Day on Torts

September 28, 2018

“Discovery Rule” Analyzed in Cancer Treatment Case

The statute of limitations on a Tennessee HCLA claim begins to run “once the plaintiff has information sufficient to alert a reasonable person of the need to investigate the injury[.]” (internal citation omitted).

In Dondero v. Accuray Incorporated, No. E2017-01741-COA-R3-CV (Tenn. Ct. App. July 26, 2018), plaintiff had been diagnosed with prostate cancer and, in an effort to avoid having surgery to remove his prostate, went to defendant doctor to discuss CyberKnife treatment. Plaintiff asserted that he was given a pamphlet describing the treatment as having “extreme accuracy” that would “spar[e] surrounding healthy tissue.” Plaintiff underwent five CyberKnife treatments in October 2012 with defendant Dr. Kimsey, and during two he experienced “pain in his penis and a burning sensation in his lower abdomen.”

In July 2013, plaintiff consulted with his general practitioner about blood from his rectum. He was referred to a gastroenterologist in August 2013, and in September had to have a procedure to cauterize damage that plaintiff “admittedly assumed…was caused by the CyberKnife treatment.” At a December 2013 appointment with Dr. Kimsey, plaintiff complained about several problems he was experiencing, including the damage that had to be cauterized, but “Dr. Kimsey told him that this was a common problem associated with cyber knife.”

September 28, 2018

Plaintiff’s Past Medical Records Should Have Be Allowed as Evidence

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

Where defendant had the proper affidavit to authenticate plaintiff’s medical records related to treatment she received prior to a car accident, the trial court erred by excluding the evidence.

In Goodwin v. Hanebis, No. M2017-01689-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2018), plaintiff was injured in a car accident with defendant. The jury awarded her $70,000 in damages, including an award for all the medical expenses for which she presented proof and damages for pain and suffering, permanent injury, and loss of enjoyment of life. The trial court reduced the award by $1,004 to reflect the correct amount of medical expenses presented at trial, and defendant appealed citing several issues, including whether the trial court erred by excluding evidence of medical treatment plaintiff had received before the accident. The Court of Appeals ruled that some of the previous medical records should have been admitted and accordingly vacated the judgment.

Before the trial, plaintiff had filed a motion in limine to exclude her prior records from two clinics, Greenview and Bowling Green. Plaintiff asserted that defendant “clearly wishe[d] to introduce these records to argue that [plaintiff] had preexisting conditions that caused the injuries complained of in this lawsuit.” The trial court granted the motion and disallowed the records.

September 27, 2018

No Attorney’s Fee Award Permitted in Trespass Case

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

Attorney’s fees are not recoverable in a claim for trespass in Tennessee. In Perlaky v. Chapin, No. E2017-01995-COA-R3-CV (Tenn. Ct. App. July 27, 2018), plaintiff owned land on a mountain with easement rights to access the land by a specific road. When defendants bought property on the same mountain, they blocked the road by “felling 400 or 500 trees across the road, setting up a steel gate, and placing security guards at the gate to monitor access.” Plaintiff filed this trespass action, and the trial court awarded him nominal damages. The trial court initially awarded plaintiff attorney’s fees, but after a motion to alter or amend the judgment by defendant, the trial court vacated the award of attorney’s fees. The Court of Appeals affirmed.

First, the Court affirmed the award of nominal fees. Because plaintiff had presented damages incurred by Raccoon Mountain Campground, LLC, but had filed suit individually, the trial court found that no actual damages to plaintiff were proven. Nonetheless, “even where no actual damages are proven, the plaintiff is still entitled to nominal damages,” and the award of $174.14 as nominal damages was affirmed.

September 27, 2018

What To Do When the Tortfeasor Dies Before Suit is Filed

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

Here is the beginning of my “Day on Torts” column for the Tennessee Bar Journal on what a plaintiff should do if the tortfeasor dies before suit is filed. Click on the link to read the full text of the article.

Your new client thought she could avoid hiring a lawyer and instead work out on her own a settlement with the insurance claims representative for the other driver. The dance lasted 10 months. “Wait until the end of medical treatment.” “Sign these forms.” “Send me your medical bills.” “I need your EOB forms.” “Your employer needs to confirm in writing your lost wages.” And so on.

She (finally) has concerns about whether she is going to be treated fairly and hires you as her lawyer. You have two months to investigate and evaluate the case, and to file a lawsuit. Your chance to settle the case pre-suit is long gone.

September 26, 2018

“Scope of Employment” and the Tennessee GTLA

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

Where an ROTC instructor pulled a stool from beneath a student, his actions were not within the scope of his employment and immunity was not removed under the GTLA.

In O’Brian v. Rutherford County Board of Education, No. M2017-00527-COA-R3-CV (Tenn. Ct. App. July 31, 2018), plaintiff was a sophomore in high school and participant in the ROTC program. While at an ROTC competition, the instructor asked his group of students to sit on a log. The instructor’s stool, which he had brought from home, was next to the log. Plaintiff sat on the stool to tie her shoes. The instructor asked her to move several times, to which she responded that she was almost finished. After saying plaintiff’s name for a third time and plaintiff not moving, the instructor pulled the stool out from underneath plaintiff, and she fell, injuring her back.

September 25, 2018

County Immune From Liability for Injury on Inmate Work Program

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

Tennessee law “grants counties that allow inmates to work on road details and other projects immunity from liability for injuries,” and that immunity overrides provisions of the GTLA.

In Trojan v. Wayne County, Tennessee, No. M2017-00415-COA-R3-CV (Tenn. Ct. App. July 23, 2018), plaintiff was an inmate in Wayne County jail and was working on a bridge as part of an inmate work program. While working, he spilled concrete onto his boots and feet and suffered chemical burns, which resulted in scarring. He brought suit against the county for negligence, arguing that immunity was removed under the GTLA. The trial court granted defendant county’s motion to dismiss, and the Court of Appeals affirmed.

Tenn. Code Ann. § 41-2-123(d)(2) states that, except in very specific circumstances, government entities shall not “be liable to any prisoner or prisoner’s family for death or injuries received while on a work detail, other than for medical treatment for the injury during the period of the prisoner’s confinement.” Plaintiff argued that this section was limited to prisoners described in another part of the statute, a group into which he did not fall, but the Court of Appeals disagreed.

September 24, 2018

Court Requires Production of Pre-suit Expert Statement Supporting Certificate of Good Faith

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

When a defendant files a motion “requesting the court to compel the plaintiff or his counsel to provide the court with a copy of the expert’s signed written statement that was relied upon in executing the certificate of good faith” pursuant to Tenn. Code Ann. Section 29-26-122 of the HCLA, that motion does not have to be raised as part of a motion for summary judgment or motion for discretionary costs.

In Jones v. Hargreaves, No. M2017-01271-COA-R3-CV (Tenn. Ct. App. July 23, 2018), plaintiff filed an HCLA complaint accompanied by a certificate of good faith signed by his counsel. Defendant doctor filed a motion for summary judgment, supported by his own affidavit. Plaintiff never responded to the motion for summary judgment, and plaintiff’s counsel moved to withdraw before the hearing. The motion was eventually granted, with plaintiff never filing a response.

After summary judgment, defendant “filed a motion pursuant to section 29-26-122(d)(2) to compel [plaintiff] to produce the expert’s signed written statement relied upon in executing the certificate of good faith filed with the complaint and requesting the court to determine if [plaintiff’s] attorneys complied with [the statute] in executing and filing the certificate of good faith.” Plaintiff’s former counsel responded to this motion, asserting that he did comply with the statute but that he “decided not to pursue the case due to the lack of a permanent injury and the expense of pursuing this matter with lack of significant damages.”

September 21, 2018

Nuisance and Trespass Claims Dismissed

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

Where a pipe could be altered but the expense to do so would be “considerable” and there were no indications that any alterations were intended, a nuisance claim based on the pipe was considered to be a permanent nuisance, meaning that the statute of limitations was three years “from the time of the creation of the nuisance.” In addition, where a trespass claim involved complicated questions regarding water runoff and flow patterns and plaintiffs did not have a competent expert witness to testify as to causation, summary judgment for the defendant was appropriate.

In Ray v. Neff, No. M2016-02217-COA-R3-CV (Tenn. Ct. App. July 20, 2018), plaintiffs filed a claim for nuisance and trespass related to their adjacent neighbors’ installation of a pipe on their property. Plaintiffs claimed that the pipe was first placed in 2008, and that after extensive flooding in 2010, “changes to the pipe…modified the course of a creek” and caused water to flow directly towards their home, causing property damage.

September 20, 2018

Denial of Motion to Revise (Alter or Amend) Reversed

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

Where plaintiffs had attempted to communicate with a second expert and eventually obtained an affidavit from him, the Court of Appeals ruled that the trial court should have granted plaintiffs’ motion to alter or amend.

In Harmon v. Hickman Community Healthcare Services, Inc., No. M2016-02374-COA-R3-CV (Tenn. Ct. App. June 29, 2018), plaintiffs filed an HCLA claim after decedent died shortly after being incarcerated at the Hickman County jail. Decedent was arrested at a traffic stop and found to be in possession of drugs. She “started experiencing symptoms of narcotic withdrawals” and requested medical treatment. She was treated at the jail by Nurse Cloud, was later found unresponsive in her cell, and died the next day. Nurse Cloud was an employee of defendant, and the jail had a contract with defendant for medical care.

Both plaintiffs and defendant filed motions for summary judgment in this case. The trial court ultimately granted defendant’s motion for summary judgment based on plaintiffs’ inability to prove causation. The trial court ruled that the expert relied upon by plaintiff was not competent to give causation testimony under Tennessee law, and that there was thus no genuine issue of material fact. One month after this ruling, plaintiffs submitted a Motion to Revise (which the trial court and Court of Appeals determined was actually a Rule 59 Motion to Alter or Amend), supported by declarations from a new expert witness. The trial court denied the motion, but the Court of Appeals reversed this ruling.

September 19, 2018

Final Order of Dismissal Cannot Be Re-Litigated in Second Suit

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

Failure to comply with HCLA pre-suit notice requirements will not be excused due to local practice, and a final order dismissing defendants from a suit that is not appealed cannot later be revised by the trial court through a decision in a second suit.

In Smith v. Wellmont Health System, No. E2017-00850-COA-R9-CV (Tenn. Ct. App. July 9, 2018), plaintiff filed an HCLA claim against several defendants, all of whom filed motions to dismiss based on an inadequate HIPAA authorization in the pre-suit notice. The trial court granted three defendants’ joint motion to dismiss and entered a dismissal order, from which plaintiff did not appeal. Before the motions from the other defendants were decided, plaintiff voluntarily nonsuited those claims.

Plaintiff subsequently sent a second pre-suit notice to all original defendants and filed a second suit naming all of them, including the three dismissed from the original suit. All defendants filed motions to dismiss in this case as well, and the trial court denied them all. It ruled that its first dismissal order was incorrect because “plaintiff’s first complaint was not time-barred because…plaintiff provided proper pre-suit notice.” This interlocutory appeal followed.

The issues in this case were identical to those in Roberts v. Wellmont Health System, No. 2017-00845-COA-R9-CV (Tenn. Ct. App. July 5, 2018), a decision that came out just four days before this one. In both cases, plaintiff provided a HIPAA authorization that left blanks for which parties could disclose protected health information, to whom disclosures could be made, and the expiration date. Here, the Court noted that plaintiff expressly stated in a letter accompanying the HIPAA form that defendants “could use the authorizations to get the records of the other Defendants and he invited them to contact him if they had any questions.” In this case, like in Roberts, the plaintiff and trial court relied on the fact that providing blank forms was the local practice to deem the forms sufficient.