Articles Posted in Medical Negligence

Where plaintiff could only show that his expert in an HCLA case was a neurosurgeon consultant during the year prior to the incident, yet the alleged negligence was committed by a medical assistant and licensed practical nurse (LPN) in an urgent care clinic, plaintiff’s expert was not qualified to testify and summary judgment was affirmed.

In Estate of Shelton v. Greeneville Urgent Care and Occupational Medicine Clinic, No. E2018-00862-COA-R3-CV (Tenn. Ct. App. June 24, 2019), plaintiff had gone to defendant urgent care clinic seeking pain medication. A medical assistant there asked him to get on the examination table. According to plaintiff, he told the assistant that he could not get onto the table, but she insisted, and while he was using a stool to get up, the “stool slipped or moved causing Plaintiff to lose his balance and fall.” Though the severity of the fall was disputed and there was no fall documented in plaintiff’s file, plaintiff was seen by a nurse practitioner who arranged for him to be x-rayed at the adjacent hospital. He was sent home after the x-ray, despite his complaints of pain, but was called the next day and told to return to the hospital for treatment for a broken back. Plaintiff eventually had surgery and physical therapy.

Plaintiff filed an HCLA claim against the clinic and the hospital, alleging that the stool was dangerous and that the clinic staff negligently insisted that he use it, and that “the Hospital failed to promptly diagnose and treat his injuries.” Plaintiff identified Dr. Edward Kaplan as an expert, who was a neurosurgeon consultant, and defendant filed a motion for summary judgment, arguing that plaintiff’s expert should be disqualified. The trial court agreed, granting summary judgment, and the Court of Appeals affirmed.

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When an HCLA plaintiff decides to serve pre-suit notice via personal service, such service must actually be completed in accordance with the statute in order for the plaintiff to take advantage of the 120-day extension of the statute of limitations.

In Webb v. Magee, No. 2018-01305-COA-R3-CV (Tenn. Ct. App. April 30, 2019), plaintiffs had filed a previous healthcare liability claim under the HCLA against multiple parties, including Dr. Charles Roberson. Plaintiffs attempted to personally serve Dr. Roberson with pre-suit notice within the one-year statute of limitations, but service of the pre-suit notice was not actually completed until almost two months later. One week after Dr. Roberson received pre-suit notice, plaintiffs filed their initial suit.

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A nurse who worked in an administrative capacity in the year preceding an incident underlying an HCLA claim may not be qualified to give expert testimony in the case.  A Rule 59.04 motion did not cure the deficiency in the initial affidavit.

In Smith v. Methodist Hospitals of Memphis, No. W2018-00435-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2019), plaintiff filed an HCLA suit alleging that defendant hospital failed to provide him proper postsurgical care, necessitating a subsequent hospitalization and surgery. This case was originally filed in 1999 and had already been through one round of appeals, but the issue in this opinion was whether the trial court rightly granted summary judgment on the basis that neither of plaintiff’s identified expert witnesses were competent to testify, and then properly denied a motion to alter or amend the judgment.

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When a plaintiff filed suit against a massage therapist and his employer alleging various claims based on an intentional sexual assault, the requirements of the HCLA did not apply to the intentional tort claims against the massage therapist. For the negligent retention or supervision claim against the employer, however, a certificate of good faith was required under the HCLA.

In Jackson v. Burrell, No. W2018-00057-COA-R3-CV (Tenn. Ct. App. Jan. 16, 2019), plaintiff alleged that during a massage, defendant massage therapist sexually assaulted her, which resulted in a genital infection and eventual outpatient surgery. Plaintiff filed suit against the therapist and his day spa employer, alleging assault and battery, intentional infliction of emotional distress, and false imprisonment against the therapist, and asserting claims for vicarious liability and negligent supervision, retention and training against the employer. Plaintiff gave pre-suit notice of her claims pursuant to the HCLA, but she did not file a certificate of good faith with her complaint. Defendants both filed motions for summary judgment based on the lack of a certificate of good faith, and the trial court granted the motions. On appeal, summary judgment as to the therapist was reversed, but the ruling for the employer was affirmed.

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Where a plaintiff in an Tennessee HCLA (medical malpractice) case “failed to obtain a competent expert witness to testify on the applicable standard of care,” summary judgment as to all of her claims was affirmed.

In Akers v. Heritage Medical Associates, P.C., No. M2017-02470-COA-R3-CV (Tenn. Ct. App. Jan. 4, 2019), plaintiff was treated by a physician assistant at defendant medical center and was given a punch biopsy on her wrist. Two days later, plaintiff went to the emergency room with complications in the same area, which were diagnosed as cellulitis and staph infection.

Plaintiff subsequently filed this complaint pro se against the treating physician assistant and the medical practice, alleging that the practitioner “was not qualified to perform the punch biopsy and did not wash her hands, wear gloves, or use sterile medical equipment when performing the procedure,” and that the complications she experienced resulted from this negligence. In response to interrogatories asking plaintiff to disclose her expert witness, she identified the emergency room doctor she had seen, but failed to give additional information including his publications, other cases in which he had testified, and the compensation to be paid. Defense counsel made several attempts to get plaintiff to supplement her responses, which eventually led to plaintiff disclosing a second doctor, but providing the same very basic information about him. For both of these doctors, plaintiff stated that they would testify that her injuries “could not likely have been the result of any factors other than negligence on the part of…Defendants,” but she did not mention standard of care testimony in the description of either named expert.

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Where plaintiff gave pre-suit notice of an HCLA suit to two defendants related by employment, but her HIPAA authorization failed to identify to whom medical records could be disclosed, the Court of Appeals analyzed whether each defendant was individually prejudiced by the lack of compliance. The Court ultimately concluded that the employer defendant who was in possession of all the records was not prejudiced and the suit could continue against it, but that the employee defendant who did not possess the records was prejudiced.

In Wenzler v. Yu, No. W2018-00369-COA-R3-CV (Tenn. Ct. App. Nov. 20, 2018), plaintiff filed a health care liability case against a dentist and the practice for which he worked. She sent pre-suit notice with a HIPAA authorization attached, but while the HIPAA authorization “mentioned that the information would be used for litigation,” it “failed to identify the person or entity that was authorized to receive the disclosure pursuant to the release.” The trial court found that the HIPAA authorizations did not substantially comply with the statutory requirements and that plaintiff was therefore not entitled to the 120-day extension of the statute of limitations, and thus dismissed the complaint as time-barred. The Court of Appeals affirmed as to the dentist but reversed as to the dental practice.

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When an HCLA plaintiff proceeds under a res ipsa loquitur theory, her expert is not required to opine on the same elements as in a traditional HCLA claim.

In Anderson v. Wang, No. M2018-00184-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2018), plaintiff had laser cataract surgery performed on both eyes by defendant doctor. After the second surgery on her right eye, plaintiff experienced serious complications, including extreme loss of endothelial cells and corneal decomposition that required a corneal transplant.

Plaintiff brought this HCLA case under Tenn. Code Ann. § 29-26-115(c), which governs HCLA res ipsa loquitur claims. This section states that “there shall be a rebuttable presumption that the defendant was negligent where it is shown by the proof that the instrumentality causing injury was in the defendant’s…exclusive control and that the accident or injury was one which ordinarily doesn’t occur in the absence of negligence.” The trial court granted defendant’s motion for summary judgment, finding that plaintiff’s expert “never defined the applicable standard of care or how any instrumentality could have been improperly used contrary to the applicable standard of care.” The Court of Appeals, however, reversed.

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When a plaintiff’s lawyer terminates his representation just weeks before the statute of limitations is set to expire on a health care liability claim, this termination may constitute extraordinary cause to excuse the plaintiff’s noncompliance with certain pre-suit notice and certificate of good faith requirements.

In Reed v. West Tennessee Healthcare, Inc., No. W2018-00227-COA-R9-CV (Tenn. Ct App. Oct. 8, 2018), plaintiff was injured when he fell while in the hospital being treated for a different injury on October 18, 2015. He retained counsel over four months before the statute of limitations was set to run on his health care liability claim, but just a few weeks before it expired, the attorney terminated his representation of plaintiff. Plaintiff then sent a letter dated October 7, 2016 to a hospital executive stating that he had been injured and demanding compensation. He subsequently filed his HCLA complaint on October 14, 2016, which was within the one-year statute of limitations, but he did not attach a Certificate of Good Faith to his complaint. After he filed his complaint, he hired a new attorney.

Defendant filed two motions to dismiss, one based on plaintiff’s failure to attach a Certificate of Good Faith and one based on plaintiff’s failure to follow the pre-suit notice requirements by failing to give his notice 60 days before he filed the complaint, failing to provide a HIPAA authorization, failing to provide an affidavit from the party who mailed the notice, and failing to state that he had complied with the statute. The trial court denied both motions, finding that the termination of representation just weeks before the statute of limitations ran constituted extraordinary cause under the HCLA and thus excused compliance with these requirements. The Court of Appeals affirmed.

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When a defendant files a motion “requesting the court to compel the plaintiff or his counsel to provide the court with a copy of the expert’s signed written statement that was relied upon in executing the certificate of good faith” pursuant to Tenn. Code Ann. Section 29-26-122 of the HCLA, that motion does not have to be raised as part of a motion for summary judgment or motion for discretionary costs.

In Jones v. Hargreaves, No. M2017-01271-COA-R3-CV (Tenn. Ct. App. July 23, 2018), plaintiff filed an HCLA complaint accompanied by a certificate of good faith signed by his counsel. Defendant doctor filed a motion for summary judgment, supported by his own affidavit. Plaintiff never responded to the motion for summary judgment, and plaintiff’s counsel moved to withdraw before the hearing. The motion was eventually granted, with plaintiff never filing a response.

After summary judgment, defendant “filed a motion pursuant to section 29-26-122(d)(2) to compel [plaintiff] to produce the expert’s signed written statement relied upon in executing the certificate of good faith filed with the complaint and requesting the court to determine if [plaintiff’s] attorneys complied with [the statute] in executing and filing the certificate of good faith.” Plaintiff’s former counsel responded to this motion, asserting that he did comply with the statute but that he “decided not to pursue the case due to the lack of a permanent injury and the expense of pursuing this matter with lack of significant damages.”

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Failure to comply with HCLA pre-suit notice requirements will not be excused due to local practice, and a final order dismissing defendants from a suit that is not appealed cannot later be revised by the trial court through a decision in a second suit.

In Smith v. Wellmont Health System, No. E2017-00850-COA-R9-CV (Tenn. Ct. App. July 9, 2018), plaintiff filed an HCLA claim against several defendants, all of whom filed motions to dismiss based on an inadequate HIPAA authorization in the pre-suit notice. The trial court granted three defendants’ joint motion to dismiss and entered a dismissal order, from which plaintiff did not appeal. Before the motions from the other defendants were decided, plaintiff voluntarily nonsuited those claims.

Plaintiff subsequently sent a second pre-suit notice to all original defendants and filed a second suit naming all of them, including the three dismissed from the original suit. All defendants filed motions to dismiss in this case as well, and the trial court denied them all. It ruled that its first dismissal order was incorrect because “plaintiff’s first complaint was not time-barred because…plaintiff provided proper pre-suit notice.” This interlocutory appeal followed.

The issues in this case were identical to those in Roberts v. Wellmont Health System, No. 2017-00845-COA-R9-CV (Tenn. Ct. App. July 5, 2018), a decision that came out just four days before this one. In both cases, plaintiff provided a HIPAA authorization that left blanks for which parties could disclose protected health information, to whom disclosures could be made, and the expiration date. Here, the Court noted that plaintiff expressly stated in a letter accompanying the HIPAA form that defendants “could use the authorizations to get the records of the other Defendants and he invited them to contact him if they had any questions.” In this case, like in Roberts, the plaintiff and trial court relied on the fact that providing blank forms was the local practice to deem the forms sufficient.

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