Yet Another Tennessee Medical Malpractice Notice Case

This appeal arises from a healthcare liability action.  At issue is the adequacy of the pre-suit notice, whether the partial summary judgment on the non-healthcare liability claims should have been set aside due to alleged concealment by the defendant, whether the plaintiff should have been permitted to amend the complaint and a motion for sanctions. 

Plaintiff’s decedent, 46-year old Jana Johnson, awoke in the early morning hours of April 4, 2008 with severe chest, groin and leg pain.   Her husband called an ambulance, and Ms. Johnson arrived via ambulance at Parkwest Hospital at 6:00 a.m.  She was first examined by Dr. Daigle at 6:15 a.m. and a chest x-ray and blood work were ordered.  The test results were conveyed to Dr. Daigle at approximately 6:30 a.m. and he then examined the decedent a second time.  Concerned the decedent was suffering from a pulmonary embolism, Dr. Daigle ordered an immediate CT scan with IV contrast.  The doctor gave the order to the unit clerk between 6:40 and 6:45 a.m. so that it could be transmitted to the imaging department. 

Because of a shift change, the order did not get entered until 7:16 a.m.  The decedent was taken to the imaging department at approximately 7:20 a.m., but for unexplained reasons the order was cancelled.  At some point thereafter, Dr. Daigle inquired about the CT scan and was told by Nurse Wolfe that the decedent’s IV had “blown” and the decedent was insisting Nurse Irons be called to replace it.  At 7:56 a.m., Nurse Wolfe paged Nurse Irons without a response.  At 8:28, the decedent fell into severe distress and she died at 8:44, or nearly three hours after her initial arrival to the hospital. 

Plaintiff initially filed suit on June 26, 2008 and later, and for unknown reasons, non-suited that action in November of 2009.  On November 30, 2009, plaintiff sent pre-suit notice to the defendants. Thereafter, on April 27, 2010, plaintiff re-filed suit alleging a health care liability action, ordinary negligence, fraud, misrepresentation and intentional infliction of emotional distress. 

When plaintiff’s counsel re-filed the complaint, he failed to attach any of the notice documents to the complaint as required by T.C.A. § 29-26-121.  There was not a copy of the notice letter containing all of the required information.  There was not a HIPAA-complaint medical authorization.  There was not a certificate of mailing from the U.S. Postal Service and there was not an affidavit from the mailing party.  The complaint did not have a statement that the plaintiff had complied with T.C.A. § 29-26-121.  And while plaintiff’s counsel did file the certificate of good faith, he failed to state the number of prior violations.  (Plaintiff’s counsel did not include this information because he did not have any prior violations).   In addition to these deficiencies, the defendants asserted the plaintiff had failed to include a HIPAA-compliant release with the pre-suit notice.

Perhaps not surprisingly, the hospital and Dr. Daigle moved for summary judgment.  Dr. Daigle also filed a motion to dismiss.   An agreed order was entered granting Dr. Daigle’s motion to dismiss. Another agreed order was entered granting partial summary judgment to the hospital on all claims but the healthcare liability claim, and this order was not certified as final pursuant to Tennessee Rule of Civil Procedure 54.02. 

Thereafter, the hospital moved to dismiss the remaining healthcare liability claim for failure to comply with the pre-suit notice requirements.  As to the release, plaintiff’s counsel indicated it was his customary practice to include a HIPAA-complaint release but he also conceded he could not remember doing so in this case because of the passage of time.  Plaintiff’s counsel could also not find a copy of the HIPAA release in his file.  As for the other requirements of the statute, it was undisputed plaintiff had failed to list the addresses of the providers in the notice letter as required by T.C.A. § 29-26-121(a)(2)(D).  Plaintiff also failed to state in the complaint that he had complied with the notice requirements as set forth in T.C.A. § 29-26-121(a).  He did not attach any of the documentation outlined in T.C.A. § 29-26-121 (a)(2).  He also failed to file the required proof of service pursuant to T.C.A. § 29-26-121 (a)(4).   The trial court granted the hospital’s motion to dismiss and the decision was affirmed by the Court of Appeals.  Both courts found the plaintiff had failed to substantially comply with the statute and no extraordinary for the non-compliance had been established. 

The next issue was the motion to amend or to set aside the partial order of summary judgment.  During depositions of hospital personnel, testimony was given that the hospital also maintained computer entries that might not necessarily be included in the written records supplied to the plaintiff.   After subsequently procuring these records, plaintiff’s counsel alleged they showed testimony given by Nurse Wolfe was false.   Despite this evidence, the trial court denied plaintiff’s motion to set aside ruling it was untimely pursuant to Tennessee Rule of Evidence 60.   On appeal, the Court of Appeals noted the order granting partial summary judgment was not certified as a final judgment so T.R.C.P. 60 was inapplicable.  Instead, since the order adjudicated “fewer than all the claims, rights and liabilities of the parties”, the appropriate rule for resolving the motion was Tennessee Rule of Civil Procedure 54.02, which provides that a non-final order is subject to revision at any time prior to entry of an order disposing of all claims.  Accordingly, the Court of Appeals remanded this issue back to the trial court for renewed consideration.   As for the motion to amend, the Court of Appeals also remanded that issue for an analysis consistent with Tennessee Rule of Civil Procedure 15. 

Finally, plaintiff had filed a motion for sanctions based on the alleged concealment of the hospital’s computer records.  The trial court had not ruled on that motion, so the Court of Appeals remanded that issue back to the trial court stating they were limited to adjudicating issues that were actually decided in the trial court.

To be sure, healthcare liability cases have always been tough.  With all the changes brought by tort reform, they have become even tougher.  But to even get out of the gate, a plaintiff must substantially comply with the terms of the statute.  Otherwise, this result is inevitable.   From getting an order timely entered into the hospital computer for a critical CT scan to sending notice that substantially complies with the statute (it need not be perfect - it need only substantially comply), the devil really is in the details and the lack of attention to them can sometimes be tragic.

Johnson v. Parkwest Medical Center, E2013-01228-COA-R3-CV (Tenn App. Ct. July 31, 2014.)  

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