Medical Negligence

September 21, 2020

Unconscionable fee-splitting provision in arbitration agreement could be severed from agreement as a whole.

Although a fee-splitting provision in an arbitration agreement was unconscionable based on the plaintiff’s financial situation, the Court of Appeals ruled that the fee-splitting provision was severable and that defendant’s motion to compel arbitration should have been granted.

In Stokes v. Allenbrooke Nursing and Rehabilitation Center LLC, No. W2019-01983-COA-R3-CV (Tenn. Ct. App. Sept. 15, 2020), plaintiff filed an HCLA complaint against defendant nursing home alleging that he had contracted sepsis due to the negligence of one of defendant’s nurses, and that he had suffered severe permanent injuries. Defendant filed a motion to compel arbitration, attaching a three-page arbitration agreement that plaintiff had signed on two occasions. The agreement contained a provision stating that the parties would split the arbitration expenses equally. Plaintiff opposed the motion on a “cost-based unconscionability defense,” arguing that plaintiff would never be able to afford paying half of the arbitration costs. Defendant responded that this argument was moot, as it had offered to cover the entire cost of the arbitration. After a hearing, the trial court refused to compel arbitration, finding that the agreement was unconscionable. This appeal followed.

July 2, 2020

Damage Award Affirmed in Brachial Plexus Injury Case

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

The Seventh Circuit Court of Appeals has affirmed a $8.3 million damage award in the brachial plexus injury case brought under the Federal Tort Claims Act.

The damage award was broken down as follows:

$64,967.77 for past medical expenses
$80,000 for future medical expenses
$2,653,000 in lost earnings
$1,500,000 for the permanent disfigurement of his right arm
$2,000,000 for the deprivation of a normal life and
$2,000,000 for pain, suﬀering, and emotional distress.

June 30, 2020

Second HIPAA authorization sent after statute of limitations had run could not cure previous defects.

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

Where plaintiff’s initial HCLA pre-suit notice included HIPAA authorizations that were left blank, and plaintiff’s supplemental authorization that attempted to correct the problem was sent after the one-year statute of limitations on his claim had run, dismissal was affirmed.

In Carrasco v. North Surgery Center, LP, No. W2019-00558-COA-R3-CV (Tenn. Ct. App. May 28, 2020), plaintiff filed a health care liability suit against defendants based on “injuries sustained by a guidewire left in the plaintiff’s neck following a procedure.” Prior to filing his suit, plaintiff sent defendants a pre-suit notice letter on August 31 and September 1, 2016, that was accompanied by the HIPAA authorizations required by Tenn. Code Ann. § 29-26-121(a)(2)(E). The authorizations, however, contained blanks that were not filled in, and “plaintiff concede[d] that the authorizations did not substantially comply with the requirements of the [HCLA].” Later, on November 2, 2016, plaintiff sent new authorizations which purportedly corrected the issues with the first set of authorizations. In paragraph three of the new authorizations, however, the information to be used or disclosed named “Narinder Sanwal, Deceased,” instead of plaintiff.

Defendants filed a motion to dismiss based on the noncompliant HIPAA authorizations, which the trial court granted, and the Court of Appeals affirmed.

June 16, 2020

Notice letter could not cure deficiencies in HIPAA authorization.

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

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.”