Articles Posted in Medical Negligence

While a plaintiff in a health care liability action must prove certain elements through an expert witness, that expert witness is not necessarily required to use “precise legal language.” A medical expert’s failure to use perfect terminology will not automatically result in a victory for defendant, as recently illustrated by the case of Dickson v. Kriger, No. W2013-02830-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2014).

In Dickson, plaintiff sued an ophthalmologist for complications allegedly caused by the negligent performance of LASIK surgery. The case went to trial, and after plaintiff’s proof, the trial court granted defendant’s motion for directed verdict on the basis that plaintiff had failed to establish (1) the standard of care for ophthalmologists in the area at the time of the procedure and (2) that defendant’s negligence was the proximate cause of the damages. The Court of Appeals, however, reversed this directed verdict, finding that the trial court had held plaintiff’s expert to too specific of a language requirement.

“Directed verdicts are only appropriate when reasonable minds could reach only one conclusion from the evidence.” If there is any material evidence to support plaintiff’s theories, then plaintiff should survive a motion for directed verdict. Here, the Court of Appeals found that a reasonable juror could find that plaintiff established the necessary elements of his case.

          The Tennessee Health Care Liability Act requires that health care professionals testifying as experts, in addition to other requirements, be licensed to practice in Tennessee or a bordering state. Tenn. Code Ann. § 29-26-115. In a recent decision, the Tennessee Supreme Court found that a trial court’s refusal to waive this requirement was not so far removed from the “usual course of judicial proceedings” so as to qualify for a Rule 10 appeal.

            In Gilbert v. Wessels, No. E2013-00255-SC-R11-CV (Tenn. Dec. 18, 2014), plaintiff filed a health care liability action against an ophthalmologist who had performed YAG laser surgery on him. Less than a month before trial, the defendant doctor filed a motion to waive the contiguous state requirement. Defendant sought to have a doctor from Florida testify who was alleged to be one of the three doctors in the country with the most experience with this procedure. Defendant supported his motion with an affidavit saying that defense counsel had spent 35 hours attempting to identify an expert in Tennessee or a contiguous state, an affidavit from a Tennessee ophthalmologist stating that testimony should be provided by someone who had performed the procedure, and a portion of plaintiff’s expert’s deposition acknowledging that the Florida doctor was one of the most experienced in the county at the relevant procedure.

            Plaintiff opposed defendant’s motion, and the trial court declined to waive the contiguous state requirement, finding that defendant “had not established that appropriate witnesses would otherwise be unavailable.” The trial court denied defendant’s petition for interlocutory appeal, but the Court of Appeals subsequently granted defendant’s application for a Rule 10 extraordinary appeal. After considering the case, the Court of Appeals held that the trial court did not abuse its discretion when it declined to waive the contiguous state requirement. The Supreme Court then granted defendant’s Rule 11 appeal.

As Tennessee Courts continue to grapple with what exactly constitutes substantial compliance when sending pre-suit notice of a healthcare liability action, a recent case provides hope that a reasoned approach may ultimately prevail –  a HIPAA form sent with the pre-suit notice letter was found to substantially comply with the notice statue despite the failure to Include the date on the form.

In Hamilton v. Abercombie Radiological Consultants, Inc., No. E2014-00433-COA-R3-CV (Tenn. Ct. App. Dec. 15, 2014), plaintiff sent a timely pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121 before filing her health care liability action. Defendant, however, moved to dismiss because plaintiff had signed the HIPAA release form but had left the date blank open. Plaintiff asserted that the date line was intentionally left blank so that defendant could fill it in and the “release form would not become stale.” The trial court, though, agreed with defendant and dismissed the case with prejudice, finding that the form was non-HIPAA compliant.

In its analysis, the Court of Appeals quoted heavily from Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512 (Tenn. 2014), which expounded upon the Supreme Court’s Stevens decision, the first decision in which the Court held that the content requirements of pre-suit notice could be satisfied with substantial compliance. According to Thurmond, “unless strict compliance with a notice content requirement is essential to avoid prejudicing an opposing litigant, substantial compliance with a content requirement will suffice.” “Non-substantive errors and omissions” and “a plaintiff’s less-than-perfect compliance with subsection 29-26-121(a)(2)(E) will not derail a healthcare liability claim so long as the medical authorization provided is sufficient to enable defendants to obtain and review a plaintiff’s relevant medical records.” Stevens v. Hickman Cmty. Healthcare Serv., Inc., 418 S.W.3d 547 (Tenn. 2013).

            Not all claims brought against health care providers fall under the Tennessee Health Care Liability Act (THCLA), and a recent case from the Tennessee Court of Appeals gives crucial guidance on how to distinguish THCLA claims from ordinary, non-statutory tort claims. In Ellithorpe v. Weismark, No. M2014-00279-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2014), plaintiffs were parents of a minor child. Plaintiffs had lost custody pursuant to a juvenile court order, but plaintiffs alleged that the order required them to be informed of and allowed to participate in any counseling offered to the minor child. In their complaint, plaintiffs alleged that defendant social worker had provided counseling to minor child in violation of the court order. They asserted claims for negligence, negligence per se, and intentional infliction of emotional distress against the defendant.

            Defendant moved to dismiss the complaint in its entirety, arguing that it fell under the THCLA and that plaintiffs had indisputably not followed the statute’s procedural requirements. The trial court granted the motion, finding that “the THCLA was ‘very broad’ and encompassed this claim because it related to the provision of health care services by a health care professional.” The Court of Appeals, however, reversed this dismissal, stating that the trial court had not used the proper analysis to determine whether the claims fell within the THCLA.

            In determining the proper analysis, the Court first pointed to the Tennessee Supreme Court’s opinion in Gunter v. Laboratory Corp. of America, 121 S.W.3d 636 (Tenn. 2003). There, the Supreme Court indicated that the “crucial question” was whether the claim “constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional.” Later, though, the Supreme Court reexamined the analysis recommended by Gunter. In Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), the Supreme Court noted that “all cases involving health or medical care do not automatically qualify as health care liability claims.” The Estate of French Court “somewhat abandoned the broad ‘gravamen of the complaint’ test outlined in Gunter, in favor of ‘a more nuanced approach’ in which the trial court must examine the claims individually to determine whether they sound in ordinary negligence or health care liability.” Instead of broadly characterizing the complaint, this analysis depended on factual inquiries to appropriately categorize the individual claims.

 If a health care liability defendant moves to dismiss based on the failure to file a sufficient certificate of good faith, can the plaintiff nonsuit before the trial court rules on the motion? Davis v. Ibach, W2013-02514-COA-R3-CV (Tenn. Ct. App. July 9, 2014) is the latest opinion that says the answer is yes. Based on the various cases in which the question has been raised, it looks like the answer is “yes” in just about any circumstances:

–        Where the plaintiff files a certificate of good faith but it is allegedly deficient. (Davis)

–        Where the plaintiff fails to file a certificate of good faith at all. (Robles v. Vanderbilt University Medical Center, M2010-01771-COA-R3-CV, 2011 WL 1532069 (Tenn. Ct. App. Apr. 19, 2011))

 In Robinson v. Baptist Memorial Hospital, No. W2013-01198-COA-R3-CV (July 11, 2014), the court addressed the fraudulent concealment exception to the statute of limitations and statute of repose for medical negligence actions in Tennessee.  In this case, the defendant doctor erased the initial version of his consult note and changed his initial, incorrect, diagnosis of the decedent.  During discovery, the plaintiff learned of this change and was granted leave to amend the complaint to add the defendant doctor and his medical practice as defendants.  This amended complaint was filed around five years after the initial lawsuit was filed – outside of the one-year statute of limitations and three-year statute of repose for medical negligence claims in Tennessee.

Under Tennessee law, the doctrine of fraudulent concealment will toll the running of a statute of limitations.  It tolls the statute when a defendant has taken steps to prevent the plaintiff from discovering that he was injured.  There are four elements that must be met to prove fraudulent concealment:

(1) that the defendant affirmatively concealed the plaintiff’s injury or the identity of the wrongdoer or failed to disclose material facts regarding the injury or the wrongdoer despite a duty to do so;

As far as I can remember, Evans v. Williams, No. W2013-02051-COA-R3-CV (Tenn. Ct. App. June 30, 2014),is the first and only case dealing with whether a health care liability expert must be familiar with demographic information about the defendant’s community from the time the alleged malpractice occurred. To be sure, the injury in this case occurred in 1991, twenty-two years before it was finally tried in 2013. Even with that much time, though, the Court of Appeals held that present day statistics are sufficient to establish an expert’s familiarity with a defendant’s community or a similar community.

At the trial of Evans, the trial judge granted Defendants’ motion to exclude one of Plaintiffs’ standard of care experts. The trial judge ruled that the expert was not familiar with the standard of care in Defendants’ county or a similar community when the treatment was rendered in the early 1990s. The trial judge denied Plaintiffs’ motion to exclude one of Defendants’ standard of care experts. The jury returned a verdict of no liability.

The Court of Appeals looked to Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011), for competency requirements under Tenn. Code Ann. sec. 29-26-115. 

 In Arden v. Kozawa, M.D, No. E2013-01598-COA-R3-CV (Tenn. Ct. App. June 18, 2014), Plaintiff in a health care liability action appealed after his lawsuit brought on behalf of his deceased wife was dismissed at trial for failing to strictly comply with Tennessee’s pre-suit notice requirements.

Plaintiff’s wife was allegedly negligently treated by a doctor at a hospital for abdominal pain and she later died from pancreatitis and other complications. Prior to the statute of limitations, plaintiff sent pre-suit notice letters to the doctor and hospital, as required by TCA statute 29-26-121. However, there were four problems with the pre-suit notice letters: (1) plaintiff omitted his own address from the notice letters; (2) the doctor’s letter was sent to an address that was different from the listing on the Tennessee Department of Health website; (3) the provider’s list accompanying the letters did not include the hospital’s address; and (4) there was no certificate of mailing from the U.S. Postal Service because the letters were sent via Federal Express. The trial court dismissed plaintiff’s case at summary judgment based on plaintiff’s failure to strictly adhere to the requirements of the pre-suit notice statute, and plaintiff appealed.

The Tennessee Court of Appeals first observed that the trial court had wrongly applied the “strict compliance” standard to the pre-suite notice requirements, instead of the correct “substantial compliance” standard as previously held by Tennessee’s Supreme Court in Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, No. M2012-02270-SC-R11-CV, 2014 WL 1632183 at *6-7 (Tenn. Apr. 24, 2014).  Reviewing the content of plaintiff’s pre-suit notice letters in light of the correct “substantial compliance” standard, the appellate court ruled that defendant doctor and hospital were not prejudiced by plaintiff’s failure to include his own address and the hospital’s address on the providers list and, therefore, the content in plaintiff’s notice letters had substantially complied with the pre-suit notice requirements of 29-26-121.

Tenn. Code Ann. Sec. 29-26-122 requires medical malpractice complaints to be supported by a certificate of good faith. This statute became effective October 1, 2008, yet because health care cases can linger for years in pre-trial stages, many cases filed before that date are still active. The Tennessee Court of Appeals recently considered how the certificate of good faith statute affects amended pleadings in cases originally filed before October 1, 2008.

In Rogers v. Jackson, No. M2013-02357-COA-R3-CV (Tenn. Ct. App. May 19, 2014), plaintiff filed a medical malpractice suit regarding the death of his wife. The original complaint was filed on February 1, 2008. Defendants filed an answer, then on October 2, 2008 moved to amend their answer to assert comparative fault against a second doctor’s group as well as the deceased patient. The motion to amend was granted. Based on this amended answer, plaintiff filed an amended complaint on December 29, 2008, adding this additional doctor and his group as defendants in the suit.

Arguing that the amended pleadings were filed after the implementation of the certificate of good faith requirement, the added defendants filed a motion to strike the allegations of fault in the amended answer and amended complaint based on the argument that no certificates of good faith were filed regarding the claims against them. The trial court denied the added defendants’ The Tennessee Court of Appeals, however, affirmed the trial court’s decision to allow the case to proceed against the defendants named in both the original and the amended complaint.