Day on Torts

December 2, 2016

Notice and HIPAA Form Also Required for Re-Filed HCLA Claim

Tennessee Courts continue to make it clear that each time you re-file a previously dismissed Tennessee medical malpractice (now health care liability) claim, you must abide by the statutory requirements. In Cright v. Overly, No. E2015-01215-COA-R3-CV (Tenn. Ct. App. Oct. 17, 2016), the Court of Appeals addressed the need for a plaintiff who was re-filing a previously nonsuited complaint to attach a new HIPAA-compliant release to the second pre-suit notice letter, determining that her failure to do so meant the complaint should be dismissed.

Plaintiff sued multiple defendants related to the treatment and death of her husband. In August 2009, before filing the first suit, plaintiff sent pre-suit notices with a HIPAA-compliant medical authorization to each of the defendants. This action proceeded through discovery and eventually made it to trial, but three days into trial plaintiff moved for a voluntary dismissal.

After the dismissal, plaintiff sent pre-suit notices to the defendants again, but this time she did not include a HIPAA release. Instead, the letter stated: “Medical records of the entire UT Hospital admission at issue have been previously provided to you, as well as any other records you wished to obtain pursuant to an Agreed RAS Order entered in the [original suit].” When plaintiff filed her second complaint, defendants all filed motions to dismiss based on plaintiff’s failure to include a HIPAA-compliant release with her pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121. Plaintiff’s attorney asserted that a HIPAA release “was not attached, because the parties had previously entered an agreed order that the RAS service and record ordering procedure was to be the exclusive means for obtaining the deceased’s medical records, to the exclusion of any medical authorizations previously provided.” The trial court, however, granted the motions to dismiss, and the Court of Appeals affirmed.

November 23, 2016

Suit Against Local Government Over Sewer Issues

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

In Nickels v. Metropolitan Govt. of Nashville and Davidson County, No. M2015-01938-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2016), the Court of Appeals went through a thorough analysis of Tennessee’s Governmental Tort Liability Act (GTLA) as it related to a claim regarding the malfunction of a sewer and stormwater system.

Though the facts here were quite detailed, the gist of the matter was that plaintiff owned a dentist office in midtown Nashville, and the land surrounding the office “generally [rose] in every direction.” This area of Nashville has a combined sewage and stormwater system, and there was a catch basin behind the office parking lot where stormwater was intended to be integrated into the sewer line. From this catch basin, the mixed water was fed downstream “into a twelve-inch line,” which then connected to a much larger 108-inch pipe.

In 2005, plaintiff built an addition onto his dental office. Later that year, plaintiff’s office manager called Metro Water Services for the first time to report that plaintiff believed the storm drain was clogged, as there was flooding in the alley behind the office. Plaintiff called Metro again in May 2006 to report that water was coming out of the catch basin, after which Metro did a video inspection of the water line that showed concrete in the 12-inch line. This concrete was not removed. In September 2006, plaintiff’s office flooded from the back door and the shower drains, and the floodwater contained sewage. On June 3, 2007, the office flooded again. Metro inspected the pipe again, and found “four to five inches of concrete and debris in the line.” Metro removed two sections of the pipe but did not compensate plaintiff for repairs to his office. Metro did, however, install a back-trap device on plaintiff’s service line.

November 22, 2016

Ex Parte Communications With Treating Physicians – TN Statute Ruled Unconstitutional

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

Judge Thomas Brothers of Nashville has declared Tenn. Code Ann. Section 29-26 -121(f)(1) and (2) unconstitutional. Memorandum Order – Judge Brothers

The code section allows defense lawyers in Tennessee health care liability actions virtually unfettered ex parte communications with the plaintiff’s non-party health care providers. The code section was adopted by the Tennessee General Assembly in an attempt to override two Tennessee Supreme Court decisions.

The first of those cases was Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 20o2), which held that a covenant of confidentiality between patients and their treating physicians arises because of an implied understanding between patient and doctor and from a public policy concern that private medical information should be protected.

November 13, 2016

Upcoming Seminar – Knoxville, Nashville and Memphis

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

Justice Programs will present its annual seminar program in Knoxville, Nashville and Memphis in a few weeks. Former Justice Penny White and former Judge Joe Riley and I started this seminar over a decade ago. Famed mediator Howard Vogel joins us as a participant this year.

I will be speaking about torts, comparative fault, and preparation for taking meaningful depositions. Other topics are listed on the Justice Programs website. Fifteen continuing legal education credits (which includes four ethics / professionalism / dual credits) will be awarded for those that attend the entire program

Hundreds of people attend this program every year, many coming year after year. Please join us in

November 6, 2016

Lawyer Wisely Drops Chicken-Choking Case

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

Lawyer Paul Newton of Gulfport, Mississippi filed a lawsuit against Popeye’s for not supplying him with a knife in his take-out chicken bag. He says the lack of a knife (he did receive a spork) caused him to use his teeth to tear the chicken from the bone when he was consuming it back at his office. According to the complaint, he choked on a piece of chicken.

Newton later dismissed the case, reportedly because of “extreme comments directed to me and my family.”

Newton’s unclaimed Avvo profile indicates that he has been practicing law for 35 years.

October 26, 2016

Tennessee Jury Verdict More Than 40 Times Medical Expenses Affirmed

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

In Glasgow v. K-VA-T Food Stores, Inc., No. E2015-01653-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2016), the Court of Appeals affirmed a jury award in the full amount of compensatory damages sought by a Tennessee premises liability plaintiff.

While using the restroom in a grocery store, plaintiff lost his balance while standing up. He grabbed the handrail, which pulled out of the wall, causing him to fall and hit his head. Plaintiff presented testimony from himself and a doctor who had treated him both before and after the incident, as well as a deposition from the neurologist he saw after the fall. Plaintiff presented evidence that since the fall, he had experienced migraines and light sensitivity. He testified that this affected his life in several ways. He had to abandon his 14-year career in television production and instead go into radio because of his light sensitivity. Plaintiff asserted that the migraines were “debilitating, requiring him to ‘get out of the light’ and stay in a dark, cool space until the pain subsides.” Plaintiff admitted at trial that he was “not actively seeking treatment from a physician for his migraines and that he currently use[d] over-the-counter medication to treat his condition.”

At trial, the parties stipulated that plaintiff’s medical expenses were $5,310 and that he had a life expectancy of 38.36 years.

October 24, 2016

Nonsuit OK When Motion to Dismiss is Pending in Medical Malpractice Case

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

In Hurley v. Pickens, No. E2015-02089-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2016), the Court of Appeals once again held that a plaintiff in a medical malpractice case can take a voluntary nonsuit without prejudice while a motion to dismiss based on an insufficient certificate of good faith is pending.

This opinion was very similar to Clark v. Werther, No. M2014-00844-COA-R3-CV (Tenn. Ct. App. Sept. 27, 2016) and discussed in this Day on Torts post, which came out just two days prior to the instant matter. In Clark, though, plaintiff was pro se and had failed to attach a certificate of good faith to his complaint. Here, plaintiff was represented by counsel and had attached a certificate of good faith, but defendants alleged the certificate was deficient and filed motions to dismiss accordingly.

While the motions to dismiss were pending, plaintiff filed a corrected certificate of good faith, a motion for extension of time to file a corrected certificate of good faith, and a motion for and notice of voluntary dismissal without prejudice. At a hearing on all of the pending motions, and before any argument on the motions to dismiss, plaintiff “announced that he wanted to take a voluntary dismissal pursuant to Tenn. R. Civ. P. 41,” which the trial court allowed. Defendants appealed the dismissal without prejudice, and the Court of Appeals affirmed.

October 23, 2016

Upcoming Seminar – Justice Programs

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

Justice Programs will present its annual seminar program in Knoxville, Nashville and Memphis in a few weeks. Former Justice Penny White and former Judge Joe Riley and I started this seminar over a decade ago. Famed mediator Howard Vogel joins us as a participant this year.

I will be speaking about torts, comparative fault, and preparation for taking meaningful depositions. Other topics are listed on the Justice Programs website. Fifteen continuing legal education credits (which includes four ethics / professionalism / dual credits) will be awarded for those that attend the entire program

Hundreds of people attend this program every year, many coming year after year. Please join us in

October 18, 2016

Nonsuit OK When Motion to Dismiss is Pending – Even in Medical Malpractice Cases

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

In Clark v. Werther, No. M2014-00844-COA-R3-CV (Tenn. Ct. App. Sept. 27, 2016), the Tennessee Court of Appeals held that nothing about the Health Care Liability Act (HCLA) certificate of good faith requirement prohibited a plaintiff from taking a TRCP Rule 41 voluntary nonsuit while a motion to dismiss was pending.

Here, a pro se plaintiff filed a health care liability suit against fourteen healthcare providers. When filing his complaint, however, he failed to attach a certificate of good faith as required by Tenn. Code Ann. § 29-26-122. Several of the defendants filed motions to dismiss on this basis. In response, and before any hearing on the motions to dismiss, plaintiff filed a notice of voluntary nonsuit and proposed order. Some of the defendants “opposed [plaintiff’s] notice of nonsuit on the ground that his complaint should be dismissed with prejudice because of the missing certificate of good faith,” as that is the appropriate penalty under the statute. After a hearing, the trial court dismissed without prejudice the claims against the non-objecting defendants, but dismissed with prejudice the claims against the defendants who objected to the nonsuit.

On appeal, the Court noted that Tenn. R. Civ. P. 41.01 governs voluntary nonsuits and precludes a nonsuit in certain situations, including “in a class action case, in a shareholder derivative action, in a case in which a receiver has been appointed, or while an opposing party’s motion for summary judgment is pending,” or “when it would deprive the defendant of some vested right.” (citation omitted). Otherwise, a plaintiff’s ability to take a voluntary nonsuit is “free and unrestricted…before the jury retires.” (citation omitted).

September 27, 2016

Tennessee COA Reverses Trial Judge’s Finding of Negligence

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

In Peters-Asbury v. Knoxville Area Transit, Inc., No. E2015-01816-COA-R3-CV (Tenn. Ct. App. Aug. 8, 2016), the Court of Appeals overturned a bench trial negligence verdict.

Plaintiff was a student at the University of Tennessee with limited mobility due to a previous knee injury. For students with disabilities, UT provided transportation through an agreement with Knoxville Area Transit, Inc. (“KAT”), who was the defendant in this case. On the morning of the incident, plaintiff called the KAT operator and asked to be taken to the Office of Disability Services. Disability Services was located in Dunford Hall, which had a main entrance and a side entrance. The side entrance was closest to the Disability Services Office. A bus came to pick up plaintiff, and she repeated to the driver that she wanted to be taken to Disability Services. Accordingly, the driver took her to the side entrance of Dunford Hall. As plaintiff took her first step off the bus, she fell and fractured her right ankle. Plaintiff suffered many complications from the fall, eventually withdrawing from UT for the semester and moving to a single-level home with her family, and having surgery more than a year and a half after the fall.

Plaintiff brought this negligence action against defendant, asserting in her original complaint that the driver “had acted negligently in dropping [plaintiff] off at the side entrance to Dunford Hall, which [she] asserted was ‘an inappropriate and unreasonably dangerous location,’ rather than at the building’s main entrance.” After discovery, during which defendant produced a low-quality video of the incident taken from inside the bus, plaintiff amended her complaint to also allege that the driver negligently caused her to fall “by moving the bus forward as she was exiting the bus onto the pavement.”

During the trial, evidence was presented regarding both negligence theories. On her theory that she was dropped off in an unsafe area, plaintiff “testified that the main entrance was the safer of the two locations for mobility impaired students because the area around it was flat and clear, while the area around the side entrance was inclined and surrounded by landscaping.” Plaintiff alleged that debris could wash down onto the side entrance, but admitted on cross-examination that she did not step on any debris when she fell.