Articles Posted in Medical Negligence

Plaintiffs must show substantial compliance, not strict compliance, with HCLA requirement that HIPAA authorization be included with their pre-suit notice.

In a memorandum opinion in Moxley v. AMISUB SFH, Inc., No. W2023-00220-COA-R3-CV (Tenn. Ct. App. April 24, 2024), the Court of Appeals vacated dismissal of an HCLA claim because the trial court used the wrong standard to determine whether plaintiff had complied with pre-suit notice requirements.

Before filing suit, plaintiff sent pre-suit notice to twelve potential defendants. Plaintiff included HIPAA authorizations, but those notices did not specifically authorize the providers to obtain medical records from the other providers. Instead, each pre-suit notice included twelve separate HIPPA authorization forms, with each authorizing the named provider to release records to one of the twelve providers sent notice.

MagMutual, a professional liability insurer for physicians and surgeons, does an excellent job trying to educate doctors about how to avoid mistakes that cause injury or death and subsequent medical malpractice lawsuits.

The company recently released a case study on wrong site surgery.  “Wrong site surgery” occurs when a doctor operates on a part of the body he or she did not intend to operate on.  The case study set forth in its entirety below.

Executive Summary

MagMutual, a leading healthcare liability insurer of physicians and surgeons, reports that  “[m]edication errors account for 8% of medical malpractice claims among family practitioners insured by MagMutual. It is estimated that about 50% of medication errors are due to ordering issues, including wrong medication, wrong dose or wrong route.”

The company reports that

[t]he main causes of claims related to medication errors are:

Where plaintiff’s HCLA complaint cited alleged negligent acts that occurred at different times over a period of a few months, the trial court’s dismissal of the complaint as time-barred was affirmed in part and reversed in part. Dismissal of the claims related to the care plaintiff received less than one year prior to the filing of his complaint was reversed.

In Vandergriff v. Erlanger Health Systems, No. E2022-00706-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2023), plaintiff was assaulted with a baseball bat on February 20, 2020, and he sought medical treatment from defendants on March 1. After his initial surgery on March 1, plaintiff returned several times with complications and for further treatment. On March 25, plaintiff had a second surgery; on April 6, plaintiff returned and complained about pus drainage; on May 4, he again complained about pus drainage; he was readmitted on May 8 for his third surgery; he was diagnosed with a bone infection after the third surgery; he had a seizure on June 29; and he noticed increased drainage on July 4.

Plaintiff sent pre-suit notice to four defendants on December 15, 2020, but the HIPAA release he sent with the notice did not specify which providers could release records or obtain records from each other. Plaintiff then filed his pro se complaint on April 14, 2021.

Where an HCLA plaintiff sent pre-suit notice to a hospital and two doctors, the hospital had all the relevant documents, the doctors were independent contractors of the hospital who could only access the records for treatment purposes, and plaintiff’s HIPAA form was noncompliant and only allowed records to be released to plaintiff’s counsel, dismissal for the doctors was affirmed, but dismissal of the claim against the hospital was reversed.

In Christie v. Baptist Memorial Hospital d/b/a Baptist Memorial Hospital for Women, No. W2022-01296-COA-R3-CV (Tenn. Ct. App. Nov. 15, 2023), plaintiffs filed an HCLA claim based on the lack of treatment received by their newborn daughter, who was born and died on the same day at defendant hospital. Before filing suit, plaintiffs sent pre-suit notice to defendant hospital and two doctors who had been involved in the baby’s treatment. It was undisputed that the HIPAA authorization sent with the notice only allowed records to be released to plaintiff’s counsel rather than to other parties receiving notice.

Defendants filed motions to dismiss based on the faulty HIPAA authorizations, which the trial court “reluctantly” granted. On appeal, dismissal of the claims against the doctors was affirmed, but dismissal of the claim against the hospital was reversed.

Where there was a question of fact regarding when plaintiff was put on notice of his potential HCLA claim, and plaintiff provided an expert affidavit in support of his claims, summary judgment based on the statute of limitations and a lack of proof on causation and damages was reversed.

In Vilas v. Love, No. W2022-01071-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2023), plaintiff had his appendix removed by defendant surgeon. At a follow up appointment on March 27, 2017, plaintiff was given a pathology report that stated that “no intact vermiform appendix is identified.” There was a disagreement between plaintiff and defendant regarding what defendant told plaintiff at the follow up appointment. Two weeks after the follow up appointment, plaintiff began experiencing pain and went to another hospital, where they discovered that his appendix had not been removed in the first surgery.

Plaintiff sent pre-suit notice of his HCLA claim to defendant on March 1, 2018, and filed his complaint on August 6, 2018. Defendant moved for summary judgment, which the trial court granted on two grounds. The trial court ruled that the claim was barred by the statute of limitations and that plaintiff had not provided sufficient proof of causation or damages. On appeal, the trial court’s rulings were reversed in part, vacated in part, and the case was remanded.

Every time there is a airplane crash, we hear about the efforts to locate “the black box.”

The “black box” is a flight data recorder – a device that constantly gathers information from dozens of sources about the operation of the airplane.   There is also a cockpit voice recorder, which captures sounds in the cockpit, including the conversations among the pilots.  The collective data is essential to understand how plane crashes occur.

(By the way, a “black box” is not black – it is orange.  Federal law requires that they be painted orange so they are easier to find after a crash.)

According to the Tennessee Supreme Court, where an HCLA defendant did not assert in his answer that a non-party physician was the cause-in-fact of plaintiff’s injuries, the trial court did not err by excluding evidence supporting that allegation at trial, even when the defendant did not seek to prove that the other physician was negligent. Further, where plaintiff’s medical bills were discounted due to an insurance policy plaintiff purchased and paid for privately, the collateral source rule was not abrogated under Tenn. Code Ann. § 29-26-119, and plaintiff could use the “full, undiscounted medical bills to satisfy the burden of proving the reasonable value of medical expenses.”

In Crotty v. Flora, 676 S.W.3d 589 (Tenn. 2023), plaintiff filed an HCLA claim against defendant doctor, alleging that her ureter was perforated during a surgery performed by defendant. Five days after the surgery performed by defendant, plaintiff had to have a second surgery, which was performed by Dr. Wiatrak. Plaintiff’s ureter perforation was found during this second surgery.

Plaintiff did not name Dr. Wiatrak as a defendant in her HCLA case. When defendant filed his answer, he reserved the right to amend his answer to assert comparative fault allegations, but he never did so.

The Tennessee Supreme Court has accepted Rule 11 review of Richards v. Vanderbilt University Medical Center, No. M2022-00597-COA-R3-CV, 2023 WL 4451631 (Tenn. Ct. App. July 11, 2023).

Plaintiff first filed suit on December 12, 2014, relying on the 120-extension of the statute of limitations provided by Tenn. Code Ann. Sec. 29-26-121. to commence an action that arose in August of 2013.  That case was voluntarily dismissed without prejudice on October 4, 2019.  Mandatory pre-suit notice was given again and suit was re-filed on January 28, 2021, with Plaintiff once again relying on the  the 120-day extension of the statute of limitations referenced in the notice statute.
Vanderbilt moved to dismiss, arguing that Plaintiff was not entitled to rely on the 120-day extension of the statute of limitations on the second filing, and therefore the second case must be dismissed because it was not filed within one year of the date of the previous dismissal.  Vanderbilt relied on this language in subsection (c) of the notice statute: “nor shall more than one (1) extension be applicable to any provider.”

Where plaintiff’s HCLA claims were based upon medical care he received while incarcerated, and his only medical expert had never practiced or studied medical care for incarcerated persons, summary judgment for defendant was affirmed.

In Higgins v. CoreCivic, Inc., No. E2022-01101-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2023), plaintiff fell from the top bunk while he was incarcerated and suffered severe injuries. Plaintiff alleged that he should have been given seizure medication and a bottom bunk based on his history of seizures. Plaintiff also asserted that he was injured while being transported from the hospital back to the correctional facility. Plaintiff’s injuries all occurred in April 2017.

Plaintiff brought claims against three defendants in May 2018, including CoreCivic who operated the facility under a contract with Hamilton County, CCS who provided medical treatment to inmates through a contract with CoreCivic, and Hamilton County who ultimately owned the facility. Defendants filed for summary judgment, which the trial court granted on various grounds, all of which were affirmed on appeal.

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