Day on Torts

April 29, 2021

Second Pre-Suit Notice Required After Voluntary Dismissal of First HCLA Complaint

Where plaintiff nonsuits a complaint that contains medical malpractice (now known as health care liability action or “HCLA”) claims then later re-files a different complaint containing HCLA claims against the same defendant, she must give a new, separate pre-suit notice for the re-filed complaint.

In Byington v. Reaves, No. E2020-01211-COA-R3-CV (Tenn. Ct. App. April 20, 2021), plaintiff was treated by defendant for cancer on her nose. The treatment recommended by defendant eventually led to “removal of [plaintiff’s] right nostril, leaving her noticeably disfigured.” Plaintiff sent pre-suit notice of her HCLA claims on April 23, 2019 to defendant doctor and clinic, then filed a complaint the next day on April 24, 2019. This first complaint alleged that defendants fraudulently induced plaintiff into going through with the surgery, that there was a lack of informed consent due to the fraudulent inducement, that defendant doctor “failed to adhere to the standard of care,” and that defendant doctor did not tell plaintiff about alternative treatment options.

Defendants filed a motion to dismiss, asserting that plaintiff failed to comply with the HCLA by providing them pre-suit notice less than 60 days prior to filing her complaint, and that plaintiff failed to file a certificate of good faith. Plaintiff then voluntarily dismissed this first complaint.

April 27, 2021

TN GTLA immunity retained where claim related to excessive use of police force.

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

Where plaintiff’s Tennessee GTLA claims all related to the allegation that airport officers used excessive force when interacting with and eventually detaining him, defendant airport authority “retained immunity under the civil rights exception in [Tenn. Code Ann.] § 29-20-205(2).” In Nichols v. Metropolitan Nashville Airport Authority, No. M2020-00593-COA-R3-CV (Tenn. Ct. App. April 15, 2021), plaintiff was asked to leave the Nashville airport by airport police officers. While the officers were escorting plaintiff to the exit, they “attempted an ‘arm bar’ restraint,” which led to plaintiff falling and sustaining facial injuries.

Plaintiff filed this suit under the GTLA, asserting claims against the airport authority for “(1) negligence; (2) negligent infliction of emotional distress; and (3) negligent hiring, training, supervision, and retention.” Defendant filed a motion to dismiss, arguing that this claim arose out of civil rights and that immunity was therefore retained under the GTLA. Although the trial court initially denied the motion, it granted the motion after the opinion in Cochran v. Town of Jonesborough, 586 S.W.3d 909 (Tenn. Ct. App. 2019), was designated for publication. On appeal, dismissal was affirmed.

April 22, 2021

Failure to Address Each Ground of Dismissal on Appeals – Dismissal Affirmed

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

Where plaintiff alleged negligence per se and invasion of privacy based on the unauthorized access and disclosure of her medical records, but she failed to allege in her complaint that the disclosure was made by an employee or agent of defendant or “otherwise explain how [defendant] could be liable for the actions” of another legal entity, and she failed to address an independent ground for dismissal in her appeal, dismissal was affirmed.

In Prewitt v. Saint Thomas Health, No. M2020-00858-COA-R3-CV (Tenn. Ct. App. April 14, 2021), plaintiff filed a pro se complaint against defendant Saint Thomas Health asserting claims for negligence per se and invasion of privacy. Plaintiff’s complaint alleged that she was treated and gave birth at a hospital owned and operated by defendant, and that the father of the child subsequently obtained information about the child’s birth from the hospital. Specifically, the complaint read: “[T]he plaintiff received documents that included the date of her Cesarean section that took place at Defendant Saint Thomas’ hospital. The information had apparently been disseminated and obtained by a violent and abusive man.”

April 21, 2021

HIPAA authorization single-provider exception did not apply where 21 providers were sent HCLA pre-suit notice.

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

Where an HCLA plaintiff sent pre-suit notice to twenty-one healthcare providers but failed to provide HIPAA authorizations for at least nineteen of those providers, dismissal was affirmed. In Shaw v. Gross, No. W2019-01448-COA-R3-CV (Tenn. Ct. App. April 13, 2021), plaintiff filed suit as the administrator of the decedent’s estate after decedent died of sepsis. Decedent had presented at defendant hospital and been treated by defendant doctor before being released with a dehydration diagnosis, but he returned to defendant hospital the next day and was diagnosed with sepsis, which eventually led to his death.

Before filing her complaint, plaintiff sent pre-suit notice to defendant hospital, defendant doctor, and nineteen other medical providers. After an initial grant of summary judgment, appeal, and remand, defendants filed motions to dismiss on the basis that plaintiff’s HIPAA authorizations sent with her pre-suit notice were incomplete, and that the HIPAA authorizations did not allow defendants to obtain records from the nineteen other providers that were sent notice. After the motion to dismiss was filed, plaintiff amended her complaint, alleging that “all doctors and providers to include Dr. Gross only saw and treated Decedent at Methodist Hospital.” The trial court granted the motion to dismiss, finding that plaintiff had failed to comply with the pre-suit notice requirements and thus was not entitled to the 120-day extension of the statute of limitations, making her complaint untimely, and the Court of Appeals affirmed.

April 16, 2021

Car accident statute of limitations held to began on date of accident.

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

Where a car accident plaintiff filed suit against the other driver’s insurance company within the statute of limitations, but failed to add the other driver as a party until two days after the statute of limitations had run, dismissal was affirmed. In Haywood v. Trexis Insurance Corp., No. W2020-00418-COA-R3-CV (Tenn. Ct. App. April 12, 2021), plaintiff was in a car accident with defendant driver on October 9, 2018. Plaintiff filed a civil warrant in general sessions court against defendant insurance company, who insured defendant driver, in July 2019. On October 11, 2019, plaintiff added defendant driver through an amended civil warrant. Defendants filed a joint motion to dismiss, arguing that the insurance company “was an improper party to the action because Tennessee is not a ‘direct action’ state,” and that “the statute of limitations for personal injury actions barred [plaintiff’s] suit against [the driver].” The trial court granted the motion to dismiss, and plaintiff appealed to the circuit court, where the case was dismissed again. On appeal, dismissal was affirmed.

April 15, 2021

Vicarious liability claim under HCLA not barred due to statute of limitations running out on claim against non-party agent.

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

Where an HCLA plaintiff decides to pursue claims only against the principal under a vicarious liability theory and the plaintiff follows the statutory timing outlined in the HCLA, the claim will not be barred due to the previous common law holding that a vicarious liability claim against a principal is barred “when the plaintiff’s claim against the agent is procedurally barred by operation of law before the plaintiff asserts a vicarious liability claim against the principal.” In Gardner v. Saint Thomas Midtown Hospital, No. M2019-02237-COA-R3-CV (Tenn. Ct. App. April 1, 2021), plaintiff filed an HCLA claim against defendant hospital based on allegedly negligent care by an anesthesiologist while she was having surgery at defendant hospital. In her complaint, plaintiff stated that defendant was “careless and negligent” while “acting through its employees and/or agents,” and that defendant was “liable for any negligent acts and/or omissions of any actual or apparent agents and/or employees[.]” In defendant’s answer, it “specifically denie[d] that the physicians whose care is alleged in the Complaint were agents or employees of defendant.”

April 7, 2021

Failure to list purpose on HIPAA authorization leads to dismissal of HCLA case.

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

Where plaintiff’s medical authorizations lacked required elements and plaintiff failed to show that defendants already had all relevant records, dismissal of plaintiff’s HCLA case was affirmed.

In Woods v. Arthur, No. W2019-01936-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2021), plaintiff filed an HCLA claim related to two spinal surgeries, the first performed by Dr. Arthur and Dr. Lingo, who were employees of the same clinic, and the second performed by Dr. Sorenson. According to plaintiff, the wrong size screw was used in the first surgery, which caused injuries, and he was further injured by the second corrective surgery.

Before filing suit, plaintiff sent pre-suit notice to Dr. Arthur, Dr. Sorenson, and Methodist Hospital, which is where the first surgery was performed. Notice was also sent to Dr. Lingo, but he did not make an appearance in the case and was not a party to this appeal. After receiving the notices, defendant doctors “replied…and informed Plaintiff they were investigating the matter.” During a phone call, counsel for the doctors “stated that he had the Operative Reports for both” surgeries. Despite communication between the parties, no settlement was reached, and plaintiff filed his complaint. Defendant doctors and defendant hospital filed motions to dismiss, alleging that the medical authorizations sent with plaintiff’s pre-suit notice were not HIPAA compliant, and that plaintiff was therefore not entitled to the 120-day extension of the statute of limitations under Tenn. Code Ann. § 29-26-121(c), making his suit untimely. The trial court agreed, granting the motions to dismiss, and the Court of Appeals affirmed.

April 1, 2021

Cross-examination Tips

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

Lane Haygood, of Haygood Law in Odessa, Texas, offered a series of tweets on conducting cross-examination. They are repeated below.

Cross-examination is an essential skill for a trial lawyer, and one most lawyers are truly, mind-bogglingly terrible about, because they overcomplicate the process. To be a good cross-examiner, you have to be a good listener. /2

Most lawyers try to script their crosses. This is bad. Most lawyers don’t listen to what the witness is saying, because they’re too busy thinking of their next devastating Perry Mason question. Stop that. You’re not Perry Mason and this isn’t TV. /3

March 30, 2021

Case against deceased defendant time-barred.

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

Where the other driver in a car accident case died before suit was filed and the plaintiff failed to “timely file his tort action against the personal representative within the applicable statute of limitations,” summary judgment for the personal representative was affirmed.

In Mott v. Luethke, No. E2020-00317-COA-R3-CV (Tenn. Ct. App. Mar. 16, 2021), the plaintiff was in a car accident with another driver on March 22, 2016. Plaintiff filed a civil action in general sessions court against the driver on March 3, 2017, but the driver had died on December 7, 2016. After the plaintiff learned of the driver’s death, he filed a petition on August 30, 2017, to have the defendant appointed as the personal representative of the estate, and the probate division of the chancery court entered an order appointing the defendant on October 31, 2017. Plaintiff filed a “re-issued” civil summons in the sessions court on January 31, 2018, which was served on the defendant as the personal representative. The matter was transferred to the trial court by agreement of the parties, and then in February 2019, the defendant filed a motion for summary judgment based on the statute of limitations. The trial court agreed that the case was time-barred and thus granted summary judgment, which was affirmed on appeal.

March 26, 2021

SCOTUS Addresses Personal Jurisdiction in Products Liability Lawsuits

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

Ford Motor Company can be required to face a product liability suit in a state where the plaintiff, a resident of the state, was injured even though the vehicle involved in the crash was not manufactured or originally sold in the state.

Ford Motor Co. v. Montana Eighth Judicial District and Ford Motor Co. v. Bandemer were consolidated in a March 25, 2021 opinion by the SCOTUS.

The 8-0 opinion of the court found that Ford had the requisite minimum contacts with the forum states even though the vehicles involved were not manufactured or sold there. Instead, the court found that Ford’s advertising, marketing, servicing, selling, etc. activities in the state where the wreck occurred were sufficient to permit it to be sued in the state.