Day on Torts

February 29, 2016

Trip Over Three-Inch Threshold Presents Question for Jury

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.

February 6, 2016

1% of Doctors = 32% of Malpractice Claims

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

Want to protect patients and reduce the cost of medical malpractice insurance? Identify and insist on retraining for the 1% of doctors who account for 32% of medical malpractice claims.

February 5, 2016

Slip and Fall Case Dismissed WhenTestimony and Other Evidence Did Not Align

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

In Willis v. McDonald’s Restaurants of Tennessee, Inc., No. E2015-00615-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015), plaintiff’s inability to prove the cause of her fall proved fatal to her premises liability action. Plaintiff and her husband entered a McDonald’s restaurant that they had been to several times. Husband sat at a table while plaintiff went to the counter to order. After ordering, she walked to the drink station and prepared two large drinks, then walked past the service counter toward her husband, at which time she slipped and fell, spilling the liquid and ice from the drinks she was holding on the floor.

Plaintiff claimed that a “sharp object” and/or “hard object” caused her fall, as she said she felt it through her shoe immediately before slipping. She believed it was a piece of ice, but had no proof of that assertion. No such object was identified before the fall, and after the fall plaintiff’s own ice was covering the area. The restaurant in question had tile flooring, and there was a non-skid surface in front of the service counter. At the time of plaintiff’s fall, there was a French fry on one corner of the non-skid surface, which plaintiff stepped over shortly before falling. Plaintiff also pointed out that an employee found a straw wrapper on the floor soon after her fall, and that employees allegedly tracked grease from the kitchen to the service area of the restaurant. A security camera captured plaintiff’s fall and showed that on the day of the incident, “placards were placed throughout the restaurant…to alert patrons of possible slippery conditions.”

Defendant moved for summary judgment, asserting that “plaintiffs could not identify the cause of her fall and that she could not establish that Defendant created the dangerous condition that caused the fall or that Defendant had any knowledge, either actual or constructive, of the dangerous condition prior to the fall.” The trial court granted summary judgment, which the Court of Appeals affirmed.

February 1, 2016

Summary Judgment Affirmed Where Dog Had Never Bitten Anyone Before

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

In 2007, the Tennessee legislature enacted Tenn. Code Ann. § 44-8-413, which addresses injuries caused by dogs. This statute draws a distinction between (1) injuries caused by a dog “running at large” and (2) injuries caused by a dog on its owner’s property. For the latter group, the statute provides that “the claimant shall be required to establish that the dog’s owner knew or should have known of the dog’s dangerous propensity,” and a recent case gave the Tennessee Court of Appeals its first opportunity to interpret this language.

In Moore v. Gaut, No. E2015-00340-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2015), plaintiff went to defendant’s house to service a satellite dish. Defendant had a great dane fenced in his backyard. According to plaintiff, he was greeted by defendant’s father, who told him that the dog was “gentle” and “jovial” and encouraged him to greet the dog. Plaintiff alleged that when he went to get tools out of his vehicle, which was parked next to the fence, the dog “jumped up, leaned over the fence and bit [his] face.” Plaintiff filed suit against defendant dog owner.

Defendant moved for summary judgment, which he supported with an affidavit stating that his dog “was in a fenced-in area of his backyard” and that the “dog [had] never bitten anyone or attacked anyone.” In response, plaintiff filed his own affidavit detailing the incident and reiterating that he was never warned that the dog might act aggressively. The trial court held that “the undisputed facts established that there had been no previous history of the dog biting, attacking, or acting aggressively.” Instead, the trial court ruled that the evidence showed the opposite—that the dog had never bitten or attacked anyone, and that there was no evidence it had engaged in playful behavior that could be dangerous. Finding that there was no evidence to “put the defendant on notice that the dog was dangerous,” summary judgment was granted to defendant, which the Court of Appeals affirmed.

January 31, 2016

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

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

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.