Day on Torts

November 2, 2023

Summary judgment affirmed in Tennesssee informed consent case.

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.

October 27, 2023

Statutory immunity provisions related to health care powers of attorney did not prevent inquiry into whether decedent had mental capacity to execute power of attorney.

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

Where an arbitration agreement had been signed by a decedent’s attorney in fact upon the decedent’s admission into a nursing home, and on a motion to compel arbitration filed by the nursing home the trial court considered evidence on whether the decedent had the mental capacity to execute the power of attorney for healthcare, the Tennessee Supreme Court affirmed the trial court’s consideration of such evidence. The Supreme Court held that the immunity provisions in Durable Power of Attorney for Health Care Act and the Health Care Decisions Act did not bar the trial court from considering evidence of the decedent’s mental capacity.

In Welch v. Oaktree Health and Rehabilitation Center LLC d/b/a Christian Care Centers of Memphis, No. W2020-00917-SC-R11-CV, — S.W.3d — (Tenn. Aug. 31, 2023), plaintiff was decedent’s brother and brought this wrongful death claim against defendant nursing home. Decedent had been diagnosed with down syndrome when he was born, and he could not read and had difficulty understanding instructions. In connection with an eye surgery in 2012, plaintiff had helped decedent scratch his name on a durable power of attorney for healthcare (“POA”). Plaintiff had printed and filled out the POA.

In the subsequent years, plaintiff used the POA several times when assisting decedent with obtaining healthcare. In 2016, plaintiff had decedent admitted to defendant nursing home. Plaintiff filled out several documents in connection with the admission, including an optional arbitration agreement, on behalf of decedent. It was uncontested that plaintiff would have shown defendant the POA during the admission process.

October 24, 2023

Defendant waived appellate arguments by failing to renew motion for directed verdict or file motion for new trial.

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

Where defendant moved for a directed verdict after the close of plaintiff’s proof but failed to renew the motion at the close of all proof, and did not file a post-trial motion seeking a new trial, defendant waived review of the denial of the motion for directed verdict as well as review of the sufficiency of the evidence.

In Lebel v. CWS Marketing Group, Inc., No. E2022-01106-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2023), plaintiff purchased a home at auction and later brought this claim against defendant, who marketed and facilitated the auction. Plaintiff alleged that defendant knew the home had mold issues and failed to disclose them, and defendant misrepresented the number of acres sold with the home. In addition to contract claims, plaintiff asserted a claim for reckless misrepresentation.

At the end of plaintiff’s proof, defendant moved for a directed verdict, which the trial court denied. Defendant failed to renew its motion at the close of its own proof, and the jury returned a verdict for plaintiff. Defendant did not file a post-trial motion for a new trial, but appealed asserting that the trial court erred in denying the motion for directed verdict and that the evidence was not sufficient to support the jury’s finding. The Court of Appeals ruled that defendant had waived both of these arguments and affirmed the jury’s verdict.

October 20, 2023

Tort proceeds belonged to decedent’s estate rather than surviving spouse.

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

After decedent was killed when hit by a vehicle while riding her bicycle, her surviving spouse brought claims against various parties, including a claim against decedent’s insurance provider for negligent misrepresentation and negligent failure to procure insurance. Because these claims were based in tort rather than wrongful death, the Court of Appeals ruled that they accrued to the decedent at the time of her fatal injuries and the settlement proceeds should have been distributed to her estate, not to her surviving spouse.

In Sanders v. Higgins, No. M2022-00892-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2023), plaintiff was the surviving spouse of decedent, who was killed when she was hit by a vehicle while riding her bicycle. Plaintiff brought various claims against several defendants, but the one at issue in this appeal was a claim for negligent misrepresentation and negligent failure to procure insurance against decedent’s insurance company. According to plaintiff, the insurer had misrepresented to plaintiff and decedent that an umbrella policy had been reinstated, and plaintiff did not learn until after decedent’s death that the policy reinstatement never occurred.

The parties reached a settlement on the negligence claims, and the trial court ordered disbursement of the settlement proceeds to plaintiff as surviving spouse. The trial court ruled that the settlement proceeds were compensatory damages to plaintiff, “encompassing the amount of coverage [plaintiff] would have received as a result of the Decedent’s death had an umbrella policy been in place.” Decedent’s estate appealed this ruling, arguing that the tort claim proceeds should have been distributed to the estate. On appeal, the trial court was reversed.

October 6, 2023

County retained immunity under GTLA where plaintiff’s claims fell within civil rights exception

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

Where plaintiff filed suit against a county based on an alleged sexual assault by a county employee that occurred when minor plaintiff was detained at the county’s juvenile detention center, the trial court’s ruling that the county “retained immunity under the Governmental Tort Liability Act because the claims against the county arose out of civil rights claims” was affirmed.

In Betty H. v. Williamson County, No. M2022-00300-COA-R3-CV (Tenn. Ct. App. Aug. 14, 2023), plaintiff filed suit asserting multiple claims against the county and county employees. Plaintiff alleged that while she was detained at the county’s juvenile detention center, a county employee sexually assaulted her two times. Plaintiff eventually voluntarily dismissed the claims against the county employees but moved forward with her claims against the county.

After discovery, the county filed a motion for summary judgment based on several grounds. The trial court granted the motion, ruling that plaintiff’s claims arose out of civil rights claims and that the county therefore retained immunity under the GTLA. The trial court made additional findings as well, but the Court of Appeals affirmed summary judgment based solely on the immunity provided by the GTLA.

October 4, 2023

Malicious prosecution and abuse of process summary judgment affirmed.

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

Where plaintiff filed an action for malicious prosecution and abuse of process based on a criminal theft case, summary judgment for defendant was affirmed. A grand jury indicted plaintiff of the theft charges, which created a rebuttable presumption of probable cause for purposes of the malicious prosecution claim, and plaintiff was unable to prove the elements of her abuse of process claim.

In Christmas v. Kington, No. E2022-00699-COA-R3-CV (Tenn. Ct. App. Aug. 25, 2023), plaintiff and defendant had previously been in a romantic relationship. At two different times, defendant filed civil suits against plaintiff based on the theft of jewelry from defendant’s home, but those suits were both voluntarily dismissed. Defendant also called the local sheriff’s office to report the theft of several pieces of jewelry. Defendant informed the detective that plaintiff’s son had called and informed him that plaintiff had stolen and sold several pieces of jewelry, including a men’s Rolex watch. When defendant went to the store where plaintiff allegedly sold the jewelry, he saw the watch and a few other pieces he recognized.

The sheriff’s office investigated the matter and brought charges, and plaintiff was indicted by a grand jury for theft. Defendant did not testify before any court or grand jury and did not provide documents or records to the grand jury. The criminal charges were eventually dismissed by the State, but nothing in the record indicated that the dismissal was on the merits or based on a lack of evidence.

September 7, 2023

Medical bills excluded from trial due to lack of expert testimony that they were necessary.

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

Plaintiffs seeking to introduce medical bills for the purpose of showing damages must present expert proof that that the medical expenses were necessary.

In Holzmer v. Estate of Walsh, No. M2022-00616-COA-R3-CV (Tenn. Ct. App. July 28, 2023), plaintiff sought to introduce her medical bills in support of claimed damages related to a car accident. Defendant admitted liability, and a jury trial was held to determine damages. At trial, plaintiff’s expert physician testified that the treatment plaintiff received was reasonable and necessary, but the physician had not reviewed the bills and did not testify as to their reasonableness and necessity.

Plaintiff had received treatment at three different facilities, and she had witnesses from those facilities testify as to the reasonableness of the bills, including a nurse auditor, an accounts receivable biller, and a senior director of revenue cycle. These witnesses, however, did not testify as to necessity. The trial court excluded the medical bills due to plaintiff’s failure to present expert testimony regarding their necessity, and that ruling was affirmed on appeal.

September 1, 2023

New Article Published Discussing Tennessee’s “Colleague Privilege”

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

The Tennessee Bar Journal has just published my article, “Tennessee Supreme Court Creates the “Colleague Privilege.” The article discusses the implications of a brand-new privilege which provides that “a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard,” and that this holding “stands regardless of any supervisory relationship between the providers.”

August 31, 2023

HCLA plaintiff failed to establish breach of standard of care.

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

Where an HCLA plaintiff failed to establish a breach of the applicable standard of care, the Claims Commissioner’s ruling for the State was affirmed.

In Black v. State, No. M2022-00399-COA-R3-CV (Tenn. Ct. App. July 25, 2023), plaintiff filed suit on behalf of her husband, who died after a short stay in a skilled nursing facility owned and operated by the State of Tennessee. When the husband was admitted to the facility, he was 84-years-old and suffered from Alzheimer’s disease, diabetes, and many other health complications.

Plaintiff visited her husband every day in the facility, and on December 29, 2016, she told the staff that she suspected he had a urinary tract infection. The facility staff ran a test, which was negative, and created care plans for the husband the next day. Four days later, the facility staff completed a more detailed assessment of the husband’s condition and care needs. Four days after this assessment, the husband was taken to the emergency room, where he was found to be suffering from septic shock and aspiration pneumonia. Approximately two weeks later, the husband died at the hospital.

August 18, 2023

HCLA abrogates operation-of-law exception for vicarious liability claims in health care liability actions.

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

Where “application of the operation-of-law exception would bar a vicarious liability claim that is timely filed within the [HCLA’s] extended statute of limitations solely because the statute of limitations had expired for any claims against the principal’s agents, the exception must give way to the [HCLA].”

In two nearly identical opinions, the Tennessee Supreme Court addressed the interplay between claims for vicarious liability, common law exceptions to the ability to assert vicarious liability claims, and the HCLA. In Ultsch v. HTI Memorial Hospital Corp., No. M2020-00341-SC-R11-CV (Tenn. July 20, 2023) and Gardner v. Saint Thomas Midtown Hospital, No. M2019-02237-SC-R11-CV (Tenn. July 20, 2023), the Supreme Court held that a vicarious liability claim filed within the 120-day extension of the statute of limitations could proceed against a principal, even when the relevant agents were not named as defendants, were not given pre-suit notice and thus not subject to an extended statute of limitations, and were barred from being sued by the statute of limitations at the point the complaint was filed against the principal.

In both cases, the plaintiff sent pre-suit notice to the hospital at which they were treated, but did not send pre-suit notices to any agents of said hospitals. The statute of limitations as to claims against the hospitals were extended 120-days pursuant to the HCLA, and the plaintiffs filed their vicarious liability claims against the hospitals beyond the one-year mark but before the 120-day extension had run.