Articles Posted in Medical Negligence

Where plaintiff’s medical authorizations lacked required elements and plaintiff failed to show that defendants already had all relevant records, dismissal of plaintiff’s HCLA case was affirmed.

In Woods v. Arthur, No. W2019-01936-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2021), plaintiff filed an HCLA claim related to two spinal surgeries, the first performed by Dr. Arthur and Dr. Lingo, who were employees of the same clinic, and the second performed by Dr. Sorenson. According to plaintiff, the wrong size screw was used in the first surgery, which caused injuries, and he was further injured by the second corrective surgery.

Before filing suit, plaintiff sent pre-suit notice to Dr. Arthur, Dr. Sorenson, and Methodist Hospital, which is where the first surgery was performed. Notice was also sent to Dr. Lingo, but he did not make an appearance in the case and was not a party to this appeal. After receiving the notices, defendant doctors “replied…and informed Plaintiff they were investigating the matter.” During a phone call, counsel for the doctors “stated that he had the Operative Reports for both” surgeries. Despite communication between the parties, no settlement was reached, and plaintiff filed his complaint. Defendant doctors and defendant hospital filed motions to dismiss, alleging that the medical authorizations sent with plaintiff’s pre-suit notice were not HIPAA compliant, and that plaintiff was therefore not entitled to the 120-day extension of the statute of limitations under Tenn. Code Ann. § 29-26-121(c), making his suit untimely. The trial court agreed, granting the motions to dismiss, and the Court of Appeals affirmed.

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Where plaintiff alleged that defendant doctor committed intentional misrepresentation and medical battery by stating that he was board-certified in plastic surgery when he was not, the Tennessee Court of Appeals affirmed the ruling that these claims were not governed by Tennessee’s HCLA. In Cooper v. Mandy, No. M2019-01748-COA-R9-CV (Tenn. Ct. App. Nov. 17, 2020), plaintiff saw advertisements for NuBody and went to their office in Brentwood for a consultation regarding surgical breast reduction. Plaintiff met with Ms. Norris, a NuBody representative, and defendant Dr. Mandy, at which time they told plaintiff that Dr. Mandy was board-certified in plastic surgery. Plaintiff alleged that she entered into an agreement to have the surgery in reliance on these statements, but that the subsequent surgery was not properly performed, leaving her “disfigured and with grotesque and painful bacterial infections.” Plaintiff later learned that Dr. Mandy was not board-certified in plastic surgery, and was actually not board-certified in any field at the time of her treatment.

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Those seeking to learn the current state of the law on whether and when one can avoid the use of an expert witness on the negligence issue in Tennessee medical malpractice litigation may wish to read my recent article, “Flies, Buttermilk and Malpractice.”  The article appeared in the Jan./Feb. issue of Tennessee Bar Journal.

HCLA statute of limitations for claim against doctor and hospital began to run on same date.

Where plaintiff knew on October 31, 2017 that her surgeon had wrongly positioned screws during a previous spine surgery, the statute of limitations for her Tennessee HCLA claims against the hospital defendants who allegedly employed the surgeon began to run on that day.

In Karr v. Saint Thomas Midtown Hospital, No. M2020-00029-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2021), plaintiff had spine surgery in July 2016 performed by Dr. McCord at defendant hospital. Plaintiff continued seeing Dr. McCord until October 31, 2017, when she discovered that he had “malpositioned screws during the surgery.” Plaintiff did not return to Dr. McCord after this date, and instead began treating with Dr. Cheng. Dr. Cheng performed surgery on plaintiff on May 14, 2018, at which time he “discovered…that both the number and the extent of the malpositioned screws was greater than previously known,” and he told plaintiff that the surgery performed by Dr. McCord did not properly address the diagnosis she had been given.

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Where an HCLA plaintiff attempted to sue defendant medical center but sent pre-suit notice to the center’s administrator addressed only to the administrator and not referencing the center, dismissal based on a lack of pre-suit notice was affirmed.

In Webb v. Trevecca Center for Rehabilitation and Healing, LLC,  No. M2019-01300-COA-R3-CV (Tenn. Ct. App. Nov. 10, 2020), plaintiff filed this health care liability suit against defendant medical center and four individual employees of the center. Prior to filing suit, she sent five pre-suit notices to the center’s business address. Four of the notices were addressed to the four individual defendants and the fifth was addressed to Pamela Bishop, who was the medical center’s administrator. In neither the address, the address block on the letter, nor the greeting was Ms. Bishop’s role as administrator addressed. Instead, the letter was simply written to Pamela Bishop.

Plaintiff voluntarily dismissed the four individual defendants, and then defendant medical center moved to dismiss based on plaintiff’s failure to give proper pre-suit notice. Defendant asserted that the notice addressed to Ms. Bishop did not fulfill the statutory requirements, and the trial court agreed. On appeal, dismissal was affirmed.

Where an HCLA plaintiff presented expert testimony that defendant doctor deviated from the standard of care for a patient in respiratory distress by “failing to provide necessary treatment before ending his shift,” summary judgment for defendant was reversed because genuine issues of material fact existed.

In Davis v. Ellis, No. W2019-01367-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2020), plaintiff’s wife was admitted to the emergency room and diagnosed with pneumonia. The following day at 4:00 pm, she was examined by defendant doctor, who was the on-call intensivist. Defendant noted that the patient was awake and alert but that her oxygen saturation level was 93% and that her “respiratory condition had progressively worsened over the past 24 hours.” Defendant “did not order intubation at that time but referred [the patient] to the ICU for observation.” Defendant’s shift ended two hours later.

By 7:30 pm, the patient’s oxygen saturation level had dropped to 82%, and the intensivist who was on call ordered that she be put on non-invasive, positive-pressure face mask ventilation. Around 10:00 pm, her oxygen levels began falling again and were down to 74% by 11:00 pm. The emergency room doctor then tried to intubate her but eventually called anesthesiology for assistance. The patient was finally intubated, but she died approximately six hours later.

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Where a Tennessee HCLA plaintiff sent a HIPAA authorization that failed to allow the defendants to obtain records from each other, the trial court’s finding that plaintiff did not comply with the statutory requirements and that the suit was thus time-barred was affirmed.

In Dial v. Klemis, No. W2019-02115-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2020), plaintiff was the daughter of a patient who died after a cardiac stent procedure. The procedure was performed by defendant Dr. Klemis, who was an employee of defendant Stern Cardiovascular Foundation, and the procedure occurred at defendant Methodist Hospital, with defendant Methodist employees assisting.

Before filing this healthcare liability suit, plaintiff sent pre-suit notice as required by the HCLA, including a HIPAA authorization pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E). Plaintiff admitted, though, that the HIPAA forms she sent did “not allow each of the Defendants to obtain complete medical records from each other provider being sent notice,” which is a requirement of the HCLA. Defendants filed motions to dismiss asserting that because plaintiff’s HIPAA authorizations were non-compliant, she was not entitled to the 120-day extension of the statute of limitations granted by the HCLA, and that her suit which was filed more than one year after the allegedly negligent procedure was therefore time-barred. The trial court agreed, dismissing the case, and the Court of Appeals affirmed.

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Where plaintiff’s pharmacist expert was deemed incompetent to offer necessary causation testimony against the pharmacy defendants in an HCLA suit based on his inability to rule out possible causes of death in a complex medical case, summary judgment for those defendants was affirmed.

In Kidd v. Dickerson, No. M2018-01133-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2020), plaintiff was the daughter of a patient who died after a stroke. The patient had multiple health issues at the end of her life, and the proper diagnosis and medication prescribed for blood clots was in contention in this HCLA suit.

On September 30, 2014, the patient, who was 82 years old, went to Family Health Group (“FHG”) with pain and swelling. She was seen by Dr. Ball and diagnosed with a blood clot. She returned on October 7 and was seen by Dr. Farmer, who also diagnosed a blood clot and prescribed a blood-thinning medicine called Pradaxa, which the patient had filled that day by the pharmacy defendants. The patient returned to FHG on October 13 for a follow-up appointment and saw Dr. Ball again, then returned on October 20 and was seen by a nurse practitioner, who found that the patient was “ill appearing,” that she had an “irregularly irregular” cardiovascular rhythm, and that she should be referred to a cardiologist that week.

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