Day on Torts

February 3, 2015

Med-Mal Claims Under the GTLA – Limitation of Actions

In 2011, the Tennessee legislature amended the Health Care Liability Act (“HCLA”) to add language regarding governmental entities to the chapter. Per the amendments, health care liability action now specifically includes “claims against the state or a political subdivision thereof,” and health care provider includes “those physicians and nurses employed by a governmental health facility.” Tenn. Code Ann. § 29-26-101. The Court of Appeals first found that this language meant that the 120-day extension of the statute of limitations applies to HCLA cases that fall under the Governmental Tort Liability Act in Harper v. Bradley County, No. E2014-00107-COA-R9-CV, 2014 WL 5487788 (Tenn. Ct. App. Oct. 30, 2014). Now the Court has come to that same conclusion in two additional opinions.

Before the 2011 amendments took effect, the HCLA contained no reference to governmental entities. In Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), the Tennessee Supreme Court determined that the HCLA, as it existed prior to the 2011 amendments, did not “evince an express legislative intent to extend the statute of limitations in GTLA cases.” Accordingly, a plaintiff bringing an HCLA claim against a governmental entity was still constricted by the one-year statute of limitations and unable to take advantage of the 120-day extension granted to plaintiffs who give proper pre-suit notice.

Although the Supreme Court has not addressed the interplay of the GTLA and HCLA since the 2011 amendments took effect, the Court of Appeals has now found in three cases that, pursuant to the new language, plaintiffs suing governmental entities under the HCLA are entitled to the 120-day extension so long as they provide proper pre-suit notice. After Harper, the Court reaffirmed its reasoning in Banks v. Bordeaux Long Term Care, 2014 WL 6872979 (Tenn. Ct. App. Dec. 4, 2014). Here, plaintiff sent pre-suit notice prior to the expiration of the one-year statute of limitations then filed suit within the subsequent 120-day window. The trial court dismissed plaintiff’s claim as untimely, but the Court of Appeals reversed. After citing the changes to the HCLA and the reasoning from Harper, the Court held that “Plaintiff’s pre-suit ‘notice’ to the governmental entities was sufficient in all respects; therefore, the GTLA statute of limitations was tolled for an additional 120 days.”

January 31, 2015

Pre-Suit Notice Required When Re-Filing Med Mal Complaint

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

As Tennessee courts continue to decide new Health Care Liability Act (“HCLA”) cases, nuances of the law are beginning to be parsed out for practitioners’ guidance. The Tennessee Supreme Court recently took up such a nuance, determining that pre-suit notice must be given before the filing of each complaint under the HCLA.

In Foster v. Chiles, No. E2012-01780-SC-R11-CV (Tenn. Jan. 27, 2015), plaintiffs filed an HCLA claim against multiple defendants on March 17, 2011, which was within the appropriate statute of limitations. In connection with this first complaint, plaintiffs gave proper pre-suit notice under Tenn. Code Ann. § 29-26-121(a). On May 6, 2011, plaintiffs voluntarily dismissed the case. On May 4, 2012, within the one-year savings statute, plaintiffs filed a new complaint asserting the same claims against the same defendants. This second complaint stated that the notice requirements had been met as shown by an attached affidavit, but nothing was attached. The plaintiffs, in fact, did not give pre-suit notice after dismissing their first complaint and before filing their second. Instead, they relied on the first notice given to comply with the HCLA.

Defendants moved to dismiss, asserting that the HCLA required plaintiffs to give notice each time a complaint was filed. The trial court agreed, dismissing plaintiffs’ second complaint with prejudice. The Court of Appeals, however, reversed, finding that the HCLA “required only that Defendants be notified once.” The Supreme Court then took up the issue on appeal.

January 18, 2015

2015 Tennessee Tort Reform Compendium Available

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

The most recent version of my book, Compendium of Tort Reform Statutes and Related Case Law, 2008-2014, is now available.

The book includes tort reform statutes enacted by the Tennessee General Assembly in the period indicated and reference to the appellate court decisions to-date that have interpreted those laws;

The book contains over 200 pages of references to important changes in Tennessee common law of torts and statutory changes to the law of civil procedure that impact tort lawyers.

January 16, 2015

Experts in Med Mal Cases: Must Prior Experience Have Been For Pay?

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

A plaintiff filing a claim under the Tennessee Health Care Liability Act (HCLA) must prove certain elements, such as the recognized standard of practice, by expert testimony. Tenn. Code Ann. § 29-26-115(b) contains requirements for experts to qualify under the Act, including that the expert was licensed to practice in Tennessee or a contiguous state in a relevant profession or specialty and that the person practiced that profession or specialty in such a state during the year preceding the alleged injury. According to a recent Tennessee Court of Appeals case, however, the HCLA does not require a purported expert to have received monetary compensation for the practice in order to qualify under the Act.

In Adkins v. Assoc. of the Memorial/Mission Outpatient Surgery Ctr., LLC, No. E2014-00790-COA-R3-CV (Tenn. Ct. App. Jan. 13, 2015), plaintiff had received a nerve block during a knee procedure, rendering her leg immobile. Her leg was still immobile upon discharge, so a nurse helped plaintiff to her vehicle in a wheelchair and proceeded to lift her into the car. While assisting plaintiff, the nurse dropped plaintiff between the front seat and dashboard of the vehicle, and plaintiff sustained injuries.

Plaintiff gave proper pre-suit notice and filed her complaint, attaching a certificate of good faith as required by the HCLA. The only expert identified by plaintiff was Sandra Gupton, R.N. Defendant moved for summary judgment on the grounds that Gupton was not qualified as an expert because she was not a practicing nurse in the year preceding the incident. Defendant pointed to Gupton’s deposition testimony where “she stated she had not practiced in the nursing profession during the time period in question.” Plaintiff argued that Gupton had testified that she was busy with her mother-in-law, and that Gupton had in fact been her mother-in-law’s private nurse during this time. Defendant asserted that the alleged employment with her mother-in-law was not sufficient to qualify her as an expert because she was not compensated.

January 15, 2015

No Liability Where Customer Walked Backwards over an Obvious Curb

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

In Holland v. K-VA-T Food Stores, Inc., No. E2013-02798-COA-R3-CV (Tenn. Ct. App. Jan. 13, 2015) we have a rather typical trip and fall case – one similar to that Tennessee personal injury lawyers are called about quite frequently.

Ms. Holland sued defendant property owner for injuries incurred when she fell over a curb in a parking lot. The parking lot in question was used for two businesses, a grocery store and a bank, and the two properties were divided by a continuous curb. This curb was unmarked and had weeds growing around it, but was clearly visible. Its purpose was to keep cars parked at the grocery store from driving into the drive-through area of the bank. Plaintiff and her husband parked perpendicular to the curb at the edge of the grocery store parking lot. After shopping in the grocery store, plaintiff was stepping backward while opening the passenger door and tripped on the curb, falling to the ground.

Defendant filed a motion for summary judgment, which the trial court granted. The trial court stated that defendant “had no duty to warn plaintiff of the curb when the curb at issue was open and obvious and when it was not reasonably foreseeable that plaintiff would walk backward without looking and trip and fall over the curb.” Further, the trial court found that a reasonable jury would have to conclude that plaintiff was 50 percent or more at fault for her injuries. The Court of Appeals affirmed judgment for the defendant.

January 13, 2015

Joint Commission Publishes New Safety Chapter

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

The 2015 Comprehensive Accreditation Manual for Hospitals includes the new "Patient Safety Systems" chapter, a blueprint for leaders that uses existing standards to achieve an integrated approach to patient safety. Apparently, the Joint Commission believes so strongly in this approach that the chapter is being made available online to anyone who wishes to read it.

The Commission indicates that "quality and safety are inextricably linked. Quality in health care is the degree to which its processes and results meet or exceed the needs and desires of the people it serves. Those needs and desires include safety."

January 13, 2015

Certificates of Good Faith After Defendant Alleges Fault

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

Yet another case about the Tennessee law requiring certificates of good faith in medical malpractice (now called health care liability) cases, this one with a twist.

In Sirbaugh v. Vanderbilt Univ., d/b/a Vanderbilt Univ. Med. Ctr., No. M2014-00153-COA-R9-CV (Tenn. Ct. App. Dec. 30, 2014), plaintiff originally brought suit against two defendants related to a surgical sponge being left in her body. In this initial filing, plaintiff gave proper pre-suit notice to the defendants and attached a certificate of good faith to her complaint in accordance with the Health Care Liability Act. When the original defendants filed their answer, they asserted comparative fault against two non-parties. Pursuant to Tenn. Code Ann. § 29-26-122(b), these original defendants were required to file a certificate of good faith regarding their comparative fault allegations against the new non-parties, but plaintiff chose to waive that requirement under § 29-26-122(c).

After the answer was filed, plaintiff amended her complaint to add the two non-parties that defendant had named. When filing her amended complaint, though, she did not file a new certificate of good faith. The new defendants moved to dismiss based on this failure. Plaintiff argued that the requirement to file a good faith certificate only applied to the initial complaint, with plaintiff’s counsel asserting that if the legislature “had meant that Plaintiff had to file a certificate of good faith upon waiving the Defendant’s obligation to do so, they would have said that.” Plaintiff argued that the statute made a distinction between the process for filing an initial health care liability complaint and filing an amended complaint based on an allegation of comparative fault. If the processes did not vary, plaintiff’s counsel asserted that the statutes allowing for waiver would essentially have no meaning. The new defendants, however, argued that plaintiff’s “waiver of the Original Defendants’ requirement to file a certificate of good faith addressing their comparative fault claims did not release her from the obligation to file a certificate of good faith when she added the New Defendants to the lawsuit.”

January 12, 2015

Business Owners who Ejected Patrons into Street Just Before Shootout Avoid Liability

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

In Akridge v. Fathom, No. E2014-0071-COA-R9-CV (Tenn. Ct. App. Jan. 7, 2015), plaintiffs filed a premises liability action after being injured in a shooting that occurred just outside defendants’ business. Defendants operated a music venue/club targeted to at-risk youth including gang members. Plaintiffs attended a public event there on Christmas Eve, and during the event some of the attendees wore gang colors and an altercation broke out inside the building. Defendants’ security personnel stopped the event and made everyone, including plaintiffs, leave the building. Upon exiting, plaintiffs were “caught in the crossfire of a shootout” and were injured.

Defendants moved to dismiss the complaint, arguing that they only owned and occupied the building and that the tortious conduct alleged happened outside the building. Thus, defendants argued, they could not be held liable. Plaintiffs responded that defendants had a duty to operate their business in a reasonably safe manner and that such duty had been violated. Because both parties submitted materials outside the pleadings, the motion was converted to one for summary judgment, which the trial court denied. The trial court found that since the shooting occurred just steps outside defendants’ business and since defendants’ employees had made plaintiffs exit the building into this foreseeably dangerous situation, liability could exist. On interlocutory appeal, however, the Court of Appeals overturned this ruling.

The key issue in this case was whether “defendants owed a duty of care to plaintiffs, who were injured by the criminal acts of third parties that occurred outside the premises occupied by [one defendant] and owned by [two others].” The Court of Appeals recognized that a special relationship giving rise to a “duty to control the conduct of a third party so as to prevent the third party from causing harm” may exist in a factual scenario such as this, where plaintiffs were invitees of defendants who held premises open to the public. Where the Court of Appeals disagreed with the trial court, however, was regarding whether “such a duty continued once the invitees exited defendants’ business premises.” The Court stated that there was no Tennessee precedent for extending a business owners’ duty of care to its patrons after the patrons left the premises.

January 11, 2015

Local Rule Changes in the 21st Judicial District

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

The Judges in the Chancery and Circuit Courts for Williamson, Hickman, Perry and Lewis Counties have announced substantial changes to the local rules of court. The changes were effective December 1, 2014.

Among other significant changes, the local rules now require that one who objects to a motion filed by an opponent file written opposition to the motion. Rule 5.03(c). Regular motions must be filed at least fourteen days before a hearing, and opposition to the motion filed and served at least 4 days before the hearing.

January 6, 2015

City Immune from Suit where it does not Own or Control Property Where Injury Occurred

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

Under the Governmental Tort Liability Act (GTLA), governmental immunity is removed in specific circumstances. Where the government does not own or control the property on which the alleged injury took place, however, the GTLA does not apply and immunity remains intact.

In Turner v. City of Bean Station, No. E2013-02630-COA-R9-CV (Tenn. Ct. App. Dec. 30, 2014), plaintiff sued the city, among others, for injuries allegedly sustained while playing softball in a charity tournament. The city moved for summary judgment on the basis that it neither controlled nor owned the field, and that the GTLA therefore did not apply and the city was immune from suit. The trial court denied the motion, but the Court of Appeals reversed that decision and dismissed the case against the city.

The city had presented evidence that the field in question was owned by the Tennessee Valley Authority, which had given the city a license to occupy and use the field as a recreational ball park. The city, in turn, leased the license to the local little league, and the little league oversaw the maintenance of the park and field. On the date of the alleged injury, the little league had “subleased” its license to the person running the charity tournament (another of the defendants in this case).