Articles Posted in Medical Negligence

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.

Tennessee Court of Appeals rules that Tennessee courts lose jurisdiction to reconsider dismissal when an aggrieved party fails to take proper action within the limited 30-day window after entry of final judgment.

In Hailey v. Wesley of the South, Inc., d/b/a Wesley at Dyersburg, No. W2012-01629-COA-R3-CV (Tenn. Ct. App. Nov. 19, 2013),the plaintiffs filed suit for wrongful death, medical negligence, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress stemming from the care and treatment of the decedent, Beatrice Jackson. Defendant filed a motion to dismiss citing the plaintiff’s failure to file a certificate of good faith within ninety days of the filing of the complaint, as then-required by Tenn. Code Ann. § 29-26-122 (note: current law requires contemporaneous filing of certificate of good faith in health care liability actions requiring expert testimony). Not finding any adequate basis for the plaintiff’s failure to comply with the certificate of good faith requirement, the circuit court granted the motion and on April 22, 2010, dismissed the entire case finding that all claims were for medical malpractice and required a certificate of good faith. A timeline of the ensuing procedural events is as follows:

• ·       May 21, 2010 – Plaintiff files first motion to alter or amend arguing that the court erred in finding that all of her claims arose from charges of medical malpractice.
• ·       May 21, 2010 – Plaintiff also files first notice of appeal.
• ·       July 19, 2010 – Plaintiff’s motion to alter or amend is heard and court orders parties to file memorandums on whether the Medical Malpractice Act governs the plaintiff’s claims.
• ·       August 3, 2010 – Defendant files a supplemental memorandum.
• ·       August 12, 2010 – After the plaintiff fails to file a memorandum, the court enters order denying the plaintiff’s motion to alter or amend.
• ·       August 23, 2010 – The trial judge and attorneys hold a conference call and plaintiff’s counsel claims to have authority that would convince the court to grant the plaintiff’s motion to alter or amend, resulting in the trial court instructing plaintiff’s counsel to immediately file a second motion to alter or amend along with the claimed convincing authority.
• ·       August 30, 2010 – Plaintiff files second motion to alter or amend
• ·       August 30, 2010 – Plaintiff also files a second amended complaint, without leave, attempting to assert new claims of negligence per se and violation of the Tennessee Adult Protection Act
• ·       September 8, 2010 – The trial court denies plaintiff’s second motion to alter or amend, noting that the plaintiff failed to argue any new authority other than to mention the Tennessee Adult Protection Act, which was not cited in the original complaint.
• ·       June 14, 2011 – The Court of Appeals orders the plaintiff to show cause as to why her appeal should not be dismissed for failure to timely file a notice of appeal, noting that the circuit court clerk’s only record of the notice of appeal was received by facsimile, which is not permitted under Tenn. R. Civ. P. 5A.02.
• ·       August 11, 2011 – Court of Appeals dismisses plaintiff’s appeal for lack of jurisdiction because the plaintiff provided no proof that the notice of appeal was mailed to the trial court clerk for filing, as the plaintiff had alleged.
• ·       August 30, 2011 – Court of Appeals denies the plaintiff’s petition for rehearing.
• ·       December 15, 2011 – Plaintiff files third motion to alter or amend in the trial court, based on the same purported new authority that would convince the trial court that the plaintiff’s claims were not governed by the Medical Malpractice Act.
• ·       May 9, 2012 – The trial court denies plaintiff’s third motion to alter or amend, ruling that the trial court lost all subject matter jurisdiction after the appeal without remand by the Court of Appeals.
• ·       June 8, 2012 – Plaintiff files second notice of appeal, prompting this appeal.

The main issues on appeal concerned: (1) whether the trial court correctly dismissed the plaintiff’s third motion to alter or amend for lack of subject matter jurisdiction; and (2) whether the Court of Appeals had subject matter jurisdiction to entertain the appeal.

There is a new case on how one establishes the deadline for filing medical malpractice claims against the military hospitals and other health care providers associated with the federal government under the Federal Tort Claims Act (FTCA).  The case applies to FTCA claims arising in Tennessee, Kentucky, Ohio, and Michigan.

Federal law is different that state law.  The general rule in Tennessee is that a person or entity that is going to be sued for medical malpractice (now called health care liability)  must be given written notice in the manner prescribed by law within one year of the date of the negligent act or omission causing an injury.  This is, I repeat, the general rule:  at actual rule is more complicated.

The Tennessee rule does not apply in actions against the hospitals and other health care providers of the federal government under the FTCA.   In such cases, notice must be given within two years after the claim accrues. Once again, the actual rule gets more complicated, but "two years" is the basis rule.

More of our coverage of the 2013 Tennessee Health Care Liability Report issue by the Tennessee Department of Commerce and Insurance reflecting medical malpractice claims information for the year ending December 31, 2012.

As mentioned in Part 1 of this series, the total damages paid to claimants in 2012 was $90,520,000, for an average of $208,000 per claimant.  Here are the numbers for the previous four years.

Thus, we see an almost 25% decline in the total dollars paid to claimants in the last five years.

This chart gives us an understanding of the severity of injuries in the claims paid in 2012:

 Now let’s add a few more columns of data to get a clear understanding of what is going on in the medical malpractice claims world in Tennessee:

Let this data be a warning to inexperienced medical malpractice lawyers:  severe injury and death do not result in settlements or judgments.   More than 70% of the time allegations involving that type of injury result in no payment whatsoever to the claimant.  

The average settlement of per claim data on some of these categories is quite a surprise.  To be sure, some number of cases involve two or more claims, and thus the settlement or judgment would tend to be higher.  But, still, the numbers here are lower than I would expect.

There will be more data in the our next post, Tennessee Medical Malpractice (Health Care Liability) Statistics – Part 3.

Tennessee law has an unusual rule concerning expert witnesses in health care liability cases – the "contiguous state rule."  Usually, the rule hurts patients because it limits the pool of expert witnesses available to testify on their behalf.  Sometimes, however, it comes back to bit health care providers.

An ophthalmologist in a medical negligence case requested that the trial court waive the expert competency requirement known as the contiguous state rule  under Tenn. Code Ann. § 29-26-115(b).  Under this rule, in order for an expert to testify in a Tennessee medical malpractice case, the expert must have been licensed to practice and did practice in a relevant specialty in Tennessee or a contiguous bordering state within the year preceding the date of the alleged malpractice. This requirement can be waived by a court when the court “determines that the appropriate witness otherwise would not be available.” Tenn. Code Ann. § 29-26-115(b).

In Gilbert v. Wessels, E2013- 00255-COA-R10-CV (Tenn. Ct. App. Nov. 18, 2013), the defendant ophthalmologist’s attorney spent approximately 35 hours searching for an expert and contacted 13 doctors in Tennessee and contiguous states before finding an expert in Florida. The defendant argued that this was sufficient to warrant a waiver of the contiguous state rule and also argued that the Florida expert had actual experience performing the procedure at issue and therefore was more qualified to testify than an expert who might meet the contiguous state requirements but had no experience with the procedure.