Medical Negligence

June 16, 2020

Notice letter could not cure deficiencies in HIPAA authorization.

Where plaintiff failed to include one of the core elements in the HIPAA authorizations sent with her HCLA pre-suit notice, she could not rely on her notice letter to “cure any deficiency on the authorization document.”

In Hancock v. BJR Enterprises, LLC, No. E2019-01158-COA-R3-CV (Tenn. Ct. App. May 14, 2020), plaintiff sued defendants as power of attorney for patient, who allegedly suffered skin problems, pressure sores, and severe sepsis after his treatment by defendants. Plaintiff sent a timely pre-suit notice “packet” to defendants, which included a cover letter directed to each provider, an attached list of the names and addresses of all providers being sent notice, and a HIPAA authorization.

June 12, 2020

No magic words required to make HIPAA authorization compliant

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

Where a HIPAA authorization included with HCLA pre-suit notice “permits a defendant to obtain medical records in actual fact but simply does not include the word ‘obtain,’ it is still compliant.”

In Combs v. Milligan, No. E2019-00485-COA-R3-CV (Tenn. Ct. App. May 1, 2020), plaintiffs filed a health care liability suit against several defendants based on a surgically inserted port that became infected and caused permanent injuries. Before filing their complaint, plaintiffs sent the defendants pre-suit notice and included a HIPAA authorization as required by the HCLA. The authorization was accompanied by a letter that stated: “Attached please find a list of providers to whom a substantially similar notice is being sent…[Plaintiff] has executed a HIPAA-compliant medical authorization authorizing you to obtain complete medical records from [same list of providers].”

June 8, 2020

Analyzing prejudice to defendant when HCLA pre-suit notice is deficient.

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

When a defendant has filed a motion to dismiss challenging whether an HCLA plaintiff fulfilled the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121, “prejudice is relevant to the determination…but it is not a separate and independent analytical element.”

In Martin v. Rolling Hills Hospital, LLC, No. M2016-02214-SC-R11-CV (Tenn. April 29, 2020), plaintiffs filed an HCLA case against multiple defendants based on the death of their daughter. Plaintiffs gave timely pre-suit notice, but the HIPAA authorization they sent with their notice failed to include “three of the six core elements federal law requires for HIPAA compliance.” Specifically, the authorizations “failed to list the name and address of the provider authorized to release medical records,” failed to list an expiration date, and “failed to provide a description or documentation of [plaintiff’s] authority to act for the decedent.”

June 2, 2020

Claim that counseling records were falsified fell under health care provider liability

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

Where plaintiff’s claims were all based on the allegation that defendant counselors falsified or altered his minor children’s counseling records, the claims fell within the HCLA and pre-suit notice and a certificate of good faith was required.

In Cathey v. Beyer, No. W2019-01603-COA-R3-CV (Tenn. Ct. App. April 24, 2020), plaintiff was the father of two minor children and was not married to the children’s mother. The mother took the children to see the two defendants, both of who were licensed professional counselors. One defendant performed an initial psychological evaluation on the children, and the other provided counseling to them for approximately two months.

When plaintiff learned that the children had been in counseling, he requested the children’s records from defendants and was provided copies. During a subsequent custody dispute, he allegedly received a different copy of the records via a subpoena to the child’s mother, which he asserted showed that defendants had “falsified the records they tendered to him.”

May 29, 2020

Expert practicing in Tennessee under licensure exemption not qualified as HCLA expert

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

When a doctor is practicing in Tennessee but not licensed in Tennessee or in a contiguous state, but is instead practicing under a statutory licensure exemption as part of a fellowship program, he does not meet the requirements to testify as to standard of care and breach of said standard under the HCLA.

In Young v. Frist Cardiology, No. M2019-00316-SC-R11-CV (Tenn. April 20, 2020), plaintiff filed a health care liability case based on the alleged negligent treatment of decedent during a cardiac procedure and his subsequent death. Pursuant to the case management order, plaintiff identified Dr. Jason Rytlewski as “the expert witness who would testify that [defendant] deviated from the applicable standard of care in his treatment of [decedent].”

Defendants filed motions for summary judgment, asserting that Dr. Rytlewski was not competent to testify because he “did not have a medical license in Tennessee or a contiguous state during the year before [decedent’s] heart procedure, as required by Tennessee Code Annotated section 29-26-115(b).” Plaintiff responded that Dr. Rytlewski was “familiar with the standards of acceptable professional practice for [decedent’s] heart procedure in the Davidson County area,” and that the “Tennessee Board of Medical Examiners had granted Dr. Rytlewski an exemption that allowed him to practice medicine without a medical license during his fellowship at Vanderbilt University.” Plaintiff argued that due to this exemption, the licensure requirement of Tenn. Code Ann. § 29-26-115(b) did not apply to him, as it only applies “if one is required to have a license.”

May 27, 2020

HIPAA Form Releasing Records to Plaintiffs’ Counsel Not Compliant.

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

Where plaintiffs sent pre-suit notice to 45 health care providers, but the HIPAA authorization included with the notice only authorized disclosures to plaintiffs’ counsel, dismissal of their health care liability claim based on failure to comply with the statutory requirements was affirmed.

In Owens v. Stephens, No. E2018-01564-COA-R3-CV (Tenn. Ct. App. April 16, 2020), plaintiffs filed an HCLA claim against numerous defendants alleging that negligent care of plaintiff mother resulted in the death of her child. Before the suit was filed, plaintiffs sent pre-suit notice pursuant to the HCLA to 45 health care providers. This notice included a HIPAA authorization for the release of the mother and child’s medical records, but the release stated that it permitted providers “to disclose my entire medical record…to BREEDING & HENRY, LLC…” Breeding & Henry, LLC was the law firm representing plaintiffs.

May 18, 2020

Pharmacy cannot use seller shield defense in health care liability case.

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

When a complaint asserts a health care liability (formerly known as “medical malpractice”) claim against a pharmacy and/or pharmacist, the pharmacist defendants are “barred from asserting the ‘seller shield’ defense set forth in the Tennessee Products Liability Act, Tenn. Code Ann. § 29-28-106.”

In Heaton v. Mathes, No. E2019-00493-COA-R9-CV (Tenn. Ct. App. April 3, 2020), plaintiffs filed an HCLA claim against several defendants based on complications suffered after using a certain prescription drug. The named defendants included the pharmacy and pharmacists who filled the prescription. According to plaintiff, his use of prescription Victoza resulted in pancreatitis. Plaintiff had begun using the drug in 2014, and approximately a year later the FDA issued a warning regarding the “risk of acute pancreatitis with the medication’s use.”

April 27, 2020

Fall Off Examination Table Within Health Care Liability Act

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

Plaintiff’s allegation that the examination table provided during a doctor’s appointment was unsafe fell under the Health Care Liability Act (HCLA) and was thus subject to dismissal due to plaintiff’s failure to provide pre-suit notice.

In Johnson v. Knoxville HMA Cardiology PPM, LLC, No. E2019-00818-COA-R3-CV (Tenn. Ct. App. Mar. 24, 2020), plaintiff had suffered from dizziness and fatigue, and he had a pacemaker implanted. In a later visit “for reprogramming of his pacemaker and other issues,” plaintiff fell off the examination table and hit the wall at defendant’s office “due to a fainting spell, resulting in injuries to [his] neck.”

Plaintiff filed suit alleging negligence, and his allegations were couched in premises liability language. Plaintiff asserted that defendants were negligent by failing to provide an examination table with railing and/or by failing to have padding. Plaintiff argued that “because Defendants knew that he suffered from fatigue and dizziness, they should have been aware of the risk associated with leaving him unattended on the examination table.”

April 22, 2020

Court: No Fraudulent Concealment Present

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

Where an HCLA plaintiff sought to add a nurse practitioner’s supervising doctor and employer more than three years after the negligent act occurred, and plaintiff could not show that the new defendants were “aware of the wrong,” plaintiff could not prove the fraudulent concealment exception to the HCLA statute of repose and summary judgment should have been granted.

In Tucker v. Iveson, No. M2018-01501-COA-R3-CV (Tenn. Ct. App. Mar. 11, 2020), plaintiff had a bad cough on Christmas Eve 2009 and believed she had bronchitis. Plaintiff’s friend, Ms. Johnson, suggested that her friend, Nurse Iveson, might be able to help. “Nurse Iveson was employed as a nurse practitioner at Sun Medical Express Walk In Clinic,” but she was not working that day and was out on personal business when Ms. Johnson contacted her. Either Ms. Johnson or plaintiff explained plaintiff’s symptoms to Nurse Iveson, who then wrote plaintiff a prescription for an antibiotic, oral steroids, and an inhaler. Ms Johnson retrieved the prescription and took it into Walgreens, and plaintiff later picked the prescription up. Some time after taking the medications plaintiff began experiencing tendonitis and was told by her physician “that the most likely cause of her condition was the medication prescribed by Nurse Iveson.” Plaintiff alleged that neither Nurse Iveson nor anyone at Walgreens told her that “one potential side effect of the antibiotic was tendonitis or that the risk of tendonitis increased if the antibiotic was taken with steroids.”

February 26, 2020

Day on Torts Nugget: Tennessee Medical Malpractice Filings and Trials

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

Data has been released that shows the number of Tennessee medical malpractice (now called health care liability actions) filed and disposed of for the year ending June 30, 2019.

A total of 422 claims were filed in our state courts in FY 2019, about the same as the previous year (416). The courts disposed of 385 cases in FY 2019, compared with 382 the previous year.

Only 27 of the cases went to trial in FY 2019, 17 of which were tried to a jury and 10 of which were non-jury trials. In FY 2018 there were 18 total trials, 13 of which were jury trials and 5 of which were non-jury trials.