2013 Tennessee Legislation – New requirements for healthcare providers to provide infant CPR information and instruction.

Analysis:  The Tennessee legislature passed Public Chapter No. 197 which was signed into law by Governor Bill Haslam on April 23, 2013.  Public Chapter No. 197 provides a new requirement for almost every kind of health care practitioner or health care facility that provides health care to prenatal patients or newborns.  This bill requires these health care providers to provide infant CPR “information and instruction concerning the appropriate use and techniques of infant cardiopulmonary resuscitation (CPR).” TCA § 68-5-___ (the new bill did not designate a specific section for the statute but that will be done shortly).  This new law goes into effect on July 1, 2013.

The information and instruction is required to be provided to one (1) parent or caregiver of the newborn infant.  It is also important to point out that this new statute does not go as far as requiring classes in certification for infant CPR.  The entire text of this new statute is as follows:

§68-5-____

(a)        Hospitals, birthing centers, health care facilities, physicians, nurse practitioners, physician assistants or other health care practitioners who provide medical care to newborns as well as obstetricians who provide routine care for prenatal patients shall make available information and instruction concerning the appropriate use of techniques of infant cardiopulmonary resuscitation (CPR) to at least one (1) parent or caregiver of a newborn infant.  Nothing in this section shall require classes in certification of infant CPR.  This section shall also not constitute a requirement to be assessed during any inspection under Chapter 11, part 2 of this title.

(b)        Any facility or practitioner acting within the scope of their licensure or practice shall be immune from any civil liability under this section and shall have an affirmative defense to...

Joint and Several Liability – New Tennessee Statute, T.C.A. § 29-11-107 abolishes joint and several liability in most circumstances in Tennessee.

Since Tennessee adopted the doctrine of comparative fault in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), the Tennessee Supreme Court has issued several opinions moving away from the general abolishment of joint and several liability.  The Tennessee Supreme Court has created several exceptions to the general rule that joint and several liability does not apply under Tennessee’s comparative fault scheme.  As a result of these exceptions created by the Court, the Tennessee legislature addressed this issue in the 2013 Tennessee legislative session.  The Tennessee Legislature recently passed Public Chapter No. 317 which was signed into law by Governor Bill Haslam on April 29, 2013.  It created T.C.A. § 29-11-107 which is in effect for all causes of action that accrue on or after July 1, 2013.  The key language in this bill is subsection (a) which provides:

(a)  If multiple defendants are found liable in a civil action governed by comparative fault, a defendant shall only be severally liable for the percentage of damages for which fault is attributed to such defendant by the trier of fact, and no defendant shall be held jointly liable for any damages.

As a result of this new bill, the Tennessee Legislature has codified the abolishment of joint and several liability in almost all circumstances in Tennessee.  There are only two exceptions that remain.  These exceptions are found in subsection (b) which provides:

(b) Continue Reading  

Waiver and Release of Liability – Is a waiver and release of liability document signed by a participant in a motorcycle safety training course enforceable under Tennessee law?

Brief Summary:  A waiver and release of liability document signed by a participant in a motorcycle safety training course is enforceable and binding on the plaintiff.  The plaintiff’s claim was therefore barred by the executed waiver and the plaintiff could therefore not bring a claim for negligence against the motorcycle safety and training course company.

I apologize for the length of this post.  However, this is an important issue and I want to give you a complete picture of the opinion.

Analysis:  The Tennessee Court of Appeals in Ruth M. Maxwell v. Motorcycle Safety Foundation, Inc., No. M2012-000699-COA-R3-CV, 2013 WL 357600 (Tenn. Ct. App. January 29, 2013) discussed the enforceability of a waiver and release of liability agreement signed prior to the injury in question.  In this case, the plaintiff desired to learn how to ride a motor scooter. Maxwell at 1.  As a result, she took a motor scooter safety class with the defendant in order to learn how to safely operate a motor scooter. Maxwell at 1.  This course was a three-day basic rider beginner course.  The course is not required to obtain a motorcycle endorsement or driver’s license, however upon proof of completion the Tennessee Department of Motor Vehicles waives the written and riding exams ordinarily required for a motorcycle endorsement on the license. Maxwell at 1.

Before the course began the plaintiff was required to read and sign a “waiver of release of liability”.  This waiver document stated as follows:

READ CAREFULLY WAIVER OF RELEASE OF LIABILITY

Tennessee Appeals – Tennessee Interlocutory and Extraordinary appeals in fiscal year 2011 – 2012.

Every year the Tennessee Administrative Office of the Courts publishes the “Annual Report of the Tennessee Judiciary” to provide, in part, information on appellate cases in Tennessee (this report also provides comprehensive statistics on the trial courts in Tennessee).  The fiscal year, 2011 - 2012 (July 1, 2011 – June 30, 2012), report is the most recent report that has been released and it provides fascinating details about all aspects of Tennessee litigation.  This post will concentrate on some statistical information on interlocutory (Rule 9) and extraordinary (Rule 10) Appeals in Tennessee.  I cannot cover everything in this post so I recommend you review the full report if you have the opportunity.  It is 339 pages long so there is a lot of good statistical information.

Interlocutory Appeal by Permission of the Trial Court:

Under Tennessee Rule of Appellate Procedure 9, parties have the ability to pursue an interlocutory appeal by permission from the trial court.  An interlocutory appeal is an appeal in a case before the entire case is final.  Under Rule 9, a party must file a motion seeking an interlocutory appeal within 30 days “after the date of entry of the order appealed from.”  If the trial court grants this motion, a party is not guaranteed to be heard by the appellate court.  Rule 9 provides that if the trial court grants the motion, then an application for permission to appeal must be filed with the appellate clerk within 10 days of the trial court order.  Then, “the appellate court may thereupon in its discretion allow an appeal from the order.”  If the intermediate appellate court denies the application for permission to appeal, then a “Application for Permission to Appeal from Denial of Rule 9 Application” can be filed with the Tennessee Supreme Court.

Continue Reading  

Corporation and LLC law - Piercing the corporate veil under Tennessee Law.

Analysis:  The recent Tennessee Court of Appeals decision of Robert Thomas Edmunds v. Delta Partners, LLC, No. M2012-00047-COA-R3-CV, 2012 WL 6604580 (Tenn. Ct. App. December 18, 2012) discussed the concept of piercing the corporate veil under Tennessee law.  This case, in part, dealt with what is required to be established under Tennessee law in order to pierce the veil of a corporation.  In short, the doctrine of piercing the corporate veil allows, in certain circumstances, individual members or executives of a corporation (including an LLC - Limited Liability Company) to be personally responsible for the liabilities of the corporation.  This cased involved a dispute between an employer and a former employee over back pay (see detailed prior post on this same case on what constitutes an employment contract under Tennessee law). Edmunds at 1 - 3.  The employee was ultimately awarded damages by the trial court which were affirmed by the Appellate Court for back pay pursuant to an employment contract. Edmunds at 4 - 5. The plaintiff tried to hold the owner of the company personally responsible under the doctrine of “piercing the corporate veil”. 

The Tennessee Court of Appeals in this case discussed that a corporation is presumed to be a distinct legal entity that is separate from its members, shareholders, officers, as follows:

There is a presumption that a corporation is a distinct legal entity, wholly separate and apart from its shareholders, officers, directors, or affiliated corporations. In an appropriate case and in furtherance of the ends of justice, the separate identity of a corporation may be discarded and the individual or individuals owning all its stock and assets will be treated as identical to the corporation.  Discarding the fiction of the corporate entity, or piercing the corporate veil, is appropriate when the corporation is liable for a debt but is without funds to pay the debt, and the lack of funds is due to some misconduct on the part of the officers and directors.

Continue Reading  

Employment Contract - When do documents between an employer and employee consist of an "employment contract" under Tennessee Law?

Analysis:  The Tennessee Court of Appeals recently discussed the important issue of when a document or series of documents should be considered an “employment contract” under Tennessee law in Robert Thomas Edmunds v. Delta Partners, LLC, No. M2012-00047-COA-R3-CV, 2012 WL 6604580 (Tenn. Ct. App. December 18, 2012).  In this case the employee received several documents from his employer about his employment with Delta, the employer.  These documents included both a non-disclosure agreement and a non-competition agreement, to which the employee agreed to and signed.  (Edmunds at 1).  These employment documents (that the employee and employer executed) included the following language:

In consideration of the performance of all services required by Delta [ ], the confidentiality provisions and covenant not-to-compete set forth herein, the Company [i.e. Delta] agrees to pay Employee [i.e. Mr. Edmunds] a salary outlined in the Employee Offer Letter. This initial salary and other benefits provided to Employee pursuant to the Offer Letter may, from time to time as agreed by Employee and Company, be modified.

It is of note that both the employer representative and the employee signed the documents as well as the offer letter identifying the $65,000.00 starting salary.  (Edmunds at 1).  A dispute eventually arose about the compensation the employee was owed after the employer informed the employee in 2006 that the employer could no longer afford to pay the employee.  (Edmunds at 1).  Despite this representation from the employer, the employee continued to work for the company "out of personal loyalty" for over two years despite the fact he was only sporadically paid by the employer.  (Edmunds at 1 - 3).  Eventually the employee resigned in the fall of 2008 and then brought suit against the employ...

Federal Sixth Circuit Court of Appeals - Reversal and timing statistics

This is a good article that I thought you might be interested in concerning reversal statistics for the US Court of Appeals for the Sixth Circuit.  This is from the Sixth Circuit Appellate Blog which is a great blog that keeps you up to date on cases and information pertaining to the Sixth Circuit Court of Appeals.  This information is essential for anyone practicing in Federal Court within the Sixth Circuit.

One interesting statistic is that 16% of the decisions appealed to the Sixth Circuit Court of Appeals were reversed on appeal.  This is higher then any Federal Circuit other then the D.C. Circuit Court of Appeals.  Also, it takes an average of 14.7 months for an appeal in the Sixth Circuit.

Statute of Limitations - In Tennessee can parties to an employment contract create a shorter length statute of limitations (six months) for a retaliatory discharge claim?

Brief Summary:  The recent Tennessee Court of Appeals decision of Karim Skaan v. Federal Express Corporation, No. 2011-01807-COA-R3-CV, 2012 WL 6212891 (Tenn. Ct. App. December 13, 2012) discussed whether parties can shorten a statute of limitations time period for a retaliatory discharge claim in an employment contract.  The pertinent facts for purposes of this post are that Federal Express hired Mr. Skaan in 1999 as an employee and in the employment paperwork Mr. Skaan signed an employment agreement.  Skaan at 1, 2.  Paragraph 15 of the employment agreement provided as follows:

To the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring that complaint within the time prescribed by law or 6 months from the date of the event forming the basis of my lawsuit, whichever expires first.

Skaan at 2.  As a result, the plain language of the employment agreement requires that any legal action against Federal Express Corporation by the employee must be filed within six months of the date of the event forming the basis of the lawsuit (or the time period could be even less than six months if the law provides).  Skaan at 2.  Mr. Skaan was terminated from his job by Federal Express.  He claimed he was terminated due to the filing of a workers compensation claim.  Skaan at 2.

Mr. Skaan did not file any claim against Federal Express until eight months after his termination from his employment.  Skaan at 2.  This case has lots of facts and interesting information pertaining to what evidence was presented on appeal however for our purpose the issue we are discussing in this post simply pertains to whether...

Construction Defect - Under Tennessee law what is required to establish a claim for intentional misrepresentation for a construction defect claim?

Analysis:  The recent Tennessee Court of Appeals decision of Brooke Buttrey v. Holloway's, Inc., No. M2011-01335-COA-R3-CV, 2012 WL 6451802 (Tenn. Ct. App. December 12, 2012) discussed the Tennessee tort of intentional misrepresentation in the context of a construction defect case.  In this case the trial court found there was ample evidence the home was not constructed in a workmanlike manner.  Buttrey at 5.  In fact the defendant did not even appeal this issue to the Tennessee Court of Appeals.  However, the defendant did appeal the trial court's ruling that the defendant was responsible for intentional misrepresentation under Tennessee law.

Under Tennessee law in order to establish a claim for fraudulent or intentional misrepresentation (these two torts have identical elements) the plaintiff must prove the following:

1) the defendant made a representation of an existing or past fact; 2) the representation was false when made; 3) the representation was in regard to a material fact; 4) the false representation was made either knowingly or without belief in its truth or recklessly; 5) the plaintiff reasonably relied on the misrepresented material fact; and 6) the plaintiff suffered damage as a result of the misrepresentation.

Buttrey at 5 (citing Walker v. Sunrise Pontiac – GMC Truck, 249 S.W.3d 301, 311 (Tenn. 2008)).  One of the alleged misrepresentations in this case was testified about by the plaintiff as follows:

Q: When you approached Mr. Holloway about building this home, did he make any representati...

Assisted Living Facility – Recent Tennessee Supreme Court decision discusses liability for failure to provide adequate staff by an assisted living facility.

Analysis:  The Tennessee Supreme Court recently decided a case pertaining to the liability of an assisted living facility's management company for failing to provide appropriate staff to the facility (Celebration Way facility).  Wilson v. Americare Systems, Inc., No. M2011-00240-SC-R11-CV, 2013 WL 658078 (Tenn. 2013).  At trial the jury found the management company (Americare Systems, Inc.) of an assisted living facility was negligent, causing the death of a resident, based on the fact it understaffed the facility.  Wilson at 1.  The resident of the facility, Mable Farrar, died from a perforated colon.  The testimony at trial showed that the assisted living facility failed to follow Ms. Farrar’s physician’s order to administer medicine for constipation.  Wilson at 1.  As a result of this failure to provide the prescribed medicine, Ms. Farrar became significantly constipated and her doctor therefore ordered the assisted living facility to give her three to four enemas a day.  Wilson at 1.  The assisted living facility only gave Ms. Farrar one enema on the first day after the order, none on the second day and one on the third day.  On the third day, after she received the enema, her colon perforated and she died.  Wilson at 1, 2.  The testimony at trial established she should not have been provided an enema by the facility nurse based on her physical status at that time.

Testimony at trial showed there were only two licensed nurses that worked at this facility.  Wilson at 7.  One of the nurses testified she was "always on call, twenty-four hours a day".  Wilson at 7.  The two licensed nurses had to cover a lot of shifts and were not paid overtime compensation because they were salaried employees.  Wilson at 7.  The nurses that worked at the facility as well as the regional operations director for the assisted living facility management company testified there were staffing problems at the facility.  There were numerous complaints from the staff at the facility requesting additional staffing in order to be able to provide adequate care for the residents.  Wilson at 6-8.  Despite these complaints, no additional staffing was provided to the facility.  Wilson at 7, 8

PART II (Seven year review) - What Tennessee jurisdictions were the most conservative or liberal for personal injury or death trials over the last seven years (July 1, 2005 – June 30, 2012)?

Every year the Tennessee Administrative Office of the Courts publishes the “Annual Report of the Tennessee Judiciary” to provide information on cases filed and decided in Tennessee.  I previously provided an article showing the percentage of trials in each Tennessee jurisdiction that resulted in damages (for personal injury or death cases) for fiscal year 2011-2012.  Based on the positive response to that article, I decided a longer term review was warranted to get more accurate numbers on how conservative or liberal a particular Tennessee jurisdiction is for trials involving personal injury cases.  The statistics in the below chart are for a seven year period from July 1, 2005 – June 30, 2012.  I will list the counties in order with the...

Tennessee Collateral Source Rule – Status of the pending proposed 2013 Tennessee legislation to abolish the collateral source rule in Tennessee.

The Tennessee legislature is considering many interesting pieces of legislation in the 2013 legislative session.  One bill that is of great interest to Tennessee attorneys as well as anyone handling Tennessee personal injury claims is SB 1184/HB 0978.  The bill is aptly named the “Phantom Damages Elimination Act”.  This bill would effectively abolish the collateral source rule in Tennessee. 

The collateral source rule prevents a defendant from introducing evidence that the injured plaintiff received payments from any other source to try to reduce or mitigate the damages sustained by the plaintiff.  The Tennessee Court of Appeals in Fye v. Kennedy, 991 S.W. 2d 754, 763 (Tenn. Ct. App. 1998) stated that:

An injured party's right to recover his or her “reasonable and necessary expenses” must be viewed in connection with the collateral source rule:

Normally, of course, in an action for damages in tort, the fact that the plaintiff has received payments from a collateral source, other than the defendant, is not admissible in evidence and does not reduce or mitigate the defendant's liability.

See also John Day’s detailed discussion of the collateral source rule on his blog for a more detailed discussion of the collateral source rule. 

Proposed SB 1184/HB 0978 would effectively eliminate the collateral source rule in Tennessee.  In fact, the language in the bill would only allow a plaintiff in a personal injury or wrongful death case to recover economic damages for medical and other costs of medical care for: