Medical Negligence

May 29, 2020

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

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.

February 20, 2020

Omission in Appellate Filings Result In Loss

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

Where the trial court granted summary judgment on two grounds in a Tennessee medical malpractice case, but plaintiff only raised one of the grounds in her appeal, summary judgment was affirmed.

In Lovelace v. Baptist Memorial Hospital-Memphis, No. W2019-00453-COA-R3-CV (Tenn. Ct. App. Jan. 16, 2020), plaintiff filed an HCLA suit after her husband died following treatment at defendant hospital. During his time at the hospital being treated for pneumonia, he developed seven pressure ulcers on his body, and though he was transferred to a different facility, he passed away.

Plaintiff filed this health care liability suit and attached the affidavit of her expert witness, Brenda Moore, who was a “registered nurse with a doctorate of nursing practice.” Nurse Moore was eventually deposed, after which defendant filed a motion for summary judgment. The trial court granted summary judgment to defendant on two grounds: 1) that plaintiff’s identified expert did not provide sufficient causation testimony, and 2) that Nurse Moore was not competent to testify under Tennessee’s HCLA statutes.

February 12, 2020

Inconclusive Causation Testimony Insufficient – Case Dismissed

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

Where a plaintiff’s expert testimony in an HCLA (formerly known as medical malpractice) case was deemed to be “ambiguous and inconclusive” regarding causation, summary judgment for defendant was affirmed.

In Bridges v. Lancaster, No. M2019-00352-COA-R3-CV (Tenn. Ct. App. Dec. 27, 2019), plaintiff had surgery performed by defendant doctor to put an arteriovenous graft in her upper left arm. In recovery, she complained of pain in her left hand, and after being discharged, she returned to the ER with complaints of hand pain. Three days after the first surgery, defendant performed a second surgery to remove the graft. Plaintiff continued to complain of pain, and six days later “a consulting physician documented that plaintiff had no ulnar pulse in her left arm.” Defendant did not order an arteriogram or a CT angiogram. Seventeen days after the second surgery, plaintiff had to have two fingers and part of a third finger removed, and she lost function of most of her left hand.

January 23, 2020

Nursing Home Agreement to Arbitrate – Who Can Bind Patient?

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

Where a nursing home patient’s daughter executed the admission paperwork and arbitration agreement, but the power of attorney the patient had previously executed in favor of her daughter specifically excluded the power to make health care decisions, the arbitration agreement was not enforceable.

In Jones v. Allenbrooke Nursing and Rehabilitation Center LLC, No. W2019-00448-COA-R3-CV (Tenn. Ct. App. Dec. 16, 2019), plaintiff’s mother executed a power of attorney (“POA”) in favor of her daughter in 2007. The POA granted plaintiff power to handle certain property and business transactions, but it specifically stated: “This document does not authorize anyone to make medical or other health care decisions for you.” In 2013, the mother was suffering from dementia and was incompetent, so plaintiff executed nursing home admission documents in connection with having the mother admitted to defendant nursing home. Included in these documents was an arbitration agreement.

January 22, 2020

Defense Claims Counsel Interfered With Ex Parte Interviews of Health Care Providers

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

An order awarding sanctions to defendants after plaintiffs sent a letter to healthcare providers allegedly interfering with ex parte interviews between defense counsel and the deceased’s patients former healthcare providers was not appealable as a final order.

In Ibsen v. Summit View of Farragut, LLC, No. E2018-01249-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2019), plaintiffs brought an HCLA suit against defendants based on the care provided to a now-deceased patient. Defendants “filed a motion for a qualified protective order allowing them to conduct ex parte interviews with a list of [the deceased’s] treating healthcare providers pursuant to Tenn. Code Ann. § 29-26-121(f).” The trial court granted the motion and informed plaintiffs’ counsel that he could “contact the doctors and explain[] to them that this order is voluntary,” but that he could not “contact them and tell them not to participate” or otherwise “interfere with the Defendants’ rights to conduct these interviews[.]”

Defendants later filed a motion for sanctions against plaintiffs “asserting that six letters sent by plaintiffs’ counsel to [the deceased’s] treating healthcare providers violated the Court’s order by attempting to keep the health care providers from taking part in the interviews.”* The trial court agreed that the letters violated the order, and it entered an order imposing sanctions against plaintiffs, including having to pay costs and expenses for defendants related to preparing for and deposing the providers. “The trial court also ordered plaintiffs’ counsel to send a retraction letter to all of the treating healthcare providers he had contacted…” Plaintiffs then sought to appeal this case under Tenn. R. App. P. 3, but the Court of Appeals determined that there was no basis for appeal under that rule.