Civil Procedure

April 20, 2017

Summary Judgment Vacated When Order Failed to State Reason for Decision

In Battery Alliance, Inc. v. Allegiant Power, LLC, No. W2015-02389-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2017), the Tennessee Court of Appeals vacated a summary judgment order for defendants because the trial court failed to state the legal grounds for summary judgment before asking counsel for defendants to draft an order.

The facts underlying this case revolved around the president and other employees of a Tennessee battery company leaving and starting a competing battery company in Florida. Plaintiff, the Tennessee company, filed suit against the Florida company and several individual defendants, citing various causes of action including intentional interference with business relationships. Defendants filed a counterclaim against plaintiff and also filed a motion for summary judgment. In response to defendants’ filings, plaintiff filed a motion to dismiss the counterclaim.

The trial court held a hearing on the motions and denied plaintiff’s motion to dismiss, but it “took the motion for summary judgment under advisement.” The next day, the judge’s law clerk emailed counsel for the parties and said the judge was going to grant summary judgment to defendants, and further asked defense counsel to “draw up the order.” At a subsequent hearing on a motion to compel, “counsel for Plaintiffs requested that the court provide its legal reasoning supporting the decision to grant Defendants’ motion for summary judgment prior to entry of the judgment.” The trial court replied that the reasoning would be provided in its order. The trial court further stated that “counsel for Defendants was preparing only a ‘template’ for the court’s order and that the actual court order entered would be the court’s ‘work.’” Weeks later, defendants sent the template to the court, plaintiff lodged an objection to the template, and the court eventually entered an order granting summary judgment.

March 29, 2017

HCLA (Medical Malpractice) Claim Dismissed – Notice Insufficient

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

A recent Court of Appeals opinion shows yet another case of a potentially valid health care liability claim failing because of plaintiff’s failure to follow the goofy yet mandatory procedural notice requirements of the HCLA statute.

In Piper v. Cumberland Medical Center, No. E2016-00532-COA-R3-CV (Tenn. Ct. App. Jan. 20, 2017), plaintiff wife sued after her husband died while under the care of defendant physicians and hospital. According to the allegations in the complaint, husband went to the hospital due to fatigue and was diagnosed with stage four kidney failure. Plaintiff asserted that ten days after her husband’s admission to the hospital, one of the defendant physicians told her that “it was a shame they couldn’t treat her husband due to his religious beliefs.” At this point, plaintiff discovered that her husband had incorrectly been identified as a Jehovah’s Witness. She corrected the information and gave consent to treat, but her husband died shortly thereafter. Plaintiff alleged that defendants provided negligent treatment and “were negligent because they incorrectly assumed that Decedent’s religious beliefs guaranteed that he would reject available life-saving treatment and because they failed to ask Decedent or [plaintiff] for permission to administer such treatment.”

March 28, 2017

Limit on Right of Surviving Spouse to Bring Wrongful Death Claim

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

While a surviving spouse typically has the superior right to bring a wrongful death suit, there are certain exceptions to that rule. In Nelson v. Myres, No. M2015-01857-COA-R3-CV (Tenn. Ct. App. Jan. 18, 2017), the Court held that a suit filed by the deceased’s daughter rather than her husband could proceed, as the husband was alleged to have at least partially caused her death.

Wife died in a multi-car accident while she was a passenger in a vehicle driven by her husband. In the accident, husband and a car driven by Mr. Bennett collided, then those two vehicles crossed into opposing traffic and hit two other vehicles. Both the husband and daughter of deceased wife filed wrongful death actions. The trial court dismissed daughter’s action, holding that her action “must yield to the claim of the surviving spouse.” The Court of Appeals reversed and reinstated daughter’s complaint.

In her complaint, daughter named husband as a defendant and alleged that husband was guilty of negligence and negligence per se because he was driving under the influence and was traveling at a high rate of speed, racing Mr. Bennett. In the suit filed by husband, Mr. Bennett was the only defendant named, and husband alleged that “Mr. Bennett’s actions were the sole cause of the accident and death of [wife].”

March 7, 2017

One Year Statute of Limitations Bars Misrepresentation Claims

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

In Sakaan v. FedEx Corporation, Inc., No. W2016-00648-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2016), the Court of Appeals affirmed dismissal of a misrepresentation claim based on the statute of limitations.

Plaintiff had previously been employed by defendant FedEx, and had been presented with a severance package as part of a cost-cutting initiative by the company. Before signing the severance agreement, plaintiff asked about how it would affect his ability to work on FedEx projects that were staffed by third-party vendors, and he “allege[d] he was assured that his acceptance of the severance agreement would not prohibit him from working on FedEx projects sourced through a third-party vendor.” Plaintiff signed the agreement in March 2013, officially left his employment in November 2013, and was hired by a company that contracted with FedEx. In his role with this new company, he attended a meeting at FedEx on December 19, 2013. When members of the FedEx legal team recognized him, they had him removed from the premises, and “he has not worked on a FedEx project since that time.”

Plaintiff filed suit on April 21, 2015, making claims for intentional and negligent misrepresentation. After filing their answers, defendants moved for judgment on the pleadings based on the statute of limitations, which the trial court granted. The trial court determined that the one-year statute of limitations found in Tenn. Code Ann. § 28-3-104(a)(1) applied to this matter, and that the claims were thus time-barred. The Court of Appeals affirmed.

February 15, 2017

Exclusion of Expert Testimony Reversed – New Trial Ordered

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

In Holmes v. Christ Community Health Services, Inc., No. W2016-00207-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2016), the Court of Appeals overturned the exclusion of expert testimony in an HCLA case.

In 2004, plaintiff fell and hurt her right shoulder, and she did not seek treatment until five days after her fall. When she visited defendant doctor, he examined her shoulder and diagnosed her with bursitis, never ordering an x-ray or other scan. Defendant doctor recommended an exercise program to plaintiff. Plaintiff’s pain continued to worsen, and she saw a different doctor a month later. This doctor took an x-ray of her shoulder and referred her to an orthopedic surgeon, who ordered a CT scan. The scan showed that plaintiff had a fracture dislocation. She was then sent to Dr. Weiss, a surgeon specializing in shoulder injuries, who performed open reduction surgery on plaintiff. During surgery, Dr. Weiss determined that plaintiff’s shoulder socket was “so badly damaged that it had to be repaired utilizing a cadaver bone piece and surgical screws.” Plaintiff suffered many complications, including a severe infection, an additional surgery, and a PICC line for antibiotics. After her shoulder healed, plaintiff was left with a “partial physical impairment.”

February 14, 2017

Tennessee’s “Rule of Sevens” Applied to Dismiss Case

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

Citing the Rule of Sevens, the Court of Appeals recently affirmed a finding that a 13-year-old was solely responsible for his injury when he fell on the bleachers at his school.

In Crockett v. Sumner County Board of Educ., No. M2015-02227-COA-R3-CV (Tenn. Ct. App. Nov. 30, 2016), injured plaintiff and his parents sued his school after he fell on bleachers in the gym. Plaintiff was attending summer school, and the day before his injury someone had intentionally caused flooding in a boys’ bathroom. Because no one would confess, two coaches had all of the eighth grade boys help clean the bathroom and pick up trash from the bleachers. According to plaintiff, he mopped the bathroom and then was told to begin helping in the bleachers, though the coach supervising the work testified that plaintiff was not told to work in the bleachers after mopping.

At the time of his injury, plaintiff was using the bleacher seats as stairs, rather than using the designated stairway on the bleachers. Plaintiff stated that the coach had left the gym when he fell, but the coach testified that he had left for a couple of minutes to retrieve a dry mop and had returned to the gym by the time of plaintiff’s accident.

During a bench trial, plaintiff testified that “he knew from the time he was a little kid that he was not supposed to use the bleacher seats as steps,” and that such usage could cause injury. He further testified that he “just wasn’t thinking about it” at the time of the accident. Two coaches from his school testified that they had told the students on many occasions not to use the seats as steps but to instead use the designated steps, which had non-slip material on them.

January 8, 2017

Blank HIPAA Form Deemed Non-Compliant by Tennessee Court

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

In J.A.C. v. Methodist Healthcare Memphis Hospitals, No. W2016-00024-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2016), a plaintiff lost her chance to pursue her Tennessee medical malpractice claim due to an insufficient HIPAA release form.

Plaintiff was forty weeks pregnant when she went to the defendant hospital with lower back and abdominal pain on January 23, 2012, and she was found to have elevated blood pressure. Plaintiff was nonetheless discharged. She had her baby the next day, January 24, 2012, and a placental abruption was noted. The baby, a girl, allegedly “sustained severe brain damage that would not have occurred but for the Providers’ actions in failing to properly treat [plaintiff].”

Plaintiff filed this action on May 1, 2015, purportedly on behalf of both herself and her daughter. Plaintiff alleged that she followed the pre-suit notice requirements of the HCLA, but defendants moved to dismiss the case based on an insufficient HIPAA form. Defendants argued that, because the HIPAA form was insufficient to fulfill the statutory requirements, plaintiff was not entitled to the 120-day extension provided by the HCLA, and that her suit was thus filed outside the three-year statute of repose.

December 12, 2016

Issue Concerning Naming Proper Defendant in Complaint

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

In Robinson v. Robbins, No. W2016-00381-COA-R3-CV (Tenn. Ct. App. Oct. 19, 2016), the Court of Appeals addressed an issue regarding whether the savings statute applied when the defendant argued that the party in the second suit was different from the party named in the first suit.

This was an HCLA case, and plaintiffs first filed suit pro se. Their first complaint named the defendant as “Edward Todd Robins, MD, PC.” Within the body of the complaint, however, defendant was described in his individual capacity. When filing his answer, defendant included the language: “Comes now, Dr. E. Todd Robbins, P.C. as proper party for the above named Edward Todd Robbins, M.D., P.C…” Later in the suit, plaintiffs retained an attorney, who at some point in the first suit filed a motion “to clarify their intent to seek recovery from Defendant as an individual.” The trial court orally denied this motion, but “advised Plaintiffs that it would reconsider its ruling if they provided authority in support of their argument.” Before the order denying the motion was entered, plaintiffs took a voluntary dismissal of the first suit.

After giving proper pre-suit notice, plaintiffs filed their second suit, wherein they named “Edward Todd Robbins, M.D.” as defendant. Defendant moved to dismiss based on the statute of limitations, arguing that the first suit was filed against him in his corporate capacity and that the savings statute thus did not apply to a suit filed against him in his individual capacity, as the parties were not identical. The trial court agreed and dismissed the suit, but this dismissal was reversed on appeal.

December 2, 2016

Notice and HIPAA Form Also Required for Re-Filed HCLA Claim

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

Tennessee Courts continue to make it clear that each time you re-file a previously dismissed Tennessee medical malpractice (now health care liability) claim, you must abide by the statutory requirements. In Cright v. Overly, No. E2015-01215-COA-R3-CV (Tenn. Ct. App. Oct. 17, 2016), the Court of Appeals addressed the need for a plaintiff who was re-filing a previously nonsuited complaint to attach a new HIPAA-compliant release to the second pre-suit notice letter, determining that her failure to do so meant the complaint should be dismissed.

Plaintiff sued multiple defendants related to the treatment and death of her husband. In August 2009, before filing the first suit, plaintiff sent pre-suit notices with a HIPAA-compliant medical authorization to each of the defendants. This action proceeded through discovery and eventually made it to trial, but three days into trial plaintiff moved for a voluntary dismissal.

After the dismissal, plaintiff sent pre-suit notices to the defendants again, but this time she did not include a HIPAA release. Instead, the letter stated: “Medical records of the entire UT Hospital admission at issue have been previously provided to you, as well as any other records you wished to obtain pursuant to an Agreed RAS Order entered in the [original suit].” When plaintiff filed her second complaint, defendants all filed motions to dismiss based on plaintiff’s failure to include a HIPAA-compliant release with her pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121. Plaintiff’s attorney asserted that a HIPAA release “was not attached, because the parties had previously entered an agreed order that the RAS service and record ordering procedure was to be the exclusive means for obtaining the deceased’s medical records, to the exclusion of any medical authorizations previously provided.” The trial court, however, granted the motions to dismiss, and the Court of Appeals affirmed.

November 22, 2016

Ex Parte Communications With Treating Physicians – TN Statute Ruled Unconstitutional

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

Judge Thomas Brothers of Nashville has declared Tenn. Code Ann. Section 29-26 -121(f)(1) and (2) unconstitutional. Memorandum Order – Judge Brothers

The code section allows defense lawyers in Tennessee health care liability actions virtually unfettered ex parte communications with the plaintiff’s non-party health care providers. The code section was adopted by the Tennessee General Assembly in an attempt to override two Tennessee Supreme Court decisions.

The first of those cases was Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 20o2), which held that a covenant of confidentiality between patients and their treating physicians arises because of an implied understanding between patient and doctor and from a public policy concern that private medical information should be protected.