When an individual has to have serious surgery, he or she will generally be asked to consent to such surgery and will be informed of all of the related risks that may accompany the surgery. A surgeon will typically inform the patient of the possible scenarios that may occur during the surgery and the likelihood or risk of side effects or bad outcomes. This way, when the surgery occurs, a patient cannot later accuse the surgeon of undertaking actions of which he had not previously informed the patient. When a surgeon does not adequately inform a patient of what is likely to occur during surgery, or the risks involved, and undertakes procedures of which the patient was not previously aware, a patient may later claim medical battery or an injury to the body to which the patient did not consent. In a recent case before the Tennessee Court of Appeals, a patient, and later her son, alleged medical battery as a result of a procedure that she claimed she was not made aware could occur.
With the passage of several recent laws in Tennessee, plaintiffs seeking to bring claims against doctors and health care facilities must meet stringent requirements for providing notice and information to potential defendants. When these procedural requirements are not met, plaintiffs can be prevented from seeking relief and have their claims dismissed. In a recent case before the Tennessee Court of Appeals, one such claim was dismissed after a plaintiff failed to provide proper notice to defendants under the laws.
Tennessee Code Section 29-26-121(f) permits defendants in health care liability actions to seek an order from the court allowing them to have ex parte communications with a plaintiff’s health care providers. Under the terms of the statute, if a defendant seeking such an order meets all of the necessary statutory requirements, a court is essentially required to issue such an order. In a recent case before the Sixth Circuit Court in Tennessee, a plaintiff argued that an order allowing ex parte communications should be denied because Section 29-26-121(f) is an unconstitutional violation of the separation of powers.
Tennessee’s medical malpractice statute provides very specific requirements for individuals seeking to bring medical malpractice claims against Tennessee physicians and hospitals. These measures are enacted, in part, to reduce the filing of frivolous malpractice claims, as well as to ensure that all plaintiffs and defendants have equal access to sensitive financial information. Although Tennessee courts understand that not all litigants will be able to understand the sophisticated requirements of Tennessee statutes, they have also determined that, in most instances, these requirements must be carefully followed.
When considering the elements of a negligence claim, personal injury attorneys often focus on whether a duty can be established, or whether causation can be shown. Many times, the existence of an injury may be presumed, since, without an injury, it is unlikely that the plaintiff would be seeking to instigate a lawsuit in the first place. Proof of injury, however, is a critical aspect of any negligence claim. Without an injury, a defendant cannot be held liable, and a plaintiff has no damages to recover. Time and money would be spent on litigation with no prospect of financial reward. For these reasons, identifying your injury as a plaintiff is crucial to a negligence case.
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.
When dealing with medical malpractice and personal injury claims against state employees, following the correct procedures for litigation can be exceptionally tricky. Under general principles of sovereign immunity, states are generally immune from liability for injuries that their employees may incur. In certain cases, states like Tennessee waive this immunity and allow claims to be brought against state employees, but only in certain circumstances and under certain procedures. A failure to properly follow such procedures can result in the dismissal of a claim. A recent case before the Tennessee Court of Appeals looks closely at medical malpractice claims brought against state-employed physicians and whether such claims are waived when they are not properly brought.
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.
The case of Tracy Lynn Eiswert is a long and complicated one that sheds light on the difficulties that plaintiffs may face in receiving justice under Tennessee’s current medical malpractice laws, and the role of the federal court in shaping the understanding of such laws.
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.
Medical malpractice cases can be a confusing. To win you must establish that you have a recoverable claim. The way you know if you have a valid legal claim is by determining if the medical team in question violated the standard of medical care.
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.
In what is becoming a common topic on legal blogs and in the media, the tort reform caps imposed by the Tennessee Civil Justice Act are again the focus of legal and legislative attention, but this time for different reasons. In light of recent legal challenges to the constitutionality of the cap, advocacy groups representing Tennessee doctors are seeking a constitutional amendment to the Tennessee constitution that would limit the authority of the courts to question the constitutionality of the tort reform caps.
In Tennessee, when a personal injury claim arises in the health care context, it may be subject to the particular requirements and restrictions of the Tennessee Health Care Liability Act (“THCLA”). The THCLA was enacted in order to reduce the number of frivolous and time- consuming medical malpractice claims brought in the state, and it imposes stricter requirements on plaintiffs asserting personal injury claims against hospitals and medical providers. How does a personal injury victim determine if the THCLA applies to his or her claims? A recent decision by the Tennessee Supreme Court has answered this question, suggesting that virtually all personal injury claims in the health care context may need to meet the requirements of the THCLA.
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.