Day on Torts

January 23, 2020

Nursing Home Agreement to Arbitrate – Who Can Bind Patient?

Where a nursing home patient’s daughter executed the admission paperwork and arbitration agreement, but the power of attorney the patient had previously executed in favor of her daughter specifically excluded the power to make health care decisions, the arbitration agreement was not enforceable.

In Jones v. Allenbrooke Nursing and Rehabilitation Center LLC, No. W2019-00448-COA-R3-CV (Tenn. Ct. App. Dec. 16, 2019), plaintiff’s mother executed a power of attorney (“POA”) in favor of her daughter in 2007. The POA granted plaintiff power to handle certain property and business transactions, but it specifically stated: “This document does not authorize anyone to make medical or other health care decisions for you.” In 2013, the mother was suffering from dementia and was incompetent, so plaintiff executed nursing home admission documents in connection with having the mother admitted to defendant nursing home. Included in these documents was an arbitration agreement.

January 22, 2020

Defense Claims Counsel Interfered With Ex Parte Interviews of Health Care Providers

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

An order awarding sanctions to defendants after plaintiffs sent a letter to healthcare providers allegedly interfering with ex parte interviews between defense counsel and the deceased’s patients former healthcare providers was not appealable as a final order.

In Ibsen v. Summit View of Farragut, LLC, No. E2018-01249-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2019), plaintiffs brought an HCLA suit against defendants based on the care provided to a now-deceased patient. Defendants “filed a motion for a qualified protective order allowing them to conduct ex parte interviews with a list of [the deceased’s] treating healthcare providers pursuant to Tenn. Code Ann. § 29-26-121(f).” The trial court granted the motion and informed plaintiffs’ counsel that he could “contact the doctors and explain[] to them that this order is voluntary,” but that he could not “contact them and tell them not to participate” or otherwise “interfere with the Defendants’ rights to conduct these interviews[.]”

Defendants later filed a motion for sanctions against plaintiffs “asserting that six letters sent by plaintiffs’ counsel to [the deceased’s] treating healthcare providers violated the Court’s order by attempting to keep the health care providers from taking part in the interviews.”* The trial court agreed that the letters violated the order, and it entered an order imposing sanctions against plaintiffs, including having to pay costs and expenses for defendants related to preparing for and deposing the providers. “The trial court also ordered plaintiffs’ counsel to send a retraction letter to all of the treating healthcare providers he had contacted…” Plaintiffs then sought to appeal this case under Tenn. R. App. P. 3, but the Court of Appeals determined that there was no basis for appeal under that rule.

January 21, 2020

Tennessee Tort Reform – Statutes and Case Law

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

I have been compiling the Tennessee tort reform statutes, and the court decisions interpreting them, for a decade. I recently released another edition of my book, Compendium on Tort Reform Statutes and Related Case Law, 2008-2019.

The book contain 549 pages of information helpful to tort lawyers. The best use for the book is this: when researching an unfamiliar area of Tennessee tort law, go through the Table of Contents and see if a topic listed there is potentially relevant to the issues you are researching. If so, turn to the relevant pages and to see (a) what new statutes may impact your issue; and (b) what Tennessee decisions have interpreted those statutes.

The book is only $79.00, plus sales taxes, shipping and handling. You can order it by clicking the link above.

January 21, 2020

False imprisonment statute of limitations begins to run when imprisonment ends.

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

The Tennessee Court of Appeals recently held that “the statute of limitations for false imprisonment claims does not begin to run until the imprisonment ends.”

In Lovell v. Warren County, Tennessee, No. M2019-00582-COA-R3-CV (Tenn. Ct. App. Dec. 16, 2019), plaintiff had been arrested and put in jail on August 16, 2012. Later, the charges against her were dismissed and she was released from jail on August 5, 2013. She filed this false imprisonment claim on June 6, 2014. Defendant filed a motion for summary judgment based on the one-year statute of limitations, which the trial court granted, but the Court of Appeals reversed.

There was no dispute that the statute of limitations for false imprisonment was one year, but the parties disagreed over when the one year time period began to run. Defendant argued that the cause of action accrued when plaintiff was first put in jail, but plaintiff asserted that the limitations period did not begin until her release.

January 20, 2020

Day on Torts Nugget – Amending Complaint While a Motion to Dismiss is Pending

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

Does a plaintiff have the right to amend a complaint while a motion to dismiss is pending and no answer has been filed?

Yes. Rule 15.01 of the Tennessee Rules of Civil Procedure provides a party may amend its pleading “once as a matter of course at any time before a responsive pleading is served[.]” A motion to dismiss is not a responsive pleading and under Rule 15.01 the plaintiff has an absolute right to file an amended complaint. Grose v. Kustoff, 2017-01984-COA-R3-CV, 2019 WL 244469 , at * 4 (Tenn. Ct. App. Jan. 17, 2019); Mosby v. Colson, No. W2006-00490-COA-R3-CV, 2006 WL 2354763, at *12 (Tenn. Ct. App. Aug. 14, 2006) (citing Adams v. Carter County Mem’l Hosp., 548 S.W.2d 307, 309 (Tenn. 1977) (noting that a motion to dismiss is not a responsive pleading for purposes of Rule 15.01). No motion to amend is necessary because the right to amend is granted in Rule 15.01 itself.

Indeed, some courts have held that a plaintiff who files a motion to amend under such circumstances loses the right to argue that the complaint is automatically amended by the filing of a motion and then leave of court is necessary to amend. See City of Oak Ridge v. Levitt, 493 S.W.3d 492, 497 n.3 (Tenn. Ct. App. 2015) (noting that the plaintiff chose not to take advantage of Rule 15.01 allowance of an amended pleading without leave of court); Mosley v. State, No. W2014-01307-COA-R3-CV, 2015 WL 3971883, at *5 (Tenn. Ct. App. June 30, 2015) (indicating that where a plaintiff does not take advantage of its right to amend without leave of the court, this Court cannot correct that choice on appeal).

January 19, 2020

Thoughts About the Interaction Between Subrogation and Comparative Fault

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

Those of you who are interested in the interaction between the law of comparative fault and the law of subrogation (or at least my view on how the two should interact) may wish to read “Made-Whole Made Fair: A Proposal to Modify Subrogation in Tennessee Tort Actions” published in the Belmont Law Review.

Likewise, if you are having difficulty getting to sleep, you may wish to read the same article.

January 17, 2020

HIPAA authorization required after plaintiff sent HCLA notice to multiple providers.

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

Where plaintiff only named one provider as a defendant in an HCLA case, but sent pre-suit notice to forty healthcare providers, a HIPAA-compliant medical authorization was required to be sent with her pre-suit notice. Further, a HIPAA form that left blank the section stating who could disclose records to defendant did not substantially comply with the statute.

In Moore-Pitts v. Bradley, No. E2018-01729-COA-R3-CV (Tenn. Ct. App. Dec. 9, 2019), plaintiff filed an HCLA claim against a single defendant. Before filing suit, however, plaintiff sent pre-suit notice to approximately forty healthcare providers. With her pre-suit notice, plaintiff attached a HIPAA authorization, but the authorization left blank the portion listing “the name of the person or entity authorized to provide records to Defendant.” Attached to the authorization was a list of the forty providers who had received the notice.

Defendant filed a motion to dismiss based on the allegedly insufficient HIPAA authorization. The trial court ruled that the authorization provided did not comply with the statute, that plaintiff was thus not entitled to the 120-day extension of the statute of limitations, and that plaintiff’s complaint should be dismissed as time barred. The Court of Appeals affirmed.

January 17, 2020

Tennessee Court Adopts Revisions to Civil Procedure Rules

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

The Tennessee Supreme Court has adopted proposed amendments to several rules of civil procedure.

Rules 5 and 5B have been amended to account for changes in the court system given the expansion of e-filing across the state.

Rule 33 has been amended in the hope of eliminating gamesmanship in answering interrogatories.

January 16, 2020

How to Authenticate A Facebook Post.

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

How do you authenticate a Facebook account? A Georgia court affirmed a prosecutor’s successful efforts to have excerpts of a criminal defendant’s Facebook account admitted into the evidence.

The defendant (Nichols) claimed

that the trial court abused its discretion by admitting Facebook records that included several private messages that the State claimed he had sent. The State used a search warrant to obtain the records from Facebook, which also provided a certification of authenticity. Nichols argues that the State did not sufficiently authenticate that the messages were sent by him.

January 15, 2020

Seven Reasons To Serve Discovery With Your Complaint

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

The Tennessee Rules of Civil Procedure permit a Tennessee personal injury or wrongful death plaintiff to serve discovery with a complaint. Ordinarily, responses to interrogatories, requests for production of documents, and requests for admissions are due 30 days after service. However, if they are served with the complaint the defendant has an additional 15 days to respond to them.

Why do you want to serve discovery with the complaint?

Why not get the litigation started? You are going to serve discovery sooner or later – or you at least you should. Usually there is no reason not to get the process started early.