Medical Negligence

September 20, 2012

Case Law on Pre-Suit Notice Requirement in Tennessee Health Care Liability (Medical Malpractice) Cases

Almost four years ago Tennessee adopted a requirement that health care provides were entitled to receive advance notice of the filing of Tennessee medical malpractice (now call "health care liability) lawsuits. Under the current version of the statute, notice must be given in the manner proscribed by statute before the expiration of the statute of limitations. Exceptions are granted only for extraordinary cause. Giving appropriate notice extends the statute of limitations and statute of repose by 120 days.

The Tennessee pre-suit notice statute can be found at T.C.A. Section 29-26-119. 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 pre-suit notice requirement. Here are the two cases currently pending before the Tennessee Supreme Court:

June 5, 2012

“They Left A Sponge In Me!”

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

How often are sponges, towels, pads and other foreign objects left in surgical patients? The Doctor’s Company, a medical malpractice insurer, has shared some information that helps us get an idea of the scope of the problem.

The insurer reports that from 2002 through 2011, there were 3,273 surgical claims closed (not including obstetric cases). Five percent involved retained foreign objects, with half of those being sponges, towels, or pads. That means that this one insurer has defended about 160 foreign object claims during the indicated ten-year period.

The insurer admits that the claims are very difficult, if not impossible, to defend.

April 27, 2012

Medical Malpractice Paid Claims Continue to Drop

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

The National Practioner Data Bank, the entity that gathers data about medical malpractice claims, reports that paid medical malpractice claims continue to drop.

In 2001, the total number of paid claims was 20,319. In 2010, the number had dropped to 13,277. Now, a new report released by Kaiser citing data from the NPDB indicates that paid claims for 2011 totaled 9497.

(The NPDB data for 2001 through 2010 is set forth in Appendix D, Table 1.)

April 26, 2012

Tennessee Court Waives Compliance With “Contiguous State” Rule for Expert Witness in Medical Malpractice Case

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

Tennessee has a goofy rule concerning expert witnesses that, to my knowledge and belief, exists in no other state.

Tenn. Code Ann. § 29-26-115(b) requires any expert witness in a medical malpractice state to practice in Tennessee or a border state unless the trial court “determines that the appropriate witnesses otherwise would not be available.”

The alleged purpose of the contiguous state rule is to increase the likelihood that the witness will know the applicable standard of care. The actual result of this rule is to make it more difficult to find expert witnesses, particularly in specialty medical areas or when the defendant is well-known.

April 25, 2012

Tennessee Court Discusses Whether Expert is Qualified to Speak to Defendant’s Standard of Care Under Locality Rule

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

Tennessee law requires that the plaintiff present expert proof that the defendant violated the standard of care applicable in the community in which the care was given at the time the care was given. Proof of the standard can come from an otherwise qualified expert who knows the standard of care in that community or in a similar community. This rule is codified in Tenn. Code Ann. § 29-26-115(a).

In Marsha McDonald v. Paul F. Shea, M.D. and Shea Ear Clinic, No. W2010-02317-COA-R3-CV (Tenn. Ct. App. February 16, 2012), the Court of Appeals engaged in a lengthy discussion of whether Plaintiff ’s expert was qualified to testify under Tenn. Code Ann. § 29-26-115(a). The court’s reasoning was guided by the recent Tennessee Supreme Court case of Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). In Shipley, the Supreme Court rejected the notion that an expert must have personal, first-hand knowledge of the standard of care by actually practicing in a community. The Supreme Court also held that “expert medical testimony regarding a broader regional standard or a national standard should not be barred, but should be considered as an element of the expert witness’ knowledge of the standard of care in the same or similar community.”

These two holdings in Shipley gutted the majority of Defendants’ objections to the competency of Plaintiff ’s expert in this case.

March 29, 2012

Medical Malpractice Case Filings Still Below Pre-Tort Reform Levels

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

Medical malpractice case filings were up last year but are still below the filings for the year when the first tort reform hit medical malpractice cases.

October 1, 2008 was the date that pre-suit notice and certificates of good faith became required. In the year before the law change, 646 medical malpractice cases were filed in the entire state. Some 140 of those cases were filed in the month before the law changed – ordinarily only about 46 were filed per month.

Predictably, filings were down substantially in the year ending September 30, 2009 – only 264 cases were filed. The next year filings were up to 314, and the year ended September 30, 2011 there were 378 medical malpractice cases filed.

March 26, 2012

Expert Witness Qualifications in Tennessee Medical Malpractice Case

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

The Sixth Circuit Court of Appeals has reversed a district court’s finding that an expert witness was not qualified to testify on behalf of a plaintiff in a health care liability action, relying on Shipley v. Williams, 350 S.W.3d 527 (2011).

In Bock v. University of Tennessee Medical Group, Inc., No. 10-5534 (6th Cir. March 26, 2012), the court ruled that Shipley required a remand but also made it very clear that merely determining a witness to be competent to give expert testimony did not end the inquiry. After competency is determined, case law and evidence rules in federal court still require application of the FRE 702 as interpreted by Daubert. The record was such that the court could not make the determination of these issues and thus a remand was appropriate.

The case includes a helpful discussion of the interaction between the Erie rule and the Federal Rules of Evidence and how the 6th Circuit has addressed the issue. Surprisingly, the United States Supreme Court has never directly addressed the issue.

March 19, 2012

Debunking the Myth: The Poor Do Not File More Medical Malpractice Cases

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

Four professors have written an article titled "Do Poor People Sue Doctors More Frequently? Confronting Unconscious Bias and the Role of Cultural Competency."

The article concludes that "Contrary to popular perception, existing studies show poor patients, in fact, tend to sue physicians less often. This may be related to a relative lack of access to legal resources and the nature of the contingency fee system in medical malpractice claims."

Quite frankly, there is no original research in this article, but it is a good collection of research that has been out there for several years.

March 15, 2012

SVMIC Enjoys More Financial Success

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

State Volunteer Mutual Insurance Company, the Tennessee medical malpractice insurer owned by the doctors themselves, has had another profitable year even with its significant rate decrease.

The company, which insures about 75% of the doctors in the state, has announced the following financial results and other data for the year ending December 31, 2011:

Net income – $28,012,000.
Policyholder’s Surplus (equivalent to net worth): $436,424,000
2011 Dividend – $20,100,000
Total Dividends paid during company existence – $300,000,000
Rate of return on investments – 5.3%
Average decrease in premiums over last 3 years – 31% (mature, base premiums)
Insured physicians – 14, 476

The gross premiums written have decreased since 2007 for two reasons. First, SVMIC has lost almost 1600 doctors as clients during that period. Second, rates have declined substantially during that period. The combination of the two factors has resulted in a decreased of gross premium written of a little over $90,000,000. Profits remain high because investment income has remained about the same (actually, it is a little higher) and net paid loss and loss adjustment expenses have increased only about 5% in five years. Surplus during the 5 year period has increased over 80% despite payment (through premium credits) of $48,000,000.

March 12, 2012

Parents Sue for Wrongful Birth of Child With Cystic Fibrosis. What Would Happen in Tennessee?

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

Insurance Journal reports that the parents of a child born with cystic fibrosis sued various Montana health care providers, saying that had they known of the genetic disorder they would have terminated the pregnancy.

Cystic fibrosis causes sticky mucus buildup in the lungs and other organs, leading to infections, digestive problems and death in young adulthood. The typical life expectancy is about 37 years, according to the Cystic Fibrosis Foundation.

The couple alleges that genetic testing the mother underwent in the first trimester failed to explore whether the child was likely to have cystic fibrosis. The parents would have terminated the pregnancy because they claim they were not emotionally or financially equipped to care for a child with that illness.