Articles Posted in Medical Negligence

When relying on vicarious liability in an HCLA (formerly known as medical malpractice or medical negligence) case, a plaintiff must identify the standard of care for a specific agent of the defendant and how that agent deviated from the standard of care.

In Miller v. Vanderbilt University, No. M2015-02223-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2017), plaintiff was in a motorcycle accident and sustained several serious injuries. He was taken to defendant hospital for treatment, where he had three surgeries, the last being a surgery on his right knee and left foot on November 2, 2010. Plaintiff was discharged from the hospital on November 5^th, but two days later he came to the ER with “fever, nausea, blurred vision, and severe pain in his right leg.” His right knee incision had become infected, and his leg was eventually amputated above the knee.

Plaintiff filed this HCLA case for compensatory and punitive damages. Plaintiff alleged that defendant “failed to recognize and investigate the signs of infection that [plaintiff] exhibited before his discharge,” and that “he was negligently and recklessly discharged from the hospital.” At the close of plaintiff’s proof at trial, defendant moved for a directed verdict, which the trial court first granted as to punitive damages and then granted as to all claims. The trial court found that “plaintiff failed to establish, through expert medical testimony, the standard of care applicable to a specific agent of Vanderbilt, how that agent had deviated from the standard of are, and that deviation had caused an injury that otherwise would not have occurred, as required by Tennessee Code Annotated § 29-26-115.” On appeal, the directed verdict was affirmed.

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A claim that a patient who burned himself should not have been left alone with a hot cup of coffee was determined to fall under the Tennessee HCLA.

In Youngblood ex rel. Estate of Vaughn v. River Park Hospital, LLC, No. M2016-02311-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2017), an 86-year-old patient had hip surgery at defendant hospital. Either the same day or the day after surgery, a nurse brought the patient a cup of coffee and sat it on his bedside table in his ICU room. The patient then spilled the coffee on himself and was burned.

The patient later died of apparently unrelated causes, and his estate filed this action. Plaintiff’s claim was essentially that the patient “was an 86 year old man; who was in ICU following a major surgery; was on pain medication; had visible tremors in his hand; and had an O2 monitor on his index finder. [Patient] should not have been left alone to manage an extremely hot beverage.” Plaintiff did not give pre-suit notice or file a certificate of good faith with her complaint, as she asserted that this claim was not subject to the HCLA. The trial court dismissed the action, finding that it did fall under the HCLA, and the Court of Appeals affirmed.

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Where a doctor had time to confer with her colleagues twice, even shortly, before determining a course of action for her patient, the Tennessee trial court erred by giving the jury an instruction on the sudden emergency doctrine. The jury verdict for defendants was accordingly vacated, and the case was remanded for a new trial.

In Vandyke v. Foulk, No. E2016-00584-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2017), plaintiff filed an HCLA suit related to the death of her newborn son shortly after his birth. Plaintiff was 24 weeks pregnant with twins when she was transferred to defendant hospital for pre-term labor. Once it became apparent that delivery was imminent, plaintiff was moved to the operating room, where her delivery team consisted of Dr. Foulk, the attending physician, and two fourth year residents, Goodwin and Hobbs. Baby A was born vaginally, after which time Baby B “settled into a transverse or sideways position.” Dr. Foulk rotated Baby B to a head-down position, and Baby B suffered a drop in heart rate necessitating a quick delivery. Dr. Foulk had a more senior attending physician, Dr. Herrell, paged, and Dr. Foulk and the two residents discussed what should be done. When Dr. Herrell arrived, he and Dr. Foulk assessed the situation and determined that they would attempt a delivery by forceps. Dr. Herrell tried to place a second forcep two times and “met resistance.” Baby B was then delivered by c-section, and he had a “skull fracture a scalp avulsion, meaning that his scalp was no longer attached…” Baby B was transferred to the NICU and died a few hours later.

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Where the expert causation testimony in aT ennessee HCLA (medical malpractice) case was deemed too speculative, summary judgment was affirmed.

In Franklin-Mansuo v. AMISUB (SFH), Inc. D/B/A Saint Francis Hopsital, No. W2016-01623-COA-R3-CV (Tenn. Ct. App. Sept. 6, 2017), plaintiff filed an HCLA action based on the death of his mother. Mother had arrived at defendant hospital’s ER with difficulty breathing and swallowing, and was treated by a physician’s assistant (PA). The PA ordered a CT scan, and then consulted by phone with an ear, nose and throat physician (ENT). The ENT stated that the mother needed to be admitted to the ICU. The PA, however, thought that the ENT was coming to the hospital to oversee the admission. Almost three hours passed, at which point another doctor at the hospital admitted the mother to the ICU. At some point during her transfer or shortly after her ICU admission, the mother lost her airway and suffered brain damage. She eventually died ten days later, though her death certificate listed the cause of death as a stroke.

Plaintiff brought suit against several defendants, but by the time relevant to this appeal the only remaining defendant was the doctor who was the PA’s supervising physician on the day of the incident. The doctor filed for summary judgment, asserting that plaintiff’s experts were not qualified to testify as to the applicable standard of care and that the causation testimony they offered was too speculative. The trial court agreed, granting the motion for summary judgment, and the Court of Appeals affirmed.

HIPAA-compliant authorization forms continue to cause trouble for medical malpractice (now called “health care liability action” or ‘HCLA”) plaintiffs in Tennessee, with a recent plaintiff having his case dismissed due to his failure to fill in the portion of the form that lists who was authorized to make disclosures thereunder.

In Lawson v. Knoxville Dermatology Group, P.C., No. E2017-00077-COA-R3-CV (Tenn. Ct. App. Aug. 1, 2017), plaintiff filed suit against “a dermatology practice and a certified physician’s assistant employed by the practice.” The underlying injury occurred when plaintiff fell off an allegedly improperly secured examination table. Defendants filed motions to dismiss, asserting that plaintiff had failed to substantially comply with Tenn. Code Ann. § 29-26-121(a)(2)(E), the HCLA provision that requires that pre-suit notice include a HIPAA-compliant authorization. Specifically, defendants pointed out that plaintiff’s “authorization form did not list which individual(s) or organization(s) were authorized to make disclosures of the specified medical records.”

The trial court granted the motions to dismiss and entered an order dismissing all of plaintiff’s claims without prejudice. Plaintiff appealed the dismissal only as to the dermatology group, which the Court of Appeals affirmed.

On appeal, defendant pointed out that “the name or other specific identification of the person(s), or class of persons, authorized to make the requested use or disclosure” is listed as a “core element of the authorization” by the Code of Federal Regulations. (citation omitted). Defendant asserted that because this “core element” was left blank, plaintiff did not substantially comply with the HCLA requirements and dismissal was appropriate. According to defendant, “the medical authorization provided by [plaintiff] was insufficient to allow [defendant] to access relevant medical records to mount a defense.”

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Plaintiffs preparing a Tennessee health care liablity (formerly called “medical malpractice”) must pay special attention to their standard of care expert witness, especially if they plan to argue that a specific procedure was required to meet the standard of care.

In Hopps v. Stinnes, No. W2016-01982-COA-R3-CV (Tenn. Ct. App. August 1, 2017), the Court of Appeals affirmed a trial court’s decision to grant partial directed verdict and to refuse to let the jury consider a certain causation issue. Plaintiff was struck in the eye by an object while weed eating, and he went to the emergency room. There, he was treated by defendant nurse practitioner. Defendant obtained a history from plaintiff and “examined his eye with an ophthalmoscope and a Wood’s lamp.” She ultimately prescribed him antibiotic eye drops and discharged him with instructions 1) to come back to the ER if his condition worsened, and 2) to see his doctor within two days. Four days later, plaintiff went to a different hospital with additional symptoms, and he eventually lost his eye due to infection.

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In Grizzle v. Parkwest Medical Center, No. E2016-01068-COA-R3-CV (Tenn. Ct. App. July 25, 2017), the Tennessee Court of Appeals reversed dismissal of a health care liability (medical malpractice) case based on plaintiff’s failure to provide a HIPAA compliant medical authorization.

Plaintiff had hip replacement surgery at defendant hospital, and when she woke up she began to have severe chest pains. An x-ray showed that she had broken ribs, yet the hospital “provided no explanation as to how the injury to her ribs had occurred.”

Plaintiff filed an HCLA action against the hospital on January 25, 2016. She stated in her complaint that she had complied with the statutory pre-suit notice requirements, but she “did not provide the requisite documentation with her complaint establishing proof of pre-suit notice.” Defendant filed a motion to dismiss based on plaintiff’s failure to file the required documentation with her complaint and her failure to provide defendant with a HIPAA-compliant medical authorization. After the motion was filed, on March 14, 2016, plaintiff filed a “notice of filing” and attached “copies of the pre-suit notice letter and allegedly HIPAA-compliant authorization sent to [defendant].”

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In Graham v. The Family Cancer Center PLLC, No. W2016-00859-COA-R3-CV (Tenn. Ct. App. June 5, 2017), the Court of Appeals affirmed summary judgment in a health care liability suit, agreeing that “plaintiffs lacked sufficient expert testimony to establish their claims.”

Plaintiff patient had been treated for non-Hodgkin’s lymphoma in the 1990s, and he was subsequently monitored by defendant doctor. Part of the monitoring included checking plaintiff’s prostate specific antigen, or PSA. Plaintiff’s “PSA rose from 2.0 ng/mL in 2000 to 4.8 ng/mL in December 2002 and to 8.5 ng/mL in April 2005.” Plaintiff also complained of blood in his urine in both April 2002 and July 2004. In April 2005, based on the testing and plaintiff’s complaints of pain, defendant ordered an ultrasound, which “revealed findings consistent with benign prostate hypotrophy,” and defendant referred plaintiff to a urologist. Plaintiff saw defendant six times after this referral until August 2007, when his PSA measured 12.0ng/mL, and defendant “never inquired whether [plaintiff] had met with an urologist and did not make an additional referral.”

Six months later, plaintiff went to another doctor and was diagnosed with prostate cancer. He had a “radical prostatectomy,” and pathology reported the disease was “locally advanced with several high risk features.” Plaintiff “was considered at high risk for a local recurrence and distant metastatic disease.”

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Woodruff v. Walker, No. W2016-01895-COA-R3-CV (Tenn. Ct. App. May 26, 2017) is anHCLA case that addressed the timeliness of plaintiffs’ claims.

Plaintiffs, a mother and child, filed suit alleging that “both plaintiffs suffered permanent injuries resulting from the defendant health care providers’ negligent care during the child’s birth in June 2012.” Mother suffered from a neuromuscular condition both before and during her pregnancy, which necessitated various treatments during her pregnancy, including treatment with a maternal fetal medicine specialist. The specialist met with mother five times during her pregnancy. Approximately three weeks before she delivered, mother was admitted to the hospital “with exacerbated symptoms” of her neuromuscular condition, where she stayed for approximately six days.

When mother eventually went into labor, she was admitted to the hospital around 3:42 a.m. She was monitored, given Pitocin, and eventually given small doses of an epidural. The medical team eventually determined that mother’s “exacerbated” symptoms of her condition “made it unsafe to continue the labor and deliver the child vaginally.” Mother’s oxygen was low, and she reported trouble breathing, but one defendant doctor “insisted on doing a vaginal exam” before the caesarian section. During this exam, “Mother stopped breathing and went into respiratory and cardiac arrest.” An emergency c-section was performed, and mother and child both suffered “serious permanent injuries and brain damage resulting from the lack of oxygen during the delivery.”

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