Tennessee Supreme Court Holds That Wrongful Death Claim Belongs to Surviving Spouse

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Although the circumstances were unusual, the Tennessee Supreme has clarified that under Tennessee law a wrongful death claim did not belong to the decedent, but passed to decedent’s husband upon her death, Linda Beard v. James William Branson and Trinity Hospital, L.L.C.   The husband had filed a pro se wrongful death malpractice lawsuit shortly before the one-year statute of limitations lapsed. After expiration of the limitations period, he retained an attorney and filed an amended complaint. The decedent was also survived by two daughters. The defendants filed motions for summary judgment arguing that the husband’s initial pro se complaint was filed in a representative capacity on behalf of the decedent and the other statutory beneficiaries and that it was, therefore, void ab initio.  They contended that the amended complaint could not relate back to the date of the initial complaint, and the lawsuit was therefore time-barred. The trial court denied the summary judgment motions and held a jury trial where the jury found both defendants liable and awarded damages.  The Court of Appeals had reversed and held that the claim belonged to the decedent and therefore the husband could not file a lawsuit without a lawyer.

This all started back in 2004, when Ruth Hartley was admitted to Trinity Hospital in Erin, Tennessee for elective colon surgery.  She developed complications from the surgery and died.  It is a sad commentary on our judicial system that this case has gone on for 13 years.  A unanimous Supreme Court held that under the plain language of Tennessee’s wrongful death statutes, the decedent’s right of action “pass[es] to” the surviving spouse upon the decedent’s death, and the surviving spouse asserts the right of action for the benefit of himself and other beneficiaries. Tenn. Code Ann. § 20-5-106, reversing the Court of Appeals, but sending the case back to the intermediate appellate court for consideration of other issues.

The opinion by Justice Holly Kirby is recommended reading, as she discusses Tennessee’s confusing statutory wrongful death scheme, which she describes as “a hybrid between the survival and wrongful death statutes, resulting in a statutory scheme with a ‘split personality.'”

Is Tennessee Ready for Self-Driving Cars?

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Effective June 6, 2017, self-driving or “robot” cars are legal in Tennessee, provided a human being is in the car, and provided that the vehicle is covered by at least $5,000,000 in liability insurance (Senate Bill 151).

The new law defines “automated driving system” or “ADS” as “technology installed on a motor vehicle that has the capability to drive the vehicle on which the technology is installed in high or full automation mode without any supervision by a human operator. The technology includes specific driving mode performance by the automated driving system of all aspects of the dynamic driving task that can be managed by a human driver. It also includes the ability to automatically bring the motor vehicle into a minimal risk condition in the event of a critical vehicle or system failure or other emergency event.”

Under the new law, when the ADS is fully engaged, the ADS is the driver for purposes of determining liability. This is important for liability purposes, as it means that we do not have to prove a product liability case when there is an accident caused by a robot or self-driving car.  Products liability cases are typically complex and expensive to pursue, involving lots of expert witnesses and industry stone-walling. It appears that the ADS will be judged just like a human driver.  For instance, did the robot vehicle run a red light or did it have a green light?  Did it fail to yield the right of way?  Was it speeding?

According to the National Conference of State Legislatures, the number of states considering legislation related to autonomous vehicles has gradually increased in recent years, and now includes Tennessee:

  • In 2017, 33 states have introduced legislation. Last year, 20 states introduced legislation.
  • Sixteen states introduced legislation in 2015, up from 12 states in 2014, nine states and D.C. in 2013, and six states in 2012.
  • Since 2012, at least 41 states and D.C. have considered legislation related to autonomous vehicles.
  • Nineteen states—Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Louisiana, Michigan, New York, Nevada, North Dakota, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia and Vermont—and Washington D.C. have passed legislation related to autonomous vehicles.
  • Governors in Arizona,MassachusettsWashington and Wisconsin issued executive orders related to autonomous vehicles.

Only New Law Taking Effect in Georgia July 1st Affecting Tort Cases Involves Minor Change to Venue Provisions of State Tort Claims Act

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Typically, many laws passed by the Georgia legislature take effect July 1st.  This year, the only substantive change affecting some civil lawsuits is a minor change to the venue provisions of the State Tort Claims Act. Senate Bill 126 amended the Code section relating to venue for tort actions against the State by adding certain specifications. Currently, under O.C.G.A. § 50-21-28, tort actions against the state must be brought in the state or superior court of the county where the loss occurred; SB 126 requires that tort actions against the state be brought in the state or superior court of the county where the tort that gave rise to the loss occurred. The bill also codified longstanding case law indicating that wrongful death actions against the state may be brought in the county where the tort giving rise to the loss occurred or the county where the decedent died. This bill resulted from the State’s concern that a 2015 case interpreted the “where the loss occurred” to allow plaintiffs to file tort claims act cases in any county where they experienced symptoms from the injuries sustained in the incident giving rise to the tort claim or in any county where they incurred medical bills for the injury. The new provisions only affect causes of action filed on or after July 1, 2017.

Here is the full text of the amended statute, § 50-21-28:

“All tort actions against the state under this article shall be brought in the state or superior court of the county wherein the tort giving rise to the loss occurred; provided, however, that, wrongful death actions may be brought in the county wherein the tort giving rise to the loss occurred or the county wherein the decedent died, and provided, further, that in any case in which an officer or employee of the state may be included as a defendant in his or her individual capacity, the action may be brought in the county of residence of such officer or employee. All actions against the state for losses sustained in any other state shall be brought in the county of residence of any officer or employee residing in this state upon whose actions or omissions the claim against the state is based.”

Florida Supreme Court Holds Caps on Noneconomic Damages in Medical Malpractice Cases to be Invalid

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Complications from carpal tunnel surgery left the plaintiff severely injured. She suffered horrible injuries as a result of what was supposed to be routine surgery for carpel tunnel syndrome, including several weeks in a drug induced coma.  After trial, her noneconomic damages were capped by provisions of Florida law, which provided that the noneconomic damages award could not exceed $500,000 per claimant in medical malpractice cases, unless the malpractice caused a permanent vegetative state or death, or if the negligence caused a catastrophic injury and a manifest injustice would occur unless increased damages were awarded, and then damages could be awarded up to $1 million. Other provisions limited damages to $750,000 and $1.5 million, respectively, when the injury resulted from the negligence of nonpractitioners. As a result, the trial court reduced a jury verdict of over $4,000,000 to about $2,000,000.

On June 8, 2017, in North Broward Hospital v. Kalitan, SC15-1858, the Florida Supreme Court held that the caps on personal injury noneconomic damages in medical negligence actions violated the Equal Protection Clause of the Florida Constitution, and declared the caps invalid, relying on the Court’s earlier decision in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), which held that a cap on wrongful death noneconomic damages also violated the Equal Protection Clause of the Florida Constitution.

The Georgia Supreme Court declared similar caps on noneconomic damages in medical malpractice cases invalid in 2010 in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731.

In 2011, the Tennessee legislature imposed a cap of $750,000 on noneconomic damages in all personal injury and death cases, but the Tennessee Supreme Court has yet to rule on the caps. Let’s hope the Tennessee justices show the same courage as those in Florida and Georgia and do what is right for the severely injured.

FMCSA Backs Off From Increasing Minimum Liability Insurance Limits

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For over two years, the Federal Motor Carrier Safety Administration has been considering requiring trucking companies to carry more liability insurance to protect the public. Unfortunately, under the Trump administration, FMCSA has just withdrawn its November 28, 2014 advance notice of proposed rulemaking (ANPRM) concerning financial responsibility for motor carriers, freight forwarders, and brokers. FMCSA is authorized to establish minimum levels of financial responsibility for motor carriers at or above the minimum levels set by Congress. In the ANPRM, FMCSA sought public comment on whether to exercise its discretion to increase the minimum levels of financial responsibility, and, if so, to what levels. Currently motor carriers, i.e. trucking companies, only have to carry $750,000 of liability insurance. The agency was considering increasing the minimum limits to as much as $5,000,000.  FMCSA now claims that after reviewing all public comments to the ANPRM, it has determined that it has insufficient data or information to support moving forward with a rulemaking proposal, at this time.  That means they have bowed to political and lobbying pressure from the trucking industry and backed down, leaving the motoring public at risk from financially irresponsible operators who cause catastrophic wrecks.

Jefferson County Circuit Judge Strikes Down Alabama’s Workers’ Compensation Act.

By | Alabama Workers Compensation | No Comments

On May 8, 2017, an Alabama Circuit Court judge declared the state’s entire workers’ comp system unconstitutional.

Judge Pat Ballard of the 10th Judicial Circuit in Jefferson County took issue with two statutory provisions that cap attorney fees and permanent partial disability benefits – but because the Alabama Workers’ Compensation Act contains a non-severability clause, he tossed the whole thing.

He stayed enforcement of his order for 120 days to give lawmakers a chance to cure the deficiencies he identified in Alabama Code Sections 25-5-68 and 25-5-90.But the legislative session ends in less than two weeks, so lawmakers will have to act fast.

In Clower v. CVS Caremark Corp., Ballard found that Section 25-5-68 impermissibly subjects workers to differential treatment depending on whether they had permanent disabilities that were partially or totally disabling. Section 25-5-68 provides that the maximum compensation payable for PPD “shall be no more than the lesser of $220 per week or 100% of the average weekly wage.” Unlike the benefits available for totally disabling injuries, this is a hard cap that is not adjusted for inflation and increases in the cost of living.

Temporary total and permanent total disability benefits in Alabama are tied to the statewide average weekly wage, which is revised every year, but “PPD rates have stagnated in place at $220 per week for three decades,” Ballard noted. Providing temporarily disabled workers “with an indexed system of benefits and denying it to those permanently disabled (to an extent less than totally) makes no rational sense at all,” he opined. Ballard also said he also thought there was “little credibility” for a benefit structure that pays the same $220 weekly benefit to a worker who had been making $350 per week and a worker who had been making $3,000 per week.

“There cannot conceivably be any more arbitrary, capricious, irrational, or attenuated idea than telling both workers that ‘equal protection of the laws’ means that they each get the identical amount,” Ballard contended. What’s more, Ballard said an income of $220 per week would have kept a family of four above the poverty line when the Section 25-5-68 cap was imposed 30 years ago – but now that amount is 46.4% of the poverty level for the same family. “What once qualified as an adequate ‘remedy’ for those partially disabled no longer does,” Ballard said. As the cost of living continues to rise, Ballard reasoned that the value of a $220 weekly benefit has “rotted away” to the point that it is “too infirm to qualify as a ‘remedy’ sufficient to meet the requirement that the Workers’ Compensation Act involve adequate ‘quid pro quo’ to pass constitutional muster.”

Ballard then went on to find the attorney fee cap in Section 25-5-90(a) unconstitutional as well. The statute limits a claimants’ attorney to a fee of no more than 15% of the compensation awarded to an injured worker – without any exception.

Last year, the similarly unyielding nature of Florida’s attorney fee statute led that state’s Supreme Court to strike the statute down as unconstitutional. Ballard said he found the Florida Supreme Court’s reasoning in Castellanos v. Next Door Co. to be persuasive. He also said he agreed with the reasoning of the Utah Supreme Court, which declared the Utah fee state unconstitutional in Injured Workers’ Association of Utah v. State. The Utah court’s decision had been based on the fact that the state constitution placed the regulation of attorney fees falls within the judicial branch’s authority. In Alabama, Ballard said, the task of regulating attorney fees has historically been a function of the judiciary as well. He said he viewed Section 25-5-90(a) as a “legislative trespass into a function reserved to the judicial branch of government.”

The low rate of PPD meant an attorney’s prospective fee from taking on a client with a PPD claim wouldn’t be very much, and so the joint operation of Sections 25-5-68 and 25-5-90 discourages lawyers from taking the cases, leaving the injured workers at the mercy of the employer and insurer.

Will Pena-Rodriguez v. Colorado Permit Challenges to Civil Jury Verdicts Based on Racial Bias?

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In Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) the Supreme Court held that a private litigant in a civil jury trial may not use racially‐motivated peremptory strikes any more than a government prosecutor may during a criminal trial, “Racial discrimination has no place in the courtroom, whether the proceeding is civil or criminal.” The Supreme Court explained that, for the limited purpose of jury selection, private litigants act as “government actors” and thus cannot violate the jurors’ constitutionally guaranteed equal protection rights.  Although mostly used in criminal cases, such Batson challenges to a racially motivated peremptory strike are occasionally utilized in civil cases during the selection process.

Recently, in Pena-Rodriguez v. Colorado, 197 L. Ed. 2d 107 (3/6/17), the Supreme Court has held that inquiry can be made into the validity of a jury verdict to permit the trial court to consider evidence of a juror’s statement suggesting that racial bias influenced his decision to find a defendant guilty of harassment and unlawful sexual contact.  One juror told the other jurors that he believed defendant was guilty because, in his experience as a former law enforcement officer, “Mexican men had a bravado that caused them to believe they could do whatever they wanted with women”

Although Pena-Rodriguez v. Colorado involved a criminal conviction, it is likely that it will be applicable in civil cases as well, as the Supreme Court cited Edmonson after stating: “To guard against discrimination in jury selection, the Court has ruled that no litigant may exclude a prospective juror on the basis of race.”

In civil cases, racial bias can play a role, either for or against a particular litigant.  Generally the sanctity of jury verdicts is upheld by the courts and inquiry into why or how a jury reached a particular verdict has not been permitted.  However, the U.S. Supreme Court has apparently opened the door to such inquiry if there is evidence of racial bias affecting the outcome.

Georgia Nursing Home Arbitration Clauses Held Binding on Family Members in Wrong Death Cases

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The Georgia Supreme Court has held that an arbitration clause signed by the decedent (or by a person having power-of-attorney for the decedent) in a nursing home case is enforceable and requires the decedent’s wrongful-death beneficiaries to arbitrate their claims, United Health Services v. Norton, S16G1143 (3/6/17).  The Court of Appeals had held otherwise, 336 Ga. App. 51, 55 (Ga. App. 2016) and got reversed.  The Supreme Court reasoned that a wrongful death action is a derivative claim and is subject to any defenses that would have been good against the decedent.

Arbitration clauses, governed by the Federal Arbitration Act, are common in the admissions paperwork at nursing homes, often signed without question by the patient or the person holding a power of attorney for the patient.

In the Norton case a person with a power of attorney signed the admitting papers for the patient, including an arbitration clause with the following language:

“This Agreement shall inure to the benefit of and bind the Patient/Resident and the Healthcare Center, their successors, assigns, and intended and incidental beneficiaries…. The term “Patient/Resident” shall include the Patient/Resident, his or her guardian, attorney-in-fact, agent, sponsor, representative, or any person whose claim is derived through or on behalf of the Patient/Resident, including, in addition to those already listed in this Paragraph, any parent, spouse, child, executor, administrator, heir, or survivor entitled to bring a wrongful death claim.”

Patients and family are typically not thinking of bringing wrongful death lawsuits against the nursing they are trusting to provide care, but the nursing homes are, and the Supreme Court has now held that the clause was binding on the deceased’s family members.  Arbitration is an expensive and burdensome process that can now supersede the constitutional right to trial by jury.

Any lawyers who prepare powers of attorney and/or advance directives should consider including the following language (or something similar) to sidestep this unfortunate ruling:

Notwithstanding any other provision of this Power of Attorney, my Agent does not have the authority to waive my right to a jury trial or my right to assert in any forum any claim I may have or a claim that may relate to me, such as a claim for personal injury or wrongful death. My Agent has no authority to enter into any agreement under which I am required to enter arbitration or any other proceeding, binding or otherwise.


Georgia Chiropractor Alleged to Have Falsified Thousands of DOT Physical Exams for Truckers

By | Trucking, Uncategorized | No Comments

Truckers came by the thousands from all across the country, pulling into into the Petro Stopping Center, a 24-hour truck stop off Interstate 285 in Atlanta, where they could find coffee and CB radios, tires and a tattoo shop, and a chiropractor, known as “Dr. Tony.”  Dr. Anthony Lefteris got federally certified in 2014 to conduct the DOT medical exams that truckers must pass to get their commercial driver’s license (CDL). Lefteris is alleged to have completed nearly as many exams in an hour as a typical federally certified examiner did in a month. In less than three years, he issued more than 6,500 certificates of good health to truckers from 43 states!  But they appear to have been falsified.

An anonymous tip from a trucker led to Lefteris’s arrest in December and he now faces criminal charges of falsifying documents filed with a federal agency.  All his bogus DOT cards have been revoked by FMCSA, and this could have repercussions throughout the industry, as those drivers may have been operating commercial vehicles illegally.

The Federal Motor Carrier Safety Administration (FMCSA) Issued the Following Public Notice December 28, 2016:

On December 1, 2016, a Criminal Complaint in the U.S. District Court, Northern District of Georgia, was issued against Anthony Lefteris, Doctor of Chiropractic (D.C.), National Registry of Certified Medical Examiners (“National Registry”) No. 8343724872, of Atlanta, Georgia.  Dr. Lefteris was charged with Making False Statements, in violation of Title 18, U.S.C. § 1001; and Making a False Entry in U.S. Department of Transportation’s Records with the Intent to Impede and Influence the Proper Administration of the U.S. Department of Transportation, in violation of Title 18, U.S.C. § 1519.

The investigation initiated by the U.S. Department of Transportation determined that while listed as a Certified Medical Examiner on the National Registry, Dr. Lefteris conducted a number of medical certification examinations that far exceeded a reasonable number of examinations.  An undercover investigation conducted by the Georgia Department of Public Safety revealed that the purported medical examinations conducted by Dr. Lefteris at a truck stop in Atlanta, Georgia, exhibited a pattern whereby the examination was incomplete, required tests were not performed and information on the medical examination form was falsified.

The Federal Motor Carrier Safety Administration (FMCSA) removed Dr. Lefteris from the National Registry on December 2, 2016.

USDOT/FMCSA intends to revoke all certificates issued by Dr. Lefteris to commercial motor vehicle operators within the past two years.

FMCSA offices nationwide are presently working with State Driver’s Licensing Agencies to obtain the contact information for all affected drivers. FMCSA is contacting these drivers and informing them that they have THIRTY DAYS to obtain a Medical Examiner’s Certificate from a Medical Examiner with valid certification on the National Registry.

Drivers and carriers with further questions should contact USDOT/FMCSA via email at FMCSAMedical@dot.gov

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or by calling 1-202-366-4001.

Hu Hamilton Interviewed for Front Page Times Free Press Article on Caps

By | General | No Comments

On Saturday, November 26th, the Chattanooga Times Free Press, in a front page article, reported on the limitations placed on damages by the Tennessee legislature and Governor Bill Haslam in 2011, and how that law could severely limit recoveries by injured children and the parents of those who were killed.  Here are excerpts from the article by Zack Peterson, Courts Reporter:

“Families of the children killed in Monday’s bus crash can receive no more than $750,000 in personal damages under Tennessee law.

Tweaks made in 2011 to Tennessee’s tort reform law limited payouts in personal injury lawsuits against doctors and other businesses to $750,000.

That will include family members who consider filing civil lawsuits against Durham School Services and Johnthony Walker, the bus driver who lost control of his vehicle and smashed into a telephone pole and a tree. Six children died from the crash and many more were injured.”

“In the early 2000s, Tennessee’s and Georgia’s general assemblies pursued tort reform after complaints from doctors that their insurance rates were raising because of fat damage awards in frivolous malpractice lawsuits. The doctors said they might have to leave the states if lawmakers didn’t cap non-economic damages, such as pain and suffering.

Tennessee lawmakers settled on a $750,000 cap, but jurors can award any amount up to that — or nothing at all.

A Republican-dominated General Assembly extended the cap to all businesses in 2011, archives show.”

“The cap applies to all personal injury awards,” said attorney Hu Hamilton. “And a lot of states just address medical malpractice. But Tennessee took a broad-brush approach and applied it to everything.”

Hamilton said he sued Durham School Services, the private company that provides most of the county’s school buses and drivers, in 2013 after a bus driver crossed the center line and caused an accident. That suit ended in settlement in 2015.

“They’re a very big company. They’re very well off. And they have plenty of insurance,” Hamilton said of Durham. “For a child, which is the context we’re talking about, the money goes to the parents. And $750,000 for the loss of a child is almost an insult.””

“One lawsuit can assert claims for medical expenses, pain and suffering, and any other non-economic damages. In Tennessee, juries break down each one, assigning a monetary value to each, Hamilton said.

However, if a jury returned an amount higher than $750,000 for non-economic damages, the judge would have to go back in and reduce that amount, because the cap still applies, Hamilton said.”

However, there is hope in a constitutional challenge, and there could be other options.  Any lawsuit involving the death of a child or a severely child should include a constitutional challenge to the caps. In other states, including Georgia, the courts have found such arbitrary limits to be an unconstitutional infringement of the right to trial by jury. The Tennessee Supreme Court has the power to find Tennessee’s $750,000 cap to be unconstitutional, but has yet to rule.

Filing suit in another state, such as Illinois should also be considered, and all other options should be considered, including punitive damages, if appropriate.

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