Tennessee Injury Attorney Blog

April 7, 2020

Tennessee Appeals Court Rules in Plaintiff’s Favor on Pre-Trial Motion in Case Involving Allegedly Dangerous Drug

Knoxville medical malpractice cases and product liability lawsuits are typically quite different – different theories of liability, different possible defendants, and different possible damages. It is rare that these two types of cases get “mixed up” or combined into a single lawsuit. However, there are a few exceptions to this general rule. A recent case explores a scenario in which the parties disagreed about the ultimate nature of a lawsuit – and, hence, possible defenses to the plaintiff’s claims – against a doctor, a pharmacy, and some others resulting from an allegedly dangerous prescription medication taken by the plaintiff.

Facts of the Case

The primarily plaintiff in a recent appellate case was a man who was prescribed a certain medication for his diabetes in 2014. The following summer, the Food and Drug Administration issued a risk evaluation and mitigation strategy to warn of the risk of acute pancreatitis for those using the medication. According to the complaint filed by the plaintiff (joined by his wife), he was not warned of this risk by any of the defendants (a doctor, two medical groups, a home delivery pharmacy, and others). The plaintiff was later diagnosed with acute pancreatitis, sepsis, and acute respiratory failure; additional hospitalizations followed, as did a fall that occurred when the plaintiff was in a weakened physical state and which resulted in a severe traumatic brain injury.

The plaintiff’s lawsuit, filed in the Knox County Circuit Court, alleged that he had been damaged as a result of the acute pancreatitis and a subsequent traumatic brain injury caused by his use of the prescription medication and his medical providers’ failure to appropriately “prescribe, counsel, provide, utilize, and/or discontinue this medication.” The plaintiff alleged claims of both strict liability and simple negligence against the manufacturer of the medication; he also asserted health care liability claims against the other defendants. The home delivery pharmacy filed a motion to dismiss the plaintiff’s complaint based upon the “seller shield statute” of the Tennessee Product Liability Act, codified at Tennessee Code Annotated § 29-28-106. The trial court denied the motion.

March 24, 2020

Federal District Court Grants Discovery Sanctions in Tennessee Worker’s Negligence Lawsuit Against Crane Company Following Accident in Man Basket

by Mark Hartsoe

When someone is injured on the job, he or she is typically limited to the benefits available under workers’ compensation. However, there are some circumstances in which a third-party action can be brought, such as an east Tennessee personal injury lawsuit.

For instance, a recent case explored some of the complications that can arise when a worker is injured while performing tasks while standing on equipment owned by another company, on a job supervised by a second entity. Although the case was not fully resolved and may still proceed to trial, a federal district court judge imposed significant sanctions on the defendant due to its actions during the discovery phase of the case. This could potentially aid the parties in resolving their dispute prior to trial.

Facts of the Case

The plaintiff in a case filed in the United States District Court for the Middle District of Tennessee, Nashville Division, was a man who was injured during an accident involving a crane. According to the plaintiff, both of his legs were shattered when the crane’s “man basket,” in which he was standing, suddenly dropped 15 0r 20 feet due to either a malfunction of the crane or operator error. The plaintiff filed suit against the company that owned the crane and provided the operator for it, asserting claims for common law negligence and negligence per se due to the crane company’s alleged failure to comply with regulations promulgated by the Occupational Safety and Health Administration (OSHA). The crane company then filed a third-party claim against the bridge utility company that was in charge of the project during which the plaintiff was injured. The plaintiff’s employer’s workers’ compensation insurance company intervened to assert its subrogation rights. Through various motions, the parties sought discovery sanctions and/or other relief.

March 10, 2020

Tennessee Court of Appeals Addresses Constitutionality of Statute Providing for Ex Parte Interviews of Non-Party Health Care Providers in Medical Malpractice Lawsuits

by Mark Hartsoe

Discovery is an important part of a Tennessee personal injury lawsuit. During this phase of litigation, the parties exchange certain information, such as the names of factual witnesses and the opinions of potential experts. When conducted appropriately, discovery can lead to a settlement of a case. As the parties learn more about the strengths and weaknesses of their opponents’ cases, there tends to be a “meeting of the minds” as concerns at least some of the issues. However, not all discovery is conducted in a manner that aids the parties in the settlement process – especially if it happens behind closed doors and outside of the presence of the plaintiff and his or her counsel.

Facts of the Case

In a recent case addressing the constitutionality of a statute, the plaintiff was the daughter of a woman who allegedly died as a result of the defendant medical providers’ negligence. The daughter filed a healthcare liability wrongful death lawsuit, asserting that the defendants’ medical treatment of her mother fell below the applicable standard of care and that this breach of duty was the proximate cause of her mother’s death. As the lawsuit progressed, the defendants filed a motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f), requesting that they be permitted to conduct interviews of certain healthcare providers who had provided medical treatment to the plaintiff’s mother but had not been named as defendants in the case. These interviews were to take place outside the presence of the attorneys who represented the plaintiff in her lawsuit.

The plaintiff objected to the defendants’ motion for the qualified protective order on the basis that § 29-26-121(f) was unconstitutional. The trial court granted the defendants’ motions for the ex parte interviews, commenting that the legislature had overstepped its bounds in saying that “the court shall do something,” but opining that it was not a trial court judge’s place to declare a statute unconstitutional. The Tennessee Court of Appeals denied the plaintiff’s application for an interlocutory appeal, but the Tennessee Supreme Court granted her permission to seek review of the trial court’s ruling.

February 20, 2020

Tennessee Court of Appeals Reduces Remittitur Issued by Trial Court in Tractor Trailer Accident Case

by Mark Hartsoe

In a Tennessee truck accident case, an injured person may be able to recover money damages for several different types of loss, including loss of earning capacity. In simple terms, this means that the defendant has to pay the plaintiff the money that he or she would have been able to earn but for the accident.

Loss of earning capacity can be temporary (until the plaintiff physically recovers from the accident and returns to work), or it can be permanent (when the plaintiff is unlikely to ever be able to go back to work). The burden of proof is on the plaintiff to provide evidence of his or her lost earnings, both past and future, resulting from the wreck.

Sometimes, a jury may award an amount of damages that, when considered by the trial court judge or the court of appeals, was not in line with the evidence introduced at trial. Rather than start over with a new trial, the court may issue a “remittitur,” which reduces the amount the plaintiff ultimately receives as to one or more elements of damages but does not otherwise disturb the jury’s verdict in his or her favor as to liability or other issues. In other words, the plaintiff still wins; he or she just gets less money than the jury awarded.

February 6, 2020

Tennessee Appellate Court Finds Conflict Between City’s On-the-Job-Injury Policy and State Statute Setting Forth Presumption in Firefighter Death Cases

by Mark Hartsoe

Most workers in Tennessee are covered by workers’ compensation laws. However, some are not. For example, some public employees are not entitled to benefits under the same system that a fast food restaurant employee or factory worker would be covered.

In such cases, the employee (or, in a fatal illness or accident case, the worker’s family) may be entitled to some alternative type of benefits following an accident or sickness caused by the worker’s conditions of employment, but such a suit may be pursued more in the nature of a Tennessee personal injury or wrongful death lawsuit than a “regular” worker’s compensation case. Some governmental entities’ work injury coverage is administered through a third-party administrator who makes the initial decision in the case. This may be reviewed by an administrative law judge, a chancellor or circuit court judge, and, eventually, the appellate court.

Facts of the Case

In a recent case, the plaintiff was the widow of a city fireman who passed away in 2015. At the time of his death, the decedent had worked for the city’s fire department for some 20 years. His pre-hire physical examine revealed no signs of hypertension or other heart disease. After having completed a 24-hour workday that required him to manage calls on five separate calls, the decedent passed away within 12 hours of leaving his post. The widow sought on-the-job-injury benefits for the fireman’s death. The defendant’s third-party administrator denied the widow’s claim on the basis that no autopsy had been performed on the decedent as was required under the city’s on-the-job injury policy.

January 29, 2020

Class Action Lawsuit Accuses Insurance Company of Violating Tennessee Law in Handling of Uninsured Motorist Deductibles

by Mark Hartsoe

In a Tennessee car accident case, the defendant is usually the driver whose negligence caused the crash. If he or she was on the job at the time, his or her employer may also be named as a defendant based on the principles of vicarious liability. Sometimes, however, the negligent driver cannot be identified. This may happen in a hit-and-run accident, for example. In these cases, the plaintiff’s litigation opponent may be his or her own insurance company, provided that he or she had uninsured motorist insurance. A recent case dealt with the issue of whether an insured motorist insurance company violated Tennessee law in its dealings with own insureds in such cases.

Factual Allegations

In a recent case, the plaintiff filed a putative Tennessee state court class action lawsuit against the defendant insurance company, alleging that the defendant had unlawfully charged customers a deductible in accidents in which uninsured motorists were positively identified and solely at fault. The defendant admitted that this scenario did happen to the plaintiff but denied that there had been a policy or practice regarding charging deductible in uninsured motorist cases. The defendant further alleged that it was justified in denying the plaintiff’s claim because he had failed to accurately report that he was using his car to provide ridesharing services.

After the state court lawsuit had been pending for some time, the state court allowed the plaintiff to amend his complaint to add a request for punitive damages. This amendment increased the damages at issue to the threshold for removal to federal court, and the defendant removed the action to the United States District Court for the Western District of Tennessee. At the time of the removal, a motion to compel was pending.

January 22, 2020

Tennessee Court of Appeals Says Jury’s $0 Damages Award Was in Error, Given Plaintiff’s Serious Injuries

by Mark Hartsoe

Seeking fair compensation following an east Tennessee slip and fall accident can be a complex endeavor. Depending upon the circumstances, there may be multiple defendants, some of whom point the finger of blame at one another. In some situations, one or more of the defendants may seek to avoid liability by relying on a particular statute. One possible statute that may prevent an injured party from seeking compensation for his or her injuries is the Tennessee Workers’ Compensation Act, which prevents an employee from suing his or her employer for negligence in most circumstances. When a plaintiff is able to make out a viable case of negligence against a property owner, he or she may be able to recover payment for several different types of money damages for his or her physical injuries.

Facts of the Case

In a recent appellate court case originating in the Circuit Court for Hawkins County, Tennessee, the plaintiff was a man who was injured in a fall while helping build a house for the defendant landowner. The plaintiff brought a negligence action against the defendant, seeking compensation for his medical expenses, lost wages, pain and suffering, and other damages caused by the fall. In explaining why he did not seek workers’ compensation benefits, the plaintiff averred that the defendant had failed to have a certificate of insurability and had not insured him at the time of the accident; according to the plaintiff, his appropriate remedy was thus in tort, not in workers’ compensation.

The case proceeded to a jury trial, during which the defendant attempted to point the blame for the plaintiff’s injuries toward a third-party who was not involved in the lawsuit. According to the defendant, this third party was a handyman who was helping the defendant build the house. The jury found that the plaintiff was the employee of the handyman rather than the defendant, that the handyman was 60% at fault for the plaintiff’s injuries, that the plaintiff was 30% at fault for his injuries, that the defendant was 10% at fault for the plaintiff’s injuries, and that the plaintiff was not entitled to any money damages. The plaintiff appealed.

December 27, 2019

Alleged Nursing Home Arbitration Agreement Held Invalid by Tennessee Court of Appeals

by Mark Hartsoe

Doctors, nurses, hospitals, and nursing homes have a strong aversion to being sued. Of course, no one wants to be accused of carelessness or wrongdoing, and defendants facing claims of nursing home negligence or patient abuse are no different.

However, as compared to many other defendants, the medical establishment goes above and beyond in their efforts to dissuade injured individuals from seeking justice. Sometimes, such efforts begin very early in the process – with a requirement that a patient agree to arbitrate, rather than litigate, any possible claims as a condition to admission into a treatment facility. Fortunately, not all such attempts to deprive an injured person or his or her family of their day in court are successful. A Knoxville nursing home negligence lawyer may be able to challenge the validity of the agreement.

Facts of the Case

In a case filed in the Circuit Court for Shelby County, the plaintiff was a woman whose mother suffered a fractured tibia and fibula in a fall while she was a resident at the defendant nursing home. The plaintiff, acting as her mother’s next friend, filed suit against the defendant, asserting claims of ordinary negligence and violations of the Tennessee Healthcare Liability Act, codified at Tennessee Code Annotated §§ 29-26-101, et seq. In response, the defendant filed a motion to compel arbitration and to stay the proceedings, relying upon a 2013 agreement signed by the plaintiff on her mother’s behalf when the mother entered the defendant’s facility.

December 16, 2019

Distracted Driving – a Huge Problem on Tennessee Roadways

by Mark Hartsoe

We’re all busy these days. It isn’t surprising that many drivers attempt to “multi-task” by making phone calls or texting while driving. However, any time that a driver focuses his or her attention on something other than the road, he or she increases the chances of being in a Tennessee car accident.

Statistically speaking, about three people lose their lives in car crashes in Tennessee each day. Far too many of these accidents are caused by distracted driving, including cell phone and smart phone usage. The problem isn’t just in Tennessee, of course. Nationally, the National Highway Traffic Safety Administration estimates that over 3000 lives are lost annually in the United States because of distracted driving.

Distracted Driving is Extremely Dangerous

A driver can be distracted by many different things – carrying on a heated conversation with a passenger, eating or drinking, and applying cosmetics or engaging in other grooming (such as shaving) are all considered to be forms of distracted driving. However, the usage of electronic devices – especially smart phones, but also navigation systems, radios, and the like – is especially problematic.

November 20, 2019

Tennessee Court of Appeals Reverses Summary Judgment Granted to Insurance Agent and Agency in Insureds’ Failure-to-Procure Excess Uninsured Motorist Coverage Case

by Mark Hartsoe

Uninsured motorist insurance coverage is very important because it can be the only protection available to a person who is involved in an east Tennessee car accident with an uninsured driver (similarly, underinsured motorist coverage protects against situations in which the at-fault driver has some, but not enough, liability insurance. In cases in which coverage is triggered due to a defendant’s lack of coverage (or lack of sufficient coverage, as the case may be), the insurance company essentially “stands in the shoes” of the negligent driver. This means that the insurance company can offer defenses to liability, just as the driver would do under the same circumstances. An insurance company is an insurance company, after all, and the fact that its insured is on the other side of the suit does not change the insurer’s desire to limit the payout on the claim.

This can be very upsetting to policyholders who have been loyal customers, always paying their premiums on time and being careful drivers. What can come as an even worse surprise, however, is a customer thinking that he or she has uninsured motorist insurance coverage in place and then finding out – after an accident caused by another motorist – that he or she does not have such coverage.

Facts of the Case

In a recent case, the plaintiffs were a husband and wife who had previously lived in Georgia. When they lived in that state, they had $2,000,000 worth of excess uninsured motorist coverage, and their policy included a separate “line item premium” for the excess uninsured motorist coverage. After they moved to Tennessee in 2013, the plaintiff husband approached the defendant insurance broker and insurance agency about obtaining a personal umbrella insurance policy with the same coverage that the couple had in Georgia. According to the husband, he provided a copy of the Georgia policy so that the agent could help him obtain similar coverage in Tennessee.