Court Torpedos 911-Related Negligence Claim

Under the Governmental Tort Liability Act (“GTLA”), governmental entities are immune from lawsuits that arise from the “exercise and discharge” of their functions. There are a very few, specific exceptions to the GTLA listed in the statute. Due to this statutory immunity, making a case for negligence against a government agency can be quite difficult.

In Estate of Quinn v. Henderson, No. E2013-02398-COA-R3-CV (Tenn. Ct. App. Nov. 13, 2014), plaintiff brought a wrongful death suit against both the Blount County fire department and the Blount County 911 center. The action arose out of an incident wherein the deceased’s boyfriend had set fire to her attached garage while the deceased was in the home. The deceased called 911, who then dispatched the fire department. Upon arriving at the scene, however, the fire department could not immediately act. Instead, they followed fire department protocol and waited for the domestic violence situation to be secured by the police before fighting the fire and entering the home. The deceased was removed from the home after it was secured, but died two days later from smoke inhalation.

The trial court granted summary judgment for 911 and the fire department based on the GTLA, finding that the entities “were engaged in planning functions, such that their actions were immune pursuant to the [GTLA].” The trial court further based its decision on the public duty doctrine and comparative fault. The appellate court affirmed, though it based its decision on different reasons. Instead of finding that the entities were engaged in planning functions, the Court of Appeals determined that both 911 and the fire department retained immunity because both negated essential elements of plaintiff’s claims.

Regarding the fire department, plaintiff claimed negligence because the first firefighter to arrive at the scene did not assist or rescue plaintiff, but instead waited for police to arrive, and that the response time (due to waiting for the scene to be secured) was unreasonable. The fire department presented evidence, however, that it acted appropriately and complied with the standard of care. Stating that “[t]he threshold question is whether immunity has been removed because the injury was caused by the negligent act or omission of a governmental employee acting within the scope of his or her employment,” the Court held that “[a]bsent a finding of negligence, governmental immunity still applies.” Accordingly, the Court found that the fire department did not breach its duty of care and the trial court rightly dismissed the claims against it. Likewise, regarding plaintiff’s claims that the 911 operator did not handle the call appropriately, did not communicate information to the fire department correctly, and should have stayed on the phone with the deceased, the Court determined that 911 had negated essential elements of plaintiff’s claims. First, 911 showed that the operator acted in accordance with procedures. Second, even if the operator had breached a duty, 911 showed that the alleged acts of negligence were not the cause in fact of the deceased’s injuries. As with the fire department, the Court of Appeals upheld summary judgment in favor of 911, although on different grounds from the trial court’s decision.

This case is a great reminder of the many challenges encountered when bringing a negligence claim against a governmental entity. Both the trial court and the Court of Appeals agreed that immunity was retained here, and since they based their decisions on different grounds, these courts illustrated that there are multiple ways government agencies are protected by the GTLA. While it is often still worthwhile and necessary to bring suit against such agencies, an attorney should carefully study the facts and keep in mind the provisions of the GTLA  (and the case law interpreting it) when filing such a case.

Nuanced Determination Required to Distinguish Health Care Liability Claims from Ordinary Tort Claims


            Not all claims brought against health care providers fall under the Tennessee Health Care Liability Act (THCLA), and a recent case from the Tennessee Court of Appeals gives crucial guidance on how to distinguish THCLA claims from ordinary, non-statutory tort claims. In Ellithorpe v. Weismark, No. M2014-00279-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2014), plaintiffs were parents of a minor child. Plaintiffs had lost custody pursuant to a juvenile court order, but plaintiffs alleged that the order required them to be informed of and allowed to participate in any counseling offered to the minor child. In their complaint, plaintiffs alleged that defendant social worker had provided counseling to minor child in violation of the court order. They asserted claims for negligence, negligence per se, and intentional infliction of emotional distress against the defendant.

            Defendant moved to dismiss the complaint in its entirety, arguing that it fell under the THCLA and that plaintiffs had indisputably not followed the statute’s procedural requirements. The trial court granted the motion, finding that “the THCLA was ‘very broad’ and encompassed this claim because it related to the provision of health care services by a health care professional.” The Court of Appeals, however, reversed this dismissal, stating that the trial court had not used the proper analysis to determine whether the claims fell within the THCLA.

            In determining the proper analysis, the Court first pointed to the Tennessee Supreme Court’s opinion in Gunter v. Laboratory Corp. of America, 121 S.W.3d 636 (Tenn. 2003). There, the Supreme Court indicated that the “crucial question” was whether the claim “constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional.” Later, though, the Supreme Court reexamined the analysis recommended by Gunter. In Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), the Supreme Court noted that “all cases involving health or medical care do not automatically qualify as health care liability claims.” The Estate of French Court “somewhat abandoned the broad ‘gravamen of the complaint’ test outlined in Gunter, in favor of ‘a more nuanced approach’ in which the trial court must examine the claims individually to determine whether they sound in ordinary negligence or health care liability.” Instead of broadly characterizing the complaint, this analysis depended on factual inquiries to appropriately categorize the individual claims.

            Based on the Estate of French case, the Court of Appeals in Ellithorpe outlined five factors that should be considered in determining whether a claim falls under the THCLA or another form of liability:

(1) whether a patient-physician relationship exists between the plaintiff and the defendant medical provider; (2) whether the alleged acts of negligence relate to a specific patient or to an entire group of people; (3) whether expert testimony is required to establish the standard of care; (4) whether the alleged negligence involves the provision of routine care; and (5) whether

the alleged negligent acts or omissions were properly classified as administrative, ministerial, or routine, rather than medical or professional.

            Because the trial court here appeared to dismiss the claims based on the gravamen of the complaint and did not engage in the proper nuanced consideration of the allegations, the Court reversed the dismissal and remanded with instructions to consider the factors above.

            This is an important case that synthesizes previous Tennessee decisions and gives some clear factors to consider when determining whether a claim sounds in ordinary negligence or health care liability. While some number of complaints that assert liability against a health care provider will include claims falling under both ordinary tort law and the THCLA, and thus will likely already meet the procedural requirements of the THCLA, this case could be especially helpful in a situation where either the pre-suit notice or certificate of good faith was found to be insufficient. Pursuant to the analysis here, a complaint should not be dismissed in total simply because it is generally a health care claim. Instead, a trial court should undergo a fact specific inquiry, categorizing each claim as falling under the THCLA or another theory of liability. In a sticky situation where the THCLA claims are likely to fail, then, a practitioner could potentially use the reasoning in this case to argue for at least some of the claims asserted to stand. 

Offer of Judgment Cannot Be Revoked During 10-Day Window

The Tennessee Court of Appeals recently took up a civil procedure issue of first impression in the state. In McGinnis v. Cox, No. M2014-00102-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2014), the issue presented was“[w]hether a Rule 68 offer of judgment may be revoked by the offeror within the ten-day time period for acceptance on the basis that the offeror ‘changed his mind.’” Following the weight of authority from federal and other state courts, the Court held that offers of judgment under Rule 68 are generally not revocable prior to the ten-day window expiring.

The McGinnis case arose from a car accident, and though no answer was ever filed, plaintiffs presented defendants with an offer of judgment for a specified amount or the policy limits of the applicable insurance policy. It was undisputed that the offer of judgment was made pursuant to Rule 68. There was some discrepancy between the date on the certificate of service and the date the offer was actually mailed, but defendants’ counsel received it on March 13, 2013. Counsel for both parties spoke two days later and agreed to forgo the deadline due to the postposed mailing. On that same day, however, plaintiff’s counsel faxed defendants’ counsel stating that the offer of judgment was revoked. The basis of this purported revocation was that the plaintiff had changed his mind. Subsequently, but on the same day and well within the ten-day time frame, defendants responded by fax that they accepted the offer of judgment in the amount of the policy limit. As there were no allegations of fraud or other good cause, the trial court found that the offer of judgment could not be revoked and thus granted a motion to enforce the judgment. The Court of Appeals affirmed.

In analyzing the issue, the Court determined that “the failure to include a provision allowing revocation [in Rule 68] is indicative of an intent not to allow revocation within the ten-day time period for acceptance.” The Court stated that adding a revocation provision would “deprive the offeree of the ten  days to consider the offer of judgment  the offeree was clearly intended to possess pursuant to Rule 68’s plain language.” The Court emphasized that the 10-day window was needed to give the offeree an appropriate amount of time to consider the offer, as rejecting such an offer subjects the offeree to certain risks. Allowing revocation would give the offeror the ability to force the offeree into a hasty decision.

Further, despite the fact that an accepted offer of judgment is interpreted under contract law, the Court found that contract law does not provide a basis for revoking a Rule 68 offer of judgment.  “While an accepted offer of judgment is enforced as any other contract, the offer itself is not a creature of contract; it is a mechanism created and governed by the Rules of Civil Procedure.” With this analysis, Tennessee fell in line with most state and federal courts in finding that Rule 68 offers of judgment are not revocable.

Because Tennessee’s Rule 68 allows either a plaintiff or defendant to make an offer of judgment, this is a vital case for all trial attorneys. An offer of judgment must be well thought out and carefully drafted, as once it is submitted to the opponent it cannot be revoked prior to the ten-day window expiring. Under the plain language of the rule as well as the guidance provided from other jurisdictions, this seems to be the correct result and the likely result that the Supreme Court would reach if it ever took up this issue. This holding, then, should govern practitioners’ behavior as they contemplate making offers of judgment in their cases.

Health Care Liability Claim under GTLA Entitled to 120-Day Extension of Statute of Limitations

 In Harper v. Bradley County, No. E2014-COA-R9-CV (Tenn. Ct. App. Oct. 30, 2014), the Tennessee Supreme Court clarified one aspect of the interplay between the Health Care Liability Act (“HCLA”) and the Governmental Tort Liability Act (“GTLA”). The Court held that under the current version of the HCLA, health care liability actions against governmental entities are entitled to the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121(c).

To reach its decision, the Court relied heavily on Cunningham v. Williamson County Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013). In that case, the Tennessee Supreme Court found that the 120-day extension did not apply to medical malpractice claims arising under the GTLA. The Cunningham Court noted that “in the absence of specific statutory language permitting extension of the GTLA statute of limitations, …statutory provisions inconsistent with the GTLA may not extend the applicable statute of limitations period.” Despite its holding, the Supreme Court pointed out in a footnote that the legislature amended the HCLA in 2011 to modify the definition of “health care liability action” to include “claims against the state or a political subdivision thereof.”

 In the Harper case, the plaintiff’s claim arose after the effective date of the 2011 amendments. Thus, the Court of Appeals was tasked with determining whether the 2011 language change required a different outcome regarding applicability of the 120-day extension. The Court noted that the 2011 language changes “for the first time, expressly brings governmental entities…within the ambit of the HCLA.” Accordingly, the Court held that “the 2011 amendment, now codified at Tenn. Code Ann. § 29-26-101, clearly expresses a legislative intent to extend the statute of limitations in GTLA cases where the plaintiff has met the procedural requirements of the HCLA.”

Because this is the first case addressing this issue under the 2011 amendment language, this is an important case for attorneys to be aware of. While the Tennessee Supreme Court has yet to hold that medical malpractice cases arising under the GTLA are entitled to the 120-day extension, the Harper case is currently the highest authority addressing the question under current legislation.   

I predict that the Tennessee Supreme Court will affirm this decision. 

The "Made-Whole" Doctrine in Tennessee

My law review article, "'Made-Whole" Made Fair:  A Proposal to Modify Subrogation in Tennessee Tort Actions," is among the top ten down loads in its category on the Social Science Research Network.

Here is an abstract of the article:

This Article proposes the adoption of the “Modified Made-Whole Doctrine Proposal." Part I begins by explaining the roots of the law of subrogation rights and its current jurisprudential inconsistencies. It also explores the relationship between such subrogation rights and the made-whole doctrine in the context of Tennessee tort law as well as how this doctrine would be applied in Tennessee today. Part II briefly outlines some of the general questions regarding Tennessee’s current application of the made-whole doctrine, particularly the unresolved issues surrounding the impact of comparative fault on subrogation rights. These are questions which the author’s suggested Proposal is designed to directly address. The detailed framework of this Proposal, including its five fundamental Principles and their underpinning rules, are set forth at length in Part III. Finally, Part IV concludes by analyzing the practical application of this Proposal throughout the various stages of the litigation process and offers guidance to judges, attorneys, and litigants alike as to how such subrogation disputes can be equitably resolved. In sum, the Modified Made-Whole Doctrine Proposal is meant to provide for the efficient, just application of the made-whole doctrine to subrogation interests with respect to Tennessee’s law of comparative fault.

Click on the link above for free access to the article.  The article is published in the inaugural edition of the Belmont Law Review beginning at page 71.



Tennessee Law of Civil Trial - Book Review

Jason Lee has reviewed my book, Tennessee Law of Civil Trial, on his Tennessee Defense Litigation blog.

Some highlights:

The way I would characterize this book is it is a practical guide to the ins and outs of trial practice.  There are citations to case law throughout the book that can be used to prepare for issues that may come up at trial. 

 I mainly recommend this book to newer attorneys or those who do not have the opportunity to go to trial very often.

I also think this book is appropriate for more experienced attorneys to use in order to remind of important concepts leading up to trial.

Once again, John Day has added another valuable resource for practitioners of law in Tennessee.

Click on the link to order your copy of Tennessee Law of Civil Trial.  A free copy of Chapter 1 (Scheduling Orders) may be down-loaded by clicking on the link.

Thanks for your kind words, Jason.


Reasoning Required in Tennessee Trial Court's Summary Judgment Order

             In Potter’s Shopping Center, Inc. v. Szekely, No. M2014-00588-COA-R3-CV (Tenn. Ct. App. Oct. 8, 2014), the Court of Appeals relied on the recent Tennessee Supreme Court decision of Smith v. UHS of Lakeside, Inc., 2014 WL 3429204 (Tenn. 2014) to hold the trial court to a higher standard when entering an order granting partial summary judgment.

            The Potter’s Shopping case involved the building of a house and a claim for unjust enrichment by the supplier of materials against the owners of the home. The trial court granted partial summary judgment to plaintiff as to liability, but in its order, the court failed to state any legal grounds for its decision. Citing the Supreme Court’s Smith opinion, the Court of Appeals found that the trial court had failed to comply with Tenn. R. Civ. P. 56.04 when it failed to cite any evidence or argument it had considered in granting summary judgment. The Court noted that appellate courts were sometimes more lenient on this issue when the reasoning for the summary judgment could be gleaned from the record. In the present case, however, the record contained no transcript of the hearing and no other indication of the legal basis for the summary judgment decision.

            Finding that the summary judgment issue “involve[d] questions of law that require analysis and explanation,” the Court vacated the order granting partial summary judgment and remanded the case.

            This case appears to be the first example of the Court of Appeals reviewing a summary judgment order under the more detailed analysis set out by the Supreme Court in Smith. It is an interesting illustration of the higher standard likely to be enforced in the future, reminding attorneys and courts alike that grants of summary judgment that are not supported by legal reasoning provided on the record will be vulnerable on appeal.

Orders on Motions for Summary Judgment - Rubber-Stamping Not Allowed

            This summer the Tennessee Supreme Court offered guidance on what a trial court must do when granting or denying a motion for summary judgment under Tenn. R. Civ. P. 56.04. Despite the longstanding practice of many courts to have a prevailing party draft and submit a proposed order, the Court emphatically expressed that the record must show that an order granting or denying summary judgment was the product of the trial court’s “independent judgment.”

               In Smith v. UHS of Lakeside, Inc., No. W2011-02405-SC-R11-CV (Tenn. July 15, 2014), plaintiff’s complaint listed multiple causes of action related to the alleged improper assessment and resulting delayed treatment of decedent. During lengthy pre-trial litigation, defendant moved for summary judgment as to all of plaintiff’s claims. After a hearing, the trial court ruled in favor of plaintiff on some claims and defendant on two claims. After orally announcing the direction of the ruling, the trial court stated: “As far as a basis for the ruling, I’m going to let [defendant’s counsel] make those…the motions in which you were successful, you’ll prepare the order and the rationale for the Court’s ruling.”

               Plaintiff later filed an amended complaint, and defendant again filed a motion for summary judgment as to all claims. This time the trial court granted defendant’s motion in total and stated, “I’m directing the defendant to prepare the order and to establish the rationale for the court’s ruling in quite specific detail[.]” Both orders submitted by defendant and signed and entered by the trial court were highly detailed, essentially adopting all of defendant’s arguments from its brief. After the entry of each order, plaintiff objected to the orders arguing that the orders contained rulings and findings that the trial court did not actually make.

               Plaintiff appealed, and the Court of Appeals vacated the orders granting summary judgment stating that “the trial court’s oral statements provide absolutely no basis for the trial court’s ruling.” The Tennessee Supreme Court affirmed this decision.

               Since 2007, Tenn. R. Civ. P. 56.04 has stated that “the trial court shall state the legal grounds upon which the court denies or grants the motion, which shall be reflected in the court’s ruling.” Pursuant to this rule, then, stating the grounds for summary judgment is mandatory. In Smith, the Court noted that this rule change was adopted both to promote acceptance of and respect for the legal system and decision at hand, as well as to clarify the explanation of summary judgment rulings for appellate courts reviewing such decisions. When reviewing whether a trial court has complied with Rule 56.04, the Court noted that an appellate court should “take into consideration the fundamental importance of assuring that a trial court’s decision either to grant or deny a summary judgment is adequately explained and is the product of the trial court’s independent judgment.”

               While the Court expressly noted concerns regarding “the practice of courts adopting verbatim findings of fact, conclusions of law, and orders prepared by counsel for the prevailing party[,]” the Court ultimately determined that requesting and considering proposed orders prepared by a prevailing party was not inconsistent with Rule 56.04. Instead, the Court held that Rule 56.04 “requires the trial court upon granting or denying a motion for summary judgment to state the grounds for its decision before it invites or requests the prevailing party to draft a proposed order.” According to the Smith opinion, a trial court can state its grounds at the time it announces the decision on the record, in a subsequently filed memorandum or opinion, or in a letter provided to all parties and made part of the record (see note 28).

               In the present matter, the Court determined that the trial court had not stated its reasoning for granting summary judgment. The Court rejected defendant’s argument that because the trial court eventually signed and entered the orders, the reasoning contained therein should be imputed to the court. The Supreme Court called this a “reverse-engineered circumvention” of Rule 56.04 and thus affirmed the appellate court’s vacating of the orders.

               This case is important for attorneys to note as they move through pre-trial litigation. Pursuant to this decision, if you secure summary judgment for your client, you should ensure that at some point before proposed orders are submitted the court expressly states its reasoning for granting your motion. On the other hand, if you are on the losing end of a summary judgment motion, be aware that if the court fails to articulate its reasoning, the Smith case could be useful on appeal.

Strip Club Murderer Loses Appeal

The case of Jernigan v. Hunter, No. M2013-01860-COA-R3-CV (Tenn. Ct. App. Sept. 30, 2014) begins in January 2006, when John Jernigan was stabbed and beaten to death by two men, a father and son, inside a Nashville strip club. Father pleaded guilty to voluntary manslaughter in his criminal proceeding, and son pleaded guilty to the lesser charge of aggravated assault.

Thereafter, Jernigan’s parents filed a wrongful death lawsuit against father and son, both of whom defended themselves during a bench trial. The trial court found that Jernigan’s parents had proved by a preponderance of the evidence that father had directly and intentionally contributed to Jernigan’s death by stabbing him multiple times. However, due to conflicting evidence, the trial court ruled that parents did not prove that the son had caused or contributed to Jernigan’s death. Accordingly, the court awarded Jernigan’s parents $250,000 in damages against the father and dismissed the son. The father appealed and represented himself again.

The appellate court’s opinion classified father’s arguments on appeal into three categories: evidentiary issues, legal issues, and issues first raised on appeal.

Evidentiary Issues

Father’s appeal was pretty much devastated at the outset because he did not file a transcript of the evidence (under Tenn. R. App. P. 24(b)) or a statement of the evidence (under Tenn. R. App. P. 24(c)) in the appellate record, resulting in a conclusive presumption on appeal that there was sufficient evidence before the trial court to support its judgment. Tennessee law holds that, to the extent issues on appeal depend on factual determinations, the lack of a transcript or statement of the evidence is essentially fatal to the party having the burden on appeal. Father challenged the sufficiency of evidence, arguing that there was conflicting testimony about who participated in the fight with Jernigan and that Jernigan had been under the influence of alcohol and marijuana at the time of his death. Father also challenged the sufficiency of the complaint, contending that it failed to state a claim upon which relief could be granted. However, because father failed to file a transcript or statement of the evidence, there was no evidence before the court to review on appeal. The appellate court therefore found father’s evidentiary issues without merit.

Legal Issues

Father sought review of the trial court’s denial of his request to appoint counsel to represent him. The appellate court rejected father’s argument because, unlike indigent criminal litigants, indigent civil litigants have neither the constitutional nor the statutory right to court-appointed counsel.

In father’s second legal issue, he argued that the trial court failed to rule on “numerous pending motions” filed in the trial court. However, the appellate court rejected this argument because father failed to identify which motions he was referring to, and he otherwise failed to establish that any substantive motions were not properly addressed by the trial court.

Father’s third legal issue argued that the trial court should have severed father’s civil trial from son’s civil trial. Rule 42.02 of the Tennessee Rules of Procedures states that a trial judge may exercise its discretion to order separate trials for “convenience or to avoid prejudice,” and the Tennessee Supreme Court has held that the interest of justice will warrant a bifurcation of the issues in only the most exceptional cases and upon a strong showing of necessity. Father’s appellate brief failed to identify any reason why he was prejudiced by the trial court’s denial of his motion to sever. Further, the trial court had found that father and son were both necessary witnesses in each case, and, depending on the proof at trial, fault would likely need to be allocated against each defendant. Based on these considerations, the appellate court found that the trial court did not abuse its discretion in denying father’s motion to sever. 

Father’s fourth legal issue on appeal challenged the competency of a witness who testified at trial. Father alleged that the witness had past criminal charges against him, mental health issues, and was “unreliable.” But, again, because of father’s failure to file a transcript or statement of the evidence, the court of appeals was unable to fully address the witness’s competency. With no evidence to counter the presumption of correctness afforded to the trial court, the appellate court had no basis to conclude the evidence was insufficient to support the ruling that the witness was competent to testify, and thus father’s argument was rejected.

Issues First Raised on Appeal

Father argued the following three issues for the first time on appeal: whether Jernigan’s parents had standing to bring the wrongful death claim, whether Jernigan’s parents filed the wrongful death lawsuit within the statute of limitations, and whether the lawsuit satisfied the requirements of the Federal Tort Claim Act. The appellate court summarily rejected all three issues, relying on well-established Tennessee law that holds that if an issue is not properly raised in the trial court it cannot be raised for the first time on appeal. Because father did not properly bring these matters to the attention of the trial court, the appellate court that they were without merit.

Note to non-lawyers:  practicing law ain't rocket science, but there are rules that, if not followed, create all sorts of problems.  I don't fix my own toilets, and you probably should defend yourself in a wrongful death case.

NEJM Study on Defensive Medicine

From the American Association for Justice:

The New England Journal of Medicine published a new study on the effects of tort reform on emergency room department treatments. The researchers examined Medicare emergency room fee-for-service claims data from 1997-2011 in Texas, Georgia and South Carolina, all of which changed their emergency care liability standard from negligence to gross negligence. They found that such reforms did not change doctors' testing behaviors and that "physicians are less motivated by legal risk than they believe themselves to be."

 "We did not find evidence that these reforms decreased practice intensity, as measured by the rate of the use of advanced imaging, by the rate of hospital admission, or in two of three cases, by average charges. Although there was a small reduction in charges in one of the three states (Georgia), our results in aggregate suggest that these strongly protective laws caused little (if any) change in practice intensity among physicians caring for Medicare patients in emergency departments."

 They also extended their discussion to safe harbors from adherence to practice guidelines, saying they would not affect physicians' testing behavior, either:

 "One might argue that physicians in the reform states do not believe that they are fully protected. This is true to some degree, but the critique may be applied to any other law. For example, some have advocated for "safe harbor" laws, which would provide specific protections to physicians who adhere to evidence-based guidelines. If physicians do not believe that they are adequately protected by a legal standard of gross negligence, then they also might not believe that they are protected by a statute that provides a safe harbor for evidence-based guidelines. Indeed, a recent study showed that evidence-based guidelines would be applicable to only a minority of malpractice claims."