Medical Negligence

September 12, 2022

Finding of extraordinary cause to excuse HCLA noncompliance reversed.

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.

August 22, 2022

Tennessee Court of Appeals: HCLA plaintiff should have been allowed to substitute expert.

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

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.”

August 18, 2022

Defense Counsel Brags About Result in Medical Malpractice Trial – Judge Orders New Trial

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

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.”

August 17, 2022

USDC-MD TN Rules Presuit Notice and Certificate of Merit Statutes to Not Apply to TN HCLA Claims Filed in Federal Court

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

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:

June 8, 2022

Discovery rule applied in HCLA case involving food service provider.

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

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.

May 31, 2022

Dismissal affirmed where HCLA pre-suit notice was sent to wrong entity.

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

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.

May 11, 2022

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

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

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.