Articles Posted in Medical Negligence

A recent Court of Appeals opinion shows yet another case of a potentially valid health care liability claim failing because of plaintiff’s failure to follow the goofy yet mandatory procedural notice requirements of the HCLA statute.

In Piper v. Cumberland Medical Center, No. E2016-00532-COA-R3-CV (Tenn. Ct. App. Jan. 20, 2017), plaintiff wife sued after her husband died while under the care of defendant physicians and hospital. According to the allegations in the complaint, husband went to the hospital due to fatigue and was diagnosed with stage four kidney failure. Plaintiff asserted that ten days after her husband’s admission to the hospital, one of the defendant physicians told her that “it was a shame they couldn’t treat her husband due to his religious beliefs.” At this point, plaintiff discovered that her husband had incorrectly been identified as a Jehovah’s Witness. She corrected the information and gave consent to treat, but her husband died shortly thereafter. Plaintiff alleged that defendants provided negligent treatment and “were negligent because they incorrectly assumed that Decedent’s religious beliefs guaranteed that he would reject available life-saving treatment and because they failed to ask Decedent or [plaintiff] for permission to administer such treatment.”

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So now medical residents in hospitals will be able to work up to 28 hours in a shift.

I understand the arguments in favor of this proposal.  Longer, and more traditional, hours allow more continuity of care and permits the residents to learn more.  If this is true, why not make the limit 36 hours, allowing the young people to get 30% more education?

Because people need sleep to function, that is why.  And while continuity of care is important (although most patient care in hospitals are caused by nurses, but they tend  to work only 12 hour shifts), the earlier doctors learn about the ability to effectively communicate with other health care professionals the better, given the number of errors caused by failure to communicate.

In Holmes v. Christ Community Health Services, Inc., No. W2016-00207-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2016), the Court of Appeals overturned the exclusion of expert testimony in an HCLA case.

In 2004, plaintiff fell and hurt her right shoulder, and she did not seek treatment until five days after her fall. When she visited defendant doctor, he examined her shoulder and diagnosed her with bursitis, never ordering an x-ray or other scan. Defendant doctor recommended an exercise program to plaintiff. Plaintiff’s pain continued to worsen, and she saw a different doctor a month later. This doctor took an x-ray of her shoulder and referred her to an orthopedic surgeon, who ordered a CT scan. The scan showed that plaintiff had a fracture dislocation. She was then sent to Dr. Weiss, a surgeon specializing in shoulder injuries, who performed open reduction surgery on plaintiff. During surgery, Dr. Weiss determined that plaintiff’s shoulder socket was “so badly damaged that it had to be repaired utilizing a cadaver bone piece and surgical screws.” Plaintiff suffered many complications, including a severe infection, an additional surgery, and a PICC line for antibiotics. After her shoulder healed, plaintiff was left with a “partial physical impairment.”

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In Lacy v. Mitchell, No. M2016-00677-COA-R3-CV (Tenn. Ct. App. Nov. 30, 2016), the trial court dismissed plaintiff’s case, finding that her claim fell under the Health Care Liability Act and that she uncontestedly failed to follow the HCLA’s pre-suit notice and certificate of good faith requirements. Interestingly, however, the Court of Appeals overturned a portion of the dismissal, finding that there was at least a chance that one of plaintiff’s claims fell outside the ambit of the HCLA.

In February 2015, plaintiff visited a chiropractor for treatment on her back. As the basis for this action, plaintiff alleged that during the visit the defendant chiropractor “jumped two times on [plaintiff’s] back” while she was lying on the treatment table, and that “as he walked out the door [the chiropractor] beat Plaintiff…in the back with her medical folder.”

Plaintiff filed this case pro se against both the chiropractor and the clinic in which he practiced, and the defendants moved for summary judgment based on plaintiff’s failure to give pre-suit notice and file a certificate of good faith under the HCLA. Plaintiff argued that she need not follow these procedural requirements “because her claims were for ‘beating and assault,’ rather than health care liability.” The trial court, however, granted defendant’s motion and dismissed the case in total.

An article in Becker’s Hospital Review demonstrates the need for careful review of any article that purports to give information about medical malpractice (which Tennessee now calls “health care liability”) lawsuits.

The article purports to list the number of filings per state per 100,000 residents and ranks Tennesseans as the 5th highest filers of malpractice lawsuits – at the rate of 33 per 100,000 people.  That would mean that Tennesseans file about 2145 such lawsuits per year (we have a little over 6,500,000 people living here).

But that number is wrong.  Information compiled by Tennessee’s Administrative Office of the Courts demonstrates that there were 374 medical malpractice suits filed in 2013-2014 and 356 suits filed in 2014-2015. (Data is kept on a July 1 – June 30 fiscal year; 2015-2016 data is not yet publicly available). My guess is that the number of suits filed in all of 2015 was down from what it was in fiscal year 2014-2015, but even assuming that it was the same (356), the rate of filed suits was less than 5.5 per 100,000.  That simply didn’t happen.

In J.A.C. v. Methodist Healthcare Memphis Hospitals, No. W2016-00024-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2016), a plaintiff lost her chance to pursue her Tennessee medical malpractice claim due to an insufficient HIPAA release form.

Plaintiff was forty weeks pregnant when she went to the defendant hospital with lower back and abdominal pain on January 23, 2012, and she was found to have elevated blood pressure. Plaintiff was nonetheless discharged. She had her baby the next day, January 24, 2012, and a placental abruption was noted. The baby, a girl, allegedly “sustained severe brain damage that would not have occurred but for the Providers’ actions in failing to properly treat [plaintiff].”

Plaintiff filed this action on May 1, 2015, purportedly on behalf of both herself and her daughter. Plaintiff alleged that she followed the pre-suit notice requirements of the HCLA, but defendants moved to dismiss the case based on an insufficient HIPAA form. Defendants argued that, because the HIPAA form was insufficient to fulfill the statutory requirements, plaintiff was not entitled to the 120-day extension provided by the HCLA, and that her suit was thus filed outside the three-year statute of repose.

Tennessee Courts continue to make it clear that each time you re-file a previously dismissed Tennessee medical malpractice (now health care liability) claim, you must abide by the statutory requirements. In Cright v. Overly, No. E2015-01215-COA-R3-CV (Tenn. Ct. App. Oct. 17, 2016), the Court of Appeals addressed the need for a plaintiff who was re-filing a previously nonsuited complaint to attach a new HIPAA-compliant release to the second pre-suit notice letter, determining that her failure to do so meant the complaint should be dismissed.

Plaintiff sued multiple defendants related to the treatment and death of her husband. In August 2009, before filing the first suit, plaintiff sent pre-suit notices with a HIPAA-compliant medical authorization to each of the defendants. This action proceeded through discovery and eventually made it to trial, but three days into trial plaintiff moved for a voluntary dismissal.

After the dismissal, plaintiff sent pre-suit notices to the defendants again, but this time she did not include a HIPAA release. Instead, the letter stated: “Medical records of the entire UT Hospital admission at issue have been previously provided to you, as well as any other records you wished to obtain pursuant to an Agreed RAS Order entered in the [original suit].” When plaintiff filed her second complaint, defendants all filed motions to dismiss based on plaintiff’s failure to include a HIPAA-compliant release with her pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121. Plaintiff’s attorney asserted that a HIPAA release “was not attached, because the parties had previously entered an agreed order that the RAS service and record ordering procedure was to be the exclusive means for obtaining the deceased’s medical records, to the exclusion of any medical authorizations previously provided.” The trial court, however, granted the motions to dismiss, and the Court of Appeals affirmed.

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Judge Thomas Brothers of Nashville has declared Tenn. Code Ann. Section 29-26 -121(f)(1) and (2) unconstitutional.    Memorandum Order – Judge Brothers

The code section allows defense lawyers in Tennessee health care liability actions virtually unfettered  ex parte communications with the plaintiff’s non-party health care providers.   The code section was adopted by the Tennessee General Assembly in an attempt to override two  Tennessee Supreme Court  decisions.

The first of those cases was Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 20o2), which held that a covenant of confidentiality between patients and their treating physicians arises because of an implied understanding between patient and doctor and from a public policy concern that private medical information should be protected.

In Hurley v. Pickens, No. E2015-02089-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2016), the Court of Appeals once again held that a plaintiff in a medical malpractice case can take a voluntary nonsuit without prejudice while a motion to dismiss based on an insufficient certificate of good faith is pending.

This opinion was very similar to Clark v. Werther, No. M2014-00844-COA-R3-CV (Tenn. Ct. App. Sept. 27, 2016) and discussed in this Day on Torts post, which came out just two days prior to the instant matter. In Clark, though, plaintiff was pro se and had failed to attach a certificate of good faith to his complaint. Here, plaintiff was represented by counsel and had attached a certificate of good faith, but defendants alleged the certificate was deficient and filed motions to dismiss accordingly.

While the motions to dismiss were pending, plaintiff filed a corrected certificate of good faith, a motion for extension of time to file a corrected certificate of good faith, and a motion for and notice of voluntary dismissal without prejudice. At a hearing on all of the pending motions, and before any argument on the motions to dismiss, plaintiff “announced that he wanted to take a voluntary dismissal pursuant to Tenn. R. Civ. P. 41,” which the trial court allowed. Defendants appealed the dismissal without prejudice, and the Court of Appeals affirmed.

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In Clark v. Werther, No. M2014-00844-COA-R3-CV (Tenn. Ct. App. Sept. 27, 2016), the Tennessee Court of Appeals held that nothing about the Health Care Liability Act (HCLA)  certificate of good faith requirement prohibited a plaintiff from taking a TRCP Rule 41 voluntary nonsuit while a motion to dismiss was pending.

Here, a pro se plaintiff filed a health care liability suit against fourteen healthcare providers. When filing his complaint, however, he failed to attach a certificate of good faith as required by Tenn. Code Ann. § 29-26-122. Several of the defendants filed motions to dismiss on this basis. In response, and before any hearing on the motions to dismiss, plaintiff filed a notice of voluntary nonsuit and proposed order. Some of the defendants “opposed [plaintiff’s] notice of nonsuit on the ground that his complaint should be dismissed with prejudice because of the missing certificate of good faith,” as that is the appropriate penalty under the statute. After a hearing, the trial court dismissed without prejudice the claims against the non-objecting defendants, but dismissed with prejudice the claims against the defendants who objected to the nonsuit.

On appeal, the Court noted that Tenn. R. Civ. P. 41.01 governs voluntary nonsuits and precludes a nonsuit in certain situations, including “in a class action case, in a shareholder derivative action, in a case in which a receiver has been appointed, or while an opposing party’s motion for summary judgment is pending,” or “when it would deprive the defendant of some vested right.” (citation omitted). Otherwise, a plaintiff’s ability to take a voluntary nonsuit is “free and unrestricted…before the jury retires.” (citation omitted).