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Topic: Immunity

Volunteer Doctors who Provide Free Services Under the Volunteer Healthcare Services Act are Not Liable for Medical Malpractice Negligence in Tennessee

Posted on Aug 10 2014 8:53PM by Attorney, Jason A. Lee

The Volunteer Healthcare Services Act found in T.C.A. § 63-6-701 through 709 provides a certain level of immunity for volunteer physicians who provide healthcare in compliance with this statute.  Specifically, healthcare providers including physicians, surgeons, dentists, nurses, optometrists or “other practitioners of the healthcare discipline” who perform work for a “sponsoring organization” on a volunteer basis can be protected by the immunity provisions in this statute.

 

2014 Tennessee Statute Modification – Free Clinics Now Included:

 

In the 2014 Tennessee legislative session, this Act was amended in Public Chapter 575 in order to expand the amount of healthcare providers who receive protection under the act.  The bill summary provides a good explanation of this expansion as follows:

 

Under present law, no individual who is licensed, certified, or authorized by any board of the healing arts, who engages in the voluntary provision of health care services to any patient of a sponsoring organization is liable for any civil damages for any act or omission resulting from services rendered, unless the act or omission is a result of the individual's gross negligence or willful misconduct.

 
This bill extends the above immunity to services delivered at a free clinic.

This bill defines a "free clinic" as a not for profit, out-patient, non-hospital facility in which a health care provider engages in the voluntary provision of health care services to patients without charge to the recipient or a third party. "Voluntary provisions of health care services" is defined as providing health care services either without charge to the recipient or to a third party, or the recipient is charged on a sliding scale according to income.

 

Now, this protection extends to “free clinics” under the Act.  Prior to this legislative change, “free clinics” were not included in the protections afforded under these statutes.  “Free clinics” under the amended statute are defined in T.C.A. § 63-6-703 as:

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TAGS: Tennessee Medical Malpractice/Health Care Liability, Immunity Comments [0]
  
 

New Tennessee Statute Provides Immunity for Forcible Entry Into A Motor Vehicle to Remove Minor in Imminent Danger

Posted on Jul 13 2014 7:03PM by Attorney, Jason A. Lee

Analysis:  The Tennessee Legislature dealt with an interesting issue in the 2014 legislative session involving minor’s stuck in vehicles.  The legislature passed Public Chapter No. 788 and it took effect on July 1, 2014.  Apparently, there was some need to pass this statute although this statute really addresses a very rare circumstance.  It is of note, however, that this particular change in Tennessee law has received quite a bit of attention from the media even though there are other changes in the law that are much more substantial and significant but they receive no media attention. 

 

In summary this new statute basically provides immunity from civil liability for any damages resulting from forcible entry into a vehicle to remove a minor from the vehicle.  The person who removes the minor must have a good faith belief that forcible entry is necessary because the minor is in imminent danger of suffering harm.  There are also other requirements that are outlined in the statute and must be followed for this immunity to apply.  The new statute is found in T.C.A. § 29-34-209 and provides as follows:

 

(a) A person whose conduct conforms to the requirements of subsection (b) shall be immune from civil liability for any damage resulting from the forcible entry of a motor vehicle for the purpose of removing a minor from the vehicle.
(b) Subsection (a) applies if the person:
 (1) Determines the vehicle is locked or there is otherwise no reasonable method for the minor to exit the vehicle;
 (2) Has a good faith belief that forcible entry into the vehicle is necessary because the minor is in imminent danger of suffering harm if not immediately removed from  the vehicle and, based upon the circumstances known to the person at the time, the belief is a reasonable one;
 (3) Has contacted either the local law enforcement agency, the fire department or the 911 operator prior to forcibly entering the vehicle;
 (4) Places a notice on the vehicle's windshield with the person's contact information, the reason the entry was made, the location of the minor and that the  authorities have been notified;
 (5) Remains with the minor in a safe location, out of the elements but reasonably close to the vehicle until law enforcement, fire or other emergency responder  arrives; and
 (6) Used no more force to enter the vehicle and remove the child from the vehicle than is necessary under the circumstances.
(c) Nothing in this section shall affect the person's civil liability if the person attempts to render aid to the minor in addition to what is authorized by this section.

 

Obviously, it is likely a rare circumstance where this will occur (I am referring to the actual need for immunity to apply to protect someone from a lawsuit – I am aware that minors are sometimes left in vehicl...

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TAGS: Automobile/Motorcycle Liability, 2014 Tennessee Legislation, Defenses, Immunity Comments [0]
  
 

Tennessee Removes Sovereign Immunity for Claims Against Tennessee Governmental Entities Under the Uniformed Services Employment and Reemployment Rights Act

Posted on Jun 8 2014 6:36PM by Attorney, Jason A. Lee

Analysis:  I am working on several blog posts to try to update everyone on important Tennessee Legislative changes that came out of the 2014 Tennessee Legislative session.  These posts will touch on various topics and will be published over the next few months.  One change from the recent session is the removal of sovereign immunity for Tennessee governmental entities for claims against those entities under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).  The Uniformed Services Employment and Reemployment Rights Act is found in 38 USC §§ 4301-4334.  Basically, this federal legislation strengthens military veteran’s reemployment rights when they are required to serve in a war.  This has always been an important principle to protect in America and has been protected by numerous statutes over the years.  Basically, soldiers who fight in wars for this country should not lose their jobs because they had to fight in a war.

 

Under Tennessee law, however, governmental entities are provided with sovereign immunity under many circumstances.  Specifically, T.C.A. § 29-20-201(a) is one of the statutes (there are others) that addresses sovereign immunity and provides as follows:

 

(a) Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of such governmental entities wherein such governmental entities are engaged in the exercise and discharge of any of their functions, governmental or proprietary.

(b)(1) The general assembly finds and declares that the services of governmental entity boards, commissions, authorities and other governing agencies are critical to the efficient conduct and management of the public affairs of the citizens of this state. Complete and absolute immunity is req...

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TAGS: GTLA, Employment Law, Immunity Comments [0]
  
 

Tennessee Workers’ Compensation – The exclusive remedy rule and the intentional tort exception.

Posted on Jul 8 2013 7:58AM by Attorney, Jason A. Lee

Analysis:  The recent Tennessee Court of Appeals decision of Celia Moody Rodgers v. GCA Services Group, Inc. and Weakley County Tennessee, 2013 WL 543828 (Tenn. Ct. App. February 13, 2013) provided a good discussion about the exclusive remedy rule found in the Tennessee Workers Compensation Act at T.C.A. § 50-6-108(a).  Simply put, this rule provides that an employee can only sue his or her employer under Tennessee Workers Compensation Law for injuries sustained while working and not in a tort suit.  In this case, the plaintiffs asserted the employee died as a result of pneumonia she had because of her exposure to mold in her job with her employer.  The defendants filed motions to dismiss under the exclusive remedy rule asserting the employees only remedy was under the Tennessee Workers’ Compensation Act, not a suit in tort.  The trial court dismissed the case due to the exclusive remedy rule.

 

On appeal, the Tennessee Court of Appeals noted that Tennessee Workers Compensation Law “provides the exclusive remedy for an employee who is injured during the course and scope of his employment, meaning the employee is precluded from seeking tort damages for the injury.” Rodgers at 4 (quoting, Valencia v. Freeland and Lemm Constr. Co., 108 S.W.3d 239, 242 (Tenn. 2003)).  T.C.A. § 50-6-108(a) provides as follows:

 

The rights and remedies granted to an employee subject to this chapter, on account of personal injury or death by accident ... shall exclude all other rights and remedies of the employee, the employee's personal representative, dependents or next of kin, at common law or otherwise, on account of the injury or death.

 

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TAGS: Defenses, Tennessee Workers Compensation, Immunity Comments [0]
  
 

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

Posted on May 20 2013 8:10AM by Attorney, Jason A. Lee

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.

 

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TAGS: Defenses, Corporation/LLC Law, Immunity Comments [0]
  
 

Immunity - Can a person bring a cause of action in tort against their spouse under Tennessee law?

Posted on Jan 22 2013 2:44PM by Attorney, Jason A. Lee

Brief Summary:  The spousal immunity doctrine preventing causes of action in tort against a spouse no longer applies in Tennessee.  It was abolished by the Tennessee Supreme Court in 1983 in Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983).

 

Analysis:  I received a question about whether Tennessee law allows a person to bring a tort cause of action against their spouse.  I thought this was a good topic for a blog post.  Historically, Tennessee applied the doctrine of "interspousal immunity" as a bar for an individual's cause of action against their spouse.  The Tennessee Supreme Court abolished this rule in 1983 with the decision of Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983). 

 

The Tennessee Supreme Court in Davis discussed, in detail, the historical reasons and arguments for the "interspousal immunity" doctrine in Tennessee and in other states. Davis at 754 – 759.  (This is a very interesting discussion about the reasons and historical underpinnings for this doctrine if you are interested in this type of thing).  In 1983, when this decision was issued, states were turning away from this doctrine.

The Tennessee Supreme Court found that it was appropriate to abolish the "interspousal immunity" doctrine because the original reasons for the doctrine had been largely abandoned.  The court stated that "no plausible reasons for retaining it, and cognizant of the high cost exacted by the rule because of the absolute bar it places in the path of potentially meritorious claims, we hold that interspousal tort immunity is totally abolished in this State."  Davis at 759.

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TAGS: Negligence, Defenses, Immunity Comments [0]
  
 

Immunity - Can a child sue their parent in a tort suit in Tennessee?

Posted on Jan 15 2013 10:52AM by Attorney, Jason A. Lee

Brief Summary:  The parental immunity doctrine does apply in Tennessee but was limited by the Tennessee Supreme Court in 1994.  The doctrine is limited to “conduct that constitutes the exercise of parental authority, the performance of parental supervision, and the provision of parental care and custody.”

 

Analysis:  I recently received a question about whether a child can sue their parent for negligence in tort.  Historically, the doctrine of “parental immunity” barred such a cause of action.  This doctrine was first adopted by Tennessee Supreme Court in McKelvey v. McKelvey, 77 S.W. 664 (Tenn. 1903).  It was also reaffirmed as recently as 1985 by the Tennessee Supreme Court in Barranco v. Jackson, 690 S.W.2d 221 (Tenn. 1985).  However, this doctrine was modified by the Tennessee Supreme Court in 1994 in the case of Broadwell by Broadwell v. Holmes, 871 S.W.2d 471 (Tenn. 1994).

 

In Broadwell, the Tennessee Supreme Court noted the trend at that time across America was to modify and limit the absolute parental immunity doctrine.  As a result, the Court analyzed various modifications other states had enacted to the parental immunity doctrine (this is an interesting analysis if you are interested in this topic but it will not be restated here). Broadwell at 473 – 475.  The Court also noted the reasons and justification for this doctrine as follow: 

 

The parental right to govern the rearing of a child has been afforded protection under both the federal and state constitutions. This Court has stated, “Tennessee's historically strong protection of parental rights and the reasoning of federal constitutional cases convince us that parental rights constitute a fundamental liberty interest under Article I, Section 8 of the Tennessee Constitution.”  The integrity of the family unit has found protection against arbitrary state interference in the Due Process Clause of the Fourteenth Amendment.

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TAGS: Negligence, Automobile/Motorcycle Liability, Immunity Comments [0]
  
 

Whitewater Activity Immunity - T.C.A. § 70-7-201 et al. provides immunity to companies and individuals for certain Whitewater activities

Posted on Sep 11 2012 10:35AM by Attorney, Jason A. Lee

The Tennessee legislature adopted Public Chapter No. 862 which was signed by Governor, Bill Haslam, on May 1, 2012 and is effective on that date.  This bill created T.C.A. § 70-7-201 through T.C.A. § 70-7-205.  The general purpose of these new statutes is identified in the bill.  The bill states the purpose is to “encourage Whitewater activities by limiting the civil liability of those involved in such activities” in Tennessee.  This statute provides immunity from civil suit in certain circumstances in T.C.A. § 70-7-202 which states: 

 

Except as provided in § 70-7-203:

(1) A Whitewater professional shall not be liable for an injury to or the death of a participant resulting from the inherent risks of Whitewater activities; and

(2) No participant or participant's representative shall make any claim against, maintain an action against, or recover from a Whitewater professional, or any other participant for injury, loss, damages, or death of the participant resulting from any of the inherent risks of Whitewater activities.

 

As a result, the statute provides immunity to Whitewater professionals for many Whitewater activities that could result in injury.  A “Whitewater professional” is defined in the statute as “a person, corporation, LLC, partnership, natural person or any other entity engaged for compensation in whitewater activity.”  The term “inherent risks of Whitewater activities” is also a defined term in the statute and the immunity only applies if the injury results from one of the defined inherent risks.  “Inherent risks of Whitewater activities” is defined in T.C.A. § 70-7-201 as follows:

 

(2) “Inherent risks of Whitewater activities” means those dangers or conditions that are an integral part of Whitewater activities, including, but not limited to:

(A) Water;

(B) Rocks and obstructions;

(C) Cold water and weather; and

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TAGS: Negligence, Immunity, Miscellaneous Comments [0]
  
 

First Responder Immunity – New Tennessee statute T.C.A. § 29-34-208 provides immunity to first responders for forcible entry into home or business

Posted on Aug 6 2012 7:55AM by Attorney, Jason A. Lee

On April 27, 2012, a new law was adopted in Tennessee by Public Chapter No. 844 that provides civil liability immunity to “first responders” under certain circumstances.  This new law is called “Jaclyn’s Law” and can be found in T.C.A. § 29-34-203.  This statute provides immunity to first responders from civil liability for forcible entry into a home, business or other structure under specific circumstances specified in the statute.  T.C.A. § 29-34-203 provides as follows: 

 

(a) As used in this section, “first responder” means a law-enforcement officer, firefighter, emergency services personnel or other person who responds to calls for emergency assistance from a 911 call.

(b) A first responder and the responder's supervisor, agency, employer or supervising entity is immune from civil liability resulting from a forcible entry of a home, business or other structure if the first responder:

(1) Is responding to a documented 911 call for emergency assistance;

(2) Has made reasonable efforts to summon an occupant of the home, business, or structure that made the call by knocking or otherwise notifying the occupant of the first responder's presence;

(3) Has not received a response from an occupant within a reasonable period of time after making reasonable efforts pursuant to subdivision (b)(2); and

(4) Has a good faith belief that it is necessary to make a forcible entry for the purposes of rendering emergency assistance or preventing imminent bodily harm.

(c) Nothing in this section shall affect the standard of care a first responder must employ when rendering aid after gaining entry.

 

The reason this law was passed in Tennessee was due to an individual by the name of Jaclyn Alden who was at her home when she called 911 due to an emergency.  She could not make it to the door to let the emergency responders into her house.  As a result, the emergency responders left the house because there was no response.  M...

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TAGS: Immunity, Miscellaneous Comments [0]
  
 

Automobile Dealership Immunity – T.C.A. § 55-10-311 eliminates vicarious liability of automobile dealerships for loaner vehicles

Posted on Jul 27 2012 7:54AM by Attorney, Jason A. Lee

The Tennessee legislature adopted Public Chapter No. 884 which was signed by Governor Bill Haslam on May 9, 2012.  This bill amended T.C.A. § 55-10-311 to add a provision that eliminates the vicarious liability of automobile dealerships who provide loaner vehicles in certain circumstances.  The pertinent amendment to the bill is T.C.A. § 55-10-311(b)* which now provides: 

 

(b) Any automobile dealer who provides a loaner vehicle to a customer without charge while the customer's vehicle is being serviced or repaired by the dealer shall not be vicariously liable under any vicarious liability theory, to any person injured as the result of an accident caused in whole or in part by a customer driving a loaner vehicle provided by the dealer where the dealer was provided with proof of insurance by the customer prior to the customer being provided with the loaner vehicle.

 

This amendment to the statute eliminates vicarious liability for an automobile dealership that loans a car to a customer, without charge, while that customer’s automobile is being serviced or repaired.  The only requirement for the elimination of vicarious liability is that the dealer must have received proof of insurance by the customer prior to the time that the customer was provided with the loaner vehicle. 

 

T.C.A. § 55-10-312* was also amended by adding subsection (b) to the statute as follows: 

 

(a) Proof of the registration of the motor-propelled vehicle in the name of any person shall be prima facie evidence of ownership of the motor propelled vehicle by the person in whose name the vehicle is registered; and the proof of registration shall likewise be prima facie evidence that the vehicle was then and there being operated by the owner or by the owner's servant for the owner's use and benefit and within the course and scope of the servant's employment.

 

(b) Subsection (a) shall not apply any automobile dealer who provides a customer a loaner vehicle without charge while the customer's vehicle is being serviced or repaired by the dealer. The dealer shall not be vicariously liable under any vicarious liability theory, to any person injured as the result of an accident caused in whole or in part by a customer driving a loaner vehicle provided by the dealer where the dealer was pro...

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TAGS: Automobile/Motorcycle Liability, Immunity, Miscellaneous Comments [0]
  
 
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