Day on Torts

February 18, 2014

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

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.

February 10, 2014

Jury Trials in Tennessee Tort Cases Declines Again

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

The number of jury trials in Tennessee personal injury and wrongful death cases continues to drop. For the year ended June 30, 2013, there were only 213 jury trials. Add to that another 225 non-jury trials for a 438 total tort trials.

Shelby County (District 30) had 53 tort trials, the largest of any judicial district in the state. Here are the number of civil jury trials in tort cases some other judicial districts:

Davidson (District 20) – 35 trials
Knox (District 4) – 23 trials
Hamilton (District 11) – 11 trials
Rutherford and Cannon (District 16) – 10 trials
Chester, Henderson and Madison (District 26) – 7 trials
Hickman, Perry and Williamson (District 21) – 6 trials

How does that compare with the past? Ten years earlier, for the year ending June 30, 2004, there were 347 jury trials in tort cases. Thus, the number of jury trials has decreased by over 30% in ten years. Here is the data for the judicial districts listed above for the year ending June 30, 2004:

February 10, 2014

Discovery of Information from Facebook Accounts in Personal Injury Cases

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

A Florida appellate court has recently restricted largely unfettered discovery from the Facebook account of a personal injury plaintiff who was filing suit because of injuries to her minor son. She also asserted her own claim for loss of parental consortium.

Root v. Balfour Beatty Construction LLC, 2014 WL 444005 (Fl. D.C.A. 2nd Feb. 5, 2014) Defendant served written discovery that sought access to social media accounts. The appellate court quashed an order permitting extensive discovery and suggesting that in camera review may be necessary to protect the privacy rights of the plaintiff. The opinion cites several cases and a recent article about social media discovery.

February 10, 2014

Tennessee Injury Case and Medical Malpractice Case Filings Continue to Decline

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

Tennessee personal injury and wrongful death filings are down again.

For the fiscal year ending June 30, 2013, there were only 9868 tort filings in Tennessee circuit courts. The total number of filings for the year ending June 30, 2012 was 9933 The 2013 number represents less than a 1% decrease from a year earlier.

But what is more revealing is a look at the numbers from 10 years ago. For the year ended June 30, 2004, there were 13,192 tort cases filed. Thus, in the last ten years, tort filings are down over 25%.

February 5, 2014

Tennessee Court of Appeals Does Not Award Attorneys’ Fees on Request to Admit Issue

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

This case is an example of when it is best to leave well enough alone. Along the tortured path of this case, the parties switched positions i.e, plaintiff became defendant and vice versa. To keep it simple, I am going to refer to Ms. Allain by her last name and the two doctors as simply "the doctors".

While undergoing a procedure at Vanderbilt University Medical Center, Ms. Allain was told by the treating physician that a guide wire had been left in a vein leading to her heart. The treating physician opined the guide wire had been left during a prior procedure at Williamson Medical Center. Thereafter, Ms. Allain filed suit against Williamson Medical Center and the doctors. Several months after filing suit, Ms. Allain learned the guide wire was actually left by another Vanderbilt Medical Center physician. As such, she took a voluntary nonsuit against Williamson County Medical Center and the doctors.

Rather than being satisfied with the dismissal of the case against them, the doctors waited exactly one year and then filed suit against Ms. Allain for malicious prosecution and abuse of process. Summary judgment was denied on the malicious prosecution case and the trial court denied interlocutory appeal. The Court of Appeals granted a Rule 10 application but ultimately affirmed the denial of the motion for summary judgment. Next, the Tennessee Supreme Court reached down and took the case. Ultimately, the Tennessee Supreme Court, in a case of first impression, ruled a voluntary nonsuit pursuant to Rule 41 of the Tennessee Rules of Civil Procedure is not a favorable termination on the merits for purposes of a malicious prosecution case. Therefore, the doctors could not prove an essential element of their case. The Tennessee Supreme Court remanded the case to the trial court with instructions to enter summary judgment in favor of Ms. Allain on the malicious prosecution case and for a final determination on the abuse of process case.

February 4, 2014

An Objection May Need To Be Asserted At Trial Even If A Motion in Limine Has Been Denied on the Issue

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

You file a motion in limine to exclude testimony of defendant’s expert witness. The motion is denied. Do you have to object to the testimony of the expert at the time he or she testifies to preserve the issue for appeal?

Maybe. The Wyoming Supreme Court has ruled that a later objection must be made unless the trial judge’s ruling excluding the testimony was "definitive." in Hicks v. Zondag, 2014 WY 16 (Jan. 28, 2014) the trial court denied the motion in limine but said that its ruling was without prejudice to the right to assert an objection at trial that the proposed evidence was cumulative or otherwise in violation of Rule 403. Thus, counsel has to object again when the witness testified to properly preserve the issue for appeal.

Tennessee has a similar rule. In Grandstaff v. Hawks, 36 S.W.3d 482, 488 (Tenn. Ct. App. 2000) then Judge Koch said that if “the trial court has not ‘clearly and definitively’ acted on the motion [in limine], the moving party must renew the motion contemporaneously with the introduction of the objectionable evidence. Failure to renew the motion will preclude the moving party from taking issue on appeal with the admission of the evidence.” This language was cited with approval in State v. Banks, 271 S.W.3d 90, 170 (Tenn. 2008) and Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178, 192, fn. 11 (Tenn. Ct. App. 2008).