Articles Posted in Medical Negligence

Tennessee medical malpractice (now called "health care liability") cases remained essentially flat for the fiscal year ending June 30, 2013, according to data recently released by the Administrative Office of the Courts.

For the twelve month period ending June 30, 2013, there were a total of 385 health care liability actions filed in Tennessee state courts.  This number compares with 369 cases filed for the twelve month period ending June 30, 2012 and 343 cases filed for the twelve month period ending June 30, 2011.

Medical malpractice filings took a big hit effective October 1, 2008, when the first round of legislation concerning pre-suit notice and certificates of good faith went into effect.     For the fiscal year ending June 30, 2008, there were 537 medical malpractice cases filed and for the prior year (ending June 30, 2007) there were 638 cases filed.  So, when one compares filings from the year ending June 30, 2007 with the year ending June 30, 2013, filings are down about 40%.

The fights over the Tennessee health care liability pre-suit notice statute, T.C.A. Sec. 29-26-121, have steadily increased and now loom over virtually every Tennessee health care liability lawsuit.   In short, motions to dismiss cases are being filed because of the alleged failure of the plaintiff’s lawyer to perfectly comply the statute. In many of the cases, the defendant is not denying that notice was in fact received and, indeed, usually admits that the failure to strictly comply with the statute did not result in any prejudice whatsoever. Rather, the defendant argues that if every statutory "i" is not dotted and  "t" is not crossed,  the defendant has the absolute right to insist that the lawsuit be not only dismissed but that it be dismissed with prejudice i.e. any deviation, no matter how minor, requires the death penalty.

It is important to point out that the Tennessee Supreme Court has not addressed the issue to date. True, the court says giving pre-suit notice is mandatory but (a) expressly left open the question about what sanction, if any, is required when the notice statute is not complied with and (b) has not addressed the issue of imprecise compliance. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012);   Aubrey E. Givens, Administrator of the Estate of Jessica E. Givens, Deceased, et al. v. The Vanderbilt University D/B/A Vanderbilt University Hospital, et. al.,   M2013-00266-COA-R3-CV  (Tenn. Ct. App. Oct. 15, 2013) and Foster v. Chiles, No. E2012-01780-COA-R3-CV, 2013 WL 3306594 (Tenn. Ct. App. June 27, 2013).  The latter issue is the subject of this post: how should our courts address the issue of a failure to strictly comply with the notice statute, especially in the absence of prejudice to the defendant?  

I submit that the answer to the question asked is relatively easy.  It is easy because our law has answered substantially similar questions dozens of times over the decades, albeit in different contexts, and thus one need only apply decades-old law to reach resolve these cases in a way that furthers both the cause of justice and the familiar, worthy goal of resolving cases on the merits.  Thus, I urge any lawyer who is confronting a notice issue to consider the following cases and argue for the trial and appellate courts to apply the "substantial compliance" test.

No, you did not read the headline wrong.  The company that insures doctors for medical malpractice claims in Georgia is opposing a tort reform measure being pushed by a group of healthcare administrators.

What is going on?  A group of  healthcare administrators in Georgia  has formed an organization called "Patients for Fair Compensation" (has a nice ring to it, doesn’t it?) that is seeking a new law which would move medical malpractice claims out of the courts and into an administrative system overseen by a "Patient Compensation Board" within the Department of Community Health.

Those supporting the legislation say that the new system, which would be similar to the way Georgia  worker’s compensation claims are processed,  would reduce healthcare costs.  In essence, the proposed legislation would create a no-fault system for awarding limited compensation for victims of medical malpractice.  It would be funded by fees that would be paid by doctors and by hospitals.

The National Practitioner Data Bank collects data about medical malpractice settlements of $10,000 and more.  Here is some recent information about Tennessee physician judgments and settlements as reported to the Data Bank:

• There were 155 reported payments in 2011, down from 192 10 years earlier in 2001.
• 31 of those payments were under $50,000.
• 23 of those payments were between $50,000 and $99,000.
• 26 of those payments were between $100,000 and $249,000.
• 39 of those payments were between $250,000 and $499,000
• 30 of those payments were between $500,000 and $999,999.
• 6 of those payments were between $1,000,000 and $1,999,999.
• None of those payments exceeded $2,000,000.
• Total payments in 2011 were $46,850,000
• Thus, the mean payout in 2011 was a little over $300,000.
• The median payout in 2011 was $200,000, placing us 16th in the nation. Massachusetts was the highest at $404,000.
• Total payments in 2001 were $48,950,000.
• The year with the largest total payments was 2006 – $54,980,000.
• The median delay from incident to payment in 2011 was 4.0 years.  The mean delay from incident to payment in 2011 was 4.5 years.
• You can read the 2011 Data Bank report by clicking on the link.

All of this data is very interesting, but I was particularly intrigued by the "delay in payment" data.  We work particularly hard in our office to reduce this period and, quite frankly, I don’t recall any case in our office ever having a four-year delay from incident to payment except one: a case won at trial and appealed by one of several defendants.  The verdict against that doctor was affirmed and payment was made about four years after the incident.

We recently resolved a case that was set for trial in late June, 2013.  Our client died as a result of an error made in an emergency room in early 2011.  The case had been filed for about 18 months.  Our case could have been set for trial three or four months earlier but for scheduling issues with the court and defense counsel.

Tennessee law has a one year statute of limitation in a medical malpractice (now called a health care liability) case.  Formal legal notice must be given to health care providers who are going to be sued in the case and this notice must be given before the expiration of the statute of limitations.  Notice must be given at least 60 days before suit is filed.  If notice is given as required by law, the statute of limitations is extended for 120 days.  All of this is spelled out in detail in T.C. A. Sec. 29-26-121..

Thus, if a patient is hurt as a result of a medical error on Day 1, and notice is given on Day 364, plaintiff cannot file suit until Day 425 (60 days after suit was filed) but must file before Day 485 (120 days after the statute of limitations expired), right?

Yes, unless the case is against a health care provider employed by a local government or against the local government itself.  The Tennessee Supreme Court has released its opinion in Cunningham v. Williamson Cty. Hosp. District, No. M2011-00554-SC-S09-CV (Tenn. May 9, 2013) and has ruled that the notice statute (T.C.A. Sec. 29-2-121) does not extend the statute of limitations applicable to claims against governmental entities and its employees.  Why?  Because the Court has ruled that changes in statutes of general application that specifically conflict with the GTLA do not apply to claims against governmental entities unless the General Assembly specifically says they do.

The Tennessee Department of Commerce and Insurance has released its annual statistical report on filings, verdicts and settlements in medical malpractice (now known as health care liability) cases.  The report bears the date "2012" even though the data is from 2011.

The  report is helpful to lawyers who represent patients in Tennessee medical malpractice cases because it includes data collected from plaintiff’s lawyers, insurers of health care providers, and self-insureds.  There is other data about medical malpractice lawsuits, but this data is reported at the claims level.  

Here are some of the highlights from the report:

It comes as no surprise to those of us who are medical malpractice attorneys in Tennessee or elsewhere around the Nation, but this article, "Surgeons Make Thousands of Errors,"  (subscription required) does a great job of identifying problems that arise in the operating room.

The article reports that surgeons make such mistakes more than 4,000 times a year in the U.S.  The article is based on a study led by Johns Hopkins University School of Medicine, published online in the journal Surgery.

The study, relied on data in the National Practitioner Data Bank, a federal repository of medical-malpractice judgments and out-of-court settlements,and examined cases involving leaving an object inside a patient, wrong-site surgeries, wrong procedures and wrong-patient surgeries.

The Nebraska Supreme Court has held that the doctor for a kidney donee does not owe a duty to the kidney donor.  Thus, when the donee’s doctor allegedly committed malpractice when treating the donee, rendering the donor’s kidney useless, the donor cannot sue the donor’s doctor.

In Olson v. Wren shall, 284 Neb.445 (Oct. 5, 2012), Sean Olson agreed to give a kidney to his dad, Daniel.  The initial surgery went fine, but complications later developed.  Allegedly, a medical error caused the death of the donor’s kidney in the do nee and it had to be removed.

The donor and his wife sued the Donne’s doctors, seeking damages for the errors committed on do nee that resulted in the loss of the donor’s kidney.  The trial court dismissed the case, finding that the Donne’s doctors (who did not remove the kidney from donor) did not owe a duty a care to the donor.  The trial court also ruled that no legally cognizable damages were suffered by donor and his wife as a result of the alleged malpractice.

It happens almost every day.  I receive a call from a person claiming that they have been injured by the act or omission of some health care professional and I have to tell them I can’t help them because the damages suffered to not justify the time and expense of a medical malpractice case.

This has always been a problem, but has gotten worse with tort reform legislation in Tennessee.  Caps on damages further restrict access to the courts.

Those in academia are paying attention.  Torts Prof recently wrote about a new article by Joanna Shephard tiitled ""Justice in Crisis: Victim Access to the American Medical Liability System."

Almost four years ago Tennessee adopted  a requirement  lawyers filing  medical malpractice (now called health care liability) lawsuits must file a "certificate of good faith."  Under the current version of the statute the certificate must be filed with the complaint.

The Tennessee pre-suit notice statute can be found at T.C.A. Section 29-26-122.  I wrote an article about the most recent version of the statute for the  Tennessee Bar Journal; the article is titled "Med Mal Makeover:  The New Medical Malpractice Notice and Certificate of Good Faith Statute."

I have assembled a list of the cases that discussed the certificate of good faith requirement.  One of the cases is pending before the Tennessee Supreme Court and an opinion is expected in the next few weeks.