Upcoming Civil Case Arguments at the Tennessee Supreme Court

The Tennessee Supreme Court will hear two health care liability disputes among four cases scheduled for oral arguments March 4, 2015 in Jackson, Tennessee, one of which will address an interesting civil procedure question.

The first case concerns the procedures required when filing a health care liability lawsuit. At the time the suit was filed, state law required a plaintiff to file a certificate within 90 days of the initiation of a lawsuit, confirming that the plaintiff has consulted with medical experts before filing the suit and stating whether the plaintiff's lawyer has ever been in violation of the law requiring the certificate. In this case from Dyer County, the attorney, who had never violated the statute, filed the required certificate but did not state that he had zero prior violations of the statute. The defendants sought dismissal of the case based on that omission. The plaintiffs sought to dismiss the case with the option to refile it.

The trial court allowed the dismissal and the defendants appealed. The Supreme Court will consider whether the failure to indicate zero prior violations of the law constitutes a failure to comply with the law requiring the good faith certificate.  The case is Timothy Davis v. Michael Ibach, M.D. and Martinson Ansah, M.D. 

In the second health care liability case, the Supreme Court will consider whether to change the standard for granting and denying motions for summary judgment. Summary judgment is a decision by a trial court before the case is heard, based on a determination that there is no material dispute about the case’s facts.

In this case, a couple sued a Memphis health care center for failing to provide treatment during the mother’s pregnancy that, while not injuring the mother or harming her unborn child, could lead to complications in future pregnancies. The Court will determine whether the trial court properly granted the defendant’s summary judgment on some of the issues in the case. Michelle Rye  v. Women’s Care Center of Memphis, MPLLC.  

Court of Appeals Rules that 120-Day Extension Applies to HCLA Cases Filed under Saving Statute.

         The interplay between the saving statute and the 120-day extension provided by the HCLA in Tenn. Code Ann. § 29-26-121(c) continues to be a hotly litigated topic, with the Tennessee Court of Appeals adding another opinion to the mix this week. In 2013, the Supreme Court held that transitional plaintiffs (those whose initial suits were filed before the pre-suit notice requirement was enacted but who nonsuited and re-filed after the pre-suit notice requirement went into effect), who were required to give pre-suit notice before re-filing their lawsuit, were entitled to the 120-day extension even though they were filing their second suit pursuant to the saving statute instead of the traditional statute of limitation. Rajvongs v. Wright, 432 S.W.3d 808 (Tenn. 2013). Then just a month ago, the Supreme Court held that the HCLA “requires that plaintiffs provide pre-suit notice to prospective health care defendants each time a complaint is filed,” meaning that a plaintiff who gives proper notice, nonsuits, then re-files must give a second notice before the re-filing of the claims, even if the claims are identical. Foster v. Chiles, 2015 WL 343872 (Tenn. Jan. 27, 2015). Now, in Tinnel v. East Tenn. Ear, Nose, and Throat Specialists, P.C., No. E2014-00906-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2015), the Court of Appeals has interpreted these prior cases to find that a plaintiff who nonsuits an HCLA case and then gives proper notice and re-files is entitled to the 120-day extension on the re-filed complaint.

            In Tinnel, plaintiff suffered an injury during an outpatient procedure resulting in blindness in one eye. The procedure was performed on February 3, 2009. Plaintiff gave proper pre-suit notice on May 19, 2009, then filed suit on February 3, 2010. On December 14, 2010, plaintiff voluntarily dismissed the first lawsuit. Subsequently, on October 18, 2011 and within one year of the nonsuit, plaintiff provided a second set of pre-suit notices to defendants. Plaintiff filed her second suit on April 3, 2012, which was more than a year from the date of her previous nonsuit but within the time that would be included if the 120-day extension were applied. Defendant moved for summary judgment on the basis that the second suit was not timely.

            Plaintiff argued that the reasoning the Supreme Court used in Rajvongs should not be confined to transitional plaintiffs and should apply to provide her with the 120-day extension. Moreover, she asserted that since her first suit was filed within the traditional one-year statute of limitation, she had not yet utilized the 120-day extension. Defendants asserted that the Rajvongs holding should be limited only to transitional plaintiffs and that plaintiff automatically received the 120-day extension on her first suit, whether she used it or not, and was therefore not entitled to another extension. The trial court dismissed the case, and plaintiff appealed.

            In its analysis, the Court quoted lengthily from both Rajvongs and Foster, emphasizing that in Foster the Supreme Court made it clear that plaintiffs who utilize a nonsuit must give a second notice before re-filing the same complaint and that in Rajvongs the same court stated that they were “unable to conclude that the General Assembly would require transitional plaintiffs to provide pre-suit notice before refiling under the saving statute and yet deprive such plaintiffs of the 120-day extension.” Rajvongs, 432 S.W.3d at 814. The Court of Appeals thus held:

             Like the Supreme Court in Rajvongs, we are unable to conclude that the General Assembly would require plaintiffs to provide pre-suit notice before refiling under the saving statute and yet deprive them of the 120-day extension. …We hold that Plaintiff was entitled to the 120-day extension provided for in section 29-26-121(c) because she provided Defendants with pre-suit notice that she intended to recommence her action. In so holding, we reject Defendants’ argument that Plaintiff was only entitled to the use of one extension. Plaintiff’s re-filed complaint was a new and independent action.

              Accordingly, the Court removed the “transitional plaintiff” limitation from the Rajvongs ruling and held that the 120-day extension applies to all HCLA plaintiffs re-filing under the saving statute, whether they have previously used such an extension or not, so long as pre-suit notice is provided.

            The Court of Appeals reached the sensible result in this case. If plaintiffs are required to give pre-suit notice before re-filing a complaint identical to one that was previously nonsuited, then they should also be given the benefits that come along with such notice. Otherwise, the defendant receives the procedural benefit of notice (and the corresponding challenges that often come regarding the sufficiency of such notice), yet the plaintiff loses the benefit statutorily tied to this additional requirement. Since current case law requires a pre-suit notice for each filing, an extension should also accompany each pre-suit notice.

            Should defendant decide to appeal, it will be interesting to see whether the Supreme Court decides to take this case. The tone of this opinion seems a bit reactive—a panel of the Court of Appeals held in the recently decided Foster case that an original notice was sufficient for any subsequently filed complaints, but then the Supreme Court reversed that holding. The Court of Appeals in the present matter specifically points out this disagreement and then uses language pulled from Foster to find that if a pre-suit notice is required, then plaintiffs should at least gain the benefit of the 120-day extension. This is definitely an area of HCLA interpretation that is important for practitioners to watch, as it is unclear what the Supreme Court would hold regarding this issue.

Juror Interview in Vanderbilt Rape Trial Offers Good Practice Reminders

The Tennessean has a fascinating video interview of Todd Easter, one of the jurors in the Corey Batey and Brandon Vandenburg rape trial.    Juror feedback in any case gives trial lawyers helpful information about how to present information to a jury.  Mr. Easter’s interview yielded the following reminders:  

1.     Under Promise and Over Deliver --  In the Vanderbilt rape trial, one of the areas in which the lawyers over promised was the expected length of the trial.  The initial projection by the lawyers was 9 days.  Instead, the trial took 3 weeks.   Mr. Easter mentions this twice in his interview.  Since it sounds like both sides underestimated the time needed, the jurors were probably not mad at either side. But, if one side unilaterally makes a commitment on time (or evidence) and does not deliver, it could get ugly.  So,  Mr. Easter’s interview reminds us to be respectful of jurors time and under promise and over deliver.

2.     Digital Evidence is Hard to Overcome – If you are unfamiliar with the Vanderbilt rape case, the rape of the unconscious woman was videotaped and then shared with friends.  In addition, cameras in the dorms captured the defendants carrying the unconscious victim into the dorm and then later depositing her naked in the hallway.   Not surprisingly, the jurors found this evidence to be compelling and “impossible to refute”, which takes us to the next point.

3.     Develop Your Strategy Early and Be Consistent – At trial, the defendants claimed they were too drunk to know what they were doing.  According to Mr. Easter, the intoxication defense was introduced late into the trial.  And as such, most jurors found it especially hard to credit it.

4.     Your Client’s Presence Matters – In a criminal trial, the technical client of the prosecution is the State.  But, in reality, the client is often seen as the victim of the alleged crime.  In the Vanderbilt rape case, Mr. Easter noted the importance of the victim being at trial from “start to finish”.  And while she did not have to testify, the jurors were all struck by her bravery and her commitment to justice because she did. This same message carries over to a civil trial.  Jurors tend to believe and want to help people they like and who are committed to their case.   Help your client put their best foot forward by explaining the process, the issues, proper courtroom decorum, etc.

5.     Trying to Guess the Verdict Based on the Length of Deliberations Is Like Trying To Catch Smoke – If you have tried enough cases, you know this to be true.  We have all had cases where we thought deliberations would be short because we had killed the fly with a sledgehammer only to have the jurors take seemingly forever with their deliberations because of some technical point, etc.  In the Vanderbilt rape case, many expressed surprise over how quickly the jurors reached a verdict.   Mr. Easter explained the jurors had been hearing evidence for three weeks and that both sides had done a thorough job.  So by the time the jurors were released to deliberate, most of them were already pretty sure how they intended to vote.

Juror feedback can help a trial attorney better hone their skills.  Unfortunately, there are judges who prohibit contact with jurors, and those rules must be respected.  But, if you have try a case, and the judge allows you to contact jurors, I encourage you or someone on your behalf to do a short interview so that you can understand what you can do better, what you want to keep doing, and what you need to avoid in the future.


Punitive Damages Affirmed in Tennessee Fraud Case

            In Overton v. Westgate Resorts, LTD., L.P., No. E2014-00303-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2015), the Court of Appeals recently affirmed a punitive damage award in a fraud and misrepresentation case. Plaintiffs had traveled to Gatlinburg to look for and purchase a timeshare. Their primary concern was being able to accommodate their extended family for a trip the same week each December. While in downtown, they saw a Westgate booth and made arrangements to attend a presentation. According to plaintiffs, the presentation was “high pressure” and salespeople spent almost eight hours with plaintiffs on the relevant day. Plaintiffs found a unit that would fit their needs and decided to purchase the timeshare from Westgate.

            Plaintiffs asserted that their decision to purchase was based on assurances from the Westgate salespeople. Specifically, the Westgate representatives stated that plaintiffs would be able to retain the unit they looked at for the same week in December each year; that they would be able to book unlimited additional nights at any Westgate resort at a promotional price; that the two salespeople they worked with would refund part of their commission; and that the salespeople would purchase a foosball table to be kept at the resort for plaintiffs to use during their stays. The agreements regarding the commission and foosball table were put in writing, but the other two were not. Plaintiffs closed on the timeshare at 11:00 pm that night and were given copies of their closing documents and three CD-ROMs. The purchase price was just under $40,000.

            After closing, plaintiffs tried to confirm their December reservation, and after some unsuccessful attempts were informed that the booking would not be guaranteed for the unit they had looked at and that units were not assigned until a few days before arrival. After speaking to several customer service individuals, they also found out that they did not have the ability to book unlimited nights at other resorts as described during the presentation. Plaintiffs retained counsel, who realized that plaintiffs had not been given a current copy of the Westgate’s public offering statement, as required by the Tennessee Consumer Protection Act. Instead, plaintiffs had received an old version on CD-ROM which was extremely difficult to access and navigate. Plaintiffs sought to rescind the contract based on the TCPA, but Westgate refused. Plaintiffs then brought this action. 

            The trial court determined that Westgate had committed fraud, misrepresentation, and violations of the TCPA and Tennessee Time-share Act. The trial court awarded plaintiffs $600,000 in punitive damages, “finding the most significant factors to be Westgate’s financial position and the reprehensibility of its conduct.” Westgate appealed, and the Court of Appeals focused largely on the appropriateness of the punitive damage award in its opinion.

            The Court rather quickly affirmed that punitive damages were available in this case, as Westgate had engaged in intentional, fraudulent conduct and had willfully violated the TCPA. The Court moved on, then, to address Westgate’s argument that the punitive damages awarded were excessive. Westgate argued that because it was “approximately sixteen times the amount of the compensatory damage award,” the punitive damages were unconstitutionally disproportionate. The Court of Appeals, however, looked to the Hodges factors and BMW factors to affirm the appropriateness of the punitive award. Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992); BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). The Court noted that the trial court properly considered all Hodges factors, finding the first two factors regarding Westgate’s financial position and the reprehensibility of its conduct most important. The trial court found that it would take a large financial award to make Westgate “feel it,” and that Westgate’s actions had been “exceedingly reprehensible, due to the fact that Westgate made intentional misrepresentations to [plaintiffs], willfully violated the Tennessee Time-share Act, and refused to rescind the contract despite statutory provisions supporting such rescission.” The Court also pointed out that the trial court had considered the three factors outlined in BMW, one of which is the ratio between punitive damages and actual harm, which Westgate asserted was improper here. The Court of Appeals, however, determined that they did not find “the ratio of punitive damages to compensatory damages in this case to run afoul of due process concerns.” Accordingly, the Court held that “the punitive damages award of $600,000 was reasonable, based on applicable factors, and supported by a ratio within a constitutionally acceptable range.”

            After affirming the appropriateness of the award, however, the Court determined that punitives here were subject to the $500,000 cap in Tenn. Code Ann. § 29-39-104. This cap took effect on October 1, 2011, and though the timeshare purchase occurred before that date, the Court ruled that plaintiffs were not injured until Westgate refused to rescind the contract, which occurred in November 2011. Accordingly, the punitive damages here were reduced to $500,000.

            In what appeared to be a final effort to avoid this large penalty, defendants also tried to assert that a forum selection clause in the contract should have been enforced, forcing the litigation to occur in Florida. The Court summarily dismissed this argument, noting that “fraud in the underlying transaction renders a contract clause, such as the forum selection clause at issue here, unenforceable.”

            The Court of Appeals correctly affirmed the punitive damage award.   If punitive damages are constantly limited by strict numerical ratios, their usefulness and purpose will be undermined. Large companies with huge profits, such as the defendant here, would be extremely difficult to “punish,” as compensatory damages may be quite low in many cases. Where the conduct is highly reprehensible and the financial position of the defendant is great, trial courts need the ability to impose punitive damages that will actually have an affect on wrongdoers.

              This is the first case that has applied the punitive damages cap that became a part of our law in 2011.  The law about when a cause of action accrues in a fraud case, established to actually help protect a plaintiff's rights, harmed the plaintiff here because it triggered application of the cap.  I don't know enough about the underlying facts to know if I agree with this part of the Court of Appeals holding.

               That said, however, I am not sure why the appropriateness of the amount of the punitive damage award was analyzed under the common law factors given the decision that the tort reform act limited the punitive damages in the case.  True, the Court of Appeals cited that portion of the tort reform statute that says when punitive damages can be awarded and what factors may be considered but it then went on to analyze the statute looking at the common law factors articulated in Hodges.  To be sure, this a "no harm, no foul" result - the factors in the statute track the Hodges factors, but if the Court of Appeals was going to apply the tort reform statute to analyze a portion of the punitive damage award (whether the cap should apply) it seems that it would also be appropriate to analyze the entire award under the same statute.

                  Finally, one brief comment about the decision not to give Plaintiffs an award of attorney's fees on appeal.  The issue wasn't really discussed - the Court said that it was not addressing the issue given the size of the punitive damage award.  With all due respect to the Court of Appeals, I don't understand this point of view.  The Plaintiffs' lawyer, who probably had this case on a contingent fee, does not get paid additional money for writing a brief and arguing the case even though the appeal was largely successful?  If I had to guess, it took $30,000 - $50,000 in attorney time to handle this appeal.  The Plaintiffs' lawyer has to eat this time because he or she got a great result in the trial court affirmed on appeal?  That makes no sense to me.

                  Now, it is true that the fee agreement with the Plaintiffs may have called for an increased fee in the event of an appeal.  If so, the Plaintiffs' lawyer got paid the bargained-for amount of the work done of appeal, but it cost the Plaintiffs additional money - the cost of which should have been shifted to the defendants under the TCPA.  

                  All of which goes back to my ongoing rant about how our courts view issues about attorneys' fees.  The cost of running a law office is huge.  The cost of preparing and arguing an appeal - if one truly does what he or she is supposed to do - is significant.  These economic realities need to be taken into account when analyzing requests for fee awards under fee-shifiting statutes. 

Suing Vaccine Cynic Parents and Day Care Centers When a Child Contracts Measles

In case you have been living under a rock and have not heard, there are at least 121 confirmed cases of the measles traced from an outbreak at Disneyland in California in December.  The outbreak is significant for a number of reasons:

1.     Last year, the U.S. had a record number of measles cases since the virus was officially declared eliminated in 2000.

2.     Health officials including the Centers for Disease Control and Prevention are linking the current outbreak to non-vaccinated individuals;

3.     Parents who do not vaccinate their children typically do not do so for fear of side effects.

4.     Unvaccinated children pose a threat to others especially those who cannot be vaccinated because either they are not old enough (must be at least 1 year of age) or because their immune system is compromised due to serious illness such as cancer.

5.     Measles is highly contagious and can be fatal especially for children under 5 years of age.

Given these facts,  let’s set up a hypothetical.  You are a parent of an 8 month old baby who, because of its age, is unable to be inoculated against measles.  Your 8 month old goes to the same daycare as a 5 year old child who has not been vaccinated.   No medical issue prevents the 5 year old from being vaccinated.  Rather, the parents of the 5 year old choose not to inoculate their child out of a fear of possible side effects.  The 5 year old returns from a trip to Disneyland with his parents and unknowingly unleashes measles into the daycare.  (Symptoms of measles typically do not appear for 10 to 14 days after exposure to the virus).  Under these facts, can you and your child recover damages from the parents of the 5 year old if your 8 month old contracts measles?  Can you and your child recover damages from the daycare?

The answer is: it depends.  Certainly, there is precedent for holding an individual responsible for negligently spreading an infectious disease.  One of the most common situations involves herpes.  Typically, the herpes cases involve the infected individual failing to advise a new lover that they have herpes and then transmitting the disease to the new lover.  In the herpes cases, because the infected individual has knowledge of their condition, courts have found they have a duty to warn sexual partners in advance so that the partner can either consent to the risk or avoid or protect against the risk of transmission.

Something in the deep recesses of my mind tells me that there is also some case law from other states that address the communicable disease issue in the context of negligently transmitting tuberculosis. 

Back to our measles hypothetical.  Unlike the herpes cases in which the infected individual is aware that they have herpes because of prior open lesions, measles has an incubation period of 10 to 14 days after exposure.    And according to the Mayo Clinic, the communicable period is 4 days before any rash appears and ends when the rash has been present for four days.  So the 5 year old child could be symptom-free when her parents first return to her to daycare only to develop symptoms afterwards, which means the child could be spreading the disease before the parents would be on actual notice of a measles infection.

Courts would have declare that  that even without knowledge that your child has been infected with the measles, parents who choose not to vaccinate their children can be held liable if their unvaccinated child contracts the measles and passes the virus on to another child.  Or, in essence, that parents have a duty to vaccinate and, if they choose not to do so, they are responsible for any damages flowing from the decision.  A physician’s recent article summed up the  argument that would be made by the plaintiff's lawyer in arguing that a duty should be imposed:

Getting vaccinated involves an element of social responsibility.  The strength of our public health is reliant on a web of mutuality.  When we drive sober and at the speed limit, or when we ban smoking in public places, we are doing the basic but important work of keeping each other safe and healthy.  Vaccinations are an integral part of that process, and no one should have to suffer from preventable diseases.  As much as anti-vaxxers may think they are exercising their right to choose, they do not have the right to put others at risk.  (The full article can be read here.) 

Of course, if the parents sent the 5 year old to school knowing the child was infected with the measles, the duty issue because easier to resolve (although the parents would argue that not withstanding the foreseeability of harming others there was a legitimate public policy reason not to vaccinate their child and therefore a duty should not be imposed).

This brings us to causation.  It will be necessary to establish not only duty and breach of duty but also  cause in fact, i.e. the 5 year old in daycare with your 8 month old was the source of the infection.  (There is also the legal cause issue, but my guess is that issue will be resolved in the same way as the duty issue).  If there are no other reported cases in the State of Tennessee and you have not been traveling with your infant, then causation will be relatively easy to establish.  On the other hand, if there are multiple outbreaks in the State of Tennessee or if your child has been traveling with potential exposure from other sources, then causation is going to be trickier and more like the herpes victim who has had multiple sexual partners.

As for the daycare itself, state law requires child care facilities and schools through 12th grade to obtain proof of immunization, as specified by law, prior to enrollment.  Of course, the regulations provide for exemptions if a qualified medical provider finds that the vaccine is contraindicated for a child based on their medical condition or if the parent or guardian provides a sworn statement that the vaccination conflicts with their “religious tenets and practices”.   If the daycare or school admits a student who has been exempted, should the daycare be required to notify the parents of all other students that there is a child in the school who has not been properly vaccinated so that parents can assess the risk and take whatever action they feel is necessary to protect their child?   Or, even in the absence of that duty, the duty to warn other parents in the event that it learns that the non-immunized child has traveled to a location with an outbreak of measles?

Lastly, there is the issue of the ability to collect damages.  As for the daycare, presumably it has insurance coverage to cover the damages arising from improperly enrolling an unvaccinated child who later triggers a measles infection or failure to warn.  In addition, the parents of the 5 year old may have homeowner insurance which provides indemnity for this type of action that results in harm.  If there is no insurance coverage, it will, of course, be necessary to determine if the parents have any assets which might be used to pay for the damages caused by their acts and omissions.  

While it would be personally satisfying to sue for any and all measles infections caused by 'the decision of  irresponsible parents who choose not to vaccinate their child without an appropriate medical reason, the cases are just too complex for that to make sense in cases where the affected child is quickly cured. That said,  if the injuries are serious  or if death results, then a strong argument can be made fault should be squarely placed on the vaccine-cynic parents who unnecessarily endangered the health and welfare of others, especially young children.  Likewise, day care centers that refuse to follow state law or fail to warn other parents that an at-risk child is placing all children in the facility at risk should also be held responsible for their decision.  Know, however, that getting involved in such a fight, especially against the anti-vaccine parents, will likely involve the need to make new law on the duty issue.

Tennessee Law of Voir Dire

Attorneys for one of the defendants convicted of raping an unconscious student intends to file a motion for a mistrial based on juror misconduct. Specifically, the juror in question was a rape victim and allegedly failed to disclose that fact during voir dire questioning. Defense attorneys contend the juror was asked about past experiences with the criminal justice system as either a victim or defendant, and this juror failed to respond. Yet, an attorney for the juror has issued a statement there was not any misrepresentation. 

Of course, this situation is every trial lawyer’s nightmare, right? There are two possibilities here. First, as the defense contends, the juror concealed her past in the face of a question specifically posed to unveil such an issue. This scenario is a nightmare mostly for the prosecution as now they have a new issue to handle on appeal while trying to hold on to the guilty verdict.

The second possibility is the defense lawyers did not ask the right question to elicit the juror’s past as a rape victim. If this juror did not report the rape to the police, then it is unlikely she had any interaction with the criminal justice system as a victim. Since rape is thought to be one of the most underreported crimes with only about 16% of victims reporting, this scenario is more probable than possible. Needless to say, this is the defense lawyer’s worst nightmare because he failed to simply ask whether any prospective juror was a rape victim.  Instead, he asked a much more general question.

Voir dire is your chance to ferret out any jurors who might be predisposed or biased against your client’s case. One can hardly imagine a situation in which an alleged rapist would want a rape victim on his jury. But in order to uncover that juror, the questions must be concise, direct and specific and the juror must be honest.   So, we will wait and see how it came to pass that this juror was ultimately seated.

Of course, the same situation can arise in a civil case.   The Tennessee law on this subject in civil cases is addressed in Chapter 4 of my book, Tennessee Law of Civil Trial.


Tennessee Supreme Court Oral Arguments Scheduled

Here are the civil cases set for oral argument in Nashville on February 4 and 5, 2015:

  • The Chattanooga-Hamilton Co. Hospital Authority d/b/a Erlanger Health Systems v. United Healthcare Plan of the River Valley, Inc. d/b/a Americhoice and TN Attorney General - Erlanger Hospital in Chattanooga filed suit against Americhoice claiming that the TennCare-managed health plan did not pay in full for services rendered in its emergency room. Americhoice, which did not have a contract with the hospital, said they were only responsible for the rates specified in the TennCare regulations. The hospital's claims were dismissed by the trial court, but the Court of Appeals reversed. The Supreme Court will hear the appeal of Americhoice and the Tennessee Attorney General.
  • Action Chiropractic Clinic, LLC v. Prentice Delon Hyler & Erie Ins. Exchange- This case involves a patient of Action Chiropractic Clinic of Nashville who assigned his rights to an insurance settlement over to the clinic, which was treating him for injuries caused in an automobile accident. Erie Insurance Exchange did not honor the assignment. Action Chiropractic Clinic sued, but the trial court ruled for Erie. The Court of Appeals agreed. The Supreme Court will consider whether such assignment of insurance proceeds is allowed.
  • Richard Moreno v. City of Clarksville - Mr. Moreno filed a claim with the State Division of Claims Administration after a tree on state property fell on his car and injured him. The claim was then passed along to the Claims Commission and Mr. Moreno filed a complaint there. The state then alleged that the City of Clarksville was also to blame for the injury. When Mr. Moreno filed suit against the City of Clarksville, the city said the deadline for filing a complaint had passed. The trial court agreed, but the Court of Appeals said he had met the requirements by filing the original Claims Commission complaint on time. The Supreme Court will consider whether the requirements were indeed fulfilled.
  • In re Estate of Sarah Margaret Wilkins - This case from Robertson County considers whether a son who had a health care power of attorney for his mother was required to submit to arbitration before proceeding with a lawsuit against the nursing home for abuse and neglect of his mother. The trial court said the arbitration was required, but the Court of Appeals disagreed. The Supreme Court will determine if the son was authorized to execute an arbitration agreement on behalf of his mother.


Med-Mal Claims Under the GTLA - Limitation of Actions

          In 2011, the Tennessee legislature amended the Health Care Liability Act (“HCLA”) to add language regarding governmental entities to the chapter. Per the amendments, health care liability action now specifically includes “claims against the state or a political subdivision thereof,” and health care provider includes “those physicians and nurses employed by a governmental health facility.” Tenn. Code Ann. § 29-26-101. The Court of Appeals first found that this language meant that the 120-day extension of the statute of limitations applies to HCLA cases that fall under the Governmental Tort Liability Act in Harper v. Bradley County, No. E2014-00107-COA-R9-CV, 2014 WL 5487788 (Tenn. Ct. App. Oct. 30, 2014). Now the Court has come to that same conclusion in two additional opinions.

            Before the 2011 amendments took effect, the HCLA contained no reference to governmental entities. In Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), the Tennessee Supreme Court determined that the HCLA, as it existed prior to the 2011 amendments, did not “evince an express legislative intent to extend the statute of limitations in GTLA cases.” Accordingly, a plaintiff bringing an HCLA claim against a governmental entity was still constricted by the one-year statute of limitations and unable to take advantage of the 120-day extension granted to plaintiffs who give proper pre-suit notice.

            Although the Supreme Court has not addressed the interplay of the GTLA and HCLA since the 2011 amendments took effect, the Court of Appeals has now found in three cases that, pursuant to the new language, plaintiffs suing governmental entities under the HCLA are entitled to the 120-day extension so long as they provide proper pre-suit notice. After Harper, the Court reaffirmed its reasoning in Banks v. Bordeaux Long Term Care, 2014 WL 6872979 (Tenn. Ct. App. Dec. 4, 2014). Here, plaintiff sent pre-suit notice prior to the expiration of the one-year statute of limitations then filed suit within the subsequent 120-day window. The trial court dismissed plaintiff’s claim as untimely, but the Court of Appeals reversed. After citing the changes to the HCLA and the reasoning from Harper, the Court held that “Plaintiff’s pre-suit ‘notice’ to the governmental entities was sufficient in all respects; therefore, the GTLA statute of limitations was tolled for an additional 120 days.”

            Likewise, in Wade v. Jackson-Madison Cnty. Gen. Hosp. Dist., No. W2014-01103-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2015), the trial court dismissed plaintiff’s claims as untimely. Here, plaintiff was first admitted to the hospital on October 11, 2011, with several procedures and treatments following that date and a final surgery on December 1, 2011. In this particular case, the defendants asserted a new argument regarding why the 120-day extension should not apply to them. The definitions of health care liability action and health care provider were amended to include references to governmental entities effective October 1, 2011, before the cause of action in this case accrued. The remainder of the HCLA at that time, however, still used the term “medical malpractice,” including the section that granted the 120-day time extension. (The term “health care liability” was not added to § 29-26-121 until April 23, 2012.) The defendants in Wade argued that because the HCLA “did not use the term ‘health care liability action’ at the time of the allegedly negligent conduct in this case, the definition of ‘health care liability action’ in [§ 29-26-101(a)(1)] is wholly irrelevant to this case.” According to the defendants,  “the definition of a term cannot amend a statute unless the statute actually contains the term in the first place.”

            The Court rejected this argument in three ways. First, it stated that the terms “health care liability action” and “medical malpractice” are “synonymous and interchangeable,” such that the definition of one could be considered when interpreting the other. Second, the Court found that the legislature intended the 2011 amendments to have an effect on the HCLA, and that defendants’ argument would render the language change effect-less. Finally, the Court held that even if the language in the statute at the time was ambiguous, the “Tennessee Civil Justice Act evince[d] a legislative intent that ‘health care liability action’ be synonymous with medical malpractice.” Accordingly, the Court in Wade also found that the legislature intended that HCLA cases falling under the GTLA be subject to the 120-day extension and thus reversed the trial court’s dismissal of the case.

            These cases clearly reached the correct result. The 2011 amendments to the HCLA clearly show that the legislature intended for the HCLA time extension to override the GTLA’s one-year statute of limitations. Although the Supreme Court has not yet spoken on this issue, the Court of Appeals has shown that it will continue to decide this issue in favor of plaintiffs who take advantage of the time extension in such cases.  That said, until the TSC speaks, we cannot be assured that it will do what it should and thus practitioners should plan accordingly.

Pre-Suit Notice Required When Re-Filing Med Mal Complaint

          As Tennessee courts continue to decide new Health Care Liability Act (“HCLA”) cases, nuances of the law are beginning to be parsed out for practitioners’ guidance. The Tennessee Supreme Court recently took up such a nuance, determining that pre-suit notice must be given before the filing of each complaint under the HCLA.

            In Foster v. Chiles, No. E2012-01780-SC-R11-CV (Tenn. Jan. 27, 2015), plaintiffs filed an HCLA claim against multiple defendants on March 17, 2011, which was within the appropriate statute of limitations. In connection with this first complaint, plaintiffs gave proper pre-suit notice under Tenn. Code Ann. § 29-26-121(a). On May 6, 2011, plaintiffs voluntarily dismissed the case. On May 4, 2012, within the one-year savings statute, plaintiffs filed a new complaint asserting the same claims against the same defendants. This second complaint stated that the notice requirements had been met as shown by an attached affidavit, but nothing was attached. The plaintiffs, in fact, did not give pre-suit notice after dismissing their first complaint and before filing their second. Instead, they relied on the first notice given to comply with the HCLA.        

            Defendants moved to dismiss, asserting that the HCLA required plaintiffs to give notice each time a complaint was filed. The trial court agreed, dismissing plaintiffs’ second complaint with prejudice. The Court of Appeals, however, reversed, finding that the HCLA “required only that Defendants be notified once.” The Supreme Court then took up the issue on appeal.

            The Court pointed to the word “shall” used in § 29-26-121(a), as well as a quote from the bill’s co-sponsor saying the law was “designed to give people notice that there’s about to be a claim and to put everyone who might be involved on notice that a suit will shortly be filed.” The Court also examined the purpose of the pre-suit notice requirement, stating that it was intended to give timely notice, to “afford defendants the opportunity to investigate the merits of a claim and to pursue settlement negotiations before a suit is filed.” Because the plaintiffs here did not give pre-suit notice before filing their second complaint, the Court determined that the purpose of the statute was frustrated, as defendants “had no advance notice of the second suit, no chance to investigate the claim, and no opportunity to pursue settlement negotiations before the suit was filed.”

            Accordingly, the Court held that the HCLA “requires that plaintiffs provide pre-suit notice to prospective health care defendants each time a complaint is filed,” even in a case such as this where a previous complaint alleging the same claims against the same defendants had been properly noticed and filed. When plaintiffs fail to give this notice, the Court held that the proper sanction is dismissal without prejudice.

            Justice Wade filed a separate, dissenting opinion in this case, in which he sided with the Court of Appeals. He stressed that a voluntary nonsuit is not unusual and does not have any affect on the defendants’ prior notice of the claims. He stated that nothing in the HCLA requires more than one notice of the same claims, the HCLA does not provide for a notice lapsing or expiring upon a nonsuit, and that plaintiffs here had complied with the law.

            The dissenting opinion here seems to be the more reasonable approach. While the HCLA requires that pre-suit notice be given at sixty days before filing suit, it does not contain an outside limit on how long a proper pre-suit notice lasts. As Justice Wade noted, pre-suit notices do not statutorily expire. Despite the well-reasoned dissent, though, the law now requires plaintiff give defendants pre-suit notice before each complaint, even if the complaint filed is identical to one previously filed.  Therefore,  an attorney who takes a nonsuit with the intent to re-file in an HCLA case needs to make sure to calendar not just the savings statute deadline, but the resending of pre-suit notice as well.

             The purpose of the pre-suit notice law was to give potential defendants the opportunity to settle meritorious cases and narrow down the number of defendants in cases that were actually filed.  Instead, it is turned into a series of complicated hoops that one must jump through to be able to file suit - hoops that have nothing to do with the merits of the case.  

2015 Tennessee Tort Reform Compendium Available

The most recent version of my book, Compendium of Tort Reform Statutes and Related Case Law, 2008-2014, is now available.  

The book includes tort reform statutes enacted by the Tennessee General Assembly in the period indicated and reference to the appellate court decisions to-date that have interpreted those laws;

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