage. On her way down the stairs, plaintiff fell and injured both feet and ankles when, according to plaintiff, “the bottom fell out” of one of the stairs. The next day, plaintiff and her family found that several stairs had “improperly seated nails fastening the top of the step” and that one of the stairs rocked forward when stepped on in a particular spot.

Defendants filed a motion for summary judgment, which the trial court granted on the basis that there was no genuine issue of material fact by which a reasonable jury could find that defendants had actual or constructive notice of any alleged dangerous condition. The Court of Appeals affirmed.

Defendants presented evidence that there had been no prior or subsequent reports of problems with the stairs; that the maintenance staff inspected the cabin at least monthly and had not seen a problem; that the housekeeping staff cleaned the cabin prior to plaintiff’s family checking in and did not see a problem with the stairs; and that the owners had not seen any problem with the stairs or received any report of such a problem during their frequent visits to the cabin.

November 19, 2014

Court Torpedos 911-Related Negligence Claim

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

Under the Governmental Tort Liability Act (“GTLA”), governmental entities are immune from lawsuits that arise from the “exercise and discharge” of their functions. There are a very few, specific exceptions to the GTLA listed in the statute. Due to this statutory immunity, making a case for negligence against a government agency can be quite difficult.

In Estate of Quinn v. Henderson, No. E2013-02398-COA-R3-CV (Tenn. Ct. App. Nov. 13, 2014), plaintiff brought a wrongful death suit against both the Blount County fire department and the Blount County 911 center. The action arose out of an incident wherein the deceased’s boyfriend had set fire to her attached garage while the deceased was in the home. The deceased called 911, who then dispatched the fire department. Upon arriving at the scene, however, the fire department could not immediately act. Instead, they followed fire department protocol and waited for the domestic violence situation to be secured by the police before fighting the fire and entering the home. The deceased was removed from the home after it was secured, but died two days later from smoke inhalation.

The trial court granted summary judgment for 911 and the fire department based on the GTLA, finding that the entities “were engaged in planning functions, such that their actions were immune pursuant to the [GTLA].” The trial court further based its decision on the public duty doctrine and comparative fault. The appellate court affirmed, though it based its decision on different reasons. Instead of finding that the entities were engaged in planning functions, the Court of Appeals determined that both 911 and the fire department retained immunity because both negated essential elements of plaintiff’s claims.

November 10, 2014

Nuanced Determination Required to Distinguish Health Care Liability Claims from Ordinary Tort Claims

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

Not all claims brought against health care providers fall under the Tennessee Health Care Liability Act (THCLA), and a recent case from the Tennessee Court of Appeals gives crucial guidance on how to distinguish THCLA claims from ordinary, non-statutory tort claims. In Ellithorpe v. Weismark, No. M2014-00279-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2014), plaintiffs were parents of a minor child. Plaintiffs had lost custody pursuant to a juvenile court order, but plaintiffs alleged that the order required them to be informed of and allowed to participate in any counseling offered to the minor child. In their complaint, plaintiffs alleged that defendant social worker had provided counseling to minor child in violation of the court order. They asserted claims for negligence, negligence per se, and intentional infliction of emotional distress against the defendant.

Defendant moved to dismiss the complaint in its entirety, arguing that it fell under the THCLA and that plaintiffs had indisputably not followed the statute’s procedural requirements. The trial court granted the motion, finding that “the THCLA was ‘very broad’ and encompassed this claim because it related to the provision of health care services by a health care professional.” The Court of Appeals, however, reversed this dismissal, stating that the trial court had not used the proper analysis to determine whether the claims fell within the THCLA.

In determining the proper analysis, the Court first pointed to the Tennessee Supreme Court’s opinion in Gunter v. Laboratory Corp. of America, 121 S.W.3d 636 (Tenn. 2003). There, the Supreme Court indicated that the “crucial question” was whether the claim “constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional.” Later, though, the Supreme Court reexamined the analysis recommended by Gunter. In Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), the Supreme Court noted that “all cases involving health or medical care do not automatically qualify as health care liability claims.” The Estate of French Court “somewhat abandoned the broad ‘gravamen of the complaint’ test outlined in Gunter, in favor of ‘a more nuanced approach’ in which the trial court must examine the claims individually to determine whether they sound in ordinary negligence or health care liability.” Instead of broadly characterizing the complaint, this analysis depended on factual inquiries to appropriately categorize the individual claims.

November 7, 2014

Offer of Judgment Cannot Be Revoked During 10-Day Window

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

The Tennessee Court of Appeals recently took up a civil procedure issue of first impression in the state. In McGinnis v. Cox, No. M2014-00102-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2014), the issue presented was“[w]hether a Rule 68 offer of judgment may be revoked by the offeror within the ten-day time period for acceptance on the basis that the offeror ‘changed his mind.’” Following the weight of authority from federal and other state courts, the Court held that offers of judgment under Rule 68 are generally not revocable prior to the ten-day window expiring.

The McGinnis case arose from a car accident, and though no answer was ever filed, plaintiffs presented defendants with an offer of judgment for a specified amount or the policy limits of the applicable insurance policy. It was undisputed that the offer of judgment was made pursuant to Rule 68. There was some discrepancy between the date on the certificate of service and the date the offer was actually mailed, but defendants’ counsel received it on March 13, 2013. Counsel for both parties spoke two days later and agreed to forgo the deadline due to the postposed mailing. On that same day, however, plaintiff’s counsel faxed defendants’ counsel stating that the offer of judgment was revoked. The basis of this purported revocation was that the plaintiff had changed his mind. Subsequently, but on the same day and well within the ten-day time frame, defendants responded by fax that they accepted the offer of judgment in the amount of the policy limit. As there were no allegations of fraud or other good cause, the trial court found that the offer of judgment could not be revoked and thus granted a motion to enforce the judgment. The Court of Appeals affirmed.

In analyzing the issue, the Court determined that “the failure to include a provision allowing revocation [in Rule 68] is indicative of an intent not to allow revocation within the ten-day time period for acceptance.” The Court stated that adding a revocation provision would “deprive the offeree of the ten days to consider the offer of judgment the offeree was clearly intended to possess pursuant to Rule 68’s plain language.” The Court emphasized that the 10-day window was needed to give the offeree an appropriate amount of time to consider the offer, as rejecting such an offer subjects the offeree to certain risks. Allowing revocation would give the offeror the ability to force the offeree into a hasty decision.

November 3, 2014

Health Care Liability Claim under GTLA Entitled to 120-Day Extension of Statute of Limitations

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

In Harper v. Bradley County, No. E2014-COA-R9-CV (Tenn. Ct. App. Oct. 30, 2014), the Tennessee Supreme Court clarified one aspect of the interplay between the Health Care Liability Act (“HCLA”) and the Governmental Tort Liability Act (“GTLA”). The Court held that under the current version of the HCLA, health care liability actions against governmental entities are entitled to the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121(c).

To reach its decision, the Court relied heavily on Cunningham v. Williamson County Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013). In that case, the Tennessee Supreme Court found that the 120-day extension did not apply to medical malpractice claims arising under the GTLA. The Cunningham Court noted that “in the absence of specific statutory language permitting extension of the GTLA statute of limitations, …statutory provisions inconsistent with the GTLA may not extend the applicable statute of limitations period.” Despite its holding, the Supreme Court pointed out in a footnote that the legislature amended the HCLA in 2011 to modify the definition of “health care liability action” to include “claims against the state or a political subdivision thereof.”

In the Harper case, the plaintiff’s claim arose after the effective date of the 2011 amendments. Thus, the Court of Appeals was tasked with determining whether the 2011 language change required a different outcome regarding applicability of the 120-day extension. The Court noted that the 2011 language changes “for the first time, expressly brings governmental entities…within the ambit of the HCLA.” Accordingly, the Court held that “the 2011 amendment, now codified at Tenn. Code Ann. § 29-26-101, clearly expresses a legislative intent to extend the statute of limitations in GTLA cases where the plaintiff has met the procedural requirements of the HCLA.”