Day on Torts

August 26, 2019

Defective Pre-Suit Notice In Case 1 Bars Use of Savings Statute in Case 2

In order to take advantage of the 120-day extension of the Tennessee HCLA provided by giving pre-suit notice, a plaintiff must have provided a HIPAA-compliant medical authorization with the notice.

The case of Webb v. AMISUB (SFH) Inc., No. W2017-02539-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2019), concerned whether a re-filed healthcare liability claim that was filed in reliance on the savings statute was timely, with the Court of Appeals ultimately affirming dismissal of the case. The alleged medical negligence took place on July 26, 2009, and plaintiffs initially gave pre-suit notice on July 21, 2010. That notice included purported HIPAA releases, but “the portion of the forms designating to whom records may be released was left blank.” On September 23, 2010, plaintiffs filed their initial lawsuit, naming as defendants the hospital, a doctor, and four nurses. The doctor and nurses filed a motion for summary judgment, arguing that plaintiffs’ HIPAA authorizations were insufficient, and that they could thus not take advantage of the 120-day extension under the HCLA and the suit was barred by the one-year statute of limitations. The trial court agreed, and after an interlocutory appeal, plaintiffs voluntarily dismissed their claim against the hospital.

August 15, 2019

Neurosurgery Consultant Not Qualified As Expert Against Urgent Care Center Nurses or Physician

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

Where plaintiff could only show that his expert in an HCLA case was a neurosurgeon consultant during the year prior to the incident, yet the alleged negligence was committed by a medical assistant and licensed practical nurse (LPN) in an urgent care clinic, plaintiff’s expert was not qualified to testify and summary judgment was affirmed.

In Estate of Shelton v. Greeneville Urgent Care and Occupational Medicine Clinic, No. E2018-00862-COA-R3-CV (Tenn. Ct. App. June 24, 2019), plaintiff had gone to defendant urgent care clinic seeking pain medication. A medical assistant there asked him to get on the examination table. According to plaintiff, he told the assistant that he could not get onto the table, but she insisted, and while he was using a stool to get up, the “stool slipped or moved causing Plaintiff to lose his balance and fall.” Though the severity of the fall was disputed and there was no fall documented in plaintiff’s file, plaintiff was seen by a nurse practitioner who arranged for him to be x-rayed at the adjacent hospital. He was sent home after the x-ray, despite his complaints of pain, but was called the next day and told to return to the hospital for treatment for a broken back. Plaintiff eventually had surgery and physical therapy.

Plaintiff filed an HCLA claim against the clinic and the hospital, alleging that the stool was dangerous and that the clinic staff negligently insisted that he use it, and that “the Hospital failed to promptly diagnose and treat his injuries.” Plaintiff identified Dr. Edward Kaplan as an expert, who was a neurosurgeon consultant, and defendant filed a motion for summary judgment, arguing that plaintiff’s expert should be disqualified. The trial court agreed, granting summary judgment, and the Court of Appeals affirmed.

August 13, 2019

Suicide and Foreseeability

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

Where a defendant (who happened to by a psychiatrist) knew of decedent’s past suicide attempt, knew he had just ended his relationship with her, and let the decedent stay in his home alone with an unsecured gun, the Tennessee Supreme Court reinstated the trial court’s grant of summary judgment on a negligence case against defendant related to decedent’s suicide, holding that the “suicide constitutes a superseding intervening event that breaks the chain of proximate causation.”

In Cotten v. Wilson, No. M2016-02402-SC-R11-CV (Tenn. June 19, 2019), the personal representative of decedent’s estate brought suit against defendant for negligence, seeking to “hold the defendant liable for negligently facilitating the decedent’s suicide.” Decedent was married and had a son when she met and began an affair with defendant. Decedent was a nurse at Skyline Hospital, and defendant was a psychiatrist there. Decedent divorced her husband in 2012, but she retained equal co-parenting time of her son. Two years after beginning the relationship, in October 2013, decedent moved in with defendant, at which time defendant “noticed that [she] was having frequent crying spells and seemed to be struggling with eviction, job loss, and her new job not working out.” Defendant stated that decedent was “not as energetic and motivated as she once was, and on certain days she did not take care of herself.”

August 12, 2019

Legal Malpractice Case Dismissed – No Causation As A Matter of Law

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

Where a legal malpractice plaintiff could not “prove that he would have obtained relief in the underlying lawsuit but for the attorney’s malpractice,” summary judgment was affirmed.

In Marble v. Underwood, No. M2017-02040-COA-R3-CV (Tenn. Ct. App. June 24, 2019), plaintiff filed a legal malpractice action against the attorney who had initially been appointed to represent him in a case with the Department of Children’s Services (“DCS”) regarding the custody of his minor child. While defendant attorney was representing him, the plaintiff/father agreed to two different parenting plans with many requirements, which were eventually ratified by the trial court. During the time father was represented by defendant, DCS filed a dependency and neglect petition as to the minor. Defendant attorney “advised Father to stipulate that the Child was dependent and neglected,” father did so, and the “child was adjudicated as dependent and neglected.”

After this, father retained different counsel. He appealed the dependent and neglected finding to circuit court, and after a somewhat convoluted procedural process, “the trial court ultimately ruled that the Child was dependent and neglected as a result of Father’s inability to care for her and based upon his severe abuse for his knowing failure to protect her.” The ruling was affirmed on appeal.

August 5, 2019

No Continuance for HCLA Plaintiff Who Did Not Have Expert Affidavit After Eight Months

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

Where plaintiff’s expert witness in an HCLA case unexpectedly decided to no longer provide testimony soon before plaintiff’s response to a motion for summary judgment was due, and plaintiff sought to continue the motion and hold a hearing on possible witness tampering, the trial court erred by granting summary judgment to some defendants. For defendants not affected by the allegedly tampered-with witness, however, summary judgment was affirmed due to the plaintiff’s failure to obtain an expert affidavit in the eight months the case was pending.

In Stubblefield v. Morristown-Hamblen Hospital Association, No. E2017-00994-COA-R3-CV (Tenn. Ct. App. June 11, 2019), plaintiff filed an HCLA claim related to allegedly negligent post-operative care after a cardiac catheterization. Plaintiff named as defendants the hospital, the nurse who treated her overnight after her surgery, a physician group, and the physician who was first paged when a complication was discovered and who ordered treatment for plaintiff without actually going to the hospital to see her.

July 31, 2019

Lay Witness Opinion on Source of Gravel on Road Admissible

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

Lay witness testimony should have been admitted regarding the likely source of gravel on a road after road construction, and summary judgment in this case was overturned.

In Flagg v. Hudson Construction Company, No. E2017-01810-COA-R3-CV (Tenn. Ct. App. May 28, 2019), plaintiff crashed his motorcycle on a recently paved section of a state highway. Plaintiff alleged that an excessive amount of loose gravel left over from the construction caused the crash, and he brought negligence suits against the construction company and the state. The trial court granted summary judgment to defendants on all claims, holding that lay witness testimony regarding the likely source of the loose gravel on the road should be excluded, but the Court of Appeals reversed.

The evidence at trial showed that defendant construction company was contracted to resurface the road, and that the process involved laying rock chips and adhesive materials on the road, “followed by a thin layer of microsurfacing for a smoother driving surface.” The company “periodically cleaned excess gravel and debris from the road throughout the paving process,” but at the end it “only cleaned those portions of the road it deemed necessary for the permanent striping to adhere properly.” The stripes were put on the road on October 16th and 17th, and a TDOT supervisor inspected the project on October 19^th. He stated that he “looked for excess gravel, overall cleanliness, and the integrity of the permanent striping,” but that he did the majority of his inspection while driving his vehicle and only stopped and got out “when he deemed it necessary.” He found no problems and notified the construction company that the work was acceptable that day.

July 30, 2019

Tennessee Law of Civil Trial (Second Edition) – 2019

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

The printer just sent word that the proof for the second edition of Tennessee Law of Civil Trial has been shipped to my Brentwood office. I intend to review the proof over the weekend and place the order next week. The books should be in-hand by mid-September.

Those of you who purchased the first edition of the book should have received a letter from me giving you a discount on the second edition if you ordered it by August 10. Those who order by that date will save over 50% of the cost of the book. Those who order the book after August 10 will pay the full retail price, $119.00 plus shipping and handling and sales tax.

The second edition includes updated case law released since the book was first published in 2014. Several chapters have been substantially rewritten and updates have been made to virtually every chapter.

July 30, 2019

Video Evidence Supports Summary Judgment In Grocery Slip and Fall Case

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

Where the evidence suggested that a small amount of clear liquid had been on the floor of a grocery store for just a short time, summary judgment for defendant in a Tennessee premises liability case was affirmed.

In Jones v. Publix Supermarket, Inc., No. M2018-01672-COA-R3-CV (Tenn. Ct. App. June 7, 2019), plaintiff was shopping in defendant grocery store. As she rounded the corner towards the seafood department, she slipped on clear liquid. She got up quickly and did not seek assistance, and she refused to fill out an incident report on the day of the accident, but she returned the next day to complete one. She subsequently filed this premises liability action. The trial court granted summary judgment for defendant, finding that plaintiff failed to prove actual or constructive notice of the allegedly dangerous condition, and the Court of Appeals affirmed.

The incident was captured by store cameras, which showed that about two minutes before plaintiff fell, a toddler was in a shopping cart in the same area and was playing with and drinking from a sippy cup. The toddler dropped the sippy cup into the wire cart two times, and defendant argued that this was the likely source of the liquid. In the two minutes between the toddler leaving the area and the plaintiff falling, the video showed several customers walking through the area with no problems, and no store employees coming nearby. During discovery, the store employee who was working in the seafood department that day stated that he was helping a customer at the counter at the time of the incident, but that he heard something happen. He went to the location of plaintiff’s fall around two minutes later, saw “a little bit of water…not a puddle” on the floor, and waited there until another employee brought paper towels to clean the liquid. He testified that prior to the fall, he had seen no liquid in the area.

July 23, 2019

Circuit Court Complaint not Transferred to Claims Commission.

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

When a case that should have been filed with the Claims Commission was filed in circuit court and did not “pertain to the negligent operation or maintenance of any motor vehicle or any other…conveyance,” the trial court could not transfer the case to the Claims Commission and dismissal was affirmed.

In Powell v. Tennessee Department of Correction, No. M2018-01677-COA-R3-CV (Tenn. Ct. App. May 6, 2019), plaintiff filed a pro se complaint in circuit court alleging that TDOC employees injured him “’by gross negligent acts or omissions within the scope of their employment’ in the handling of Plaintiff’s prison disciplinary hearing.” The trial court dismissed the case, finding that it lacked subject matter jurisdiction, and it denied plaintiff’s request to transfer the case. The Court of Appeals affirmed.

“[A]s a general rule, claims for monetary damages against the State may be heard only by the Claims Commission.” (citing Tenn. Code Ann. § 9-8-307(a)(1)). Because plaintiff’s claims did not fall into any exception to this rule, the trial court correctly ruled that it did not have subject matter jurisdiction over this case.

July 15, 2019

Recovery of Future Medical Expenses Under Tennessee Law

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

An award for future medical expenses in a personal injury claim under Tennessee law may be appropriate even where the plaintiff does not establish with “absolute certainty” that the future treatment will be pursued, as the standard for such an award is “reasonable certainty.”

In Kirby v. Memphis Light Gas & Water, No. W2017-02390-COA-R3-CV (Tenn. Ct. App. April 29, 2019), plaintiff was in a car accident with one of defendant’s drivers. After a bench trial, the judge assigned plaintiff 30% of the fault and awarded him $105,000 in damages, which included an award for future medical expenses to cover a prospective surgery. On appeal, defendant argued that the award for future medical expenses was speculative, and that plaintiff had failed to mitigate his damages by stopping treatment when he did. The Court of Appeals affirmed the damages award.