Articles Posted in Medical Negligence

The Wisconsin Supreme Court has reversed a 2005 opinion and held that a cap of $750,000 on non-economic damages in medical malpractice cases is constitutional.

The female plaintiff in the case lost her arms and legs as a result of a medical error.  A jury determined that her pain, suffering, and disfigurement had a value of $16.5 million.  However, Wisconsin’s highest court deferred to legislation limiting such awards to a maximum of $750,000 in all cases, regardless of the severity of the injuries.

A dissent was filed by Justice Bradley, joined by Justice Abrahamson. “Only those with the most catastrophic injuries will be denied a full and fair damages award,” Bradley wrote. “It makes no sense that those who are injured most get the least.”

An HCLA plaintiff who does not comply with the pre-suit notice requirements in the statute is not entitled to the 120-day extension of the statute of limitations.

In Brookins v. Tabor, No. W2017-00576-COA-R3-CV (Tenn. Ct. App. March 8, 2015), plaintiff husband originally filed an HCLA suit against several defendants, including doctors Tabor, Lamothe, and Fleenor. This first suit was filed on January 29, 2015, and was nonsuited on April 16, 2015, in order to comply with the pre-suit notice requirements found in the HCLA.

On July 6, 2015, plaintiff husband re-filed the suit based on the same negligence against the same defendants. In this second suit, plaintiff wife also asserted a loss of consortium claim. Defendant doctors moved to dismiss the claims, alleging that they were time-barred because plaintiffs had failed to meet the pre-suit notice requirements and were thus unable to rely on the 120-day extension of the one-year statute of limitations. The trial court agreed, dismissing all claims against defendant doctors, and the Court of Appeals affirmed dismissal for various reasons.

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In a misdiagnosis Tennessee health care liability (medical malpractice) case, defendants seeking dismissal based on the statute of limitations were required to “establish that decedent was aware of the alleged misdiagnosis,” not just show that the misdiagnosis was made, in order to establish when the one-year limitation period began to run.

In Shaw v. Gross, No. W2017-00441-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2018), plaintiff was the administrator of decedent’s estate, and the case involved allegations that decedent died as the result of a misdiagnosis. Decedent went to the emergency room on May 17, 2014, complaining of “rib-trunk pain and headache that resulted from a fall.” Defendant doctor ordered lab work and diagnosed decedent with dehydration, sending him home. Decedent returned the next day via ambulance and was diagnosed with sepsis and an inflamed gallbladder. Decedent died less than a month later, on June 14, 2014, and an autopsy report on June 18th confirmed his cause of death as “septic shock and gangrenous cholecystitis.”

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If an HCLA plaintiff fails to provide proper pre-suit notice and files her first complaint after the statute of limitations has passed (but within the 120-day grace period), her case will not be saved by voluntarily dismissing and trying to use the savings statute to refile.

In Dortch v. Methodist Healthcare Memphis Hospitals, No. W2017-01121-COA-R3-CV (Tenn. Ct. App. Feb. 5, 2018), plaintiff filed a health care liability suit against defendants based on the death of her son following a surgery on April 3, 2014. On April 6, 2015, plaintiff’s counsel served a purported pre-suit notice of her HCLA claim on defendants, pursuant to Tenn. Code Ann. § 29-26-121. This notice contained HIPAA authorization forms that “only permitted the recipient entity to send the medical records of [the deceased] to plaintiff’s counsel.” The statute, however, requires that the HIPAA forms included with the notice permit “the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.” (Tenn. Code Ann. § 29-26-121(a)(2)(E)).

Plaintiff filed her initial complaint on July 1, 2015, after which defendants filed a motion to dismiss based on the deficiencies in the pre-suit notice. Plaintiff then filed a notice of voluntary dismissal, and an order of dismissal was entered on September 17, 2015.

On July 6, 2016, plaintiff sent a second pre-suit notice to defendants, then she re-filed her complaint on September 16, 2016. Defendants moved to dismiss this complaint, alleging that plaintiff’s first complaint was untimely and that she was thus not entitled to take advantage of the one-year savings statute. The trial court agreed, granting the motion to dismiss, and the Court of Appeals affirmed.

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A plaintiff’s claim for assault and battery within a medical facility may not fall under the HCLA, and thus not be subject to its pre-suit notice and certificate of good faith requirements.

In C.D. v. Keystone Continuum, LLC d/b/a Mountain Youth Academy, No. E2016-02528-COA-R3-CV (Tenn. Ct. App. Jan. 22, 2018), plaintiff, a minor, was a resident of defendant youth residential treatment facility, which the Court described as part mental healthcare facility and part detention center. According to plaintiff, an employee who was a “third shift night guard” was responsible for taking plaintiff to the bathroom so he “could get ready for the day,” and on one particular occasion, the employee and the plaintiff had a disagreement during which the employee eventually “grabbed [plaintiff’s] right shoulder and pushed the back of [his] left shoulder, causing [him] to turn and fall to the ground.” Plaintiff alleged that while he was lying on the ground, the employee “stomped on [his] right foot.” Defendant disputed plaintiff’s description of the employee as a night guard, instead calling him a “mental health associate.”

Defendant filed a motion to dismiss, arguing that all of plaintiff’s claims were subject to the HCLA and that his failure to provide pre-suit notice and a certificate of good faith were thus fatal to his claim. The trial court agreed, dismissing the mother’s action with prejudice and the minor’s without prejudice (apparently making this distinction solely because he was a minor).

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A new study reveals that “diagnosis-related events are the single largest root cause of medical professional liability claims.”

The study “provides insight into the root causes of diagnosis-related claims based on an analysis of 10,618 closed medical professional liability claims at Coverys across a five-year period (2013-2017).

The study found that 33% of all claims and 47% of all indemnity payments in the five years of claims that were studied.  A whopping 54% of diagnosis-related claims results in serious injury and 36% result in death.

Allegations related to a patient being injured by a doctor’s handshake may not fall under the HCLA.

In Lacy v. Meharry General Hospital, No. M2016-01477-COA-R3-CV (Tenn. Ct. App. Dec. 19, 2017), plaintiff went to defendant doctor for a check up regarding why she was getting short of breath. Upon entering the room, plaintiff alleged that she offered her hand for a handshake and defendant “squeezed [her] fingers too hard,” which she described as “a beating” or “assault.” Plaintiff alleged, in her pro se complaint, that because of this handshake, “her hand is in constant pain and the fingers no longer have any strength.” Plaintiff also asserted that defendant doctor did not properly add her sonogram results to her medical records.

Defendant filed a motion to dismiss based on plaintiff’s noncompliance with the pre-suit notice and certificate of good faith requirements of the Tennessee Health Care Liability Act (HCLA). The trial court granted the motion, but the Court of Appeals reversed in part.

Where the only notification a hospital provided to a patient that a radiologist was not an agent of the hospital was buried in fine print in admission forms and not highlighted in any way, the trial court’s finding that the hospital was vicariously liable for any fault assigned to the radiologist was affirmed.

In Beard v. Branson, No. M2014-01770-COA-R3-CV (Tenn. Ct. App. Nov. 8, 2017), the patient in question had colon surgery at defendant hospital and developed complications. The surgeon ordered a CT scan, which was performed at the hospital and read by Dr. Anderson, “a private radiologist whose practice group was under contract with [the hospital.]” The radiologist reported that the scan showed the “possibility of a mechanical bowel obstruction,” a finding with which the surgeon disagreed. The patient’s condition worsened, and she was eventually flown to another hospital where she died in emergency surgery. Plaintiff filed this HCLA/ wrongful death case against the hospital and surgeon, alleging that the patient “died because of delay in treatment of a bowel perforation she developed as a complication of colon surgery.”

In July 2005, plaintiff’s attorney requested a copy of the CT scan, and the hospital responded that it could not be located. Plaintiff attempted to get the CT scan from the surgeon, the radiology group under contract with the hospital, and the hospital at which the patient ultimately died, but was not provided a copy until three years later. The CT scan revealed that Dr. Anderson “failed to note and report evidence of free air in [patient’s] abdomen, indicative of a bowel perforation.” By the time the CT scan was provided, it was too late to add Dr. Anderson, the radiologist, as a defendant.

In Commercial Bank & Trust Co. v. Children’s Anesthesiologists, P.C., No. E2016-01747-COA-R3-CV (Tenn. Ct. App. Oct. 25, 2017), plaintiffs were the legal guardian of a minor who, after a shunt revision, was no longer able to walk. Plaintiffs filed an HLCA suit, and after trial, the jury returned a verdict for defendants. Plaintiffs appealed, raising four issues.

First, plaintiffs asserted that “the Trial Court erred in allowing testimony that implied that [the minor’s] parents came to this country as refugees.” Because plaintiffs did not object to this line of questioning at trial, though, this issue was deemed waived.

Second, plaintiffs alleged that it was error to not allow a certain exhibit to be taken into the jury room. During cross examination of one of the defendant doctors, plaintiffs’ counsel used a piece of paper on which “standard of care” was handwritten, and the following words were typed: “The practice that protects the patient from unnecessary risk of serious harm.” After defendant doctor said she agreed with that statement, plaintiffs’ counsel attempted to file the paper as an exhibit. The trial court marked it for identification purposes only, then later refused to let it be taken to the jury deliberation room. The Court of Appeals held that this was not error, pointing out first that plaintiffs’ counsel failed to object at trial, and further that the alleged exhibit was “needless presentation of cumulative evidence, since the statement contained in [the exhibit] was read to [defendant doctor] at trial, and she testified that she agreed with the statement.” (internal quotation omitted). In addition, the Court noted that because the statement was so general, it would have likely “resulted in confusion by giving this written statement undue weight over the oral testimony on that issue.”

In a health care liability action, a plaintiff must show not only that the defendant breached the standard of care, but that such breach proximately caused the injury in question. Further, that causation testimony cannot come from a nurse.

In Estate of Sample v. Life Care Centers of America, Inc., No. E2017-00687-COA-R3-CV (Tenn. Ct. App. Oct. 11, 2017), plaintiff filed an HCLA claim after decedent died while in the care of defendant nursing home. The complaint alleged that “per medical orders, Deceased was not to be left lying flat in bed,” and that “on the day of her death, Deceased had been lying flat in bed causing her to suffocate or aspirate and die.”

Defendant filed a motion for summary judgment supported in part by the affidavit of Bethany Dragnett, a registered nurse who was one of decedent’s care takers at the home, and plaintiff’s responses to requests for admission. In the discovery responses, plaintiff “admitted that Deceased’s death certificate expressly identifies [arteriosclerotic cardiovascular disease] as the sole cause of Evelyn Sample’s death,” that decedent suffered from this cardiovascular disease and from congestive heart failure prior to her death, that the “death certificate does not mention the word “aspiration,” and that no autopsy was requested after the death. In addition, the nurse stated in an affidavit that in her opinion “none of the nurses or certified nursing assistants at Life Care breached the standard of care with regard to the care provided to Deceased.” The nurse further stated that “she never found Deceased lying flat in bed with the feeding tube on” and that when she was called into the room on the day of death, decedent was “sitting in a wheelchair not breathing.”

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