Articles Posted in Medical Negligence

This is yet another Tennessee medical malpractice (health care liability) notice case and the issue is whether strict compliance is required for T.C.A. § 29-26-121 (a)(3) and (4), which requires an affidavit from the party mailing the notice. The underlying procedural facts were not in dispute: plaintiff fully and strictly complied with the pre-suit notice provisions of T.C.A. § 29-26-121(a) but failed to simultaneously file an affidavit of the party mailing the pre-suit notice. Instead, the plaintiff filed it after the notice was given and before the defendants filed any responsive pleading. In response, the defendants filed a “gotcha” motion to dismiss arguing the failure to simultaneously file the affidavit required a dismissal of the case.

The trial court disagreed noting the error had been remedied prior to the defendants filing a responsive pleading and ultimately finding the plaintiff had complied with the notice provision of the Act. An interlocutory appeal was granted pursuant to Rule 10 and the Court of Appeals made quick work of the issue relying on the Tennessee Supreme Court’s decision in Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., No. M2012-00582-SC-SO9-CV, 2013 WL 61580000.

In Stevens, the Tennessee Supreme Court had been asked to decide whether strict compliance was required with T.C.A. § 29-26-121(a)(2)(E) (the HIPPA compliant medical authorization section of the Act). Ultimately, the Tennessee Supreme Court held that substantial compliance rather than strict compliance was all that was required for that particular section because the provision was non-substantive and no prejudice had befallen the defendants as a result of the non-compliance.

Long story short, Givens v. Vanderbilt Univ. M2013-00226-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2014), is a medical malpractice case that was dismissed without prejudice for failure to give pre-suit notice, since that is the appropriate remedy identified by the Tennessee Supreme Court in Stevens v. Hickman Community Health Care, Inc., – S.W.3d –, 2013 WL 6158000 (Tenn. Nov. 25, 2013).

Because Plaintiffs did not make any attempt to give pre-suit notice, the Court of Appeals rejected Plaintiffs’ claim that the failure to give notice should be excused for extraordinary cause under Tenn. Code Ann. Sec. 29-26-121(b). Plaintiffs previously used their savings statute by way of a voluntary nonsuit in the case, so the Court of Appeals acknowledged that dismissal without prejudice effectively makes the case time-barred.

The longer version is a painful tour down civil and appellate procedure, with multiple cases, dismissals, appeals, and remands. Suffice it to say that (based on prior appellate opinions applied to this case):

Tennessee health care liability (formerly called medical malpractice) cases are tough.  Tough because there is lots of sympathy for the defendant health care providers.  Tough because the defendants spare no expense and thus they are expensive for patients to try.  Tough because the health care providers hire excellent lawyers.  Tough because rarely does a jury verdict end the case – there is almost always an appeal.

The case of Cullum v. Baptist Hospital System, Inc., M2012-02640-COA-R3-CV, 2014 WL 576012 (Tenn. Ct. App. Feb. 12, 2014).has been tried three times and each of the three times the verdict has been set aside and a new trial ordered.  In the most recent trial, the jury returned a verdict of $7,974,505 against the defendants and the defendants appealed raising a number of evidentiary issues.  The Court of Appeals decided two of them.

First, the trial court refused to allow the defendants to play a video of their expert’s testimony from the previous trial.  Doctors are exempt from subpoena to trial under a Tennessee statute, Tenn. Code Ann. § 24-9-101.  However, the trial court made a distinction between a treating doctor and a doctor testifying as an expert witness at trial, and ordered that the doctor was not exempt from trial and that he must testify live or not testify at all. 

On November, 9, 2009, plaintiff was an emergency room nurse at Erlanger Hospital. During her shift, a certified nurse anesthetist employed by the defendant was administering anesthesia to a patient. Near the end of the procedure, the patient awoke prematurely and was agitated. The patient tried to extubate herself and rise from the table. Plaintiff noticed the situation and lunged toward the patient in an attempt to save her from falling and otherwise injuring herself. As a result, plaintiff sustained a back injury. So, it was not the patient bringing the healthcare liability claim, but a third-party nurse working nearby.

On September 27, 2010, plaintiff sent defendant a notice of intent to sue letter pursuant to T.C.A. § 29-26-121, and the return receipt was dated September 30, 2010.   Only 38 days after the notice of intent letter was sent, plaintiff filed her complaint.  Two and a half years later, defendant moved for summary judgment alleging plaintiff had failed to comply with the notice requirements of T.C.A. § 29-26-121.   Specifically, plaintiff had filed her suit less than 60 days after sending the notice of intent to sue. Plaintiff did not dispute her non-compliance with the notice provision but responded by claiming the defendant had waived the defense of failure to comply with T.C.A. § 29-26-121 by failing to timely raise it.

The trial court granted the defendant’s motion for summary judgment. On appeal, the plaintiff renewed the waiver argument and also claimed T.C.A. § 29-26-121 conflicted with Tennessee Rule of Civil Procedure 18.01, Joinder of Claims (A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, in contract or tort, as the party has against an opposing party.)

The health care liability notice statute continues to supply our courts with work that has nothing to do with the merits of the claim, defense lawyers with increased income for simply pivoting,  and plaintiff’s lawyers with heartburn.

The plaintiffs in Johnson v. Floyd, No. W2012-00207-COA-R3-CV (Tenn. Ct. App. Feb. 6, 2014) filed a medical malpractice suit in December 2004. More than five years later, the plaintiffs entered an order of voluntary dismissal without prejudice on April 27, 2010.

In the interim, Tennessee experienced substantial legislative reform that made filing lawsuits more difficult for victims of medical malpractice. The resulting pre-suit notice requirements that went into effect in 2009, found in Tenn. Code Ann. §§ 29-26-121 and -122, have been discussed on this blog in multiple previous posts. In sum, a plaintiff must satisfy certain notice requirements at least 60 days before filing a medical malpractice suit (re-labeled “health care liability” suit under the legislative reform), file a certificate of good faith with the complaint.  In exchange for "proper "compliance with notice section with the original statute  the one year statute of limitations for filing suit is extended by 120 days. 

The "error in judgment" rule in Tennessee medical malpractice cases is perhaps the most unfair principle of the common law of torts.  The rule was conceived in recognition of the fact that there may be more than one right way to approach a medical issue – the "two schools of thought" principle.  This narrow application of the rule makes sense.  For example,  in most cases, a surgeon can do a cervical laminectomy utilizing a posterior approach or an anterior approach.  Both carry certain risks and have certain benefits, but as long as informed consent is obtained and both approaches are reasonable for that patient, a surgeon should not be held accountable for doing one approach rather than the other.

But the error in judgment rule has been bastardized to give it the potential to gut most medical malpractice claims in Tennessee.  Here is the jury charge on the subject in Tennessee:

 By undertaking treatment a physician does not guarantee a good result.  A physician is not negligent merely because of an unsuccessful result or an error in judgment.  An injury alone does not raise a presumption of the physician’s negligence.  It is negligence, however, if the error of judgment or lack of success is due to a failure to have and use the required knowledge, care and skill as defined in these instructions.

This is a healthcare liability case with the central issues being (1) compliance with the notice provisions of the statute; and (2) the statute of limitations.  Here is the procedural history in the trial court: 

• September 25, 2009   – Decedent presented to the emergency room at Defendant Parkwest Hospital 
• October 4, 2009 –  Decedent died.  
• September 20, 2010 – Plaintiff sent notice of suit to Parkwest.  However, the medical authorization form accompanying the notice did not authorize the release of information to Parkwest and the release was expired.
• December 10, 2010 – Plaintiff files first healthcare liability complaint alleging wrongful death.  But, the complaint does not have a statement of compliance with T.C.A. 29-26-121 or provide the documentation specified in T.C.A. 29-26-121.  Parkwest moves to dismiss.  
• August 9, 2011 –  The trial court enters an order allowing plaintiff to voluntarily dismiss her case without prejudice. 
• May 4, 2012 – Plaintiff files second healthcare liability complaint and Parkwest files a motion to dismiss based on statute of limitations.   
• February 13, 2013 – The trial court grants Parkwest’s motion to dismiss and plaintiff appeals. 

The primary issue in the Court of Appeals was whether plaintiff’s original suit was timely filed.  Since there was no dispute that plaintiff had not filed his original complaint within the general one year statute of limitations for healthcare liability actions, the only issue was whether plaintiff was entitled to avail himself of the 120 extension provided by T.C.A. 29-26-121.  Plaintiff conceded he had not complied with the dictates of T.C.A. 29-26-121 since the notice provided did not authorize the release of information to Parkwest and was expired.  Moreover, the plaintiff had not demonstrated "extraordinary cause" for his non-compliance.  In fact, plaintiff did not even argue extraordinary cause.  The only explanation for the failure to comply with the statute was a comment made at the hearing on the original motion to dismiss in which plaintiff’s counsel indicated the failure to comply with the statute was a "clerical error."   

The Court of Appeals concluded the original complaint was not filed within the statute of limitations because plaintiff could not avail himself of the 120 day extension provided by T.C.A. 29-26-121.  Because the first healthcare liability case was not filed within the statute of limitations, the plaintiff could not use the savings statute, T.C.A. 29-28-105, to file the second healthcare liability complaint.  The case was dismissed.

The Kentucky Supreme Court has reversed a verdict for the defendants in a medical malpractice (health care liability) case because the trial judge failed to grant a request of the patient’s lawyer to strike two jurors for cause.

The reversal was granted notwithstanding the fact that the lawyer for the plaintiff was able to challenge one of the jurors that should have been dismissed for cause with a peremptory challenge.  Why?  Because the plaintiff ran out of peremptory challenges and there were two other jurors that they would have removed had they had any other peremptory strikes remaining.

A majority of the court did not believe it was necessary to show any actual prejudice to the party.   Rather, the court determined that when a party is forced to use a peremptory challenge on a juror that should have been dismissed for cause by the trial court that harm has been done.