Articles Posted in Medical Negligence

          As Tennessee courts continue to decide new Health Care Liability Act (“HCLA”) cases, nuances of the law are beginning to be parsed out for practitioners’ guidance. The Tennessee Supreme Court recently took up such a nuance, determining that pre-suit notice must be given before the filing of each complaint under the HCLA.

            In Foster v. Chiles, No. E2012-01780-SC-R11-CV (Tenn. Jan. 27, 2015), plaintiffs filed an HCLA claim against multiple defendants on March 17, 2011, which was within the appropriate statute of limitations. In connection with this first complaint, plaintiffs gave proper pre-suit notice under Tenn. Code Ann. § 29-26-121(a). On May 6, 2011, plaintiffs voluntarily dismissed the case. On May 4, 2012, within the one-year savings statute, plaintiffs filed a new complaint asserting the same claims against the same defendants. This second complaint stated that the notice requirements had been met as shown by an attached affidavit, but nothing was attached. The plaintiffs, in fact, did not give pre-suit notice after dismissing their first complaint and before filing their second. Instead, they relied on the first notice given to comply with the HCLA.        

            Defendants moved to dismiss, asserting that the HCLA required plaintiffs to give notice each time a complaint was filed. The trial court agreed, dismissing plaintiffs’ second complaint with prejudice. The Court of Appeals, however, reversed, finding that the HCLA “required only that Defendants be notified once.” The Supreme Court then took up the issue on appeal.

           A plaintiff filing a claim under the Tennessee Health Care Liability Act (HCLA) must prove certain elements, such as the recognized standard of practice, by expert testimony. Tenn. Code Ann. § 29-26-115(b) contains requirements for experts to qualify under the Act, including that the expert was licensed to practice in Tennessee or a contiguous state in a relevant profession or specialty and that the person practiced that profession or specialty in such a state during the year preceding the alleged injury. According to a recent Tennessee Court of Appeals case, however, the HCLA does not require a purported expert to have received monetary compensation for the practice in order to qualify under the Act.

               In Adkins v. Assoc. of the Memorial/Mission Outpatient Surgery Ctr., LLC, No. E2014-00790-COA-R3-CV (Tenn. Ct. App. Jan. 13, 2015), plaintiff had received a nerve block during a knee procedure, rendering her leg immobile. Her leg was still immobile upon discharge, so a nurse helped plaintiff to her vehicle in a wheelchair and proceeded to lift her into the car. While assisting plaintiff, the nurse dropped plaintiff between the front seat and dashboard of the vehicle, and plaintiff sustained injuries.

               Plaintiff gave proper pre-suit notice and filed her complaint, attaching a certificate of good faith as required by the HCLA. The only expert identified by plaintiff was Sandra Gupton, R.N. Defendant moved for summary judgment on the grounds that Gupton was not qualified as an expert because she was not a practicing nurse in the year preceding the incident. Defendant pointed to Gupton’s deposition testimony where “she stated she had not practiced in the nursing profession during the time period in question.” Plaintiff argued that Gupton had testified that she was busy with her mother-in-law, and that Gupton had in fact been her mother-in-law’s private nurse during this time. Defendant asserted that the alleged employment with her mother-in-law was not sufficient to qualify her as an expert because she was not compensated.

          Yet another case about the Tennessee law requiring certificates of good faith in medical malpractice (now called health care liability) cases, this one with a twist.

           In Sirbaugh v. Vanderbilt Univ., d/b/a Vanderbilt Univ. Med. Ctr., No. M2014-00153-COA-R9-CV (Tenn. Ct. App. Dec. 30, 2014), plaintiff originally brought suit against two defendants related to a surgical sponge being left in her body. In this initial filing, plaintiff gave proper pre-suit notice to the defendants and attached a certificate of good faith to her complaint in accordance with the Health Care Liability Act. When the original defendants filed their answer, they asserted comparative fault against two non-parties. Pursuant to Tenn. Code Ann. § 29-26-122(b), these original defendants were required to file a certificate of good faith regarding their comparative fault allegations against the new non-parties, but plaintiff chose to waive that requirement under § 29-26-122(c).

               After the answer was filed, plaintiff amended her complaint to add the two non-parties that defendant had named. When filing her amended complaint, though, she did not file a new certificate of good faith. The new defendants moved to dismiss based on this failure. Plaintiff argued that the requirement to file a good faith certificate only applied to the initial complaint, with plaintiff’s counsel asserting that if the legislature “had meant that Plaintiff had to file a certificate of good faith upon waiving the Defendant’s obligation to do so, they would have said that.” Plaintiff argued that the statute made a distinction between the process for filing an initial health care liability complaint and filing an amended complaint based on an allegation of comparative fault. If the processes did not vary, plaintiff’s counsel asserted that the statutes allowing for waiver would essentially have no meaning. The new defendants, however, argued that plaintiff’s “waiver of the Original Defendants’ requirement to file a certificate of good faith addressing their comparative fault claims did not release her from the obligation to file a certificate of good faith when she added the New Defendants to the lawsuit.”

The 2015 Comprehensive Accreditation Manual for Hospitals includes the new "Patient Safety Systems" chapter, a blueprint for leaders that uses existing standards to achieve an integrated approach to patient safety. Apparently, the Joint Commission believes so strongly in this approach that the chapter is being made available online to anyone who wishes to read it. 

The Commission indicates that "quality and safety are inextricably linked.  Quality in health care is the degree to which its processes and results meet or exceed the needs and desires of the people it serves.  Those needs and desires include safety."   

While a plaintiff in a health care liability action must prove certain elements through an expert witness, that expert witness is not necessarily required to use “precise legal language.” A medical expert’s failure to use perfect terminology will not automatically result in a victory for defendant, as recently illustrated by the case of Dickson v. Kriger, No. W2013-02830-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2014).

In Dickson, plaintiff sued an ophthalmologist for complications allegedly caused by the negligent performance of LASIK surgery. The case went to trial, and after plaintiff’s proof, the trial court granted defendant’s motion for directed verdict on the basis that plaintiff had failed to establish (1) the standard of care for ophthalmologists in the area at the time of the procedure and (2) that defendant’s negligence was the proximate cause of the damages. The Court of Appeals, however, reversed this directed verdict, finding that the trial court had held plaintiff’s expert to too specific of a language requirement.

“Directed verdicts are only appropriate when reasonable minds could reach only one conclusion from the evidence.” If there is any material evidence to support plaintiff’s theories, then plaintiff should survive a motion for directed verdict. Here, the Court of Appeals found that a reasonable juror could find that plaintiff established the necessary elements of his case.

          The Tennessee Health Care Liability Act requires that health care professionals testifying as experts, in addition to other requirements, be licensed to practice in Tennessee or a bordering state. Tenn. Code Ann. § 29-26-115. In a recent decision, the Tennessee Supreme Court found that a trial court’s refusal to waive this requirement was not so far removed from the “usual course of judicial proceedings” so as to qualify for a Rule 10 appeal.

            In Gilbert v. Wessels, No. E2013-00255-SC-R11-CV (Tenn. Dec. 18, 2014), plaintiff filed a health care liability action against an ophthalmologist who had performed YAG laser surgery on him. Less than a month before trial, the defendant doctor filed a motion to waive the contiguous state requirement. Defendant sought to have a doctor from Florida testify who was alleged to be one of the three doctors in the country with the most experience with this procedure. Defendant supported his motion with an affidavit saying that defense counsel had spent 35 hours attempting to identify an expert in Tennessee or a contiguous state, an affidavit from a Tennessee ophthalmologist stating that testimony should be provided by someone who had performed the procedure, and a portion of plaintiff’s expert’s deposition acknowledging that the Florida doctor was one of the most experienced in the county at the relevant procedure.

            Plaintiff opposed defendant’s motion, and the trial court declined to waive the contiguous state requirement, finding that defendant “had not established that appropriate witnesses would otherwise be unavailable.” The trial court denied defendant’s petition for interlocutory appeal, but the Court of Appeals subsequently granted defendant’s application for a Rule 10 extraordinary appeal. After considering the case, the Court of Appeals held that the trial court did not abuse its discretion when it declined to waive the contiguous state requirement. The Supreme Court then granted defendant’s Rule 11 appeal.

As Tennessee Courts continue to grapple with what exactly constitutes substantial compliance when sending pre-suit notice of a healthcare liability action, a recent case provides hope that a reasoned approach may ultimately prevail –  a HIPAA form sent with the pre-suit notice letter was found to substantially comply with the notice statue despite the failure to Include the date on the form.

In Hamilton v. Abercombie Radiological Consultants, Inc., No. E2014-00433-COA-R3-CV (Tenn. Ct. App. Dec. 15, 2014), plaintiff sent a timely pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121 before filing her health care liability action. Defendant, however, moved to dismiss because plaintiff had signed the HIPAA release form but had left the date blank open. Plaintiff asserted that the date line was intentionally left blank so that defendant could fill it in and the “release form would not become stale.” The trial court, though, agreed with defendant and dismissed the case with prejudice, finding that the form was non-HIPAA compliant.

In its analysis, the Court of Appeals quoted heavily from Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512 (Tenn. 2014), which expounded upon the Supreme Court’s Stevens decision, the first decision in which the Court held that the content requirements of pre-suit notice could be satisfied with substantial compliance. According to Thurmond, “unless strict compliance with a notice content requirement is essential to avoid prejudicing an opposing litigant, substantial compliance with a content requirement will suffice.” “Non-substantive errors and omissions” and “a plaintiff’s less-than-perfect compliance with subsection 29-26-121(a)(2)(E) will not derail a healthcare liability claim so long as the medical authorization provided is sufficient to enable defendants to obtain and review a plaintiff’s relevant medical records.” Stevens v. Hickman Cmty. Healthcare Serv., Inc., 418 S.W.3d 547 (Tenn. 2013).

            Not all claims brought against health care providers fall under the Tennessee Health Care Liability Act (THCLA), and a recent case from the Tennessee Court of Appeals gives crucial guidance on how to distinguish THCLA claims from ordinary, non-statutory tort claims. In Ellithorpe v. Weismark, No. M2014-00279-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2014), plaintiffs were parents of a minor child. Plaintiffs had lost custody pursuant to a juvenile court order, but plaintiffs alleged that the order required them to be informed of and allowed to participate in any counseling offered to the minor child. In their complaint, plaintiffs alleged that defendant social worker had provided counseling to minor child in violation of the court order. They asserted claims for negligence, negligence per se, and intentional infliction of emotional distress against the defendant.

            Defendant moved to dismiss the complaint in its entirety, arguing that it fell under the THCLA and that plaintiffs had indisputably not followed the statute’s procedural requirements. The trial court granted the motion, finding that “the THCLA was ‘very broad’ and encompassed this claim because it related to the provision of health care services by a health care professional.” The Court of Appeals, however, reversed this dismissal, stating that the trial court had not used the proper analysis to determine whether the claims fell within the THCLA.

            In determining the proper analysis, the Court first pointed to the Tennessee Supreme Court’s opinion in Gunter v. Laboratory Corp. of America, 121 S.W.3d 636 (Tenn. 2003). There, the Supreme Court indicated that the “crucial question” was whether the claim “constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional.” Later, though, the Supreme Court reexamined the analysis recommended by Gunter. In Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), the Supreme Court noted that “all cases involving health or medical care do not automatically qualify as health care liability claims.” The Estate of French Court “somewhat abandoned the broad ‘gravamen of the complaint’ test outlined in Gunter, in favor of ‘a more nuanced approach’ in which the trial court must examine the claims individually to determine whether they sound in ordinary negligence or health care liability.” Instead of broadly characterizing the complaint, this analysis depended on factual inquiries to appropriately categorize the individual claims.

 If a health care liability defendant moves to dismiss based on the failure to file a sufficient certificate of good faith, can the plaintiff nonsuit before the trial court rules on the motion? Davis v. Ibach, W2013-02514-COA-R3-CV (Tenn. Ct. App. July 9, 2014) is the latest opinion that says the answer is yes. Based on the various cases in which the question has been raised, it looks like the answer is “yes” in just about any circumstances:

–        Where the plaintiff files a certificate of good faith but it is allegedly deficient. (Davis)

–        Where the plaintiff fails to file a certificate of good faith at all. (Robles v. Vanderbilt University Medical Center, M2010-01771-COA-R3-CV, 2011 WL 1532069 (Tenn. Ct. App. Apr. 19, 2011))