Day on Torts

June 12, 2020

No magic words required to make HIPAA authorization compliant

Where a HIPAA authorization included with HCLA pre-suit notice “permits a defendant to obtain medical records in actual fact but simply does not include the word ‘obtain,’ it is still compliant.”

In Combs v. Milligan, No. E2019-00485-COA-R3-CV (Tenn. Ct. App. May 1, 2020), plaintiffs filed a health care liability suit against several defendants based on a surgically inserted port that became infected and caused permanent injuries. Before filing their complaint, plaintiffs sent the defendants pre-suit notice and included a HIPAA authorization as required by the HCLA. The authorization was accompanied by a letter that stated: “Attached please find a list of providers to whom a substantially similar notice is being sent…[Plaintiff] has executed a HIPAA-compliant medical authorization authorizing you to obtain complete medical records from [same list of providers].”

June 9, 2020

Minimal damages affirmed where plaintiff offered no expert testimony on medical expenses

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

Where a car accident plaintiff was granted summary judgment as to liability but offered no evidence regarding her medical damages beyond her own testimony, including no expert testimony that any of her medical expenses were reasonable and necessary, the trial court did not err by awarding her only $5,000.

In Marsh v. Lowe, No. E2019-00697-COA-R3-CV (Tenn. Ct. App. April 29, 2020), plaintiff was rear-ended on the interstate, and she filed suit against both the driver and the owner of the car. Plaintiff alleged that the driver was negligent by failing to slow appropriately for traffic, and she specifically pointed out that the driver was cited for DUI and for using a cell phone/ distracted driving by the police. Plaintiff alleged that the car owner was negligent by “entrusting [the driver] to operate the vehicle.”

June 8, 2020

Analyzing prejudice to defendant when HCLA pre-suit notice is deficient.

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

When a defendant has filed a motion to dismiss challenging whether an HCLA plaintiff fulfilled the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121, “prejudice is relevant to the determination…but it is not a separate and independent analytical element.”

In Martin v. Rolling Hills Hospital, LLC, No. M2016-02214-SC-R11-CV (Tenn. April 29, 2020), plaintiffs filed an HCLA case against multiple defendants based on the death of their daughter. Plaintiffs gave timely pre-suit notice, but the HIPAA authorization they sent with their notice failed to include “three of the six core elements federal law requires for HIPAA compliance.” Specifically, the authorizations “failed to list the name and address of the provider authorized to release medical records,” failed to list an expiration date, and “failed to provide a description or documentation of [plaintiff’s] authority to act for the decedent.”

June 5, 2020

Nuisance claim arising from construction fails

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

Where plaintiff claimed that defendant created a nuisance by allowing debris to drain onto her land and by causing a sewage smell, but the only evidence consisted of conflicting witness testimony with the trial court crediting defendant’s testimony, dismissal of the nuisance claim was affirmed.

In Magness v. Couser, No. M2019-01138-COA-R3-CV (Tenn. Ct. App. April 27, 2020), the parties were neighbors who had been involved in contentious litigation since 2004, including claims and counterclaims from both parties. At issue in this appeal was Ms. Couser’s (hereinafter plaintiff) nuisance claim against Mr. Magness (hereinafter defendant). In June 2004, defendant had begun constructing a large commercial building on his property that was located close to plaintiff’s property line. Plaintiff alleged that “the construction of the large building resulted in gravel and debris draining onto her land” even after the completion of the construction in 2006. Plaintiff alleged that the runoff created a gully on her property, destroyed her fence, and that it was destroying a natural spring. In addition to the claim based on runoff, plaintiff alleged defendant created a nuisance by incorrectly installing a septic tank and causing a “sewage smell and foul odor” to permeate her property.

June 2, 2020

Claim that counseling records were falsified fell under health care provider liability

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

Where plaintiff’s claims were all based on the allegation that defendant counselors falsified or altered his minor children’s counseling records, the claims fell within the HCLA and pre-suit notice and a certificate of good faith was required.

In Cathey v. Beyer, No. W2019-01603-COA-R3-CV (Tenn. Ct. App. April 24, 2020), plaintiff was the father of two minor children and was not married to the children’s mother. The mother took the children to see the two defendants, both of who were licensed professional counselors. One defendant performed an initial psychological evaluation on the children, and the other provided counseling to them for approximately two months.

When plaintiff learned that the children had been in counseling, he requested the children’s records from defendants and was provided copies. During a subsequent custody dispute, he allegedly received a different copy of the records via a subpoena to the child’s mother, which he asserted showed that defendants had “falsified the records they tendered to him.”

June 1, 2020

Guidelines for the Use of Remote Video in Depositions, Hearing, Trials and Appellate Arguments

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

The American College of Trial Lawyers’ Task Force on Advocacy in the 21st Century has released five papers designed to help judges and lawyers face legal and practical issues that arise from the use of remote video. The Task Force, appointed by the College’s Executive Committee, includes judges and lawyers from the United States and Canada with a broad range of experience in criminal and civil law.

Each Interim Guideline addresses a topic of interest to civil trial lawyers: depositions, hearings, nonjury trials, and appellate arguments. Of special interest is a paper called “Mastering Zoom Advocacy,” which is helpful regardless of the remote video application used.

May 29, 2020

Expert practicing in Tennessee under licensure exemption not qualified as HCLA expert

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

When a doctor is practicing in Tennessee but not licensed in Tennessee or in a contiguous state, but is instead practicing under a statutory licensure exemption as part of a fellowship program, he does not meet the requirements to testify as to standard of care and breach of said standard under the HCLA.

In Young v. Frist Cardiology, No. M2019-00316-SC-R11-CV (Tenn. April 20, 2020), plaintiff filed a health care liability case based on the alleged negligent treatment of decedent during a cardiac procedure and his subsequent death. Pursuant to the case management order, plaintiff identified Dr. Jason Rytlewski as “the expert witness who would testify that [defendant] deviated from the applicable standard of care in his treatment of [decedent].”

Defendants filed motions for summary judgment, asserting that Dr. Rytlewski was not competent to testify because he “did not have a medical license in Tennessee or a contiguous state during the year before [decedent’s] heart procedure, as required by Tennessee Code Annotated section 29-26-115(b).” Plaintiff responded that Dr. Rytlewski was “familiar with the standards of acceptable professional practice for [decedent’s] heart procedure in the Davidson County area,” and that the “Tennessee Board of Medical Examiners had granted Dr. Rytlewski an exemption that allowed him to practice medicine without a medical license during his fellowship at Vanderbilt University.” Plaintiff argued that due to this exemption, the licensure requirement of Tenn. Code Ann. § 29-26-115(b) did not apply to him, as it only applies “if one is required to have a license.”

May 27, 2020

HIPAA Form Releasing Records to Plaintiffs’ Counsel Not Compliant.

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

Where plaintiffs sent pre-suit notice to 45 health care providers, but the HIPAA authorization included with the notice only authorized disclosures to plaintiffs’ counsel, dismissal of their health care liability claim based on failure to comply with the statutory requirements was affirmed.

In Owens v. Stephens, No. E2018-01564-COA-R3-CV (Tenn. Ct. App. April 16, 2020), plaintiffs filed an HCLA claim against numerous defendants alleging that negligent care of plaintiff mother resulted in the death of her child. Before the suit was filed, plaintiffs sent pre-suit notice pursuant to the HCLA to 45 health care providers. This notice included a HIPAA authorization for the release of the mother and child’s medical records, but the release stated that it permitted providers “to disclose my entire medical record…to BREEDING & HENRY, LLC…” Breeding & Henry, LLC was the law firm representing plaintiffs.

May 26, 2020

Grocery store assumed duty to maintain its parking lot

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

Where a grocery store lessee was not responsible for maintaining its parking lot under its lease, but it had repeatedly exercised control over the parking lot area where plaintiff fell, the Court of Appeals found that it had “assumed a duty to maintain the parking lot[.]”

In Jones v. Earth Fare, Inc., No. E2019-00450-COA-R3-CV (Tenn. Ct. App. April 15, 2020), plaintiff slipped and fell in a puddle of antifreeze in defendant grocery store’s parking lot. Another customer had previously fallen in the same puddle and informed the manager on duty, who came out to see the puddle. The manager then went back inside the store to get cat litter to put on the puddle, but she stopped to help another employee. During this time, plaintiff exited the store and slipped in the large puddle of antifreeze.

Plaintiff filed this premises liability case against several defendants, including defendant grocery store. The grocery store filed a motion for summary judgment, asserting that “it had no legal or contractual duty to maintain the area where [plaintiff] fell” and that parking lot maintenance was the responsibility of its landlord. The trial court granted the motion for summary judgment, but the Court of Appeals reversed.

May 22, 2020

Discovery Sanction Affirmed For Failure to Produce Photograph

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

Where plaintiff failed to produce a photograph of an accident scene in response to requests for production, despite a consent order compelling a response to the discovery requests, the Court of Appeals affirmed the exclusion of a portion of defendant’s deposition testimony that plaintiff wanted to use at trial as a sanction.

In Cuddeford v. Jackson, No. W2019-00539-COA-R3-CV (Tenn. Ct. App. April 16, 2020), plaintiff filed a negligence suit against defendant after a motorcycle accident. Defendant was backing out of his driveway, and plaintiff alleged that defendant backed into plaintiff’s path, causing plaintiff to lose control of his motorcycle and crash.

In February 2016, defendant sent interrogatories and requests for production of documents to plaintiff, which including a request for “copies of any photographs…relating to the accident scene.” Plaintiff did not respond to the discovery requests, which eventually resulted in defendant filing a motion to compel. The trial court entered a “consent order for Plaintiff to respond to the interrogatories and request for production of documents by July 6, 2016.” The only document produced by plaintiff in response was a medical authorization.