Day on Torts

January 31, 2016

HCLA Claim Dismissed Where One of Eight Providers was Named on HIPAA Form

A continued problem for HCLA plaintiffs seems to be complying with the requirement to provide a HIPAA authorization with their pre-suit notice. In Dolman v. Donovan, No. W2015-00392-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015), another HCLA claim was dismissed due to the inadequacy of plaintiffs’ HIPAA authorizations.

Plaintiffs’ claims related to the treatment of their father at Methodist Hospital. In their suit, plaintiffs named two doctors, Methodist LeBonheur Healthcare, Memphis Vascular Center, and Memphis Radiological, P.C. as defendants. In addition to the named defendants, pre-suit notice was served on an additional three parties—another doctor, Methodist Healthcare Germantown, and Mid-South Pulmonary Specialists. “The notice letters were accompanied by three Methodist LeBonheur Healthcare medical records authorizations forms. Substantively, the three authorizations were identical, but each was signed by a different [plaintiff].”

After suit was filed, defendants moved to dismiss, asserting that the authorizations did not comply with the HCLA statute in that they “only allow[ed] the release of records from Methodist LeBonheur Healthcare” and “did not enable them to obtain the records from ‘each provider being sent a notice’ as required by statute.” In response, plaintiffs argued that the HIPAA authorizations were compliant because they authorized the release of records from “Methodist LeBonheur Healthcare and its affiliates,” and that “the doctors and other named healthcare providers were ‘affiliates’ of Methodist….” Finding that the authorizations were not statutorily compliant, the trial court dismissed the case, and the Court of Appeals affirmed.

January 25, 2016

Tolling Due to “Adjudicated Incompetent” Requires That There Was Judicial Intervention

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

In 2011, the Tennessee legislature amended Tenn. Code. Ann. § 28-1-106 regarding tolling of statutes of limitations, replacing the language “of unsound mind” and “after the removal of such disability” with “adjudicated incompetent” and “after legal rights are restored.” The current version of the statute reads:

If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person’s representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.

Recently, the Tennessee Court of Appeals analyzed the meaning of this language change, marking the first time a state court has interpreted the new terms.

In Johnson v. UHS of Lakeside, LLC, No. W2015-01022-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015), plaintiff filed an HCLA claim related to her late husband’s fall at defendant’s facility. It was uncontested that she gave pre-suit notice more than one year after the cause of action accrued, and that she filed the complaint more than one year and 120 days after the same. Defendant moved to dismiss the claim based on the statute of limitations. Plaintiff opposed the motion on the basis that her husband met the criteria of § 28-1-106 and that the statute of limitations was thus tolled. The trial court dismissed the action, and the Court of Appeals affirmed.

January 23, 2016

Tennessee Testimonial Harlot Protection Act of 2016

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

The medical community in Tennessee doesn’t want judges and juries to know how much money they make from testifying as expert witnesses. So they have persuaded two members of the General Assembly to introduce legislation that applies not only to medical doctors but to every type of expert witness.

This is the substance of HB 1466:

Except for good cause shown and pursuant to court order, a party may not discover a statement of compensation that is paid to an expert witness for any study and testimony in a case.

January 22, 2016

Curb Cut for Wheelchair Ramp Held Not To Be “Dangerous Condition”

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

In Steele v. Primehealth Med. Center, P.C., No. W2015-00056-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2015), the Tennessee Court of Appeals affirmed summary judgment for defendant in a premises liability case, “concluding that the plaintiffs presented insufficient evidence to demonstrate that the sidewalk [at issue] was unreasonably dangerous.”

Plaintiff was an office supply store delivery person, and he was making his first delivery to defendants’ building. The building was owned by one defendant and occupied by another defendant, a medical center. In front of the entrance, the sidewalk had a curb-cut for a wheelchair ramp. One side of the cut sloped down to the incline, but the other side did not slope and instead had a “single step riser approximately 5 inches high.” The ramp, the lower landing, and the curb cut were lighter in color than the surrounding concrete sidewalk, but there were no particular markings. While plaintiff was pulling his dolly down the sidewalk to make a delivery and “looking straight ahead toward the entrance as he walked,” he stepped off the single step riser and broke his leg.

Plaintiff brought this premises liability action, alleging that defendants “fail[ed] to either make the condition safe or warn others of the dangerous condition by appropriate warning signs.” Defendants filed a motion for summary judgment supported primarily by expert testimony. Defendant’s expert stated that the sidewalk in question met all building codes, was inspected and approved by city officials, and that it was “similar in detail to figures shown in the 1999 North Carolina Accessibility Code.” Further, defendant building owner testified that there had been no other incidents between the 2001 construction of the building and sidewalk and this litigation.

January 15, 2016

Expert Rejected. Motion to Continue Rejected. Case Dismissed.

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

In a case that could have only arisen in Shelby County, Weatherspoon v. Minard, No. W2015-01099-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2015), the Court of Appeals affirmed a trial court’s decision to dismiss a health care liability claim after excluding the plaintiff’s expert witness five days before trial.

The alleged negligence occurred in 1998, and this case had been pending in different forms for over fifteen years. After defendant filed a motion for summary judgment in 2009 on the basis that plaintiff did not have a standard of care expert, plaintiff responded and provided the affidavit of Dr. Evans. Defendant served a notice of deposition for Dr. Evans on May 22, 2013, with the deposition to occur one week later. “The notice requested that [plaintiff] ensure Dr. Evans produced certain documents at the deposition, including those related to the income he earned as an expert witness.” Dr. Evans failed to provide this information at his deposition, and continued to refuse to do so, even after the trial court granted defendant’s motion to compel production pursuant to a subpoena duces tecum.

The trial was set for February 2, 2015. On January 13^th, counsel for defendant appeared at Dr. Evans’s office per the subpoena, but was told that Dr. Evans was not there and that counsel “did not have permission to be on the property.” Three days later, defendant filed a motion in limine to exclude Dr. Evans based on his refusal to provide these financial documents. The trial court heard arguments on January 28^th and granted defendant’s motion excluding Dr. Evans. Because Dr. Evans was plaintiff’s only standard of care expert, and because standard of care must be proven by expert testimony in an HCLA case, the court dismissed plaintiff’s case.

January 11, 2016

HIPAA-Compliant Authorization Still Required where Defendant is only Health Care Provider at Issue

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

The HIPAA release required by the Health Care Liability Act and the standards for HIPAA compliance continue to be a litigated issues in this evolving area of Tennessee law.

In Bray v. Khuri, No. W2015-00397-COA-R3-CV (Tenn. Ct. App. Dec. 3, 2015), plaintiff was the surviving spouse of a patient who committed suicide while admitted to a hospital under defendant doctor’s care. Before filing suit, plaintiff sent a notice letter and a medical authorization form to defendant. Once plaintiff filed her complaint, defendant filed a motion to dismiss, arguing that plaintiff failed to provide a HIPAA-compliant medical authorization as required by Tenn. Code Ann. § 29-26-121(a)(2)(E) because the authorization provided “did not include a description of the information to be used and it failed to identify which health care providers were authorized to make the requested disclosure.” Plaintiff opposed the motion to dismiss, asserting that she did not have to provide a HIPAA-compliant authorization since the only health care provider at issue was defendant, and that “the form she provided was not deficient when read in conjunction with the potential claim letter accompanying it.” The trial court agreed with defendant, dismissing plaintiff’s claim, and the Court of Appeals affirmed.

The first issue on appeal was whether plaintiff was required to provide defendant with a HIPAA-compliant authorization when defendant “was the only medical provider being sent the notice of potential claim.” In support of her argument that no medical authorization was required here, plaintiff pointed to the language of the statute, which states that a plaintiff’s written notice “shall include…[a] HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.” Tenn. Code Ann. § 29-26-121(a)(2)(E). Plaintiff asserted that “the inclusion of the phrase ‘from each other provider’ signals that it is unnecessary to include an authorization when only one provider is receiving the notice because that provider already has all the relevant records in its possession.”

January 7, 2016

Gross Negligence Affirmed where Advertisement Misrepresented Mini Storage

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

In Kuhn v. Panter, No. M2015-00260-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2015), the Court of Appeals affirmed a finding of gross negligence against the owners of a mini storage facility.

Here, defendants had advertised the mini storage facility as “clean and dry.” Plaintiffs rented one of the units in 2011 and stored many personal belongings there, including photographs, a family Bible, clothes and furniture. In May 2013, plaintiffs found that their unit had flooded and ruined all of their personal property.

Plaintiffs filed suit in sessions court and were awarded a judgment there, which defendants appealed to circuit court. During a bench trial, the evidence showed that the building had “drainage issues” during construction and the city issued a stop work order on it. Moreover, when the building was eventually completed, there was never a final inspection by the city and a certificate of occupancy was never issued. A witness for plaintiffs testified that the building housing their storage unit was “eleven inches lower than the surrounding storage buildings.” Further, it was shown that an “agent [of defendants] testified in a prior hearing that the unit rented to [plaintiffs] had flooded on a prior occasion.” Based on these facts, the trial court found defendants had committed gross negligence, and the Court of Appeals affirmed.

January 5, 2016

Article in TBA Journal About Comparative Fault Issue

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

The Tennessee Bar Association has published my article about the recent Moreno decision and the unintended consequences of that decision.

The article is titled “Donald Margolis, “Moreno,’ and Unintended Consequences.”

An excerpt:

January 2, 2016

2016 Rule Package Released

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

The Tennessee Supreme Court has sent a package of rule changes to the Tennessee General Assembly for review. The proposed changes will be sent to the judiciary committee in each house. Click on the link to see the proposals.

December 29, 2015

Plaintiff Who Turned Left on Red 50% at Fault as Matter of Law

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

In Hall v. Owens, No. W2014-02214-COA-R3-CV (Tenn. Ct. App. Nov. 20, 2015), the Tennessee Court of Appeals affirmed summary judgment for defendant where plaintiff ran a red light and turned in front of defendant’s truck. As plaintiff approached an intersection, he had a red arrow for turning left. Defendant was approaching the same intersection driving a tractor-trailer truck, and defendant had a green light. Despite the red arrow, plaintiff proceeded into the intersection and turned left, at which time he was hit by defendant’s truck and severely injured.

Plaintiff sued defendant and his employer for negligence, asserting that defendant’s negligence was the “direct and proximate cause of the collision.” Defendant moved for summary judgment, relying heavily on the footage of the accident from two traffic cameras. Based on the footage, two experts for defendant testified that defendant was driving approximately 52 miles per hour in the 55 mile per hour zone. Further, it was undisputed that defendant had a green light and plaintiff had a red arrow. It was also undisputed that defendant’s truck was well-illuminated and visible.

In response to the motion for summary judgment, plaintiff submitted expert testimony from an accident reconstructionist asserting that defendant was traveling 60-65 miles per hour, and that defendant had “six to nine seconds of clear visibility of [plaintiff’s] car.” In light of the evidence, the trial court granted defendant’s motion for summary judgment, finding that “no reasonable minds could find anything other than the fact that [plaintiff’s] actions in driving that morning of the accident constituted negligence, and negligence per se, and that his actions were the proximate cause of the accident, at least to the extent of 50% of fault.” The trial court further found that plaintiff’s expert’s testimony regarding defendant’s speed was “fundamentally flawed” in that it failed to consider several relevant factors.