Articles Posted in Medical Negligence

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.

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading

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.”

Continue reading

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.

Continue reading

Where plaintiff could only show that his expert in an HCLA case was a neurosurgeon consultant during the year prior to the incident, yet the alleged negligence was committed by a medical assistant and licensed practical nurse (LPN) in an urgent care clinic, plaintiff’s expert was not qualified to testify and summary judgment was affirmed.

In Estate of Shelton v. Greeneville Urgent Care and Occupational Medicine Clinic, No. E2018-00862-COA-R3-CV (Tenn. Ct. App. June 24, 2019), plaintiff had gone to defendant urgent care clinic seeking pain medication. A medical assistant there asked him to get on the examination table. According to plaintiff, he told the assistant that he could not get onto the table, but she insisted, and while he was using a stool to get up, the “stool slipped or moved causing Plaintiff to lose his balance and fall.” Though the severity of the fall was disputed and there was no fall documented in plaintiff’s file, plaintiff was seen by a nurse practitioner who arranged for him to be x-rayed at the adjacent hospital. He was sent home after the x-ray, despite his complaints of pain, but was called the next day and told to return to the hospital for treatment for a broken back. Plaintiff eventually had surgery and physical therapy.

Plaintiff filed an HCLA claim against the clinic and the hospital, alleging that the stool was dangerous and that the clinic staff negligently insisted that he use it, and that “the Hospital failed to promptly diagnose and treat his injuries.” Plaintiff identified Dr. Edward Kaplan as an expert, who was a neurosurgeon consultant, and defendant filed a motion for summary judgment, arguing that plaintiff’s expert should be disqualified. The trial court agreed, granting summary judgment, and the Court of Appeals affirmed.

Continue reading

When an HCLA plaintiff decides to serve pre-suit notice via personal service, such service must actually be completed in accordance with the statute in order for the plaintiff to take advantage of the 120-day extension of the statute of limitations.

In Webb v. Magee, No. 2018-01305-COA-R3-CV (Tenn. Ct. App. April 30, 2019), plaintiffs had filed a previous healthcare liability claim under the HCLA against multiple parties, including Dr. Charles Roberson. Plaintiffs attempted to personally serve Dr. Roberson with pre-suit notice within the one-year statute of limitations, but service of the pre-suit notice was not actually completed until almost two months later. One week after Dr. Roberson received pre-suit notice, plaintiffs filed their initial suit.

Continue reading

When a plaintiff filed suit against a massage therapist and his employer alleging various claims based on an intentional sexual assault, the requirements of the HCLA did not apply to the intentional tort claims against the massage therapist. For the negligent retention or supervision claim against the employer, however, a certificate of good faith was required under the HCLA.

In Jackson v. Burrell, No. W2018-00057-COA-R3-CV (Tenn. Ct. App. Jan. 16, 2019), plaintiff alleged that during a massage, defendant massage therapist sexually assaulted her, which resulted in a genital infection and eventual outpatient surgery. Plaintiff filed suit against the therapist and his day spa employer, alleging assault and battery, intentional infliction of emotional distress, and false imprisonment against the therapist, and asserting claims for vicarious liability and negligent supervision, retention and training against the employer. Plaintiff gave pre-suit notice of her claims pursuant to the HCLA, but she did not file a certificate of good faith with her complaint. Defendants both filed motions for summary judgment based on the lack of a certificate of good faith, and the trial court granted the motions. On appeal, summary judgment as to the therapist was reversed, but the ruling for the employer was affirmed.

Continue reading