Day on Torts

April 14, 2014

Tennessee’s Three-Year Health Care Liability Statute of Repose Bars Claim

This case involves the Tennessee Medical Malpractice Act and the application of the three-year statute of repose. On December 19, 1999, Jessie Bentley suffered severe injuries during labor and delivery by the defendant medical providers. Suit was not filed until February 1, 2013 and the defendants all immediately moved for dismissal citing the three-year statute of repose and the Calaway decision. Relying on the Crespo decision, plaintiff defended by arguing application of the statute of repose violated his due process rights and violated the equal protection clause. The trial court granted the dismissal and the appeal followed.

The Court of Appeals began its analysis with the proposition that vested rights of action in tort are constitutionally protected property interests and thus they are protected by both the due process and equal protection clauses of the Constitution. Next, the Court turned to the Calaway decision, 193 S.W. 3d 509 (Tenn. 2005), in which the Tennessee Supreme Court held that a "plaintiff’s minority does not toll the medical malpractice statute of repose". In short, the Calaway Court reasoned that to allow disability or minority to toll the statute of repose would defeat the very purpose of the statute. However, the Court was mindful of those plaintiffs and lawyers who had relied upon prior decisions and ruled the statute of repose would only have prospective application to cases commenced after December 9, 2005.

The Court of Appeals also found the plaintiff’s reliance on the Crespo decision was misplaced. In Crespo, approximately one year after the birth of their minor child, the parents hired counsel to pursue a medical malpractice claim. Relying on prior precedent, the malpractice investigation proceeded at a "relatively leisurely pace, which was perfectly reasonable given the clearly stated law at the time." Four years after the birth, as the plaintiff’s were awaiting responses to requests for medical records and were preparing to file suit, the Calaway decision was rendered and Crespo’s case was instantly gone. Under those circumstances, the Court of Appeals found the Crespos had been denied due process and their right to equal protection were violated.

April 9, 2014

Not All Rear-End Collisions Result in Plaintiff’s Verdicts

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

The Tennessee Court of appeals recently affirmed a jury’s defense verdict in a rear-end car crash case in Hicks v. Prahl, No. E2013-00285-COA-R3-CV (Tenn. Ct. App. March 25, 2014). Plaintiff was driving on an entrance ramp trying to merge onto a highway when, according to her testimony, she slowed down to negotiate a sharp curve on the entrance ramp and was rear-ended by defendant’s vehicle. Defendant, on the other hand, testified that plaintiff slowed to a complete stop twice while attempting to merge onto the highway, the second of which immediately preceded the collision. According to defendant, plaintiff came to a complete stop on the entrance ramp and then began moving forward again. Defendant then rotated her neck over her left shoulder to look for approaching traffic and lifted her foot off the brake, causing her car to move forward. Defendant testified that when she returned to looking ahead she discovered that plaintiff had stopped in front of her again. Defendant stated that she quickly applied her brakes but was not able to avoid crashing into the rear end of plaintiff’s car. Defendant explained that she had no reason to suspect that plaintiff would stop a second time because the curve on the entrance ramp allowed defendant to see that there were no cars in front of plaintiff’s car and no other reason for such a stop.

Plaintiff was talking on her cell phone at the time of the crash. Plaintiff’s daughter testified that she was talking with her mother who was using the speaker phone while driving. Daughter and husband also corroborated plaintiff’s testimony about the sharp curve on the entrance ramp requiring significant deceleration. The opinion mentions that plaintiff amended her complaint to seek $1.5 million dollars in damages, although there’s no description of plaintiff’s injuries, medical expenses, or other damages. Plaintiff refused medical treatment at the scene because she did not think it was a “major accident,” but she did go to the emergency room later that day.

At trial, plaintiff testified that she did not ever stop on the entrance ramp while attempting to merge onto the highway, but instead she merely lifted her foot off the gas pedal. When impeached with the averment in the complaint that she was “stopped to wait for traffic,” plaintiff testified that the pleading was in error. Plaintiff also testified that she could not remember making the statements to personnel in the emergency room that she was rear-ended while “sitting stopped in her car.”

April 2, 2014

Nurse Practitioners Now Exempt From Subpoena to Trial

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

The Tennessee General Assembly has passed, and the Governor has signed, legislation adding nurse practitioners to the list of people who are ordinarily exempt from subpoena to trial. Nurse practitioners are still subject to being subpoenaed to give a deposition.

Here are the other people who are exempt from subpoena to trial under T.C.A. Section 24-9-101(a):

An officer of the United States;
An officer of Tennessee;
An officer of any Tennessee court or municipality;
The clerk of any court of record other than that in which the suit is pending;
A member of the Tennessee general assembly while in session, or clerk or officer thereof;
A practicing physician, physician assistant, advanced practice nurse, psychologist, senior psychological examiner, chiropractor, dentist or attorney;
A jailer or keeper of a public prison in any county other than that in which the suit is pending; and
A custodian of medical records, if such custodian files a copy of the applicable records and an affidavit with the court and follows the procedures provided for producing records as required by law.

April 1, 2014

Preserving Timely Filings of Tort Actions in Tennessee General Sessions Court

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

The Tennessee Court of Appeals recently held that a General Sessions plaintiff cannot skip the procedure for filing unserved process to avoid letting the statute of limitations run.

Tenn. Code Ann. § 16-15-902 requires a plaintiff in General Sessions court to return process within 60 days of issuance. § 16-15-902 does not explicitly state that a plaintiff must return the process if it is unserved. Under Tenn. Code Ann. § 16-15-710, however, a plaintiff who does return process as unserved must take action to rely on the original filing date for the statute of limitations. Once the plaintiff returns the process as unserved, the plaintiff has to either have process reissued within 9 months or refile the case within one year.

In Gates v. Perry, No. 2013-01992-COA – R9-CV (Tenn. Ct. App. March 26, 2014) the plaintiff never filed the unserved process with the court, and instead had a new warrant issued eighteen months later. The plaintiff argued that, since he never filed the unserved process, Tenn. Code Ann. § 16-15-710 was never triggered. The trial court agreed, and denied a motion to dismiss by the defendant.

March 31, 2014

Close Enough for Horseshoes and Hand Grenades: Substantial Compliance Rather Than Strict Compliance in HealthCare Liability Case

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

This is yet another Tennessee medical malpractice (health care liability) notice case and the issue is whether strict compliance is required for T.C.A. § 29-26-121 (a)(3) and (4), which requires an affidavit from the party mailing the notice. The underlying procedural facts were not in dispute: plaintiff fully and strictly complied with the pre-suit notice provisions of T.C.A. § 29-26-121(a) but failed to simultaneously file an affidavit of the party mailing the pre-suit notice. Instead, the plaintiff filed it after the notice was given and before the defendants filed any responsive pleading. In response, the defendants filed a “gotcha” motion to dismiss arguing the failure to simultaneously file the affidavit required a dismissal of the case.

The trial court disagreed noting the error had been remedied prior to the defendants filing a responsive pleading and ultimately finding the plaintiff had complied with the notice provision of the Act. An interlocutory appeal was granted pursuant to Rule 10 and the Court of Appeals made quick work of the issue relying on the Tennessee Supreme Court’s decision in Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., No. M2012-00582-SC-SO9-CV, 2013 WL 61580000.

In Stevens, the Tennessee Supreme Court had been asked to decide whether strict compliance was required with T.C.A. § 29-26-121(a)(2)(E) (the HIPPA compliant medical authorization section of the Act). Ultimately, the Tennessee Supreme Court held that substantial compliance rather than strict compliance was all that was required for that particular section because the provision was non-substantive and no prejudice had befallen the defendants as a result of the non-compliance.

March 28, 2014

Tennessee Medical Malpractice Case Rich With Law on Speculative Damages, NIED Claims and Whether Disruption of Family Planning Is A Valid Claim

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

Memphis, Tennessee medical malpractice cases always seem to have a more than their fair share of twists and turns. This health care liability case has more twists and turns than the Cherohala Skyway TN 165 / NC143 from Tellico Plains to Robbinsville ( a great road for our motorcycling friends).

During her third pregnancy, Plaintiff Michelle Rye was under the care of Dr. Diane Long, a physician with Women’s Care Center of Memphis. Because Ms. Rye has Rh negative blood, the standard of care dictated she be given a RhoGAM injection during her pregnancy. The defendants failed to give Ms. Rye the RhoGAM injection and she developed Rh-sensitization as a result. Rh-sensitization is a condition in which, if the in utero child has Rh positive blood, the mother’s antibodies attack the baby’s blood cells causing injury to the baby.

The defendants admitted they failed to comply with the standard of care but denied the plaintiffs had suffered any damage. In particular, in support of their motion for summary judgment, the defendants attached the affidavit of Dr. Stovall who opined it could not be said with any reasonable degree of medical certainty that any Rh-sensitized female would ever sustain any injuries or damage and the same was true even if the woman conceived another child as the child would have to have Rh-positive blood for the condition to be in play.

March 25, 2014

Tennessee Defamation Case Flushed

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

In Nardone v. Cartwright, et al., No. E2013-00522-COA-R3-CV (Tenn. Ct. App. March 17, 2014), Plaintiff sued his previous employer for slander (spoken defamation) and libel (written defamation). The case arose after Plaintiff quit his job and was told that he would not receive his final paycheck until he turned in his uniforms. The employer’s office manager was then informed by the Tennessee Department of Labor that it could not withhold plaintiff’s paycheck pending plaintiff’s return of the uniforms and was also advised to contact the police to seek assistance in getting plaintiff to return the uniforms. Employer then contacted Knox County Sheriff’s Office. The officer who took the call keyed in information to create a report, and in the section labeled “primary offense” the officer selected “theft from business by employee.” The employer did not request that plaintiff be prosecuted, nor did the employer say that plaintiff was guilty of theft.

After plaintiff’s lawyer returned the uniforms, plaintiff filed suit against employer alleging that he had been defamed by the report. At trial, plaintiff admitted that nothing in the narrative of the report was untrue. Plaintiff also testified that he still had his job with his new employer after leaving the defendant and also that he was making more money at his new job. No evidence was submitted to show plaintiff’s reputation was damaged, and plaintiff could not name one person who thought less of him as a result of the report.

Finding no evidence in the record to support a case of libel, and because the six-month statute of limitation had run on the slander allegation, the trial court granted employer’s motion for directed verdict and dismissed plaintiff’s case. Plaintiff appealed the dismissal of his libel claim, but the appellate court affirmed the trial court’s decision.

March 24, 2014

Party Seeking to Compel Arbitration Under Tennessee’s Uniform Arbitration Act Must Specifically Request Such Relief to Preserve Issue For Appeal

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

A defendant’s failure to seek appropriate relief when filing a motion to dismiss deprived the Tennessee Court of Appeals of jurisdiction to hear the dispute.

Plaintiff was a family owned limited partnership that held a rare collection of William Eggleston photography. The family partnership contracted with Defendant Christie’s Inc., the world renowned auction company, to sell a dozen Eggleston’s photos. After the works arrived for auction in New York, Christie’s decided to remove five of the prints from the scheduled list of items up for sale, and then later Christie’s withdrew six more after their authenticity was called into question by the Eggleston Artistic Trust. Only one of the partnership’s photographs was auctioned and allegedly the other eleven were not returned by Christie’s. The family partnership then sued Christie’s for its refusal to honor the agreement to auction the Eggleston photographs.

The agreement between the parties had an alternative dispute resolution provision. Christie’s moved to dismiss but did not ask the court to compel arbitration or stay the litigation. The trial court denied Christie’s motion, finding that the language in the agreement bound only Christie’s, and not the family partnership, to submit a dispute to mediation. The court ruled that, because mediation was a condition precedent to arbitration, the family partnership was not required to arbitrate the dispute.

March 12, 2014

Should Defense Counsel Be Permitted to Have Ex Parte Communications With a Patient’s Health Care Providers?

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

Health care liability attorneys for defendants want the right to have private meetings with the doctors of patients who sue health care providers. Not just with the doctors who were sued, but also the other doctors who treated the patient over the years.

The Tennessee Supreme Court ruled years ago that the patient’s privacy rights did not permit this type of activity. Then, the Tennessee legislature got involved and passed legislation (T.C.A. Section 29-26-121(f)) that lawyers for medical malpractice defendants maintain opened the door to ex parte communications with the the medical malpractice plaintiff doctors and other health care providers. The issue are further complicated by the federal law known as "HIPPA," and whether this federal law which recognizes a consumer’s right to privacy regarding health care information preempts the Tennessee state statute.

T.C.A. Section 29-26-121(f) creates a host of problems and the courts are struggling with how to interpret it. Attached is a collection of documents on this issue, all generated out of one case presided over by Judge Thomas Brothers of the Circuit Court for Davidson County, Tennessee. The lawyers for the patient are Matt Hardin, ably assisted on this issue by Amy Farrar. The defendant in the case is The Vanderbilt University, represented by Steve Anderson. The case is on its way to the Court of Appeals.

March 11, 2014

Slip and Fall Cases and Ice

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

A plaintiff’s verdict in a slip-and-fall case against the county school board was recently overturned by the Tennessee Court of Appeals in Traylor v. Shelby County Board of Education, No. W2013-00836-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2014). Plaintiff was a sophomore at Bolton High School in Shelby County when he slipped on a patch of black ice on the school’s sidewalk and broke his ankle. The incident occurred on a Thursday morning while plaintiff was walking to his next class on a normal route that received heavy foot traffic. The school had been closed the previous Monday and Tuesday due to freezing temperatures and an inch and half of frozen precipitation. There were no reports of ice on the sidewalk and no incidents during the preceding Wednesday or on Thursday morning before plaintiff’s fall.

Plaintiff’s case was tried before a judge and not a jury, just like all cases against local governmental entities under Tennessee’s Governmental Tort Liability Act (“GTLA”). The trial judge ruled that the school did not fulfill its duty to maintain a safe premises after having constructive knowledge of the unsafe condition and therefore awarded the plaintiff and his father a total of $76,000 in compensatory damages.

There were three ways that the plaintiff could prove that the school had constructive knowledge of the dangerous condition that was the ice on the sidewalk leading to plaintiff’s fall. First, the plaintiff could have established that the school caused or created the condition. Second, the plaintiff could have proven that the condition existed for a sufficient amount of time that the school should have become aware of it (“the passage of time theory”). Third, and finally, the plaintiff could have shown that the ice was a common occurrence, recurring condition, or a generally continuing dangerous condition of which the school should have been aware (“common occurrence theory”).