Day on Torts

December 8, 2023

Quality Improvement Privilege (QIP) does not apply to meeting between hospital and decedent’s family.

Statements made in a meeting between defendant hospital and decedent’s family were not privileged and did not fall under the QIC statute.

In Castillo v. Rex, No. E2022-00322-COA-R9-CV (Tenn. Ct App. Oct. 4, 2023), plaintiff filed an HCLA suit after the death of her husband. Her husband died shortly after he was discharged from defendant hospital’s emergency room. The hospital held a Quality Improvement Committee (“QIC”) proceeding to investigate the care decedent received. Sometime thereafter, representatives from defendant hospital met with members of decedent’s family at a CANDOR meeting, where “Plaintiff was advised that Decedent should not have been discharged because the CT scan revealed a bleed.”

During depositions in the HCLA case, defense counsel instructed a physician not to answer questions about statements made at the CANDOR meeting. When plaintiff requested documents used in preparation for the CANDOR meeting, defendant moved for a protective order “to prohibit further inquiry into the nature and contents of all statements made at the CANDOR meeting as direct or indirect discovery of the QIC proceeding itself.” The trial court denied the motion for a protective order, and on interlocutory appeal, that denial was affirmed.

December 6, 2023

Recent Cases on Damages for Frivolous Appeal

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

My other blog, Practical Procedure and Evidence, has an updated post discussing the law of damages for frivolous appeal. The post includes citations to cases where damages for frivolous appeal appeal have been granted and denied in the last four months.

Writing a brief on appeal? Save yourself at least thirty minutes of research time checking out this blog post.

December 1, 2023

Defendant only required to produce surveillance videos he intended to use for impeachment at trial.

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

Where surveillance videos of plaintiff were obtained in preparation for litigation and were thus work product, the Court of Appeals affirmed the trial court’s decision to require defendant to only produce those surveillance videos he intended to use at trial for impeachment purposes.

In Locke v. Aston, No. M2022-01820-COA-R9-CV (Tenn. Ct. App. Sept. 25, 2023), plaintiff filed an HCLA action against defendant doctor. After plaintiff nonsuited her first case and in anticipation of plaintiff re-filing, defendant’s counsel obtained surveillance videos of plaintiff. After plaintiff re-filed her case, a discovery dispute arose around the production of these surveillance videos. While the trial court originally ruled that the defendants should produce the videos without limitation, it subsequently amended its ruling and ultimately found that the surveillance videos were work product and that defendant was only required to produce those videos he intended to use at trial for impeachment purposes. On appeal, this ruling was affirmed.

Tenn. R. Civ. P. 26.02(3) governs when material that qualifies as work product is nonetheless discoverable by an opposing party. The Rule requires the person seeking discovery to show that they have a “substantial need of the materials in the preparation of the case and [are] unable without undue hardship to obtain the substantial equivalent of the materials by other means.” By ruling that only the videos that would be used for impeachment were discoverable, the trial court had agreed with defendant that plaintiff did not have a substantial need of surveillance video that corroborated her claim. Thus, substantial need was the primary issue in this appeal.

November 30, 2023

Law Firm Fights Over the Meaning of “Double-Spaced” in Local Rules

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

Check out Practical Procedure and Evidence for a post about a fight over the meaning of “double spacing” in the local rules for the United States District Court for the Western District of Tennessee.

November 29, 2023

Are You Using BirdDog Law?

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

BirdDog Law is my creation to help Tennessee lawyers help their clients.

The site is full of free resources. For example, use these links to access the following:

Tennessee Rules of Civil Procedure

November 29, 2023

Statute Extending Statute of Limitations Does Not Extend Time for Service of Process

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

Where a car accident plaintiff filed suit, had service issued but not served, and then failed to have new process issued within one year from the issuance of the first service, the plaintiff could not rely on the fact that defendant received a traffic citation in the accident to extend the time within which service was required to be issued.

In Briars v. Irving, No. W2022-01159-COA-R3-CV (Tenn. Ct. App. Sept. 22, 2023), plaintiff and defendant were involved in a car accident, and defendant was given a citation for crossing the center line of the roadway. Plaintiff filed suit within the one-year statute of limitations and had service issued on July 2, 2020, but that summons was not served. A new summons for defendant was not issued until September 3, 2021. After being served, defendant moved to dismiss, which the trial court granted and the Court of Appeals affirmed.

Tenn. R. Civ. P. 3 states that when process is issued but not served, a plaintiff must “continue the action by obtaining issuance of new process within one year from issuance of the previous process.” Here, plaintiff did not have the new process issued until well beyond one-year after the first, unserved process was issued.

November 24, 2023

Are You Reading Practical Procedure and Evidence?

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

About eight months ago I started another blog, Practical Procedure and Evidence. I blog about issues relating to civil and appellate procedure and evidence that impact civil trial lawyers in Tennessee.

Here are some recent posts:

When is a Mistrial Appropriate?

November 21, 2023

Summary judgment for car accident defendant reversed.

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

Where a car accident plaintiff responded to a motion for summary judgment by relying on his own deposition testimony and defendant’s interrogatory responses, the Court found that he had created a genuine issue of material fact.

In Arnold v. Malchow, No. M2022-00907-COA-R3-CV (Tenn. Ct. App. Aug. 9, 2023), a pro se plaintiff brought a negligence claim against defendant driver and defendant underinsured motorist insurance company based on a car accident. The trial court granted summary judgment to defendants, finding that plaintiff’s response to the summary judgment motion was insufficient and relied only on inadmissible facts. On appeal, summary judgment was reversed.

Defendant’s statement of undisputed material facts stated that plaintiff did not see anything other than “something white” and that plaintiff did not see defendant driving her car before the accident. While plaintiff’s response to these facts included reliance on several inadmissible sources, he also relied on defendant’s interrogatory responses and his own deposition, both of which were admissible evidence.

November 10, 2023

Summary judgment overturned in car accident case.

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

Where there were questions of fact regarding how much mud was on a road and whether defendants were the cause of the mud, the Court of Appeal reversed summary judgment for defendant trucking company in a car accident negligence case.

In Sullivan v. Carden, No. E2022-01234-COA-R3-CV (Tenn. Ct. App. Sept. 14, 2023), plaintiff had a car accident when he allegedly hit a patch of frozen mud on a rural road. Plaintiff filed this negligence action against defendant trucking company and its owner, asserting that “his accident was caused by Defendants’ failure to remove excessive mud they had deposited onto the rural road he drove on.”

Defendants were running a logging operation in the area. The access road to the logging site was gravel, and only the logging equipment touched the mud/dirt rather than the gravel. Two days before the accident, the logging equipment was loaded onto trailers and driven to another site. Plaintiff argued that defendants’ actions caused mud on the road to the extent that it created an unreasonably dangerous condition. Plaintiff had a witness who stated that he had taken photos of frozen mud on the road at the site of the accident, that he had seen mud streaming from the logging site, and that he had seen another driver slip on the mud.

November 2, 2023

Summary judgment affirmed in Tennesssee informed consent case.

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

Where plaintiff signed an informed consent document and failed to present any expert testimony regarding the sufficiency or circumstances of the document, summary judgment for defendant on plaintiff’s informed consent HCLA claim was affirmed.

In Jarnagin v. Vanderbilt University Medical Center, No. M2022-01012-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2023), plaintiff met with defendant doctor about a possible procedure related to potential kidney cancer. Plaintiff asserted that during that meeting, the doctor said the only possible side effect was infection at the insertion site, yet the doctor asserted that she went through all of the possible side effects. The notes from the visit supported the doctor’s testimony, and defendants produced an informed consent form signed by plaintiff on the day of the visit that listed the potential side effects of the procedure. Plaintiff stated that he did not specifically remember signing the document, but that the doctor’s assistant had asked him to sign paperwork that explained what the doctor had discussed with him.

After the procedure, plaintiff suffered a complication and later filed this HCLA informed consent action. Defendants moved for summary judgment on the basis of the signed informed consent document, which the trial court granted, finding that the only expert testimony presented by plaintiff did not address the sufficiency or circumstances of the signed document. Summary judgment was affirmed on appeal.