Medical Resources

May 31, 2023

Amended Complaint Removed Defendants From Suit.

Where plaintiff originally filed a health care liability suit under the GTLA against multiple defendants, but before any responsive pleading was filed plaintiff filed an amended complaint naming only the physician as a defendant, a subsequent notice and order of voluntary dismissal entered as to the defendants not named in the amended complaint were “of no legal effect.” The original defendants other than the physician were removed from the action through the filing of the amended complaint.

In Ingram v. Gallagher, — S.W.3d —, No. E2020-01222-SC-R11-CV (Tenn. May 17, 2023), plaintiff filed an HCLA suit against multiple defendants, including the physician and the hospital at which the physician worked. Because the hospital was a governmental entity, the GTLA applied to this case. After filing his original complaint but before any responsive pleading had been filed, plaintiff filed an amended complaint naming only the physician as a defendant. Five minutes after the amended complaint was filed, plaintiff filed a notice of voluntary dismissal as to the hospital and other defendants, and an order of voluntary dismissal was entered the following day.

When defendant physician filed his answer to the amended complaint, he raised as a defense that the complaint should be dismissed under the GTLA, as Tenn. Code Ann. § 29-20-310(b) required that since the physician was an employee of a governmental entity, the governmental entity must also be a party to the action. Subsequently, plaintiff “filed a motion to amend his complaint in an effort to reinstate [the hospital] as a defendant.” Plaintiff also “filed a motion to alter or amend the order dismissing [the hospital] as a defendant on the grounds that ‘[the hospital] was inadvertently dismissed in light of the affirmative defense assertation by a co-defendant…that [the hospital] is a necessary party to this action.’” The trial court denied the motion to alter or amend the dismissal order, but it eventually allowed plaintiff to amend his complaint after a second motion to amend was filed.

October 21, 2021

Interesting Article on How Radiologists Can Avoid Medical Malpractice Claims

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

Dr. Benjamin Strong, Chief Medical Officer at vRad, has written an article on health care liability claims against radiologists. Dr. Strong “analyzed all 220 claims made against vRad radiologists between June 2017 and October 2020—applying a detailed classification taxonomy including the alleged type of miss, study type, if the standard of care was met, if communication failures contributed, settlement, and so on.”

Dr. Strong explained that “during that timeframe, [the company’s] 500+ radiologists read nearly 20 million studies and logged an error rate of just 1.3 major misses per 1,000 reads.” Back-of-the-envelope math tells us that is one malpractice claim for every 90,900 reads.

Dr. Strong’s efforts gave rise to a list of prioritized recommendations for avoiding medical malpractice in radiology.

January 3, 2018

Nursing Home Arbitration Agreement Not Enforced

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

While the parties to an arbitration agreement may agree to “arbitrate threshold issues concerning the arbitration agreement,” issues concerning whether a contract was actually formed should be decided by a court.

In Edwards v. Allenbrooke Nursing and Rehabilitation Center, LLC, No. W2016-02553-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2017), plaintiff sued defendant nursing home for wrongful death and health care liability claims regarding the death of plaintiff’s mother. Defendant moved to compel arbitration, attaching to its motion an arbitration agreement and Appointment of Surrogate. The Appointment of Surrogate was signed by a different daughter on April 18, 2012, and purported to give the daughter “authority to make all health care related decisions for” the mother, although the daughter’s name was erroneously put into the blank instead of the mother’s name. This Surrogate form was signed by the mother the next day. The arbitration agreement had been signed by the other daughter on April 18, “the day before Mother signed the Appointment of Surrogate form.”

The trial court denied defendant’s motion to compel arbitration, finding that the other daughter “did not have the authority to make a health care decision on behalf of Mother pursuant to the Tennessee Health Care Decisions Act, regardless of any discrepancy about the dates on the relevant documents.” The trial court pointed out that Tenn. Code Ann. § 68-11-1806 provides that a “surrogate may make a health care decision for a patient who is an adult…if, and only if: The patient has been determined by the designated physician to lack capacity…” Here, Mother’s physician specifically noted on April 20^th that Mother did not lack capacity. Accordingly, the trial court “concluded that [the other sister] did not have the authority to sign the arbitration agreement on Mother’s behalf as her surrogate.” Further, the trial court noted that because the form listed the daughter’s name instead of the mother’s, it was “flawed and as such void from the beginning.” The Court of Appeals affirmed.

June 9, 2017

Testimony on Whether Doctor “Did Her Best” Excluded in Medical Malpractice Case

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

In Bradley v. Bishop, No. W2016-01668-COA-R3-CV (Tenn. Ct. App. Mar. 30, 2017), the Court of Appeals affirmed a jury verdict for defendants in a health care liability case.

For eight years, plaintiff had been treated for a fibroid in her uterus that caused extensive bleeding. In 2012, another fibroid was discovered, and after an unsuccessful surgery to remove the fibroid, plaintiff decided to undergo a hysterectomy. Defendant doctor recommended a laparoscopic hysterectomy, but warned plaintiff that she might have to convert to an open procedure. During the surgery, defendant did convert to an open procedure. Defendant called for surgical back-up, but no one was available, and defendant determined that she could complete the procedure herself. During the procedure, defendant noticed a “superficial cut” on plaintiff’s colon, but she did not see or notice any signs of a bowel injury. In the days following the hysterectomy, plaintiff’s “condition deteriorated,” and she was eventually diagnosed with a bowel injury which required surgical repair, three weeks of hospitalization, and additional procedures in the following years.

Plaintiff filed this suit, alleging that defendant “negligently caused injury to [plaintiff’s] small bowel.” Throughout the litigation, causation was not contested, as defendant admitted that the bowel was injured during the surgery. Whether defendant’s actions met the applicable standard of care, however, was hotly contested, with several experts testifying for both sides. Plaintiffs’ experts testified that defendant had fallen below the standard of care, that a different type of hysterectomy would have been more appropriate, that defendant had made mistakes during the surgery, and that defendant should have noticed the bowel injury. Defendants’ experts, however, testified that the chosen procedure was appropriate, that defendant acted in accordance with the standard of care at all times, and that bowel injuries were a common complication of hysterectomies and could occur even when the surgery was done appropriately. Ultimately, the jury returned a verdict for defendant, finding that defendant “did not deviate from the recognized standard of care,” which the trial court affirmed as thirteenth juror. On appeal, the Court of Appeals also affirmed.

February 24, 2016

Data on Medical Malpractice Claims Against Anesthesiologists

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

The following is taken from an article in Clinical Advisor:

A new study has revealed mostly good news for anesthesiologists – since 2005, anesthesia-related medical malpractice claims have decreased dramatically, particularly in inpatient situations. The study, “Comparison and Trends of Inpatient and Outpatient Anesthesia Claims Reported to the National Practitioner Data Bank,” examined inpatient and outpatient anesthesia-related clinician malpractice claims between 2005 and 2013. The study was presented at the 2015 Annual Meeting of the American Society of Anesthesiologists.

During the 9-year study period, anesthesia-related medical malpractice claim frequency decreased by a total of 41.4% (or 4.6% per year). Inpatient claims saw the greatest decrease (a total of 45.5%), while the decrease was significantly less in outpatient settings (a total of 23.5%). According to study author Richard J. Kelly, MD, JD, MPH, FCLM, an anesthesiologist from the University of California, Irvine School of Medicine, the proportion of claims for outpatient procedures has actually increased compared with inpatients, but the amount paid for outpatient claims is significantly less than for inpatient claims.

August 6, 2014

Yet Another Tennessee Medical Malpractice Notice Case

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

This appeal arises from a healthcare liability action. At issue is the adequacy of the pre-suit notice, whether the partial summary judgment on the non-healthcare liability claims should have been set aside due to alleged concealment by the defendant, whether the plaintiff should have been permitted to amend the complaint and a motion for sanctions.

Plaintiff’s decedent, 46-year old Jana Johnson, awoke in the early morning hours of April 4, 2008 with severe chest, groin and leg pain. Her husband called an ambulance, and Ms. Johnson arrived via ambulance at Parkwest Hospital at 6:00 a.m. She was first examined by Dr. Daigle at 6:15 a.m. and a chest x-ray and blood work were ordered. The test results were conveyed to Dr. Daigle at approximately 6:30 a.m. and he then examined the decedent a second time. Concerned the decedent was suffering from a pulmonary embolism, Dr. Daigle ordered an immediate CT scan with IV contrast. The doctor gave the order to the unit clerk between 6:40 and 6:45 a.m. so that it could be transmitted to the imaging department.

Because of a shift change, the order did not get entered until 7:16 a.m. The decedent was taken to the imaging department at approximately 7:20 a.m., but for unexplained reasons the order was cancelled. At some point thereafter, Dr. Daigle inquired about the CT scan and was told by Nurse Wolfe that the decedent’s IV had “blown” and the decedent was insisting Nurse Irons be called to replace it. At 7:56 a.m., Nurse Wolfe paged Nurse Irons without a response. At 8:28, the decedent fell into severe distress and she died at 8:44, or nearly three hours after her initial arrival to the hospital.

October 11, 2012

Understanding Basic Medical Tests

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

Those of us who are medical malpractice lawyers or personal injury lawyers spend some time every day learning some aspect of medicine. Like most of you, I am always on the lookout for good websites that will help me learn some aspect of medicine that will help me help my clients.

Let me a share a good one with you. The "Stanford 25" is a website that helps medical students understand how to perform 25 common train physicians to glean diagnostic information without technology to augment the information gathered by technology.

The "Stanford 25" includes information on thyroid examinations, gait abnormalities, pulmonary examinations, and more. For example, here is the explanation on the fundoscopic exam.

December 3, 2011

Understanding Brain Injuries – For Lawyers and Juries

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

Our firm represents people with brain injuries and, depending on the nature of the injury, it can be quite difficult to help a jury understand precisely how these injuries can impact the life of the injured person and his or her entire family.

This site offers fundamental principles that one should know about the brain and nervous system, the most complex living structure known in the universe, are a practical resource about:

How your brain works and how it is formed.
How it guides you through the changes in life.
Why it is important to increase understanding of the brain.

As a Tennessee brain injury attorney, I believe that the concepts presented on this page can be used a part of the jury education process about the brain and brain injuries.

November 29, 2011

Will We Have Prosthetic Eyes That Can See?

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

Our firm, The Law Offices of John Day, P.C., has been asked to represent people who have lost their eyesight as a result of medical malpractice or trauma. Thus, we are very interested in scientific advancements that can minimize the horrible effects of vision loss.

This reference fin the Fall 2011 Edition of the Journal of Neuroscience shares some exciting information that provides hope for those who have suffered vision loss:

Sheila Nirenberg of Weill Cornell Medical College presented research on how the eye’s own computational “code” can improve retinal prosthetics. Retinal prosthetic devices now exist, but current models require surgery to implant electrodes into the eye and are only capable of restoring crude vision, such as seeing a spot of light or the edge of an object.

October 3, 2010

NEJM Editor Asks: Is Academic Medicine for Sale?

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

Those of us who represent victims of medical negligence and dangerous, defective drugs and medical devices know that a significant percentage of so-called "medical research" is nothing more than fodder prepared to help health care providers and doctors win lawsuits or help manufacturer’s reps sell product. All to often, jurors gobble up the phony information, always assuming that no respectable professional would engage in such conduct and no respectable publication would print it.

It appears that Dr. Marcia Angell, MD., the first woman to serve as Editor of the New England Journal of Medicine. has the same concerns. In an editorial titled "Is Academic Medicine for Sale?," Angell said as follows:

What is wrong with the current situation? Why shouldn’t clinical researchers have close ties to industry? One obvious concern is that these ties will bias research, both the kind of work that is done and the way it is reported. Researchers might undertake studies on the basis of whether they can get industry funding, not whether the studies are scientifically important. That would mean more research on drugs and devices and less designed to gain insights into the causes and mechanisms of disease. It would also skew research toward finding trivial differences between drugs, because those differences can be exploited for marketing. Of even greater concern is the possibility that financial ties may influence the outcome of research studies.