Medical Malpractice

June 7, 2021

Tennessee Supreme Court Reviews Damages Award in Medical Negligence Case Involving Foreign Object Left in Patient’s Body

Sometimes, the legal definition and the usual definition of a word are different. Take for instance the word “damages.”

In common parlance, “damages” means physical harm to a person or thing, thus impairing its value and/or usual function. If a car sustains “damages” in a collision, we think of this as meaning that there was an impact to the car that make it less useful (a smashed headlight and a damaged radiator due to a head-on collision, for instance) or less valuable (a $50,000 SUV may be worth only $10,000 in its post-crash condition).

However, there is a separate definition in the law for the word “damages,” namely the amount of money claimed or awarded in compensation for injuries suffered in an accident. This means that, when a jury awards “damages” of a certain amount, the court then directs the party against whom the award was made to pay that amount of money to the injured individual. It is important to note that, sometimes, there are limitations on the amount of money “damages” that can be awarded to the plaintiff in an East Tennessee personal injury case. One example is discussed in the case below.

May 21, 2021

Tennessee Court of Appeals Sides with Parents with Regard to State’s Motion for Summary Judgment in Healthcare Liability Case

by Mark Hartsoe

The requirements involved in filing an east Tennessee medical malpractice lawsuit can be very complex. It is, thus, extremely important for a would-be plaintiff in such a case to retain an attorney experienced in these matters as soon as possible after realizing that a medical error may have occurred.

There is a limited time for filing a healthcare liability action, and much is to be done in anticipation of the filing of the actual complaint. Seeking legal counsel sooner rather than later can help ensure that all of the necessary steps are completed in a timely fashion.

Facts of the Case

In a recent healthcare liability and wrongful death case originating in the Tennessee Claims Commission, the plaintiffs were the parents of a stillborn infant who was delivered in December 2017 when the mother was at about 29 weeks’ gestation. The delivery occurred at a hospital owed by the defendant state. The plaintiffs’ suit sought to assert claims for negligence and medical malpractice against several resident physicians and physicians who were employed by the defendant state at the time of the delivery. No claim was presented for damages to the plaintiff mother.

April 23, 2021

Appellate Court Reverses Dismissal of Healthcare Liability Claim Against Tennessee Hospital – Lower Court Had Found the Claim Untimely

by Mark Hartsoe

In a typical Knoxville medical malpractice case, there is a long list of things that must be done before the case is even filed at the courthouse. It can take weeks or months to complete the necessary tasks in many cases.

Accordingly, it is vitally important to talk to a lawyer as soon as you suspect that you or a family member has been harmed due to a healthcare professional’s error. Waiting too long can seriously jeopardize the outcome of your case, as untimely claims will be dismissed by the court.

Facts of the Case

In a recent appellate case, the plaintiff was the next of kin of a woman who died of acute respiratory failure after being a patient at the defendant hospital in January 2018. The plaintiff filed suit in the Circuit Court of Davidson County in May 2019, asserting a claim for healthcare liability pursuant to the Tennessee Health Care Liability Act, codified at Tennessee Code Annotated §§ 29-26-102 et seq. In his complaint, the plaintiff averred that the defendant was “both directly and vicariously liable” under the principles of respondeat superior for the acts and omissions of its employees and agents. A copy of the complaint was mailed to the defendant on December 21, 2018, along with the notice required under Tennessee Code Annotated § 29-26-121.

December 19, 2020

Appeals Court Refuses to Order Sanctions to Physician Against Whom Malpractice Was Asserted by Pharmacy in Tennessee Woman’s Negligence Case

by Mark Hartsoe

Tennessee follows a principle of negligence known as “comparative fault.” Initially established by case law back in the 1990s, this doctrine holds that, in a Tennessee personal injury case in which a plaintiff seeks money damages for injuries allegedly caused by another’s negligence, the finder of fact is to make a finding as to the relative fault of the various parties to the lawsuit.

In other words, the plaintiff’s fault is to be “compared” to that of the defendant. If the defendant is not found to be more at fault than the plaintiff, then the plaintiff’s case fails. (Tennessee is a “modified” comparative negligence state; in some states, the outcome of a case involving two equally negligent parties could differ.)

This idea seems simple enough, at least when there are only one plaintiff and one defendant. However, there are many cases in which this is not so; when there are multiple defendants, for instance, the jury must determine not only the relative fault between the plaintiff and the defendants but also compare the fault of the defendants among them so that, if the plaintiff prevails in the suit, the amount due him or her from each defendant can be determined.

October 23, 2020

Tennessee Trial Court Should Have Given Due Consideration to Litigants’ Motion for Expansion of Time for Service of Process in Personal Injury Lawsuit

by Mark Hartsoe

Timeliness is critically important in personal injury and wrongful death lawsuits. There are deadlines for filing a claim, deadlines for effectuating service of process, and so on.

Failure to file the appropriate paperwork in a timely fashion can mean the end of the plaintiff’s case – and his or her chance of receiving fair compensation for a serious injury. Thus, it is very important that the injured person consult an east Tennessee personal injury attorney who can help him or her comply with all of the procedural requirements of the case.

Facts of the Case

In a recent case, the plaintiffs were a married couple who sought to recover monetary compensation for the alleged negligence of the defendants, an advanced practice nurse and a medical clinic. The plaintiffs began their case by filing a complaint in the Circuit Court of Shelby County on February 24, 2017. Summons were issued to the defendants at the time of the filing of the plaintiff’s suit, but they were returned without having been served. On September 5, 2017, alias summons were issued. These were served on the defendants on December 6, 2017, which was some 92 days after the complaint had been filed.

October 9, 2020

Appellate Court Says That a Tennessee Trial Court Was Correct in Ordering New Trial After Doctor Tried to Shift Blame for Alleged Negligence

by Mark Hartsoe

Doctors and nurses spend many years learning the professions. This does not mean, however, that they never make mistakes. They do, much more often that the general public would like to believe.

When someone is hurt or passes away because of a healthcare practitioner’s mistake, the individual or the family of a deceased patient may be able to seek monetary compensation via an east Tennessee medical malpractice lawsuit. Time of the essence in a medical negligence case, as there are strict deadlines for filing a claim.

The first step in a malpractice case is usually to retain a qualified medical expert to examine the patient’s medical records. If that professional is of the opinion that the would-be defendant breached the applicable standard of care, the next step is filing suit in the appropriate court. Continue reading

August 22, 2020

Tennessee Appeals Court Rules that Dismissal for Failure to Perfect Timely Service of Process in Death Case Was in Error

by Mark Hartsoe

Most everyone has heard the term “file a lawsuit,” but those outside the legal profession may not fully understand what that process entails. For starters, the plaintiff must prepare a formal, written complaint setting forth the basic factual allegations, legal claims, and relief sought.

In addition to the filing of the complaint with the clerk of the court in the county in which jurisdiction is pled, the plaintiff must also file serve a copy of the complaint on the defendant(s) in the case. Generally speaking, this can be done one of two ways: by local sheriff deputies or by a private process server.

There are procedural rules, applicable in East Tennessee personal injury and other civil cases, including time limitations on both the filing of the complaint and the perfecting of service of process, that must be followed. Failure to follow these rules or meet these deadlines can be very detrimental to the plaintiff’s legal rights.

July 8, 2020

Tennessee Supreme Court Says Common Knowledge Exception Applied in Health Care Liability Suit Against Salon for Masseur’s Alleged Sexual Assault

by Mark Hartsoe

Pursuing a Knoxville personal injury case involves many steps. In addition to an investigation of the accident or other event giving rise to the potential litigation, certain paperwork must be filed with the court clerk in order to lodge the case with the appropriate trial court.

In most cases, this paperwork includes a summons and complaint, both of which must be filed with the clerk and served upon the defendant. In some kinds of cases, including those involving health care providers, there are other documents that may also need to be filed in order to perfect the filing of the complaint.

An attorney experienced in these types of cases can help a would-be plaintiff understand the filing requirements, assist him or her in preparation of the necessary documents, and represent the plaintiff’s interests during the litigation and trial of the matter. If an argument arises regarding whether all of the filing requirements have been met, the attorney can also prepare appellate briefs and argue the case in front of the appellate tribunal(s).

April 7, 2020

Tennessee Appeals Court Rules in Plaintiff’s Favor on Pre-Trial Motion in Case Involving Allegedly Dangerous Drug

by Mark Hartsoe

Knoxville medical malpractice cases and product liability lawsuits are typically quite different – different theories of liability, different possible defendants, and different possible damages. It is rare that these two types of cases get “mixed up” or combined into a single lawsuit. However, there are a few exceptions to this general rule. A recent case explores a scenario in which the parties disagreed about the ultimate nature of a lawsuit – and, hence, possible defenses to the plaintiff’s claims – against a doctor, a pharmacy, and some others resulting from an allegedly dangerous prescription medication taken by the plaintiff.

Facts of the Case

The primarily plaintiff in a recent appellate case was a man who was prescribed a certain medication for his diabetes in 2014. The following summer, the Food and Drug Administration issued a risk evaluation and mitigation strategy to warn of the risk of acute pancreatitis for those using the medication. According to the complaint filed by the plaintiff (joined by his wife), he was not warned of this risk by any of the defendants (a doctor, two medical groups, a home delivery pharmacy, and others). The plaintiff was later diagnosed with acute pancreatitis, sepsis, and acute respiratory failure; additional hospitalizations followed, as did a fall that occurred when the plaintiff was in a weakened physical state and which resulted in a severe traumatic brain injury.

The plaintiff’s lawsuit, filed in the Knox County Circuit Court, alleged that he had been damaged as a result of the acute pancreatitis and a subsequent traumatic brain injury caused by his use of the prescription medication and his medical providers’ failure to appropriately “prescribe, counsel, provide, utilize, and/or discontinue this medication.” The plaintiff alleged claims of both strict liability and simple negligence against the manufacturer of the medication; he also asserted health care liability claims against the other defendants. The home delivery pharmacy filed a motion to dismiss the plaintiff’s complaint based upon the “seller shield statute” of the Tennessee Product Liability Act, codified at Tennessee Code Annotated § 29-28-106. The trial court denied the motion.

March 10, 2020

Tennessee Court of Appeals Addresses Constitutionality of Statute Providing for Ex Parte Interviews of Non-Party Health Care Providers in Medical Malpractice Lawsuits

by Mark Hartsoe

Discovery is an important part of a Tennessee personal injury lawsuit. During this phase of litigation, the parties exchange certain information, such as the names of factual witnesses and the opinions of potential experts. When conducted appropriately, discovery can lead to a settlement of a case. As the parties learn more about the strengths and weaknesses of their opponents’ cases, there tends to be a “meeting of the minds” as concerns at least some of the issues. However, not all discovery is conducted in a manner that aids the parties in the settlement process – especially if it happens behind closed doors and outside of the presence of the plaintiff and his or her counsel.

Facts of the Case

In a recent case addressing the constitutionality of a statute, the plaintiff was the daughter of a woman who allegedly died as a result of the defendant medical providers’ negligence. The daughter filed a healthcare liability wrongful death lawsuit, asserting that the defendants’ medical treatment of her mother fell below the applicable standard of care and that this breach of duty was the proximate cause of her mother’s death. As the lawsuit progressed, the defendants filed a motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f), requesting that they be permitted to conduct interviews of certain healthcare providers who had provided medical treatment to the plaintiff’s mother but had not been named as defendants in the case. These interviews were to take place outside the presence of the attorneys who represented the plaintiff in her lawsuit.

The plaintiff objected to the defendants’ motion for the qualified protective order on the basis that § 29-26-121(f) was unconstitutional. The trial court granted the defendants’ motions for the ex parte interviews, commenting that the legislature had overstepped its bounds in saying that “the court shall do something,” but opining that it was not a trial court judge’s place to declare a statute unconstitutional. The Tennessee Court of Appeals denied the plaintiff’s application for an interlocutory appeal, but the Tennessee Supreme Court granted her permission to seek review of the trial court’s ruling.