Medical Negligence

September 24, 2018

Court Requires Production of Pre-suit Expert Statement Supporting Certificate of Good Faith

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.”

September 19, 2018

Final Order of Dismissal Cannot Be Re-Litigated in Second Suit

by The Law Offices of John Day, P.C.

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.

September 19, 2018

Local Practice Does Not Relieve Obligation to Provide Complete Medical Authorization

by The Law Offices of John Day, P.C.

A HIPAA authorization form that leaves blanks for which parties may make disclosures and to whom disclosures can be made is most likely insufficient to meet the statutory requirements of the HCLA, even if it complies with the local practice.

In Roberts v. Wellmont Health System, No. 2017-00845-COA-R9-CV (Tenn. Ct. App. July 5, 2018), plaintiff sent defendants a pre-suit notice and then filed an HCLA complaint. When defendants filed motions to dismiss in the first matter, plaintiff voluntarily dismissed the case, then subsequently sent new pre-suit notices and filed a second complaint. Defendants filed motions to dismiss, arguing that the first pre-suit notice was deficient due to an incomplete HIPAA authorization, that plaintiff was thus not entitled to the 120-day extension of the statute of limitations which would mean that the first suit was filed outside the statute of limitations, and that the second suit was therefore time-barred.

When sending the first pre-suit notice, plaintiff included a HIPAA authorization that left blank the spaces for (1) the persons authorized to disclose protected health information and (2) the persons to whom disclosure could be made. The form also failed to state an expiration date.

September 11, 2018

Acknowledgement Letter Does Not Establish HCLA Pre-Suit Notice

by The Law Offices of John Day, P.C.

Where a plaintiff sent notice to and filed suit against an incorrect HCLA defendant, then moved to amend to name the correct defendant, the motion to amend may be futile if the complaint was originally filed outside the one-year statute of limitations, as the 120-day extension would not apply to the new defendant to whom notice was not given.

In Runions v. Jackson-Madison County General Hospital District, No. W2016-00901-SC-R11-CV (Tenn. June 6, 2018), the plaintiff and her infant daughter had been treated at the defendant hospital, and the infant daughter died, allegedly due to defendant’s negligence. Plaintiff sent pre-suit notice to several entities, all of whom had Ms. Higgs listed as their registered agent. Ms. Higgs was also the registered agent for the Jackson-Madison County General Hospital District (the District), who was not sent notice but ultimately was identified as the proper defendant.

September 7, 2018

Deficient HIPAA Authorization Not Grounds for Dismissal

by The Law Offices of John Day, P.C.

Where an HCLA plaintiff sent defendants a HIPAA authorization that “failed to include the mother’s authority to sign the document, the expiration date of the document, and the names of all healthcare providers authorized to use or disclose the requested information,” plaintiff was still deemed to have substantially complied with the statutory requirements, and dismissal of the complaint was reversed.

In Martin v. Rolling Hills Hospital, LLC, No. M2016-02241-COA-R3-CV (Tenn. Ct. App. June 22, 2018), plaintiffs were the parents and children of a patient who was admitted to defendant hospital for suicidal ideation and detoxification, and was found unresponsive two days after her admission, dying later that day.

The death occurred on June 28, 2013, and the first complaint was filed on October 17, 2014, which was outside the one-year limitations period but within the 120-day extension period. That complaint was nonsuited, and a second complaint was filed naming the same defendants within a year of the nonsuit. Defendants filed a motion to dismiss, arguing that plaintiffs did not comply with the pre-suit notice requirements, which meant they were not entitled to the 120-day extension of the statute of limitations. Accordingly, defendants argued that the first suit was time-barred, making the second suit also time-barred. The trial court granted to motion to dismiss based on plaintiffs’ incomplete HIPAA authorization, but the Court of Appeals reversed.

June 30, 2018

Wisconsin Supreme Court Upholds Damage Caps in Medical Malpractice Cases

by The Law Offices of John Day, P.C.

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.”

May 21, 2018

Noncompliant HIPAA Form Derails Plaintiffs’ Claims

by The Law Offices of John Day, P.C.

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.

April 30, 2018

Discovery Rule Applied in Tennessee Health Care Liability Act Case

by The Law Offices of John Day, P.C.

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 18^th confirmed his cause of death as “septic shock and gangrenous cholecystitis.”

April 10, 2018

Improper Notice Under TCA § 29-26-121 – The Savings Statute Does Not Save Case

by The Law Offices of John Day, P.C.

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.

March 23, 2018

Assault Claim in Health Care Facility

by The Law Offices of John Day, P.C.

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).