Medical Negligence

June 26, 2023

HCLA Standard of Care Expert Competent to Testify.

Where plaintiff’s medical malpractice expert was a registered nurse with extensive experience in wound care, the fact that the expert had not practiced in a hospital went “to the weight of her testimony, not to whether she [was] competent.” (internal citation omitted). The trial court’s ruling excluding her as an expert was thus overturned.

In Owens v. Vanderbilt University Medical Center, No. M2021-01273-COA-R3-CV (Tenn. Ct. App. May 18, 2023), plaintiff had surgery on her fractured ankle at defendant hospital and was inpatient for eight days. When she was discharged, she had stage three pressure wounds, and she ended up being readmitted to defendant hospital four days later for treatment of the pressure wounds.

Plaintiff filed this HCLA suit based on defendant’s failure to prevent, detect, and treat her pressure wounds. She disclosed a registered nurse from Virginia as her standard of care expert. Defendant moved for summary judgment, arguing that plaintiff’s expert was “not qualified to testify under Tennessee Code Annotated § 29-26-115(b)” because she was “not familiar with the standard of care for hospital employees in caring for post surgical orthopedic repair patients during the statutorily relevant period.” The trial court agreed with defendant and granted the motion for summary judgment, but that ruling was vacated on appeal.

June 21, 2023

Defendant physician cannot be compelled to give expert opinion of other healthcare provider’s care.

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

In a recent HCLA case, the Tennessee Supreme Court held that “a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard.”

In Borngne ex rel. Hyter v. Chattanooga-Hamilton County Hospital Authority, — S.W.3d —, No. E2020-00158-SC-R11-CV (Tenn. May 23, 2023), plaintiff filed a healthcare liability action against multiple defendants, including the midwife who was overseeing her birth and the midwife’s supervising physician, Dr. Seeber. Plaintiff suffered permanent brain damage and was severely debilitated by injuries received during the birth. During the supervising physician’s deposition, plaintiff’s counsel questioned him about what his expectations of the midwife would be in hypothetical situations, when the mother’s condition became concerning, and other questions related to the standard of care for the midwife, all of which the physician’s attorney instructed him not to answer.

Plaintiff filed a “motion to compel Dr. Seeber to testify concerning [the midwife’s] performance prior to his arrival,” which the trial court denied. The Court of Appeals, however, reversed the trial court and ruled that “the trial court erred by refusing to order Dr. Seeber to answer the questions at issue in his deposition.” In this appeal to the Supreme Court, the judgment of the trial court denying the motion to compel was affirmed.

May 26, 2023

Psychologist selected by mother pursuant to court order immune from later HCLA suit.

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

Court appointed psychologists enjoy immunity in Tennessee. Where a juvenile court ordered that a mother select a new psychologist to replace the existing one in a custody case, the psychologist selected by the mother was entitled to summary judgment based on immunity in a later suit brought by the father based on the psychologist’s treatment of the minor and parents in the underlying custody case.

In Justice v. Hanaway, No. E2022-00447-COA-R3-CV (Tenn. Ct. App. May 15, 2023), plaintiff filed an HCLA case against defendant psychologist based on the psychologist’s treatment and involvement in an underlying child custody case. Plaintiff was the father in the child custody case, and after the first court-appointed psychologist was removed from the case, the juvenile court asked the mother to select a new psychologist. The juvenile court’s order stated: “There will be a transition from the current therapist…to a new therapist to be selected by the Mother. …The parties shall sign releases for the new therapist to speak with [the former therapist.] …Once the transition to the new therapist is made, the therapist shall set out a goal and a plan as to how the therapy shall be conducted.” The mother selected defendant psychologist, who went on to have sessions with the mother, father, and minor and to testify in the custody case. This HCLA claim by the father followed.

The trial court granted summary judgment to defendant based on his role as a court-appointed psychologist. The trial court found that it was “reasonable from the record to conclude that Defendant was replacing the court-appointed therapist…and would therefore be stepping into [her] shoes and occupying the same status as that which [she] had enjoyed,” and that defendant was “entitled to the same benefit of the doctrine of [judicial]immunity as that which could have been claimed” by the original court-appointed therapist. On appeal, this ruling was affirmed.

May 4, 2023

HCLA plaintiff entitled to limited discovery to show that defendant was not prejudiced by noncompliant HIPAA authorization.

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

Where an Tennessee HCLA plaintiff’s HIPAA authorization had an error in the “purpose” section, but the potential defendants only included two physicians who were employed by the third potential defendant health system and plaintiff asserted that the defendant health system was the only potential defendant who possessed any relevant medical records, the Court of Appeals vacated dismissal based on the noncompliant HIPAA authorization and held that plaintiff should have been allowed “to conduct limited discovery to determine whether [defendant health system] had been prejudiced by Plaintiff’s failure to provide a HIPAA-compliant medical authorization[.]”

In Hayward v. Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System, No. E2022-00488-COA-R3-CV (Tenn. Ct. App. April 27, 2023), plaintiff filed an HCLA claim against defendants related to a bladder surgery and related complications. Before filing suit, plaintiff sent pre-suit notice to three potential defendants, including two physicians and one health system (“Erlanger”). A HIPAA authorization was included with the pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E).

After suit was filed, Erlanger filed a motion to dismiss based on the HIPAA authorization being noncompliant. Specifically, Erlanger pointed out that the purpose section of the HIPAA authorization, which is one of the six core elements required on a HIPAA authorization, only permitted disclosure of records to plaintiff’s attorney. Erlanger argued that this prevented the potential defendants from obtaining records from each other and that dismissal was thus appropriate.

April 5, 2023

No certificate of good faith required for HCLA case that falls under common knowledge exception.

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

Where plaintiff alleged that the nursing facility she lived in gave her a defective shower chair, and the broken wheel lock and torn netting on the chair caused her to fall and be injured, no certificate of good faith was required due to the common knowledge exception to Tennessee’s health care liability (historically referred to as “medical malpractice”) law.

In Mears v. Nashville Center for Rehabilitation and Healing, LLC, No. M2022-00490-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2023), plaintiff was a resident at defendant skilled nursing facility. Defendant’s policy required residents to use a shower chair when showering, and plaintiff was provided such a shower chair. According to plaintiff, the shower chair she was given was defective because the wheel lock did not work and the netting was torn. While showering, plaintiff fell out of the chair and was injured.

Plaintiff filed this suit against defendant asserting various acts of negligence. Plaintiff did not, however, provide pre-suit notice or a certificate of good faith under the HCLA, and defendant filed a motion to dismiss on that basis. The trial court agreed that the case fell within the HCLA and dismissed the suit without prejudice due to plaintiff’s failure to provide pre-suit notice. The court ruled, however, that the claims did “not require expert medical testimony and came within the common knowledge of laymen and, therefore, that a certificate of good faith [was] not required.” The trial court thus refused defendant’s request to dismiss the case with prejudice, which was affirmed on appeal.

October 31, 2022

Exclusion of HCLA expert based on locality rule affirmed.

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

Where an HCLA plaintiff’s expert testified at his deposition that he was not very familiar with Kingsport and that he had only reviewed information about Kingsport the night before the deposition, rather than before forming his medical opinions, the trial court did not err by excluding the expert based on the locality rule.

In Jackson v. Thibault, No. E2021-00988-COA-R3-CV, 2022 WL 14162828 (Tenn. Ct. App. Oct. 25, 2022), the patient underwent a hysterectomy at a hospital in Kingsport, Tennessee. Complications arose during the surgery, and the patient later went into septic shock and died. Plaintiff, who was the administrator of the patient’s estate, brought this HCLA suit alleging negligence against a number of medical providers related to the patient’s care.

October 24, 2022

Physician employed by state university had absolute immunity under Tennessee Claims Commission Act.

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

Where defendant physician was employed by a state university and received no personal gain from the clinical services she rendered at a hospital, and plaintiff had brought an HCLA action based on these hospital clinical services, summary judgment pursuant to defendant’s absolute immunity under the Tennessee Claims Commission Act was affirmed.

In Parker ex rel. Parker v. Dassow, No. E2021-01402-COA-R3-CV, 2022 WL 11584155 (Tenn. Ct. App. Oct. 20, 2022), plaintiff filed this HCLA suit on behalf of her son. According to plaintiff, defendant physician failed to find a condition on the son’s ultrasound before he was born, which caused him permanent injuries. Plaintiff asserted that this negligent ultrasound reading occurred at Erlanger Hospital.

October 18, 2022

No HCLA liability under GTLA where allegedly negligent doctors were not employees of governmental entity hospital.

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

Where plaintiff filed an HCLA case against a hospital that was a governmental entity, but only alleged negligence by doctors who were not employees of the hospital, summary judgment under the GTLA was affirmed.

In Howell v. Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System, No. E2021-01197-COA-R3-CV, 2022 WL 5295794 (Tenn. Ct. App. Oct. 7, 2022), plaintiff went to defendant hospital for treatment for a laceration on his foot. Plaintiff was treated by a medical resident and a medical student, who were both under the supervision of the same physician. Neither the supervising physician, medical resident, or medical student were employees of defendant hospital.

Plaintiff filed this suit asserting negligence against the medical resident and supervising physician because the resident allegedly failed to remove fiberglass shreds from his cut before doing stitches, which led to serious medical issues. Defendant moved for summary judgment, and after several responses and replies, the trial court granted summary judgment on the basis that “[defendant] is a governmental entity and that neither [the supervising physician] nor [the medical resident] are employees of [defendant],” so defendant “could not be held vicariously liable for the actions of [the supervising physician or medical resident] under the GTLA.” This ruling was affirmed on appeal.

Pursuant to the GTLA, a governmental entity may be liable for the “negligent actions of governmental employees acting within the scope of their employment.” (Tenn. Code Ann. § 29-20-205). The issue here, however, was that the doctors that plaintiff claimed had acted negligently were not employees of defendant hospital. The only expert testimony presented by plaintiff asserted that the supervising physician and medical resident had failed to meet the standard of care; it did not “allege that [defendant hospital] or its nurses deviated from the standard of care.”

September 12, 2022

Finding of extraordinary cause to excuse HCLA noncompliance reversed.

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

Where the HIPAA authorizations sent with plaintiff’s HCLA pre-suit notice were noncompliant, and plaintiff’s attorney claimed that the noncompliance was due to a set of extremely stressful work and family circumstances but his affidavit did not explain how the noncompliant error was made or how the circumstances caused the error, the Court of Appeals overturned the trial court’s finding of extraordinary cause excusing the noncompliance.

In Moxley v. AMISUB Inc. D/B/A Saint Frances Hospital, No. W2021-1422-COA-R9-CV, 2022 WL 3715056 (Tenn. Ct. App. Aug. 29, 2022), plaintiff alleged that he was injured by defendants’ medical negligence on July 5, 2019. Plaintiff’s counsel sent pre-suit notice to all potential defendants on July 3, 2020, and those notices included medical release forms that were allegedly HIPAA complaint pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E). The forms, however, all listed the recipient medical provider as the “releasing provider” rather than the receiving provider, essentially giving the recipient the ability to release documents but not obtain them.

August 22, 2022

Tennessee Court of Appeals: HCLA plaintiff should have been allowed to substitute expert.

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

Where an HCLA plaintiff’s expert refused to testify due to no fault of plaintiff or plaintiff’s counsel, the Tennessee Court of Appeals ruled that the trial court should have allowed plaintiff to secure a substitute expert.

In Blackburn v. McLean, No. M2021-00417-COA-R3-CV, 2022 WL 3225397 (Tenn. Ct. App. Aug. 10, 2022), plaintiff filed an HCLA complaint in connection with the death of 35-year-old decedent who died after presenting at defendant emergency room and being treated by defendant doctor. Plaintiff identified Dr. Sobel as his standard of care expert and Dr. Allen as his causation expert. During Dr. Allen’s deposition, he testified that the decedent would “probably be alive” if he had sought treatment earlier, and defendant doctor thereafter filed a motion to amend his answer to plead the comparative fault of decedent. Defendant also filed a motion to compel the production of certain tax records from Dr. Sobel showing “the amount of money he was paid for medico-legal matters during certain prior years.”

After a hearing, both the motion to amend and the motion to compel were granted. After financial documents related to Dr. Sobel were produced, defendant doctor moved to lift the protective order regarding these documents, which the trial court granted. After the protective order was granted, Dr. Sobel refused to testify as an expert witness for plaintiff in this case.

Plaintiff filed a Motion to Substitute Expert Witness seeking to substitute a new expert whose opinions were “for the most part identical” to those of Dr. Sobel, but the trial court denied the motion. Plaintiff also sought to retain an expert to respond to the newly added comparative fault allegations. While the trial court ruled that plaintiff could obtain a cardiologist to respond to the newly asserted comparative fault defense, it placed extensive limitations on what that expert could address, specifically stating that plaintiff could not identify new experts “to address the standard of care for Defendants or alleged violations of the standard of care[,]…to testify about the alleged fault of Defendant [doctors] and/or what he allegedly did wrong[,] …to compare the fault of the decedent to the fault of the Defendants.”