Articles Posted in Medical Negligence

The Tennessee Medical Malpractice Reporting Act found at Tenn. Code Ann. §§ 56-54-101, et seq. went into effect on January 1, 2009 and replaced statutes regarding similar previous reporting requirements.   Bold the old and new statute require that lawyers report all medical malpractice settlements and judgments obtained in calender year 2008.

The Act requires the report to be filed with the Department of Commerce and Insurance offices on or before March 1 of each year.  Since March 1 falls on a weekend, the report will be due March 2nd.
 
The new medical malpractice forms and instructions for the 2008 calendar year  can be found at the Department of Commerce and Insurance’s  web site.  That site is http://www.state.tn.us/commerce/insurance/medExpRpt.html. 

There is a great article in  today’s  New York Times titled "Simple Checklist Makes Surgery Safer."

An excerpt:  "a year after surgical teams at eight hospitals adopted a 19-item checklist, the average patient death rate fell more than 40 percent and the rate of complications fell by about a third, the researchers reported.’

The Times article is based on an article in the January 14, 2009 edition of the New England Journal of Medicine, which reports on a research project conducted by the World Health Organization. 

According to the Tennessean. Tennessee nursing homes rank No. 48 (beating only Louisiana and Georgia), according to new survey information out from the Centers for Medicare and Medicaid Services.  Less than 7% of the nursing homes in Tennessee were rated above average.

The paper reports that

 "[o]f the 40 nursing homes listed in Davidson, Rutherford, Sumner, Williamson and Wilson counties, 11 fell well below average. Three of those — Briley Nursing and Rehabilitation Center in Whites Creek, Greenhills Health and Rehabilitation Center in Nashville and Cumberland Manor Nursing Center in Nashville — not only received the poorest marks for overall quality, but also received the lowest possible score in every category."

Many plaintiff’s lawyers from across the state received assessments from the Department of Commerce and Insurance for failure to report data concerning medical malpractice settlements and judgments received during the prior year.  Many of the penalities approach $20,000 and, as one lawyer told me, the penality he has been assessed is greater than the fee he received in the case.

Some people have asserted that the reason plaintiff’s lawyers have to report this data is my fault.  That is not accurate.  Here are the facts.

Since 1986 I have pushed for mandatory reporting of medical malpractice verdicts and settlements data.  Unfortunately, the state of Tennessee only recently began keeping data on verdicts in med mal cases, and most settlements are cloaked with a confidentiality agreement.  Therefore, we had no good data to fight the constant whining by the medical community that there was a med mal litigation crisis. 

The U.S. Department of Heath and Human Services has a website that delivers information on how well hospitals care for patients with certain medical conditions or surgical procedures, and the results of a survey of patients about the quality of care the patients received  during a recent hospital stay.

The site is here.

The Federation of State Medical Boards has a website that allows you to order professional information on physicians and physician assistants.  The reports include infomoration about disciplinary sanctions, education, medical specialty, licensure history and locations.  The cost of each report is $9.95.

Go the this site to place an order.

Limited information on Tennessee doctors (and other licensed health care providers) can be obtained for free at this site.

The Administrative Office of the Courts has released the form that must be filed by plaintiffs in medical negligence cases (and by defendants who allege fault of another health care provider).  Both forms are available here.

In general, a plaintiff must file the certificate within 90 days after filing suit.

My partner Rebecca Blair had an article about the new statute published as the cover story of the Tennessee Bar Journal.   The article can be viewed here.

The Tennessee State Board of Medical Examiners has a policy about prescribing drugs.  It applies to any prescription written for a patient, whether in person, electronically, or over the Internet. 

The policy includes the following:

(1) Except as provided in paragraph (2), it shall be a prima facie violation of T.C.A. 63-6-214 (b) (1), (4), and (12) for a physician to prescribe or dispense any drug to any individual, whether in person or by electronic means or over the Internet or over
telephone lines, unless the physician has first done and appropriately documented, for the person to whom a prescription is to be issued or drugs dispensed, all of the following:
(a) Performed an appropriate history and physical examination; and
(b) Made a diagnosis based upon the examinations and all diagnostic and laboratory tests consistent with good medical care; and
(c) Formulated a therapeutic plan, and discussed it, along with the basis for it and the risks and benefits of various treatments options, a part of which might be the
prescription or dispensing drug, with the patient; and
(d) Insured availability of the physician or coverage for the patient for appropriate
follow-up care.

Paragraph  (2) provides as follows:

Nursing homes continue to attempt to avoid trial by jury by requiring residents to sign arbitration ageements.  And the Tennessee courts continue to insist that if nursing homes are going to do so they must follow the law.

Here are two decisions that refuse to enforce arbitration provisions in nursing home contracts because they contracts were signed by a person other than the nursing home resident or appropriate representative:  McKey and Ricketts.  Both cases were decided on August 15 by the Tennessee Court of Appeals and were authored by Judge Andy Bennett.

 UPDATE:  And here is another decision, this one from Special Judge Walter Kurtz:  Jones.   Jones was released on August 20, 2008.

Tennessee permits a plaintiff to rely on the res ipsa loquitor  doctrine in medical negligence cases when appropriate under the facts.  For the most recent Tennessee case on the issue see Flowers v. H.C.A. Health Care Services of Tennessee, Inc., 2006 WL 627183 ((Tenn. Ct. App. Mar. 14, 2006).

But take a look at this case out of Missouri.  It holds that a plaintiff can rely on res ipsa in a case where the plaintiff got an E. coli infection after back surgery.

The Missouri Court noted that "Plaintiffs have alleged that all defendants were in control or had a right of control of the instrumentalities from which her infection was obtained, that the infection in the surgical site itself is one that does not occur in the absence of negligence, that the defendants all were negligent, that she was unconscious and has no knowledge of how the infection occurred, and that the defendants have superior knowledge of how it occurred."  The plaintiff had an expert to support this position but who could not say how the infection actually occurred.