Day on Torts

The health care liability notice statute continues to supply our courts with work that has nothing to do with the merits of the claim, defense lawyers with increased income for simply pivoting,  and plaintiff’s lawyers with heartburn.

The plaintiffs in Johnson v. Floyd, No. W2012-00207-COA-R3-CV (Tenn. Ct. App. Feb. 6, 2014) filed a medical malpractice suit in December 2004. More than five years later, the plaintiffs entered an order of voluntary dismissal without prejudice on April 27, 2010.

In the interim, Tennessee experienced substantial legislative reform that made filing lawsuits more difficult for victims of medical malpractice. The resulting pre-suit notice requirements that went into effect in 2009, found in Tenn. Code Ann. §§ 29-26-121 and -122, have been discussed on this blog in multiple previous posts. In sum, a plaintiff must satisfy certain notice requirements at least 60 days before filing a medical malpractice suit (re-labeled “health care liability” suit under the legislative reform), file a certificate of good faith with the complaint.  In exchange for "proper "compliance with notice section with the original statute  the one year statute of limitations for filing suit is extended by 120 days. 

The "error in judgment" rule in Tennessee medical malpractice cases is perhaps the most unfair principle of the common law of torts.  The rule was conceived in recognition of the fact that there may be more than one right way to approach a medical issue – the "two schools of thought" principle.  This narrow application of the rule makes sense.  For example,  in most cases, a surgeon can do a cervical laminectomy utilizing a posterior approach or an anterior approach.  Both carry certain risks and have certain benefits, but as long as informed consent is obtained and both approaches are reasonable for that patient, a surgeon should not be held accountable for doing one approach rather than the other.

But the error in judgment rule has been bastardized to give it the potential to gut most medical malpractice claims in Tennessee.  Here is the jury charge on the subject in Tennessee:

 By undertaking treatment a physician does not guarantee a good result.  A physician is not negligent merely because of an unsuccessful result or an error in judgment.  An injury alone does not raise a presumption of the physician’s negligence.  It is negligence, however, if the error of judgment or lack of success is due to a failure to have and use the required knowledge, care and skill as defined in these instructions.

This is a healthcare liability case with the central issues being (1) compliance with the notice provisions of the statute; and (2) the statute of limitations.  Here is the procedural history in the trial court: 

• September 25, 2009   – Decedent presented to the emergency room at Defendant Parkwest Hospital 
• October 4, 2009 –  Decedent died.  
• September 20, 2010 – Plaintiff sent notice of suit to Parkwest.  However, the medical authorization form accompanying the notice did not authorize the release of information to Parkwest and the release was expired.
• December 10, 2010 – Plaintiff files first healthcare liability complaint alleging wrongful death.  But, the complaint does not have a statement of compliance with T.C.A. 29-26-121 or provide the documentation specified in T.C.A. 29-26-121.  Parkwest moves to dismiss.  
• August 9, 2011 –  The trial court enters an order allowing plaintiff to voluntarily dismiss her case without prejudice. 
• May 4, 2012 – Plaintiff files second healthcare liability complaint and Parkwest files a motion to dismiss based on statute of limitations.   
• February 13, 2013 – The trial court grants Parkwest’s motion to dismiss and plaintiff appeals. 

The primary issue in the Court of Appeals was whether plaintiff’s original suit was timely filed.  Since there was no dispute that plaintiff had not filed his original complaint within the general one year statute of limitations for healthcare liability actions, the only issue was whether plaintiff was entitled to avail himself of the 120 extension provided by T.C.A. 29-26-121.  Plaintiff conceded he had not complied with the dictates of T.C.A. 29-26-121 since the notice provided did not authorize the release of information to Parkwest and was expired.  Moreover, the plaintiff had not demonstrated "extraordinary cause" for his non-compliance.  In fact, plaintiff did not even argue extraordinary cause.  The only explanation for the failure to comply with the statute was a comment made at the hearing on the original motion to dismiss in which plaintiff’s counsel indicated the failure to comply with the statute was a "clerical error."   

The Court of Appeals concluded the original complaint was not filed within the statute of limitations because plaintiff could not avail himself of the 120 day extension provided by T.C.A. 29-26-121.  Because the first healthcare liability case was not filed within the statute of limitations, the plaintiff could not use the savings statute, T.C.A. 29-28-105, to file the second healthcare liability complaint.  The case was dismissed.