Articles Posted in Medical Malpractice

The death of a child is a heart-wrenching experience, and more so when family members believe it could have been prevented.  In such situations, a Tennessee medical malpractice attorney can handle the procedural aspects of a negligence lawsuit, while the family focuses on healing.  A February 6, 2018 medical malpractice case before the Court of Appeals of Tennessee was brought by the parents of an infant who died in childbirth.  After a jury ruled in favor of the medical provider defendants, the plaintiffs appealed.  The plaintiffs’ lawyers argued a technical point on appeal concerning the jury selection, and they ultimately succeeded in reversing the verdict and obtaining a new trial.sleeping child

The plaintiffs in the case, individually and as administrators of the child’s estate, filed a complaint against the hospital, the treating physician, and the obygn practice, alleging negligence and vicarious liability for the wrongful death of their child.  During the jury selection process, the plaintiffs requested eight peremptory challenges, arguing that there were two party plaintiffs.  The trial court denied the request, finding that it was only the estate’s lawsuit, and granted the plaintiffs four peremptory challenges with two additional challenges for alternates.  The plaintiffs could therefore strike only four potential jurors from the selection pool without cause.

One of the arguments on appeal was whether the trial court erred in limiting the plaintiffs to less than eight peremptory challenges.  A peremptory challenge is a right provided by statute, permitting a party plaintiff to exclude a prospective juror without giving any reason for it.  The statute at issue allows four challenges for the party plaintiff, and in the event there is more than one plaintiff, it provides for an additional four challenges.  The initial question for the court, therefore, was whether the wrongful death action belonged to one plaintiff, i.e., the estate, or whether both parents named in the lawsuit constituted two plaintiffs.

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After a loved one has died, speaking to an attorney about your legal recourse can be difficult.  Although there are deadlines for filing a Tennessee personal injury or wrongful death action, in some cases, you may be able to proceed with your claim despite the time that has passed.  In an August 30, 2017 case, the Supreme Court of Tennessee explained that a wrongful death action is the right of the surviving spouse, rather than the decedent.  The holding allowed the surviving spouse to bring a wrongful death action, even though his amended complaint was filed after the expiration of the limitations period.glasses

The husband of the decedent filed a pro se wrongful death action, without legal representation, against the hospital and doctors who treated his wife.  He filed the lawsuit in court shortly before the one-year statute of limitations expired.  After the statute of limitations period had expired, the husband hired a personal injury lawyer to represent him, and his lawyer filed an amended complaint.  The defendants in the case argued that the amended complaint was not effective as of the date of the husband’s original complaint, and therefore, his case should be dismissed as time-barred by the statute of limitations.  The defendants alleged that the husband’s pro se complaint was filed in a representative capacity on behalf of the decedent and the other statutory beneficiaries, their two daughters.

In Tennessee, a person who is not an attorney may represent himself in court on his own behalf, but he cannot litigate on behalf of another person or entity.  On appeal, the primary issue was whether, under Tennessee’s wrongful death statutes, the husband’s wrongful death case was his own case, brought pursuant to his right to self-representation, or whether it was brought in a representative capacity on behalf of the decedent or the statutory beneficiaries.  The Supreme Court of Tennessee first observed that a plain reading of Tennessee’s wrongful death statute provides that the decedent’s right of action passes to the surviving spouse upon the decedent’s death.  As a result, when the surviving spouse files a wrongful death action, he is not acting for the decedent or as a legal representative of the decedent.  Instead, the surviving spouse may file a wrongful death action for the benefit of himself and other beneficiaries.

Although Tennessee law provides the deadline by which a claim must be filed, there are exceptions that may extend that time limit.  In a May 26, 2017 decision, the Court of Appeals of Tennessee considered whether any exceptions applied in a medical malpractice action filed by a mother and her child on September 29, 2015.  The plaintiffs alleged that they suffered permanent injuries resulting from the defendant health care providers’ negligent care during the child’s birth in June 2012.  The trial court granted the defendants’ motion to dismiss the plaintiffs’ claims, based on the expiration of the statute of limitations.ultrasound

Health care liability actions in Tennessee are generally subject to a one-year statute of limitations that runs from the date on which the claim accrues.  There is an important exception under the Health Care Liability Act, however, if the alleged injury is not discovered within one year.  In such cases, the period of limitation is extended to one year from the date of the discovery, but no more than three years after the date on which the alleged negligence occurred (subject to certain exceptions).  This statute is commonly known as a statute of repose, since it establishes an absolute, three-year limit upon the existing statute of limitations.  Although the three-year statute of repose is not tolled during a plaintiff’s minority, it may be extended by 120 days if the plaintiff provides the defendants with pre-suit notice of his or her potential claims as required by the Act, before the statute of repose expires.

In the case, the plaintiffs alleged that the defendants’ negligence occurred on June 21, 2012.  Accordingly, the three-year statute of repose expired on June 21, 2015, well before the plaintiffs’ complaint was filed on September 29, 2015.  On appeal, one of the dispositive issues for the court was whether the plaintiffs provided the defendants with sufficient pre-suit notice of their claims, which would extend the statute of repose by 120 days to October 19, 2015 and save the child’s claim from being dismissed.

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The Tennessee Health Care Liability Act (THCLA) covers injuries arising out of medical treatment provided by health care professionals.  In a relevant decision issued on May 2, 2017, the Court of Appeals of Tennessee reviewed a personal injury claim that the trial court had determined was subject to the THCLA. ambulance

In the case, the plaintiff alleged that, while he was strapped to a gurney, an EMT negligently hit him in the face with his fist.  The plaintiff filed his lawsuit against the EMT and the EMT’s employer.  The defendants asserted that the plaintiff’s action was, in essence, a health care liability action because the EMT was a health care provider, and the plaintiff’s injuries were related to the provision of health care services.  The trial court agreed and dismissed the plaintiff’s claims with prejudice, based on his failure to file a certificate of good faith as required by the THCLA.  The plaintiff’s appeal followed.

In Tennessee, civil actions alleging that a health care provider has caused an injury related to the provision of, or the failure to provide, health care services are health care liability actions subject to the THCLA.  In a health care liability action in which expert testimony is required under the THCLA, the plaintiff must file a certificate of good faith with the complaint.

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There are many kinds of damages that may arise out of a personal injury case, from medical expenses and lost income to compensation for the loss of a family member. In a March 29, 2017 case before the Court of Appeals of Tennessee, the matter on review concerned a health care liability action brought by the surviving wife of a patient against the hospital that treated him. After the death of her husband, the plaintiff filed a claim against the hospital, alleging that his death was a result of negligent medical treatment. Following a trial, the jury returned a verdict in favor of the defendant. On appeal, the plaintiff argued that the trial court erred in several of its evidentiary rulings and jury instructions.ambulance

In 2008, the deceased party in the case had fallen over 20 feet while working on a roof and suffered critical injuries, including multiple broken bones and extensive internal bleeding. His injuries necessitated a month-long stay in the intensive care unit at the defendant’s hospital. The patient was discharged to a rehabilitation facility, but he returned to the hospital several times over the following months for additional treatment. Having undergone multiple tracheotomies, he continued to experience breathing difficulties and was scheduled for another surgery. Sadly, he collapsed and died on the day before the scheduled surgery. His wife, as his widow and the administrator of his estate, filed a health care liability action against the defendant, alleging that its doctors were negligent in treating her husband’s injuries and that their negligence caused his death.

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In a recent decision, the Court of Appeals of Tennessee addressed the issue of whether the pro se complaint filed by the decedent’s surviving spouse tolled the statute of limitations in a medical malpractice and wrongful death action. In Beard v. Branson (Tenn. Ct. App. Mar. 31, 2016), the decedent suffered complications after undergoing colon surgery. She was transferred by helicopter to a medical center in Nashville, where it was determined she was in septic shock. While undergoing emergency surgery, the decedent went into cardiac arrest and died. The decedent’s husband filed a pro se complaint against the defendants, asserting medical malpractice and requesting damages for the decedent’s pain and suffering, economic loss, and other damages.medical-1240480-639x910

The defendants filed motions to dismiss the wrongful death action on the grounds that the statute of limitations had expired, arguing that the pro se complaint filed by the decedent’s husband was nullified because he was attempting to assert the decedent’s claims in a representative capacity. The trial court ruled in favor of the plaintiff, finding that Tennessee’s wrongful death statute authorized the surviving spouse to maintain an action on behalf of himself. After a trial, the jury returned a verdict in favor of the plaintiff, awarding damages of $750,000.

On appeal, the court examined Tennessee’s wrongful death statute to determine whether the petition was timely filed. The court determined that the plain language of the statute established that the only cause of action in a wrongful death suit is that of the decedent against the wrongdoer. The court then concluded that, despite the fact that they may recover damages for individual losses, neither the decedent’s husband nor her children had their own individual claims to assert in the case. Therefore, the decedent’s survivors could only assert a cause of action in a representative capacity.

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The Court of Appeals of Tennessee recently discussed the significance of the amendments to the Tennessee Civil Justice Act of 2011 in the negligence case of Osunde v. Delta Med. Ctr. (Tenn. Ct. App. Feb. 10, 2016). In Osunde, the plaintiff filed a complaint alleging claims of medical malpractice and common law negligence after she suffered injuries while being treated at the defendant’s hospital. When the plaintiff failed to disclose any experts pursuant to the trial court’s scheduling order, the defendant moved for summary judgment against the plaintiff. The trial court granted the defendant’s motion as to the health care liability action, but it denied summary judgment as to the plaintiff’s common law negligence claim. The defendant was granted leave to file an interlocutory appeal as to the negligence claim.ankle-x-ray-1430507-639x847

In Osunde, the plaintiff sought treatment from the defendant’s hospital for pain in her left ankle. A radiology technician instructed the plaintiff to stand on a stool to receive an x-ray. As she stepped off the stool, the plaintiff fell and sustained a right fibular fracture. On appeal, the primary issue for the court was whether the common law negligence claim asserted by the plaintiff fell outside the context of a health care liability action, and whether it could be supported in the absence of expert proof.

The Tennessee Civil Justice Act of 2011 statutorily abrogated case law regarding the approach for distinguishing ordinary negligence and health care liability claims in Tennessee. The Tennessee Health Care Liability Act (THCLA) now contains a comprehensive and broad definition of what constitutes a health care liability action:  any civil action alleging that a health care provider has caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based. Under the statute, a “health care provider” includes an employee of a health care provider, such as a physician, nurse, or technician, and the meaning of “health care services” includes staffing, custodial or basic care, positioning, hydration, and similar patient services.

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In an important opinion that may affect currently pending cases, the Tennessee Supreme Court in Rye v. Women’s Care Ctr. of Memphis, MPLLC (Tenn. Oct. 26, 2015) reconsidered the high burden placed on defendants seeking summary judgment, ultimately overruling prior case law to conform to the federal standard as well as the statutory standard enacted by the Tennessee legislature in 2011. In Rye, the patient and her husband brought a health care liability action against an obstetrician and a hospital, arising out of treatment rendered to the patient while she was pregnant. Since the suit was filed in 2009, the lower courts evaluated the defendant’s motion for summary judgment based on Hannan v. Alltel Publ’g Co., 270 S.W.3d 1 (Tenn. 2008), rather than Tenn. Code Ann. § 20–16–101 (Supp. 2014), which applies to actions filed on or after July 1, 2011. The Tennessee Supreme Court granted the appeal and addressed the question of whether the summary judgment standard articulated in Hannan should be reconsidered for an action filed before July 1, 2011.statue-of-justice-1539051-639x818

In the Rye opinion, the court reviewed the history of summary judgment in Tennessee, including the adoption of Rule 56 and prior case law, as well as United States Supreme Court decisions in the Celotex trilogy discussing summary judgment standards. Although Tennessee Rule 56 was patterned upon Federal Rule 56, the court noted the “departure” of Tennessee law from the federal standard beginning in Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), continuing in McCarley and subsequent decisions, and ultimately culminating in Hannan. In Hannan, the holding had created a particularly high standard for defendants seeking summary judgment, largely shifting the burden of production away from the plaintiff (who would bear the burden of proof at trial) onto the defendant. It essentially required the defendant to disprove the plaintiff’s claim. Recognizing this change, the Tennessee General Assembly enacted § 20–16–101 in 2011 with the stated purpose of overruling Hannan.

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A newly released opinion by the Tennessee Court of Appeals analyzes the statute of limitations for filing a medical malpractice suit. The issues before the Court of Appeals were whether the plaintiff timely filed her suit, and whether she could voluntarily dismiss her claim and re-file the action within the statute of limitations, or the savings

In Phillips v. Casey, et al., the plaintiff’s husband died following a bilateral tonsillectomy surgery. The plaintiff filed a health care liability action against her husband’s doctors exactly one year after his death. Since her initial complaint did not comply with the pre-suit notice requirements for medical malpractice actions, the plaintiff voluntarily dismissed the suit without prejudice and re-filed it. The defendants filed a motion to dismiss, claiming that the re-filed suit was barred by the statute of limitations.

Under Tennessee law, the statute of limitations in health care liability actions is one year. However, under the discovery rule, the statute of limitations begins to run when the plaintiff discovers, or reasonably should have discovered, the occasion, manner, and means that caused the injury, as well as the person who caused the injury. Furthermore, the plaintiff must have actual or constructive knowledge of the injury, the wrongful conduct that caused the injury, and the person who caused the injury. Actual knowledge occurs when an expert provides an opinion that the act constituted malpractice, or when the doctor admits malpractice. Constructive knowledge occurs when a plaintiff is aware, or should have been aware, of facts that would put a reasonable person on notice that the injury was sustained due to a doctor’s negligence.

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time-is-going-1415573-mThe Tennessee Court of Appeals recently had before it a case claiming medical malpractice that stemmed from the allegedly negligent treatment of a woman’s rheumatoid arthritis, which the plaintiffs claim resulted in her death.

In the case, Johnson v. Floyd, Tenn. Ct. App. (2014), the plaintiffs had filed suit on behalf of their mother alleging medical malpractice, but then they entered a voluntary dismissal of the action. Just short of a year later, they attempted to reinstate their suit by filing a second complaint and serving the defendants with notice.

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