Articles Posted in Medical Negligence

Where defendant physician was employed by a state university and received no personal gain from the clinical services she rendered at a hospital, and plaintiff had brought an HCLA action based on these hospital clinical services, summary judgment pursuant to defendant’s absolute immunity under the Tennessee Claims Commission Act was affirmed.

In Parker ex rel. Parker v. Dassow, No. E2021-01402-COA-R3-CV, 2022 WL 11584155 (Tenn. Ct. App. Oct. 20, 2022), plaintiff filed this HCLA suit on behalf of her son. According to plaintiff, defendant physician failed to find a condition on the son’s ultrasound before he was born, which caused him permanent injuries. Plaintiff asserted that this negligent ultrasound reading occurred at Erlanger Hospital.

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Where plaintiff filed an HCLA case against a hospital that was a governmental entity, but only alleged negligence by doctors who were not employees of the hospital, summary judgment under the GTLA was affirmed.

In Howell v. Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System, No. E2021-01197-COA-R3-CV, 2022 WL 5295794 (Tenn. Ct. App. Oct. 7, 2022), plaintiff went to defendant hospital for treatment for a laceration on his foot. Plaintiff was treated by a medical resident and a medical student, who were both under the supervision of the same physician. Neither the supervising physician, medical resident, or medical student were employees of defendant hospital.

Plaintiff filed this suit asserting negligence against the medical resident and supervising physician because the resident allegedly failed to remove fiberglass shreds from his cut before doing stitches, which led to serious medical issues.  Defendant moved for summary judgment, and after several responses and replies, the trial court granted summary judgment on the basis that “[defendant] is a governmental entity and that neither [the supervising physician] nor [the medical resident] are employees of [defendant],” so defendant “could not be held vicariously liable for the actions of [the supervising physician or medical resident] under the GTLA.” This ruling was affirmed on appeal.

Pursuant to the GTLA, a governmental entity may be liable for the “negligent actions of governmental employees acting within the scope of their employment.” (Tenn. Code Ann. § 29-20-205). The issue here, however, was that the doctors that plaintiff claimed had acted negligently were not employees of defendant hospital. The only expert testimony presented by plaintiff asserted that the supervising physician and medical resident had failed to meet the standard of care; it did not “allege that [defendant hospital] or its nurses deviated from the standard of care.”

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Where the HIPAA authorizations sent with plaintiff’s HCLA pre-suit notice were noncompliant, and plaintiff’s attorney claimed that the noncompliance was due to a set of extremely stressful work and family circumstances but his affidavit did not explain how the noncompliant error was made or how the circumstances caused the error, the Court of Appeals overturned the trial court’s finding of extraordinary cause excusing the noncompliance.

In Moxley v. AMISUB Inc. D/B/A Saint Frances Hospital, No. W2021-1422-COA-R9-CV, 2022 WL 3715056 (Tenn. Ct. App. Aug. 29, 2022), plaintiff alleged that he was injured by defendants’ medical negligence on July 5, 2019. Plaintiff’s counsel sent pre-suit notice to all potential defendants on July 3, 2020, and those notices included medical release forms that were allegedly HIPAA complaint pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E). The forms, however, all listed the recipient medical provider as the “releasing provider” rather than the receiving provider, essentially giving the recipient the ability to release documents but not obtain them.

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Where an HCLA plaintiff’s expert refused to testify due to no fault of plaintiff or plaintiff’s counsel, the Tennessee Court of Appeals ruled that the  trial court should have allowed plaintiff to secure a substitute expert.

In Blackburn v. McLean, No. M2021-00417-COA-R3-CV, 2022 WL 3225397 (Tenn. Ct. App. Aug. 10, 2022), plaintiff filed an HCLA complaint in connection with the death of 35-year-old decedent who died after presenting at defendant emergency room and being treated by defendant doctor. Plaintiff identified Dr. Sobel as his standard of care expert and Dr. Allen as his causation expert. During Dr. Allen’s deposition, he testified that the decedent would “probably be alive” if he had sought treatment earlier, and defendant doctor thereafter filed a motion to amend his answer to plead the comparative fault of decedent. Defendant also filed a motion to compel the production of certain tax records from Dr. Sobel showing “the amount of money he was paid for medico-legal matters during certain prior years.”

After a hearing, both the motion to amend and the motion to compel were granted. After financial documents related to Dr. Sobel were produced, defendant doctor moved to lift the protective order regarding these documents, which the trial court granted. After the protective order was granted, Dr. Sobel refused to testify as an expert witness for plaintiff in this case.

Plaintiff filed a Motion to Substitute Expert Witness seeking to substitute a new expert whose opinions were “for the most part identical” to those of Dr. Sobel, but the trial court denied the motion. Plaintiff also sought to retain an expert to respond to the newly added comparative fault allegations. While the trial court ruled that plaintiff could obtain a cardiologist to respond to the newly asserted comparative fault defense, it placed extensive limitations on what that expert could address, specifically stating that plaintiff could not identify new experts “to address the standard of care for Defendants or alleged violations of the standard of care[,]…to testify about the alleged fault of Defendant [doctors] and/or what he allegedly did wrong[,] …to compare the fault of the decedent to the fault of the Defendants.”

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The Los Angeles Times reports that a new trial has been ordered in an Orange County medical malpractice after the winning lawyer posted an online celebration video saying the case involved “a guy who was probably negligently killed but we kind of made it look like other people did it.”  [The video still on line only has the last part of this statement.  I do not know the accuracy of the first portion of the statement attributed to the winning lawyer but the article says the judge referenced it.]

The Times reported that the judge said ““When he says on video a ‘guy was probably negligently killed,’ probably is more likely than not. Then he goes on to say, ‘But we kind of made it look like other people did it,’” [and] ‘[t]That seems like an admission of negligence. Seems like an admission the plaintiff should have prevailed.’”

According to the article, Plaintiff’s counsel said defense counsel “had improperly pointed the finger at other medical personnel as culpable in Sanchez’s death, contrary to an agreement not to do so, and later bragged about it on tape.”

Judge Aleta Trauger has ruled that, given a recent decision of the Sixth Circuit Court of Appeals looking at Michigan law,  “it is clear that the presuit notice requirement set forth in Tenn. Code Ann. § 29-26-121(a)(1) and the certificate of good faith requirement in Tenn. Code Ann. § 29-26-122(a) conflict with the Federal Rules of Civil Procedure. As such, they must give way to the Federal Rules and, therefore, do not apply to health care liability claims filed in federal court.”

The Sixth Circuit ruled in Albright v. Christensen, 24 F.4th 1039 (6th Cir. 2022) that “held that requirements under Michigan state law that an affidavit-of-merit signed by a health care professional be filed with a medical malpractice complaint and that presuit notice be provided to the defendant in a medical malpractice action did not apply to a diversity lawsuit filed in federal court. Albright, 24 F.4th at 1045–49.”

This is how Judge Trauger summed up the Sixth  Circuit’s opinion in Albright:

Where defendant was contracted to provide food services to a hospital, and decedent’s injury was allegedly a result of actions or omissions from the food service provider, the Court of Appeals affirmed the finding that the discovery rule applied and plaintiff’s pre-suit notice was timely even though it was sent more than one year after the injury, as nothing in the record indicated that plaintiff could have or should have discovered defendant’s identity earlier.

In Archer v. Sodexo Operations, LLC, No. W2020-01176-COA-R9-CV, 2022 WL 1657222 (Tenn. Ct. App. May 25, 2022), decedent was transported to a hospital emergency room and admitted due to complications with his PEG tube, through which he received nutrition. Decedent had an order that nothing be given to him by mouth, but on August 26, 2018, the morning after his admission, he was given a full breakfast tray. Decedent aspirated on the food, was found unresponsive, had multiple rounds of CPR performed, was transferred to a long-term care facility, and eventually died in February 2019.

On June 26, 2019, plaintiff, who was decedent’s son, sent pre-suit notice of his HCLA claim to the hospital where decedent was treated. On June 27, counsel for the hospital emailed plaintiff’s counsel and stated, “I don’t know much about this one but from what little I know this may be an issue with the dietary people. Dietary is contracted out to Sodexo (I think).” After further communication, counsel for the hospital stated that it was informing plaintiff pursuant to Tenn. Code Ann. § 29-26-121(5) that there might be another defendant because dietary services were contracted out.

Where an HCLA plaintiff sent pre-suit notice addressed to the wrong entity, summary judgment for defendant was affirmed, even though defendant was informed of the pending suit by the incorrect entity and was not prejudiced.

In Breithaupt v. Vanderbilt University Medical Center, No. M2021-00314-COA-R3-CV, 2022 WL 1633552 (Tenn. Ct. App. May 24, 2022), plaintiff suffered antibiotic tendonitis, a traumatic rupture to a tendon in her ankle, and chronic tendonitis after being prescribed medication for a cough that had an adverse reaction with the steroids she had been taking for years. The prescribing doctor worked at defendant VUMC, and plaintiff was not warned about the possible side effects of the medication by the doctor before taking it, despite having previously treated at defendant VUMC for ankle problems. Plaintiff thereafter filed this HCLA suit.

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Where an HCLA certificate of good faith filed with the Claims Commission named the wrong defendants, dismissal should have been granted.

In Gilbert v. State, No. E2021-00881-COA-R9-CV, 2022 WL 1117453 (Tenn. Ct. App. April 14, 2022), plaintiff filed an HCLA claim against several defendants, including the State of Tennessee as the employer of Dr. Landry, who was allegedly negligent. Plaintiff filed his HCLA complaint against the non-State employees in circuit court, and he filed his complaint against the State with the Division of Claims and Risk Management. Plaintiff attached a certificate of good faith to each complaint pursuant to Tenn. Code Ann. § 29-26-122(a). On the certificate of good faith filed with the Claims Commission case, the heading correctly said it was filed “IN THE CLAIMS COMMISSION FOR THE STATE OF TENNESSEE,” but the parties listed in the caption were the non-State parties. In fact, “[n]othing in [Plaintiff’s] certificate of good faith filed in the Claims Commission identifie[d] the State or Dr. Landry.”

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Where plaintiff filed an exhibit with its HCLA complaint that did not comply with the certificate of good faith requirements, summary judgment for defendant should have been granted.

In Estate of Blankenship v. Bradley Healthcare and Rehabilitation Center, No. E2021-00714-COA-R10-CV, 2022 WL 951256 (Tenn. Ct. App. Mar. 30, 2022), plaintiff filed this HCLA suit alleging that decedent died while a resident of defendant nursing home due to defendant’s negligence. Plaintiff’s complaint stated that Exhibit 7 to the complaint satisfied the HCLA certificate of good faith requirement. Exhibit 7 was a “one-paragraph letter” from a nurse practitioner (NP) which stated that the NP was competent as an expert under the HCLA, that she had “reviewed the medical issues,” and that she had “determined that violations of the standards of care occurred during [decedent’s] residency” at defendant nursing home.

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