Day on TortsThe Tennessee Bar Journal has just published my article, “Tennessee Supreme Court Creates the “Colleague Privilege.” The article discusses the implications of a brand-new privilege which provides that “a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard,” and that this holding “stands regardless of any supervisory relationship between the providers.”
Articles Posted in Medical Negligence
HCLA plaintiff failed to establish breach of standard of care.
Where an HCLA plaintiff failed to establish a breach of the applicable standard of care, the Claims Commissioner’s ruling for the State was affirmed.
In Black v. State, No. M2022-00399-COA-R3-CV (Tenn. Ct. App. July 25, 2023), plaintiff filed suit on behalf of her husband, who died after a short stay in a skilled nursing facility owned and operated by the State of Tennessee. When the husband was admitted to the facility, he was 84-years-old and suffered from Alzheimer’s disease, diabetes, and many other health complications.
Plaintiff visited her husband every day in the facility, and on December 29, 2016, she told the staff that she suspected he had a urinary tract infection. The facility staff ran a test, which was negative, and created care plans for the husband the next day. Four days later, the facility staff completed a more detailed assessment of the husband’s condition and care needs. Four days after this assessment, the husband was taken to the emergency room, where he was found to be suffering from septic shock and aspiration pneumonia. Approximately two weeks later, the husband died at the hospital.
HCLA abrogates operation-of-law exception for vicarious liability claims in health care liability actions.
Where “application of the operation-of-law exception would bar a vicarious liability claim that is timely filed within the [HCLA’s] extended statute of limitations solely because the statute of limitations had expired for any claims against the principal’s agents, the exception must give way to the [HCLA].”
In two nearly identical opinions, the Tennessee Supreme Court addressed the interplay between claims for vicarious liability, common law exceptions to the ability to assert vicarious liability claims, and the HCLA. In Ultsch v. HTI Memorial Hospital Corp., No. M2020-00341-SC-R11-CV (Tenn. July 20, 2023) and Gardner v. Saint Thomas Midtown Hospital, No. M2019-02237-SC-R11-CV (Tenn. July 20, 2023), the Supreme Court held that a vicarious liability claim filed within the 120-day extension of the statute of limitations could proceed against a principal, even when the relevant agents were not named as defendants, were not given pre-suit notice and thus not subject to an extended statute of limitations, and were barred from being sued by the statute of limitations at the point the complaint was filed against the principal.
In both cases, the plaintiff sent pre-suit notice to the hospital at which they were treated, but did not send pre-suit notices to any agents of said hospitals. The statute of limitations as to claims against the hospitals were extended 120-days pursuant to the HCLA, and the plaintiffs filed their vicarious liability claims against the hospitals beyond the one-year mark but before the 120-day extension had run.
HCLA Plaintiff Cannot Get Benefit of 120-Day Extension When Filing Action Under Savings Statute
Where an HCLA plaintiff has previously given pre-suit notice, utilized the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121, filed suit, voluntarily dismissed the action, then chosen to refile pursuant to the savings statute, that plaintiff is not entitled to rely on the 120-day extension when refiling. Instead, the action must be re-filed before the expiration of the one-year period for filing granted under the savings statute.
In Richards v. Vanderbilt University Medical Center, No. M2022-00597-COA-R3-CV (Tenn. Ct. App. July 11, 2023), plaintiff filed an HCLA case in 2014. When filing that case, plaintiff gave defendant proper pre-suit notice and relied on the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121(c). Plaintiff voluntarily dismissed that action on October 4, 2019, then gave pre-suit notice again and refiled his complaint on January 28, 2021. When refiling under the savings statute, plaintiff again relied on the 120-day statute of limitations extension provided by the HCLA.
Defendant filed a motion to dismiss, arguing that pursuant to the language of the statute, plaintiff was only entitled to utilize the 120-day extension in the original action. The trial court agreed, granting dismissal, and the Court of Appeals affirmed.
HCLA Standard of Care Expert Competent to Testify.
Where plaintiff’s medical malpractice expert was a registered nurse with extensive experience in wound care, the fact that the expert had not practiced in a hospital went “to the weight of her testimony, not to whether she [was] competent.” (internal citation omitted). The trial court’s ruling excluding her as an expert was thus overturned.
In Owens v. Vanderbilt University Medical Center, No. M2021-01273-COA-R3-CV (Tenn. Ct. App. May 18, 2023), plaintiff had surgery on her fractured ankle at defendant hospital and was inpatient for eight days. When she was discharged, she had stage three pressure wounds, and she ended up being readmitted to defendant hospital four days later for treatment of the pressure wounds.
Plaintiff filed this HCLA suit based on defendant’s failure to prevent, detect, and treat her pressure wounds. She disclosed a registered nurse from Virginia as her standard of care expert. Defendant moved for summary judgment, arguing that plaintiff’s expert was “not qualified to testify under Tennessee Code Annotated § 29-26-115(b)” because she was “not familiar with the standard of care for hospital employees in caring for post surgical orthopedic repair patients during the statutorily relevant period.” The trial court agreed with defendant and granted the motion for summary judgment, but that ruling was vacated on appeal.
Defendant physician cannot be compelled to give expert opinion of other healthcare provider’s care.
In a recent HCLA case, the Tennessee Supreme Court held that “a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard.”
In Borngne ex rel. Hyter v. Chattanooga-Hamilton County Hospital Authority, — S.W.3d —, No. E2020-00158-SC-R11-CV (Tenn. May 23, 2023), plaintiff filed a healthcare liability action against multiple defendants, including the midwife who was overseeing her birth and the midwife’s supervising physician, Dr. Seeber. Plaintiff suffered permanent brain damage and was severely debilitated by injuries received during the birth. During the supervising physician’s deposition, plaintiff’s counsel questioned him about what his expectations of the midwife would be in hypothetical situations, when the mother’s condition became concerning, and other questions related to the standard of care for the midwife, all of which the physician’s attorney instructed him not to answer.
Plaintiff filed a “motion to compel Dr. Seeber to testify concerning [the midwife’s] performance prior to his arrival,” which the trial court denied. The Court of Appeals, however, reversed the trial court and ruled that “the trial court erred by refusing to order Dr. Seeber to answer the questions at issue in his deposition.” In this appeal to the Supreme Court, the judgment of the trial court denying the motion to compel was affirmed.
Psychologist selected by mother pursuant to court order immune from later HCLA suit.
Court appointed psychologists enjoy immunity in Tennessee. Where a juvenile court ordered that a mother select a new psychologist to replace the existing one in a custody case, the psychologist selected by the mother was entitled to summary judgment based on immunity in a later suit brought by the father based on the psychologist’s treatment of the minor and parents in the underlying custody case.
In Justice v. Hanaway, No. E2022-00447-COA-R3-CV (Tenn. Ct. App. May 15, 2023), plaintiff filed an HCLA case against defendant psychologist based on the psychologist’s treatment and involvement in an underlying child custody case. Plaintiff was the father in the child custody case, and after the first court-appointed psychologist was removed from the case, the juvenile court asked the mother to select a new psychologist. The juvenile court’s order stated: “There will be a transition from the current therapist…to a new therapist to be selected by the Mother. …The parties shall sign releases for the new therapist to speak with [the former therapist.] …Once the transition to the new therapist is made, the therapist shall set out a goal and a plan as to how the therapy shall be conducted.” The mother selected defendant psychologist, who went on to have sessions with the mother, father, and minor and to testify in the custody case. This HCLA claim by the father followed.
The trial court granted summary judgment to defendant based on his role as a court-appointed psychologist. The trial court found that it was “reasonable from the record to conclude that Defendant was replacing the court-appointed therapist…and would therefore be stepping into [her] shoes and occupying the same status as that which [she] had enjoyed,” and that defendant was “entitled to the same benefit of the doctrine of [judicial]immunity as that which could have been claimed” by the original court-appointed therapist. On appeal, this ruling was affirmed.
HCLA plaintiff entitled to limited discovery to show that defendant was not prejudiced by noncompliant HIPAA authorization.
Where an Tennessee HCLA plaintiff’s HIPAA authorization had an error in the “purpose” section, but the potential defendants only included two physicians who were employed by the third potential defendant health system and plaintiff asserted that the defendant health system was the only potential defendant who possessed any relevant medical records, the Court of Appeals vacated dismissal based on the noncompliant HIPAA authorization and held that plaintiff should have been allowed “to conduct limited discovery to determine whether [defendant health system] had been prejudiced by Plaintiff’s failure to provide a HIPAA-compliant medical authorization[.]”
In Hayward v. Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System, No. E2022-00488-COA-R3-CV (Tenn. Ct. App. April 27, 2023), plaintiff filed an HCLA claim against defendants related to a bladder surgery and related complications. Before filing suit, plaintiff sent pre-suit notice to three potential defendants, including two physicians and one health system (“Erlanger”). A HIPAA authorization was included with the pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E).
After suit was filed, Erlanger filed a motion to dismiss based on the HIPAA authorization being noncompliant. Specifically, Erlanger pointed out that the purpose section of the HIPAA authorization, which is one of the six core elements required on a HIPAA authorization, only permitted disclosure of records to plaintiff’s attorney. Erlanger argued that this prevented the potential defendants from obtaining records from each other and that dismissal was thus appropriate.
No certificate of good faith required for HCLA case that falls under common knowledge exception.
Where plaintiff alleged that the nursing facility she lived in gave her a defective shower chair, and the broken wheel lock and torn netting on the chair caused her to fall and be injured, no certificate of good faith was required due to the common knowledge exception to Tennessee’s health care liability (historically referred to as “medical malpractice”) law.
In Mears v. Nashville Center for Rehabilitation and Healing, LLC, No. M2022-00490-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2023), plaintiff was a resident at defendant skilled nursing facility. Defendant’s policy required residents to use a shower chair when showering, and plaintiff was provided such a shower chair. According to plaintiff, the shower chair she was given was defective because the wheel lock did not work and the netting was torn. While showering, plaintiff fell out of the chair and was injured.
Plaintiff filed this suit against defendant asserting various acts of negligence. Plaintiff did not, however, provide pre-suit notice or a certificate of good faith under the HCLA, and defendant filed a motion to dismiss on that basis. The trial court agreed that the case fell within the HCLA and dismissed the suit without prejudice due to plaintiff’s failure to provide pre-suit notice. The court ruled, however, that the claims did “not require expert medical testimony and came within the common knowledge of laymen and, therefore, that a certificate of good faith [was] not required.” The trial court thus refused defendant’s request to dismiss the case with prejudice, which was affirmed on appeal.
Exclusion of HCLA expert based on locality rule affirmed.
Where an HCLA plaintiff’s expert testified at his deposition that he was not very familiar with Kingsport and that he had only reviewed information about Kingsport the night before the deposition, rather than before forming his medical opinions, the trial court did not err by excluding the expert based on the locality rule.
In Jackson v. Thibault, No. E2021-00988-COA-R3-CV, 2022 WL 14162828 (Tenn. Ct. App. Oct. 25, 2022), the patient underwent a hysterectomy at a hospital in Kingsport, Tennessee. Complications arose during the surgery, and the patient later went into septic shock and died. Plaintiff, who was the administrator of the patient’s estate, brought this HCLA suit alleging negligence against a number of medical providers related to the patient’s care.