Day on Torts

September 14, 2017

Negligent Supervision Allowed Under Tennessee Claims Commission Act

The Tennessee Claims Commission has exclusive subject matter jurisdiction over a claim by a plaintiff that the state “negligently supervised and retained a prison guard who sexually assaulted [an] inmate.” In Vetrano v. State, No. M2015-02474-COA-R3-CV (Tenn. Ct. App. Aug. 8, 2017), the Court reversed the claim commission’s dismissal of a negligence suit. Plaintiff alleged that she was an inmate at a state women’s prison and was sexually assaulted by a prison guard. She filed an action with the Tennessee Claims Commission alleging that “state employees negligently supervised and retained the prison guard.” According to plaintiff, another inmate had filed a complaint against the guard for assault, and the guard’s supervisors “had actual and/or constructive knowledge that [the guard] was unfit for the job of corrections officer, and it was reasonably foreseeable that he posed an actual threat of harm to the inmates with whom he came in contact.”

The State moved to dismiss the complaint, alleging that under the Claims Commission Act it “could not be liable ‘for the willful, malicious, or criminal acts of state employees.’” (citing Tenn. Code Ann. § 9-8-307(d)). The Claims Commission granted the motion, but the Court of Appeals reversed.

September 12, 2017

Battery Claim Proceeds In Absence of Significant Injury

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

Depending on the circumstances, a police officer pulling a handcuffed person by the chain linking the two cuffs may be enough to support a claim for assault and battery in Tennessee, even without evidence of a significant injury.

In Stafford v. Jackson County, Tennessee, No. M2016-01883-COA-R3-CV (Tenn. Ct. App. Aug. 4, 2017), plaintiff sued a sheriff’s deputy, the sheriff, and the county after being arrested by the deputy. The deputy had pulled plaintiff’s husband over for speeding, and plaintiff and her son arrived on the scene after hearing about it on a police scanner. Plaintiff approached the deputy, and though there was a dispute regarding what was said and how cooperative or uncooperative plaintiff was, the deputy ultimately handcuffed and arrested plaintiff for obstructing a traffic stop. Regarding the handcuffing procedure, plaintiff testified in her deposition that the officer first cuffed her right hand, then her left, “then pulled me up by the chain, by the middle of the cuff, the chain.” Plaintiff testified that when the chain was pulled, it was painful and she screamed. When she arrived at the jail, plaintiff told personnel there that her wrists and shoulders hurt, and after her release she went to the local medical center, where she was x-rayed and given medication for her blood pressure.

Plaintiff brought suit, asserting several theories of liability. The trial court granted summary judgment to defendants on all claims, finding specifically that plaintiff had not established the elements of an intentional infliction of emotional distress claim, and that plaintiff had not shown damages to support her assault and battery claim. Plaintiff appealed the dismissal of the assault and battery and intentional infliction of emotional distress claims. On appeal, summary judgment on the emotional distress claim was affirmed, but the holding on the assault and battery claim was reversed.

September 11, 2017

Tennessee Court Explains Duty to Supplement Discovery and Expert Testimony

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

A party’s failure to supplement its discovery responses or deposition testimony can result in a jury verdict for that party being vacated. For businesses, this duty to supplement may include the testimony of its employees.

In Collier v. Roussis, No. E2016-01591-COA-R3-CV (Tenn. Ct. App. Aug. 7, 2017), a minor filed suit through his parents for birth injuries “allegedly suffered by plaintiff when his mother had an allergic reaction during labor.” The named defendants were the doctor treating the mother and the hospital where plaintiff was born. Much of the relevant testimony surrounded how and how often plaintiff’s mother’s blood pressure was being monitored, with the medical chart showing two blood pressure readings by a fetal monitor and one by defendant doctor. The trial court directed a verdict for defendants on one issue, and the jury returned a verdict that neither the doctor nor “the nurses employed by the Hospital were” negligent. Plaintiff appealed, citing multiple issues for review.

First, on an issue that ended up being dispositive of the appeal, plaintiff argued that “the trial court erred in allowing previously undisclosed testimony from the nurses, testimony which was inconsistent with the nurses’ earlier deposition testimony.” During their depositions, two nurses who worked for the hospital and treated plaintiff’s mother testified that they had no independent recollection beyond what was in the medical record. Mother’s file only indicated that her blood pressure was recorded three times during the relevant period. At trial, however, both of these nurses testified that counsel for the hospital had shown them pictures that plaintiff’s family took in the hospital room, and that those pictures had caused them to remember additional facts. Specifically, they both testified that the mother’s blood pressure was being monitored by a special machine. One stated that because the machine was in use the mother “was not hypotensive, or we would have treated that,” and another stated the nurses “were continuously glancing over at that…monitor to see what her blood pressure was.” Over plaintiff’s objection, the trial court allowed the new testimony, but the Court of Appeals ruled that this was error and the judgment should be vacated.

September 6, 2017

More on Pre-SuitNotice, HIPAA, in Tennessee Medical Malpractice Cases

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

HIPAA-compliant authorization forms continue to cause trouble for medical malpractice (now called “health care liability action” or ‘HCLA”) plaintiffs in Tennessee, with a recent plaintiff having his case dismissed due to his failure to fill in the portion of the form that lists who was authorized to make disclosures thereunder.

In Lawson v. Knoxville Dermatology Group, P.C., No. E2017-00077-COA-R3-CV (Tenn. Ct. App. Aug. 1, 2017), plaintiff filed suit against “a dermatology practice and a certified physician’s assistant employed by the practice.” The underlying injury occurred when plaintiff fell off an allegedly improperly secured examination table. Defendants filed motions to dismiss, asserting that plaintiff had failed to substantially comply with Tenn. Code Ann. § 29-26-121(a)(2)(E), the HCLA provision that requires that pre-suit notice include a HIPAA-compliant authorization. Specifically, defendants pointed out that plaintiff’s “authorization form did not list which individual(s) or organization(s) were authorized to make disclosures of the specified medical records.”

The trial court granted the motions to dismiss and entered an order dismissing all of plaintiff’s claims without prejudice. Plaintiff appealed the dismissal only as to the dermatology group, which the Court of Appeals affirmed.

On appeal, defendant pointed out that “the name or other specific identification of the person(s), or class of persons, authorized to make the requested use or disclosure” is listed as a “core element of the authorization” by the Code of Federal Regulations. (citation omitted). Defendant asserted that because this “core element” was left blank, plaintiff did not substantially comply with the HCLA requirements and dismissal was appropriate. According to defendant, “the medical authorization provided by [plaintiff] was insufficient to allow [defendant] to access relevant medical records to mount a defense.”

September 2, 2017

Case Dismissed Given Deficient Expert Testimony

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

Plaintiffs preparing a Tennessee health care liablity (formerly called “medical malpractice”) must pay special attention to their standard of care expert witness, especially if they plan to argue that a specific procedure was required to meet the standard of care.

In Hopps v. Stinnes, No. W2016-01982-COA-R3-CV (Tenn. Ct. App. August 1, 2017), the Court of Appeals affirmed a trial court’s decision to grant partial directed verdict and to refuse to let the jury consider a certain causation issue. Plaintiff was struck in the eye by an object while weed eating, and he went to the emergency room. There, he was treated by defendant nurse practitioner. Defendant obtained a history from plaintiff and “examined his eye with an ophthalmoscope and a Wood’s lamp.” She ultimately prescribed him antibiotic eye drops and discharged him with instructions 1) to come back to the ER if his condition worsened, and 2) to see his doctor within two days. Four days later, plaintiff went to a different hospital with additional symptoms, and he eventually lost his eye due to infection.

August 31, 2017

Tennessee Uninsured Motorist Claims Subject to Six-Year Statute of Limitations

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

While a case for personal injuries resulting from a car accident must be filed within one year, a claim against an insurance company for uninsured motorist coverage arising from the same incident is not subject to that one-year statute of limitations.

In Bates v. Greene, No. W2016-01868-COA-R3-CV (Tenn. Ct. App. July 27, 2017), plaintiff had been injured in a car accident. Plaintiff filed a timely suit less than one year after the accident against the driver of the other car, but the civil warrant was returned unserved. An “alias civil warrant was issued for [the driver], but it was also returned unserved.” Two years after the accident, an amended warrant was issued, adding plaintiff’s uninsured motorist insurance carrier as a defendant.

Defendant insurance company filed a motion for summary judgment, “asserting that the claim against it was barred by the one-year statute of limitations applicable to personal injury actions.” Plaintiff responded that “she was asserting a contract claim…, subject to a six-year statute of limitations, rather than a tort claim…” The trial court granted the motion for summary judgment, but the Court of Appeals reversed.

August 29, 2017

Liability of Tennessee for Inmate-on-Inmate Attacks

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

In Cook v. State of Tennessee, No. W2016-01914-COA-R3-CV (Tenn. Ct. App. July 27, 2017), the Court affirmed summary judgment in a case where a plaintiff inmate alleged the state was liable for the injuries he suffered after being stabbed by another inmate.

Plaintiff and his cellmate were both inmates at West Tennessee State Penitentiary. They began sharing a cell in October 2010, and on December 6, 2010, cellmate stabbed plaintiff with a handmade knife. Plaintiff filed a complaint with the Tennessee Claims Commission alleging that “the State was liable because [cellmate’s] attack on him was reasonably foreseeable.”

During discovery, it was established that both plaintiff and cellmate were listed as minimum security prisoners (the lowest rating), that the cellmates had a “good relationship” prior to the assault, and that plaintiff had never felt threatened or unsafe around cellmate. Based on these facts, the State moved for summary judgment, which the claims commission granted and the Court of Appeals affirmed. Continue reading

August 28, 2017

No HIPAA Form Required in Single Defendant HCLA Case

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

In Grizzle v. Parkwest Medical Center, No. E2016-01068-COA-R3-CV (Tenn. Ct. App. July 25, 2017), the Tennessee Court of Appeals reversed dismissal of a health care liability (medical malpractice) case based on plaintiff’s failure to provide a HIPAA compliant medical authorization.

Plaintiff had hip replacement surgery at defendant hospital, and when she woke up she began to have severe chest pains. An x-ray showed that she had broken ribs, yet the hospital “provided no explanation as to how the injury to her ribs had occurred.”

Plaintiff filed an HCLA action against the hospital on January 25, 2016. She stated in her complaint that she had complied with the statutory pre-suit notice requirements, but she “did not provide the requisite documentation with her complaint establishing proof of pre-suit notice.” Defendant filed a motion to dismiss based on plaintiff’s failure to file the required documentation with her complaint and her failure to provide defendant with a HIPAA-compliant medical authorization. After the motion was filed, on March 14, 2016, plaintiff filed a “notice of filing” and attached “copies of the pre-suit notice letter and allegedly HIPAA-compliant authorization sent to [defendant].”

August 24, 2017

Inmate Injured on Work Detail – Recovery Limited to Medical Expenses

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

In Elliott v. City of Manchester, No. M2015-01798-COA-R3-CV (Tenn. Ct. App. July 24, 2017), the Court of Appeals analyzed an inmate’s ability to recover from a governmental entity when injured while on work detail.

Plaintiff was an inmate at Coffee County jail. While out performing a work assignment, plaintiff “fell from the bed of a pick-up truck and sustained head injuries.” The truck driver was another inmate, and the inmates were being supervised by a city police officer.

Plaintiff brought suit against both the city and county, but he settled with the county, leaving the city as the only defendant. The city filed a motion to dismiss on the grounds that it was immune under the GTLA, and the trial court dismissed the case. This appeal followed.

On appeal, the Court first analyzed the application of the GTLA and the extent of the city’s potential liability in this case. The GTLA was enacted in 1973 and “is premised on the absolute immunity of governmental entities.” (internal citation omitted). Immunity is waived by the GTLA and a suit against a governmental entity is allowed “for injury proximately caused by a negligent act or omission of any employee acting within the scope of his employment.” (quoting Tenn. Code Ann. § 29-20-205). Plaintiff argued that the GTLA waived immunity in this case, allowing his suit to move forward. Defendant city asserted, though, that Tenn. Code Ann. § 41-2-123(d)(2) applied here and “controll[ed] over the GTLA[.]”

August 23, 2017

Court of Appeals Discusses Tennessee Car Accident Damages

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

Want a primer on the law of compensatory damages in Tennessee? Then look at Hyde v. South Central Tennessee Development District, No. M2015-02466-COA-R3-CV (Tenn. Ct. App. July 14, 2017), defendant admitted liability for a car accident but challenged the damages awarded to plaintiff by the trial court.

On June 14, 2013, defendant’s employee ran a red light and hit the driver’s side of plaintiff’s car. On the day of the accident, plaintiff was taken to a hospital and “was diagnosed with a strain in her thoracic spine and a contusion to her right leg, and discharged with pain medication.” Two days later plaintiff went to a different hospital complaining of head pain and was diagnosed with a headache. Five days after the accident, plaintiff went to a chiropractor “complaining of muscle spasms in her lumbar spine and aches throughout her body.” Plaintiff treated with the chiropractor from June 19 until October 10. In addition to her treatment with the chiropractor, plaintiff went to her primary care doctor on August 20 and November 20, as well as January 27 of the following year.

Defendant admitted liability and a bench trial was held as to damages. The trial court awarded plaintiff $271,378.95 in compensatory damages, and this appeal followed, with defendant challenging the trial court’s damage calculations.