Day on Torts

May 29, 2020

Expert practicing in Tennessee under licensure exemption not qualified as HCLA expert

When a doctor is practicing in Tennessee but not licensed in Tennessee or in a contiguous state, but is instead practicing under a statutory licensure exemption as part of a fellowship program, he does not meet the requirements to testify as to standard of care and breach of said standard under the HCLA.

In Young v. Frist Cardiology, No. M2019-00316-SC-R11-CV (Tenn. April 20, 2020), plaintiff filed a health care liability case based on the alleged negligent treatment of decedent during a cardiac procedure and his subsequent death. Pursuant to the case management order, plaintiff identified Dr. Jason Rytlewski as “the expert witness who would testify that [defendant] deviated from the applicable standard of care in his treatment of [decedent].”

Defendants filed motions for summary judgment, asserting that Dr. Rytlewski was not competent to testify because he “did not have a medical license in Tennessee or a contiguous state during the year before [decedent’s] heart procedure, as required by Tennessee Code Annotated section 29-26-115(b).” Plaintiff responded that Dr. Rytlewski was “familiar with the standards of acceptable professional practice for [decedent’s] heart procedure in the Davidson County area,” and that the “Tennessee Board of Medical Examiners had granted Dr. Rytlewski an exemption that allowed him to practice medicine without a medical license during his fellowship at Vanderbilt University.” Plaintiff argued that due to this exemption, the licensure requirement of Tenn. Code Ann. § 29-26-115(b) did not apply to him, as it only applies “if one is required to have a license.”

May 27, 2020

HIPAA Form Releasing Records to Plaintiffs’ Counsel Not Compliant.

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

Where plaintiffs sent pre-suit notice to 45 health care providers, but the HIPAA authorization included with the notice only authorized disclosures to plaintiffs’ counsel, dismissal of their health care liability claim based on failure to comply with the statutory requirements was affirmed.

In Owens v. Stephens, No. E2018-01564-COA-R3-CV (Tenn. Ct. App. April 16, 2020), plaintiffs filed an HCLA claim against numerous defendants alleging that negligent care of plaintiff mother resulted in the death of her child. Before the suit was filed, plaintiffs sent pre-suit notice pursuant to the HCLA to 45 health care providers. This notice included a HIPAA authorization for the release of the mother and child’s medical records, but the release stated that it permitted providers “to disclose my entire medical record…to BREEDING & HENRY, LLC…” Breeding & Henry, LLC was the law firm representing plaintiffs.

May 26, 2020

Grocery store assumed duty to maintain its parking lot

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

Where a grocery store lessee was not responsible for maintaining its parking lot under its lease, but it had repeatedly exercised control over the parking lot area where plaintiff fell, the Court of Appeals found that it had “assumed a duty to maintain the parking lot[.]”

In Jones v. Earth Fare, Inc., No. E2019-00450-COA-R3-CV (Tenn. Ct. App. April 15, 2020), plaintiff slipped and fell in a puddle of antifreeze in defendant grocery store’s parking lot. Another customer had previously fallen in the same puddle and informed the manager on duty, who came out to see the puddle. The manager then went back inside the store to get cat litter to put on the puddle, but she stopped to help another employee. During this time, plaintiff exited the store and slipped in the large puddle of antifreeze.

Plaintiff filed this premises liability case against several defendants, including defendant grocery store. The grocery store filed a motion for summary judgment, asserting that “it had no legal or contractual duty to maintain the area where [plaintiff] fell” and that parking lot maintenance was the responsibility of its landlord. The trial court granted the motion for summary judgment, but the Court of Appeals reversed.

May 22, 2020

Discovery Sanction Affirmed For Failure to Produce Photograph

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

Where plaintiff failed to produce a photograph of an accident scene in response to requests for production, despite a consent order compelling a response to the discovery requests, the Court of Appeals affirmed the exclusion of a portion of defendant’s deposition testimony that plaintiff wanted to use at trial as a sanction.

In Cuddeford v. Jackson, No. W2019-00539-COA-R3-CV (Tenn. Ct. App. April 16, 2020), plaintiff filed a negligence suit against defendant after a motorcycle accident. Defendant was backing out of his driveway, and plaintiff alleged that defendant backed into plaintiff’s path, causing plaintiff to lose control of his motorcycle and crash.

In February 2016, defendant sent interrogatories and requests for production of documents to plaintiff, which including a request for “copies of any photographs…relating to the accident scene.” Plaintiff did not respond to the discovery requests, which eventually resulted in defendant filing a motion to compel. The trial court entered a “consent order for Plaintiff to respond to the interrogatories and request for production of documents by July 6, 2016.” The only document produced by plaintiff in response was a medical authorization.

May 20, 2020

Magazine rack at checkout determined not a “dangerous condition”

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

Where plaintiff alleged that a magazine stand at a grocery store checkout was a dangerous condition, but she had no evidence regarding how long the condition had existed and no proof that the magazine stand had caused any other falls, summary judgment for defendant was affirmed.

In Lyon v. Castle Retail Group, LLC, No. W2019-00405-COA-R3-CV (Tenn. Ct. App. April 14, 2020), plaintiff filed a pro se premises liability action after falling in defendant’s grocery store. Plaintiff alleged that the metal foot of a magazine display rack was “protruding from the base of [the rack] in the checkout area,” and that she caught her foot on the metal, causing her to fall. After plaintiff’s fall, her companion returned to the store and took pictures of the magazine rack. He also took pictures of the rack in the years following plaintiff’s fall.

May 18, 2020

Pharmacy cannot use seller shield defense in health care liability case.

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

When a complaint asserts a health care liability (formerly known as “medical malpractice”) claim against a pharmacy and/or pharmacist, the pharmacist defendants are “barred from asserting the ‘seller shield’ defense set forth in the Tennessee Products Liability Act, Tenn. Code Ann. § 29-28-106.”

In Heaton v. Mathes, No. E2019-00493-COA-R9-CV (Tenn. Ct. App. April 3, 2020), plaintiffs filed an HCLA claim against several defendants based on complications suffered after using a certain prescription drug. The named defendants included the pharmacy and pharmacists who filled the prescription. According to plaintiff, his use of prescription Victoza resulted in pancreatitis. Plaintiff had begun using the drug in 2014, and approximately a year later the FDA issued a warning regarding the “risk of acute pancreatitis with the medication’s use.”

May 15, 2020

Case Law Supporting the Use of Remote Video for Depositions

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

This article by Steven Auvil in the National Law Journal gathers case law supporting the right of the parties to take remote video depositions during the Pandemic.

An excerpt:

In Ogilvie v. Thrifty Payless, the Western District of Washington court denied the parties’ joint motion to extend court deadlines, including the fact discovery deadline, due to the dilatory impact of COVID-19 on the parties’ ability to conduct depositions. After noting the parties’ failure to address the possibility of taking depositions by remote means (and encouraging their use), the court put a sharp point on why the parties needed to resort to such depositions: “This pandemic may well be with us for many months to come. We will all need to adjust to keep litigation moving forward. Unless the parties have explored alternative means to complete discovery, the court does not consider the mere existence of the pandemic as ‘good cause’ for a delay in the case schedule.”

May 12, 2020

“Cancellation Rule” Leads to Dismissal of Case

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

Where plaintiffs could not prove that a trucking company owned the tractor that caused an accident, and instead offered directly contradictory evidence on the issue, summary judgment for defendants was affirmed.

In Affainie v. Heartland Express Maintenance Services, Inc., No. M2019-01277-COA-R3-CV (Tenn. Ct. App. April. 1, 2020), plaintiffs were the driver and passenger of a car involved in a hit-and-run car accident when a tractor-trailer truck allegedly crossed into plaintiffs’ lane. Plaintiffs filed suit against defendant Heartland Express, whom they alleged owned the truck in question, as well as defendant State Farm under their uninsured motorist insurance policy.

May 6, 2020

Suing a Deceased Defendant in Tennessee

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

Where a plaintiff filed a personal injury action against the personal representative of the estate of the deceased tortfeasor, but the estate had already been closed and the statute of limitations had run by the time the plaintiff sought to extend the time to file correctly, dismissal based on untimeliness was affirmed.

In Algee v. Craig, No. W2019-00587-COA-R3-CV (Tenn. Ct. App. Mar. 31. 2020), plaintiff was injured in a car accident allegedly caused by Nancy Craig on September 25, 2017. Nancy Craig died the following January, and her estate was opened with Defendant David Craig as her personal representative in February 2018. The estate was closed on July 13, 2018.

May 3, 2020

Deaths in Car Crashes Down Almost 25% in Tennessee

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

Every Tennessean noticed a decline in motor vehicle traffic in the the month of April 2020. The reduced number of vehicles on the roads showed up in the death rate on the state’s highways.

In 2019, 88 people died on Tennessee highways during the month of April. In April 2020, 67 people died.

To be sure, every death on our highways results in a horrible loss for someone – each person who dies is someone’s parent, child, spouse or sibling. But last month 21 fewer families received bad news as a result of a motor vehicle crash in Tennessee.