Day on Torts

March 8, 2014

A Proposed Cure for an Emergency Room Doctor

Dr. Rebecca Hierholzer is an emergency room doctor who practices in Missouri (and perhaps Kansas). She reportedly believes that the citizens of Missouri – some of whom she has undoubtedly treated as patients, some of whom she may know socially – are incapable of following the law when called to serve as jurors. She reportedly believes her fellow citizens should be restricted from awarding the fair value of pain, suffering, disfigurement and loss of enjoyment of life by the imposition of arbitrary caps on compensatory damages.

Now, there are lots of doctors who share that view (and, by the way, lots that do not). So the fact that a doctor does not trust jurors is not something causes a blip on my radar screen. Telling me that a doctor wants to limit responsibility for medical errors is like telling me that he or she wears a white coat at work.

So why write about Dr. Hierholzer? I write because of the remarks attributed to her in an article in the St. Louis Post Dispatch about her effort to limit the rights of jurors, the injured and the dead in Missouri:

March 7, 2014

Another Day, Another Tennessee Medical Malpractice Notice Case

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

Long story short, Givens v. Vanderbilt Univ. M2013-00226-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2014), is a medical malpractice case that was dismissed without prejudice for failure to give pre-suit notice, since that is the appropriate remedy identified by the Tennessee Supreme Court in Stevens v. Hickman Community Health Care, Inc., – S.W.3d –, 2013 WL 6158000 (Tenn. Nov. 25, 2013).

Because Plaintiffs did not make any attempt to give pre-suit notice, the Court of Appeals rejected Plaintiffs’ claim that the failure to give notice should be excused for extraordinary cause under Tenn. Code Ann. Sec. 29-26-121(b). Plaintiffs previously used their savings statute by way of a voluntary nonsuit in the case, so the Court of Appeals acknowledged that dismissal without prejudice effectively makes the case time-barred.

The longer version is a painful tour down civil and appellate procedure, with multiple cases, dismissals, appeals, and remands. Suffice it to say that (based on prior appellate opinions applied to this case):

March 6, 2014

Agreements to Arbitration: “Good for the Goose, Good For the Gander” Rule Applied By Tennessee Court

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

You won’t see the "good for the goose, good for the gander" rule articulated as such in many court opinions. But stop by any courtroom in Tennessee on any motion day and you will hear it being argued by someone. It is a fundamental concept that is part of the law of equity.

And here, the gander got bit square in the ass – the absolute right result.

Plaintiff bought a mobile home and entered into a retail installment contract with Defendant CMH Homes who then assigned the contract to Vanderbilt Mortgage. Two years after the purchase, the plaintiff filed suit against both CMH Homes and Vanderbilt Mortgage alleging various theories of recovery including breach of express and implied warranties, violation of the Tennessee Consumer Protection Act, breach of contract and fraud. Plaintiff also alleged the retail installment contract was unconscionable and void. Defendants filed a motion to dismiss or to compel arbitration pursuant to the arbitration provision in the contract.

March 5, 2014

Tennessee Medical Malpractice Trial: The Third Time Is Not the Charm

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

Tennessee health care liability (formerly called medical malpractice) cases are tough. Tough because there is lots of sympathy for the defendant health care providers. Tough because the defendants spare no expense and thus they are expensive for patients to try. Tough because the health care providers hire excellent lawyers. Tough because rarely does a jury verdict end the case – there is almost always an appeal.

The case of Cullum v. Baptist Hospital System, Inc., M2012-02640-COA-R3-CV, 2014 WL 576012 (Tenn. Ct. App. Feb. 12, 2014).has been tried three times and each of the three times the verdict has been set aside and a new trial ordered. In the most recent trial, the jury returned a verdict of $7,974,505 against the defendants and the defendants appealed raising a number of evidentiary issues. The Court of Appeals decided two of them.

First, the trial court refused to allow the defendants to play a video of their expert’s testimony from the previous trial. Doctors are exempt from subpoena to trial under a Tennessee statute, Tenn. Code Ann. § 24-9-101. However, the trial court made a distinction between a treating doctor and a doctor testifying as an expert witness at trial, and ordered that the doctor was not exempt from trial and that he must testify live or not testify at all.

March 4, 2014

Tennessee Court of Appeals Upholds Punitive Damage Award On Due Process Grounds But Then Reduces It Because It Exceeded the Ad Damnum Clause

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

In Tennessee, punitive damages may be awarded only if a defendant has acted intentionally, fraudulently, maliciously, or recklessly. This must be proven by clear and convincing evidence. Several factors shall be considered, which are set out in the leading case Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992):

(1) The defendant’s financial affairs, financial condition, and net worth;

(2) The nature and reprehensibility of defendant’s wrongdoing, for example

March 4, 2014

Tennessee’s Prior Suit Pending Doctrine

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

The Tennessee Court of Appeals recently had the opportunity to discuss the doctrine of prior suit pending in a car wreck case, Farmers Insurance Exchange v. Shempert. The Shemperts filed suit for a wreck in which Mr. Shempert was injured and included his own uninsured motorist carrier, Farmers Insurance Exchange, as a defendant. After discovery in the first lawsuit, Farmers filed a separate declaratory judgment action seeking a ruling that the Shempert’s policy with Farmers provided no coverage for the wreck. The Shemperts filed a motion to dismiss the second case on the basis of the doctrine of prior suit pending.

The Court of Appeals explained that the doctrine of prior suit pending provides that an action is subject to being dismissed if a prior lawsuit involving the same parties and the same subject matter is pending. The first lawsuit must be pending in a court that has jurisdiction over the subject matter and the parties.

The Court of Appeals found that the first lawsuit did include the issue of whether the Farmers policy provided coverage for the wreck, and that Farmers had raised coverage as a defense in the first lawsuit. Also, the court noted that the court in the first lawsuit had jurisdiction over the parties and the subject matter. Therefore, the court reversed the entry of summary judgment for the insurer in the declaratory judgment case and remanded it to the trial court to be dismissed.

March 3, 2014

Tennessee Defamation Law and Legislative Immunity

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

You don’t see a lot of defamation cases winding their way up Tennessee appellate courts. Rarer still are defamation cases decided entirely on an affirmative immunity defense. Miller v. Wyatt hits both those marks, so it’s worthy of a crash course in legislative immunity even though it’s a very fact-specific result.

Defendant, a City Councilman, placed on item on the Council’s meeting agenda to discuss campaign ads for the City Mayor’s race. Defendant explained that he wanted to address a political ad placed by another City Councilman who was running for Mayor. Defending the ad, the candidate pulled out a letter written by Plaintiff, a former City Manager referring to the incumbent mayor as “the most ethically challenged, ego-mani[a]cal, narcissistic elected official I have ever know.” (We haven’t gotten to the allegedly defamatory stuff yet, by the way.) Defendant responded at the meeting by saying that Plaintiff “was discharged from City Manager up here because of misappropriating funds and not following procedures.” (There’s the allegedly defamatory part.)

Plaintiff sued Defendant for slander. The trial court granted summary judgment to Defendant based on the legislative privilege, and Plaintiff appealed.

February 28, 2014

Strange Facts, Familiar Ending — Another Tennessee HealthCare Liability Case Dismissed For Failure To Comply With The Notice Provision

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

On November, 9, 2009, plaintiff was an emergency room nurse at Erlanger Hospital. During her shift, a certified nurse anesthetist employed by the defendant was administering anesthesia to a patient. Near the end of the procedure, the patient awoke prematurely and was agitated. The patient tried to extubate herself and rise from the table. Plaintiff noticed the situation and lunged toward the patient in an attempt to save her from falling and otherwise injuring herself. As a result, plaintiff sustained a back injury. So, it was not the patient bringing the healthcare liability claim, but a third-party nurse working nearby.

On September 27, 2010, plaintiff sent defendant a notice of intent to sue letter pursuant to T.C.A. § 29-26-121, and the return receipt was dated September 30, 2010. Only 38 days after the notice of intent letter was sent, plaintiff filed her complaint. Two and a half years later, defendant moved for summary judgment alleging plaintiff had failed to comply with the notice requirements of T.C.A. § 29-26-121. Specifically, plaintiff had filed her suit less than 60 days after sending the notice of intent to sue. Plaintiff did not dispute her non-compliance with the notice provision but responded by claiming the defendant had waived the defense of failure to comply with T.C.A. § 29-26-121 by failing to timely raise it.

The trial court granted the defendant’s motion for summary judgment. On appeal, the plaintiff renewed the waiver argument and also claimed T.C.A. § 29-26-121 conflicted with Tennessee Rule of Civil Procedure 18.01, Joinder of Claims (A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, in contract or tort, as the party has against an opposing party.)

February 27, 2014

Tennessee Chiropractor Denied Direct Claim Against Tortfeasor’s Liability Insurer

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

A Tennessee appellate court has ruled that a chiropractic clinic’s assignment agreement unenforceable in lawsuit against former patient injured in car wreck and liability insurance company who settled injury claim with patient.

In Action Chiropractic, LLC v. Prentice Delon Hyler,, No. M2013-01468-COA-R3-CV (Tenn. Ct. App. Feb. 12, 2014), the defendant (patient) was injured in a car crash and was subsequently treated at plaintiff’s chiropractic center (clinic), incurring approximately $5,010 in charges for medical care. In an attempt to secure payment for any treatment provided, the clinic initially required the patient to execute an assignment contract for “medical expense benefits allowable, and otherwise payable” to patient by his “health insurance, auto insurance, or any other party involved.”

The clinic sent a copy of the assignment contract to Erie Insurance Exchange (Erie), which was the auto insurance carrier of the person responsible for causing the patient’s car crash. The clinic demanded that Erie honor the assignment contract by paying the clinic directly the amounts due for patient’s treatment.

February 20, 2014

No Sale – No Liquor Liability in Tennessee

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

This is a liquor liability case against a bar in East Tennessee known as the Electric Cowboy. After a night of drinking, Ashley Langworthy was driving her vehicle at a speed in the range of 83 to 94 mph when she lost control and struck a tree causing her vehicle to go airborne and crash in to the corner of a brick apartment killing the plaintiff’s 71 year old decedent. Ms. Langworthy had to be extricated from the vehicle. By the time she arrived at the hospital, her BAC was still .18.

Following discovery, the following facts about the events leading up to the crash were undisputed:

· Langworthy and a friend had consumed two margaritas while eating dinner at Chili’s. They then purchased some Smirnoff Ice Coolers and Ms. Langworthy drank two of those in the parking lot of the Electric Cowboy.