Day on Torts

January 16, 2017

Pro Se Plaintiff Allowed to Proceed with Part of Claim Against Chiropractor

In Lacy v. Mitchell, No. M2016-00677-COA-R3-CV (Tenn. Ct. App. Nov. 30, 2016), the trial court dismissed plaintiff’s case, finding that her claim fell under the Health Care Liability Act and that she uncontestedly failed to follow the HCLA’s pre-suit notice and certificate of good faith requirements. Interestingly, however, the Court of Appeals overturned a portion of the dismissal, finding that there was at least a chance that one of plaintiff’s claims fell outside the ambit of the HCLA.

In February 2015, plaintiff visited a chiropractor for treatment on her back. As the basis for this action, plaintiff alleged that during the visit the defendant chiropractor “jumped two times on [plaintiff’s] back” while she was lying on the treatment table, and that “as he walked out the door [the chiropractor] beat Plaintiff…in the back with her medical folder.”

Plaintiff filed this case pro se against both the chiropractor and the clinic in which he practiced, and the defendants moved for summary judgment based on plaintiff’s failure to give pre-suit notice and file a certificate of good faith under the HCLA. Plaintiff argued that she need not follow these procedural requirements “because her claims were for ‘beating and assault,’ rather than health care liability.” The trial court, however, granted defendant’s motion and dismissed the case in total.

January 15, 2017

Employer Had No Duty to Prevent Employee From Leaving Store in His Own Car

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

In Thompson v. Best Buy Stores, L.P., No. E2015-02304-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2016), the Tennessee Court of Appeals affirmed a ruling that an employer had no duty to prevent an employee from leaving the premises in his own car.

Plaintiff was an employee at a Best Buy store (“defendant”). Before work one day, plaintiff received a package in the mail containing “a chemical cousin of valium,” which he had ordered off the internet. Plaintiff testified that he took three drops of the substance before reporting to work that day, and that “he remembers clocking in, but after that, he has no memory of anything else that happened that day.”

During work, one of plaintiff’s co-workers told the assistant sales manager on duty that “plaintiff was acting slow, tired and not very responsive.” The manager made the decision that plaintiff should not operate a piece of heavy machinery in the store warehouse, and he eventually told plaintiff to clock out and end his shift early. The manager noted at trial that no one at the store mentioned or suspected that plaintiff was on any drugs. He also stated that he did not tell plaintiff he had to go home or leave the premises, but simply to clock out. After plaintiff clocked out, he apparently got into his car to head home and was in a car accident, wherein his car hit a median wall then bounced into a pickup truck, totaling both vehicles.

January 14, 2017

Article Shows Misinformation About Malpractice Litigation

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

An article in Becker’s Hospital Review demonstrates the need for careful review of any article that purports to give information about medical malpractice (which Tennessee now calls “health care liability”) lawsuits.

The article purports to list the number of filings per state per 100,000 residents and ranks Tennesseans as the 5th highest filers of malpractice lawsuits – at the rate of 33 per 100,000 people. That would mean that Tennesseans file about 2145 such lawsuits per year (we have a little over 6,500,000 people living here).

But that number is wrong. Information compiled by Tennessee’s Administrative Office of the Courts demonstrates that there were 374 medical malpractice suits filed in 2013-2014 and 356 suits filed in 2014-2015. (Data is kept on a July 1 – June 30 fiscal year; 2015-2016 data is not yet publicly available). My guess is that the number of suits filed in all of 2015 was down from what it was in fiscal year 2014-2015, but even assuming that it was the same (356), the rate of filed suits was less than 5.5 per 100,000. That simply didn’t happen.

January 8, 2017

Blank HIPAA Form Deemed Non-Compliant by Tennessee Court

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

In J.A.C. v. Methodist Healthcare Memphis Hospitals, No. W2016-00024-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2016), a plaintiff lost her chance to pursue her Tennessee medical malpractice claim due to an insufficient HIPAA release form.

Plaintiff was forty weeks pregnant when she went to the defendant hospital with lower back and abdominal pain on January 23, 2012, and she was found to have elevated blood pressure. Plaintiff was nonetheless discharged. She had her baby the next day, January 24, 2012, and a placental abruption was noted. The baby, a girl, allegedly “sustained severe brain damage that would not have occurred but for the Providers’ actions in failing to properly treat [plaintiff].”

Plaintiff filed this action on May 1, 2015, purportedly on behalf of both herself and her daughter. Plaintiff alleged that she followed the pre-suit notice requirements of the HCLA, but defendants moved to dismiss the case based on an insufficient HIPAA form. Defendants argued that, because the HIPAA form was insufficient to fulfill the statutory requirements, plaintiff was not entitled to the 120-day extension provided by the HCLA, and that her suit was thus filed outside the three-year statute of repose.

December 22, 2016

Open and Obvious Danger Not Automatic Bar to Fall-Down Claim

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

In Matherne v. West, No. E2015-02061-COA-R3-CV (Tenn. Ct. App. Oct. 28, 2016), the Tennessee Court of Appeals overturned summary judgment in a premises liability case notwithstanding a claimed “open and obvious” danger.

Plaintiff’s family was renting a cabin in the mountains from defendants. The pictures online showed that the cabin had two parking spaces, one being elevated several feet along a slope from the other. A safety rail went around a portion of the upper parking space but did not cover the entire drop-off area. On plaintiff’s second day at the cabin, she was stepping out of her vehicle after buckling her daughter into a the car when her first foot landed on the concrete but her second foot did not, causing her to fall onto the lower parking area and injure her arm.

Plaintiff filed suit, and defendants moved for summary judgment, which the trial court granted. In its findings of fact, the trial court noted that plaintiff had seen the two separate parking levels and knew about them; that she saw that the rail covered only a portion of the upper space; that she had told the children in her family not to play on the upper parking space, as they could fall and be injured, and had asked her husband to park on that space to prevent the children from playing there; that it was light when she fell; that nothing prevented her from having someone back the car off the parking space before entering it; that the parked car was approximately three to three and a half feet from the edge of the drop-off; and that there was sufficient room for her to get into and out of the car without falling. The trial court concluded that “plaintiff had absolute and actual knowledge of the potentially dangerous condition,” that the condition was “open and obvious,” and that plaintiff “was at least 50% at fault for her fall and any injuries allegedly sustained therefrom.”

On appeal, the Court overturned the trial court, reversing the grant of summary judgment. The Court quoted extensively from several Supreme Court decisions, noting that “an owner…of premises has a duty to exercise reasonable care with regard to…business invitees on the premises,” and that a Supreme Court decision “held that a duty may exist even where the injury-causing condition is alleged to be ‘open and obvious’ to the plaintiff.” (quoting Rice v. Sabir, 979 S.W.2d 305 (Tenn. 1998)). In Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998), the Supreme Court stated:

December 14, 2016

Rental Car Driven by Renter Considered an Uninsured Motor Vehicle

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

In Martin v. Powers, No. M2014-00647-SC-R11-CV (Tenn. Oct. 24, 2016), the Tennessee Supreme Court analyzed the issue of whether a rental car being driven by a renter qualified as an “uninsured motor vehicle” under the plaintiff’s car insurance policy.

Plaintiff owned a bar, and he refused to serve alcohol to the defendant. When plaintiff followed defendant out to the parking lot, defendant got into a rental car that he had rented from Enterprise and intentionally drove into plaintiff, causing a knee injury.

During the course of the litigation, plaintiff “served [his insurance] with a copy of the summons and complaint for the purpose of bringing a claim under his uninsured motorist coverage.” The insurance company argued that Enterprise was a self-insurer under certain Tennessee statutes, and that the accident thus “did not arise out of the ownership or use of an uninsured vehicle.” The trial court granted the insurance company’s motion for summary judgment, but the Supreme Court reversed.

December 12, 2016

Issue Concerning Naming Proper Defendant in Complaint

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

In Robinson v. Robbins, No. W2016-00381-COA-R3-CV (Tenn. Ct. App. Oct. 19, 2016), the Court of Appeals addressed an issue regarding whether the savings statute applied when the defendant argued that the party in the second suit was different from the party named in the first suit.

This was an HCLA case, and plaintiffs first filed suit pro se. Their first complaint named the defendant as “Edward Todd Robins, MD, PC.” Within the body of the complaint, however, defendant was described in his individual capacity. When filing his answer, defendant included the language: “Comes now, Dr. E. Todd Robbins, P.C. as proper party for the above named Edward Todd Robbins, M.D., P.C…” Later in the suit, plaintiffs retained an attorney, who at some point in the first suit filed a motion “to clarify their intent to seek recovery from Defendant as an individual.” The trial court orally denied this motion, but “advised Plaintiffs that it would reconsider its ruling if they provided authority in support of their argument.” Before the order denying the motion was entered, plaintiffs took a voluntary dismissal of the first suit.

After giving proper pre-suit notice, plaintiffs filed their second suit, wherein they named “Edward Todd Robbins, M.D.” as defendant. Defendant moved to dismiss based on the statute of limitations, arguing that the first suit was filed against him in his corporate capacity and that the savings statute thus did not apply to a suit filed against him in his individual capacity, as the parties were not identical. The trial court agreed and dismissed the suit, but this dismissal was reversed on appeal.

December 6, 2016

Security Guards and the Independent Contractor Rule

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

In Estate of Cunningham v. Epstein Enterprises LLC, No. W2015-00498-COA-R3-CV (Tenn. Ct. App. June 30, 2016), the Court of Appeals affirmed summary judgment in a premises liability case where an armed security guard was shot and killed while on duty at an apartment complex.

The guard worked for a security company, and the company contracted with the apartment. The contract between the two entities provided that the security company was making “no representations that the security requested is reasonably adequate for the Client’s purpose,” and that the apartment was “relying upon its own knowledge and investigation as to the number and type of security personnel required.” On the night in question, the armed guard was on duty when “criminals, apparently fleeing from a nearby apartment complex, shot and killed [him].”

The guard’s wife filed a premises liability suit against the apartment, and the defendant apartment filed a motion for summary judgment. Defendant argued that “they did not owe a duty of care to [the guard] because the risk by which he was fatally injured was inherent in the performance of his duties as a security guard.” Defendant filed a statement of undisputed, material facts, to which plaintiff did not respond. Instead, plaintiff filed a memorandum stating that she did not dispute the facts and arguing that the apartment “owed [the guard] a duty as an employee of an independent contractor working within the bounds of an invitation to perform work,” and that because the criminal acts here were foreseeable, the apartment “owed a duty to protect [the guard] from such acts.” The trial court granted summary judgment to defendant, holding that the apartment had “no duty to [the guard] to protect him from a risk inherent in the task which he was hired to perform,” and the Court of Appeals affirmed.

December 3, 2016

Statute of Limitations Bars Legal Malpractice Claim

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

In Athena of S.C., LLC v. Macri, No. E2016-00224-COA-R3-CV (Tenn. Ct. App. Oct. 14, 2016), the Court of Appeals affirmed the dismissal of a Tennessee legal malpractice claim on the basis that the claim was barred by the one-year statute of limitations.

In the underlying matter, plaintiffs had purchased promissory notes from an individual and a business, and defendant attorney represented the sellers of the notes during the transaction. Thereafter, plaintiffs hired the same attorney to help them collect on the notes they purchased. Defendant attorney drafted two complaints and two agreed judgments against the debtors on the notes, which were entered in circuit court in November 2011. During the same time period, the debtor on the notes was involved in litigation in federal court, where his former business partner had sued him.

In May 2012, plaintiffs published a notice of foreclosure for condominiums that secured the notes, but the former business partner filed a motion in federal court to enjoin the sale. Finding that the transfer of the notes was likely fraudulent, the district court entered an order in May 2012 enjoining the sale. In July 2012, plaintiffs published a notice of foreclosure for lots that secured the note, and the same scenario played out, with the federal court enjoining the sale in August 2012.

December 2, 2016

Notice and HIPAA Form Also Required for Re-Filed HCLA Claim

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

Tennessee Courts continue to make it clear that each time you re-file a previously dismissed Tennessee medical malpractice (now health care liability) claim, you must abide by the statutory requirements. In Cright v. Overly, No. E2015-01215-COA-R3-CV (Tenn. Ct. App. Oct. 17, 2016), the Court of Appeals addressed the need for a plaintiff who was re-filing a previously nonsuited complaint to attach a new HIPAA-compliant release to the second pre-suit notice letter, determining that her failure to do so meant the complaint should be dismissed.

Plaintiff sued multiple defendants related to the treatment and death of her husband. In August 2009, before filing the first suit, plaintiff sent pre-suit notices with a HIPAA-compliant medical authorization to each of the defendants. This action proceeded through discovery and eventually made it to trial, but three days into trial plaintiff moved for a voluntary dismissal.

After the dismissal, plaintiff sent pre-suit notices to the defendants again, but this time she did not include a HIPAA release. Instead, the letter stated: “Medical records of the entire UT Hospital admission at issue have been previously provided to you, as well as any other records you wished to obtain pursuant to an Agreed RAS Order entered in the [original suit].” When plaintiff filed her second complaint, defendants all filed motions to dismiss based on plaintiff’s failure to include a HIPAA-compliant release with her pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121. Plaintiff’s attorney asserted that a HIPAA release “was not attached, because the parties had previously entered an agreed order that the RAS service and record ordering procedure was to be the exclusive means for obtaining the deceased’s medical records, to the exclusion of any medical authorizations previously provided.” The trial court, however, granted the motions to dismiss, and the Court of Appeals affirmed.