Day on Torts

August 16, 2016

Liability of Public Hospital Where Allegations Related to Non-Employee Doctors

In Gilreath v. Chattanooga-Hamilton County Hosp. Authority, No. E2015-02058-COA-R3-CV (Tenn. Ct. App. June 15, 2016), the Court of Appeals affirmed summary judgment for defendant hospital in a Tennessee health care liability (formerly called “medical malpractice” case.

Plaintiff went to defendant hospital complaining of certain symptoms and allegedly told the medical providers there that her chiropractor had diagnosed her with cauda equina syndrome. Plaintiff was treated at the hospital by two doctors who “failed to recognize her symptoms as suggestive of cauda equina syndrome.” She was discharged with a diagnosis of possible impacted kidney stone, but was later correctly diagnosed at a different hospital after her condition worsened significantly. In this action, plaintiff sued defendant hospital based on the alleged inadequate treatment and diagnosis she received.

Defendant hospital moved for summary judgment on the basis that plaintiff’s expert could not support the claim against it, and that the hospital was not vicariously liable for the alleged negligence of the two physicians because the hospital was a government entity that fell under the GTLA and the physicians were not employees of the hospital pursuant to the terms of the Tennessee’s Government Tort Liability Act (“GTLA”). The trial court granted summary judgment, and the Court of Appeals affirmed.

In analyzing this case, the Court first pointed out that plaintiff had attempted to couch her claims as a contract claim and an ordinary negligence claim, but in reality the entire complaint sounded in health care liability. The Court found that “the complaint and responsive pleadings allege specific acts of negligence, namely the failure to order an MRI or other diagnostic test and a neurological or neurosurgical consult…These allegations sound in medical malpractice[.]”

August 11, 2016

No Tort Claim Where Plaintiff Was Found To Have Caused Her Own Loss

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

In Haynes v. Bass, No. W2015-01192-COA-R3-CV (Tenn. Ct. App. June 9, 2016), plaintiff brought suit against her ex-husband, a mortgage company, a title company and an attorney claiming she suffered damage when a home that was supposed to be titled to her alone was sold at auction. Plaintiff and defendant ex-husband had previously been married, and in December 2007 they executed a postnuptial agreement stating that, once another property sold which was already under contract, a residence in Collierville that was being purchased by plaintiff would be plaintiff’s “sole and separate property.” After the sale, however, the money was split between the husband and wife and the deeds were allegedly not recorded as planned in the agreement. Plaintiff alleged that her name was forged on the deeds of trust for the property.

In 2014, the couple got divorced in Arkansas. During the divorce proceeding, plaintiff was supposed to be paying the mortgage on the residence, as she was living in it alone, but it was discovered that she had failed to pay and owed $51,000. The Arkansas court entered an order holding plaintiff in contempt for failing to pay the mortgage and stating that plaintiff could pay defendant husband $55,000 or the property would be sold by a receiver at auction. After plaintiff failed to pay, the residence was sold, and plaintiff filed suit seeking damages for the loss of the property.

In this Tennessee action, plaintiff brought several claims, including fraud, negligent misrepresentation, negligence and civil conspiracy. The trial court dismissed plaintiff’s complaint in total for failure to state a claim, and the Court of Appeals affirmed.

Against her ex-husband, plaintiff advanced claims of fraud and negligent misrepresentation, among other contract-based claims. Both of these causes of actions, though, require the plaintiff to suffer damages due to the misrepresentations. Here, the Court found that the evidence “reveal[ed] that [plaintiff] lost the residence, and the value of all of the improvements she made to the property, because of her failure to pay the mortgage, which resulted in the Arkansas court ordering the property to be sold.” Even if plaintiff’s allegations were taken as true, the Court held that “the allegations are not sufficient to make out a claim against [defendant] because the damages sustained by [plaintiff] are not related to [defendant’s] alleged breach of the postnuptial agreement.”

August 9, 2016

Tennessee Legal Malpractice Statute of Limitations

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

In a recent legal malpractice case, the Tennessee Court of Appeals held that the one-year statute of limitations had run and that the case should accordingly be dismissed in total.

In Story v. Bunstein, No. E2015-02211-COA-R3-CV (Tenn. Ct. App. June 9, 2016), plaintiffs had previously been represented by defendant lawyers in a lender liability suit against three defendants. The timeline of the underlying litigation included the following:

On May 7, 2013, the trial court granted summary judgment to two defendants.
Lawyer “allegedly advised [plaintiffs] that he would fie a motion to correct what he perceived was the erroneous grant of the motion for summary judgment.”
Layer filed a motion to alter or amend, but no hearing was ever set for that motion.
“Shortly before trial on the remaining claims, [lawyer] allegedly informed [plaintiffs] that their damages evidence was not ready for trial” and recommended voluntary dismissal.
Underlying suit was voluntarily dismissed on November 13, 2013, and was not re-filed.

This legal malpractice claim was filed on September 3, 2014.

Defendants filed a motion to dismiss based on the statute of limitations. In response, plaintiffs argued that “the statute of limitations did not begin to run until the order of dismissal as to [plaintiff’s] remaining claims was entered on November 13, 2013.” The trial court held that the statute of limitations barred some of plaintiffs’ malpractice claims, but that plaintiffs’ “allegations with respect to the November 2013 voluntary dismissal of their remaining claim in the underlying case is a discrete allegation of alleged legal malpractice which is not barred by the statute of limitations.” The Court of Appeals disagreed, holding that the entire case was in fact time-barred.

August 4, 2016

Reasonable Medical Expenses – Billed Amount or Negotiated Amount?

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

Understanding medical billing and medical expenses can be quite difficult in today’s healthcare system, and courts across the country have been grappling with how to determine the reasonable amount of medical expenses in court cases. In a recent Tennessee case, the Court of Appeals declined to extend a Tennessee Supreme Court decision which held that reasonable medical expenses were those that the medical provider actually accepted as payment from an insurance company, as the Supreme Court decision was a hospital lien case and the Court of Appeals was reviewing a personal injury matter.

The underlying facts in Dedmon v. Steelman, No. W2015-01462-COA-R9-CV (Tenn. Ct. App. June 2, 2016) were that plaintiff was seeking recovery for injuries sustained in a car accident. Plaintiff claimed medical expenses of $52,482.87, and plaintiff provided medical bills and the deposition of a treating physician who testified that the expenses were “appropriate, reasonable, and necessary[.]”

After this suit was filed, the Tennessee Supreme Court issued a decision in a case about hospital liens, West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014). Tennessee law gives hospitals a lien “for all reasonable and necessary charges for hospital care, treatment and maintenance of ill or injured persons[.]” The West court tackled the issue of what exactly constituted reasonable charges, in light of the fact that the amount a patient is billed and the amount an insurance company actually pays is often vastly different. The Court in West eventually determined that, “with regard to an insurance company’s customers,” reasonable expenses were “the charges agreed to by the insurance company and the hospital,” not the billed amount. The Court stated:

The hospital’s non-discounted charges reflected in the amount of the liens it filed against the plaintiffs should not be considered reasonable charges for the purpose of [the Hospital Lien Act] for two reasons. First, the amount of these charges is unreasonable because it does not ‘reflect what is [actually] being paid in the market place.’ …[A] more realistic standard is what insurers actually pay and what the hospitals [are] willing to accept.’ …The second basis for concluding that the [hospital’s] non-discounted charges are not reasonable stems from its contracts with [the insurers]. The [hospital] furthered its own economic interest when it agreed in these contracts to discount its charges for patients insured by [the insurers]. …The [hospital’s] contract with [the insurers] defined what the reasonable charges for the medical services provided to [the plaintiffs] would be.

(Internal citations and quotations omitted).

August 3, 2016

Ex Parte Interviews Not Preempted by HIPAA

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

In Caldwell v. Baptist Memorial Hosp., No. W2015-01076-COA-R10-CV (Tenn. Ct. App. June 3, 2016), the Court of Appeals held that the Tennessee Health Care Liability Act’s allowance for ex parte interviews between defendant and plaintiff’s health care providers was not preempted by HIPAA and was permissible under the federal law.

In this case, plaintiff filed an HCLA claim against multiple defendants, and one defendant “filed a petition for a qualified protective order (QPO) pursuant to Tenn. Code Ann. § 29-26-121(f) to allow ‘the defendant and his attorneys the right to obtain protected health information during interviews, outside the presence of claimant or claimant’s counsel, with the patient’s treating healthcare providers.’” While plaintiff acknowledged that defendant had complied with the statutory requirements under Tennessee law, she asserted that HIPAA preempted this Tennessee law and that the interviews should thus not be allowed. The trial court denied the defendant’s request for QPOs, and the defendant appealed.

On the state level, Tenn. Code Ann. § 29-26-121(f) “allows for the disclosure of protected health care information in ex parte interviews conducted during judicial proceedings,” provided certain conditions are met. The statute requires that the petition identify the healthcare provider to be interviewed; that the plaintiff can object based on the provider not possessing relevant information; that the QPO “shall expressly limit the dissemination of any protected health information to the litigation pending before the court and require the defendant or defendants who conducted the interviews to return…or destroy any protected health information obtained…at the end of the litigation;” and that the QPO must state that participation in the interview is voluntary.

July 27, 2016

Bench Trial Judgment for Plaintiff Reversed Due to Lack of Factual Findings

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

In Omni Ins. Co. v. Nickoloff, No. E2015-01450-COA-R3-CV (Tenn. Ct. App. June 2, 2016), the Court of Appeals overturned a trial court’s finding of negligence when a vehicle struck a pedestrian walking on a sidewalk. Specifically, it was asserted that plaintiff was walking west on a sidewalk at 10:40 p.m., and defendant was driving west on the road beside the sidewalk. Defendant’s vehicle hit plaintiff, and plaintiff asserted that defendant was liable on the theories of negligence and negligence per se, “due to his violation of Tennessee Code Annotated 55-8-136, which provides in pertinent part that ‘every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway.’”

After a bench trial, the trial court found defendant liable. In its order, the trial court stated: “There was an automobile collision… Plaintiff’’s insured…was walking on the sidewalk. Defendant…acknowledged that he hit [plaintiff] with his vehicle.” Defendant appealed and submitted a statement of the evidence, which was “approved by the trial court as a true and accurate record of the proceedings” and received no objection by plaintiff. The statement of evidence provided only that:

Plaintiff was walking on the sidewalk;

July 19, 2016

Jury Verdict for Plaintiff in Tennessee Truck Accident Case Affirmed

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

A Tennessee truck crash case found its way to a jury trial, a plaintiff’s verdict, and a trip to the Tennessee Court of Appeals. In Bachar v. Partin, No. M2015-00724-COA-R3-CV (Tenn. Ct. App. May 27, 2016), the Court of Appeals affirmed a jury verdict finding defendant 60 percent liable for a car accident.

The underlying facts of the case were that defendant truck driver “failed to stop in obedience to a stop sign and drove his truck into the intersection, causing [plaintiff], who had the right-of-way, to swerve and collide with another vehicle.” Although plaintiff and defendant did not actually collide, plaintiff brought suit against defendant alleging that his negligence had caused the accident. After a jury trial, defendant was found to be 60 percent at fault, while plaintiff was held 40 percent liable, and damages were awarded accordingly. Defendant appealed this decision on three grounds: (1) that the evidence did not support the jury’s liability findings; (2) that the evidence did not support the jury’s award of past and future lost wages for plaintiff; and (3) that juror misconduct occurred.

First, the Court of Appeals affirmed the liability apportionment. The Court noted that the evidence showed that the police officer responding to the accident estimated plaintiff’s speed at 43 miles per hour, while the speed limit was 30 miles per hour. The evidence also showed, however, that plaintiff had the right-of-way and that defendant “did not stop or attempt to stop” before entering the intersection. The Court held that “[t]aking the strongest view of the evidence in support of the verdict and affording reasonable inferences to sustain it, the evidence support[ed]” the jury’s finding of fault.

July 17, 2016

Summary Judgment Ruling Trips Up Plaintiff’s Elevator Case

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

In Dennis v. Donelson Corp. Centre I, LP, No. M2015-01878-COA-R3-CV (Tenn. Ct. App. May 13, 2016), the Court of Appeals affirmed summary judgment in a negligence case revolving around injuries plaintiff sustained when exiting an elevator. On appeal, the only relevant defendant was the elevator maintenance company, who provided maintenance to the elevator in question pursuant to a contract with the building owner.

According to plaintiff, she was riding the elevator and, when it stopped, it “did not stop level with the floor.” Plaintiff claimed that the uneven step caused her to fall while exiting the elevator, “resulting in injuries to her knee, ankle and leg.” Maintenance logs stated that the employee of defendant who was assigned to this building had completed routine maintenance on the elevator just two days before, finding no issues, and that no issues had been found on the elevator during the year preceding the accident. After the fall but on the same day, defendant’s employee and a state inspector went to the building to inspect the elevator. “During their inspection, they were unable to recreate the scenario where the elevator stopped three or four inches below the floor.” Defendant’s employee did find that the elevator had a leaking valve, which was replaced, but that was unrelated to the alleged issue that caused the fall.

After discovery, defendant maintenance company moved for summary judgment, which the trial court granted. Plaintiff appealed on two bases: 1) “that a reasonable juror could have concluded that [defendant] was negligent under the doctrine of res ipsa loquitur,” and 2) that plaintiff had “presented evidence creating a genuine issue of material fact as to a witness’s credibility.”

July 13, 2016

The “Law of The Case” and Its Exceptions – Tennessee Style

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

A recent health care liability case illustrates the importance of putting your best case forward the first time around and not depending on appeals or “do-overs” to save your claims.

In Shipley ex rel. Shipley v. Williams, No. M2014-02279-COA-R3-CV (Tenn. Ct. App. May 19, 2016), plaintiff brought suit in 2002 alleging that defendant doctor was negligent in failing to assess her condition, failing to provide proper care, failing to admit her to the hospital, and failing to properly follow-up. In 2006, the trial court granted summary judgment to defendant on the failure to admit claim, and after granting defendant’s motion to exclude plaintiff’s expert witnesses, the trial court also granted summary judgment on the remaining claims. The Court of Appeals reversed all of the summary judgment rulings, but the Supreme Court reinstated summary judgment as to the failure to admit claim, allowed the plaintiff’s experts to testify, and allowed the balance of the case to go to the jury. The case was remanded and tried, and the jury found for defendant doctor. Plaintiff appealed.

The first issue on appeal related to the summary judgment on the failure to admit claim. On remand, the trial court initially set aside the summary judgment, “applying the ‘substantially different evidence’ exception to the law of the case doctrine.” After more discovery, though, summary judgment was reinstated, and the Court of Appeals affirmed this decision. The Court noted that the law of the case doctrine means that “an appellate court’s decision on an issue of law is binding in later trials and appeals of the same case if the facts on the second trial or appeal are substantially the same as the facts in the first trial or appeal.” (internal citation omitted).

July 7, 2016

Waiver Trips Up Injury Case Against YMCA

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

In an extremely short opinion in a recent premises liability case, the Court of Appeals overturned a trial court and ordered summary judgment be entered for defendant on remand due to a release agreement plaintiff had signed.

In Gibson v. Young Men’s Christian Association of Middle Tennessee, No. M2015-01465-COA-R9-CV (Tenn. Ct. App. May 16, 2016), plaintiff had joined her local YMCA. To become a member, plaintiff had signed a Membership Application, which stated:

In consideration of gaining membership and/or being allowed to participate in the activities and programs of the YMCA…, I do hereby waive, release, and forever discharge the YMCA…from any and all responsibility or liability for injuries or damages resulting from participation in such activities or programs or my use of such facilities, equipment or machinery, even if such damage or injury results from a negligent act or omission.