Articles Posted in Medical Negligence

HIPAA-compliant authorization forms continue to cause trouble for medical malpractice (now called “health care liability action” or ‘HCLA”) plaintiffs in Tennessee, with a recent plaintiff having his case dismissed due to his failure to fill in the portion of the form that lists who was authorized to make disclosures thereunder.

In Lawson v. Knoxville Dermatology Group, P.C., No. E2017-00077-COA-R3-CV (Tenn. Ct. App. Aug. 1, 2017), plaintiff filed suit against “a dermatology practice and a certified physician’s assistant employed by the practice.” The underlying injury occurred when plaintiff fell off an allegedly improperly secured examination table. Defendants filed motions to dismiss, asserting that plaintiff had failed to substantially comply with Tenn. Code Ann. § 29-26-121(a)(2)(E), the HCLA provision that requires that pre-suit notice include a HIPAA-compliant authorization. Specifically, defendants pointed out that plaintiff’s “authorization form did not list which individual(s) or organization(s) were authorized to make disclosures of the specified medical records.”

The trial court granted the motions to dismiss and entered an order dismissing all of plaintiff’s claims without prejudice. Plaintiff appealed the dismissal only as to the dermatology group, which the Court of Appeals affirmed.

On appeal, defendant pointed out that “the name or other specific identification of the person(s), or class of persons, authorized to make the requested use or disclosure” is listed as a “core element of the authorization” by the Code of Federal Regulations. (citation omitted). Defendant asserted that because this “core element” was left blank, plaintiff did not substantially comply with the HCLA requirements and dismissal was appropriate. According to defendant, “the medical authorization provided by [plaintiff] was insufficient to allow [defendant] to access relevant medical records to mount a defense.”

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Plaintiffs preparing a Tennessee health care liablity (formerly called “medical malpractice”) must pay special attention to their standard of care expert witness, especially if they plan to argue that a specific procedure was required to meet the standard of care.

In Hopps v. Stinnes, No. W2016-01982-COA-R3-CV (Tenn. Ct. App. August 1, 2017), the Court of Appeals affirmed a trial court’s decision to grant partial directed verdict and to refuse to let the jury consider a certain causation issue. Plaintiff was struck in the eye by an object while weed eating, and he went to the emergency room. There, he was treated by defendant nurse practitioner. Defendant obtained a history from plaintiff and “examined his eye with an ophthalmoscope and a Wood’s lamp.” She ultimately prescribed him antibiotic eye drops and discharged him with instructions 1) to come back to the ER if his condition worsened, and 2) to see his doctor within two days. Four days later, plaintiff went to a different hospital with additional symptoms, and he eventually lost his eye due to infection.

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In Grizzle v. Parkwest Medical Center, No. E2016-01068-COA-R3-CV (Tenn. Ct. App. July 25, 2017), the Tennessee Court of Appeals reversed dismissal of a health care liability (medical malpractice) case based on plaintiff’s failure to provide a HIPAA compliant medical authorization.

Plaintiff had hip replacement surgery at defendant hospital, and when she woke up she began to have severe chest pains. An x-ray showed that she had broken ribs, yet the hospital “provided no explanation as to how the injury to her ribs had occurred.”

Plaintiff filed an HCLA action against the hospital on January 25, 2016. She stated in her complaint that she had complied with the statutory pre-suit notice requirements, but she “did not provide the requisite documentation with her complaint establishing proof of pre-suit notice.” Defendant filed a motion to dismiss based on plaintiff’s failure to file the required documentation with her complaint and her failure to provide defendant with a HIPAA-compliant medical authorization. After the motion was filed, on March 14, 2016, plaintiff filed a “notice of filing” and attached “copies of the pre-suit notice letter and allegedly HIPAA-compliant authorization sent to [defendant].”

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In Jones v. Behrman, No. W2016-00643-COA-R3-CV (Tenn. Ct. App. June 27, 2017), the Court of Appeals affirmed dismissal of an HCLA claim for failure to file within the applicable statute of limitations

Decedent suffered from several health problems, and in February 2011 she had a capsule endoscopy. Two days later, an x-ray showed that the “capsule was still present.” The following day, tests “showed no bowel obstruction but that the capsule remained in the right lower quadrant.” On February 20, 2011, decedent was admitted to the hospital and tests revealed a bowel obstruction. A procedure was performed, and at some point “the surgeons lacerated or penetrated the small bowel, which required them to resect a portion of the bowel.” The injured site or some other part of the small bowel leaked after the surgery, and decedent developed peritonitis and sepsis. Decedent died on April 21, 2011.

On January 24, 2012, decedent’s family members sent pre-suit notice to the doctors who did the capsule endoscopy and the subsequent bowel surgery. On August 13, 2012, plaintiffs filed their HCLA suit, but that case was voluntarily dismissed on September 27, 2012. Plaintiffs then gave pre-suit notice again before re-filing suit on September 26, 2013 pursuant to the savings statute.

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In Graham v. The Family Cancer Center PLLC, No. W2016-00859-COA-R3-CV (Tenn. Ct. App. June 5, 2017), the Court of Appeals affirmed summary judgment in a health care liability suit, agreeing that “plaintiffs lacked sufficient expert testimony to establish their claims.”

Plaintiff patient had been treated for non-Hodgkin’s lymphoma in the 1990s, and he was subsequently monitored by defendant doctor. Part of the monitoring included checking plaintiff’s prostate specific antigen, or PSA. Plaintiff’s “PSA rose from 2.0 ng/mL in 2000 to 4.8 ng/mL in December 2002 and to 8.5 ng/mL in April 2005.” Plaintiff also complained of blood in his urine in both April 2002 and July 2004. In April 2005, based on the testing and plaintiff’s complaints of pain, defendant ordered an ultrasound, which “revealed findings consistent with benign prostate hypotrophy,” and defendant referred plaintiff to a urologist. Plaintiff saw defendant six times after this referral until August 2007, when his PSA measured 12.0ng/mL, and defendant “never inquired whether [plaintiff] had met with an urologist and did not make an additional referral.”

Six months later, plaintiff went to another doctor and was diagnosed with prostate cancer. He had a “radical prostatectomy,” and pathology reported the disease was “locally advanced with several high risk features.” Plaintiff “was considered at high risk for a local recurrence and distant metastatic disease.”

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Woodruff v. Walker, No. W2016-01895-COA-R3-CV (Tenn. Ct. App. May 26, 2017) is anHCLA case that addressed the timeliness of plaintiffs’ claims.

Plaintiffs, a mother and child, filed suit alleging that “both plaintiffs suffered permanent injuries resulting from the defendant health care providers’ negligent care during the child’s birth in June 2012.” Mother suffered from a neuromuscular condition both before and during her pregnancy, which necessitated various treatments during her pregnancy, including treatment with a maternal fetal medicine specialist. The specialist met with mother five times during her pregnancy. Approximately three weeks before she delivered, mother was admitted to the hospital “with exacerbated symptoms” of her neuromuscular condition, where she stayed for approximately six days.

When mother eventually went into labor, she was admitted to the hospital around 3:42 a.m. She was monitored, given Pitocin, and eventually given small doses of an epidural. The medical team eventually determined that mother’s “exacerbated” symptoms of her condition “made it unsafe to continue the labor and deliver the child vaginally.” Mother’s oxygen was low, and she reported trouble breathing, but one defendant doctor “insisted on doing a vaginal exam” before the caesarian section. During this exam, “Mother stopped breathing and went into respiratory and cardiac arrest.” An emergency c-section was performed, and mother and child both suffered “serious permanent injuries and brain damage resulting from the lack of oxygen during the delivery.”

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In an important turn in medical malpractice (now know as health care liability) law, the Tennessee Supreme Court has held that “a prospective plaintiff who provides pre-suit notice to one potential defendant is not required under Tennessee Code Annotated section 29-26-121(a)(2)(E) to provide the single potential defendant with a HIPAA-compliant medical authorization.”

In Bray v. Khuri, No. W2015 -00397-SC-R11-CV (Tenn. July 5, 2017), plaintiff filed an HCLA claim against a single physician under whose care her husband was at the time he committed suicide. Prior to filing suit, plaintiff sent pre-suit notice to the single defendant, including a medical authorization signed by plaintiff.

After the complaint was filed, defendant moved to dismiss based on the medical authorization not being HIPAA compliant. The trial court granted the dismissal, ruling that the lack of a HIPAA compliant authorization meant that defendant “could not use [decedent’s] records to prepare a defense,” and that the fact that there was a single defendant was “not determinative.” The Court of Appeals affirmed the dismissal, but the Supreme Court reversed.

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In Zink v. Rural/Metro of Tennessee, L.P., No. E2016-01581-COA-R3-CV (Tenn. Ct. App. May 2, 2017), the Court of Appeals held that plaintiff’s allegations fell within the HCLA, but that no certificate of good faith was required because the claimed negligence was “subject to the common knowledge exception.”

In his complaint, plaintiff alleged that defendant EMT “’negligently and carelessly’ struck [plaintiff] in the face with his fist.” Plaintiff asserted that he was strapped to a gurney at the time, and that defendant “assaulted and battered him, using excessive force.” Further, plaintiff claimed that defendant’s actions caused him permanent injury and medical expenses. Plaintiff brought this action for negligence against defendant EMT and his employer.

Defendants filed a motion to dismiss, asserting that plaintiff’s claims were subject to the HCLA and that plaintiff did not follow the procedural requirements of the statute. The trial court granted the motion, dismissing plaintiff’s complaint with prejudice due to his failure to file a certificate of good faith pursuant to Tenn. Code Ann. § 29-26-122. The trial court rejected plaintiff’s argument that no certificate of good faith was needed because his allegations fell within the common knowledge exception to the expert testimony requirement. On appeal, however, this decision was reversed.

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In Lacy v. Saint Thomas Hospital West, No. M2016-01272-COA-R3-CV (Tenn. Ct. App. May 4, 2017), a pro se plaintiff brought a claim against several medical providers, alleging that she was “beaten during medical procedures.” Plaintiff did not give pre-suit notice or file a certificate of good faith, and the defendants accordingly moved to dismiss, asserting that plaintiff’s claims were covered by the HCLA. The trial court dismissed all of plaintiff’s claims, but the Court of Appeals reversed a portion of this ruling, holding that some of plaintiff’s claims did not fall under the HCLA and were thus not subject to its procedural requirement.            Plaintiff’s claims related to two separate incidents. In the first, she alleged that a doctor at St. Thomas Hospital “committed the offense of assault and battery by beating, electrocuting, and burning her while she was undergoing medical testing.” Plaintiff asserted that her hands were burned and she suffered an overdose of electrical current, and that after the shock the doctor “physically beat her…[by] hitting her four times on the front part of her right shoulder.” The second incident concerned an MRI, which plaintiff alleged was too hot and burned her. She also claimed that the individual administering the MRI beat her on the left shoulder while positioning her, and that after the test he “took her medical file and beat her from head to ankle up and down never saying a word.” She further alleged that an MRI technician “beat her left leg four times causing bruising.”

Plaintiff’s claims related to two separate incidents. In the first, she alleged that a doctor at St. Thomas Hospital “committed the offense of assault and battery by beating, electrocuting, and burning her while she was undergoing medical testing.” Plaintiff asserted that her hands were burned and she suffered an overdose of electrical current, and that after the shock the doctor “physically beat her…[by] hitting her four times on the front part of her right shoulder.” The second incident concerned an MRI, which plaintiff alleged was too hot and burned her. She also claimed that the individual administering the MRI beat her on the left shoulder while positioning her, and that after the test he “took her medical file and beat her from head to ankle up and down never saying a word.” She further alleged that an MRI technician “beat her left leg four times causing bruising.”

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In Bradley v. Bishop, No. W2016-01668-COA-R3-CV (Tenn. Ct. App. Mar. 30, 2017), the Court of Appeals affirmed a jury verdict for defendants in a health care liability case.

For eight years, plaintiff had been treated for a fibroid in her uterus that caused extensive bleeding. In 2012, another fibroid was discovered, and after an unsuccessful surgery to remove the fibroid, plaintiff decided to undergo a hysterectomy. Defendant doctor recommended a laparoscopic hysterectomy, but warned plaintiff that she might have to convert to an open procedure. During the surgery, defendant did convert to an open procedure. Defendant called for surgical back-up, but no one was available, and defendant determined that she could complete the procedure herself. During the procedure, defendant noticed a “superficial cut” on plaintiff’s colon, but she did not see or notice any signs of a bowel injury. In the days following the hysterectomy, plaintiff’s “condition deteriorated,” and she was eventually diagnosed with a bowel injury which required surgical repair, three weeks of hospitalization, and additional procedures in the following years.

Plaintiff filed this suit, alleging that defendant “negligently caused injury to [plaintiff’s] small bowel.” Throughout the litigation, causation was not contested, as defendant admitted that the bowel was injured during the surgery. Whether defendant’s actions met the applicable standard of care, however, was hotly contested, with several experts testifying for both sides. Plaintiffs’ experts testified that defendant had fallen below the standard of care, that a different type of hysterectomy would have been more appropriate, that defendant had made mistakes during the surgery, and that defendant should have noticed the bowel injury. Defendants’ experts, however, testified that the chosen procedure was appropriate, that defendant acted in accordance with the standard of care at all times, and that bowel injuries were a common complication of hysterectomies and could occur even when the surgery was done appropriately. Ultimately, the jury returned a verdict for defendant, finding that defendant “did not deviate from the recognized standard of care,” which the trial court affirmed as thirteenth juror. On appeal, the Court of Appeals also affirmed.

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