Medical Negligence

June 10, 2015

Tennessee Certificate of Good Faith Mandate Does Not Require Disclosure of Zero Prior Violations

The Tennessee Supreme Court recently issued an opinion reversing several poorly decided lower court cases regarding the failure to disclose zero prior violations on a Healthcare Liability Act (HCLA) certificate of good faith. In Davis ex rel. Davis v. Ibach, No. W2013-02514-SC-R11-CV (Tenn. May 29, 2015), plaintiff filed an HCLA claim against defendant, but plaintiff’s certificate of good faith failed to state that plaintiff’s counsel had zero prior violations under the statute. Defendants moved for dismissal on the grounds that plaintiff failed to comply with § 29-26-122(d)(4), which states that a “certificate of good faith shall disclose the number of prior violations of this section by the executing party,” but before the Court could hear the motion plaintiff requested a dismissal without prejudice. The trial court allowed the dismissal, and the Court of Appeals affirmed. Defendant argued, though, that because the certificate of good faith was noncompliant the Court was required to dismiss the case with prejudice.

The Supreme Court heard the case to determine “whether the failure to indicate the absence of any prior violations of the statute constitutes a failure to comply with the requirement of section 29-26-122(d)(4).” The Court noted that the Court of Appeals had previously held that a plaintiff’s failure to disclose zero prior violations required dismissal with prejudice. (See, e.g., Vaughn ex rel. Vaughn v. Mountain States Health Alliance, No. E2012-01042-COA-R3-CV, 2013 WL 817032 (Tenn. Ct. App. Mar. 5, 2013)). The Supreme Court expressly overruled those decisions, holding that the HCLA “does not require disclosure of the absence of any prior violations of the statute.” The Court reasoned:

[The statute] does not require disclosure of whether or not there have been any prior violations. The General Assembly easily could have worded the statute to instruct a party to disclose whether or not there have been any prior violations and, if so, the number of such prior violations. It did not do so. Logically, if there have not been any prior violations there is no “number of prior violations” to disclose.

June 4, 2015

Informed Consent Expert Testimony Not Limited to Risks that Actually Materialized

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

A recent informed consent case provided the Supreme Court with the opportunity to analyze what risks a plaintiffs’ expert should be allowed to testify about at trial. In White v. Beeks, No. E2012-02443-SC-R11-CV (Tenn. May 18, 2015), plaintiff had undergone spinal fusion surgery after other attempts at pain management were unsuccessful. After the surgery, plaintiff’s pain initially improved but then became worse, and plaintiff alleged that this was because of an ectopic bone growth caused by the surgery. Plaintiff filed suit against defendant doctor asserting that the doctor had not given him adequate information before the surgery to enable him to give informed consent. Specifically, plaintiff alleged that the doctor failed to inform him that a bone mass product called InFuse would be used, how such product would be used, or the risks associated with InFuse.

To prove his informed consent case, plaintiff needed to “prove by expert testimony 1) the information that [defendant] should have disclosed to [plaintiff] to obtain his informed consent for the surgery, as established by the recognized standard of acceptable professional practice in the specialty [in the same or similar community], 2) whether [defendant] disclosed appropriate information to [plaintiff] to comply with the [standard of care], and 3) whether a reasonable person in [plaintiff’s] position would have consented to the surgery if he had been provided with the information required by the recognized acceptable professional practice.”

May 8, 2015

Tennessee HCLA Case Dismissed for Non-Compliant HIPAA Form.

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

As HCLA cases continue to make their way through the court system, we are learning more about what will constitute substantial compliance with the pre-suit notice content requirements. In the recent case of Harmon v. Shore, No. M2014-01339-COA-R3-CV (Tenn. Ct. App. April 23, 2015), the Court of Appeals reaffirmed what seems like an overly harsh result related to substantial compliance with the required HIPAA authorization.

In Harmon, plaintiff was injured by a procedure performed solely by Dr. Shore. Plaintiff submitted pre-suit notice to the two defendants she later named in her suit, Dr. Shore and the relevant hospital. The HIPAA form enclosed, however, only released plaintiff’s medical records to her own lawyer. Defendants filed a motion to dismiss, which was initially denied in 2013, but following a denial of Rule 9 appeal from the Court of Appeals and then a remand from the Supreme Court to reconsider in light of the holding in Stevens v. Hickman Cmty. Health Care Servs., 418 S.W.3d 547 (Tenn. 2013), the motion to dismiss was granted by the trial court.

Plaintiff did not argue that her HIPAA form strictly complied with the statutory requirements. Instead, her essential argument was that her non-compliance with the technical requirements should be excused because the defendants already had all the records at issue in this case. In her reply to defendants’ motion to dismiss, plaintiff stated:

April 15, 2015

Expert Affidavit Does Not Satisfy Certificate of Good Faith Requirement

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

While some parts of the Health Care Liability Act (HCLA) are making their way towards substantial compliance, the Court of Appeals recently reiterated that the requirement to file a certificate of good faith under Tenn. Code Ann. § 29-26-122 is mandatory. In Dennis v. Smith, No. E2014-00636-COA-R3-CV (Tenn. Ct. App. March 31, 2015), plaintiffs filed an HCLA claim against defendant. Defendant filed a motion to dismiss on the grounds (1) that plaintiffs did not comply with the pre-suit notice requirements because plaintiffs did not attach a HIPAA compliant authorization form to the notice letter, did not attach a list of all heath care providers receiving notice, and did not list the address of the claimant, and (2) that plaintiffs failed to file a certificate of good faith and failed to disclose the number of prior disclosure violations under § 29-26-122(d)(4). The trial court granted defendant’s motion to dismiss, and the Court of Appeals affirmed.

On appeal, the Court focused solely on the certificate of good faith issue, as failure to comply with the certificate of good faith requirements leads to dismissal with prejudice and would therefore be dispositive of the case. Plaintiffs here “concede[d] in their brief on appeal that instead of filing a certificate of good faith in compliance with the statute, plaintiffs filed a statement signed by their expert.” According to plaintiffs, this filing “over-complied by providing more information than the statute requires.” Essentially, plaintiffs argued that they provided the required information plus some and thus should be excused for not technically complying with the statute. The Court firmly disagreed.

April 4, 2015

Tennessee Requires Formal Notice Before Each Medical Malpractice Filing

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

The issue of whether a Tennessee plaintiff who nonsuits his or her first medical malpractice (now heatlh care liability) complaint must give a second notice before re-filing is a closed matter given the recent ruling in Foster v. Chiles. In the recent case of Potter v. Perrigan, No. E2013-01442-COA-R3-CV (Tenn. Ct. App. March 26, 2015), just such a scenario played out.

Plaintiffs gave pre-suit notice on January 8, 2009; they filed their initial suit on April 8, 2009; then on September 8, 2009, they voluntarily dismissed the action. One year later, pursuant to the savings statute, plaintiffs filed a second complaint on September 8, 2010. Attached to this complaint was a certificate of good faith and copy of the previously filed pre-suit notice. Plaintiffs did not send defendants a second pre-suit notice before re-filing their claims. Upon motion of the defendant, the trial court dismissed for failure to comply with Tenn. Code Ann. § 29-26-121. The Court of Appeals initially reversed this decision, holding that “Plaintiffs fulfilled the notice requirement[.]” Defendant then appealed to the Tennessee Supreme Court, which remanded the case for reconsideration in light of an opinion it issued in January, 2015.

March 16, 2015

Sponge Case Falls Under HCLA Not Ordinary Negligence

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

In Smith v. Testerman, No. E2014-00956-COA-R9-CV (Tenn. Ct. App. March 10, 2015), the Court of Appeals recently took up the issue of whether a case sounds in ordinary negligence or health care liability. After a hernia repair, plaintiff developed an infection requiring additional surgery to place a wound vacuum and a sponge. One defendant was allegedly tasked with changing the sponge as necessary, and another of the defendants was charged with removing the sponge at the appropriate time. When the wound vacuum was removed the sponge was not, eventually leading the wound to burst. Plaintiff sued defendants alleging that they “were negligent by failing to either remove the sponge or communicate with the other physicians to ensure that the sponge had been removed.”

Defendant filed a motion to dismiss asserting that the claims fell under the Health Care Liability Act (“HCLA”) and that plaintiff’s failure to comply with the pre-suit notice and certificate of good faith requirements thus necessitated dismissal of the case. Plaintiff responded that he was claiming only ordinary negligence and was therefore not required to comply with the HCLA. Plaintiff asserted that “the fact that the alleged malpractice lies within the common knowledge of laypersons” and therefore did not require expert testimony was proof that the claim sounded in ordinary negligence.

The trial court denied the motion to dismiss, and the Court of Appeals granted interlocutory appeal to address “[w]hether an action seeking compensatory damages for injuries sustained as a result of a foreign object having been left in the patient’s body following surgery is a ‘health care liability action’ as defined by the [HCLA], such that the mandatory presuit provisions set forth in Tennessee Code Annotated sections 29-26-121 and 29-26-122 apply.”

March 6, 2015

Trial Court Cannot Impose Additional Limitations on Ex Parte Interviews in Healthcare Liability Cases.

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

Tenn. Code Ann. § 29-26-121(f) allows defendants in a Tennessee medical malpractice (now called healthcare liability) case to petition the court for a “qualified protective order allowing the defendant…and their attorneys the right to obtain protected health information during interviews, outside the presence of claimant or claimant’s counsel, with the relevant patient’s treating ‘healthcare providers[.]’” The section goes on to specifically list four conditions placed on these interviews: (1) that the petition identify healthcare providers the defendant seeks to interview; (2) that plaintiff may object and seek to limit or prohibit the interview, which “may be granted upon good cause shown that a treating healthcare provider does not possess relevant information[;]” (3) that the protective order should limit the use/dissemination of the information and provide for its return or destruction after the litigation; and (4) that the protective order expressly states that a healthcare provider’s participation in such interview is voluntary.[1] In two almost identical recent cases, the Court of Appeals took up the issue of whether a trial court may place additional conditions or restraints on these interviews.

In both Dean-Hayslett v. Methodist Healthcare, No. W2014-00625-COA-R10-CV (Tenn. Ct. App. Jan. 20, 2015) and S.W. v. Baptist Memorial Hosp., No. W2014-00621-COA-R10-CV (Tenn. Ct. App. Feb. 27, 2015), plaintiffs filed health care liability claims against defendants for alleged professional negligence. At issue in these appeals were the ex parte interviews defendants wanted to conduct with plaintiffs’ treating physicians without plaintiffs or their counsel present. Both sets of defendants moved for qualified protective orders to conduct these interviews, pursuant to § 29-26-121(f), which plaintiffs opposed. The trial courts granted the qualified protective order for the interviews but ultimately placed eight conditions on the interviews in both cases:

(1) That participation by healthcare providers in the interviews was voluntary;

February 28, 2015

Upcoming Civil Case Arguments at the Tennessee Supreme Court

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

The Tennessee Supreme Court will hear two health care liability disputes among four cases scheduled for oral arguments March 4, 2015 in Jackson, Tennessee, one of which will address an interesting civil procedure question.

The first case concerns the procedures required when filing a health care liability lawsuit. At the time the suit was filed, state law required a plaintiff to file a certificate within 90 days of the initiation of a lawsuit, confirming that the plaintiff has consulted with medical experts before filing the suit and stating whether the plaintiff’s lawyer has ever been in violation of the law requiring the certificate. In this case from Dyer County, the attorney, who had never violated the statute, filed the required certificate but did not state that he had zero prior violations of the statute. The defendants sought dismissal of the case based on that omission. The plaintiffs sought to dismiss the case with the option to refile it.

The trial court allowed the dismissal and the defendants appealed. The Supreme Court will consider whether the failure to indicate zero prior violations of the law constitutes a failure to comply with the law requiring the good faith certificate. The case is Timothy Davis v. Michael Ibach, M.D. and Martinson Ansah, M.D.

February 27, 2015

Court of Appeals Rules that 120-Day Extension Applies to HCLA Cases Filed under Saving Statute.

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

The interplay between the saving statute and the 120-day extension provided by the HCLA in Tenn. Code Ann. § 29-26-121(c) continues to be a hotly litigated topic, with the Tennessee Court of Appeals adding another opinion to the mix this week. In 2013, the Supreme Court held that transitional plaintiffs (those whose initial suits were filed before the pre-suit notice requirement was enacted but who nonsuited and re-filed after the pre-suit notice requirement went into effect), who were required to give pre-suit notice before re-filing their lawsuit, were entitled to the 120-day extension even though they were filing their second suit pursuant to the saving statute instead of the traditional statute of limitation. Rajvongs v. Wright, 432 S.W.3d 808 (Tenn. 2013). Then just a month ago, the Supreme Court held that the HCLA “requires that plaintiffs provide pre-suit notice to prospective health care defendants each time a complaint is filed,” meaning that a plaintiff who gives proper notice, nonsuits, then re-files must give a second notice before the re-filing of the claims, even if the claims are identical. Foster v. Chiles, 2015 WL 343872 (Tenn. Jan. 27, 2015). Now, in Tinnel v. East Tenn. Ear, Nose, and Throat Specialists, P.C., No. E2014-00906-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2015), the Court of Appeals has interpreted these prior cases to find that a plaintiff who nonsuits an HCLA case and then gives proper notice and re-files is entitled to the 120-day extension on the re-filed complaint.

In Tinnel, plaintiff suffered an injury during an outpatient procedure resulting in blindness in one eye. The procedure was performed on February 3, 2009. Plaintiff gave proper pre-suit notice on May 19, 2009, then filed suit on February 3, 2010. On December 14, 2010, plaintiff voluntarily dismissed the first lawsuit. Subsequently, on October 18, 2011 and within one year of the nonsuit, plaintiff provided a second set of pre-suit notices to defendants. Plaintiff filed her second suit on April 3, 2012, which was more than a year from the date of her previous nonsuit but within the time that would be included if the 120-day extension were applied. Defendant moved for summary judgment on the basis that the second suit was not timely.

Plaintiff argued that the reasoning the Supreme Court used in Rajvongs should not be confined to transitional plaintiffs and should apply to provide her with the 120-day extension. Moreover, she asserted that since her first suit was filed within the traditional one-year statute of limitation, she had not yet utilized the 120-day extension. Defendants asserted that the Rajvongs holding should be limited only to transitional plaintiffs and that plaintiff automatically received the 120-day extension on her first suit, whether she used it or not, and was therefore not entitled to another extension. The trial court dismissed the case, and plaintiff appealed.

February 3, 2015

Med-Mal Claims Under the GTLA – Limitation of Actions

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

In 2011, the Tennessee legislature amended the Health Care Liability Act (“HCLA”) to add language regarding governmental entities to the chapter. Per the amendments, health care liability action now specifically includes “claims against the state or a political subdivision thereof,” and health care provider includes “those physicians and nurses employed by a governmental health facility.” Tenn. Code Ann. § 29-26-101. The Court of Appeals first found that this language meant that the 120-day extension of the statute of limitations applies to HCLA cases that fall under the Governmental Tort Liability Act in Harper v. Bradley County, No. E2014-00107-COA-R9-CV, 2014 WL 5487788 (Tenn. Ct. App. Oct. 30, 2014). Now the Court has come to that same conclusion in two additional opinions.

Before the 2011 amendments took effect, the HCLA contained no reference to governmental entities. In Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), the Tennessee Supreme Court determined that the HCLA, as it existed prior to the 2011 amendments, did not “evince an express legislative intent to extend the statute of limitations in GTLA cases.” Accordingly, a plaintiff bringing an HCLA claim against a governmental entity was still constricted by the one-year statute of limitations and unable to take advantage of the 120-day extension granted to plaintiffs who give proper pre-suit notice.

Although the Supreme Court has not addressed the interplay of the GTLA and HCLA since the 2011 amendments took effect, the Court of Appeals has now found in three cases that, pursuant to the new language, plaintiffs suing governmental entities under the HCLA are entitled to the 120-day extension so long as they provide proper pre-suit notice. After Harper, the Court reaffirmed its reasoning in Banks v. Bordeaux Long Term Care, 2014 WL 6872979 (Tenn. Ct. App. Dec. 4, 2014). Here, plaintiff sent pre-suit notice prior to the expiration of the one-year statute of limitations then filed suit within the subsequent 120-day window. The trial court dismissed plaintiff’s claim as untimely, but the Court of Appeals reversed. After citing the changes to the HCLA and the reasoning from Harper, the Court held that “Plaintiff’s pre-suit ‘notice’ to the governmental entities was sufficient in all respects; therefore, the GTLA statute of limitations was tolled for an additional 120 days.”