Medical Negligence

February 20, 2020

Omission in Appellate Filings Result In Loss

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.

January 17, 2020

HIPAA authorization required after plaintiff sent HCLA notice to multiple providers.

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

Where plaintiff only named one provider as a defendant in an HCLA case, but sent pre-suit notice to forty healthcare providers, a HIPAA-compliant medical authorization was required to be sent with her pre-suit notice. Further, a HIPAA form that left blank the section stating who could disclose records to defendant did not substantially comply with the statute.

In Moore-Pitts v. Bradley, No. E2018-01729-COA-R3-CV (Tenn. Ct. App. Dec. 9, 2019), plaintiff filed an HCLA claim against a single defendant. Before filing suit, however, plaintiff sent pre-suit notice to approximately forty healthcare providers. With her pre-suit notice, plaintiff attached a HIPAA authorization, but the authorization left blank the portion listing “the name of the person or entity authorized to provide records to Defendant.” Attached to the authorization was a list of the forty providers who had received the notice.

Defendant filed a motion to dismiss based on the allegedly insufficient HIPAA authorization. The trial court ruled that the authorization provided did not comply with the statute, that plaintiff was thus not entitled to the 120-day extension of the statute of limitations, and that plaintiff’s complaint should be dismissed as time barred. The Court of Appeals affirmed.

January 14, 2020

HCLA certificate of good faith must be separate from complaint

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

In a Tennessee HCLA case, the statutorily required certificate of faith must be a separate document and cannot simply be contained within the complaint.

In Dotson v. State, No. E2019-00325-COA-R9-CV (Tenn. Ct. App. Dec. 3, 2019), plaintiff filed a healthcare liability case against the state based on the alleged negligence of Dr. Brooks, who was a state employee, related to the death of her newborn baby. Because the claim was against a state employee, this suit was filed with the Claims Commission. Plaintiff also filed suit against another doctor and a private hospital in Washington County. When plaintiff filed her complaint with the Claims Commission, she attached a certificate of good faith, but that certificate of good faith contained the caption from the Washington County lawsuit and only mentioned the Washington County defendants, not Dr. Brooks. Within the complaint filed with the commission, however, paragraph 22 tracked the certificate of good faith language found in Tenn. Code Ann. § 29-26-122.

October 31, 2019

HCLA Statute of Limitations Started Before Plaintiff Consulted Expert

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

Where an HCLA plaintiff was aware of injuries suffered by a decedent and had been told by a nurse that she should look into the decedent’s care at the hospital, the statute of limitations began running well before an expert reviewed the decedent’s medical files and opined that the injury was caused by the hospital.

In Daffron v. Memorial Health Care System, Inc., No. E2018-02199-COA-R3-CV (Tenn. Ct. App. Oct. 7, 2019), plaintiff filed a wrongful death action under the HCLA based on the death of her father. The father had diabetes, and plaintiff had been caring for him for some time before he was admitted to the hospital. Plaintiff knew that her father required specific skincare to avoid the development of bed sores. When the father was admitted to defendant hospital, he had no sores, but on November 11, 2013, just 10 days after he was admitted, plaintiff discovered that he had two bed sores on his buttocks. He eventually needed two debridements to treat these sores.

October 4, 2019

Tennessee HCLA defendants required to identify other potential defendants.

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

Where HCLA (Tennessee medical malpractice) defendants knew that their hospital employer was a necessary party under the GTLA yet failed to identify them to plaintiff pursuant to Tenn. Code Ann. §29-26-121(a)(5), plaintiff was entitled to add the hospital under comparative fault statute when it was later identified in defendants’ answers. Plaintiff’s failure to give the hospital pre-suit notice did not change this result.

In Bidwell v. Strait, No. E2018-02211-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2019), plaintiff brought suit on behalf of his wife, who died after being treated, released, and treated again by defendants. Plaintiff gave proper pre-suit notice to the defendants named in his complaint, including two physicians, Dr. Colburn and Dr. Strait. Unbeknownst to plaintiff, both of these doctors were actually employed by Erlanger hospital at the time of the incident, and because Erlanger is a governmental hospital authority, this claim fell under the GTLA.

September 23, 2019

HIPAA Authorizations that Allowed Disclosure of Records Deemed Compliant

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

Where plaintiff sent a HIPAA authorization with his pre-suit notice that was HIPAA compliant but authorized the disclosure of records, rather than the obtaining of records, the Court of Appeals ruled that he substantially complied with the HCLA.
In Short v. Metro Knoxville HMA, LLC, No. E2018-02292-COA-R3-CV (Tenn. Ct. App. Aug. 23, 2019), plaintiff filed a healthcare liability claim against various medical providers related to the treatment of his late wife during her pregnancy. Plaintiff gave timely pre-suit notice to all the relevant defendants, including a notice letter, a list of providers, and “an authorization to disclose Decedent’s entire medical record to each listed provider.” The letter listed relevant providers and stated that “a substantially similar notice” was being sent to each of them pursuant to the HCLA. The letter further provided that a HIPAA authorization was included “authorizing you to obtain complete medical records from” the relevant providers. The letter also stated that plaintiff was not waiving the “common law physician patient privilege,” and that he expected the recipient to “not communicate with any person, other than your attorney, about the care and treatment” of decedent. On the actual HIPAA authorization, plaintiff wrote that the provider was “authorized to make the disclosure” of the “entire record” to the listed providers “for the purpose of a legal matter.”

August 26, 2019

Defective Pre-Suit Notice In Case 1 Bars Use of Savings Statute in Case 2

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

In order to take advantage of the 120-day extension of the Tennessee HCLA provided by giving pre-suit notice, a plaintiff must have provided a HIPAA-compliant medical authorization with the notice.

The case of Webb v. AMISUB (SFH) Inc., No. W2017-02539-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2019), concerned whether a re-filed healthcare liability claim that was filed in reliance on the savings statute was timely, with the Court of Appeals ultimately affirming dismissal of the case. The alleged medical negligence took place on July 26, 2009, and plaintiffs initially gave pre-suit notice on July 21, 2010. That notice included purported HIPAA releases, but “the portion of the forms designating to whom records may be released was left blank.” On September 23, 2010, plaintiffs filed their initial lawsuit, naming as defendants the hospital, a doctor, and four nurses. The doctor and nurses filed a motion for summary judgment, arguing that plaintiffs’ HIPAA authorizations were insufficient, and that they could thus not take advantage of the 120-day extension under the HCLA and the suit was barred by the one-year statute of limitations. The trial court agreed, and after an interlocutory appeal, plaintiffs voluntarily dismissed their claim against the hospital.