Day on Torts

December 4, 2020

HCLA pre-suit notice addressed to administrator as an individual did not provide notice to health care facility.

Where an HCLA plaintiff attempted to sue defendant medical center but sent pre-suit notice to the center’s administrator addressed only to the administrator and not referencing the center, dismissal based on a lack of pre-suit notice was affirmed.

In Webb v. Trevecca Center for Rehabilitation and Healing, LLC, No. M2019-01300-COA-R3-CV (Tenn. Ct. App. Nov. 10, 2020), plaintiff filed this health care liability suit against defendant medical center and four individual employees of the center. Prior to filing suit, she sent five pre-suit notices to the center’s business address. Four of the notices were addressed to the four individual defendants and the fifth was addressed to Pamela Bishop, who was the medical center’s administrator. In neither the address, the address block on the letter, nor the greeting was Ms. Bishop’s role as administrator addressed. Instead, the letter was simply written to Pamela Bishop.

Plaintiff voluntarily dismissed the four individual defendants, and then defendant medical center moved to dismiss based on plaintiff’s failure to give proper pre-suit notice. Defendant asserted that the notice addressed to Ms. Bishop did not fulfill the statutory requirements, and the trial court agreed. On appeal, dismissal was affirmed.

December 3, 2020

Tennessee’s Rule 11 Will Require Email Address on Pleadings

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

The Tennessee Rules of Civil Procedure will be changed July 1, 2021 to require the disclosure of the filer’s email address on papers filed in court. The rule change still must be approved by the General Assembly.

UPDATE: The proposed rule change was approved by the General Assembly on March 22, 2021.

Click to access hr0021.pdf

December 1, 2020

Need CLE? Justice Programs Offers On-Demand Video For Lawyers Who Want to Learn

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

Tennessee Justice Programs has released it Fall 2020 on-demand video seminar CLE programs.

Former Tennessee Supreme Court Justice Penny White, former Court of Criminal Appeals Judge Joe Riley, and I started Justice Programs almost 20 years ago. The seminar program is designed for civil trial practitioners who are interested in enhancing their legal knowledge as they earn CLE credit.

Historically, our seminar was presented in three live programs in Knoxville, Nashville and Memphis. This year, COVID-19 has caused us to abandon the normal and film 15 hours of on-demand legal education. The Tennessee Supreme Court now permits unlimited on-demand programs to fulfill all CLE obligations.

November 30, 2020

Dismissal Based on Lack of Foreseeability Reversed.

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

Where plaintiffs, who were suing on behalf of an employee of an independent contractor on a construction project, alleged facts sufficient to meet the “minimum threshold of foreseeability” against the defendant general contractor, and where discovery had not yet occurred to allow for the inspection of the contracts between the relevant parties, dismissal of plaintiffs’ wrongful death claim against the general contractor was reversed.

In Thompson v. Southland Constructors, No. M2019-02060-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2020), plaintiffs were the decedent’s children, who had died while working as a plumber on a construction project. The project involved building a new gym for Welch College, and before the decedent’s involvement in the project, a different plumping company had laid a sewer line. The day before the gym was scheduled to be used for the first time, general contractor Southland Constructors discovered that the sewer line had not actually been connected to the building before it was buried. Southland then called Mitchell Plumbing, the decedent’s employer, and the decedent was sent to connect the pipe. According to the complaint, Southland advised Mitchell Plumbing that the trench dug to correct the problem would be about 15 feet long and 3 feet deep, but it ended up being both longer and deeper. The complaint alleged that no materials were used to shore up the trench based on the representations made by Southland, that the general contractors failed to have traffic stopped at a nearby parking lot, and that the “soil in the area was in an especially dangerous condition because it was wet and loose due to the previous excavation.” Soon after the decedent got into the trench to repair the sewer line, the walls collapsed, and he was killed.

November 24, 2020

Expert affidavit created issues of fact to withstand summary judgment in HCLA case

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

Where an HCLA plaintiff presented expert testimony that defendant doctor deviated from the standard of care for a patient in respiratory distress by “failing to provide necessary treatment before ending his shift,” summary judgment for defendant was reversed because genuine issues of material fact existed.

In Davis v. Ellis, No. W2019-01367-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2020), plaintiff’s wife was admitted to the emergency room and diagnosed with pneumonia. The following day at 4:00 pm, she was examined by defendant doctor, who was the on-call intensivist. Defendant noted that the patient was awake and alert but that her oxygen saturation level was 93% and that her “respiratory condition had progressively worsened over the past 24 hours.” Defendant “did not order intubation at that time but referred [the patient] to the ICU for observation.” Defendant’s shift ended two hours later.

By 7:30 pm, the patient’s oxygen saturation level had dropped to 82%, and the intensivist who was on call ordered that she be put on non-invasive, positive-pressure face mask ventilation. Around 10:00 pm, her oxygen levels began falling again and were down to 74% by 11:00 pm. The emergency room doctor then tried to intubate her but eventually called anesthesiology for assistance. The patient was finally intubated, but she died approximately six hours later.

November 23, 2020

Prejudgment interest included in “all damages” language in uninsured motorist insurance policy.

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

Where plaintiff’s uninsured motorist insurance policy stated that it covered “all damages” and prejudgment interest was not listed as a specific exception to coverage, the Court of Appeals ruled that the policy language was “sufficiently broad to include prejudgment interest.”

In Lewis v. State Farm, No. W2019-01493-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2020), plaintiff was in an accident caused by an unknown driver who left the scene. Plaintiff was driving his brother’s car, and the company insuring the car settled with plaintiff. Plaintiff was also personally insured by defendant State Farm, with uninsured motorist coverage of up to $500,000 per accident.

Plaintiff filed this suit pursuant to Tenn. Code Ann. § 56-7-1206. After both settlement negotiations and mediation failed to produce a resolution, the case was tried in front of a jury, and the jury found the unknown motorist 100% at fault, awarding $275,000 in damages to plaintiff. Plaintiff filed a post-trial motion seeking prejudgment interest, which the trial court denied, finding that the insurance policy did not include prejudgment interest. This appeal followed, and the trial court was reversed.

November 19, 2020

Non-compliant HIPAA Authorization Leads to Dismissal of Tennessee Malpractice Case

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

Where a Tennessee HCLA plaintiff sent a HIPAA authorization that failed to allow the defendants to obtain records from each other, the trial court’s finding that plaintiff did not comply with the statutory requirements and that the suit was thus time-barred was affirmed.

In Dial v. Klemis, No. W2019-02115-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2020), plaintiff was the daughter of a patient who died after a cardiac stent procedure. The procedure was performed by defendant Dr. Klemis, who was an employee of defendant Stern Cardiovascular Foundation, and the procedure occurred at defendant Methodist Hospital, with defendant Methodist employees assisting.

Before filing this healthcare liability suit, plaintiff sent pre-suit notice as required by the HCLA, including a HIPAA authorization pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E). Plaintiff admitted, though, that the HIPAA forms she sent did “not allow each of the Defendants to obtain complete medical records from each other provider being sent notice,” which is a requirement of the HCLA. Defendants filed motions to dismiss asserting that because plaintiff’s HIPAA authorizations were non-compliant, she was not entitled to the 120-day extension of the statute of limitations granted by the HCLA, and that her suit which was filed more than one year after the allegedly negligent procedure was therefore time-barred. The trial court agreed, dismissing the case, and the Court of Appeals affirmed.

November 12, 2020

Summary judgment affirmed where plaintiff knew about leak before she slipped.

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

Where a residential tenant and property owner both knew about a leak which formed a puddle of water that caused plaintiff to slip, defendants property owner and property manager were not liable for plaintiff’s injuries and summary judgment was affirmed.

In Richardson v. H & J Properties, LLC, No. W2019-02082-COA-R3-CV (Tenn. Ct. App. Oct. 21, 2020), plaintiff moved into a triplex apartment owned and operated by defendants in March 2014. In the following months, she reported leaks in her laundry room and adjoining room several times. On September 10, 2014, she again reported a leak in this area of her apartment. The next day, a maintenance worker was sent to the apartment to repair the leak, and while plaintiff was showing him the issue, she slipped and fell in a “small pool of water” that had been caused by the leak, breaking her ankle.

November 9, 2020

Defamation claimed barred by ecclesiastical abstention doctrine

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

Where plaintiff’s tort claims against the church and church elders where he was previously pastor were all connected to the church’s termination of plaintiff as pastor and his resistance to that termination, the claims were barred by the ecclesiastical abstention doctrine.

In Maize v. Friendship Community Church, Inc., No. E2019-00183-COA-R3-CV (Tenn. Ct. App. Oct. 19, 2020), plaintiff was the former pastor at defendant church. After plaintiff had inappropriate communications with a female church member on Facebook, the church elders (also named as defendants) met and subsequently requested plaintiff’s resignation. Plaintiff refused and was then given a termination letter, which he “refused to abide by.” After a second termination letter was delivered to plaintiff, the church elders held another meeting, wherein “it was suggested that [the termination] had to be done through a church vote in order to be effective.” Because plaintiff was refusing to acknowledge his termination, the church sent an email to its members explaining the termination and stating that plaintiff was likely to attempt to hold church services.

November 6, 2020

Dismissal of Legal Malpractice Claim Reversed.

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

Where plaintiff alleged that the law firm representing both him and his employer had him sign an engagement letter that waived conflicts of interest, but that the law firm had engaged in behavior before the representation that created a conflict of interest and which the firm did not inform him of when presenting him with the engagement letter, plaintiff had plead sufficient facts to support a legal malpractice claim and judgment on the pleadings for defendant was reversed.

In Culpepper v. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., No. E2019-01932-COA-R3-CV (Tenn. Ct. App. Oct. 16, 2020), plaintiff filed a legal malpractice claim against defendants, who had represented both plaintiff and the company for which plaintiff worked as interim CEO. In his complaint, plaintiff alleged that defendants “represented him concerning matters before the United States Securities and Exchange Commission (SEC) on August 4, 2016 and August 11, 2016.” He asserted that defendants then “met with an independent forensic accountant and discussed [plaintiff] with respect to the SEC and other attorney-client privileged and confidential matters WITHOUT his knowledge” on August 15, 2016. Plaintiff also alleged that defendants had discussions with the company’s board of directors without his knowledge while representing both plaintiff and the company, that defendants “presented fabricated documentation to support his ultimate termination for cause,” that defendants had represented both him and the company simultaneously “despite an obvious conflict of interest,” and that defendants had continued representing the company after terminating representation of plaintiff in December 2016.