Tennessee Defense

Lawyers Association

TDLA News

  • 18 Jul 2016 4:00 PM | Mary Gadd (Administrator)
    The Tennessee Defense Lawyers Association wishes to recognize the talent and achievements of our members by presenting the following two annual awards at the Fall Meeting’s Friday night event: "Defense Lawyer of the Year" and the "Rising Star Award". Nominations are now being accepted. The Deadline for nominations is August 31, 2016. To be eligible for the awards, nominees must be members in good standing of TDLA.


    The 2016 TDLA Awards Nomination Form may be found by clicking here.

  • 29 Jun 2016 12:00 PM | Mary Gadd (Administrator)

    On June 2, 2016, the Western Section of the Tennessee Court of Appeals issued its opinion in Dedmon v. Steelman, No. W2015-01462-COA-R9-CV (Tenn. Ct. App. June 2, 2016).  Judge Brandon O. Gibson delivered the opinion, in which Judge Andy D. Bennett joined, and Judge Joe G. Riley, sitting as a Special Judge on the panel, filed a concurring opinion.  The Dedmon case, on interlocutory appeal from the Circuit Court of Crockett County, Tennessee, directly addressed the case of West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014), and considered its effect on personal injury litigation in Tennessee. 

    As a brief summary, the Tennessee Supreme Court’s decision in West considered the appropriate measure of “reasonable medical expenses” in the context of the Hospital Lien Act (“HLA”), codified at Tenn. Code Ann. § 29-22-101(a).  Under the HLA, medical providers are entitled to recover, through a lien, for the “reasonable medical expenses” resulting from their treatment of a patient.  In West, the Court considered the scope of the “reasonable expenses” that can be recovered by medical providers under this Act.  The Supreme Court looked past the often-illusory “unadjusted charges” issued by modern healthcare companies and found that “with regard to an insurance company’s customers, ‘reasonable charges’ are the charges agreed to by the insurance company and the hospital.  [The hospital’s] contract with [the insurer] defined what the reasonable charges for the medical services provided to [its patients] would be.”  West, 459 S.W.3d at 46.  With this in mind, the Court limited the amount a hospital could recover as “reasonable expenses” to the amount paid and accepted in satisfaction of a patient’s bill.  The West Court further explained that the concept of “reasonable medical expenses” is “well known to the bench and bar,” applying not only in the hospital lien context, but also in medical malpractice actions, workers’ compensation actions, and personal injury actions.

    Based upon this decision and the far-reaching language used by the Supreme Court, many members of the Defense Bar began pursuing efforts to limit recoverable medical expenses in personal injury actions to the amount paid on a Plaintiff’s behalf and accepted in satisfaction of a Plaintiff’s bill.  These efforts were fiercely opposed by Plaintiffs hoping to pocket the difference between the unadjusted charges and actual charges as “phantom damages.”  The Plaintiffs’ Bar routinely argued this price difference, known as the “negotiated price differential” was a benefit conferred to the Plaintiff through insurance, and therefore was protected by the long-standing collateral source rule.  These opposing arguments were met with varying degrees of success in both state and federal trial courts, and conflicting orders appeared across the state.

    In Dedmon, expressly relying upon the authority of West, the Defendants filed a motion in limine seeking to prohibit the Plaintiff from introducing evidence of any medical “expenses” exceeding the amounts accepted by the Plaintiff’s healthcare providers in satisfaction of the Plaintiff’s medical bills. Defendants argued that these excess charges were unreasonable as a matter of law following West. Though acknowledging that West construed “reasonable expenses” under the HLA, the trial court judge concluded: “I cannot imagine that [the Tennessee Supreme Court] would use any other logic in this situation than they used in that situation.”  Dedmon v. Steelman, No. W2015-01462-COA-R9-CV at 3 (Tenn. Ct. App. June 2, 2016).  Accordingly, the Defendants’ motion in limine was granted, and an interlocutory appeal followed.  Although the Court of Appeals ultimately reversed the trial court’s order, it is important to recognize that the Dedmon opinion is not necessarily “bad” for Defendants.  Rather, the Court charted a middle ground between the two sides, ultimately adopting a “hybrid approach” that will allow Plaintiffs to present evidence of the full, “unadjusted” charges issued by healthcare providers, but will also allow Defendants to present evidence of the lower, “adjusted” charges that were actually paid in order to refute the excess charges claimed by Plaintiffs.

    In considering the issue, the Court of Appeals acknowledged that the concept of “reasonable medical expenses” has come under increased scrutiny in recent years “due to the increased involvement of government payors, the complexity of health care reimbursement provisions, financial pressures on hospitals, and the significance of medical expense recovery in personal injury litigation.”  Dedmon at 6.   The Court further noted that the unadjusted charges issued by healthcare providers are “vastly different” than the amounts actually paid on behalf of patients.  Id. at 7 n.5.  However, the Court concluded that under existing authority, “damages in personal injury cases are not measured by ‘fixed rules of law’ but rest largely in the discretion of the trier of fact.”  Id. at 13 (quoting Roberts v. Davis, 2001 WL 921903, at *4 (Tenn. Ct. App. Aug. 7, 2001)). The Court found that Plaintiffs are entitled to present expert testimony regarding the reasonableness of their claimed damages.  Id. (citing Borner v. Autry, 284 S.W.3d 216, 218 (Tenn. 2009)).  However, the Court further found that “existing law in this state also makes clear that Defendants are permitted to offer proof contradicting the reasonableness of the medical expenses.”  Id. at 16.  Although Defendants were cautioned not to run afoul of the collateral source rule by indicating how a bill was actually paid, “allowing evidence that a medical bill was satisfied for a lower amount does not necessarily require evidence that the payment was made by a collateral source such as insurance.”  Id. at 7 n.6.  As the Court explained, the collateral source rule “does not address, much less bar, the admission of evidence indicating that something less than the charged amount has satisfied, or will satisfy, the amount billed.”  Id. at 17 (quoting Martinez v. Milburn Enters., Inc., 233 P.3d 205, 222–23 (Kan. 2010)).  In so holding, the Court specifically addressed and refuted the argument that the “negotiated price differential” is somehow protected by the collateral source rule.  Thus, under Dedmon, Plaintiffs will no longer be able to use the collateral source rule as sword and shield when telling juries how much their medical expenses are.  Juries will still determine the reasonable expenses, but only after hearing both sides of the story.

    It should also be noted that the Court of Appeals specifically asked the Supreme Court to review this case to weigh in on whether the logic of West should apply in the context of personal injury actions.  In his concurring opinion, Judge Riley agreed with the majority opinion based upon existing law; however, he further explained that “[w]ere it not for existing case law which we are bound to follow as an intermediate appellate court, I would apply the West rationale to personal injury litigation.” Judge Riley further opined that “modern day medical providers’ non-discounted charges generally dictate that that non-discounted charges are no longer reasonable medical expenses,” and “if the non-discounted charge is used as the reasonable medical expense, I believe the amount of the windfall to plaintiffs is no longer rationally based and is out of kilter as compared to the past.”  Thus, Judge Riley concluded:  “I see no reason to continue to provide the jury or other fact-finder with misleading data.” With both the majority and concurring opinion calling upon the Tennessee Supreme Court to consider this issue, it is likely that this matter will soon come under review once again.  In the meantime, however, the authority of Dedmon provides clear opportunity for Defendants to introduce the actual cost of medical expenses to challenge the often exorbitant “unadjusted” rates issued by healthcare providers.  This system leaves the ultimate decision to the jury, but it should limit the “phantom damages” recovered by Plaintiffs.

    For more information and pdf of TDLA's Amicus Brief, please click here.

    *Attorneys Bradford D. Box and Adam P. Nelson with Rainey, Kizer, Reviere & Bell’s Tort and Insurance Defense section submitted an Amicus Brief on behalf of the TDLA in support of the Defendant’s position.

  • 18 May 2016 12:00 PM | Mary Gadd (Administrator)

    TDLA Membership Renewals will begin in June. Members will receive an emailed invoice. Regular Members are $200/ year and Young Lawyer Members are $100/ year (for the first three years of their young lawyer membership). TDLA Membership runs from July 1 to June 30.

    Those who have enjoyed a one year free Membership because of their DRI membership, will have the chance to become a paid Regular or Young Lawyer TDLA member.

    If you need an Invoice, please email TDLA Executive Director at office@tdla.net

    You may renew your membership through PayPal (please note a processing fee does apply), or by check. To use PayPal, please go to our website renewal page here.

    Checks may be made payable to "Tennessee Defense Lawyers Association" and sent to:
    TDLA
    P.O. Box 282
    Lookout Mountain, TN 37350


  • 28 Mar 2016 3:00 PM | Mary Gadd (Administrator)

    The TDLA community lost a beloved member of our organization recently. Brian Trammell, of Trammell, Adkins & Ward, PC in Knoxville, TN was a TDLA President (1997-98) and former DRI State representative. The TDLA community mourns his loss, and our thoughts are with the Trammell family, friends and law partners during this time.

    Brian Trammell was 58 years old and passed away Sunday March 27. Funeral Arrangements will be by Rose Mortuary Mann Heritage Chapel. Full obituary may be read by clicking here.

    www.rosemortuary.com

  • 22 Mar 2016 10:00 AM | Mary Gadd (Administrator)

    The TDLA Board and Meeting Chair Robert E. Carden of Leitner, Williams Dooley & Napolitan, PLLC cordially invite you to join us at the beautiful Sandestin Golf & Beach Resort for the Annual TDLA/ ADLA Joint Meeting on June 16-19, 2016. We will begin on Thursday night June 16 with a great networking opportunity with your fellow TDLA members, the Alabama Defense Lawyers Association and the Alabama Association for Justice.

    Friday morning, June 17th, we will have a Joint seminar with ADLA, hosting an ethics program, an interesting hour on self-driving cars, a crucial meeting addressing amendments to the Federal Rules of Civil Procedure, and much more! Saturday morning, June 18th, will be TDLA specific presentations. Attorney Peter Winterburn with Lewis Thomason will be speaking on an issue concerning the constitutionality of certain aspects of the Tennessee Health Care Liability Act currently on appeal. Consultant Aref Jabbour with Trial Consultants will speak on the best ways to address decreasing attention spans among juries. Attorney Sean Martin of Carr Allison will present an update on workers’ compensation and tort liability in Tennessee.

    Look for H otel Room R equest Form within this newsletter! Check our website for updated information & Registration coming in April.

  • 13 Dec 2015 10:00 AM | Mary Gadd (Administrator)

    On June 19, 2015, the United States District Court for the Western District of Tennessee issued a favorable opinion for the firm's clients enforcing an assisted living facility’s arbitration agreement.  In the case, the resident’s son, and attorney in fact through two powers of attorney, signed the arbitration agreement on behalf of his mother in the process of admitting her to an assisted living facility.  Hagwood Adelman Tipton healthcare attorneys, Rebecca Adelman, PLLC, along with an associate, represented the firm’s clients.

    Plaintiff argued that the alternative dispute resolution agreement (ADR) was not enforceable on multiple grounds, including the unavailability of the National Arbitration Forum (NAF) as the arbitration service provider and that the wrongful death beneficiaries were not bound by the ADR.  The court disagreed with each of Plaintiff’s arguments.  Of importance, the court relied heavily on the contract itself rather than analyzing extraneous factors and the circumstances surround the signing of the arbitration agreement.  The court followed the trend of numerous federal courts in finding that the unavailability of the NAF does not render the ADR unenforceable because it was not an integral term of the contract and could be severed based on clear terms within the ADR.

    The court also disagreed with Plaintiff’s argument that the wrongful death beneficiaries were not bound by the terms of the ADR.  Tennessee follows a hybrid approach to the wrongful death statute, which finds that there can only be one cause of action under the wrongful death statute and the cause of action belongs to the deceased.  The court held that since the wrongful death claim belongs to the estate/deceased, the beneficiaries must seek their damages in whichever forum the estate agreed to, including arbitration.  As the court acknowledged, this issue had not been clearly decided under Tennessee law and, thus, this opinion provides clear guidance for future cases.

    Of note, the court granted the motion to compel arbitration and dismissed the suit without prejudice.  In many cases, courts stay the proceedings pending the conclusion of arbitration.  Here, the court found that because all of Plaintiff’s claims are within the substantive scope of the ADR, all of the claims are subject to arbitration and dismissed Plaintiff’s claims without prejudice.

    The decision in this case is very important for enforcing future motions to compel arbitration.  Many of the issues decided in this opinion have been heavily debated in recent years and the court’s opinion provides clear guidance for future cases.
    Attorney Adelman filed a memorandum and two sur-replies, per the court’s instruction, to fully brief the court on all issues, including specifically the wrongful death beneficiaries’ issue.  The court’s order agreed with each of the arguments presented by defense counsel.  

  • 21 Oct 2015 8:00 AM | Mary Gadd (Administrator)

    To view the 2015 Tennessee Legislative Update, please click here

  • 19 Oct 2015 8:00 AM | Mary Gadd (Administrator)

    Tennessee Defense Lawyers Association recently held its 49th Annual Meeting in Chattanooga, Tennessee on October 1-3, 2015. During the awards dinner event, TDLA  hosted a Silent Auction in which items were donated, and bid on, to raise money for the Chattanooga Heroes Fund.

    Established in July of this year by Peyton Manning and his family in partnership with Senator Bob Corker, former mayor of Chattanooga, the fund supports the families of those servicemen who lost their lives or were wounded in the tragic shootings in Chattanooga on July 16.

  • 13 Sep 2015 6:00 PM | Mary Gadd (Administrator)

    TDLA would like to welcome its newest member Katie Lamb. Katie is an associate with the law firm of Trammell, Adkins and Ward, PC in Knoxville, Tennessee.

  • 31 Jul 2015 7:00 AM | Mary Gadd (Administrator)

    Kay Anderson, attorney with The Hardison Law Firm in Memphis, Tennessee, successfully defended a general surgeon in the state Circuit Court in a case involving a low anterior repair operation. The plaintiff was a morbidly obese woman who had six previous abdominal surgeries. She presented to the emergency department with severe pain caused by diverticulitis. After a period of time to rest the bowel, the physician and his resident performed the procedure. They were able to visualize the ureters and move them away from the line of surgery. They successfully reconnected the colon to the rectum. After an uneventful post-operative course the patient was discharged. She returned to the emergency department with complaints of flank pain and was diagnosed with an obstructed ureter. A second surgery was performed to deal with this obstruction whereupon it was discovered that the ureter was parallel to the anastomosis with a staple across the ureter. The second surgery was a success and the plaintiff suffered no kidney damage. She subsequently developed a deep vein thrombosis and a hernia. She filed the lawsuit claiming the stapling of the ureter caused damages. After a two week trial, the jury found the physician had complied with the recognized standard of acceptable professional practice and was not liable.

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