Medical Negligence

May 11, 2022

Wrong defendants in certificate of good faith caption should have resulted in dismissal.

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.”

April 1, 2022

Insufficient certificate of good faith leads to summary judgment for defendant.

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

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.

March 11, 2022

Ruling that nursing home arbitration agreement was invalid reversed.

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

Where plaintiff had signed an arbitration agreement in conjunction with his brother’s admission to defendant nursing home, and plaintiff had a durable power of attorney for health care executed by his brother naming plaintiff as the attorney-in-fact, the trial court “erred in looking beyond the durable power of attorney for health care to examine the patient’s competency at the time it was executed.”

In Welch v. Oaktree Health and Rehabilitation Center LLC d/b/a Christian Care Centers of Memphis, No. W2020-00917-COA-R3-CV, 2022 WL 589926 (Tenn. Ct. App. Feb. 28, 2022), plaintiff was the brother of a patient who had died after a brief stay at defendant nursing home. When the brother was admitted, plaintiff filled out admission paperwork, including an arbitration agreement, as plaintiff had a durable power of attorney for healthcare executed by the brother and naming plaintiff as the attorney-in-fact.

February 25, 2022

Claims Commission decision to credit defense witnesses affirmed.

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

Where the claims commission credited defendants’ witnesses and found that plaintiffs had not proven their HCLA case, the Court of Appeals affirmed.

In Cavaliere v. State, No. M2021-00038-COA-R3-CV, 2022 WL 320241 (Tenn. Ct. App. Feb. 3, 2022), plaintiffs filed an HCLA suit against the state based on treatment received by decedent at the Tennessee State Veterans Home. Decedent was over 90-years-old and was a patient at the Veterans Home before being transferred to a hospital when the staff at the Veterans Home noticed concerning issues. Decedent died a few days after the transfer, and at the time suffered from numerous medical concerns. His medical charts indicated that in the months preceding his death, he had been noted as likely to have continuing/recurring problems with pneumonia and dehydration, both of which were at issue in this case.

Plaintiffs asserted that staff at the Veterans Home had failed to meet the standard of care, but defendant put forth an expert witness and staff who had worked with decedent to show that the standard of care was met. The Claims Commission credited the testimony of defendants’ witnesses and found for defendants, and the Court of Appeals affirmed.

February 8, 2022

Intentional misrepresentation and medical battery claims fell within HCLA

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

Where plaintiff alleged that defendant doctor made intentional misrepresentations when obtaining her consent for a surgery and therefore committed medical battery, the claims fell under the HCLA.

In Cooper v. Mandy, No. M2019-01748-SC-R11-CV, 2022 WL 175804 (Tenn. Jan. 20, 2022), plaintiff met with defendant doctor to discuss a breast reduction surgery, and defendant stated that “he was a board-certified plastic surgeon.” Based on these representations, plaintiff consented to the surgery, which allegedly went wrong in that it was “unnecessarily painful,” “performed in a barbaric fashion,” and left plaintiff “disfigured and with grotesque and painful bacterial infections.” Plaintiff later discovered that defendant was not board-certified as a plastic surgeon or in any other specialty.

February 3, 2022

Summary judgment vacated where trial court order failed to give reasons for decision

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

Where the trial court did not provide sufficient reasoning in support of its dismissal of plaintiffs’ various HCLA and informed consent claims, summary judgment for defendants was vacated.

In Boyd v. Gibson, No. W2020-01305-COA-R3-CV, 2022 WL 95167 (Tenn. Ct. App. Jan. 10, 2022), plaintiff had been treated by defendant doctor for cancer (defendant’s employer was also a defendant). This treatment began in 2014 and included surgery. According to plaintiff, defendant told her that she would not benefit from chemotherapy or radiation, and defendant “did not explain to [plaintiff] the survival rates with chemo/radiation and more extensive rectal surgery…” After the September 2014 surgery, defendant referred plaintiff to an oncologist “without discussing chemo/radiation therapy or consulting a radiation oncologist.” In August 2017, plaintiff learned that her cancer and reoccurred and spread.

November 29, 2021

Operations on the Wrong Body Part – from The Washington Post.

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

This is an article David L. Perlow, a board certified urologist practicing in the Atlanta area since 1983. The article appeared in the November 27, 2021 edition of The Washington Post. The full text of the article appears below.

In 2012, Paul Kibbett checked into a California hospital to have his cancerous right kidney removed. Surgeons erroneously took out his left kidney instead. After his doctors went back to remove the diseased kidney, Kibbett had to rely on dialysis for the rest of his life. The next year, a Pennsylvania man with chronic pain in his right testicle awoke from surgery to learn that the doctor had mistakenly removed his left testicle.

Such devastating errors, known as wrong-site surgeries, happen because the protocols meant to prevent them are counterintuitive and too often ignored. And doctors and hospitals are not required to report such accidents, which makes the problem harder to study. Some estimates suggest that wrong-site surgery happens about once in every 100,000 surgeries, which would mean hundreds of times per year in the United States. Some experts believe that as few as 10 percent of these mistakes are ever reported, so the accidents we know about may be the tip of the iceberg. But regardless of how common they are, these botched procedures are profoundly damaging. They are also more preventable than experts recognize.

August 19, 2021

Plaintiff not entitled to conduct discovery on issue of whether defendant was prejudiced by incomplete HIPAA authorization in HCLA case

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

Where plaintiff sent a HIPAA authorization with her HCLA pre-suit notice that failed to include one of the six core elements required on a HIPAA-compliant authorization, dismissal was affirmed, and plaintiff was not entitled to conduct discovery to attempt to show that defendant was not prejudiced by the incomplete HIPAA authorization.

In Reese v. The Waters of Clinton, LLC, No. E2020-01466-COA-R3-CV (Tenn. Ct. App. Aug. 4, 2021), plaintiff, who was the patient’s power of attorney, filed an HCLA case based on treatment the patient received at a skilled nursing facility. Plaintiff sent pre-suit notice to multiple providers, and the complaint alleged that plaintiff had complied with the requirements of Tenn. Code Ann. § 29-26-121(a). The HPAA medical authorizations sent to the providers, however, “left blank the identity of the person or entity to whom the provider may make the disclosure,” which is one of the six core elements required by federal regulations for a HIPAA-compliant authorization. Defendant filed a motion to dismiss, which the trial court granted and the Court of Appeals affirmed.

Plaintiff’s argument on appeal was essentially that she should have been allowed to conduct discovery before the motion was decided for two reasons. First, she argued that “our Supreme Court’s opinion in Martin entitles Plaintiff to conduct discovery because the burden of proof lies with her to prove substantial compliance with pre-suit notice.” (See Martin v. Rolling Hills Hosp., LLC, 600 S.W.3d 322 (Tenn. 2020)). While Martin did outline a burden shifting framework for both establishing and challenging compliance with HCLA pre-suit notice requirements, the Court rejected plaintiff’s argument that this equated to a right for plaintiff to conduct discovery before a dismissal is granted. The Court pointed out that the motion in Martin was a motion for summary judgment, which is why the Court therein cited Rule 56, but that the Martin opinion held that “a Rule 12.02(6) motion is the correct vehicle to challenge compliance with the requirement of pre-suit notice in a healthcare liability action.” (internal citation omitted).

July 27, 2021

Defendant doctor can be compelled to testify regarding standard of care of co-defendant nurse he supervises; Minor on Tenncare Has Right to Sue for Medical Expenses

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

Where defendant doctor was the supervising physician for defendant nurse midwife, the Court of Appeals ruled that he could be compelled to testify regarding his “expert opinion about the care and treatment provided by” the nurse. And, perhaps more importantly, the court also ruled that a minor on TennCare has a right to recover medical expenses. Also discussed: what changes to testimony can be made on an errata sheet.

In Borngne v. Chattanooga-Hamilton County Hospital Authority, No. E2020-00158-COA-R3-CV (Tenn. Ct. App. July 1, 2021), plaintiff mother brought this HCLA suit based on injuries to her minor daughter during birth. Plaintiff, who was full term in her pregnancy, was admitted to the hospital and labor was induced. Plaintiff was at risk for preeclampsia, and her labor was managed by defendant nurse-midwife Mercer. Plaintiff pushed for one hour and forty-eight minutes, but the baby made no progress and the fetal heart monitoring strip showed concerning signs. Nurse Mercer called her supervisor defendant Dr. Seeber, who arrived 45 minutes later and ordered a c-section be performed as soon as possible. When plaintiff child was born, she was not breathing and was diagnosed with permanent brain damage due to lack of oxygen, as well as “severely debilitating injuries.”

Plaintiff filed this suit, naming several parties as defendants. Before trial, Dr. Seeber moved for summary judgment on the claims of direct negligence against him, which the trial court granted, meaning the only claims remaining against him were those of vicarious lability for the alleged negligence of Nurse Mercer. The case was eventually tried before a jury, and the jury returned a verdict for defendants. The trial court denied plaintiff’s motion for a new trial, and plaintiff then filed this appeal.

July 7, 2021

Bifurcation of standard of care and causation issues in HCLA case affirmed.

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

Where a trial judge bifurcated an HCLA trial, addressing only the standard of care and whether defendants deviated from said standard in the first phase, and analyzing causation in the second phase if needed, the Court of Appeals affirmed the decision to bifurcate.

In Jernigan v. Paasche, No. M2020-00673-COA-R3-CV (Tenn. Ct. App. June 21, 2021), plaintiff filed a health care liability and wrongful death suit after the death of his wife. The wife had presented at an emergency room with severe abdominal pain and nausea and been examined by defendant Dr. Paasche. Dr. Paashe ordered a CT scan, which “revealed that Decedent suffered from a large paraesophageal hernia.” Dr. Paashe discharged the wife with a prescription and advice to follow up with her doctor within a few days.

The following day, the wife went to a different emergency room with severe abdominal pains and vomiting. She was seen by defendant Dr. Wojcik, who gave her fluids and medication and discharged her with instructions to follow up with her doctor within the week. When the wife went to the emergency room again, another CT scan was performed and showed that she “had suffered a perforation with portions of her stomach having herniated into her chest.” The wife was taken into surgery, but she died in the recovery room after the procedure. Plaintiff subsequently filed this suit, alleging that “both Dr. Paasche and Dr. Wojcik were negligent for failing to properly diagnose Decedent’s condition, failing to obtain a surgical consult following their respective initial examinations of Decedent, and discharging her in an unstable condition.”