B.B. began experiencing chest pain in 2006, when she was 75 years old. She went to her physician, who determined that she had multiple blockages in her arteries and sent her to a cardiologist. B.B. met with a cardiologist, who explained to her that the best remedy for her condition was cardiac artery bypass grafting. After the meeting, B.B. signed two consent forms. The first consented to coronary bypass artery surgery. The second form gave her surgeon authorization to include her in a research study about heart surgery, including a review of surgery “followed by completion angiography.”

B.B. underwent surgery in 2006. After her bypass grafting was completed, the surgeons realized that she was likely to continue to suffer from limited blood flow to her heart. In order to deal with this problem, they performed an additional angioplasty on B.B. B.B. did not recover well from the surgery and remained hospitalized for quite some time. Even after her discharge, she continued to suffer from complications as a result of the surgery. B.B eventually filed a health care liability action against the hospital. While it was pending, she passed away, and her son became the plaintiff. He argued that B.B. was subjected to medical battery because she was not aware that an additional angioplasty could be performed on her, and she had not given informed consent. At trial, both parties presented evidence, and the jury found for the hospital. B.B. appealed.

On appeal, B.B.’s son argued that he should have been entitled to a directed verdict on his claim of medical battery. Medical battery requires a plaintiff to show that he or she was not aware a doctor was going to perform a certain procedure and did not authorize the performance of the procedure. The hospital argued that B.B. had previously admitted in her complaint that she realized an angioplasty might be required because part of her consent to the research study included an awareness that after her bypass graft, she might receive an angioplasty if needed. B.B’s son testified, however, that during all of their discussions with doctors, the prospect of an angioplasty was never raised.

The court of appeals noted that the research consent form signed by B.B. clearly stated that she was a patient who might possibly receive both a bypass graft and an angioplasty. Furthermore, at trial, three doctors stated that B.B. would have been informed about the possibility of an angioplasty in the meetings leading up to her surgery. Between the written consent form that included language concerning the angioplasty and the testimony of the doctors, the court of appeals held that the evidence supported the jury’s determination that B.B. was on notice of the possibility of the angioplasty, and there was not sufficient evidence to overturn the jury verdict.

Medical professionals are careful to protect against the possibility of medical battery claims and will go to great lengths to ensure that patients are aware of the procedures to which they may be subjected and the risks involved. This means that bringing a medical battery case takes careful investigation and preparation. For more information on medical malpractice claims, including medical battery, contact knowledgeable Tennessee personal injury attorney Eric Beasley at 615-859-2223.

Related Blog Posts:

Tennessee Court Rejects Health Care Liability Action With Improper Notice, Tennessee Personal Injury Blog, February 10, 2017

Waiver of Medical Malpractice Claims Against Tennessee State Employees, Tennessee Personal Injury Blog, July 21, 2016

Sixth Circuit Remands Tennessee Medical Malpractice Claim for Widow of Veteran, Tennessee Personal Injury Blog, March 3, 2016

The plaintiff brought claims on behalf of her husband, who died while receiving medical treatment at Cumberland Medical Center. He was admitted for fatigue, and a urinalysis was conducted. It was quickly discovered that the plaintiff’s husband was experiencing kidney failure, and he was admitted. After almost a week in the hospital, the doctors remarked that it was unfortunate that the plaintiff’s husband’s medical beliefs prevented him from receiving treatment. It was at this point that the plaintiff realized that her husband had been wrongly recorded as a Jehovah’s Witness and was not receiving any of the medical care that he needed. Although she quickly corrected the error, it was too late, and he passed away. Shortly thereafter, the plaintiff alleged that she filed the requisite pre-suit notices under Tennessee law. The defendants, however, disputed this fact. They said the notices were not proper because they did not contain the required medical authorizations to allow the defendants to obtain her husband’s full medical records, and they did not list all of his medical providers. On this basis, the defendants filed a motion to dismiss the lawsuit, which the trial court granted. The plaintiff appealed.

On appeal, the plaintiff argued that she substantially complied with the notice requirements because she had sent the defendants medical authorizations prior to her pre-suit notice, and because her failure to list all of the medical providers was simply excusable neglect. The plaintiff was correct that under Tennessee law, plaintiffs are not required to strictly and absolutely comply with every statutory requirement before bringing a lawsuit. Instead, they must show that they did their best to substantially comply with the requirements. However, on closer review, the court of appeals observed that the medical authorizations sent by the plaintiff prior to the pre-suit notices only allowed for the disclosure of her medical records to her own attorneys but not to other individuals like the defendants’ attorneys. Accordingly, they were not compliant with the requirements of the statute. The court of appeals also held that the plaintiff’s second argument, excusable neglect, was allowable only in the most extraordinary circumstances and did not apply in the plaintiff’s case. In light of these facts, the appellate court confirmed the trial court’s ruling on the motion to dismiss and upheld the dismissal of the plaintiff’s claims.

When dealing with the emotional trauma of a death or injury due to negligence by medical professionals, the last thing that you want is to lose your claim because of procedural errors. For this reason, it is extremely important to read all of the statutory requirements carefully and take them very seriously.  A failure to abide by notice or other procedural requirements can result in the unexpected rejection of your claim. For more information on medical malpractice claims or wrongful death actions, or how to prepare your claim for a lawsuit, contact knowledgeable Tennessee personal injury attorney Eric Beasley. For more information or to discuss the circumstances of your case, contact the Law Office of Eric Beasley today at 615-859-2223.

Related Blog Posts:

Notification Requirements for Medical Malpractice Claims in Tennessee, Tennessee Personal Injury Blog, October 19, 2016

Waiver of Medical Malpractice Claims Against Tennessee State Employees, Tennessee Personal Injury Blog, July 21, 2016

Sixth Circuit Remands Tennessee Medical Malpractice Claim for Widow of Veteran, Tennessee Personal Injury Blog, March 3, 2016

In Hammonds v. HCA Health Services of Tennessee, HCA sought a qualified protective order to allow it to have ex parte communications with Ms. Hammonds’ medical providers. Ms. Hammonds objected to the issuance of such an order, arguing that the statute permitting such orders was unconstitutional. In Tennessee, the courts have previously found that there exists an implied covenant of confidentiality between treating physicians and their patients. This confidentiality arises out of the public concern for the protection of private medical information. When doctors give up confidential information, even informally, they breach this covenant of confidentiality. Accordingly, in health care lawsuits, the courts have held that the only appropriate means of discovering information from physicians is through acceptable methods of discovery under Rule 26.

In response to these cases, the Tennessee General Assembly passed Section 29-26-121(f), which allows defendants to obtain health care information about plaintiffs through informal ex parte interviews rather than through formal discovery. The statute provides that petitions for ex parte interviews must be granted if the defendant provides certain privacy protections, and the plaintiff cannot show that the health care provider at issue does not possess any relevant information.

Under Tennessee’s constitution, the legislature may not limit or overstep the judiciary’s authority under the separation of powers clause. While legislatures have the power to set procedural rules for courts and to determine public policy, they cannot encroach on the judiciary. Here, the court found that 29-26-121(f) violated the separation of powers doctrine because it attempted to directly overrule the implied covenant of confidentiality that the Tennessee courts found between physicians and patients. While the court had created a framework to protect patient health information, the statute directly conflicts with that framework and encroaches on the court’s power. The court further noted that while the legislature was free to attempt to repeal the notion of a covenant of confidentiality between physicians and patients, in the absence of such a repeal, it was not free to dictate which methods parties could use in court to try to circumvent such confidentiality.

This case raises significant questions as to what is likely to happen to the use of orders to obtain ex parte communications with physicians in health care liability actions. It is likely that this decision will be appealed and ultimately reviewed by several appellate courts before we know if the holding will stand. In the meantime, plaintiffs who are subjected to efforts by defendants to obtain confidential information from their physicians may wish to argue that such ex parte orders are no longer constitutional in Tennessee. For more information on health care liability claims in general, or how to protect your sensitive medical information, consult knowledgeable Tennessee personal injury attorney Eric Beasley. Contact the Law Office of Eric Beasley today at 615-859-2223.

Related Blog Posts:

Notification Requirements for Medical Malpractice Claims In Tennessee, Tennessee Personal Injury Blog, October 19, 2016

Waiver of Medical Malpractice Claims Against Tennessee State Employees, Tennessee Personal Injury Blog, July 21, 2016

Sixth Circuit Remands Tennessee Medical Malpractice Claim for Widow of Veteran, Tennessee Personal Injury Blog, March 3, 2016

In Cright v. Overly, M.D., Catherine Cright sued after her husband died from complications after a routine stent procedure. During the procedure, Mr. Cright’s femoral artery was punctured, which led to a retroperitoneal bleed. Although the hospital attempted surgery to correct the puncture, Mr. Cright died from the complications.  Dr. Overly was the doctor who completed the stent procedure. Approximately one year after her husband’s death, Ms. Cright notified Dr. Overly and the hospital that she intended to file a medical malpractice claim. With her notice, she attached the requisite HIPAA-compliant authorization. She then filed her complaint, and the case went to trial. Three days into the trial, Ms. Cright moved for a voluntary “nonsuit” to end the trial, with the understanding that she might attempt to bring the claim again later. About one month later, Ms. Cright sent notice to the defendants of the new lawsuit she intended to file. However, she did not attach a HIPAA authorization with this notice. After she filed the complaint, the defendants moved to dismiss for a failure to comply with the requirements of Tennessee’s medical malpractice statute.  The trial court, finding that Ms. Cright had not attached the required notice, agreed and dismissed the case.

On appeal, Ms. Cright argued that the trial court erred in dismissing her claims. She argued first that the documents governed by the HIPAA authorization had previously been produced in the earlier lawsuit and that an order from that lawsuit governing the protected production of those documents was still in effect, thereby obviating the need for a HIPAA authorization. Second, she argued that the defendants were not prejudiced by the lack of authorization. As an initial matter, the Court of Appeals noted that the purpose of the statutory requirement to provide a HIPAA-compliant authorization was so that defendants have “the actual means to evaluate the substantive merits of a plaintiff’s claim” through equal access to medical records.

Here, Ms. Cright did not offer such access but stated that it had previously been given through the existing order in the prior case. However, on review, the court noted that that order expired upon “the final disposition of the above-styled lawsuit.” Since Ms. Cright voluntarily ended that lawsuit, the order was no longer in effect and could not be used to satisfy the remedial records requirement. Although the defendants already had the records in their possession, they could not use them because, under HIPAA, without authorization and consent, parties are forbidden from using health information.  Accordingly, the court held that Ms. Cright’s actions were insufficient, and a new authorization should have been provided. Moreover, since the defendants were prohibited from using the records in the new case, they were necessarily prejudiced by Ms. Cright’s actions.  The Court of Appeals therefore affirmed the trial court and upheld the dismissal of Ms. Cright’s claims.

If you have a medical malpractice claim against a doctor or medical institution, it is imperative that you seek the advice and assistance of a qualified medical malpractice attorney. While courts are generally understanding and sympathetic to plaintiffs who attempt to bring claims without legal counsel, there are certain requirements of Tennessee’s medical malpractice laws that must be followed precisely. A failure to do so will result in the dismissal of your lawsuit and the loss of valuable time and effort that you have put into your claim.  For more information on medical malpractice claims in general, or how to prepare your claim for a lawsuit, contact knowledgeable Tennessee personal injury attorney Eric Beasley. For more information or to discuss the circumstances of your case, contact the Law Office of Eric Beasley today at 615-859-2223.

Related Blog Posts:

Sixth Circuit Denies Negligence Claim for Lack of Physical Injury, Tennessee Personal Injury Blog, September 21, 2016

Waiver of Medical Malpractice Claims Against Tennessee State Employees, Tennessee Personal Injury Blog, July 21, 2016

Sixth Circuit Remands Tennessee Medical Malpractice Claim for Widow of Veteran, Tennessee Personal Injury Blog, March 3, 2016

In Means v. United States Conference of Catholic Bishops, Tamesha Means brought a claim for ordinary negligence against the USCCB as the entity overseeing the hospital where she received treatment during her pregnancy. Ms. Means was diagnosed early in her pregnancy with preterm premature rupture of membrane. This condition often leads to stillbirth and abortion, or induced miscarriage is frequently recommended. In Ms. Means’ case, the hospital where she was, Mercy Health, diagnosed Ms. Means but did not give her any treatment options. Instead, it offered her pain medication and sent her home. Ms. Means repeatedly returned on several occasions for increasingly more painful contractions and a related bacterial infection. Ultimately, she delivered her baby early, in breech, and it died within three hours.

Two years after the lawsuit, it was discovered that Mercy Hospital may not have offered Ms. Means any alternative options because the USCCB directives prevented the hospital from mentioning miscarriage or abortion treatments.  Ms. Means sued, arguing that the USCCB was liable for what happened to her and was negligent because their ethical guidelines interfered with their ability to provide proper medical care. Before the trial court, Ms. Means’ claims were dismissed for failure to state a claim, and she appealed.

Ms. Means argued that there was a duty under the law on the part of the USCCB to ensure that their ethical directives did not contradict medical standards of care for pregnant women. The Sixth Circuit questioned whether such a duty existed but held that, even if it did, Ms. Means’ claim failed because she could not show that USCCB’s directives caused her injuries.  First, the court noted that negligence requires that a plaintiff show that “but for” the error by the defendant, the plaintiff would not have suffered an injury. Here, it was unclear that USCCB’s directives did lead to Ms. Means’ injuries because the directives did allow for operations and treatments meant to cure “serious pathological conditions of a pregnant woman,” even if they would result in the death of an unborn child. Thus, while Mercy Health may not have taken such actions, it was unclear the directives directly prohibited them from doing so.

Second, the Sixth Circuit found that Ms. Means had not alleged an actual injury sufficient for a negligent claim. It noted that mental and physical pain and suffering were insufficient to state a claim for negligence, since pain alone is not a physical injury. Moreover, to the extent that Ms. Means’ miscarriage could be considered an injury, it was her health circumstances, rather than Mercy Health’s actions, that caused a miscarriage to occur. Accordingly, the Sixth Circuit held that since Ms. Means had not alleged a clear injury resulting from the directives, she had not stated a claim for negligence, and her lawsuit was properly dismissed.

If you believe that you have been injured by another party’s failure to provide you with proper treatment, information, or resources, knowledgeable Tennessee personal injury attorney Eric Beasley can help you put together a strong complaint that sufficiently alleges all of the elements for a negligence claim, including a physical injury. For more information or to discuss the circumstances of your case, contact the Law Office of Eric Beasley today at 615-859-2223.

Related Blog Posts:

Waiver of Medical Malpractice Claims Against Tennessee State Employees, Tennessee Personal Injury Blog, July 21, 2016.

Sixth Circuit Remands Tennessee Medical Malpractice Claim for Widow of Veteran, Tennessee Personal Injury Blog, March 3, 2016

What You Need to File a Medical Malpractice Claim, Tennessee Personal Injury Blog, January 27, 2016.

In Sumner v. Campbell Clinic, Mr. Sumner was scheduled to undergo a bone graft to treat an injury in his right leg.  Prior to the surgery, Mr. Sumner and his family warned physicians that he had recently had another surgery near his right hip to address a hernia. As a result, Mr. Sumner requested that the bone graft be taken from the site of his left hip, rather than his right hip.  Despite these directions, the surgeons attempted to take the bone graft from his right hip. Due to weaknesses in the area that was recovering from surgery, the surgeons punctured his small bowel, allowing fecal matter to be released into his body cavity.  The resulting complications left Mr. Sumner dependent on a feeding tube.

Shortly after the surgery, Mr. Sumner sought legal counsel and commenced litigation. His attorney filed a complaint in court against his treating physicians. However, since it was believed that the physicians might have been employees of the State of Tennessee at the time of the surgery, Mr. Sumner’s attorney also filed a notice of possible claim against a state employee with the Tennessee Division of Claim Administration, as required under state statute. The notice advised the state that they were investigating the possibility of medical malpractice against a state employee. Several months into litigation before the Circuit Court, Mr. Sumner’s attorney changed course, attempting to withdraw the notice of claim before the Tennessee Claims Commission and arguing that instead the claims could be brought against the doctors in court because they were for intentional conduct, rather than negligence.  At the same time, the doctor defendants in the case filed a motion for summary judgment in their favor. The trial court granted the motion, and Mr. Sumner appealed.

On appeal, the Tennessee Court of Appeals sua sponte raised the issue of jurisdiction. Putting aside the arguments raised by both parties, the court questioned whether it even had jurisdiction to consider Mr. Sumner’s claims, given that Tennessee law requires that all claims against state employees be brought before the Tennessee Claims Commission.  Since this was the procedural structure created by the state for dealing with the liability of state employees, the court determined that it had no jurisdiction over Mr. Sumner’s claims.  Indeed, by filing a claim with the Division of Claims Administration, the court held that Mr. Sumner had acknowledged the exclusive authority and jurisdiction of the Claims Commission and had waived any right to have his claims heard by the state courts. Accordingly, regardless of the merits of Mr. Sumner’s claims of intentional misconduct or the doctors’ defenses, the appellate court determined that they could not be heard by the trial court but instead were required to be referred to Tennessee’s administrative bodies.

This case clarifies an issue of waiver that had been discussed by the Tennessee courts for some time but never directly decided. It makes clear that Tennessee residents seeking to bring claims against state employees must do so by filing a notice of claim with the Tennessee Division of Claim Administration and proceeding through administrative channels before considering other remedies.

If you have recently been the victim of an accident that you believe may have been caused by a state employee, knowledgeable personal injury attorney Eric Beasley can help you investigate whether issues of immunity may arise and which state procedures may be required. For more information or to discuss the circumstances of your case, contact the Law Office of Eric Beasley today at 615-859-2223.

Related Blog Posts:

Limiting the Scope of Duties Tennessee Universities Owe To Their Students, Tennessee Personal Injury Blog, June 21, 2016.

Government Liability in Tennessee for Automobile Accidents Involving Police Officers, Tennessee Personal Injury Blog, April 13, 2016

Can Tennessee Emergency Vehicles Be Held Liable for Accidents That Occur While On Emergency Calls?, Tennessee Personal Injury Blog, February 10, 2016.

Scott Walter Eiswert was a Tennessee resident and National Guard member who committed suicide in 2008.  Scott sought treatment for mental health issues he suffered as a veteran at the Veterans Administration Medical Center in Mountain Home, Tennessee, but he was misdiagnosed by medical professionals there.  Shortly thereafter, he committed suicide.  Scott’s wife, Tracy, filed a medical malpractice claim against the Medical Center, and the Medical Center conceded that it failed to properly diagnose Scott. However, a District Court in Tennessee ultimately threw out Tracy’s claims, holding that its hands were tied by the procedural hurdles and paperwork requirements put in place by Tennessee’s medical malpractice laws. Specifically, Tracy failed to file a certificate of good faith with her complaint and instead offered two expert medical reports stating that her claims had merit. The District Court determined that, although unfair, Tennessee’s law required strict compliance with the good faith certificate requirement.

Tracy appealed to the Sixth Circuit, which questioned the true strictness of Tennessee’s medical malpractice laws and whether Tracy’s filings may have been acceptable.  Accordingly, it certified the following question to the Supreme Court of Tennessee for consideration:  “Does a complaint signed by Plaintiff’s counsel, which attaches an expert report . . . stating that the expert believes within a reasonably degree of medical certainty that the Defendant’s acts or omissions resulted in harm” substantially comply with Tennessee’s medical malpractice act?

In response, the Tennessee Supreme Court also noted that Tracy had failed to comply with the pre-suit notice requirements of Tennessee’s medical malpractice law, and for this reason it declined to answer the Sixth Circuit’s question. In an opinion released several weeks ago, the Sixth Circuit continued its dogged pursuit of justice for Tracy, holding that her claims should be remanded to the District Court in light of other recent advancements in the analysis of Tennessee’s medical malpractice laws.

Specifically, the Sixth Circuit set forth a legal guide and outline for Tracy in arguing her claims, noting that recent cases before the Tennessee Supreme Court and Sixth Circuit suggest that “substantial compliance” may be sufficient under Tennessee’s notice and good faith filing requirements. These cases were decided after Tracy’s initial complaint before the District Court was dismissed and thus were not considered by the court at that time, but they were deemed by the Sixth Circuit to potentially shed light on whether Tracy’s actions were sufficient to comply with the medical malpractice requirements and allow Tracy to pursue justice for her husband.

As we have previously discussed on this blog, Tennessee’s medical malpractice laws can be complicated and difficult to navigate.  Although recent court decisions suggest that courts are beginning to read some flexibility into these laws, a consultation with a Tennessee personal injury attorney is still important. Medical malpractice attorney Eric Beasley has extensive experience representing Tennessee plaintiffs in health care-related personal injury and medical malpractice claims, and he can help you ensure that you meet all of the procedural requirements of Tennessee’s laws. If you have recently been injured in a health care-related incident, contact the Law Office of Eric Beasley today at 615-859-2223.

Related Blog Posts:

Evaluating the Impact of Recent Tennessee Case Law on Health Care Personal Injury Claims, Tennessee Injury Lawyer Blog, December 11, 2015.

Alleging Personal Injury in the Health Care Context – Abiding By the Tennessee Health Care Liability Act, Tennessee Injury Lawyer Blog, October 29, 2015.

Why Hire Medical Malpractice Lawyers in Nashville, TN?, Tennessee Injury Lawyer Blog, February 24, 2015

Establishing A Valid Claim

The standard of medical care is a set of best practices established by the medical community, like the cleaning and sterilizing of surgical tools. You may wonder, “How do I establish a standard of care?” First, you need to consult an attorney who can review the facts of your case. If your attorney is convinced that your doctor made a mistake, like leaving scissors in your stomach, then he will pursue your case.

As many are now aware, earlier this year, Hamilton County Judge W. Neil Thomas overturned the noneconomic damages caps imposed under the Tennessee Civil Justice Act. The Act limits claims for damages related to pain and suffering or emotional distress to $750,000 in a medical liability lawsuit.  In his decision, Judge Thomas held that these limitations were unconstitutional because they limited the right of the jury to make a determination as to the damages award amount they felt was appropriate.  However, in October of this year, the Tennessee Supreme Court also weighed in on the topic, finding that Judge Thomas’ ruling was premature because the jury had not yet attempted to award plaintiffs damages in excess of the cap.  Accordingly, the Tennessee Supreme Court overturned Judge Thomas’ decision and remanded back to the Hamilton courts for further consideration at the time of trial.  Notably, the Tennessee Supreme Court explicitly declined to weigh in on the constitutionality of the noneconomic damages cap.

As it stands, the tort reform caps in place for medical malpractice and liability claims seem on shaky ground.  While the Supreme Court overturned Judge Thomas’ decision, it did not explicitly disagree with his legal rationale for finding the limits unconstitutional. For this reason, medical lobbyists and advocacy groups, including the Tennessee Medical Association, have decided to take matters into their own hands rather than wait for the eventual reconsideration of the issues by the courts.

In their recently released 2016 legislative priorities, the TMA and doctors associated with the group are proposing a constitutional amendment to the Tennessee Constitution that would state that the Tennessee General Assembly has the authority to to set caps for noneconomic actions in medical liability lawsuits. According to the TMA, such a constitutional amendment is urgently needed in order to prevent rising health care costs as a result of high medical malpractice rates.  Plaintiffs’ lawyers and advocates oppose the notion of a constitutional amendment, since it would continue to enforce limitations on the ability of people injured by medical malpractice to recover compensation for the pain and suffering they have experienced. While the amendment will be proposed in the upcoming legislative session, it would be a long road to its possible adoption. First, the amendment must pass two separate General Assemblies. If it is successful, it would then be put on a ballot for public voting in either 2018 or 2022.

With the many updates and challenges to tort reform over the past year, it can be difficult to know which damages may be available to you if you are considering a personal injury or medical malpractice claim.  Committed personal injury attorney Eric Beasley has extensive experience representing injured plaintiffs in tort actions throughout Tennessee and is available to answer your questions. For more information on your legal rights, contact the Law Office of Eric Beasley today at 615-859-2223.

Related Blog Posts:

Tennessee Supreme Court Reverses Course on Damages Cap, Tennessee Personal Injury Blog, November 5, 2015

Questioning the Constitutionality of Tennessee’s Cap on Pain and Suffering Damages After an Automobile Accident, , Tennessee Personal Injury Blog, October 17, 2015

Personal Injury 101, Tennessee Personal Injury Blog, August 10, 2015

The case, Ellithorpe v. Weismark, No. M2014-00279-SC-R11-CV (Tenn. Oct. 8, 2015), considers when a claim “sound[s] in health care liability,” as opposed to being only a basic negligence claim, and is thus subject to the THCLA. In Ellithorpe, the estranged parents of a minor child, M.L., sued a social worker who was providing counseling to M.L on a regular basis.  The parents contended that they had not been informed of the counseling and that it was being provided without their consent. They further alleged that this “secret” counseling had caused harm to their child in the form of emotional distress.  They filed a complaint for damages against the social worker without abiding by the pre-suit notice and certificate of good faith requirements of the THCLA.  In response, the social worker filed a motion to dismiss the parents’ complaint because of their failure to comply with these procedural requirements.

The trial court dismissed the parents’ complaint with prejudice, finding no merit in the parents’ argument that their claims were ordinary negligence claims, not claims subject to the THCLA. On appeal, the Court of Appeals cautioned that a more nuanced approach was required, in light of the Tennessee Supreme Court’s prior decision in Estate of French v. Stratford House, which instructed courts to carefully consider the context of a party’s claims in order to determine “whether they sound in ordinary negligence or health care liability.” Accordingly, the case was remanded for further consideration of the nature of the parents’ claim.

In a significant move by the Tennessee Supreme Court, however, the Court held that the approach of Estate of French had been abrogated by recent legislative changes to the THCLA, which removed all references to “medical malpractice” and replaced them with the term “health care liability.” While the Court had previously held that the distinction between medical malpractice claims and ordinary negligence claims was a subtle one, requiring courts to closely analyze the specific facts of each case to determine whether the THCLA applied, these legislative changes eliminated the need for such analysis.

Instead, in Ellithorpe, the Tennessee Supreme Court determined that the legislative definition of “health care liability,” which included “any civil action . . . alleging that a health care provider or providers have caused an injury . . . .,” was clearly meant to encompass any lawsuit or claim against a health care provider, and accordingly Estate of French was no longer applicable.  Therefore, since the parents’ complaint was made against a social worker, a licensed health care provider under Tennessee law, and alleged an injury, it clearly fell within the procedural requirements of the THCLA.  For this reason, the Tennessee Supreme Court dismissed the case with prejudice, pursuant to the statute.

Ellithorpe is of significant importance to personal injury plaintiffs and plaintiffs’ attorneys throughout the state who may be considering filing personal injury claims against individuals in the health care field. Even if the subject matter of the suit may be only tangentially related to the provision of health care services, Ellithorpe suggests that Tennessee plaintiffs should err on the side of caution and make sure to abide by the notice and good-faith requirements of the THCLA in order to avoid having their claims dismissed at a later date.

Medical malpractice attorney Eric Beasley has extensive experience representing Tennessee plaintiffs in health care-related personal injury and medical malpractice claims, including claims under the THCLA. If you have recently been injured in a health care-related incident and are considering filing a claim in Tennessee court, contact the Law Office of Eric Beasley today at 615-859-2223.

Related Blog Posts:

Making the Case for Punitive Damages in Tennessee – What’s Required Under the Law?,  Tennessee Injury Lawyer Blog, October 22, 2015

Tennessee Personal Injury Claims Increase Despite Reduction in Auto Accidents, Tennessee Injury Lawyer Blog, October 15, 2015

Questioning the Constitutionality of Tennessee’s Cap on Pain and Suffering Damages After an Automobile Accident, Tennessee Injury Lawyer Blog, October 7, 2015