Articles Posted in Medical Negligence

The 120-day extension of the statute of limitations granted to health care liability plaintiffs who give proper pre-suit notice under the HCLA does not apply to or extend the Saving Statute.

The Tennessee Supreme Court addressed the interplay between pre-suit notice, the 120-day statute of limitations extension, and the Saving Statute in Richards v. Vanderbilt University Medical Center, No. M2022-00597-SC-R11-CV, — S.W.3d — (Tenn. Jan. 22, 2025). The plaintiff had filed an HCLA suit against the defendant after giving proper pre-suit notice under the statute. When filing his first case, the plaintiff utilized the 120-day extension of the limitations period granted by the HCLA. The plaintiff took a voluntary nonsuit in the first case, and subsequently refiled his case pursuant to Tennessee’s Saving Statute, which allows certain cases to be refiled within a year of the dismissal. The second complaint was filed more than a year after the voluntary dismissal, but the plaintiff argued that because he gave pre-suit notice, he was entitled to the 120-day extension pursuant to Tenn. Code Ann. § 29-26-121(c).

The trial court dismissed the refiled complaint, holding that it was time-barred. The Court of Appeals affirmed dismissal based on the statute of limitations. In this opinion, the Supreme Court affirmed, holding that the 120-day extension granted by the HCLA does not apply to extend the Saving Statute.

Plaintiff’s HCLA claim that defendant medical facility failed to advise a transportation service of his mobility issues required expert medical proof.

In Dickerson v. United Medical Transportation LLC, No. W2023-01084-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2024), plaintiff had been a patient at defendant medical facility. Upon plaintiff’s discharge, defendant arranged for transportation for plaintiff with a transport service. The service did not assist plaintiff when he was getting out of the car, and he fell, injuring himself.

Plaintiff filed this HCLA claim asserting that defendant “failed to inform [the transport service] of his medical conditions, including his fall risk status, while arranging for his transportation.” Defendant moved for summary judgment based on a lack of duty and the assertion that plaintiff had no ambulatory issues, and plaintiff responded by filing the affidavit of an expert with a background in transportation. Notably, this expert had no medical training or licensure. The trial court granted summary judgment to the defendant, ruling that plaintiff would need expert testimony to support his claim, and the Court of Appeals affirmed.

Where there was a question of fact regarding when the plaintiff should have discovered her injury in a health care liability case, as the pain she experienced was a potential side effect of her dental procedures, summary judgment for the defendant dentist was reversed.

In Price v. The Center for Family and Implant Dentistry, PLLC, No. E2023-01100-COA-R3-CV (Tenn. Ct. App. Oct. 8, 2024), plaintiff filed an HCLA claim against defendant dentist after being told by another dentist that dentures could not be made to fit the implants installed by defendant. Plaintiff began her treatment with defendant in April 2019, which involved extracting all her teeth and installing implants in preparation for dentures. After procedures in June, August and October 2019, plaintiff experienced pain, but she was told these were normal side effects. Plaintiff also noticed that her temporary dentures would slip out of her mouth. According to plaintiff, she received wax rims on December 9, 2019, but adjustments needed to be made. Plaintiff returned in February 2020 to try the new set of teeth. According to plaintiff, defendant was rude at the appointment, so plaintiff met with a different dentist thereafter. That dentist, as well as another dentist, informed her that teeth could not be made that would fit the existing implants.

Plaintiff gave pre-suit notice under the HCLA on December 8, 2020, then subsequently filed this malpractice action. Defendant moved for summary judgment based on the statute of limitations, arguing that plaintiff experienced pain, bleeding and other symptoms after her June 2019 procedure; that she experienced complications after her October 2019 procedure; and that her temporary dentures did not fit in 2019. Based on these facts, defendant argued that plaintiff should have discovered her injury well before December 9, 2019, making her suit untimely. The trial court agreed and granted defendant summary judgment, but the Court of Appeals reversed.

Thinking about not filing a certificate of good faith in a health care liability action in Tennessee?  Read this opinion to learn the potential issues when one raises the “common knowledge” exception to the general rule requiring experts in such cases and the “extraordinary cause” required to avoid dismissal if you don’t file a certificate of good faith.

In Ruff v. Vanderbilt University Medical Center, No. M2022-01414-COA-R3-CV (Tenn. Ct. App. June 25, 2024), plaintiff filed a health care liability suit based on his previous eye surgery. Plaintiff alleged that the two surgeons failed to properly position his left eye back in its socket, causing his eye to bulge.

Although plaintiff complied with the HCLA pre-suit notice requirements, he failed to file a certificate of good faith with his complaint. Defendant moved to dismiss, which the trial court granted, and the Court of Appeals affirmed.

Plaintiffs must show substantial compliance, not strict compliance, with HCLA requirement that HIPAA authorization be included with their pre-suit notice.

In a memorandum opinion in Moxley v. AMISUB SFH, Inc., No. W2023-00220-COA-R3-CV (Tenn. Ct. App. April 24, 2024), the Court of Appeals vacated dismissal of an HCLA claim because the trial court used the wrong standard to determine whether plaintiff had complied with pre-suit notice requirements.

Before filing suit, plaintiff sent pre-suit notice to twelve potential defendants. Plaintiff included HIPAA authorizations, but those notices did not specifically authorize the providers to obtain medical records from the other providers. Instead, each pre-suit notice included twelve separate HIPPA authorization forms, with each authorizing the named provider to release records to one of the twelve providers sent notice.

MagMutual, a professional liability insurer for physicians and surgeons, does an excellent job trying to educate doctors about how to avoid mistakes that cause injury or death and subsequent medical malpractice lawsuits.

The company recently released a case study on wrong site surgery.  “Wrong site surgery” occurs when a doctor operates on a part of the body he or she did not intend to operate on.  The case study set forth in its entirety below.

Executive Summary

MagMutual, a leading healthcare liability insurer of physicians and surgeons, reports that  “[m]edication errors account for 8% of medical malpractice claims among family practitioners insured by MagMutual. It is estimated that about 50% of medication errors are due to ordering issues, including wrong medication, wrong dose or wrong route.”

The company reports that

[t]he main causes of claims related to medication errors are:

Where plaintiff’s HCLA complaint cited alleged negligent acts that occurred at different times over a period of a few months, the trial court’s dismissal of the complaint as time-barred was affirmed in part and reversed in part. Dismissal of the claims related to the care plaintiff received less than one year prior to the filing of his complaint was reversed.

In Vandergriff v. Erlanger Health Systems, No. E2022-00706-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2023), plaintiff was assaulted with a baseball bat on February 20, 2020, and he sought medical treatment from defendants on March 1. After his initial surgery on March 1, plaintiff returned several times with complications and for further treatment. On March 25, plaintiff had a second surgery; on April 6, plaintiff returned and complained about pus drainage; on May 4, he again complained about pus drainage; he was readmitted on May 8 for his third surgery; he was diagnosed with a bone infection after the third surgery; he had a seizure on June 29; and he noticed increased drainage on July 4.

Plaintiff sent pre-suit notice to four defendants on December 15, 2020, but the HIPAA release he sent with the notice did not specify which providers could release records or obtain records from each other. Plaintiff then filed his pro se complaint on April 14, 2021.