Medical Negligence

July 13, 2016

The “Law of The Case” and Its Exceptions – Tennessee Style

A recent health care liability case illustrates the importance of putting your best case forward the first time around and not depending on appeals or “do-overs” to save your claims.

In Shipley ex rel. Shipley v. Williams, No. M2014-02279-COA-R3-CV (Tenn. Ct. App. May 19, 2016), plaintiff brought suit in 2002 alleging that defendant doctor was negligent in failing to assess her condition, failing to provide proper care, failing to admit her to the hospital, and failing to properly follow-up. In 2006, the trial court granted summary judgment to defendant on the failure to admit claim, and after granting defendant’s motion to exclude plaintiff’s expert witnesses, the trial court also granted summary judgment on the remaining claims. The Court of Appeals reversed all of the summary judgment rulings, but the Supreme Court reinstated summary judgment as to the failure to admit claim, allowed the plaintiff’s experts to testify, and allowed the balance of the case to go to the jury. The case was remanded and tried, and the jury found for defendant doctor. Plaintiff appealed.

The first issue on appeal related to the summary judgment on the failure to admit claim. On remand, the trial court initially set aside the summary judgment, “applying the ‘substantially different evidence’ exception to the law of the case doctrine.” After more discovery, though, summary judgment was reinstated, and the Court of Appeals affirmed this decision. The Court noted that the law of the case doctrine means that “an appellate court’s decision on an issue of law is binding in later trials and appeals of the same case if the facts on the second trial or appeal are substantially the same as the facts in the first trial or appeal.” (internal citation omitted).

May 18, 2016

Refusal to Strike HCLA Expert Affirmed

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

In Bogle v. Nighthawk Radiology Services, LLC, No. M2014-01933-COA-R3-CV (Tenn. Ct. App. April 6, 2016), the dispositive issue was whether the trial court should have stricken defendant’s expert testimony in a health care liability case based on a somewhat confusing exchange between plaintiff’s counsel and the expert on cross-examination, wherein plaintiff argued that the expert admitted that he did not know the applicable standard of care. The Court of Appeals ultimately upheld the trial court’s decision to deny plaintiff’s motion to strike and affirmed the jury’s defense verdict.

The facts underlying this case dealt with the reading of a CT scan by defendant radiologist. Plaintiff’s wife, the decedent, had undergone the implantation of a dual-lead pacemaker, and after being discharged, returned to the hospital complaining of severe chest pains. A CT scan of her chest was taken by the hospital, and the images were transmitted electronically to NIghtHawk Radiology Services, one of the defendants in this case. Dr. Jones, a radiologist who was under contract at NightHawk, read the images and sent a report back to the hospital.

Though suit was brought against several parties, at the time of trial the only remaining defendants were Dr. Jones and NightHawk Radiology. Plaintiff’s theory of the case was that “the right ventricle lead of the pacemaker had perforated the wall of the right ventricle, and that this perforation was visible on the CT scan but was not noted or mentioned in the report of Dr. Jones and NightHawk Radiology.” Plaintiff asserted that the failure to report this perforation was a breach of the applicable standard of care. The defendants’ theory, on the other hand, was that while the pacemaker lead did appear to be in one layer of the heart, it did not appear to have perforated the pericardium. Dr. Jones testified that certain criteria had to be met in order for him to report a perforation, one of which was that the pericardium had to be perforated. Dr. Jones testified that he did not report a perforation here because that criterion was not met.

April 28, 2016

Filing Notice of Claim Triggers Waiver Provision

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

The Tennessee Court of Appeals has ruled that giving the State formal notice of a medical negligence (now “health care liability”) claim against an employee waives the right, if any, to assert that claim against that employee in state court based on the same acts or omissions.

In Sumner v. Campbell Clinic PC, No. W2015-00580-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2016), the dispositive issue was whether plaintiff had waived his medical battery claim against defendant doctor by virtue of his filing with the Tennessee Division of Claims Administration, with the Court of Appeals finding that the claim was waived and affirming dismissal of the case.

Plaintiff was admitted to Campbell Clinic on July 19, 2011 to receive treatment to his injured right leg. Part of this treatment included a bone graft surgery, with the bone graft to come from his hip. Before surgery, plaintiff and his family informed the doctors, including defendant, that plaintiff did not want the graft to come from his right hip as he had recently had a procedure there. During surgery, however, an incision was made in the right hip which caused plaintiff’s peritoneum and small bowel to lacerate, resulting in extensive health problems.

April 6, 2016

HCLA Statute of Limitations Issue A Jury Question

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

A recent appeal in a claim filed under the Health Care Liability Act (HCLA) turned on when the statute of limitations began to run and whether a doctor was an employee under the Governmental Tort Liability Act (GTLA).

In Rogers v. Blount Memorial Hospital, Inc., No. E2015-00136-COA-R3-CV (Tenn. Ct. App. Feb. 29, 2016), plaintiff arrived at the Blount Memorial Hospital’s (“Hospital”) emergency room on September 8, 2012. He was treated by Dr. Bhatti (“Doctor”), who diagnosed him with and began treating him for Guillain-Barre Syndrome (“GBS”). According to plaintiff, he later found out he never had GBS, but instead had a spinal abscess, and the delay in diagnosis and treatment of the abscess “resulted in permanent and irreplaceable spinal cord damage.”

Plaintiff sent pre-suit notice of this suit to the hospital on August 20, 2013, and to the doctor on October 7, 2013. The complaint was then filed on December 13, 2013. Both defendants filed motions for summary judgment, both of which were granted by the trial court for different reasons.

For the doctor, the trial court granted summary judgment based on the statute of limitations, finding that plaintiff “was aware of facts sufficient to place a reasonable person on inquiry notice that he had suffered an injury as a result of Dr. Bhatti’s alleged misdiagnosis” on September 13, 2012, or at least by October 5, 2012. According to the trial court, plaintiff’s pre-suit notice sent on October 7, 2013, was thus sent outside the statute of limitations. Plaintiff argued, though, that “he had no reason to suspect that the initial diagnosis of GBS was incorrect until he was informed by another medical practitioner in mid-October 2012 that he never had GBS.” Plaintiff asserted that although he had continuing symptoms and was told in the hospital that he would be treated for a spinal abscess, he thought the symptoms and abscess were consequences of the GBS and was never told otherwise.

March 18, 2016

Expert Not Needed in Wobbly Stool Case

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

In late 2015, the Tennessee Supreme Court overturned the nuanced approach previously used to distinguish ordinary negligence from medical malpractice. In Ellithorpe v. Weismark, No. M2014-00279-SC-R11-CV, 2015 WL 5853872 (Tenn. Oct. 8, 2015), the Supreme Court held that the statutory definition of “health care liability act” contained in the amendments to the HCLA passed in 2011 statutorily abrogated the nuanced approach, and that the definition contained in the statute was now the only guidance a court should consider when determining whether a claim fell under the HCLA. This ruling greatly broadened the scope of cases falling under the HCLA, and a recent Court of Appeals case is a good illustration of the effect of the Ellithorpe holding.

In Osunde v. Delta Medical Center, No. W2015-01005-COA-R9-CV (Tenn. Ct. App. Feb. 10, 2016), plaintiff sued defendant medical center after falling and sustaining a fibular fracture while getting an x-ray taken. Plaintiff went to the medical center complaining of ankle pain and was taken to radiology. There, the “radiology technician instructed [plaintiff] to stand up on a stool.” According to plaintiff, the stool was wooden and did not have rubber tips or handrails. When plaintiff was stepping off the stool, she fell. Plaintiff alleged that the stool was uneven and faulty.

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.

February 6, 2016

1% of Doctors = 32% of Malpractice Claims

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

Want to protect patients and reduce the cost of medical malpractice insurance? Identify and insist on retraining for the 1% of doctors who account for 32% of medical malpractice claims.

January 31, 2016

HCLA Claim Dismissed Where One of Eight Providers was Named on HIPAA Form

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

A continued problem for HCLA plaintiffs seems to be complying with the requirement to provide a HIPAA authorization with their pre-suit notice. In Dolman v. Donovan, No. W2015-00392-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015), another HCLA claim was dismissed due to the inadequacy of plaintiffs’ HIPAA authorizations.

Plaintiffs’ claims related to the treatment of their father at Methodist Hospital. In their suit, plaintiffs named two doctors, Methodist LeBonheur Healthcare, Memphis Vascular Center, and Memphis Radiological, P.C. as defendants. In addition to the named defendants, pre-suit notice was served on an additional three parties—another doctor, Methodist Healthcare Germantown, and Mid-South Pulmonary Specialists. “The notice letters were accompanied by three Methodist LeBonheur Healthcare medical records authorizations forms. Substantively, the three authorizations were identical, but each was signed by a different [plaintiff].”

After suit was filed, defendants moved to dismiss, asserting that the authorizations did not comply with the HCLA statute in that they “only allow[ed] the release of records from Methodist LeBonheur Healthcare” and “did not enable them to obtain the records from ‘each provider being sent a notice’ as required by statute.” In response, plaintiffs argued that the HIPAA authorizations were compliant because they authorized the release of records from “Methodist LeBonheur Healthcare and its affiliates,” and that “the doctors and other named healthcare providers were ‘affiliates’ of Methodist….” Finding that the authorizations were not statutorily compliant, the trial court dismissed the case, and the Court of Appeals affirmed.

January 15, 2016

Expert Rejected. Motion to Continue Rejected. Case Dismissed.

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

In a case that could have only arisen in Shelby County, Weatherspoon v. Minard, No. W2015-01099-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2015), the Court of Appeals affirmed a trial court’s decision to dismiss a health care liability claim after excluding the plaintiff’s expert witness five days before trial.

The alleged negligence occurred in 1998, and this case had been pending in different forms for over fifteen years. After defendant filed a motion for summary judgment in 2009 on the basis that plaintiff did not have a standard of care expert, plaintiff responded and provided the affidavit of Dr. Evans. Defendant served a notice of deposition for Dr. Evans on May 22, 2013, with the deposition to occur one week later. “The notice requested that [plaintiff] ensure Dr. Evans produced certain documents at the deposition, including those related to the income he earned as an expert witness.” Dr. Evans failed to provide this information at his deposition, and continued to refuse to do so, even after the trial court granted defendant’s motion to compel production pursuant to a subpoena duces tecum.

The trial was set for February 2, 2015. On January 13^th, counsel for defendant appeared at Dr. Evans’s office per the subpoena, but was told that Dr. Evans was not there and that counsel “did not have permission to be on the property.” Three days later, defendant filed a motion in limine to exclude Dr. Evans based on his refusal to provide these financial documents. The trial court heard arguments on January 28^th and granted defendant’s motion excluding Dr. Evans. Because Dr. Evans was plaintiff’s only standard of care expert, and because standard of care must be proven by expert testimony in an HCLA case, the court dismissed plaintiff’s case.

January 11, 2016

HIPAA-Compliant Authorization Still Required where Defendant is only Health Care Provider at Issue

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

The HIPAA release required by the Health Care Liability Act and the standards for HIPAA compliance continue to be a litigated issues in this evolving area of Tennessee law.

In Bray v. Khuri, No. W2015-00397-COA-R3-CV (Tenn. Ct. App. Dec. 3, 2015), plaintiff was the surviving spouse of a patient who committed suicide while admitted to a hospital under defendant doctor’s care. Before filing suit, plaintiff sent a notice letter and a medical authorization form to defendant. Once plaintiff filed her complaint, defendant filed a motion to dismiss, arguing that plaintiff failed to provide a HIPAA-compliant medical authorization as required by Tenn. Code Ann. § 29-26-121(a)(2)(E) because the authorization provided “did not include a description of the information to be used and it failed to identify which health care providers were authorized to make the requested disclosure.” Plaintiff opposed the motion to dismiss, asserting that she did not have to provide a HIPAA-compliant authorization since the only health care provider at issue was defendant, and that “the form she provided was not deficient when read in conjunction with the potential claim letter accompanying it.” The trial court agreed with defendant, dismissing plaintiff’s claim, and the Court of Appeals affirmed.

The first issue on appeal was whether plaintiff was required to provide defendant with a HIPAA-compliant authorization when defendant “was the only medical provider being sent the notice of potential claim.” In support of her argument that no medical authorization was required here, plaintiff pointed to the language of the statute, which states that a plaintiff’s written notice “shall include…[a] HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.” Tenn. Code Ann. § 29-26-121(a)(2)(E). Plaintiff asserted that “the inclusion of the phrase ‘from each other provider’ signals that it is unnecessary to include an authorization when only one provider is receiving the notice because that provider already has all the relevant records in its possession.”