Medical Malpractice

July 8, 2020

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

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.

October 16, 2019

Tennessee Appeals Court Reverses Summary Judgment in Medical Malpractice Suit Arising From Woman’s Death Following Emergency Craniotomy

by Mark Hartsoe

Under Tennessee medical malpractice law, an individual who seeks to recover fair compensation (including acts of negligence resulting in a loved one’s alleged wrongful death) must provide pre-suit notice to those against whom the lawsuit will eventually be filed.

Generally speaking, failure to provide this notice can result in dismissal of the plaintiff’s lawsuit based on failure to comply with the state’s health care liability statute. However, there are exceptions to this general rule, as the appellate court held in a recent case.

Facts of the Case

The plaintiff in a recent case was the husband of a woman who died in April 2016, following an emergency craniotomy that was performed due to stroke-like symptoms the woman suffered shortly after being released from a hospital where she had sought medical treatment for an apparent aneurysm. The plaintiff filed suit against the defendant medical providers in the Circuit Court for Hamilton County, alleging that the defendants had failed to adequately and timely treat the decedent, thereby causing her various personal injuries and, ultimately, her death. Pursuant to the requirements of Tenn. Code Ann. § 29-26-121, the plaintiff attempted to provide pre-suit notice of his intent to bring a health care liability action against each defendant named in his complaint and filed his complaint within the 12o-day extension of the statute of limitations provided by the statute.

September 16, 2019

Tennessee Court of Appeals Reverses Dismissal of Knoxville Malpractice Lawsuit

by Mark Hartsoe

A Knoxville medical malpractice case is never easy. Doctors and their insurance companies fight incredibly hard against a finding of liability, and, even if a case makes it to a jury trial, jurors can be reluctant to find that a doctor is hospital has been negligent. This much is to be expected.

However, it may come as a surprise to an average Tennessean that many medical malpractice cases are dismissed annually based not on a finding that the plaintiff failed to prove negligence but because of some technicality in the voluminous amount of paperwork that must now accompany a malpractice claim.

This is one of the many reasons that it is critically important to contact an attorney as soon as you suspect you or a family member has suffered from an act of medical malpractice; the sooner you can get started on your case, the more likely you are to be able to jump through the many “hoops” that have become part of our law through the endless lobbying efforts of the medical establishment and their insurers.

June 21, 2019

Tennessee Court of Appeals Reverses Summary Judgment to Hospital and Nurse in Patient’s Healthcare Liability Case

by Mark Hartsoe

Under current Tennessee law, claims that were once referred to as “medical malpractice” cases are now referred to as “healthcare liability” actions. Although the basic idea is the same – a doctor, nurse, or hospital breached the standard of care owed to a patient, proximately causing injury or death to a patient – the rules are more complex than they used to be.

Timing is important, as there should be strict compliance with the applicable statute of limitations and statute of repose, and there are now several pre-suit requirements (including consultation with an expert medical witness) that must be met if the plaintiff is to ever have his or her day in court.

Of course, even when all of the procedural “i”s are dotted and “t”s crossed, most medical negligence defendants will still seek to have the plaintiff’s case dismissed if at all possible.

February 27, 2019

Plaintiff Was Allowed to Take Voluntary Nonsuit in Medical Malpractice Case, Per Tennessee Court of Appeals

by Mark Hartsoe

Every negligence lawsuit requires that the plaintiff prove certain elements, such as the existence and breach of a legal duty, proximate causation, and damages. However, a Tennessee medical malpractice claim requires even more specific proof, including expert testimony as to the applicable standard of care and the defendant’s alleged deviation therefrom.

In addition, lobbying efforts from medical associations and those who provide liability insurance to physicians and hospitals have resulted in there being additional “hoops” that a plaintiff must jump through in order to file a claim seeking compensation for a doctor or hospital’s mistake.

Facts of the Case

The plaintiff in a recent case filed in the Circuit Court for Green County was a woman who asserted a health care liability action against the defendants, a regional hospital and three doctors. The defendants filed a motion to dismiss the plaintiff’s complaint due to the plaintiff’s failure to file a certificate of good faith along with her complaint. After the defendant’s motion to dismiss was filed, the plaintiff filed the certificate. The defendants then filed a purported “motion for summary judgment.” In response, the plaintiff filed a motion for voluntary dismissal (nonsuit) of her complaint. The trial court granted the plaintiff’s motion and dismissed her complaint without prejudice (which would arguably allow her to refile the action within a certain time period, while still being considered filed within the statute of limitations). The defendants appealed.

January 30, 2019

Massage Therapist’s Intentional Sexual Battery Was Exempt from Certificate of Good Faith Requirement of the Tennessee Health Care Liability Act

by Mark Hartsoe

When a state legislature makes substantial modifications to existing medical malpractice law, the supposed intent is always phrased in terms of “addressing skyrocketing medical malpractice insurance rates.” However, the true reason behind these changes is rarely to save doctors money on their insurance premiums; the real purpose is most likely to increase the profits of the insurance companies who service these types of claims.

In Tennessee, we had a pretty major change in our malpractice laws a few years ago. Whereas before, all it took to file a medical malpractice lawsuit was to type up a basic complaint and file it at the courthouse within the statute of limitations, there are now many more steps to the process – and many more reasons for a medical negligence claim to be dismissed on a technicality before an actual inquiry into whether the medical professional did or did not commit an act of malpractice.

Facts of the Case

In a recent case, the plaintiff was a female customer who filed suit against the defendants, a male massage therapist and his “day spa” employer, seeking compensation for damages associated with the alleged therapist’s sexual assault on her during a massage that she received in April 2014. Included in the plaintiff’s complaint were claims for assault and battery, intentional or reckless infliction of emotional distress, and false imprisonment against the therapist and claims for vicarious liability, negligence, and negligent supervision, retention, and training against the employer.

January 9, 2019

Tennessee Supreme Court Says That Exculpatory Agreement That Transportation Company Required Patient to Sign Was Not Enforceable

by Mark Hartsoe

It seems as though more and more Tennesseans are being hurt by acts of medical negligence in Knoxville and the surrounding area each year. Unfortunately, it seems equally true that medical providers, their insurance companies, and related entitles are forever thinking of new and improved ways to attempt to avoid liability for their actions.

If you or a person close to you has been hurt by a medical provider’s negligence, you can be sure that the defendant will take every possible opportunity to avoid being held liable for your injuries. It is consequently very important that you talk to a Tennessee personal injury lawyer about your case as soon as possible so that you will have the best possible chance for success in your case.

Facts of the Case

In a recent case, the plaintiff had undergone knee replacement surgery and was a patient at a rehabilitation hospital in Memphis. The hospital arranged for the defendant transportation company to drive him to an appointment to see his orthopedic surgeon for followup in December 2014. After the plaintiff was seated in the van, he was asked to sign paperwork that contained exculpatory language purporting to release the transportation company from any and all liability related to its services. After his appointment with the surgeon, the plaintiff fell while attempting to get back into the van.

September 12, 2018

Tennessee Trial Court Judge Had No Duty to Recuse Himself Following Ex Parte Communication About Proposed Order in Health Care Liability Case

by Mark Hartsoe

The right to a fair trial is one of the most important components of the American judiciary system. This is true regardless of whether one is the plaintiff or the defendant or whether the case is criminal or civil.

If a litigant believes that some impropriety has taken place that could prejudice his or her at trial later on, he or she may file a motion to recuse the trial court judge, as happened in a recent Tennessee wrongful death lawsuit. Of course, such a motion is not automatically granted, as the moving party must have valid reasons for the request.

Facts of the Case

In a recent case filed in the Circuit Court for Davidson County, the plaintiff was the surviving spouse of a man who allegedly died as a result of an act of medical negligence committed by the defendant health care provider. The plaintiff filed suit, both individually and as surviving spouse, seeking monetary compensation for the decedent’s death. The defendant filed a motion for partial summary judgment, which the trial court judge indicated that he was going to deny on the basis that there were disputes over material facts. The judge’s law clerk allegedly stopped the plaintiff’s counsel in the hallway after the hearing and asked him to submit an order denying the defendant’s motion. Continue reading