Day on Torts

November 19, 2018

Res Ipsa Loquitor and Medical Malpractice Claims

When an HCLA plaintiff proceeds under a res ipsa loquitur theory, her expert is not required to opine on the same elements as in a traditional HCLA claim.

In Anderson v. Wang, No. M2018-00184-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2018), plaintiff had laser cataract surgery performed on both eyes by defendant doctor. After the second surgery on her right eye, plaintiff experienced serious complications, including extreme loss of endothelial cells and corneal decomposition that required a corneal transplant.

Plaintiff brought this HCLA case under Tenn. Code Ann. § 29-26-115(c), which governs HCLA res ipsa loquitur claims. This section states that “there shall be a rebuttable presumption that the defendant was negligent where it is shown by the proof that the instrumentality causing injury was in the defendant’s…exclusive control and that the accident or injury was one which ordinarily doesn’t occur in the absence of negligence.” The trial court granted defendant’s motion for summary judgment, finding that plaintiff’s expert “never defined the applicable standard of care or how any instrumentality could have been improperly used contrary to the applicable standard of care.” The Court of Appeals, however, reversed.

November 2, 2018

“Extraordinary Cause” Under HCLA Notice Statute

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

When a plaintiff’s lawyer terminates his representation just weeks before the statute of limitations is set to expire on a health care liability claim, this termination may constitute extraordinary cause to excuse the plaintiff’s noncompliance with certain pre-suit notice and certificate of good faith requirements.

In Reed v. West Tennessee Healthcare, Inc., No. W2018-00227-COA-R9-CV (Tenn. Ct App. Oct. 8, 2018), plaintiff was injured when he fell while in the hospital being treated for a different injury on October 18, 2015. He retained counsel over four months before the statute of limitations was set to run on his health care liability claim, but just a few weeks before it expired, the attorney terminated his representation of plaintiff. Plaintiff then sent a letter dated October 7, 2016 to a hospital executive stating that he had been injured and demanding compensation. He subsequently filed his HCLA complaint on October 14, 2016, which was within the one-year statute of limitations, but he did not attach a Certificate of Good Faith to his complaint. After he filed his complaint, he hired a new attorney.

Defendant filed two motions to dismiss, one based on plaintiff’s failure to attach a Certificate of Good Faith and one based on plaintiff’s failure to follow the pre-suit notice requirements by failing to give his notice 60 days before he filed the complaint, failing to provide a HIPAA authorization, failing to provide an affidavit from the party who mailed the notice, and failing to state that he had complied with the statute. The trial court denied both motions, finding that the termination of representation just weeks before the statute of limitations ran constituted extraordinary cause under the HCLA and thus excused compliance with these requirements. The Court of Appeals affirmed.

October 29, 2018

White Paper: Attorney – Client Privilege

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

The American College of Trial Lawyers has released its latest white paper on the law of attorney-client privilege.

Titled “Attorney-Client Privilege Update: Current and Recurring Issues,” the 50-page paper was compiled by the College’s Attorney-Client Relationships Committee, led by Joe Arellano of Portland, Oregon. The paper summarizes the law of attorney-client privilege, supporting its conclusions with citations to over 100 court decisions from around the nation.

Here is the Table of Contents:

October 26, 2018

Apartment Owner Has No Duty to Protect From Attacks Off Its Property

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

A premises owner’s duty generally does not include the duty to protect “from criminal acts occurring off [the] defendant premises owner’s property.” In Collier v. Legends Park LP, No. W2017-02313-COA-R3-CV (Tenn. Ct. App. Oct. 3, 2018), plaintiff was a resident at defendant’s apartment building. Plaintiff was sitting in his car, which was parked on a public street, with a female companion. Another car pulled next to plaintiff’s car, and the female companion got into that car. When plaintiff then exited the vehicle, he was approached from behind by a second female holding a gun and demanding money. Plaintiff had several thousand dollars on him, but told the robber that the money was in his car. Plaintiff was eventually shot in both legs, and the robber got into the car with the other two people and drove away.

October 11, 2018

Discovery Rule Applied in Murder-Suicide Case – Claim Barred

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

Where a plaintiff knew that her father had escaped from a hospital where his family had requested a mental evaluation and then killed his wife and himself, the plaintiff had constructive knowledge of her claim against the treating doctor and hospital as of the day she learned about the murder-suicide.

In Herpst v. Parkridge Medical Center, No. E2017-00419-COA-R3-CV (Tenn. Ct. App. Aug. 23, 2018), plaintiff and her family members took her father to defendant hospital because he was experiencing “paranoia and delusional episodes” and had discussed committing suicide. They chose this specific hospital because it was “the only hospital in Chattanooga that has a dedicated and secured floor for mental evaluations.” Plaintiff and her family requested a mental evaluation of her father and told his treating physician that he was a danger to himself.

On the day after the father’s admission, plaintiff inquired about when the evaluation would be done and did not get an answer. The next day, he had become agitated and plaintiff again got no answers from the nurses, who allegedly stated: “we don’t know, we don’t care, we’re tired of fooling with him…he’s crazy.” Three days after his admission, the father pulled his I.V. out and left the hospital. Sometime in the following two days, he killed his wife and himself, and plaintiff was notified of her parents’ death on July 3, 2013.

October 10, 2018

Appellate Court Court Reverses Summary Judgment – Jury Issue on Discovery Rule

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

Where questions of fact remained regarding when plaintiff should have reasonably been put on notice of defendants’ fraud, summary judgment was inappropriate.

In Coffey v. Coffey, No. E2017-00988-COA-R3-CV (Tenn. Ct. App. Sept. 20, 2018), plaintiff filed suit in 2015 over an alleged fraud that dated back twenty years. In 1995, plaintiff’s husband and mother were killed in a plane crash. Plaintiff’s husband had founded and built two successful companies. The husband’s father was named executor of the estate, and through a series of complicated events, plaintiff alleged that he purchased the two companies for his own benefit and eventually sold them for $45 million, putting the money in a trust for his own heirs, which included the husband’s two children but not plaintiff as the founder’s widow.

According to the complaint, plaintiff was falsely told that there were no buyers for the company and the father’s purchase of the company was characterized as a risk and a favor. Plaintiff asserted that she never saw the full valuation that was done, and that the only copy she was ever given was in a box of documents about the plane crash, which she put into her attic without examining. Plaintiff alleged that she loved and trusted her father-in-law and had no reason to suspect he was fraudulently deceiving her. Plaintiff stated in the complaint that she was assured many times throughout the twenty-year period that everything was done legally and fairly by both the father and her late husband’s brother, who had taken on a role at the companies. Plaintiff also asserted that she asked for the valuation a few times, but that the entire thing was never provided. In 2014, plaintiff’s son, now an adult with a master’s degree in business, alerted her that the companies were being sold for $45 million. At this point, plaintiff located a copy of the valuation in the box of documents related to the crash, and when her son reviewed the documents, he “concluded there had been foul play.”

October 9, 2018

Refusal to Give Requested Jury Instructions Was Not Error

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

Where the trial court refused to give special jury instructions requested by plaintiff in a premises liability case, but the relevant issues were sufficiently covered in instructions that basically mirrored the Tennessee Civil Pattern Jury Instructions, the trial court did not err and the jury verdict for defendant was affirmed.

In Creech v. RMRTN Chatt, LLC, No. W2017-01541-COA-R3-CV (Tenn. Ct. App. Sept. 11, 2018), plaintiff was contracted to do HVAC work on a building owned by defendant when a roof-access ladder he was using detached from the building and fell. Plaintiff brought this premises liability suit, alleging that defendant “failed to properly inspect and maintain its ladder in good condition,” but defendant argued during a jury trial that plaintiff “was familiar with the store and its roof-access ladder,” that it had performed proper inspections of the ladder, and that plaintiff’s actions “were the proximate and legal cause of his injury.” After a six-day trial, the jury returned a verdict for defendant.

October 8, 2018

Are Personal Injury and Wrongful Death Awards Subject to Federal Income Tax?

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

The taxability of Tennessee personal injury and Tennessee wrongful death settlements and judgments is governed by Section 104 of the Internal Revenue Code.

Generally, compensatory damages for personal injury and wrongful death are excludable from federal taxation if they arise from personal injury or sickness. Thus, in most personal injury and wrongful death cases arising from a personal injury or sickness, a settlement which includes only compensatory damages will not be subject to federal taxation.

One exception to that rule is if the taxpayer / plaintiff previously deducted medical expenses from her taxable income and then recovered those expenses in a personal injury or wrongful death case. In such cases, the taxpayer / plaintiff would have tax liability because she had previously gained a tax advantage from the deduction of the medical expenses and then was reimbursed for those expenses in a compensatory damages award.

October 2, 2018

No Response to Statement of Undisputed Material Facts Results in Loss

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

In a case based on an altercation that occurred while a worker was attempting to recover an unreturned cable modem, defendant cable company filed a motion for summary judgment with supporting proof that the worker was an independent contractor of a separate entity. Because plaintiff failed to respond to defendant’s statement of undisputed material facts, summary judgment was granted and affirmed.

In Mack v. Comcast Corporation, No. W2017-02326-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2018), plaintiff had an unreturned Comcast cable modem at his house, and a worker attempted to retrieve it. During this attempted retrieval, there was an altercation, and the worker was injured. Plaintiff was arrested, his mug shot was published and he lost his job, but the criminal charges were eventually dismissed. Plaintiff brought this case alleging various causes of action against several defendants, including Comcast.

October 1, 2018

Injury Plaintiff Indispensable Party in Insurer / Insured Dispute

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

A person who was injured in a car accident with an insured party and who had filed suit against the insured party was an indispensable party in a declaratory judgment action between the insured and his insurer regarding coverage of the accident.

In Tennessee Farmers Mutual Insurance Company v. DeBruce, No. E2017-02078-COA-R3-CV (Tenn. Ct. App. Aug. 9, 2018), plaintiff was injured in a car accident with defendant and filed a personal injury claim against defendant. Plaintiff’s counsel notified defendant’s insurance company of the pending lawsuit in January 2015, but defendant never notified the insurer that the lawsuit was filed. In March 2015, the insurer filed a declaratory judgment action against defendant, asserting that his failure to inform them of the claim and cooperate in an investigation amounted to a breach of his policy. Insurer sought a declaratory judgment that “it was no longer required to defend or indemnify defendant in [plaintiff’s] lawsuit against him because of his breach of the policy’s requirements.”

Defendant never responded to the declaratory judgment complaint, and a default judgment was entered in June 2015. In March 2017, plaintiff filed a motion to set aside the declaratory judgment on the basis that “she was an indispensable party to the declaratory judgment action because she had a direct interest in its outcome, as the judgment leaves [defendant] without the means to satisfy or defend himself in the [personal injury] proceedings.” Plaintiff asked that the judgment be set aside as void. The trial court denied plaintiff’s motion, finding that plaintiff was “at most, an incidental beneficiary,” and that while she “had an interest affected by the outcome of the case,” her “rights rise no higher than the rights of [defendant] which were negated by his failure to cooperate.” The Court of Appeals disagreed and vacated the declaratory judgment.