Day on Torts

August 4, 2016

Reasonable Medical Expenses – Billed Amount or Negotiated Amount?

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.

July 6, 2016

Tesla’s Driverless Car Crash Raises Evidence Collection Issue

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

The crash of the driverless Tesla car has made big news and has helped to generate additional, necessary discussion about the role such vehicles will play in our lives.

There is little doubt that autonomous vehicles will be a part of our streets and highways – the push is too broad and too strong to stop the effort. There is also little doubt that driverless vehicles will have a huge impact on our economy. For example, what will happen to our 3.5 million truck drivers when driverless trucks are able to operate on our nation’s roadways?

But the crash of the Tesla car raises a potential liability issue that there has been little public discussion about: how does a person who believes that he or she has been injured or killed by a software or hardware glitch in an autonomous or semi-autonomous vehicle get access to information to determine if his or her belief is true?

July 6, 2016

Legal Malpractice – Statute of Limitations – Discovery Rule

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

In Credential Leasing Corp. of Tenn., Inc. v. White, No. E2015-01129-COA-R3-CV (Tenn. Ct. App. May 17, 2016), plaintiff lender brought various claims against defendant lawyer, including claims for professional negligence and fraudulent misrepresentation, related to the drafting of a deed of trust. Defendant attorney prepared a 2010 deed of trust in favor of plaintiff, conveying title to a parcel of land owned in part by defendant’s brother. Defendant stated that he would do the title work, prepare the deed of trust, and issue title insurance for the property at issue, though he never actually issued any title insurance.

The property was actually owned by the brother and another man as tenants in common. In 2007 a deed of trust had been executed on the same property to secure a loan from another bank, and defendant attorney had notarized the signatures of the grantors (and correct property owners) on that deed. Despite the fact that the brother only owned a half interest in the property, the 2010 deed of trust did not mention the other owner’s interest. Instead, it listed the brother and the brother’s wife as grantors, even though the wife had no interest in the property. Further, while the warranty deed and previous deed of trust used a “lot and block” description of the property, the 2010 deed of trust described the property by metes and bounds.

In 2011, the brother declared bankruptcy. Plaintiff received a notice of the bankruptcy filing, which showed the other creditor having a first lien, which plaintiff was already aware of. Almost two years later, however, plaintiff learned that the property had been sold at foreclosure, and plaintiff had not received notice. Only after learning of this sale did plaintiff find out that the brother had only owned a one-half interest in the property, and that their deed of trust thus had not covered the entire property.

June 10, 2016

Three-Inch Step From Store to Sidewalk Not a Dangerous Condition

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

In Mooney v. Genuine Parts Co. d/b/a National Automotive Association, Inc., No., W2015-02080-COA-R3-CV (Tenn. Ct. App. May 11, 2016), the Tennessee Court of Appeals affirmed summary judgment for defendant retail store in a premises liability action.

Plaintiff had entered the automotive parts store to apply for a job. After being told the position was filled, she left through the same door she had previously entered and fell. Plaintiff filed a premises liability suit, claiming that the doorway constituted a dangerous condition. Plaintiff alleged that the concrete outside the store was 3.5 inches below the interior floor, that the drop-off is what caused her fall, and that the dangerous condition “could have been remedied by a ramp, contrasting floor material or paint, handrails, or warning signs.”

Defendant moved for summary judgment, claiming they “had no duty to warn [plaintiff] of the three-and-on-half-inch step-down at the doorway because it was not foreseeable that anyone would fall because of it.” In support of its motion, defendant pointed to evidence that no one had ever fallen during the 26 years the store manager had worked there, that plaintiff herself had traversed the doorway just a few minutes earlier, and that plaintiff had admitted that “she was not looking down at the step when she exited the door and fell.” In replying to this motion, plaintiff relied on her own deposition testimony, the store manager’s testimony that he had stumbled before going out the door, and a former employee’s testimony that he could see where the decline could cause someone to fall. The trial court granted defendant’s motion for summary judgment, and the Court of Appeals affirmed.