Tennessee Law

Published on: January 30, 2019

Massage Therapist’s Intentional Sexual Battery Was Exempt from Certificate of Good Faith Requirement of the Tennessee Health Care Liability Act

When a state legislature makes substantial modifications to existing medical malpractice law, the supposed intent is always phrased in terms of “addressing skyrocketing medical malpractice insurance rates.” However, the true reason behind these changes is rarely to save doctors money on their insurance premiums; the real purpose is most likely to increase the profits of the insurance companies who service these types of claims.

In Tennessee, we had a pretty major change in our malpractice laws a few years ago. Whereas before, all it took to file a medical malpractice lawsuit was to type up a basic complaint and file it at the courthouse within the statute of limitations, there are now many more steps to the process – and many more reasons for a medical negligence claim to be dismissed on a technicality before an actual inquiry into whether the medical professional did or did not commit an act of malpractice.

Facts of the Case

In a recent case, the plaintiff was a female customer who filed suit against the defendants, a male massage therapist and his “day spa” employer, seeking compensation for damages associated with the alleged therapist’s sexual assault on her during a massage that she received in April 2014. Included in the plaintiff’s complaint were claims for assault and battery, intentional or reckless infliction of emotional distress, and false imprisonment against the therapist and claims for vicarious liability, negligence, and negligent supervision, retention, and training against the employer.

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Published on: January 9, 2019

Tennessee Supreme Court Says That Exculpatory Agreement That Transportation Company Required Patient to Sign Was Not Enforceable

By Mark Hartsoe

It seems as though more and more Tennesseans are being hurt by acts of medical negligence in Knoxville and the surrounding area each year. Unfortunately, it seems equally true that medical providers, their insurance companies, and related entitles are forever thinking of new and improved ways to attempt to avoid liability for their actions.

If you or a person close to you has been hurt by a medical provider’s negligence, you can be sure that the defendant will take every possible opportunity to avoid being held liable for your injuries. It is consequently very important that you talk to a Tennessee personal injury lawyer about your case as soon as possible so that you will have the best possible chance for success in your case.

Facts of the Case

In a recent case, the plaintiff had undergone knee replacement surgery and was a patient at a rehabilitation hospital in Memphis. The hospital arranged for the defendant transportation company to drive him to an appointment to see his orthopedic surgeon for followup in December 2014. After the plaintiff was seated in the van, he was asked to sign paperwork that contained exculpatory language purporting to release the transportation company from any and all liability related to its services. After his appointment with the surgeon, the plaintiff fell while attempting to get back into the van.

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Published on: December 19, 2018

Tennessee Court Holds Failure to Return Service of Process Document Did Not Ipso Facto Result in Dismissal of a Car Accident Lawsuit

By Mark Hartsoe

The plaintiff in a Knoxville car accident case must comply with several important deadlines, if his or her lawsuit against a negligent defendant is to be successful. One of the most important of these deadlines is the statute of limitations – that is, the deadline for filing a claim in a court with appropriate jurisdiction.

However, merely filing a claim is not enough to keep the plaintiff’s case on track for a positive outcome. The plaintiff’s complaint must also be served on the defendant, so that he, she, or it has an opportunity to respond to the plaintiff’s allegations.

Facts of the Case

The plaintiff in a recent appellate court case was a woman whose car was allegedly struck by a vehicle owned by the defendant utility company. The accident happened on March 16, 2009, and the plaintiff’s suit was filed on March 12, 2010. Her suit was in the nature of a civil warrant filed in general sessions court by her then-attorney, who served the complaint on the defendant the next day via certified mail. According to the plaintiff’s then-attorney, he made a return-of-service to the clerk’s office after perfecting service on the defendant. The clerk, however, did not docket the case, and the defendant later claimed that the plaintiff’s then-attorney had failed to make the return-of-service as he alleged.

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Published on: December 5, 2018

Tennessee Court Finds that Healthcare Liability Act is Not Exclusive Remedy for Resolving Medical Payment Disputes

By Mark Hartsoe

Everyone wants to be paid for his or her work, including medical providers who provide treatment to those who have been injured in an east Tennessee automobile accident. However, there are limitations under the law with regard to what a creditor can and cannot do in his or her collection efforts.

A recent case explored how two Tennessee statutes – the Tennessee Healthcare Liability Act (THL) and Tennessee Consumer Protection Act (TCPA) – applied in a personal injury case in which a healthcare provider attempted to assert a lien.

Facts of the Case

In a recent case, the original plaintiff was a man who was allegedly injured in a car crash in Madison County, Tennessee, and treated for his injuries at a hospital in Dyer County (where the plaintiff resided). After a “professional account services” provider filed a notice of a hospital lien in his lawsuit against the allegedly negligent driver whose actions injured the plaintiff, the plaintiff amended his complaint to add a second plaintiff (who had been injured in an car accident in Obion County, treated at a hospital in Weakly County, and served with a hospital lien by the same account services provider as the original plaintiff) and to name the defendant account services provider as a party defendant.

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Published on: November 21, 2018

Tennessee Court of Appeals Says Dismissal of Wrongful Death Suit Against Truck Stop Owners Was Premature

By Mark Hartsoe

In a Knoxville motorcycle accident case, the defendant is typically a motorist whose negligence allegedly caused a collision that led to the cyclist being injured or killed. However, other individuals or businesses can also be named as parties in some motorcycle crash cases.

As in other types of negligence lawsuits, the plaintiff has the burden of proving, by a preponderance of the evidence, that the defendant breached a legal duty that was owed to him or her and that this breach of duty was the proximate cause of damages complained of by the plaintiff.

Facts of the Case

In a recent case, the plaintiff was the surviving spouse of a motorcyclist who was killed when his motorcycle collided with a sport utility vehicle in 2016. At the time of the crash, the SUV driver was turning left into a truck stop. The plaintiff filed suit against the driver of the SUV and the owners of the truck stop, seeking to recover damages for her husband’s wrongful death. According to the plaintiff, the truck stop owners were negligent in failing to place a visible sign directing the plaintiff to the proper entrance for passenger vehicles (the SUV driver was turning into an entrance intended for semi-trailer trucks, not passenger vehicles; the plaintiff averred that the truck entrance had a much more limited view of oncoming traffic).

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Published on: November 7, 2018

Federal Court in Tennessee Partially Dismisses Hernia Mesh Injury Case as Untimely but Denies Summary Judgment on Several Product Liability Claims

By Mark Hartsoe

One of the most important considerations in a Tennessee personal injury lawsuit is, “When does the statute of limitations run?” While it is sometimes easy to determine this very important date, the issue can be very complicated in some cases.

If the plaintiff’s suit is found to be filed after the expiration of the applicable statute of limitations has expired, his or her claim will be dismissed by the court – even if he or she would have otherwise had a very strong case of liability against the defendant(s). Thus, it is extremely important that anyone has been hurt by the negligence, recklessness, or other wrongful conduct of others consult an experienced personal injury attorney as soon as possible so that the necessary paperwork can be filed in a timely fashion.

Facts of the Case

In a recent federal case, the plaintiff was a woman who alleged that she had suffered numerous personal injuries and complications following a mesh hernia repair surgery that took place in June 2008. In May 2018, She brought a product liability lawsuit against the defendants (the manufacturer of the mesh and the manufacturer’s subsidiary), asserting claims for negligence, strict product liability, negligent infliction of emotional distress, intentional infliction of emotional distress, breach of implied warranty, failure to warn, and fraud. The defendants filed a motion to dismiss the plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on grounds that the plaintiff’s claims were time-barred by the applicable statutes of limitation.

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Published on: October 17, 2018

Federal Court Remands Car Accident to Tennessee State Court

By Mark Hartsoe

Most east Tennessee car accident lawsuits are filed in state court. There are several procedural and strategic reasons for this. However, when a federal question is involved in the case or when there is diversity of citizenship between the parties, the defendant(s) may remove the case to federal court.

“Making a federal case out of it” tends to result in more costly, complex, and time-consuming litigation, at least from the plaintiff’s point of view. Thus, if there is any possibility of having the case returned to state court after removal, the plaintiff may be wise to consider this option.

Facts of the Case

In a recent case, the plaintiffs were a husband and wife who, along with their minor child, were allegedly injured in an accident in Chattanooga. They filed suit in state court against the driver whose negligence they alleged caused the crash. They also named the driver’s employer as a defendant in suit, asserting a claim for vicarious liability. The employer removed the state court action to federal court, invoking diversity jurisdiction (the plaintiffs were not from Tennessee).

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Published on: October 3, 2018

Negligence Case Brought by East Tennessee Ash Spill Cleanup Workers Proceeds Toward Trial on General Causation

By Mark Hartsoe

In an east Tennessee personal injury lawsuit based on a plaintiff’s allegations that a defendant acted negligently, there are four essential elements: duty, breach of duty, damages, and causation. “Causation” is a but-for cause-and-effect relationship between what the defendant did or did not do and what ultimately happened to the plaintiff.

Unless the plaintiff can prove all four of these elements, including causation, by a preponderance of the evidence at trial, his or her case will not be successful, even if his or her injuries were severe and even if the defendant admits that a legal duty towards the plaintiff was breached.

Facts of the Case

A recent case under consideration by the United States District Court for the Eastern District of Tennessee arose as a result of a cleanup, removal, and recovery project at a 2008 ash spill at a Roane County fossil fuel plant. There were several plaintiffs, including both individuals who worked on the project and some who had spouses who did so. The plaintiffs’ claims including negligence, negligence per se, recklessness, fraud, misrepresentation, and/or strict liability for an ultrahazardous or abnormally dangerous activity. According to the plaintiffs’ the defendant’s failings as construction manager of the project caused pulmonary problems, skin and sinus illnesses, and other personal serious injuries.

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Published on: September 26, 2018

Tennessee Car Accident Litigant Faces Second Trial

By Mark Hartsoe

Generally speaking, the defendant in a Tennessee car accident case “takes the plaintiff as he finds her.” In other words, if the plaintiff had medical issues at the time of the accident, any exacerbation of these conditions is taken into consideration in determining the money damages to which the plaintiff (assuming that the defendant is held liable for causing the accident).

This is not to say that the defendant is held liable for the plaintiff’s pre-existing condition itself, only that the defendant cannot argue that another individual who did not suffer from the plaintiff’s physical limitations would not have been harmed in the accident or would have received less severe injuries.

Facts of the Case

In a recently decided appellate case, the plaintiff filed suit in the Circuit Court for Davidson County seeking monetary compensation for injuries she suffered in a motor vehicle accident that she alleged was caused by the defendant’s negligence. The case was tried to a jury and resulted in a verdict of $70,000 in the plaintiff’s favor. The trial court entered judgment for the plaintiff for a slightly smaller amount, after reducing the jury’s award because the amount they awarded for medical expenses exceed that which was entered into evidence at trial. The defendant appealed. Continue reading →

Published on: September 12, 2018

Tennessee Trial Court Judge Had No Duty to Recuse Himself Following Ex Parte Communication About Proposed Order in Health Care Liability Case

By Mark Hartsoe

The right to a fair trial is one of the most important components of the American judiciary system. This is true regardless of whether one is the plaintiff or the defendant or whether the case is criminal or civil.

If a litigant believes that some impropriety has taken place that could prejudice his or her at trial later on, he or she may file a motion to recuse the trial court judge, as happened in a recent Tennessee wrongful death lawsuit. Of course, such a motion is not automatically granted, as the moving party must have valid reasons for the request.

Facts of the Case

In a recent case filed in the Circuit Court for Davidson County, the plaintiff was the surviving spouse of a man who allegedly died as a result of an act of medical negligence committed by the defendant health care provider. The plaintiff filed suit, both individually and as surviving spouse, seeking monetary compensation for the decedent’s death. The defendant filed a motion for partial summary judgment, which the trial court judge indicated that he was going to deny on the basis that there were disputes over material facts. The judge’s law clerk allegedly stopped the plaintiff’s counsel in the hallway after the hearing and asked him to submit an order denying the defendant’s motion. Continue reading →