Medical Negligence

August 17, 2017

Application of Tennessee Savings Statute When Initial Filing Deadline Missed

In Jones v. Behrman, No. W2016-00643-COA-R3-CV (Tenn. Ct. App. June 27, 2017), the Court of Appeals affirmed dismissal of an HCLA claim for failure to file within the applicable statute of limitations

Decedent suffered from several health problems, and in February 2011 she had a capsule endoscopy. Two days later, an x-ray showed that the “capsule was still present.” The following day, tests “showed no bowel obstruction but that the capsule remained in the right lower quadrant.” On February 20, 2011, decedent was admitted to the hospital and tests revealed a bowel obstruction. A procedure was performed, and at some point “the surgeons lacerated or penetrated the small bowel, which required them to resect a portion of the bowel.” The injured site or some other part of the small bowel leaked after the surgery, and decedent developed peritonitis and sepsis. Decedent died on April 21, 2011.

On January 24, 2012, decedent’s family members sent pre-suit notice to the doctors who did the capsule endoscopy and the subsequent bowel surgery. On August 13, 2012, plaintiffs filed their HCLA suit, but that case was voluntarily dismissed on September 27, 2012. Plaintiffs then gave pre-suit notice again before re-filing suit on September 26, 2013 pursuant to the savings statute.

August 4, 2017

Failure to Include Causation Evidence Ends Malpractice Case

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

In Graham v. The Family Cancer Center PLLC, No. W2016-00859-COA-R3-CV (Tenn. Ct. App. June 5, 2017), the Court of Appeals affirmed summary judgment in a health care liability suit, agreeing that “plaintiffs lacked sufficient expert testimony to establish their claims.”

Plaintiff patient had been treated for non-Hodgkin’s lymphoma in the 1990s, and he was subsequently monitored by defendant doctor. Part of the monitoring included checking plaintiff’s prostate specific antigen, or PSA. Plaintiff’s “PSA rose from 2.0 ng/mL in 2000 to 4.8 ng/mL in December 2002 and to 8.5 ng/mL in April 2005.” Plaintiff also complained of blood in his urine in both April 2002 and July 2004. In April 2005, based on the testing and plaintiff’s complaints of pain, defendant ordered an ultrasound, which “revealed findings consistent with benign prostate hypotrophy,” and defendant referred plaintiff to a urologist. Plaintiff saw defendant six times after this referral until August 2007, when his PSA measured 12.0ng/mL, and defendant “never inquired whether [plaintiff] had met with an urologist and did not make an additional referral.”

Six months later, plaintiff went to another doctor and was diagnosed with prostate cancer. He had a “radical prostatectomy,” and pathology reported the disease was “locally advanced with several high risk features.” Plaintiff “was considered at high risk for a local recurrence and distant metastatic disease.”

July 21, 2017

Statute of Limitations Bars Mother’s Claim Against Health Care Provider

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

Woodruff v. Walker, No. W2016-01895-COA-R3-CV (Tenn. Ct. App. May 26, 2017) is anHCLA case that addressed the timeliness of plaintiffs’ claims.

Plaintiffs, a mother and child, filed suit alleging that “both plaintiffs suffered permanent injuries resulting from the defendant health care providers’ negligent care during the child’s birth in June 2012.” Mother suffered from a neuromuscular condition both before and during her pregnancy, which necessitated various treatments during her pregnancy, including treatment with a maternal fetal medicine specialist. The specialist met with mother five times during her pregnancy. Approximately three weeks before she delivered, mother was admitted to the hospital “with exacerbated symptoms” of her neuromuscular condition, where she stayed for approximately six days.

When mother eventually went into labor, she was admitted to the hospital around 3:42 a.m. She was monitored, given Pitocin, and eventually given small doses of an epidural. The medical team eventually determined that mother’s “exacerbated” symptoms of her condition “made it unsafe to continue the labor and deliver the child vaginally.” Mother’s oxygen was low, and she reported trouble breathing, but one defendant doctor “insisted on doing a vaginal exam” before the caesarian section. During this exam, “Mother stopped breathing and went into respiratory and cardiac arrest.” An emergency c-section was performed, and mother and child both suffered “serious permanent injuries and brain damage resulting from the lack of oxygen during the delivery.”

July 17, 2017

No HIPAA Form Required in Single Defendant Medical Negligence Case

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

In an important turn in medical malpractice (now know as health care liability) law, the Tennessee Supreme Court has held that “a prospective plaintiff who provides pre-suit notice to one potential defendant is not required under Tennessee Code Annotated section 29-26-121(a)(2)(E) to provide the single potential defendant with a HIPAA-compliant medical authorization.”

In Bray v. Khuri, No. W2015 -00397-SC-R11-CV (Tenn. July 5, 2017), plaintiff filed an HCLA claim against a single physician under whose care her husband was at the time he committed suicide. Prior to filing suit, plaintiff sent pre-suit notice to the single defendant, including a medical authorization signed by plaintiff.

After the complaint was filed, defendant moved to dismiss based on the medical authorization not being HIPAA compliant. The trial court granted the dismissal, ruling that the lack of a HIPAA compliant authorization meant that defendant “could not use [decedent’s] records to prepare a defense,” and that the fact that there was a single defendant was “not determinative.” The Court of Appeals affirmed the dismissal, but the Supreme Court reversed.

June 27, 2017

No Expert Needed Where EMT Allegedly Punched Patient

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

In Zink v. Rural/Metro of Tennessee, L.P., No. E2016-01581-COA-R3-CV (Tenn. Ct. App. May 2, 2017), the Court of Appeals held that plaintiff’s allegations fell within the HCLA, but that no certificate of good faith was required because the claimed negligence was “subject to the common knowledge exception.”

In his complaint, plaintiff alleged that defendant EMT “’negligently and carelessly’ struck [plaintiff] in the face with his fist.” Plaintiff asserted that he was strapped to a gurney at the time, and that defendant “assaulted and battered him, using excessive force.” Further, plaintiff claimed that defendant’s actions caused him permanent injury and medical expenses. Plaintiff brought this action for negligence against defendant EMT and his employer.

Defendants filed a motion to dismiss, asserting that plaintiff’s claims were subject to the HCLA and that plaintiff did not follow the procedural requirements of the statute. The trial court granted the motion, dismissing plaintiff’s complaint with prejudice due to his failure to file a certificate of good faith pursuant to Tenn. Code Ann. § 29-26-122. The trial court rejected plaintiff’s argument that no certificate of good faith was needed because his allegations fell within the common knowledge exception to the expert testimony requirement. On appeal, however, this decision was reversed.

June 26, 2017

Claims of “Beatings” By Medical Personnel Not Subject to Tennessee HCLA

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

In Lacy v. Saint Thomas Hospital West, No. M2016-01272-COA-R3-CV (Tenn. Ct. App. May 4, 2017), a pro se plaintiff brought a claim against several medical providers, alleging that she was “beaten during medical procedures.” Plaintiff did not give pre-suit notice or file a certificate of good faith, and the defendants accordingly moved to dismiss, asserting that plaintiff’s claims were covered by the HCLA. The trial court dismissed all of plaintiff’s claims, but the Court of Appeals reversed a portion of this ruling, holding that some of plaintiff’s claims did not fall under the HCLA and were thus not subject to its procedural requirement. Plaintiff’s claims related to two separate incidents. In the first, she alleged that a doctor at St. Thomas Hospital “committed the offense of assault and battery by beating, electrocuting, and burning her while she was undergoing medical testing.” Plaintiff asserted that her hands were burned and she suffered an overdose of electrical current, and that after the shock the doctor “physically beat her…[by] hitting her four times on the front part of her right shoulder.” The second incident concerned an MRI, which plaintiff alleged was too hot and burned her. She also claimed that the individual administering the MRI beat her on the left shoulder while positioning her, and that after the test he “took her medical file and beat her from head to ankle up and down never saying a word.” She further alleged that an MRI technician “beat her left leg four times causing bruising.”

Plaintiff’s claims related to two separate incidents. In the first, she alleged that a doctor at St. Thomas Hospital “committed the offense of assault and battery by beating, electrocuting, and burning her while she was undergoing medical testing.” Plaintiff asserted that her hands were burned and she suffered an overdose of electrical current, and that after the shock the doctor “physically beat her…[by] hitting her four times on the front part of her right shoulder.” The second incident concerned an MRI, which plaintiff alleged was too hot and burned her. She also claimed that the individual administering the MRI beat her on the left shoulder while positioning her, and that after the test he “took her medical file and beat her from head to ankle up and down never saying a word.” She further alleged that an MRI technician “beat her left leg four times causing bruising.”

June 9, 2017

Testimony on Whether Doctor “Did Her Best” Excluded in Medical Malpractice Case

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

In Bradley v. Bishop, No. W2016-01668-COA-R3-CV (Tenn. Ct. App. Mar. 30, 2017), the Court of Appeals affirmed a jury verdict for defendants in a health care liability case.

For eight years, plaintiff had been treated for a fibroid in her uterus that caused extensive bleeding. In 2012, another fibroid was discovered, and after an unsuccessful surgery to remove the fibroid, plaintiff decided to undergo a hysterectomy. Defendant doctor recommended a laparoscopic hysterectomy, but warned plaintiff that she might have to convert to an open procedure. During the surgery, defendant did convert to an open procedure. Defendant called for surgical back-up, but no one was available, and defendant determined that she could complete the procedure herself. During the procedure, defendant noticed a “superficial cut” on plaintiff’s colon, but she did not see or notice any signs of a bowel injury. In the days following the hysterectomy, plaintiff’s “condition deteriorated,” and she was eventually diagnosed with a bowel injury which required surgical repair, three weeks of hospitalization, and additional procedures in the following years.

Plaintiff filed this suit, alleging that defendant “negligently caused injury to [plaintiff’s] small bowel.” Throughout the litigation, causation was not contested, as defendant admitted that the bowel was injured during the surgery. Whether defendant’s actions met the applicable standard of care, however, was hotly contested, with several experts testifying for both sides. Plaintiffs’ experts testified that defendant had fallen below the standard of care, that a different type of hysterectomy would have been more appropriate, that defendant had made mistakes during the surgery, and that defendant should have noticed the bowel injury. Defendants’ experts, however, testified that the chosen procedure was appropriate, that defendant acted in accordance with the standard of care at all times, and that bowel injuries were a common complication of hysterectomies and could occur even when the surgery was done appropriately. Ultimately, the jury returned a verdict for defendant, finding that defendant “did not deviate from the recognized standard of care,” which the trial court affirmed as thirteenth juror. On appeal, the Court of Appeals also affirmed.

May 16, 2017

Acknowledgement Letter Used to Establish Pre-suit Notice

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

In Runions v. Jackson-Madison County General Hospital Dist., No. W2016-00901-COA-R9-CV (Tenn. Ct. App. Feb. 7, 2017), the Tennessee Court of Appeals analyzed a case in which pre-suit notice for an HCLA claim was mistakenly sent to the wrong defendant/defendants. Under the specific facts of this case, the Court determined that the proper defendant did in fact receive notice and that a motion to amend and substitute the proper defendant was rightly granted.

Plaintiff’s infant daughter had been born and died shortly thereafter at Jackson-Madison County General Hospital, and plaintiff accordingly sent pre-suit notice of an HCLA suit pursuant to Tenn. Code Ann. § 29-26-121. Plaintiff sent her notices to three defendants: (1) Bolivar General Hospital, Inc. (“BGH”), (2) West Tennessee Healthcare, Inc. (“WTH”), and (3) West Tennessee Healthcare Network (“WTHN”). All of these were addressed as d/b/a Jackson-Madison County General Hospital, Inc., and all were sent to the same registered agent and the same address.

One week after the pre-suit notices were sent, Laura Zamata, who was “Director of Risk Management” for the Jackson-Madison County General Hospital District (“the District”) sent plaintiffs’ counsel a letter “acknowledging receipt of a pre-suit notice letter.” The letter stated that “The District is a governmental entity and has elected to be self-insured, therefore, there is no insurance carrier.” It also stated that Ms. Zamata was the designated contact for future correspondence.

May 15, 2017

Patient Alleging Rape at Hospital – Pre-suit Notice Not Required

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

In Cordell v. Cleveland Tenn. Hosp., LLC, No. M2016-01466-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2017), the Court of Appeals reversed dismissal in a case filed against a hospital, determining that the complaint did not contain claims covered by the HCLA and that the plaintiff was thus not required to follow the HCLA statutory requirements.

Plaintiff was taken to defendant hospital by “police who were concerned that she had taken too high of a dosage of prescribed medication.” She was put in a hospital room, and her husband alleged that when he arrived to see her he was forced to leave. Plaintiff had her cell phone, and she called her husband to tell him that the security guard outside her room was making her uncomfortable. She stated that he “kept opening her door and coming into her room in order to stare at her.” Plaintiff’s husband called the hospital to complain, and plaintiff alleged that the security guard then took her phone away. Plaintiff was relocated to another room, but she allegedly had “no recollection of any events that took place in the twelve-plus hours following her relocation.” The next evening, she was told she was being transferred to another hospital, and while there she “noticed blood and soreness when she used the restroom.” After she was discharged, she felt pain while showering and her husband observed “several injuries on her vaginal and anal areas.” She went to her obstetrician the next day, where “evidence of rape, including semen, was discovered.”

March 29, 2017

HCLA (Medical Malpractice) Claim Dismissed – Notice Insufficient

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

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.”