Medical Negligence

September 28, 2015

Yet Another Nursing Home Arbitration Case

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.”

June 11, 2015

Lawyer Who Cheated Sanctioned Almost $1,000,000

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

The ABA’s Litigation News has an interesting story on a defense lawyer in a medical malpractice case who was found to have knowingly violated an order on a motion in limine and sanctioned almost $1,000,000.

A court order is an order, not a suggestion. It is possible, in the heat of trial, to make an error and violate an order. While this is and should be consequences of such a mistake, but when, as the trial judge said here, “it is glaringly apparent that [defense counsel’s] conduct was orchestrated to improperly influence the outcome of this trial” there will be hell, or almost $1,000,000, to pay.

I love to win and I hate to lose. I despise people, including lawyers, who feel the need to cheat to win. I cannot see why any responsible insurer, company or individual would ever hire this lawyer in the future.

June 10, 2015

Tennessee Certificate of Good Faith Mandate Does Not Require Disclosure of Zero Prior Violations

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

The Tennessee Supreme Court recently issued an opinion reversing several poorly decided lower court cases regarding the failure to disclose zero prior violations on a Healthcare Liability Act (HCLA) certificate of good faith. In Davis ex rel. Davis v. Ibach, No. W2013-02514-SC-R11-CV (Tenn. May 29, 2015), plaintiff filed an HCLA claim against defendant, but plaintiff’s certificate of good faith failed to state that plaintiff’s counsel had zero prior violations under the statute. Defendants moved for dismissal on the grounds that plaintiff failed to comply with § 29-26-122(d)(4), which states that a “certificate of good faith shall disclose the number of prior violations of this section by the executing party,” but before the Court could hear the motion plaintiff requested a dismissal without prejudice. The trial court allowed the dismissal, and the Court of Appeals affirmed. Defendant argued, though, that because the certificate of good faith was noncompliant the Court was required to dismiss the case with prejudice.

The Supreme Court heard the case to determine “whether the failure to indicate the absence of any prior violations of the statute constitutes a failure to comply with the requirement of section 29-26-122(d)(4).” The Court noted that the Court of Appeals had previously held that a plaintiff’s failure to disclose zero prior violations required dismissal with prejudice. (See, e.g., Vaughn ex rel. Vaughn v. Mountain States Health Alliance, No. E2012-01042-COA-R3-CV, 2013 WL 817032 (Tenn. Ct. App. Mar. 5, 2013)). The Supreme Court expressly overruled those decisions, holding that the HCLA “does not require disclosure of the absence of any prior violations of the statute.” The Court reasoned:

[The statute] does not require disclosure of whether or not there have been any prior violations. The General Assembly easily could have worded the statute to instruct a party to disclose whether or not there have been any prior violations and, if so, the number of such prior violations. It did not do so. Logically, if there have not been any prior violations there is no “number of prior violations” to disclose.

June 4, 2015

Informed Consent Expert Testimony Not Limited to Risks that Actually Materialized

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

A recent informed consent case provided the Supreme Court with the opportunity to analyze what risks a plaintiffs’ expert should be allowed to testify about at trial. In White v. Beeks, No. E2012-02443-SC-R11-CV (Tenn. May 18, 2015), plaintiff had undergone spinal fusion surgery after other attempts at pain management were unsuccessful. After the surgery, plaintiff’s pain initially improved but then became worse, and plaintiff alleged that this was because of an ectopic bone growth caused by the surgery. Plaintiff filed suit against defendant doctor asserting that the doctor had not given him adequate information before the surgery to enable him to give informed consent. Specifically, plaintiff alleged that the doctor failed to inform him that a bone mass product called InFuse would be used, how such product would be used, or the risks associated with InFuse.

To prove his informed consent case, plaintiff needed to “prove by expert testimony 1) the information that [defendant] should have disclosed to [plaintiff] to obtain his informed consent for the surgery, as established by the recognized standard of acceptable professional practice in the specialty [in the same or similar community], 2) whether [defendant] disclosed appropriate information to [plaintiff] to comply with the [standard of care], and 3) whether a reasonable person in [plaintiff’s] position would have consented to the surgery if he had been provided with the information required by the recognized acceptable professional practice.”

May 8, 2015

Tennessee HCLA Case Dismissed for Non-Compliant HIPAA Form.

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

As HCLA cases continue to make their way through the court system, we are learning more about what will constitute substantial compliance with the pre-suit notice content requirements. In the recent case of Harmon v. Shore, No. M2014-01339-COA-R3-CV (Tenn. Ct. App. April 23, 2015), the Court of Appeals reaffirmed what seems like an overly harsh result related to substantial compliance with the required HIPAA authorization.

In Harmon, plaintiff was injured by a procedure performed solely by Dr. Shore. Plaintiff submitted pre-suit notice to the two defendants she later named in her suit, Dr. Shore and the relevant hospital. The HIPAA form enclosed, however, only released plaintiff’s medical records to her own lawyer. Defendants filed a motion to dismiss, which was initially denied in 2013, but following a denial of Rule 9 appeal from the Court of Appeals and then a remand from the Supreme Court to reconsider in light of the holding in Stevens v. Hickman Cmty. Health Care Servs., 418 S.W.3d 547 (Tenn. 2013), the motion to dismiss was granted by the trial court.

Plaintiff did not argue that her HIPAA form strictly complied with the statutory requirements. Instead, her essential argument was that her non-compliance with the technical requirements should be excused because the defendants already had all the records at issue in this case. In her reply to defendants’ motion to dismiss, plaintiff stated: