Day on Torts

May 18, 2016

Refusal to Strike HCLA Expert Affirmed

In Bogle v. Nighthawk Radiology Services, LLC, No. M2014-01933-COA-R3-CV (Tenn. Ct. App. April 6, 2016), the dispositive issue was whether the trial court should have stricken defendant’s expert testimony in a health care liability case based on a somewhat confusing exchange between plaintiff’s counsel and the expert on cross-examination, wherein plaintiff argued that the expert admitted that he did not know the applicable standard of care. The Court of Appeals ultimately upheld the trial court’s decision to deny plaintiff’s motion to strike and affirmed the jury’s defense verdict.

The facts underlying this case dealt with the reading of a CT scan by defendant radiologist. Plaintiff’s wife, the decedent, had undergone the implantation of a dual-lead pacemaker, and after being discharged, returned to the hospital complaining of severe chest pains. A CT scan of her chest was taken by the hospital, and the images were transmitted electronically to NIghtHawk Radiology Services, one of the defendants in this case. Dr. Jones, a radiologist who was under contract at NightHawk, read the images and sent a report back to the hospital.

Though suit was brought against several parties, at the time of trial the only remaining defendants were Dr. Jones and NightHawk Radiology. Plaintiff’s theory of the case was that “the right ventricle lead of the pacemaker had perforated the wall of the right ventricle, and that this perforation was visible on the CT scan but was not noted or mentioned in the report of Dr. Jones and NightHawk Radiology.” Plaintiff asserted that the failure to report this perforation was a breach of the applicable standard of care. The defendants’ theory, on the other hand, was that while the pacemaker lead did appear to be in one layer of the heart, it did not appear to have perforated the pericardium. Dr. Jones testified that certain criteria had to be met in order for him to report a perforation, one of which was that the pericardium had to be perforated. Dr. Jones testified that he did not report a perforation here because that criterion was not met.

May 11, 2016

Summary Judgment Reversed in Legal Malpractice Case

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

In Roberts v. Ray, No. E2015-01522-COA-R3-CV (Tenn. Ct. App. April 13, 2016), the Court of Appeals reversed summary judgment on a legal malpractice claim, finding that there were genuine issues of material fact in the case.

Plaintiff’s attorney (now the defendant in a legal malpractice claim) drafted a prenuptial agreement for defendant husband and his estranged wife in 2006. Attorney used a standard form from 1993, and this was the first prenuptial agreement he had drafted. Husband, wife and plaintiff attorney were all in agreement that there had been no “full and fair disclosure” of husband’s assets before the agreement was signed. The agreement, however, did state that “[e]ach party acknowledges that he or she knows and understands the value of the property…”

During the divorce proceeding, wife sought to invalidate the prenuptial agreement. Evidence in the divorce case suggested that husband and wife had never really talked about the value of husband’s assets, that husband kept financial information in a cabinet to which wife had access, though she testified that she had not looked at it, and that both husband and wife thought that defendant attorney were representing them both during the drafting and signing of the prenuptial agreement. After a hearing, the trial court set aside the prenuptial agreement, and plaintiff husband eventually entered into a marital dissolution agreement with wife which included a financial settlement.

April 28, 2016

Filing Notice of Claim Triggers Waiver Provision

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

The Tennessee Court of Appeals has ruled that giving the State formal notice of a medical negligence (now “health care liability”) claim against an employee waives the right, if any, to assert that claim against that employee in state court based on the same acts or omissions.

In Sumner v. Campbell Clinic PC, No. W2015-00580-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2016), the dispositive issue was whether plaintiff had waived his medical battery claim against defendant doctor by virtue of his filing with the Tennessee Division of Claims Administration, with the Court of Appeals finding that the claim was waived and affirming dismissal of the case.

Plaintiff was admitted to Campbell Clinic on July 19, 2011 to receive treatment to his injured right leg. Part of this treatment included a bone graft surgery, with the bone graft to come from his hip. Before surgery, plaintiff and his family informed the doctors, including defendant, that plaintiff did not want the graft to come from his right hip as he had recently had a procedure there. During surgery, however, an incision was made in the right hip which caused plaintiff’s peritoneum and small bowel to lacerate, resulting in extensive health problems.

April 24, 2016

Public Duty Doctrine Gives Immunity to City When Suspect Stole Police Car

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

In Holt v. City of Fayetteville, No. M2014-02573-COA-R3-CV (Tenn. Ct. App. Mar. 15, 2016), the Court of Appeals affirmed dismissal of plaintiffs’ claims due to the city’s immunity under the public duty doctrine, a key limitation of the Tennessee Governmental Tort Liability Act.

According to plaintiffs, a police officer had arrested a suspect and placed her in a police car, yet failed to property restrain her. The suspect then stole the police car, drove “at a high rate of speed,” and collided with the car carrying plaintiffs, causing one person to die and three minors to be seriously injured. Plaintiffs brought suit against the city based on the negligence of the police officer in failing to properly restrain the suspect as she was taken into custody.

The city moved for dismissal, which the trial court granted, finding that “although the GTLA removed immunity for negligent acts of employees, Plaintiffs’ claims against the City were barred by the public duty doctrine.” The Court of Appeals affirmed this holding.

On appeal, the Court first looked to the GTLA. As a municipality, the city was entitled to immunity under the GTLA unless the situation fit into one of the enumerated exceptions in the statute. Plaintiffs argued that immunity was removed under Tenn. Code Ann. § 29-20-202, which “removes sovereign immunity ‘for injuries resulting from the negligent operation by any employee of a motor vehicle…while in the scope of employment.’” The Court rejected this argument, noting that plaintiffs in this case “only allege that Police Officer negligently restrained [suspect] after her arrest.” The Court concluded that they were “unable to create a claim of negligent operation of a motor vehicle solely from an allegation that Police Officer negligently restrained [suspect].”

April 21, 2016

Tennessee Savings Statute Fails to Preserve Claims Not Asserted in Original Filing

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

In State Farm Mutual Auto. Ins. Co. v. Blondin, No. M2014-01756-COA-R3-CV (Tenn. Ct. App. Mar. 14, 2016), the central issue was whether plaintiff had asserted its claim for personal injury damages in a timely fashion. State Farm was subrogated to its insured’s right to recovery following an accident between the insured and defendant’s daughter. The accident occurred on July 7, 2009, and State Farm filed a civil warrant in general sessions court on May 17, 2010. The warrant stated that State Farm brought the action “to recover damages to the property of plaintiff’s insured, Jenny R. Rone, caused by the negligence of the defendant. The date of loss was July 7, 2009. The amount of damages totaled $7,371.22…”

On July 15, 2010, more than one year after the accident, State Farm filed a motion to amend the warrant to say: “Suit to recover damages to the property and person of plaintiff’s insured…. The amount of damages totaled $24, 999.99…” The general sessions judge denied the motion to amend, writing on the motion that it was “denied as to personal injuries. Statute of limitations has expired.”

Following the denial of the motion to amend, State Farm filed a motion to remove the case to circuit court, which was also denied. State Farm then voluntarily dismissed the case without prejudice. State Farm refiled in general sessions court within the one-year allowed by the savings statute, but this time the warrant stated that it was “to recover damages to the person and/or property of plaintiff’s insured.” This warrant listed damages at $7,371.22. Defendant moved to dismiss this action based on timeliness, and the general sessions court dismissed the case. State Farm appealed to the circuit court and also filed an Amended Complaint seeking $44,124.57 in damages. Defendant again moved to dismiss, which was denied, and ultimately State Farm got a judgment for $20,575, which was reduced by 20% because the court found the insured to be 20% at fault. Defendant then appealed to the Court of Appeals, which ultimately dismissed the personal injury portion of State Farm’s claim.

April 14, 2016

Claims Against an Employer Can Proceed Even After Employer Admits Vicarious Liability

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

The Tennessee Court of Appeals recently considered an issue of first impression in Tennessee—whether a plaintiff who sues an employee and employer for negligence can proceed on direct negligence claims against the employer after the employer admits that they are vicariously liable for the employee’s negligence. After considering arguments both ways, the Court determined that in Tennessee, “an employer’s admission of vicarious liability does not bar a plaintiff from proceeding against the employer on independent claims of negligence.”

In Jones v. Windham, No. W2015-00973-COA-R10-CV (Tenn. Ct. App. Mar. 11, 2016), employee, acting within the scope of her employment with a local daycare, was transporting kids in a van when she struck a minor child. The child’s mother, plaintiff, brought an action for negligence against employee, and also asserted claims for negligence per se, negligent hiring, and negligent retention against employers, as well as a claim for punitive damages against all the defendants. In their answer, employers conceded that they were vicariously liable for any negligence attributed to employee. Accordingly, employers moved for summary judgment on the direct negligence claims against them, arguing that Tennessee should adopt a rule adopted by other states “under which a plaintiff would be prevented from proceeding on any direct negligence claim against an employer once vicarious liability has been admitted.” The trial court granted summary judgment as to all direct negligence claims against the employer, though it denied summary judgment on the punitive damages claim. This Rule 10 appeal followed.

April 10, 2016

Vehicle Photos Allowed into Evidence in Rear-End Collision Case.

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

In Garvin v. Malone, No. M2015-00856-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2016), plaintiffs sued defendant after defendant’s van ran into the rear of plaintiffs’ car. After a jury found for defendant, the issue on appeal was whether photographs showing damage to the vehicles should have been admitted since plaintiffs had not made a claim for property damage.

Defendant was traveling behind plaintiffs, a husband and wife, when a police car traveling in the opposite lane allegedly crossed into plaintiffs’ path. Plaintiff husband was driving and slammed on the brakes. Defendant hit her brakes as well, but “was unable to prevent her van from hitting the rear bumper of the [plaintiffs’] vehicle.” Plaintiffs brought a negligence claim seeking personal injury damages and loss of consortium–$825,000 for husband and $75,000 for wife.

During trial, plaintiff husband testified that he felt a “heavy impact,” and that the accident “impacted [him] heavily.” He admitted that he had no cuts or bruises, and that his body did not touch anything during the accident, but that he was “moved around in [his] vehicle.” Likewise, plaintiff wife testified: “I wasn’t thrown; I was just thrown forward…my body didn’t hit anything except to just react.” Defendant testified, however, that the accident was much less substantial, stating that she “tapped the passenger side rear bumper, about maybe an eight-inch mark, but didn’t see any paint off or anything.”

April 6, 2016

HCLA Statute of Limitations Issue A Jury Question

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

A recent appeal in a claim filed under the Health Care Liability Act (HCLA) turned on when the statute of limitations began to run and whether a doctor was an employee under the Governmental Tort Liability Act (GTLA).

In Rogers v. Blount Memorial Hospital, Inc., No. E2015-00136-COA-R3-CV (Tenn. Ct. App. Feb. 29, 2016), plaintiff arrived at the Blount Memorial Hospital’s (“Hospital”) emergency room on September 8, 2012. He was treated by Dr. Bhatti (“Doctor”), who diagnosed him with and began treating him for Guillain-Barre Syndrome (“GBS”). According to plaintiff, he later found out he never had GBS, but instead had a spinal abscess, and the delay in diagnosis and treatment of the abscess “resulted in permanent and irreplaceable spinal cord damage.”

Plaintiff sent pre-suit notice of this suit to the hospital on August 20, 2013, and to the doctor on October 7, 2013. The complaint was then filed on December 13, 2013. Both defendants filed motions for summary judgment, both of which were granted by the trial court for different reasons.

For the doctor, the trial court granted summary judgment based on the statute of limitations, finding that plaintiff “was aware of facts sufficient to place a reasonable person on inquiry notice that he had suffered an injury as a result of Dr. Bhatti’s alleged misdiagnosis” on September 13, 2012, or at least by October 5, 2012. According to the trial court, plaintiff’s pre-suit notice sent on October 7, 2013, was thus sent outside the statute of limitations. Plaintiff argued, though, that “he had no reason to suspect that the initial diagnosis of GBS was incorrect until he was informed by another medical practitioner in mid-October 2012 that he never had GBS.” Plaintiff asserted that although he had continuing symptoms and was told in the hospital that he would be treated for a spinal abscess, he thought the symptoms and abscess were consequences of the GBS and was never told otherwise.

April 5, 2016

2016 Day on Torts Book Supplement Available

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

Day on Torts: Leading Cases in Tennessee Tort Law is in its third edition, and now that edition is being supplemented with a 300+ page volume.

The 650+ page third edition of the book contains a ready reference to hundreds of leading Tennessee tort cases, organized by subject. The 2016 supplement adds eight new chapters, 91 new sections, and over 160 new cases. Some cases which I previously designated as “leading cases” have been supplanted by other, more recent decisions.

I compiled the cases for this book to give Tennessee tort lawyers and judges an easy way to find the leading case on any particular tort law subject, giving them a starting place for more in depth research.

March 31, 2016

Tennessee Recreational Use Statute Strikes Again

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

In a recent premises liability case, a Tennessee statute shielded the property owner from liability for a four-wheeler accident that occurred on his property. In McCaig v. Whitmore, No. W2015-00646-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2016), plaintiff and his family were attending a social gathering at defendant’s home, which consisted of around seven acres of land and a house. Defendant had ATVs, and took rides with plaintiff’s wife and son, giving them instructions about how to drive safely and what areas to avoid. Plaintiff “neither asked for nor received the same detailed instructions from [defendant].” While riding and following his wife, who was driving another ATV, plaintiff’s ATV flipped and landed on top of him, causing severe injuries.

Plaintiff filed a negligence suit, alleging that defendant was “liable to them for negligence as a result of failing to properly instruct [plaintiff] on how to operate the ATV and by failing to warn [plaintiff] of dangerous and concealed conditions on his property that were known to [defendant].” Defendant filed a motion for summary judgment, arguing that the Tennessee Recreational Use Statute (TRUS), Tenn. Code Ann. § 70-7-101 et. seq., barred recovery by plaintiff. The trial court granted summary judgment, finding that pursuant to the TRUS, defendant owed no duty to plaintiff, and the Court of Appeals affirmed.

Tenn. Code Ann. § 70-7-102 states:

(a) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as…off-road vehicle riding…and nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes, except as provided in § 70-7-104.