Day on Torts

March 18, 2019

2017 Tennessee Health Care Liability Statistics – Part 1

The Tennessee Department of Commerce and Insurance has released the 2018 Tennessee Health Care Liability Claims Report (“Report”). The 2018 Report was released in 2019 but contains data for 2017. The Report is required as a result of legislation passed by the Tennessee General Assembly in 2004.

Some 1589 claims against Tennessee health care providers were closed in 2017. Of those, 1242 (78.6%) were claims closed other than as the result of judgment, settlement or ADR.

Some 33 claims (2.08%) were closed as a result of judgment, 8 of which were defense verdicts in prior years but affirmed on appeal in 2017. A total of 253 cases (15.92%) were settled, and another 61 (3.84%) were resolved via ADR. (Do not ask me why these numbers are kept separately or whether they are accurate.)

March 14, 2019

Motion to Amend Must Be Considered Before Hearing Motion to Dismiss

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

Before granting a motion to dismiss, a trial court should fully consider a pending motion to amend the complaint.

In Grose v. Kustoff, No. W2017-01984-COA-R3-CV (Tenn. Ct. App. Jan. 17, 2019), plaintiffs filed a pro se legal malpractice claim against defendant attorney. Instead of filing an answer, defendant filed a motion to dismiss based on the statute of limitations. Plaintiffs followed by filing a motion to amend their complaint, and they attached their proposed amended complaint to the motion. The trial court granted defendant’s motion to dismiss, ruling that the claim was time-barred, but never specifically addressed the motion to amend in its ruling. Plaintiff appealed, and the Court of Appeals vacated the judgment.

The Court began by noting that because defendant had not filed a responsive pleading, plaintiffs were entitled to amend their complaint once as a matter of course without leave of the court pursuant to Tenn. R. Civ. P. 15.01. Because plaintiffs chose to file a motion to amend rather than simply filing their amended complaint, however, they could not rely on Rule 15.01 and did need leave of court to amend. In Tennessee, “even where leave of court is necessary to the filing of an amended pleading, the trial court must properly consider the motion pursuant to the liberal policy outlined by Rule 15.01.” (internal citation omitted).

March 13, 2019

Certificates of Good Faith and Voluntary Dismissals Pending a Motion

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

When a motion for summary judgment in an HCLA case was based solely on the failure to file a certificate of good faith with the complaint, the trial court rightly considered it a motion to dismiss and allowed plaintiff to take a voluntary dismissal.

In Renner v. Takoma Regional Hospital, No. E2018-00853-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2019), plaintiff filed an HCLA claim against defendants, but failed to file a certificate of good faith with her complaint. Defendants filed motions to dismiss on this basis, and plaintiff subsequently filed and served a certificate of good faith. Defendants then filed motions for summary judgment, with attached affidavits, arguing that they were entitled to judgment as a matter of law due to the failure to file the certificate of good faith with the complaint. Plaintiff filed a motion for voluntary dismissal, and defendants argued that Rule 41.01 prohibited voluntary dismissal when a motion for summary judgment was pending. The trial court ruled that the proper way to challenge the lack of a certificate of good faith was a motion to dismiss, and that the motion for summary judgment filed in this case was “in fact just a restyled motion to dismiss in that there are no facts that are necessary here.” The trial judge ruled that he was going to consider the motion a motion to dismiss, and thus allowed plaintiff to take a nonsuit.

March 12, 2019

Exclusion of Expert Witness Partially Overturned

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

Where an expert in a professional negligence case against an insurance agent admitted that he had very limited experience with a certain type of policy, he was not qualified to testify as to the standard of care regarding that policy type.

In Littleton v. TIS Insurance Services, Inc., No. E2018-00477-COA-R3-CV (Tenn. Ct. App. Jan. 9, 2019), plaintiffs filed a professional negligence case against defendant insurance agent. The facts of this case revolved around a company, Merit Construction, asking its insurance agent to procure a commercial general liability insurance policy. Merit requested that the policy come from a company with an A rating, and defendant agent provided three options. Merit chose an option from Highlands, which actually had a rating of B++. Defendant procured this policy and also procured a cut-through endorsement, which defendant claimed was “to raise the Highlands policy to an A-rating…” At the time Merit was given the three options, it was not given financial information about any of the potential carriers, and defendant’s agent “indicated that all three companies were A-rated companies with the cut-through endorsement from Highlands[.]” More than a year after the policy was purchased, Highlands’ rating dropped to a B, and defendant did not inform Merit or move the coverage to a different carrier. There were subsequent issues collecting when a claim was made to Highlands because it had been placed in receivership.

March 11, 2019

Assertion of the Fifth Amendment Privilege in Wrongful Death Cases

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

A motion for summary judgment cannot be based solely on “unverified reworded statements of some of the factual allegations of the complaint,” along with unsworn, unverified, and unsigned exhibits. In addition, when a defendant asserts their Fifth Amendment privilege against self incrimination in an answer or in response to discovery requests, such assertion cannot “in and of itself be taken as an admission of the allegations[,]” but a plaintiff should be allowed to “present corroborating evidence as to each fact for which it seeks a negative inference” in connection with the assertion of the privilege.

In Smith v. Palmer, No. M2017-01822-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2019), plaintiff filed a wrongful death suit against several defendants regarding the death of her daughter. The daughter and defendants were camping at a music festival, and daughter’s body was found one morning in the lake. There was a dispute as to the cause of death, and though criminal charges were not filed, plaintiff alleged that defendants “caused her daughter’s death and conspired to cover it up.”

March 4, 2019

Certificate of Good Faith Required for Negligent Supervision Claim

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

When a plaintiff filed suit against a massage therapist and his employer alleging various claims based on an intentional sexual assault, the requirements of the HCLA did not apply to the intentional tort claims against the massage therapist. For the negligent retention or supervision claim against the employer, however, a certificate of good faith was required under the HCLA.

In Jackson v. Burrell, No. W2018-00057-COA-R3-CV (Tenn. Ct. App. Jan. 16, 2019), plaintiff alleged that during a massage, defendant massage therapist sexually assaulted her, which resulted in a genital infection and eventual outpatient surgery. Plaintiff filed suit against the therapist and his day spa employer, alleging assault and battery, intentional infliction of emotional distress, and false imprisonment against the therapist, and asserting claims for vicarious liability and negligent supervision, retention and training against the employer. Plaintiff gave pre-suit notice of her claims pursuant to the HCLA, but she did not file a certificate of good faith with her complaint. Defendants both filed motions for summary judgment based on the lack of a certificate of good faith, and the trial court granted the motions. On appeal, summary judgment as to the therapist was reversed, but the ruling for the employer was affirmed.

March 1, 2019

No Evidence From Plaintiffs Leads to Summary Judgment for Defendant

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

Where a child was injured at school but her parents had no evidence that the school had breached a duty of care or that an action by a school employee caused the injury, summary judgment was affirmed.

In Webster v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. M2018-00106-COA-R3-CV (Tenn. Ct. App. Jan. 11, 2019), plaintiffs were the parents of a six-year-old girl with autism. While at kindergarten, the girl injured her arm, and plaintiffs brought a negligence suit under the GTLA. Plaintiffs amended their complaint more than once, and each version alleged that the injury was caused by a lack of appropriate care in the classroom. More than two years after filing suit and “after all discovery had been completed,” plaintiffs filed a motion to amend their complaint again, this time seeking to add “allegations that [the child’s] injuries occurred on the playground and that Metro was negligent in allowing her on the playground and in failing to provide appropriate supervision.” The trial court denied the motion to amend and then granted defendant’s motion for summary judgment, finding that plaintiffs could not “demonstrate that an employee of the Metropolitan Government breached a duty of care owed to plaintiffs,” and that “plaintiffs failed to prove cause in fact or proximate cause.” The Court of Appeals affirmed.

February 28, 2019

Tennessee Tort Filings and Trials – 2017-18 – Part 3

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

Two previous posts discussed Tennessee tort and health care case filings and the damages awarded in Tennessee personal injury and medical malpractice cases for the fiscal year ending June 30, 2018. This post will explore trial and damages data from the largest counties in Tennessee.

Shelby County saw 66 tort trials (33 jury, 33 nonjury) and 5 (3 jury, 2 nonjury) health care liability trials. Damages were awarded in 36 tort trials and none of the HCLA trials. The total damages awarded in tort trials was $7,228,488. There were 8 verdicts in tort trials over $100,000, one of which was over $1,000,000.
Davidson County conducted 52 tort trials (21 jury, 31 nonjury) and 4 (4 jury, 0 nonjury) health care liability trials. Damages were awarded in 36 tort trials and in 2 of the HCLA trials. The total damages awarded in tort trials was $2,509,836. There were 5 verdicts in tort trials over $100,000, one of which was over $1,000,000. The total damages awarded in HCLA trials was $968,578.

February 27, 2019

Tennessee Tort Filings and Trials – 2017-18 – Part 2

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

Yesterday we discussed the number of tort filings and dispositions in tort and health care liability cases in Tennessee and documented the number of trials in those cases. Today we look at damage awards.

In the fiscal year ending June 20, 2018, damages were awarded to the plaintiff in 98 of the 337 tort cases that went to trial. (Unfortunately, the data does not tell us whether the damages were awarded in the jury or non-jury trials.)

In fiscal 2016-17, damages were awarded to the plaintiff in 120 of 367 trials. In fiscal 2008-09, damages were awarded to the plaintiff in 281 of the 608 trials.

February 26, 2019

Tennessee Tort Filings and Trials – 2017-18 – Part 1

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

Despite what one would expect given Tennessee’s increasing population, Tennessee saw no real increase in filings of tort and health care liability cases in the fiscal year ending June 30, 2018.

There were a total of 11,081 tort cases filed in Tennessee in that year, essentially the same (an increase of 9 cases) from the 11,072 cases filed a year earlier. Health care liability filings were actually down, from 432 to 416.

A total of 10,781 tort cases were disposed of last year, very close to the 10,831 cases that were disposed of during the 2016-17 fiscal year. HCLA dispositions were up slightly, from 366 in fiscal 2016-17 to 382 last year.