Day on Torts

February 7, 2015

Punitive Damages Affirmed in Tennessee Fraud Case

In Overton v. Westgate Resorts, LTD., L.P., No. E2014-00303-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2015), the Court of Appeals recently affirmed a punitive damage award in a fraud and misrepresentation case. Plaintiffs had traveled to Gatlinburg to look for and purchase a timeshare. Their primary concern was being able to accommodate their extended family for a trip the same week each December. While in downtown, they saw a Westgate booth and made arrangements to attend a presentation. According to plaintiffs, the presentation was “high pressure” and salespeople spent almost eight hours with plaintiffs on the relevant day. Plaintiffs found a unit that would fit their needs and decided to purchase the timeshare from Westgate.

Plaintiffs asserted that their decision to purchase was based on assurances from the Westgate salespeople. Specifically, the Westgate representatives stated that plaintiffs would be able to retain the unit they looked at for the same week in December each year; that they would be able to book unlimited additional nights at any Westgate resort at a promotional price; that the two salespeople they worked with would refund part of their commission; and that the salespeople would purchase a foosball table to be kept at the resort for plaintiffs to use during their stays. The agreements regarding the commission and foosball table were put in writing, but the other two were not. Plaintiffs closed on the timeshare at 11:00 pm that night and were given copies of their closing documents and three CD-ROMs. The purchase price was just under $40,000.

After closing, plaintiffs tried to confirm their December reservation, and after some unsuccessful attempts were informed that the booking would not be guaranteed for the unit they had looked at and that units were not assigned until a few days before arrival. After speaking to several customer service individuals, they also found out that they did not have the ability to book unlimited nights at other resorts as described during the presentation. Plaintiffs retained counsel, who realized that plaintiffs had not been given a current copy of the Westgate’s public offering statement, as required by the Tennessee Consumer Protection Act. Instead, plaintiffs had received an old version on CD-ROM which was extremely difficult to access and navigate. Plaintiffs sought to rescind the contract based on the TCPA, but Westgate refused. Plaintiffs then brought this action.

February 4, 2015

Tennessee Supreme Court Oral Arguments Scheduled

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

Here are the civil cases set for oral argument in Nashville on February 4 and 5, 2015:

The Chattanooga-Hamilton Co. Hospital Authority d/b/a Erlanger Health Systems v. United Healthcare Plan of the River Valley, Inc. d/b/a Americhoice and TN Attorney General – Erlanger Hospital in Chattanooga filed suit against Americhoice claiming that the TennCare-managed health plan did not pay in full for services rendered in its emergency room. Americhoice, which did not have a contract with the hospital, said they were only responsible for the rates specified in the TennCare regulations. The hospital’s claims were dismissed by the trial court, but the Court of Appeals reversed. The Supreme Court will hear the appeal of Americhoice and the Tennessee Attorney General.
Action Chiropractic Clinic, LLC v. Prentice Delon Hyler & Erie Ins. Exchange– This case involves a patient of Action Chiropractic Clinic of Nashville who assigned his rights to an insurance settlement over to the clinic, which was treating him for injuries caused in an automobile accident. Erie Insurance Exchange did not honor the assignment. Action Chiropractic Clinic sued, but the trial court ruled for Erie. The Court of Appeals agreed. The Supreme Court will consider whether such assignment of insurance proceeds is allowed.
Richard Moreno v. City of Clarksville – Mr. Moreno filed a claim with the State Division of Claims Administration after a tree on state property fell on his car and injured him. The claim was then passed along to the Claims Commission and Mr. Moreno filed a complaint there. The state then alleged that the City of Clarksville was also to blame for the injury. When Mr. Moreno filed suit against the City of Clarksville, the city said the deadline for filing a complaint had passed. The trial court agreed, but the Court of Appeals said he had met the requirements by filing the original Claims Commission complaint on time. The Supreme Court will consider whether the requirements were indeed fulfilled.
In re Estate of Sarah Margaret Wilkins – This case from Robertson County considers whether a son who had a health care power of attorney for his mother was required to submit to arbitration before proceeding with a lawsuit against the nursing home for abuse and neglect of his mother. The trial court said the arbitration was required, but the Court of Appeals disagreed. The Supreme Court will determine if the son was authorized to execute an arbitration agreement on behalf of his mother.

February 4, 2015

Tennessee Law of Voir Dire

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

Attorneys for one of the defendants convicted of raping an unconscious student intends to file a motion for a mistrial based on juror misconduct. Specifically, the juror in question was a rape victim and allegedly failed to disclose that fact during voir dire questioning. Defense attorneys contend the juror was asked about past experiences with the criminal justice system as either a victim or defendant, and this juror failed to respond. Yet, an attorney for the juror has issued a statement there was not any misrepresentation.

Of course, this situation is every trial lawyer’s nightmare, right? There are two possibilities here. First, as the defense contends, the juror concealed her past in the face of a question specifically posed to unveil such an issue. This scenario is a nightmare mostly for the prosecution as now they have a new issue to handle on appeal while trying to hold on to the guilty verdict.

The second possibility is the defense lawyers did not ask the right question to elicit the juror’s past as a rape victim. If this juror did not report the rape to the police, then it is unlikely she had any interaction with the criminal justice system as a victim. Since rape is thought to be one of the most underreported crimes with only about 16% of victims reporting, this scenario is more probable than possible. Needless to say, this is the defense lawyer’s worst nightmare because he failed to simply ask whether any prospective juror was a rape victim. Instead, he asked a much more general question.

February 4, 2015

Suing Vaccine Cynic Parents and Day Care Centers When a Child Contracts Measles

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

In case you have been living under a rock and have not heard, there are at least 121 confirmed cases of the measles traced from an outbreak at Disneyland in California in December. The outbreak is significant for a number of reasons:

1. Last year, the U.S. had a record number of measles cases since the virus was officially declared eliminated in 2000.

2. Health officials including the Centers for Disease Control and Prevention are linking the current outbreak to non-vaccinated individuals;

February 3, 2015

Med-Mal Claims Under the GTLA – Limitation of Actions

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

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."