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May 4, 2018

Plaintiff Fails to Prove City Owned or Operated Drainage Pipe

A city government cannot be held liable in tort for a drainage problem on a road it does not own or operate caused by a malfunctioning pipe it did not install.

In Walker v. Metropolitan Government of Nashville & Davidson County, No. M2016-00030-COA-R3-CV (Tenn. Ct. App. Feb. 13, 2018), plaintiff homeowner sued defendant city “for damages to his property caused by storm water runoff under the tort theory of a temporary continuous nuisance.” Plaintiff alleged that storm water runoff from the road he lived on flooded his property, basement and foundation each time it rained, and that he had asked defendant several times to fix a malfunctioning drainage pipe. Defendant moved for summary judgment on the basis that a previous homeowner had actually installed the malfunctioning pipe and that the city was accordingly immune from suit under the GTLA. The trial court granted summary judgment for defendant, and the Court of Appeals affirmed.

The evidence submitted in support of defendant’s motion for summary judgment showed that the road plaintiff’s property was on was a state highway, not a city street, and that before plaintiff owned the property the state had “acquired a permanent drainage easement” from the former owners. The state had installed a drainage pipe that funneled water to a ditch, which then funneled water to a creek. Before plaintiff bought the property, however, the previous homeowners enclosed the ditch and put a drainage pipe under the ground where the ditch was previously located, using a mix of both concrete and corrugated metal pipe. Defendant city did not install the pipe or fill in the ditch in question.

October 17, 2017

UM Carrier Obtains Dismissal Because of Failure to Obtain Service on Driver

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

Where plaintiff failed to have service issued for over a year against the defendant driver in a car accident case, her claim against her uninsured motorist insurance carrier was barred.

In Davis v. Grange Mutual Casualty Group, No. M2016-02239-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2017), plaintiff filed suit on March 20, 2015 after a car accident, naming both the defendant driver and her uninsured motorist carrier. The suit was filed within the one-year statute of limitations for personal injury actions, but plaintiff “did not cause a summons to issue to either defendant” until April 19, 2016, which was thirteen months after the complaint was filed. The summons was issued to the driver at his last known address and was returned unserved on April 21^st by the sheriff with a notation that the driver was “not to be found in my county.”

On April 25^th, “the trial court sua sponte dismissed the action for failure to prosecute.” Plaintiff filed a motion to set the dismissal aside on May 24^th, and on the same day process for the insurance company was returned unserved. Second summonses were issued for both defendants on June 6^th and 7^th, and the driver’s was returned unserved indicating that he had died.

September 28, 2017

Confinement to Prison Isn’t “Extraordinary Cause”

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

Being incarcerated does not constitute extraordinary cause and does not waive the pre-suit notice and certificate of good faith requirements of the HCLA.

In Kinsey v. Schwarz, No. M2016-02028-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2017), a pro se prison inmate filed an HCLA suit regarding an allegedly “botched surgical procedure performed on his lower back.” Defendants included two doctors and a medical center. In plaintiff’s complaint, he stated that he “attempted to give [the two doctors] pre-suit notice on February 8, 2016 at their place of employment (or business address) by certified mail returned receipt as required…, but that both notices were returned to him as ‘refused’ by the defendants.” Plaintiff filed his complaint on March 28, 2016, without sending additional notice, and he did not attach a certificate of good faith.

Defendants filed motions to dismiss based on the lack of pre-suit notice and certificate of good faith, prompting plaintiff to file “a document entitled ‘Certificate of Good Faith’ in which he asked the trial court to waive the requirement that he file a certificate of good faith because of his alleged inability to comply due to reasons outside of his control.” Specifically, plaintiff stated that the prison doctor “refuse[d] to get involved in this case” and that his incarceration meant he was “unable to freely consult with other physicians.”

September 27, 2017

Med Mal Notice Statute and Governmental Entities

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

Substantial compliance is sufficient to meet the requirements regarding documents to be attached to a Tennessee HCLA complaint, even when the defendant is a governmental entity.

In Clary v. Miller, No. M2016-00794-COA-R3-CV (Tenn. Ct. App. Aug. 8, 2017), plaintiff served timely pre-suit notice of her HCLA complaint, and attached a HIPAA-compliant authorization to the pre-suit notice. When she later filed her complaint, she attached copies of the pre-suit notice and proof of service, but she failed to attach copies of the HIPAA authorization.

Defendants, which included a medical center considered a governmental entity, moved to dismiss on the basis that the HIPAA authorizations were not attached to the complaint. The trial court granted the motion, finding that plaintiff substantially complied with the HCLA requirements but that “strict compliance was required because [defendant] was a governmental entity.” The Court of Appeals, however, reversed this holding.

September 14, 2017

Negligent Supervision Allowed Under Tennessee Claims Commission Act

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

The Tennessee Claims Commission has exclusive subject matter jurisdiction over a claim by a plaintiff that the state “negligently supervised and retained a prison guard who sexually assaulted [an] inmate.” In Vetrano v. State, No. M2015-02474-COA-R3-CV (Tenn. Ct. App. Aug. 8, 2017), the Court reversed the claim commission’s dismissal of a negligence suit. Plaintiff alleged that she was an inmate at a state women’s prison and was sexually assaulted by a prison guard. She filed an action with the Tennessee Claims Commission alleging that “state employees negligently supervised and retained the prison guard.” According to plaintiff, another inmate had filed a complaint against the guard for assault, and the guard’s supervisors “had actual and/or constructive knowledge that [the guard] was unfit for the job of corrections officer, and it was reasonably foreseeable that he posed an actual threat of harm to the inmates with whom he came in contact.”

The State moved to dismiss the complaint, alleging that under the Claims Commission Act it “could not be liable ‘for the willful, malicious, or criminal acts of state employees.’” (citing Tenn. Code Ann. § 9-8-307(d)). The Claims Commission granted the motion, but the Court of Appeals reversed.

September 12, 2017

Battery Claim Proceeds In Absence of Significant Injury

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

Depending on the circumstances, a police officer pulling a handcuffed person by the chain linking the two cuffs may be enough to support a claim for assault and battery in Tennessee, even without evidence of a significant injury.

In Stafford v. Jackson County, Tennessee, No. M2016-01883-COA-R3-CV (Tenn. Ct. App. Aug. 4, 2017), plaintiff sued a sheriff’s deputy, the sheriff, and the county after being arrested by the deputy. The deputy had pulled plaintiff’s husband over for speeding, and plaintiff and her son arrived on the scene after hearing about it on a police scanner. Plaintiff approached the deputy, and though there was a dispute regarding what was said and how cooperative or uncooperative plaintiff was, the deputy ultimately handcuffed and arrested plaintiff for obstructing a traffic stop. Regarding the handcuffing procedure, plaintiff testified in her deposition that the officer first cuffed her right hand, then her left, “then pulled me up by the chain, by the middle of the cuff, the chain.” Plaintiff testified that when the chain was pulled, it was painful and she screamed. When she arrived at the jail, plaintiff told personnel there that her wrists and shoulders hurt, and after her release she went to the local medical center, where she was x-rayed and given medication for her blood pressure.

Plaintiff brought suit, asserting several theories of liability. The trial court granted summary judgment to defendants on all claims, finding specifically that plaintiff had not established the elements of an intentional infliction of emotional distress claim, and that plaintiff had not shown damages to support her assault and battery claim. Plaintiff appealed the dismissal of the assault and battery and intentional infliction of emotional distress claims. On appeal, summary judgment on the emotional distress claim was affirmed, but the holding on the assault and battery claim was reversed.

August 17, 2017

Application of Tennessee Savings Statute When Initial Filing Deadline Missed

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

In Jones v. Behrman, No. W2016-00643-COA-R3-CV (Tenn. Ct. App. June 27, 2017), the Court of Appeals affirmed dismissal of an HCLA claim for failure to file within the applicable statute of limitations

Decedent suffered from several health problems, and in February 2011 she had a capsule endoscopy. Two days later, an x-ray showed that the “capsule was still present.” The following day, tests “showed no bowel obstruction but that the capsule remained in the right lower quadrant.” On February 20, 2011, decedent was admitted to the hospital and tests revealed a bowel obstruction. A procedure was performed, and at some point “the surgeons lacerated or penetrated the small bowel, which required them to resect a portion of the bowel.” The injured site or some other part of the small bowel leaked after the surgery, and decedent developed peritonitis and sepsis. Decedent died on April 21, 2011.

On January 24, 2012, decedent’s family members sent pre-suit notice to the doctors who did the capsule endoscopy and the subsequent bowel surgery. On August 13, 2012, plaintiffs filed their HCLA suit, but that case was voluntarily dismissed on September 27, 2012. Plaintiffs then gave pre-suit notice again before re-filing suit on September 26, 2013 pursuant to the savings statute.

July 18, 2017

$3 Million Dollar Verdict Vacated Due to Defective Verdict Form

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

In Stockton v. Ford Motor Co., No. W2016-01175-COA-R3-CV (Tenn. Ct. App. May 12, 2017), the Court of Appeals vacated a jury verdict in a Tennessee products liability case due to a defective jury verdict form.

Plaintiff was the wife of an auto mechanic who owned his own shop. Husband worked on all types of cars, including cars made by defendant Ford. It was undisputed that for a period of time, all car manufacturers, including Ford, used asbestos in their brake pads and linings. When brake pads and linings are replaced and/or grinded to the correct size, a dust is created, and the dust “can spread into the air and can be inhaled by mechanics and bystanders.” Plaintiff wife never worked directly with the brake pads or linings, but she cleaned the store twice a week and did her husband’s laundry. In 2011, plaintiff was diagnosed with mesothelioma, which was caused by exposure to asbestos.

Plaintiff filed this products liability suit against Ford seeking compensatory and punitive damages. During a jury trial, Ford pointed out that it had sent husband “warnings that brakes and other components contained asbestos,” and that husband had received training in 1977 and 1982 “explicitly warning that breathing dust from asbestos-containing automobile products could be hazardous…” The jury found Ford 71% at fault for plaintiff’s injuries, and plaintiff was awarded a total judgment of just over $3 million, which Ford appealed.

June 5, 2017

Tennessee COA Reverses Order – Too Similar to that Drafted by Winning Party

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

In Battery Alliance, Inc. v. Allegiant Power, LLC, No. W2015-02389-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2017), the Court 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.

March 28, 2017

Medical Malpractice Claims Declining

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

Numbers confirm what those of us who represent patients in Tennessee medical malpractice cases thought we knew: the number of claims paid in medical malpractice cases is declining.

Using data gather from the National Practioner Data Bank, JAMA Internal Medicine reports that the overall rate of claims paid on behalf of physicians deceased by 55.7% from 1992 to 2014. The mean compensation payment was $329, 565. The mean payment increased by 23.3%, from $286 ,751 in 1992-1996 to $353 ,473 in 2009-2014, a rate less than the increase in inflation (and far less than the rate of health care inflation, during the period.

Why did this happen? Here is my view: