Articles Posted in Medical Negligence

Thinking about not filing a certificate of good faith in a health care liability action in Tennessee?  Read this opinion to learn the potential issues when one raises the “common knowledge” exception to the general rule requiring experts in such cases and the “extraordinary cause” required to avoid dismissal if you don’t file a certificate of good faith.

In Ruff v. Vanderbilt University Medical Center, No. M2022-01414-COA-R3-CV (Tenn. Ct. App. June 25, 2024), plaintiff filed a health care liability suit based on his previous eye surgery. Plaintiff alleged that the two surgeons failed to properly position his left eye back in its socket, causing his eye to bulge.

Although plaintiff complied with the HCLA pre-suit notice requirements, he failed to file a certificate of good faith with his complaint. Defendant moved to dismiss, which the trial court granted, and the Court of Appeals affirmed.

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.

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).