Day on Torts

March 31, 2017

Fitness Facility Had No Duty to Use AED on Injured Patron

In Wallis v. Brainerd Baptist Church, No. E2015-01827-SC-R11-CV (Tenn. Dec. 22, 2016), the Tennessee Supreme Court analyzed claims against the seller of an AED, and though the claims were framed in the context of the decedent being a third-party beneficiary of the contract between the seller and owner of the AED, the Court engaged in quite a bit of analysis surrounding the duties implicated by the sale and/or ownership of an AED.

In 2008, defendant church had purchased four AEDs from defendant ExtendLife, one of which one placed in a fitness facility owned and operated by the church. When the church purchased the machines, they also purchased the Physician Oversight Program Management System, which outlined certain services that ExtendLife would provide to the church. In addition, as part of the purchase, ExtendLife provided four complimentary training sessions for CPR, AED and Emergency Oxygen Administration certifications. The church utilized three of these four sessions, but the final session was cancelled due to low attendance.

More than two years later, in January 2011, plaintiff and her husband joined the church’s fitness facility. In August of that year, the husband took a cycling class and then collapsed. The class instructor attended to the husband, thinking he was suffering from a seizure, and she was eventually assisted by two off-duty police personnel who were at the facility. These men asked the instructor to retrieve the nearest AED, which she did, but the machine was not used on husband. An ambulance arrived shortly thereafter and transported husband to the hospital, where he died.

March 30, 2017

Tennessee Personal Injury and Wrongful Death Trial Statistics 2015-16

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

Tennessee’s personal injury and wrongful death jury trials and judgment amounts continue at historic lows.

In the fiscal year ending June 30, 2016, only 396 personal injury and wrongful death cases went to trial. Of those 396 trials, only 190 were jury trials – the rest (206) were non-jury trials. For the year earlier (2014-15) there were 367 trials, 183 of which were jury trials and the balance (187) were non-jury trials.

At first glance this shows that the number of jury trials actually increased in 2015-16 190 vs. 183), but it is important to note that the number of tort cases disposed of during 2015-16 actually went up over 10% (10,951 vs. 9695) so one would have expected an even larger increase in the number of jury trials. Only 3.5% of a case dispositions were resolved by a jury or non-jury trial – the other 96.5% of cases were settled or dismissed.

March 30, 2017

Tennessee Slip and Fall Case Fails Without Proof of Causation

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

In Lurks v. City of Newbern, Tennessee, No. W2016-01532-COA-R3-CV (Tenn. Ct. App. Jan. 26, 2017), the Court of Appeals reminded us once again that evidence of a fall is not enough to establish liability in a slip and fall premises liability case.

Here, plaintiff was walking on a city-owned and maintained sidewalk outside her home. She walked this sidewalk often, as she and her husband owned a vacant lot next to her home as well as a rental property on the same street. According to her testimony, she was aware that the sidewalk was in poor condition and had complained to the city. On this particular day, she fell on the sidewalk, sustaining an injury that eventually required knee surgery.

At trial, plaintiff testified that “she fell immediately, that she did not stumble and fall, and that she did not know what caused her to fall or whether her foot hit anything that caused her to fall.” As there were no witnesses to plaintiff’s fall, “there was no testimony at all by anyone regarding what caused [plaintiff] to fall.” The trial court ruled that the sidewalk was in fact defective, but that the case should be dismissed because “there was no proof as to the cause of [plaintiff’s] fall,” and the Court of Appeals affirmed.

March 29, 2017

HCLA (Medical Malpractice) Claim Dismissed – Notice Insufficient

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

A recent Court of Appeals opinion shows yet another case of a potentially valid health care liability claim failing because of plaintiff’s failure to follow the goofy yet mandatory procedural notice requirements of the HCLA statute.

In Piper v. Cumberland Medical Center, No. E2016-00532-COA-R3-CV (Tenn. Ct. App. Jan. 20, 2017), plaintiff wife sued after her husband died while under the care of defendant physicians and hospital. According to the allegations in the complaint, husband went to the hospital due to fatigue and was diagnosed with stage four kidney failure. Plaintiff asserted that ten days after her husband’s admission to the hospital, one of the defendant physicians told her that “it was a shame they couldn’t treat her husband due to his religious beliefs.” At this point, plaintiff discovered that her husband had incorrectly been identified as a Jehovah’s Witness. She corrected the information and gave consent to treat, but her husband died shortly thereafter. Plaintiff alleged that defendants provided negligent treatment and “were negligent because they incorrectly assumed that Decedent’s religious beliefs guaranteed that he would reject available life-saving treatment and because they failed to ask Decedent or [plaintiff] for permission to administer such treatment.”

March 28, 2017

Medical Malpractice Claims Declining

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

Numbers confirm what those of us who represent patients in Tennessee medical malpractice cases thought we knew: the number of claims paid in medical malpractice cases is declining.

Using data gather from the National Practioner Data Bank, JAMA Internal Medicine reports that the overall rate of claims paid on behalf of physicians deceased by 55.7% from 1992 to 2014. The mean compensation payment was $329, 565. The mean payment increased by 23.3%, from $286 ,751 in 1992-1996 to $353 ,473 in 2009-2014, a rate less than the increase in inflation (and far less than the rate of health care inflation, during the period.

Why did this happen? Here is my view:

March 28, 2017

Limit on Right of Surviving Spouse to Bring Wrongful Death Claim

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

While a surviving spouse typically has the superior right to bring a wrongful death suit, there are certain exceptions to that rule. In Nelson v. Myres, No. M2015-01857-COA-R3-CV (Tenn. Ct. App. Jan. 18, 2017), the Court held that a suit filed by the deceased’s daughter rather than her husband could proceed, as the husband was alleged to have at least partially caused her death.

Wife died in a multi-car accident while she was a passenger in a vehicle driven by her husband. In the accident, husband and a car driven by Mr. Bennett collided, then those two vehicles crossed into opposing traffic and hit two other vehicles. Both the husband and daughter of deceased wife filed wrongful death actions. The trial court dismissed daughter’s action, holding that her action “must yield to the claim of the surviving spouse.” The Court of Appeals reversed and reinstated daughter’s complaint.

In her complaint, daughter named husband as a defendant and alleged that husband was guilty of negligence and negligence per se because he was driving under the influence and was traveling at a high rate of speed, racing Mr. Bennett. In the suit filed by husband, Mr. Bennett was the only defendant named, and husband alleged that “Mr. Bennett’s actions were the sole cause of the accident and death of [wife].”

March 26, 2017

Contractual Waivers and Medical Expense Recovery by Minors

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

In Blackwell v. Sky High Sports Nashville Operations, LLC, No. M2016-00447-COA-R9-CV (Tenn. Ct. App. Jan. 9, 2017), the Court of Appeals addressed the issue of whether parents in Tennessee may “bind their minor children to pre-injury waivers of liability, releases, or indemnity agreements,” affirming the existing common law rule such agreements were not enforceable against a child when signed by a parent. The Court also discussed whether a minor had the right to seek recovery of medical expenses in a personal injury case.

Mother took her son to defendant trampoline park, and on their first visit mother was required to sign a “Customer Release of Liability and Assumption of Risk.” This form purported to waive liability for any injury on behalf of both mother and son, and it contained a choice of law provision naming California law as governing the agreement as well as a forum selection provision stating that litigation would be brought in California. The release stated that it would be effective until the son was eighteen. At a later visit, son was injured, and son and mother both brought this action against defendant trampoline park in the Davidson County Circuit Court.

Defendant filed a motion to enforce the contract in the trial court, arguing that the claims had been waived and that the case had to be brought in California and governed by California law. Mother voluntarily dismissed her claim against defendant, and the trial court subsequently denied defendant’s motion to enforce the contract. The trial court found that “neither the forum selection clause nor the choice of law provision were valid because their enforcement would cause a great hardship for Son to prosecute his action in California and, Tennessee, rather than California, has ‘a more significant relationship to the facts surrounding this case.’” The trial court also held that the liability waiver did not operate to waive son’s claims, as “such a contract is not permissible in Tennessee.” In a lengthy decision, the Court of Appeals ultimately affirmed all three of these holdings.

March 11, 2017

Longer Hours Ahead for Medical Residents

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

So now medical residents in hospitals will be able to work up to 28 hours in a shift.

I understand the arguments in favor of this proposal. Longer, and more traditional, hours allow more continuity of care and permits the residents to learn more. If this is true, why not make the limit 36 hours, allowing the young people to get 30% more education?

Because people need sleep to function, that is why. And while continuity of care is important (although most patient care in hospitals are caused by nurses, but they tend to work only 12 hour shifts), the earlier doctors learn about the ability to effectively communicate with other health care professionals the better, given the number of errors caused by failure to communicate.

March 7, 2017

One Year Statute of Limitations Bars Misrepresentation Claims

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

In Sakaan v. FedEx Corporation, Inc., No. W2016-00648-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2016), the Court of Appeals affirmed dismissal of a misrepresentation claim based on the statute of limitations.

Plaintiff had previously been employed by defendant FedEx, and had been presented with a severance package as part of a cost-cutting initiative by the company. Before signing the severance agreement, plaintiff asked about how it would affect his ability to work on FedEx projects that were staffed by third-party vendors, and he “allege[d] he was assured that his acceptance of the severance agreement would not prohibit him from working on FedEx projects sourced through a third-party vendor.” Plaintiff signed the agreement in March 2013, officially left his employment in November 2013, and was hired by a company that contracted with FedEx. In his role with this new company, he attended a meeting at FedEx on December 19, 2013. When members of the FedEx legal team recognized him, they had him removed from the premises, and “he has not worked on a FedEx project since that time.”

Plaintiff filed suit on April 21, 2015, making claims for intentional and negligent misrepresentation. After filing their answers, defendants moved for judgment on the pleadings based on the statute of limitations, which the trial court granted. The trial court determined that the one-year statute of limitations found in Tenn. Code Ann. § 28-3-104(a)(1) applied to this matter, and that the claims were thus time-barred. The Court of Appeals affirmed.

March 1, 2017

Plaintiff’s Verdict Affirmed in Head-On Crash Caused by Police

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

In Turner v. City of Memphis, No. W2015-02510-COA-R3-CV (Tenn. Ct. App. Dec. 20, 2016), the Court of Appeals affirmed a verdict for plaintiff following a Tennessee head-on car wreck between plaintiff and a police officer.

In December 2012, plaintiff and a Memphis police officer were traveling in opposite directions along the same road at just after midnight. The road had five lanes, two going in each direction and one turn lane. Plaintiff was driving south in the lane closest to the turn lane, while the officer was driving north in the outer lane. According to plaintiff, the officer “negligently and without warning crossed traffic and struck the vehicle being driven by [plaintiff] head on.” The accident caused plaintiff’s airbag to deploy and both drivers were knocked unconscious. Plaintiff was transported to the hospital by ambulance and was “subjected to a full trauma work-up, was given a neck brace because of whiplash, was given an I.V. for dehydration, and was administered considerable pain medication.” Plaintiff testified that he eventually was treated by a chiropractor and that the accident caused him pain that he had “never experienced before on that scale.” According to plaintiff, his injuries had improved, but they had “decreased his ability to engage in physical activities including cooking, cleaning, and getting his son to and from school, and he still suffered from frequent headaches, anxiety attacks, and unease of rest.”

Plaintiff brought this action against the city of Memphis under the GTLA for the officer’s alleged negligence in causing the accident. Plaintiff sought $300,000 in damages, including $28,421.18 in medical expenses.