Day on Torts

March 24, 2025

Amended HCLA complaint required new certificate of good faith.

Where an HCLA plaintiff added a claim for wrongful death to her health care liability action after her husband passed away, but she failed to file a certificate of good faith with her amended complaint, dismissal was affirmed.

In Allen v. Dehner, No. M2023-01750-COA-R3-CV (Tenn. Ct. App. Feb. 5, 2025), plaintiffs husband and wife filed an HCLA claim against defendant doctor and his medical practice based on their failure to timely diagnose the husband’s cancer. When the plaintiffs filed their initial complaint, they attached a certificate of good faith pursuant to the HCLA requirements.

While the suit was pending, the husband died. The wife continued as the plaintiff and filed a motion to amend her complaint. With the trial court’s permission, she filed an amended complaint that added a claim for wrongful death and added the husband’s death to the damages portion of the complaint. The defendants named in the amended complaint were the same.

March 21, 2025

Exclusion of HCLA expert as discovery sanction vacated.

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

Where an HCLA plaintiff failed to provide deposition dates for her expert witness by the deadline listed in the scheduling order, but she filed a motion to revise the scheduling order on the day of the deposition deadline, exclusion of the plaintiff’s expert was too harsh a sanction and was vacated.

In Buckley v. Jackson Radiology Associates, P.A., No. W2023-01777-COA-R3-CV (Tenn. Ct. App. Feb. 21, 2025), the plaintiff filed an HCLA suit in 2016. Due to a motion for a qualified protective order, the case was stayed pending the outcome of a separate case. After the stay was lifted, the trial court set a scheduling order in September 2021. This scheduling order was later modified to require the plaintiff to disclose her expert by February 13, 2023, and to have all expert depositions completed by June 12, 2023.

The plaintiff disclosed Dr. Esposito on February 13, 2023. Counsel for the defendants immediately requested available deposition dates. According to the defendants, they requested deposition dates several times and received no response from the plaintiff. The plaintiff explained in her appellate brief that Dr. Esposito’s wife filed for divorce during this time and he did not cope well, causing the scheduling issues.

March 19, 2025

Legal malpractice claimed dismissed as time-barred.

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

A legal malpractice claim filed eighteen months after the Court of Appeals affirmed the underlying conviction was time-barred.

In Lee v. Richardson, No. M2024-01130-COA-R3-CV (Tenn. Ct. App. Feb. 21, 2025), the Court of Appeals affirmed dismissal of a pro se legal malpractice complaint based on the statute of limitations. The plaintiff sued several defendant attorneys, all of whom had represented him during various stages of an underlying criminal case. The plaintiff asserted that the defendants failed to properly investigate or assert arguments that the criminal court did not have territorial jurisdiction of the kidnapping charge.

The trial court noted that the plaintiff had made this territorial jurisdiction argument at all levels of his criminal case, including the Court of Criminal Appeals, which rejected the argument and affirmed the plaintiff’s conviction. The Court also pointed out that the Court of Criminal Appeals affirmed the plaintiff’s conviction on November 10, 2022, and issued the mandate back to the trial court on January 26, 2023. The trial court accordingly found that the legal malpractice complaint filed in June 2024 was time-barred, and the Court of Appeals affirmed.

March 17, 2025

ER doctor (former surgeon) not competent to testify about post-surgical care.

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

A doctor’s experience in an emergency room did not make him competent to testify under the HCLA about the post-surgical care the plaintiff received.

In Hurley v. Pickens, No. E2023-01610-COA-R3-CV (Tenn. Ct. App. Mar. 4, 2025), the plaintiff filed a health care liability claim based on the care he received after a planned bladder surgery in 2014. Despite the plaintiff’s complaints during his hospitalization after the surgery, no follow up testing was ordered until the plaintiff was diagnosed with septic shock. The plaintiff suffered severe complications which resulted in a three-week coma and two additional surgeries.

The plaintiff filed this HCLA case, and he named as his expert Dr. Orr. Dr. Orr was licensed to practice medicine in Mississippi, and during 2013, he entered a surgical oncology fellowship. During 2013, he also worked at least some amount of time in an emergency room.

March 14, 2025

Defense jury verdict affirmed in case involving patron falling from stage

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

In a negligence case, a brief reference to the lottery during opening statements and an unintentional mention of employment benefits that paid partial wages during the plaintiff’s time off work were not enough to require overturning the jury verdict for defendant.

In Campbell v. T.C. Restaurant Group, LLC, No. M2024-00362-COA-R3-CV (Tenn. Ct. App. Mar. 4, 2025), the plaintiff filed a negligence claim against a musician and the bar at which he performed. When the musician did a birthday shoutout on stage, the plaintiff climbed onto the stage. The plaintiff stated that the musician grabbed her, spun her around, and then dropped her off the stage. The musician testified that he tried to guide the plaintiff off the stage, but she was drunk and stepped off the stage, causing her to fall. The plaintiff hit her head and was diagnosed with a concussion several days later. At trial, the plaintiff’s credibility was called into question when her testimony regarding her medical status appeared to conflict with online videos that had been posted showing her dancing.

The jury returned a verdict for the defendant, finding that the musician was not at fault for the plaintiff’s injuries. The plaintiff moved for a new trial, citing two errors: 1) a reference during opening statements that the plaintiff hoped to be “a lottery lawsuit winner,” and 2) an alleged violation of the collateral source rule. The trial court denied the motion, and the Court of Appeals affirmed the jury’s verdict.

February 26, 2025

Limiting language made HIPAA authorizations noncompliant.

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

Because the HIPAA authorizations included with a health care liability plaintiff’s pre-suit notice included limiting language, the authorizations did not comply with the HCLA and thus plaintiff’s medical malpractice claims were dismissed.

In Curtis v. Sharp, No. E2023-01583-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2025), the plaintiff sent pre-suit notice of a her HCLA suit to five health care providers. This notice included HIPAA authorizations. The HIPAA authorizations sent by the plaintiff including the following limiting language: “Any conferences, formal or informal, of any type or oral communication with [the provider receiving the authorization], or any of [his/her/its] representatives is absolutely forbidden.”

The plaintiff filed her HCLA complaint against three of the providers. Although the plaintiff attached the pre-suit notice materials to her complaint, she failed to attach the HIPAA authorization sent to one of the defendants. That HIPAA authorization was subsequently filed as a Late Filed Authorization. The plaintiff eventually voluntarily dismissed this original suit and refiled pursuant to the savings statute. The second set of HIPAA authorizations contained the same limiting language as the first. The defendants filed a motion to dismiss, arguing that the plaintiff failed to comply with the HCLA by sending faulty HIPAA authorizations and failing to attach one HIPAA authorization to the original complaint. The defendants argued that because of these errors, the plaintiff was not entitled to the 120-day statute of limitations exception granted by the HCLA, making the original suit untimely. The trial court agreed with both of the defendants’ arguments and found that because the original suit was time-barred, this second complaint should be dismissed. On appeal, this ruling was affirmed in part and reversed in part.

February 20, 2025

Previous party brought back into suit under comparative fault statute.

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

When an amended answer asserted comparative fault against the city, which had previously been a party but had been voluntarily dismissed before the amended answer was filed, the plaintiff was allowed to add the city as a defendant within ninety days of the comparative fault allegation under Tenn. Code Ann. § 20-1-119.

In Sands v. Williard, No. W2024-00772-COA-R9-CV (Tenn. Ct. App. Jan. 24, 2025), the plaintiff filed suit against both the city and homeowners after she tripped on a sidewalk in front of the homeowners’ property. The city raised an issue about service of process in its initial answer. In their initial answer, the homeowners admitted to two paragraphs stating that the city had a duty, but there was no other allegation of comparative fault.

The city eventually filed a motion for summary judgment based on the statute of limitations, asserting that it was not properly served and, thus, the limitations period had run. While this motion was pending, the homeowners moved to amend their answer to assert comparative fault against the city. The plaintiff then moved to voluntarily dismiss her claim against the city. The plaintiff explained in her motion that “the purpose of the dismissal was to avoid the alleged outstanding service issues” and that she intended to rely on Tenn. Code Ann. § 20-1-119 to bring the city back into the suit after the homeowners filed their amended answer. The trial court granted the voluntary dismissal, and it allowed the plaintiff to bring the city back into the suit after the homeowners’ amended answer asserted comparative fault against the city.

February 17, 2025

HCLA 120-day Extension Does Not Apply to Savings Statute

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

The 120-day extension of the statute of limitations granted to health care liability plaintiffs who give proper pre-suit notice under the HCLA does not apply to or extend the Saving Statute.

The Tennessee Supreme Court addressed the interplay between pre-suit notice, the 120-day statute of limitations extension, and the Saving Statute in Richards v. Vanderbilt University Medical Center, No. M2022-00597-SC-R11-CV, — S.W.3d — (Tenn. Jan. 22, 2025). The plaintiff had filed an HCLA suit against the defendant after giving proper pre-suit notice under the statute. When filing his first case, the plaintiff utilized the 120-day extension of the limitations period granted by the HCLA. The plaintiff took a voluntary nonsuit in the first case, and subsequently refiled his case pursuant to Tennessee’s Saving Statute, which allows certain cases to be refiled within a year of the dismissal. The second complaint was filed more than a year after the voluntary dismissal, but the plaintiff argued that because he gave pre-suit notice, he was entitled to the 120-day extension pursuant to Tenn. Code Ann. § 29-26-121(c).

The trial court dismissed the refiled complaint, holding that it was time-barred. The Court of Appeals affirmed dismissal based on the statute of limitations. In this opinion, the Supreme Court affirmed, holding that the 120-day extension granted by the HCLA does not apply to extend the Saving Statute.

February 14, 2025

Ecclesiastical abstention doctrine not applied to defamation claim against Southern Baptist Convention.

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

Where the Southern Baptist Convention sent a letter stating that a church “may employ an individual with an alleged history of abuse,” the letter named one employee, and the letter asked if the church had received “allegations of sexual misconduct involving” the employee, the ecclesiastical abstention doctrine did not apply to require dismissal of the case. While the TPPA did apply to the case, the plaintiff employee met his burden of showing a prima facie case of defamation and the related torts alleged.

In Garner v. Southern Baptist Convention, No. E2024-00100-COA-R3-CV (Tenn. Ct. App. Jan. 8, 2025), the plaintiff was a worship pastor at a church affiliated with defendant Southern Baptist Convention (“SBC”). He was also the music director at a Baptist school. The defendant did not exert control over churches affiliated with it, but it could determine whether a church was in “friendly cooperation” with the SBC. That process was controlled by the defendant’s Credentials Committee.

In December 2022, a member of the defendant’s Credentials Committee contacted the plaintiff’s church and stated that it would be sending a letter regarding one of the church’s employees. During subsequent conversations, the Credentials Committee revealed that the allegation involved the plaintiff and later revealed that it was “sexually related.”

February 10, 2025

No tort liability in family business conflict.

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

In a case about the demise of a family business, the Court of Appeals reversed trial court rulings for the plaintiff on tort claims of intentional interference with business relationships and conversion.

In Grubb v. Grubb, No. E2023-01358-COA-R3-CV (Tenn. Ct. App. Jan. 8, 2025), the plaintiff and the defendant were brothers who ran several companies as a family business before their relationship deteriorated. The plaintiff eventually sued the defendant for breach of contract, intentional interference with business relationships, conversion, and other claims. The trial court credited the plaintiff’s testimony that the brothers had an oral agreement. It awarded the plaintiff approximately $2.25 million in damages plus attorneys’ fees and ordered the redistribution of certain companies. On appeal, the verdict for the plaintiff was reversed.

After reversing the finding that the brothers had an express oral agreement, the Court also reversed the finding for the plaintiff on both tort claims. Noting the elements of an intentional interference with business relationships claim, the Court stated that the trial court found that the plaintiff “proved [the defendant’s] improper motive and improper means as [the defendant] maliciously harmed [the plaintiff] and misused his position of control over the LLCs to effectuate the interference.” But while the trial court focused on ways the defendant pushed the plaintiff out of the business, such as asking employees not to talk to him and keeping him from getting equal pay, the Court of Appeals pointed out the plaintiff continued to have “opportunities to do business with the jointly owned companies.”