Day on TortsWhere plaintiff alleged that defendant doctor committed intentional misrepresentation and medical battery by stating that he was board-certified in plastic surgery when he was not, the Tennessee Court of Appeals affirmed the ruling that these claims were not governed by Tennessee’s HCLA. In Cooper v. Mandy, No. M2019-01748-COA-R9-CV (Tenn. Ct. App. Nov. 17, 2020), plaintiff saw advertisements for NuBody and went to their office in Brentwood for a consultation regarding surgical breast reduction. Plaintiff met with Ms. Norris, a NuBody representative, and defendant Dr. Mandy, at which time they told plaintiff that Dr. Mandy was board-certified in plastic surgery. Plaintiff alleged that she entered into an agreement to have the surgery in reliance on these statements, but that the subsequent surgery was not properly performed, leaving her “disfigured and with grotesque and painful bacterial infections.” Plaintiff later learned that Dr. Mandy was not board-certified in plastic surgery, and was actually not board-certified in any field at the time of her treatment.
Articles Posted in Medical Negligence
Tennessee’s “Common Knowledge” Exception to Use of an Expert in Health Care Liability Act Cases
Those seeking to learn the current state of the law on whether and when one can avoid the use of an expert witness on the negligence issue in Tennessee medical malpractice litigation may wish to read my recent article, “Flies, Buttermilk and Malpractice.” The article appeared in the Jan./Feb. issue of Tennessee Bar Journal.
HCLA statute of limitations for claim against doctor and hospital began to run on same date.
HCLA statute of limitations for claim against doctor and hospital began to run on same date.
Where plaintiff knew on October 31, 2017 that her surgeon had wrongly positioned screws during a previous spine surgery, the statute of limitations for her Tennessee HCLA claims against the hospital defendants who allegedly employed the surgeon began to run on that day.
In Karr v. Saint Thomas Midtown Hospital, No. M2020-00029-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2021), plaintiff had spine surgery in July 2016 performed by Dr. McCord at defendant hospital. Plaintiff continued seeing Dr. McCord until October 31, 2017, when she discovered that he had “malpositioned screws during the surgery.” Plaintiff did not return to Dr. McCord after this date, and instead began treating with Dr. Cheng. Dr. Cheng performed surgery on plaintiff on May 14, 2018, at which time he “discovered…that both the number and the extent of the malpositioned screws was greater than previously known,” and he told plaintiff that the surgery performed by Dr. McCord did not properly address the diagnosis she had been given.
Summary judgment for HCLA defendants affirmed based on statute of limitations and lack of duty.
Where one defendant in an HCLA case was not the owner or operator of the facility at which plaintiff alleged he received negligent medical treatment, and that defendant did not employee, train or control the employees who allegedly provided negligent care, summary judgment for that defendant was affirmed. Further, where the other defendant was added as a party after the statute of limitations had run, summary judgment for that defendant was also affirmed. In Waller v. Varangon Corporation d/b/a Varangon Academy, No. W2019-02211-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2021), plaintiff was a resident at a juvenile treatment facility when he reported to the medical personnel at the facility that he was having stomach pain and nausea. Nurses at the facility gave plaintiff over-the-counter treatment, but his condition worsened, and plaintiff was taken to a local emergency room several days later and diagnosed with bowel obstruction, which required surgery. At the time of this incident in 2016, plaintiff was seventeen.
The facility where plaintiff had been residing was owned by Varangon Corporation (“Varangon”) and known as Varangon Academy from 2010-2013. In January 2014, Omni Visions, Inc. (“OVI”) purchased the facility and the business from Varangon, and OVI retained the trade name Varangon Academy. As part of the purchase, Varangon and OVI entered into a management services agreement whereby OVI “agreed to continue to provide residential treatment and other services to juveniles at the facility,” and Varangon agreed to license to OVI a treatment model it had developed. Varangon also agreed to make recommendations on personnel issues, but OVI “retained final decision-making authority over personnel issues.” Under the agreement, “OVI retained ultimate legal responsibility, authority, and responsibility over the rendition of all residential treatment services at the facility.”
HCLA pre-suit notice addressed to administrator as an individual did not provide notice to health care facility.
Where an HCLA plaintiff attempted to sue defendant medical center but sent pre-suit notice to the center’s administrator addressed only to the administrator and not referencing the center, dismissal based on a lack of pre-suit notice was affirmed.
In Webb v. Trevecca Center for Rehabilitation and Healing, LLC, No. M2019-01300-COA-R3-CV (Tenn. Ct. App. Nov. 10, 2020), plaintiff filed this health care liability suit against defendant medical center and four individual employees of the center. Prior to filing suit, she sent five pre-suit notices to the center’s business address. Four of the notices were addressed to the four individual defendants and the fifth was addressed to Pamela Bishop, who was the medical center’s administrator. In neither the address, the address block on the letter, nor the greeting was Ms. Bishop’s role as administrator addressed. Instead, the letter was simply written to Pamela Bishop.
Plaintiff voluntarily dismissed the four individual defendants, and then defendant medical center moved to dismiss based on plaintiff’s failure to give proper pre-suit notice. Defendant asserted that the notice addressed to Ms. Bishop did not fulfill the statutory requirements, and the trial court agreed. On appeal, dismissal was affirmed.
Expert affidavit created issues of fact to withstand summary judgment in HCLA case
Where an HCLA plaintiff presented expert testimony that defendant doctor deviated from the standard of care for a patient in respiratory distress by “failing to provide necessary treatment before ending his shift,” summary judgment for defendant was reversed because genuine issues of material fact existed.
In Davis v. Ellis, No. W2019-01367-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2020), plaintiff’s wife was admitted to the emergency room and diagnosed with pneumonia. The following day at 4:00 pm, she was examined by defendant doctor, who was the on-call intensivist. Defendant noted that the patient was awake and alert but that her oxygen saturation level was 93% and that her “respiratory condition had progressively worsened over the past 24 hours.” Defendant “did not order intubation at that time but referred [the patient] to the ICU for observation.” Defendant’s shift ended two hours later.
By 7:30 pm, the patient’s oxygen saturation level had dropped to 82%, and the intensivist who was on call ordered that she be put on non-invasive, positive-pressure face mask ventilation. Around 10:00 pm, her oxygen levels began falling again and were down to 74% by 11:00 pm. The emergency room doctor then tried to intubate her but eventually called anesthesiology for assistance. The patient was finally intubated, but she died approximately six hours later.
Non-compliant HIPAA Authorization Leads to Dismissal of Tennessee Malpractice Case
Where a Tennessee HCLA plaintiff sent a HIPAA authorization that failed to allow the defendants to obtain records from each other, the trial court’s finding that plaintiff did not comply with the statutory requirements and that the suit was thus time-barred was affirmed.
In Dial v. Klemis, No. W2019-02115-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2020), plaintiff was the daughter of a patient who died after a cardiac stent procedure. The procedure was performed by defendant Dr. Klemis, who was an employee of defendant Stern Cardiovascular Foundation, and the procedure occurred at defendant Methodist Hospital, with defendant Methodist employees assisting.
Before filing this healthcare liability suit, plaintiff sent pre-suit notice as required by the HCLA, including a HIPAA authorization pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E). Plaintiff admitted, though, that the HIPAA forms she sent did “not allow each of the Defendants to obtain complete medical records from each other provider being sent notice,” which is a requirement of the HCLA. Defendants filed motions to dismiss asserting that because plaintiff’s HIPAA authorizations were non-compliant, she was not entitled to the 120-day extension of the statute of limitations granted by the HCLA, and that her suit which was filed more than one year after the allegedly negligent procedure was therefore time-barred. The trial court agreed, dismissing the case, and the Court of Appeals affirmed.
Sanctions based on HCLA Certificate of Good Faith Denied
Where defendant pharmacists alleged comparative fault against a doctor and filed a certificate of good faith that complied with all the necessary requirements of the statute, the trial court’s decision to deny sanctions based on the allegation that the “certificate of good faith was supported by the written statement of an incompetent expert witness” was affirmed, even though the doctor’s motion for summary judgment had been successful. The Court of Appeals explained that “nothing in the express language of section 29-26-122 requires that a party asserting fault against another guarantee that his or her expert is competent or that the claim will ultimately prevail.”
In Smith v. Outen, No. W2019-01226-COA-R3-CV (Tenn. Ct. App. Oct. 9, 2020), plaintiff filed an HCLA suit against defendant pharmacists for dispensing the wrong medicine to plaintiff. In her complaint, plaintiff stated that when her doctor realized she had been given the wrong medicine by the pharmacists, he ordered her to stop the medicine immediately. Defendant pharmacists filed an answer alleging comparative fault against the doctor, asserting that he should have had plaintiff taper off the medication rather than stop it immediately. The pharmacists’ attorney filed a certificate of good faith supporting their comparative fault allegation, as required by the HCLA, and plaintiff amended her complaint to add the doctor as a defendant.
Pharmacist not qualified to give causation testimony in medically complex HCLA case.
Where plaintiff’s pharmacist expert was deemed incompetent to offer necessary causation testimony against the pharmacy defendants in an HCLA suit based on his inability to rule out possible causes of death in a complex medical case, summary judgment for those defendants was affirmed.
In Kidd v. Dickerson, No. M2018-01133-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2020), plaintiff was the daughter of a patient who died after a stroke. The patient had multiple health issues at the end of her life, and the proper diagnosis and medication prescribed for blood clots was in contention in this HCLA suit.
On September 30, 2014, the patient, who was 82 years old, went to Family Health Group (“FHG”) with pain and swelling. She was seen by Dr. Ball and diagnosed with a blood clot. She returned on October 7 and was seen by Dr. Farmer, who also diagnosed a blood clot and prescribed a blood-thinning medicine called Pradaxa, which the patient had filled that day by the pharmacy defendants. The patient returned to FHG on October 13 for a follow-up appointment and saw Dr. Ball again, then returned on October 20 and was seen by a nurse practitioner, who found that the patient was “ill appearing,” that she had an “irregularly irregular” cardiovascular rhythm, and that she should be referred to a cardiologist that week.
Nursing home arbitration agreement signed by patient’s daughter not enforceable.
Where a daughter signed admission paperwork for her mother upon the mother’s admission to a nursing home, but the mother was mentally competent and did not give the daughter authority to sign the paperwork, an arbitration agreement included in the paperwork was unenforceable.
In Manley v. Humboldt Nursing Home, Inc., No. W2019-00131-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2020), plaintiff filed a wrongful death action against defendant nursing home after her mother passed away. Defendant filed a motion to compel arbitration based on an arbitration agreement included in the admission paperwork. It was undisputed that the admission paperwork was signed by the daughter, even though the mother was “competent when she was admitted” and the daughter “did not possess a power of attorney to act on behalf of her mother.”