Medical Negligence

January 11, 2016

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

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.”

December 7, 2015

“Health Care Liability Claim” Includes Dropping Patient While Putting Her in Car

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

In early October, the Tennessee Supreme Court decided in Ellithorpe v. Weismark, 2015 WL 5853873 (Tenn. Oct. 8, 2015) that the statutory definition of “health care liability act” contained in the 2011 amendments to the HCLA abrogated the previously used nuanced approach for distinguishing between health care actions and common law negligence. In light of the broad language used in the statutory definition, the Ellithorpe decision made it highly unlikely that any negligence claim related to a health care professional would be deemed ordinary negligence, and litigants are now beginning to feel the effects of this opinion.

In Estate of Thibodeau v. St. Thomas Hospital, No. M2014-02030-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2015), plaintiff sued defendant hospital after she was injured when hospital employees failed to “properly support [her] as they attempted to transfer her from a bariatric stretcher to her automobile.” Plaintiff was on a road trip with her husband, and while in Nashville she began having arthritic knee pain. She was transported by ambulance to the hospital, and after being seen and discharged, she was assisted to her car by two registered nurses and a patient care technician. Plaintiff weighed almost 500 pounds, and the hospital employees worked with plaintiff and her husband to develop a plan to move her back to her vehicle while requiring her to stand as few times as possible because of her knee pain. The employees transferred plaintiff by bariatric stretcher to her waiting car, but when plaintiff was “near her vehicle and ready to come to a standing position, she fell and experienced the onset of ‘terrible pain’ in her left ankle.” She was then readmitted to the hospital and treated.

November 4, 2015

Medical Malpractice Plaintiff Burned by Pre-2011 Notice Law

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

Several cases have now held that the 2011 amendments to the Health Care Liability Act (HCLA), which added language referring to governmental entities, allow plaintiffs bringing an HCLA claim under the GTLA to take advantage of the 120-day extension of the statute of limitations after giving proper pre-suit notice. Recently, though, a plaintiff whose claim arose before the enactment of this amendment tried to creatively argue that she too should be allowed the extra 120 days.

In Miller ex rel. Miller v. Cookeville Regional Med. Ctr., No. M2014-01917-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2015), plaintiff’s husband had died after being given an excessive dose of blood thinners. The husband died on May 18, 2010. Plaintiff gave pre-suit notice on May 11, 2011, and then filed suit on September 8, 2011, one year and 113 days after the death. Upon motion by the defendant, the trial court dismissed the claim as untimely, relying on the Tennessee Supreme Court’s decision in Cunningham v. Williamson County Hospital District, 405 S.W.3d 41 (Tenn. 2013). In Cunningham, the Supreme Court held that the HCLA as it existed prior to the 2011 amendments did not allow GTLA plaintiffs to take advantage of the 120-day statute of limitations extension.

In the present case, the Court noted that “the relevant date in determining whether the 2011 amendment to the HCLA applies to a case is the date on which the cause of action accrues.” Since the injury here occurred in May 2010, well before the October 1, 2011 enactment date of the 2011 amendment, “the statute of limitations was not extended by giving pre-suit notice[.]”

October 13, 2015

Statute Trumps Court Decision – “Ordinary” Negligence Claims Essentially Gone in Medical Malpractice Cases

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

The Tennessee Supreme Court just issued an important decision regarding how to decide whether a claim falls under the Health Care Liability Act (HCLA) or ordinary negligence. In Ellithorpe v. Weismark, No. M2014-00279-SC-R11-CV (Tenn. Oct. 8, 2015), the Court held that the previous nuanced approach detailed in Estate of French v. Stratford House, 33 S.W.3d 546 (Tenn. 2011) had been abrogated by the HCLA amendments passed by the Tennessee legislature in 2011, and that the definition contained in the HCLA is now the authority under which a court should determine whether a claim falls under the HCLA.

In Ellithorpe, plaintiffs were the biological parents of a minor child but had lost custody of the child. The custodian arranged for and/or permitted defendant social worker to provide counseling to the child without the parents’ knowledge or consent. When the parents found out about the counseling, they brought this claim against defendant social worker. It was undisputed that the parents did not give pre-suit notice or file a certificate of good faith pursuant to the HCLA.

Defendant filed a motion to dismiss based on parents’ failure to comply with the HCLA, to which parents responded that their claims sounded in ordinary negligence. The trial court, however, granted defendant’s motion and dismissed the complaint, verbally ruling that “the THCLA was very broad and encompassed Parents’ claims because they related to the provision of health care services by a health care provider as those terms are defined by statute.”

September 28, 2015

Yet Another Nursing Home Arbitration Case

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

Add Bockelman v. GGNSC Gallatin Brandywood LLC, No. M2014-02371-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2015), to the long list of cases in which a Tennessee court affirmed an order upholding the validity of an arbitration agreement signed by the deceased’s designated health care agent.

The patient at issue here had signed a “Health Care Agent” form in December 2008, appointing her daughter as her agent. The form provided that the daughter was given “permission to make health care decisions for me if I cannot make decisions for myself, including any health care decision that I could have made for myself if able.” In January 2010, the patient’s doctor deemed her incompetent to make health care decisions, and he documented and signed such designation.

Following the incompetence designation, the patient had several other medical appointments. Some notes from these subsequent appointments indicated that she did not have any “neurological deficits,” while others referred only to a “physical incapacity.” She was treated at times based on her own preferences rather than her best interests, yet the official incompetence designation was never overturned or amended.

In May 2010, the patient was admitted to defendant nursing home. During the admission process, daughter presented the health care agent form and signed all the admission documents on patient’s behalf, although daughter later testified that patient was competent at this time. One document signed by daughter as patient’s agent was an Alternative Dispute Resolution Agreement. At the top, this form noted in bold, capital letters that it was “not a condition of admission to or continued residence in the facility.”

August 12, 2015

Non-Suit Allowed to Cure Pre-Suit Notice Deficiencies

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

In Phillips v. Casey, No. E2014-01563-COA-R9-CV (Tenn. Ct. App. July 21, 2015) plaintiff’s late husband was a patient of defendant doctor. Sometime in 2011 or 2012, defendant diagnosed husband with angioedema. Defendant also diagnosed husband with hypertension and prescribed a medication to treat that condition. On April 2, 2012, husband had a bilateral tonsillectomy performed by another doctor, and husband died that evening. Plaintiff received a copy of the autopsy report on July 3, 2012, which listed the primary cause of death as angioedema. On April 2, 2013, plaintiff filed suit against defendant doctor and his employer alleging that doctor was negligent by prescribing medicine to husband known to aggravate angioedema and by failing to inform the doctor performing the tonsillectomy of husband’s condition.

Before filing her first health care liability claim, plaintiff did not send the statutorily required pre-suit notices to the two named defendants. Accordingly, defendants filed a motion to dismiss. While that motion was pending, plaintiff voluntarily dismissed her claims without prejudice. Plaintiff then sent proper pre-suit notice that met all the statutory requirements and subsequently re-filed her suit. Defendants moved to dismiss again, asserting that plaintiff’s initial complaint was untimely and that she could thus not rely on the saving statute and that plaintiff could not re-file her suit in order to comply with the pre-suit notice requirements. The trial court denied the motion to dismiss but granted an interlocutory appeal to consider the following issue:

Whether Tennessee Code Annotated section 29-26-121 permits a plaintiff to take a voluntary nonsuit pursuant to Tennessee Rules of Civil Procedure 41.01 with a motion to dismiss pending, resend notice of intent to the providers, and then refile a new action within the original statute of limitations or in accordance with the savings statute.

July 15, 2015

Ordinary Negligence vs. Health Care Liability; Relying on the 120-Day Statute of Limitations Extension.

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

A recent Tennessee Court of Appeals case dealt with the distinction between health care liability cases and claims of ordinary negligence. In Coggins v. Holston Valley Medical Center, No. E2014-00594-COA-R3-CV (Tenn. Ct. App. June 15, 2015), plaintiff filed suit alleging that she tripped over a feeding tube that had been left near a friend’s bed that she was visiting at the defendant medical center. Plaintiff was not a patient at the time of the incident, but was merely visiting her acquaintance there. Before filing suit, plaintiff provided defendant with pre-suit notice under the HCLA. Accordingly, plaintiff relied on the 120-day extension of the statute of limitations provided by the HCLA. The trial court, however, determined that plaintiff’s suit sounded in ordinary negligence, specifically premises liability, and dismissed the case as untimely.

On appeal, the Court’s first task was to determine whether this case fell under the HCLA. Plaintiff’s fall occurred in August 2011. The Tennessee legislature adopted major amendments to the HCLA in 2011, including a definition of “health care liability action,” but that definition did not take effect until October 1, 2011, after plaintiff’s fall. The trial court, then, incorrectly used that definition to examine plaintiff’s case, as that portion of the HCLA was not applicable here. Instead, the Court of Appeals looked to the Supreme Court’s analysis in Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), to determine what type of claim plaintiff was asserting here.

July 6, 2015

Not Required to Disclose Zero Prior Violations on Certificate of Good Faith

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

In Kerr v. Thompson, No. W2014-00628-COA-R9-CV (Tenn. Ct. App. June 9, 2015), the Court of Appeals recently followed the Tennessee Supreme Court’s lead and held that a certificate of good faith (one must be filed with the complaint in medical malpractice cases) that did not state that the executing party had zero prior violations was still “fully compliant” with the Healthcare Liability Act (HCLA). This was the first opinion from the Court of Appeals following the Supreme Court’s binding decision on this issue in Davis v. Ibach, No. W2013-02514-SC-R11-CV (Tenn. May 29, 2015).

In Kerr, plaintiff filed a certificate of good faith but the certificate failed to state the number of prior violations as required by Tenn. Code Ann. § 29-26-122. The party executing the certificate, plaintiff’s attorney, had no prior violations. In its opinion, the Court quoted from the Davis case, stating that the HCLA “does not require disclosure of whether or not there have been any prior violations.…Logically, if there have not been any prior violations, there is no ‘number of violations’ to disclose.” Accordingly, the Court determined that plaintiff’s “failure to indicate the absence of any prior violations does not constitute a ‘failure…to file a certificate of good faith in compliance with Tennessee Code Annotated Section 29-26-122[.]” Plaintiff’s certificate of good faith was held to be fully compliant with the statute and the case was remanded to the trial court.

While this case adds nothing new beyond what the Supreme Court decided in Davis, it is good to see that this issue has been settled in this reasonable way. Plaintiffs who are dealing with this question should of course cite to Davis when making their case, but this new Court of Appeals opinion can lend additional support to the argument that stating that there have been zero prior violations is not required.

July 2, 2015

Pre-Suit Notice Sent Via FedEx Substantially Complied with HCLA

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

In Arden v. Kozawa, No. E2013-01598-SC-R11-CV (Tenn. June 30, 2015), the Supreme Court addressed the issue of whether a plaintiff in a medical malpractice ( now known as a “health care liability” ) lawsuit can send pre-suit notice via a commercial carrier like FedEx instead of through the U.S. mail. The Court’s sensible and clearly correct conclusion was that service by FedEx was allowed, finding that “[a]s long as a defendant is not prejudiced, it does not matter whether a commercial carrier or the U.S. Postal Service delivers the notice.”

In Arden, plaintiff gave proper notice in a timely fashion before filing a health care liability (HCLA) suit. The problem, as defendants pointed out in their motion for summary judgment, was that plaintiff sent the notice via FedEx Priority service. Tenn. Code Ann. § 29-26-121(a)(4) states that completion of the mailing requirements in the notice statute “shall be demonstrated by filing a certificate of mailing from the United States Postal Service stamped with the date of mailing and an affidavit of the party mailing the notice establishing that the specified notice was timely mailed by certified mail, return receipt requested.” Defendants did not assert that the notice was insufficient, untimely, or not received, but instead argued that plaintiff had failed to comply with the statutory pre-suit notice requirements by using FedEx instead of the post office. The trial court agreed, dismissing plaintiff’s case, and the Court of Appeals affirmed.

June 23, 2015

Tennessee Medical Malpractice Decision on Reversed – Notice Issue

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

In Hughes v. Henry Co. Med. Center, No. W2014-01973-COA-R3-CV (Tenn. Ct. App. June 9, 2015), plaintiffs filed a health care liability action against defendants Henry County Medical Center (“HCMC”) and Dr. Gold. The defendants filed motions to dismiss alleging that plaintiffs failed to comply with the pre-suit notice requirements in Tenn. Code Ann. § 29-26-121. Specifically, defendants asserted that plaintiffs did not include a HIPAA-compliant medical authorization as required by the statute because the authorization did not permit the providers receiving the notice to obtain medical records from each other. The form provided to defendants only allowed HCMC to use its own records in the suit.

Plaintiffs admitted that the form was technically deficient but argued that defendants were not prejudiced because “Dr. Gold only saw [plaintiff] at HCMC and had no records independent of HCMC’s records.” In fact, during the hearing on the motions to dismiss, “counsel for HCMC conceded that Dr. Gold had no records, and there was no actual prejudice in view of this fact.” Nevertheless, the trial court dismissed the action due to plaintiffs’ failure to substantially comply with the statutory requirements. Plaintiffs appealed this decision as to HCMC, and the Court of Appeals overturned the dismissal in favor of that defendant.

The Court rejected HCMC’s argument that prejudice need not be analyzed since the plaintiffs “plainly and entirely failed to substantially comply” with the statutory requirements. Instead, the Court noted that in Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547 (Tenn. 2013), the Tennessee Supreme Court stated that “in determining whether a plaintiff has substantially complied with a statutory requirement, a reviewing court should consider the extent and significance of the plaintiff’s errors and omissions and whether the defendant was prejudiced by the noncompliance. Not every non-compliant HIPAA medical authorization will result in prejudice.”