Modification to Tennessee Medicaid False Claims Act clarifies that employees, contractors and agents are entitled to relief for employment discrimination for efforts to stop violations of the Act.

Analysis:  The Tennessee Medicaid False Claims Act (“the Act”) is an important statute that is intended to prevent the filing of false or fraudulent Medicaid claims.  It has a specific provision that provides protections to employees and others who are discriminated against for taking any action against Medicaid fraud under the statute.  On April 11, 2013, Governor Bill Haslam signed Public Chapter No. 99 which was passed by the Tennessee Legislature in the 2013 Tennessee Legislative session.  It basically clarifies that this statute is also intended to provide protection to individuals who attempt to stop any violation of the Act.  Specifically they are entitled to protections if they experience any employment discrimination as a result of their actions to stop violations of the Act.  Prior to this amendment, the statute was not very clear on this issue.  The Tennessee legislature bill summary provides a good summary of the intent of this new legislation.  It provides as follows:

Generally, under the present Tennessee Medicaid False Claims Act (the Act), any employee, contractor, or agent who is discriminated against in the terms and conditions of employment because of lawful acts done in furtherance of an action for Medicaid fraud, including investigation for, initiation of, testimony for, or assistance in such an action, is entitled to all relief necessary to make the employee, contractor, or agent whole, including reinstatement, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained, including litigation costs and reasonable attorney's fees.

This bill clarifies that employees, contractors and agents would additionally be entitled to the relief described above for employment discrimination due to any effort of such person to stop a violation of the Act.

The new language is now found in T.C.A. § 71-5-183(g) which provides as follows:

Products Liability – Joint and several liability in product liability cases is significantly changed by new 2013 Tennessee Statute, T.C.A. § 29-11-107.

Brief Summary:  Joint and several liability between a manufacturer and seller of a product is abolished in Tennessee.  Joint and several liability in product liability actions now only apply between manufacturers under the legal theories of strict liability and breach of warranty.

Analysis:  One area of Tennessee law that retained a portion of the doctrine of joint and several liability since McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992) is in products liability actions.  The Tennessee Supreme Court in Owens v. Truckstops of America, 915 S.W.2d 420, 433 (Tenn. 1996) found that “the adoption of comparative fault did not alter that product liability law under which the liability of defendants in the chain of distribution of a product, who are liable under a theory of strict liability, is joint and several.”  In other areas of the law the Tennessee Supreme Court has issued several other decisions over the years that moved away from a general abolishment of joint and several liability.  Therefore, the Tennessee legislature addressed this issue in the 2013 Tennessee legislative session.  It passed Public Chapter No. 317 which was signed into law by Governor Bill Haslam on April 29, 2013.  This Public Chapter created a new statute, T.C.A. § 29-11-107, which provides as follows:

(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.

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. Ballentine, 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:

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