Civil Procedure

August 23, 2016

Plaintiff Permitted to Proceed on Multiple Theories of Liability

In Commercial Painting Co., Inc. v. The Weitz Co., LLC, No. W2013-01989-COA-R3-CV (Tenn. Ct. App. June 20, 2016), the Court of Appeals reversed a trial court’s grant of summary judgment on claims for negligent and intentional misrepresentation.

Plaintiff was a drywall subcontractor, and defendant was a general contractor with whom plaintiff had entered into an agreement to perform work on a construction project. According to the complaint, plaintiff alleged that:

Defendant had revised the project schedule with the project owner to show that a longer construction timeline was needed, yet the “out-of-date and erroneous schedule” was used when negotiating with plaintiff;

August 4, 2016

Reasonable Medical Expenses – Billed Amount or Negotiated Amount?

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

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).

May 18, 2016

Refusal to Strike HCLA Expert Affirmed

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

In Bogle v. Nighthawk Radiology Services, LLC, No. M2014-01933-COA-R3-CV (Tenn. Ct. App. April 6, 2016), the dispositive issue was whether the trial court should have stricken defendant’s expert testimony in a health care liability case based on a somewhat confusing exchange between plaintiff’s counsel and the expert on cross-examination, wherein plaintiff argued that the expert admitted that he did not know the applicable standard of care. The Court of Appeals ultimately upheld the trial court’s decision to deny plaintiff’s motion to strike and affirmed the jury’s defense verdict.

The facts underlying this case dealt with the reading of a CT scan by defendant radiologist. Plaintiff’s wife, the decedent, had undergone the implantation of a dual-lead pacemaker, and after being discharged, returned to the hospital complaining of severe chest pains. A CT scan of her chest was taken by the hospital, and the images were transmitted electronically to NIghtHawk Radiology Services, one of the defendants in this case. Dr. Jones, a radiologist who was under contract at NightHawk, read the images and sent a report back to the hospital.

Though suit was brought against several parties, at the time of trial the only remaining defendants were Dr. Jones and NightHawk Radiology. Plaintiff’s theory of the case was that “the right ventricle lead of the pacemaker had perforated the wall of the right ventricle, and that this perforation was visible on the CT scan but was not noted or mentioned in the report of Dr. Jones and NightHawk Radiology.” Plaintiff asserted that the failure to report this perforation was a breach of the applicable standard of care. The defendants’ theory, on the other hand, was that while the pacemaker lead did appear to be in one layer of the heart, it did not appear to have perforated the pericardium. Dr. Jones testified that certain criteria had to be met in order for him to report a perforation, one of which was that the pericardium had to be perforated. Dr. Jones testified that he did not report a perforation here because that criterion was not met.

April 21, 2016

Tennessee Savings Statute Fails to Preserve Claims Not Asserted in Original Filing

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

In State Farm Mutual Auto. Ins. Co. v. Blondin, No. M2014-01756-COA-R3-CV (Tenn. Ct. App. Mar. 14, 2016), the central issue was whether plaintiff had asserted its claim for personal injury damages in a timely fashion. State Farm was subrogated to its insured’s right to recovery following an accident between the insured and defendant’s daughter. The accident occurred on July 7, 2009, and State Farm filed a civil warrant in general sessions court on May 17, 2010. The warrant stated that State Farm brought the action “to recover damages to the property of plaintiff’s insured, Jenny R. Rone, caused by the negligence of the defendant. The date of loss was July 7, 2009. The amount of damages totaled $7,371.22…”

On July 15, 2010, more than one year after the accident, State Farm filed a motion to amend the warrant to say: “Suit to recover damages to the property and person of plaintiff’s insured…. The amount of damages totaled $24, 999.99…” The general sessions judge denied the motion to amend, writing on the motion that it was “denied as to personal injuries. Statute of limitations has expired.”

Following the denial of the motion to amend, State Farm filed a motion to remove the case to circuit court, which was also denied. State Farm then voluntarily dismissed the case without prejudice. State Farm refiled in general sessions court within the one-year allowed by the savings statute, but this time the warrant stated that it was “to recover damages to the person and/or property of plaintiff’s insured.” This warrant listed damages at $7,371.22. Defendant moved to dismiss this action based on timeliness, and the general sessions court dismissed the case. State Farm appealed to the circuit court and also filed an Amended Complaint seeking $44,124.57 in damages. Defendant again moved to dismiss, which was denied, and ultimately State Farm got a judgment for $20,575, which was reduced by 20% because the court found the insured to be 20% at fault. Defendant then appealed to the Court of Appeals, which ultimately dismissed the personal injury portion of State Farm’s claim.

March 24, 2016

Kitchen Sink Complaint Goes Down Drain.

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

In Goetz v. Autin, No. W2015-00063-COA-R3-CV (Tenn. Ct. App. Feb. 10, 2016), plaintiff filed a rather unclear complaint that appeared to assert four causes of action: (1) defamation, (2) malicious prosecution, (3) abuse of process and (4) intentional infliction of emotional distress. The trial court dismissed the entire complaint for failure to state a claim, and the Court of Appeals affirmed.

Plaintiffs factual allegations were essentially that defendants “made defamatory statements to [his] family members, neighbors and friends, subjecting [him] to contempt and ridicule and threatening his job[;]” that defendants filed suit against plaintiff on May 12, 2010 with “no reasonable basis” for the action and with an “ulterior motive;” that defendants “committed an act in the use of process other than such as would be proper in the regular prosecution of the charges alleged[;]” that defendants eventually voluntarily dismissed their claims; that the lawsuit contained false statements about plaintiff; and that plaintiff suffered “severe physical and emotional injury” due to the defendant’s lawsuit and statements. Based on these facts, the Court of Appeals affirmed the ruling that the complaint failed to state a claim for the causes of action pursued by plaintiff.

On the abuse of process claim, the Court noted that “a plaintiff must allege the existence of an ulterior motive and an act in the use of process other than such as would be proper in the regular prosecution of the charge.” Moreover, “[t]he mere initiation of a lawsuit, though accompanied by a malicious ulterior motive, does not constitute an abuse of process.” (internal citation omitted). Instead, a “plaintiff must allege some misuse of process after the initiation of the lawsuit.” Here, the complaint failed to allege that defendants did anything more than file the “original processes of the court.” Since the institution of a lawsuit alone is not enough to support an abuse of process claim, plaintiff’s complaint failed to state a claim for this cause of action.