Medical Negligence

February 3, 2022

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

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.”

April 29, 2021

Second Pre-Suit Notice Required After Voluntary Dismissal of First HCLA Complaint

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

Where plaintiff nonsuits a complaint that contains medical malpractice (now known as health care liability action or “HCLA”) claims then later re-files a different complaint containing HCLA claims against the same defendant, she must give a new, separate pre-suit notice for the re-filed complaint.

In Byington v. Reaves, No. E2020-01211-COA-R3-CV (Tenn. Ct. App. April 20, 2021), plaintiff was treated by defendant for cancer on her nose. The treatment recommended by defendant eventually led to “removal of [plaintiff’s] right nostril, leaving her noticeably disfigured.” Plaintiff sent pre-suit notice of her HCLA claims on April 23, 2019 to defendant doctor and clinic, then filed a complaint the next day on April 24, 2019. This first complaint alleged that defendants fraudulently induced plaintiff into going through with the surgery, that there was a lack of informed consent due to the fraudulent inducement, that defendant doctor “failed to adhere to the standard of care,” and that defendant doctor did not tell plaintiff about alternative treatment options.

Defendants filed a motion to dismiss, asserting that plaintiff failed to comply with the HCLA by providing them pre-suit notice less than 60 days prior to filing her complaint, and that plaintiff failed to file a certificate of good faith. Plaintiff then voluntarily dismissed this first complaint.

April 15, 2021

Vicarious liability claim under HCLA not barred due to statute of limitations running out on claim against non-party agent.

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

Where an HCLA plaintiff decides to pursue claims only against the principal under a vicarious liability theory and the plaintiff follows the statutory timing outlined in the HCLA, the claim will not be barred due to the previous common law holding that a vicarious liability claim against a principal is barred “when the plaintiff’s claim against the agent is procedurally barred by operation of law before the plaintiff asserts a vicarious liability claim against the principal.” In Gardner v. Saint Thomas Midtown Hospital, No. M2019-02237-COA-R3-CV (Tenn. Ct. App. April 1, 2021), plaintiff filed an HCLA claim against defendant hospital based on allegedly negligent care by an anesthesiologist while she was having surgery at defendant hospital. In her complaint, plaintiff stated that defendant was “careless and negligent” while “acting through its employees and/or agents,” and that defendant was “liable for any negligent acts and/or omissions of any actual or apparent agents and/or employees[.]” In defendant’s answer, it “specifically denie[d] that the physicians whose care is alleged in the Complaint were agents or employees of defendant.”

April 7, 2021

Failure to list purpose on HIPAA authorization leads to dismissal of HCLA case.

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

Where plaintiff’s medical authorizations lacked required elements and plaintiff failed to show that defendants already had all relevant records, dismissal of plaintiff’s HCLA case was affirmed.

In Woods v. Arthur, No. W2019-01936-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2021), plaintiff filed an HCLA claim related to two spinal surgeries, the first performed by Dr. Arthur and Dr. Lingo, who were employees of the same clinic, and the second performed by Dr. Sorenson. According to plaintiff, the wrong size screw was used in the first surgery, which caused injuries, and he was further injured by the second corrective surgery.

Before filing suit, plaintiff sent pre-suit notice to Dr. Arthur, Dr. Sorenson, and Methodist Hospital, which is where the first surgery was performed. Notice was also sent to Dr. Lingo, but he did not make an appearance in the case and was not a party to this appeal. After receiving the notices, defendant doctors “replied…and informed Plaintiff they were investigating the matter.” During a phone call, counsel for the doctors “stated that he had the Operative Reports for both” surgeries. Despite communication between the parties, no settlement was reached, and plaintiff filed his complaint. Defendant doctors and defendant hospital filed motions to dismiss, alleging that the medical authorizations sent with plaintiff’s pre-suit notice were not HIPAA compliant, and that plaintiff was therefore not entitled to the 120-day extension of the statute of limitations under Tenn. Code Ann. § 29-26-121(c), making his suit untimely. The trial court agreed, granting the motions to dismiss, and the Court of Appeals affirmed.

March 10, 2021

Doctor’s Alleged Misrepresentation of Credential’s Falls Outside of HCLA requirements.

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

Where plaintiff alleged that defendant doctor committed intentional misrepresentation and medical battery by stating that he was board-certified in plastic surgery when he was not, the Tennessee Court of Appeals affirmed the ruling that these claims were not governed by Tennessee’s HCLA. In Cooper v. Mandy, No. M2019-01748-COA-R9-CV (Tenn. Ct. App. Nov. 17, 2020), plaintiff saw advertisements for NuBody and went to their office in Brentwood for a consultation regarding surgical breast reduction. Plaintiff met with Ms. Norris, a NuBody representative, and defendant Dr. Mandy, at which time they told plaintiff that Dr. Mandy was board-certified in plastic surgery. Plaintiff alleged that she entered into an agreement to have the surgery in reliance on these statements, but that the subsequent surgery was not properly performed, leaving her “disfigured and with grotesque and painful bacterial infections.” Plaintiff later learned that Dr. Mandy was not board-certified in plastic surgery, and was actually not board-certified in any field at the time of her treatment.

February 19, 2021

Tennessee’s “Common Knowledge” Exception to Use of an Expert in Health Care Liability Act Cases

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

Those seeking to learn the current state of the law on whether and when one can avoid the use of an expert witness on the negligence issue in Tennessee medical malpractice litigation may wish to read my recent article, “Flies, Buttermilk and Malpractice.” The article appeared in the Jan./Feb. issue of Tennessee Bar Journal.