Day on Torts

March 5, 2014

Tennessee Medical Malpractice Trial: The Third Time Is Not the Charm

Tennessee health care liability (formerly called medical malpractice) cases are tough. Tough because there is lots of sympathy for the defendant health care providers. Tough because the defendants spare no expense and thus they are expensive for patients to try. Tough because the health care providers hire excellent lawyers. Tough because rarely does a jury verdict end the case – there is almost always an appeal.

The case of Cullum v. Baptist Hospital System, Inc., M2012-02640-COA-R3-CV, 2014 WL 576012 (Tenn. Ct. App. Feb. 12, 2014).has been tried three times and each of the three times the verdict has been set aside and a new trial ordered. In the most recent trial, the jury returned a verdict of $7,974,505 against the defendants and the defendants appealed raising a number of evidentiary issues. The Court of Appeals decided two of them.

First, the trial court refused to allow the defendants to play a video of their expert’s testimony from the previous trial. Doctors are exempt from subpoena to trial under a Tennessee statute, Tenn. Code Ann. § 24-9-101. However, the trial court made a distinction between a treating doctor and a doctor testifying as an expert witness at trial, and ordered that the doctor was not exempt from trial and that he must testify live or not testify at all.

March 4, 2014

Tennessee Court of Appeals Upholds Punitive Damage Award On Due Process Grounds But Then Reduces It Because It Exceeded the Ad Damnum Clause

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

In Tennessee, punitive damages may be awarded only if a defendant has acted intentionally, fraudulently, maliciously, or recklessly. This must be proven by clear and convincing evidence. Several factors shall be considered, which are set out in the leading case Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992):

(1) The defendant’s financial affairs, financial condition, and net worth;

(2) The nature and reprehensibility of defendant’s wrongdoing, for example

March 4, 2014

Tennessee’s Prior Suit Pending Doctrine

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

The Tennessee Court of Appeals recently had the opportunity to discuss the doctrine of prior suit pending in a car wreck case, Farmers Insurance Exchange v. Shempert. The Shemperts filed suit for a wreck in which Mr. Shempert was injured and included his own uninsured motorist carrier, Farmers Insurance Exchange, as a defendant. After discovery in the first lawsuit, Farmers filed a separate declaratory judgment action seeking a ruling that the Shempert’s policy with Farmers provided no coverage for the wreck. The Shemperts filed a motion to dismiss the second case on the basis of the doctrine of prior suit pending.

The Court of Appeals explained that the doctrine of prior suit pending provides that an action is subject to being dismissed if a prior lawsuit involving the same parties and the same subject matter is pending. The first lawsuit must be pending in a court that has jurisdiction over the subject matter and the parties.

The Court of Appeals found that the first lawsuit did include the issue of whether the Farmers policy provided coverage for the wreck, and that Farmers had raised coverage as a defense in the first lawsuit. Also, the court noted that the court in the first lawsuit had jurisdiction over the parties and the subject matter. Therefore, the court reversed the entry of summary judgment for the insurer in the declaratory judgment case and remanded it to the trial court to be dismissed.

March 3, 2014

Tennessee Defamation Law and Legislative Immunity

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

You don’t see a lot of defamation cases winding their way up Tennessee appellate courts. Rarer still are defamation cases decided entirely on an affirmative immunity defense. Miller v. Wyatt hits both those marks, so it’s worthy of a crash course in legislative immunity even though it’s a very fact-specific result.

Defendant, a City Councilman, placed on item on the Council’s meeting agenda to discuss campaign ads for the City Mayor’s race. Defendant explained that he wanted to address a political ad placed by another City Councilman who was running for Mayor. Defending the ad, the candidate pulled out a letter written by Plaintiff, a former City Manager referring to the incumbent mayor as “the most ethically challenged, ego-mani[a]cal, narcissistic elected official I have ever know.” (We haven’t gotten to the allegedly defamatory stuff yet, by the way.) Defendant responded at the meeting by saying that Plaintiff “was discharged from City Manager up here because of misappropriating funds and not following procedures.” (There’s the allegedly defamatory part.)

Plaintiff sued Defendant for slander. The trial court granted summary judgment to Defendant based on the legislative privilege, and Plaintiff appealed.

February 28, 2014

Strange Facts, Familiar Ending — Another Tennessee HealthCare Liability Case Dismissed For Failure To Comply With The Notice Provision

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

On November, 9, 2009, plaintiff was an emergency room nurse at Erlanger Hospital. During her shift, a certified nurse anesthetist employed by the defendant was administering anesthesia to a patient. Near the end of the procedure, the patient awoke prematurely and was agitated. The patient tried to extubate herself and rise from the table. Plaintiff noticed the situation and lunged toward the patient in an attempt to save her from falling and otherwise injuring herself. As a result, plaintiff sustained a back injury. So, it was not the patient bringing the healthcare liability claim, but a third-party nurse working nearby.

On September 27, 2010, plaintiff sent defendant a notice of intent to sue letter pursuant to T.C.A. § 29-26-121, and the return receipt was dated September 30, 2010. Only 38 days after the notice of intent letter was sent, plaintiff filed her complaint. Two and a half years later, defendant moved for summary judgment alleging plaintiff had failed to comply with the notice requirements of T.C.A. § 29-26-121. Specifically, plaintiff had filed her suit less than 60 days after sending the notice of intent to sue. Plaintiff did not dispute her non-compliance with the notice provision but responded by claiming the defendant had waived the defense of failure to comply with T.C.A. § 29-26-121 by failing to timely raise it.

The trial court granted the defendant’s motion for summary judgment. On appeal, the plaintiff renewed the waiver argument and also claimed T.C.A. § 29-26-121 conflicted with Tennessee Rule of Civil Procedure 18.01, Joinder of Claims (A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, in contract or tort, as the party has against an opposing party.)

February 27, 2014

Tennessee Chiropractor Denied Direct Claim Against Tortfeasor’s Liability Insurer

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

A Tennessee appellate court has ruled that a chiropractic clinic’s assignment agreement unenforceable in lawsuit against former patient injured in car wreck and liability insurance company who settled injury claim with patient.

In Action Chiropractic, LLC v. Prentice Delon Hyler,, No. M2013-01468-COA-R3-CV (Tenn. Ct. App. Feb. 12, 2014), the defendant (patient) was injured in a car crash and was subsequently treated at plaintiff’s chiropractic center (clinic), incurring approximately $5,010 in charges for medical care. In an attempt to secure payment for any treatment provided, the clinic initially required the patient to execute an assignment contract for “medical expense benefits allowable, and otherwise payable” to patient by his “health insurance, auto insurance, or any other party involved.”

The clinic sent a copy of the assignment contract to Erie Insurance Exchange (Erie), which was the auto insurance carrier of the person responsible for causing the patient’s car crash. The clinic demanded that Erie honor the assignment contract by paying the clinic directly the amounts due for patient’s treatment.

February 20, 2014

No Sale – No Liquor Liability in Tennessee

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

This is a liquor liability case against a bar in East Tennessee known as the Electric Cowboy. After a night of drinking, Ashley Langworthy was driving her vehicle at a speed in the range of 83 to 94 mph when she lost control and struck a tree causing her vehicle to go airborne and crash in to the corner of a brick apartment killing the plaintiff’s 71 year old decedent. Ms. Langworthy had to be extricated from the vehicle. By the time she arrived at the hospital, her BAC was still .18.

Following discovery, the following facts about the events leading up to the crash were undisputed:

· Langworthy and a friend had consumed two margaritas while eating dinner at Chili’s. They then purchased some Smirnoff Ice Coolers and Ms. Langworthy drank two of those in the parking lot of the Electric Cowboy.

February 19, 2014

Be Careful What You Ask For; You Just Might Get It

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

This case is ugly. And when I say ugly, I mean ugly. This case is so ugly that if it tried to sit in the sand a cat would come up and bury it.

This case started in Davidson County General Sessions Court. On May 6, 2010, plaintiff filed a negligence action again Davidson Transit Organization stemming from an accident she suffered while a passenger in a wheelchair on a DTO bus. The general sessions warrant sought damages under $25,000. Shortly after filing the warrant, the plaintiff moved to have her case transferred to circuit court and that motion was granted. Less than two weeks after being transferred to Judge Brothers court, plaintiff moved to amend her complaint to identify a John Doe defendant and to substitute an amended complaint for the original complaint. In addition to adding the new party, the amended complaint increased the amount of damages sought. DTO opposed the motion and plaintiff’s motion was ultimately denied because the statute of limitations had passed as to the new party and the plaintiff did not demonstrate the amendment would relate back.

Thereafter, the court conducted numerous case management conferences and the special master recommended a conservator be appointed for the plaintiff because a psychological evaluation had revealed she was incompetent. Ultimately, a conservator was substituted on February 19, 2013. On March 5, 2013, nearly three years after the case was originally filed in general sessions court, DTO confessed judgment in the amount of $24,999.99, which was the damages sought in the original general sessions warrant. DTO deposited the judgment amount with the court on the same day, and Judge Brothers dismissed the case with prejudice. Plaintiff filed a motion to set aside or to alter or amend the judgment which was denied and plaintiff appealed alleging: (1) the trial court erred in failing to allow her to amend her complaint; and (2) the trial court erred in permitting the defendant to confess judgment.

February 18, 2014

Tennessee Health Care Liability Notice Statute and Its Interaction with the Savings Statute

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

The health care liability notice statute continues to supply our courts with work that has nothing to do with the merits of the claim, defense lawyers with increased income for simply pivoting, and plaintiff’s lawyers with heartburn.

The plaintiffs in Johnson v. Floyd, No. W2012-00207-COA-R3-CV (Tenn. Ct. App. Feb. 6, 2014) filed a medical malpractice suit in December 2004. More than five years later, the plaintiffs entered an order of voluntary dismissal without prejudice on April 27, 2010.

In the interim, Tennessee experienced substantial legislative reform that made filing lawsuits more difficult for victims of medical malpractice. The resulting pre-suit notice requirements that went into effect in 2009, found in Tenn. Code Ann. §§ 29-26-121 and -122, have been discussed on this blog in multiple previous posts. In sum, a plaintiff must satisfy certain notice requirements at least 60 days before filing a medical malpractice suit (re-labeled “health care liability” suit under the legislative reform), file a certificate of good faith with the complaint. In exchange for "proper "compliance with notice section with the original statute the one year statute of limitations for filing suit is extended by 120 days.

February 17, 2014

The “Error in Judgment” Rule Exposed – and Rejected

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

The "error in judgment" rule in Tennessee medical malpractice cases is perhaps the most unfair principle of the common law of torts. The rule was conceived in recognition of the fact that there may be more than one right way to approach a medical issue – the "two schools of thought" principle. This narrow application of the rule makes sense. For example, in most cases, a surgeon can do a cervical laminectomy utilizing a posterior approach or an anterior approach. Both carry certain risks and have certain benefits, but as long as informed consent is obtained and both approaches are reasonable for that patient, a surgeon should not be held accountable for doing one approach rather than the other.

But the error in judgment rule has been bastardized to give it the potential to gut most medical malpractice claims in Tennessee. Here is the jury charge on the subject in Tennessee:

By undertaking treatment a physician does not guarantee a good result. A physician is not negligent merely because of an unsuccessful result or an error in judgment. An injury alone does not raise a presumption of the physician’s negligence. It is negligence, however, if the error of judgment or lack of success is due to a failure to have and use the required knowledge, care and skill as defined in these instructions.