Day on Torts

March 18, 2016

Expert Not Needed in Wobbly Stool Case

In late 2015, the Tennessee Supreme Court overturned the nuanced approach previously used to distinguish ordinary negligence from medical malpractice. In Ellithorpe v. Weismark, No. M2014-00279-SC-R11-CV, 2015 WL 5853872 (Tenn. Oct. 8, 2015), the Supreme Court held that the statutory definition of “health care liability act” contained in the amendments to the HCLA passed in 2011 statutorily abrogated the nuanced approach, and that the definition contained in the statute was now the only guidance a court should consider when determining whether a claim fell under the HCLA. This ruling greatly broadened the scope of cases falling under the HCLA, and a recent Court of Appeals case is a good illustration of the effect of the Ellithorpe holding.

In Osunde v. Delta Medical Center, No. W2015-01005-COA-R9-CV (Tenn. Ct. App. Feb. 10, 2016), plaintiff sued defendant medical center after falling and sustaining a fibular fracture while getting an x-ray taken. Plaintiff went to the medical center complaining of ankle pain and was taken to radiology. There, the “radiology technician instructed [plaintiff] to stand up on a stool.” According to plaintiff, the stool was wooden and did not have rubber tips or handrails. When plaintiff was stepping off the stool, she fell. Plaintiff alleged that the stool was uneven and faulty.

March 16, 2016

Premises Case Rejected on Summary Judgment

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

In Fuller v. Banks, No. W2015-01001-COA-R3-CV (Tenn. Ct. App. Feb. 3, 2016), plaintiff filed a premises liability action based on a fall she sustained when the railing on the stairs at her rental home gave way. Plaintiff had been leasing the premises for almost a year, and the stairs were located outside her front door. Anytime plaintiff went outside the front of her home, she used these stairs and rail. She had used the stairs multiple times a day for the 11 months she had lived there, and even used the stairs at least two times on the day of the fall. Plaintiff had never noticed or reported a problem with the stairs to defendant landlord.

According to plaintiff, after she fell “she noticed loose bricks lying on the ground around her,” which she claimed were part of the railing’s foundation. After the fall, defendant sent a licensed contractor to repair the railing, and this contractor testified that he “did not find any loose bricks,” that “he made no repairs to the brick foundation,” and that there were no signs of rotting. Upon inspection, the contractor saw markings that made him believe the post supporting the railing had been hit by a vehicle.

The trial court granted summary judgment to defendant, finding that plaintiff’s “evidence is insufficient to establish an essential element of [her] claim, that being that [she] suffered an injury resulting from an unsafe or dangerous condition of the leased premises that was in existence at the date of the lease.” The trial court found that defendant had successfully negated proof that a defect was present when the lease was executed, and the Court of Appeals affirmed.

March 10, 2016

Is a Voluntary Dismissal With Prejudice a “Favorable Termination”

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

A recent Court of Appeals case affirmed a trial court’s ruling that a voluntary dismissal with prejudice does not constitute a “favorable termination” for the purpose of a malicious prosecution claim. In Fit2Race, Inc. v. Pope, No. M2015-00387-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2016), the underlying claim initially started during a contentious divorce proceeding. The court granting the divorce ruled in its final decree that the wife had been secretly working with other parties to steal business from and destroy the company started by the husband, and the court held that wife was “sanctioned and [] forbidden to oppose [husband’s] claim that she subverted and destroyed [husband’s] business.”

After the divorce, husband seized upon the findings of the judge in the divorce and filed a federal complaint against wife, another business, and the owners of the other business alleging interference with business relations and civil conspiracy. Husband eventually voluntarily dismissed this case with prejudice.

Not contend to leave well enough alone, the other business and its two owners (the defendants in the federal court action) filed this malicious prosecution action against husband and husband’s attorney. The trial court granted summary judgment to husband and his attorney, finding that because the trial court in the initial divorce had found that wife and the parties at issue here had worked together to steal/destroy husband’s business, there was “more than ample cause for filing the subsequent federal complaint in the underlying action.” Further, the trial court held that “a voluntary notice of dismissal with prejudice does not constitute a favorable termination without any discussion of the merits of the claim.” The Court of Appeals affirmed the summary judgment.

March 9, 2016

TRCP 16 Provides for Scheduling Orders Not Scheduling Suggestions

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

A recent Court of Appeals case serves as a great reminder of the importance of disclosing the correct experts in a timely fashion in a Health Care Liability Action. In Mikheil v. Nashville General Hospital, No. M2014-02301-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2016), plaintiffs filed an HCLA case against several parties related to the alleged failure to timely diagnose and treat cervical stenosis. Included as defendants were an orthopedic surgeon from Nashville General Hospital, a nurse practitioner, the hospital itself based upon a claim of vicarious liability through the orthopedic surgeon, and a neurologist.

To prove an HCLA claim, a plaintiff must present expert testimony regarding the “standard of care, a failure to act in accordance with the standard of care, and proximate cause.” Throughout the pretrial litigation, plaintiffs had multiple problems with their expert disclosures. First, plaintiffs failed to file their Rule 26 expert witness disclosure by the date set out in the agreed scheduling order, and instead filed a motion requesting an additional 120 days the day after the initial deadline. When the disclosure was eventually filed, plaintiff listed four potential expert witnesses, including Jane Colvin-Roberson who was to be called as a “life care planner expert.” The disclosure stated that “the plaintiffs would furnish a copy of the Life Care Plan when it is completed.”

Defendants moved to strike the experts because plaintiffs did not provide sufficient disclosures regarding the “facts and opinions to which the experts were expected to testify or a summary of the grounds for each opinion.” The Court gave the plaintiffs three days to serve full and complete disclosures. When the supplemental disclosure was given to defendants, rather than including the life care plan by Colvin-Roberson, the plaintiffs named a new life care planning expert, Nurse Lampton. Upon motion of the defendants, Nurse Lampton was stricken, as the plaintiffs did not disclose her in a timely fashion and did not seek leave of the court to substitute her for the life care expert originally named. As plaintiffs had at that point failed to provide full disclosures for a life care planner, the trial court ruled that plaintiffs were “prohibited from offering into evidence…any life care plan and any life care planning testimony.”

March 8, 2016

The Verdict for Erin Andrews – What Happens Next?

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

Erin Andrews won a jury verdict yesterday in Nashville for $55,000,000 in her case against the company that owned and managed a local hotel. What happens next?

Andrews’ lawyers will prepare a judgment reflecting the jury’s verdict. Look for a fight over whether joint and several liability or several liability applies that will be brought to head during this part of the proceedings. The hotel lawyers will ask the Court to enter judgment declaring that several liability controls the case and thus the hotel is “only” responsible for the hotel’s fault percentage multiplied by the total damages (about $27,000,000). Andrews’ lawyers will ask for joint and several liability, arguing that the logic of Turner v. Jordan and its progeny should apply and result in the imposition of joint and several liability, making the hotel liable for the entire $55,000,000. With $28,000,000 at play, look for a real fight over this issue.
The hotel will attempt to do jury interviews in an effort to find some way to impeach the verdict.

March 7, 2016

Property Owner Not Liable Where Another Entity Operated Clinic

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

In Choate ex rel. Clayton v. Vanderbilt Univ., No. M2014-00630-COA-R3-CV (Tenn. Ct. App. Jan. 25, 2016), the Court of Appeals affirmed summary judgment for a property owner when a patient was injured while attempting to get on a scale at a dialysis clinic.

Plaintiff was the decedent patient’s former spouse and brought the action on behalf of the patient’s minor child. Patient was suffering from end-stage renal disease and receiving dialysis treatments three times each week. His treatments were at the Vanderbilt Dialysis Clinic, but although Vanderbilt University owned the building and property, the clinic was operated by Bio-Medical Applications of Tennessee, Inc. Patient had been going to this clinic for several years.

When patient arrived on the day at issue, he arrived in a wheelchair and a Bio-Medical employee assisted him with his admission. Patients are weighed before dialysis can begin, but patient asked to go to the restroom first. A Bio-Medical employee wheeled patient to the restroom and told him to use the call string inside to let her know when he was finished. After not hearing from the patient for ten minutes, the employee checked on the patient and again reiterated that he should use the call string when finished. When the patient finished using the restroom, he left the area and asked the facility secretary to show him into the treatment area. She took him to an isolation room and instructed him to wait there for his patient care technician to come get him. Patient disregarded these instructions and left the room alone.

February 29, 2016

Trip Over Three-Inch Threshold Presents Question for Jury

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

In Brown v. Mercer-Defriese, No. E2015-COA-R3-CV (Tenn. Ct. App. Jan. 25, 2016), plaintiff was touring a home that she was considering renting when she tripped over a threshold/step. The threshold joined two rooms in the house, and the elevation difference from one floor to the other was three inches. The flooring in one room was tile, while the adjoining room was hardwood and the threshold itself was wood, but the evidence suggested that the flooring was all very similar in color.

Plaintiff had already traversed the threshold once, but testified that she did not notice the elevation change at that time, and that when she was traversing it a second time she did not notice the threshold and tripped, suffering serious injuries. Plaintiff brought this premises liability action, alleging that this step constituted an unreasonably dangerous condition. Plaintiff stressed the similarity in color between the two adjoining floors, and noted that the fall occurred when it was getting darker outside and thus more difficult to see. Plaintiff’s expert testified that the step in question was a “tripping hazard” due to its height and the fact that the entire area was essentially the same color. He further testified that the Consumer Product Safety Commission “has determined that stairs, ramps and landings are among the most hazardous consumer products in the United States, and classified a step with a riser less than 6.25 inches high as high risk.” (internal quotations omitted).

In response, the defendants asserted that the threshold was open and obvious and that it did not violate the relevant building code. Defendants also alleged that the threshold was a stair, which is a “common feature in homes and…not inherently dangerous[.]” (citation omitted). Defendants called two experts to testify, and both stressed that the threshold did not violate building code, but one admitted that he believed the step to be a “trip hazard.”

February 24, 2016

Data on Medical Malpractice Claims Against Anesthesiologists

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

The following is taken from an article in Clinical Advisor:

A new study has revealed mostly good news for anesthesiologists – since 2005, anesthesia-related medical malpractice claims have decreased dramatically, particularly in inpatient situations. The study, “Comparison and Trends of Inpatient and Outpatient Anesthesia Claims Reported to the National Practitioner Data Bank,” examined inpatient and outpatient anesthesia-related clinician malpractice claims between 2005 and 2013. The study was presented at the 2015 Annual Meeting of the American Society of Anesthesiologists.

During the 9-year study period, anesthesia-related medical malpractice claim frequency decreased by a total of 41.4% (or 4.6% per year). Inpatient claims saw the greatest decrease (a total of 45.5%), while the decrease was significantly less in outpatient settings (a total of 23.5%). According to study author Richard J. Kelly, MD, JD, MPH, FCLM, an anesthesiologist from the University of California, Irvine School of Medicine, the proportion of claims for outpatient procedures has actually increased compared with inpatients, but the amount paid for outpatient claims is significantly less than for inpatient claims.

February 10, 2016

2014-15 Tennessee Tort Filings and Damage Awards Data

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

Here are some of the most recent statistics concerning tort claims and trials in the Tennessee court system for the fiscal year ending June 30, 2015:

There were 9777 tort filings in state court, with 9695 tort cases concluded. Only 339 of those cases were tried to a judge or jury.
There were 356 health care liability actions filed, with 346 such cases concluded. Only 28 of those cases were tried.

February 9, 2016

Plaintiff Wins Case Involving Crash With Fire Rescue Vehicle

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

In Jones v. Bradley County, No. E2015-00204-COA-R3-CV (Tenn. Ct. App. Jan. 15, 2016), plaintiff sued Bradley County after she collided with a truck responding to a fire at a red-light intersection. Plaintiff had the green light at the intersection. Defendant, a fire rescue employee, was driving a Ford F-250 truck that was equipped with a siren and emergency lights. Defendant proceeded to turn left against a red-light, at which time plaintiff’s car collided with defendant’s truck, causing plaintiff significant injuries.

Bradley County relied on Tenn. Code Ann. § 55-8-108, which “provides privileges to emergency vehicle drivers under certain circumstances.” This statute allows emergency vehicle drivers to “proceed past a red or stop signal[,]” but still requires the driver “to drive with due regard for the safety of all persons[.]” While analyzing this case, though, the Court pointed out that that “[t]he obligation to exercise due care is, thus, not excused by the fact that the [emergency] driver is responding to an emergency call.” (citation omitted).

Bradley County further asserted that the sole cause of this accident was plaintiff’s failure to comply with Tenn. Code Ann. § 55-8-132, which provides that “upon the immediate approach of an authorized emergency vehicle making use of audible and visual signals…the driver of every other vehicle shall yield the right-of-way.” The Court pointed out that, when previously applying this statute, the Court has “noted the requirement of due care when entering an intersection even under authority of a green light” and “observed that if plaintiff should have heard the siren or should have seen the blue lights flashing, she…cannot evade her duty to yield to an emergency vehicle by saying that she did not hear and did not see because she did not look.” (citation and internal quotations omitted). In response to this argument, plaintiff pointed to the County Rescue Service operations manual, claiming that defendant violated the portions of the manual that stated that emergency drivers should “slow to a safe speed at which a stop could be made, and insure that all traffic has yielded” and “change the siren mode” when approaching an intersection. Plaintiff further argued that the evidence showed that defendant did not drive with due care through the intersection.