Tennessee Supreme Court Finds Liability Release Unenforceable

A patient signed an agreement with a medical transport company which purported to release the company from any liability. As the patient was boarding the company’s van, the patient fell and was injured. In the lawsuit of Copeland v. HealthSouth/Methodist Rehabilitation Hospital that followed, the transportation company moved to dismiss the case based on the exculpatory provision in the service agreement. The Tennessee Supreme Court, in a Dec. 20 opinion, held, as a matter of law, the exculpatory provision in the agreement did not bar the patient’s claim. In determining the enforceability of such provisions, Tennessee courts should consider “the totality of the circumstances and weigh these non-exclusive factors: (1) relative bargaining power of the parties; (2) clarity of the exculpatory language, which should be clear, unambiguous, and unmistakable about what the party who signs the agreement is giving up; and (3) public policy and public interest implications.”

Special thanks to executive council member Justin Joy for contributing the above articles. Justin is a shareholder in the Memphis office of the law firm Lewis, Thomason, King, Krieg & Waldrop, P.C. In addition to a range of experience in litigation and business law matters, Justin heads up Lewis Thomason’s cybersecurity practice group. He provides counsel to clients in the area of information privacy and cybersecurity including security incident investigation, development of security awareness programs, policy review and drafting, cyber risk management, insurance policy coverage consultation and breach response management. Specifically in the area of healthcare, Justin counsels covered entities on a variety of matters pertaining to HIPAA Privacy Rule, Security Rule, and Breach Notification Rule compliance. 

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