Day on Torts

March 3, 2014

Tennessee Defamation Law and Legislative Immunity

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.

February 12, 2014

Deceased Pro Se Litigant’s Lawyer-Spouse Cannot Represent Decedent Without Opening Estate

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

In Dry v. Steele, the Tennessee Court of Appeals grappled with a procedural nightmare, including three related lawsuits separate from the one actually on appeal – a medical malpractice case, an action for interference with service of process, and a malicious prosecution case. Putting aside the morass of ancillary issues, the Court of Appeals’ holding was distinct: a notice of appeal on behalf of a deceased pro se litigant is ineffective if filed by someone who has not yet been officially appointed to represent the estate.

The plaintiff in the case on appeal was a lawyer who died two weeks after filing his own pro se lawsuit. The defendants filed a suggestion of death and served it at the plaintiff’s law firm address. The decedent’s wife was also his law partner – and either the decedent’s co-counsel, co-plaintiff, or co-defendant in the other three related cases. The decedent’s wife did not file a motion to substitute a proper party for the decedent, and informed the trial court that she was not representing the decedent or his estate, but nonetheless asked that the case not be dismissed. The trial court dismissed the case under Tenn. R. Civ. P. 25.01(1).

That’s where the case went from complicated to just bewildering. After the judgment for dismissal was entered, the decedent’s wife filed a notice of appearance as counsel for the decedent. She then filed a notice of appeal within the thirty day window to do so under Tenn. R. App. P. 4(a). After those thirty days had passed, however, the decedent’s wife had an estate opened for the decedent and was appointed administrator, then retained herself as counsel to represent the estate in the case.

February 12, 2014

Nashville Government Blames One Of Its Own Employees For Crash

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

Tennessee law of tort liability of local governments gives rise to some strange scenarios, but this one is odder than most.

In Harp v. Metropolitan Government of Nashville and Davidson County, No. M2012-02047-COA-R3-CV (Tenn. Ct. App. Jan. 22, 2014), the defendant, Metro, appealed a judgment entered in favor of one of its employees, the plaintiff, who was seriously injured when he was hit by a Metro school bus driven by another Metro employee who tested positive for marijuana and cocaine after the incident.

As a local governmental entity, Metro is generally immune from suit. Tennessee’s Government Tort Liability Act (“GTLA”) sets forth specific exceptions when immunity can be removed. One situation is for claims brought by those who are injured by the negligent acts of governmental employees. Another instance is when a person is injured by a governmental employee’s negligent operation of a vehicle. The plaintiff in Harp argued that both exceptions applied to remove Metro’s immunity.

February 11, 2014

Another Tennessee Health Care Liability Case Dismissal For Notice Omission

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

This is a healthcare liability case with the central issues being (1) compliance with the notice provisions of the statute; and (2) the statute of limitations. Here is the procedural history in the trial court:

September 25, 2009 – Decedent presented to the emergency room at Defendant Parkwest Hospital
October 4, 2009 – Decedent died.
September 20, 2010 – Plaintiff sent notice of suit to Parkwest. However, the medical authorization form accompanying the notice did not authorize the release of information to Parkwest and the release was expired.
December 10, 2010 – Plaintiff files first healthcare liability complaint alleging wrongful death. But, the complaint does not have a statement of compliance with T.C.A. 29-26-121 or provide the documentation specified in T.C.A. 29-26-121. Parkwest moves to dismiss.
August 9, 2011 – The trial court enters an order allowing plaintiff to voluntarily dismiss her case without prejudice.
May 4, 2012 – Plaintiff files second healthcare liability complaint and Parkwest files a motion to dismiss based on statute of limitations.
February 13, 2013 – The trial court grants Parkwest’s motion to dismiss and plaintiff appeals.

The primary issue in the Court of Appeals was whether plaintiff’s original suit was timely filed. Since there was no dispute that plaintiff had not filed his original complaint within the general one year statute of limitations for healthcare liability actions, the only issue was whether plaintiff was entitled to avail himself of the 120 extension provided by T.C.A. 29-26-121. Plaintiff conceded he had not complied with the dictates of T.C.A. 29-26-121 since the notice provided did not authorize the release of information to Parkwest and was expired. Moreover, the plaintiff had not demonstrated "extraordinary cause" for his non-compliance. In fact, plaintiff did not even argue extraordinary cause. The only explanation for the failure to comply with the statute was a comment made at the hearing on the original motion to dismiss in which plaintiff’s counsel indicated the failure to comply with the statute was a "clerical error."

The Court of Appeals concluded the original complaint was not filed within the statute of limitations because plaintiff could not avail himself of the 120 day extension provided by T.C.A. 29-26-121. Because the first healthcare liability case was not filed within the statute of limitations, the plaintiff could not use the savings statute, T.C.A. 29-28-105, to file the second healthcare liability complaint. The case was dismissed.