Articles Posted in Medical Negligence

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.

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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.

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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.”

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.

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

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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.

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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).

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A new study reveals that “diagnosis-related events are the single largest root cause of medical professional liability claims.”

The study “provides insight into the root causes of diagnosis-related claims based on an analysis of 10,618 closed medical professional liability claims at Coverys across a five-year period (2013-2017).

The study found that 33% of all claims and 47% of all indemnity payments in the five years of claims that were studied.  A whopping 54% of diagnosis-related claims results in serious injury and 36% result in death.

Allegations related to a patient being injured by a doctor’s handshake may not fall under the HCLA.

In Lacy v. Meharry General Hospital, No. M2016-01477-COA-R3-CV (Tenn. Ct. App. Dec. 19, 2017), plaintiff went to defendant doctor for a check up regarding why she was getting short of breath. Upon entering the room, plaintiff alleged that she offered her hand for a handshake and defendant “squeezed [her] fingers too hard,” which she described as “a beating” or “assault.” Plaintiff alleged, in her pro se complaint, that because of this handshake, “her hand is in constant pain and the fingers no longer have any strength.” Plaintiff also asserted that defendant doctor did not properly add her sonogram results to her medical records.

Defendant filed a motion to dismiss based on plaintiff’s noncompliance with the pre-suit notice and certificate of good faith requirements of the Tennessee Health Care Liability Act (HCLA). The trial court granted the motion, but the Court of Appeals reversed in part.

Where the only notification a hospital provided to a patient that a radiologist was not an agent of the hospital was buried in fine print in admission forms and not highlighted in any way, the trial court’s finding that the hospital was vicariously liable for any fault assigned to the radiologist was affirmed.

In Beard v. Branson, No. M2014-01770-COA-R3-CV (Tenn. Ct. App. Nov. 8, 2017), the patient in question had colon surgery at defendant hospital and developed complications. The surgeon ordered a CT scan, which was performed at the hospital and read by Dr. Anderson, “a private radiologist whose practice group was under contract with [the hospital.]” The radiologist reported that the scan showed the “possibility of a mechanical bowel obstruction,” a finding with which the surgeon disagreed. The patient’s condition worsened, and she was eventually flown to another hospital where she died in emergency surgery. Plaintiff filed this HCLA/ wrongful death case against the hospital and surgeon, alleging that the patient “died because of delay in treatment of a bowel perforation she developed as a complication of colon surgery.”

In July 2005, plaintiff’s attorney requested a copy of the CT scan, and the hospital responded that it could not be located. Plaintiff attempted to get the CT scan from the surgeon, the radiology group under contract with the hospital, and the hospital at which the patient ultimately died, but was not provided a copy until three years later. The CT scan revealed that Dr. Anderson “failed to note and report evidence of free air in [patient’s] abdomen, indicative of a bowel perforation.” By the time the CT scan was provided, it was too late to add Dr. Anderson, the radiologist, as a defendant.