Kelly on Malpractice

I have posted a compendium of various topics in medical malpractice that I will publish in a new book next week. I wanted to post it electronically before publication, however, you will need the book if you want the endnotes with citations.

I. ASSESSING AND EVALUATING THE PLAINTIFF’S MALPRACTICE CASE

Medical negligence litigation is very challenging. Experienced lawyers know that the physician or surgeon comes in to any jury case with a head start. The defendant is often a hard working and respected physician. His conduct is seldom reckless. He always has more than enough experts willing to testify on his behalf, no matter how egregious his conduct. The medical profession’s “conspiracy of silence” (due in part to liability coverage from the same insurer ) cripples a patient’s chances of finding a local expert to testify on his behalf. The best trial lawyers in town represent doctors and hospitals. Despite full disclosure standards in discovery, doctors can still bury their mistakes on occasion.
Most jurors tend admire doctors, particularly their own. The typical juror will feel that he owed his life, or the life of a family member, to a doctor’s care. The average parent would be proud to have his son or daughter become a physician. Despite efforts by plaintiff’s counsel to talk around it, the fact remains that the defendant physician is faced with a grave charge that many jurors will view as quasi-criminal. In my opinion, the latter tends to increase the plaintiff’s burden on proof in these cases. The complexity of medical / scientific subject usually causes jurors to defer to the defendant. Tort reform propaganda over the last 10 to 15 years has fostered a suspicion of patients who sue their doctors. All this translates into plaintiffs losing over 75% of medical negligence cases.
The difficulty of engaging in contemporary medical negligence litigation has increased sharply. The practice of medicine is now more sophisticated, with a corresponding rise in the number of specialties. Medical experts are busy, thus their time is very expensive. In a typical case, your expert will charge between $350 to $750 per hour for his testimony. Charges for the expert’s initial review, assistance during discovery, preparation for testimony, expense of deposing the defendant’s experts, medical literature, court reporter fees, and exhibits range somewhere between $35,000 to $50,000 pretrial. The trial itself usually adds an extra $25,000 in expenses depending upon the number experts you bring to trial and the level of computer-assisted presentations.
To succeed in these cases as plaintiff’s counsel, you must be smarter, more diligent, and more cost sensitive than your opponent. This means subscription to medical negligence treatises and periodicals. Remember that these treatises and periodicals are not admissible as substantive evidence to prove your claim. It means attendance at professional liability seminars like this one. It means heightened vigilance to changes in the law. Lately, Tennessee has seen more changes in the law of medical negligence than at any other time.
Carefully screen each claim before accepting it. This is the most important decision you will make. Use a cost / benefit approach to accepting cases. Investigate the claim thoroughly before accepting it. This includes aggressive research into medical publications to be fluent in the language of the claim—medicine. Your choice of experts is critical, including the use of an informal screener.
After filing suit, you must be completely prepared at every stage of litigation, especially discovery. I believe the cases is won or lost in discovery. You should use the K.I.S.S. method during discovery and at trial. Again, the choice of formally retained experts is critical. Check with your colleagues to get their opinion of the expert’s performance in other cases. Keep your credit line healthy. I suggest that you create a five-year calendar for disposition, because these cases find themselves on the appellate track. The case expenses can tie up your firm’s cash flow significantly. This means approaching the claim as if it will not settle, because it probably will not. Be prepared for a long voyage.

A. What is Medical Malpractice?

Every viable claim of medical negligence has three essential components: substandard care, causation, and serious harm. You should examine each claim like a table that needs three legs to stand on its own. Each leg has co-equal significance. For instance, substandard care and serious harm in absence of causation is simply “negligence in a vacuum.” Substandard care and causation in absence of serious harm is too expensive to prosecute. Finally, causation and serious harm in absence of substandard care is characterized as a “bad outcome.” You should decline the claim unless you can prove all three components. The tremendous expense of these cases leaves you no alternative.

1. Medical Negligence versus Simple Negligence.

In some cases, you must distinguish between claims of medical negligence and claims of simple negligence. This is a pregnant distinction because in the former you will need expert testimony, and in the latter you will not. Most personal injury claims against health care providers are indeed medical negligence, not simple negligence. Usually, there some type of medical diagnosis, treatment, or other scientific matter that caused your client’s harm. For example, the assessment of a patient’s post-operative ability to walk and selection of the mode of ambulation involves specialized skill; therefore, expert testimony is required to define the standard of care. Likewise, a claim against a hospital for failing to put up bedrails in an emergency room, because a patient was confused, disoriented, and suffering from a high fever, requires expert testimony. On the other hand, expert testimony is not needed when the wrongful conduct does not involve specialized skill. A hospital employee who chooses to assist a patient in walking through the hospital and then carelessly drops her may be sued under a simple negligence theory. I prefer the safe approach of retaining an expert in any claim that turns on the conduct of a health care practitioner.

2. The Duty to Warn

Some claims arise from an affirmative duty to warn. Tennessee courts recognize that not every allegation of negligence against a hospital or a doctor is one for medical malpractice. Two recent decisions clearly establish that an action against a health care provider by a non-patient for failing to provide information to safeguard the non-patient third person is not based on medical malpractice, but rather on simple negligence.
In Bradshaw v. Daniel, 854 S.W.2d 865 (Tenn.1993), the patient, Mr. Johns, went to an emergency room at Methodist Hospital South in Memphis complaining of headaches, muscle aches, fever, and chills. He was admitted to the hospital under the care and treatment of the defendant, Dr. Daniel. Mr. Johns’ condition rapidly deteriorated, and he died the next day. The Center for Disease Control conclusively confirmed that the cause of death was Rocky Mountain spotted fever. Although Dr. Daniel communicated with Mr. Johns’ wife during her husband’s treatment, he never advised her of the risks of exposure to Rocky Mountain spotted fever. A week after her husband’s death Genevieve Johns came to the emergency room of Baptist Memorial Hospital with similar symptoms of headaches, muscle aches, fever, and chills. She was admitted to the hospital and treated for Rocky Mountain spotted fever but died three days later. It was undisputed that no patient-physician relationship existed between Genevieve Johns and Dr. Daniel. The plaintiff, Genevieve’s son, filed suit against Dr. Daniel. He alleged that Dr. Daniel failed to warn Genevieve of the risk of exposure to Rocky Mountain spotted fever. Dr. Daniel filed a motion to dismiss for failure to state a claim on the grounds that he owed Genevieve Johns no legal duty in absence of a patient-physician relationship.
In addressing this argument, the court stated, “[w]hile it is true that a physician-patient relationship is necessary to the maintenance of a medical malpractice action, it is not necessary for the maintenance of an action based on negligence.” Id. at 870. A physician may owe a duty to a non-patient third party for injuries caused by the physician’s negligence, if the injuries suffered were reasonably foreseeable. There is no medical malpractice when a party is under the affirmative duty to act to prevent another from sustaining harm. This is known as the Tarasoff principle. Thus, Bradshaw was a failure to warn case, not a medical malpractice case.
Then there is the case of Doe v. Vanderbilt, 958 S.W.2d 117 (Tenn.Ct.App.1997). Following elective jaw surgery, Jane Doe received HIV contaminated blood. She was never informed by Vanderbilt that she had undergone a blood transfusion. She was never informed that she was at risk of having been infected by HIV. While unaware of these facts, Ms. Doe got married. It was only later that year after giving birth to a daughter who had been infected with the virus in utero that Ms. Doe learned of her condition. Mrs. Doe’s infant daughter died of AIDS shortly after her birth. Mrs. Doe later died of AIDS.
Mrs. Doe=s negligence claim arose out of Vanderbilt’s failure to notify patients who had received blood transfusions. The blood had not been tested for the HIV virus. Vanderbilt contended that Mrs. Doe=s claim was subject to the provisions of the Medical Malpractice Act because she was a former patient. However, Mrs. Doe had no physician-patient relationship with Vanderbilt during the period that Vanderbilt was supposed to warn her. Thus, Doe was a failure to warn case, not a medical malpractice case.
Finally, in Burroughs v. Magee, 2003 WL 22247369, the plaintiff filed a wrongful death action resulting from an automobile accident in which her husband was killed by a truck driver under the influence of medications. The plaintiff also sued the other driver’s physician, alleging that on the day before the accident the physician negligently prescribed two medications to the other driver and that the physician failed to warn his patient of the risks of driving while under the influence of the two drugs.
Dr. Magee prescribed two medications for the truck driver, Soma (a muscle relaxant) and Esgic-Plus (a barbiturate). He prescribed the Soma to treat the driver’s muscle cramps and the Esgic-Plus to treat headaches. Both drugs act as depressants on the central nervous system and can affect a patient’s ability to safely operate a motor vehicle. The truck driver testified that Dr. Magee gave him no warnings about the two drugs and did not advise against him driving while under the influence of the medications. The driver’s medical chart indicated that physicians at Dr. Magee’s clinic had refused to prescribe Soma for him on several occasions due to apparent drug abuse. On the day of the wreck, the truck driver took Soma and Esgic-plus before driving. The plaintiff alleged that his driving ability was impaired.
The Supreme Court reviewed a number of cases relating to health care, in which it has held that a physician may owe a duty of care to a non-patient if the physician’s negligence causes reasonably foreseeable injuries to the third party. See Amos v. Vanderbilt Univ., 62 S.W.2d 133 (Tenn. 2001) (holding that hospital owed duty of care to the general public to warn a former patient of her exposure to HIV); Turner v. Jordan, 957 S.W.2d 815 (Tenn. 1997). (holding that psychiatrist owed duty of care to a nurse to protect her from a mentally ill patient); Bradshaw v. Daniel, 854 S.W.2d 865, (Tenn. 1993) (holding that physician of patient suffering from Rocky Mountain Spotted Fever owed a duty of care to warn patient’s wife of risk of contracting the disease); Wharton Trans. Corp. v. Bridges, 606 S.W.2d 521 (Tenn. 1980) (holding that physician performing pre-employment physical of truck driver owed duty of care to motoring public); Compare Pittman v. Upjohn Co., 890 S.W.2d 425 (Tenn. 1994) (holding that physician’s duty to warn regarding dangers of drug did not extend to patient’s adult grandson). In these cases, the Supreme Court utilized general negligence principles. With those principles in mind, the Court turned to consider the plaintiff’s two arguments concerning the scope of Dr. Magee’s duty.
First, the Court concluded that a physician has a duty to warn his or her patient of possible side effects of medication that could affect the patient’s ability to safely operate a motor vehicle. On the other hand, the Court held that Dr. Magee did not owe a legal duty to the plaintiffs in deciding to prescribe the two medications to Mr. Hostetler. Keep in mind that these are not medical malpractice cases. Rather, these are duty to warn cases. The rules of medical malpractice do not apply.
Civil commitment can also be subject to a negligence claim. A physician or designated professional who commits a patient to a mental institution must first personally examine the patient, rather than relying exclusively on medical records or someone else’s examination of the patient. Otherwise, the patient may sue under principles of ordinary negligence. See Vickroy v. Pathways, Inc., 2004 WL 3048972 (Tenn.Ct.App.).
The issue of general negligence versus medical malpractice is an important consideration with regard to the statute of repose. If the claim is based on general negligence principles, then the three-year statute of repose does not apply. The Medical Malpractice Act incorporates a statute of repose, which provides in pertinent part:

29-26-116. Limitation of actions; counterclaims

(3) In no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant, in which case the action shall be commenced within one (1) year after discovery that the cause of action exists.

The phrases Ain malpractice cases@ and Aany such action@ evoke a legislative intent to address only stale medical malpractice claims. After all, the stated legislative purpose of the statute of repose was to address the perceived medical malpractice insurance crisis by placing an absolute three-year limit upon the time within which medical malpractice actions may be brought. The statute has nothing to do with general negligence claims predicated on a duty to warn.

B. “Screening the Case” – The Initial Evaluation

This most important decision you will make in any medical negligence case is whether to take it. It is crucial to make a complete and accurate evaluation of each claim that you consider. Medical negligence cases are costly to litigate in both time and money. Your initial evaluation should be divided into four parts: (1) assessing the client, (2) the medical issues, (3) the legal issues, and (4) the financial cost. You can often reject a claim based solely on one of the four parts. For example, a legal evaluation may reveal that the claim is probably barred by the statute of limitations. It would then be fruitless to pry into any of the other questions. Similarly, you may reject a claim based on the financial part, when the projected cost of the case is close to maximum recoverable verdict. I tend to reject any claim unless its value is at least $500,000. These cases are too hard and too expensive to pursue without a significant reward that justifies the investment of significant time and money. Remember, the defendants win over 75% of the cases. A few bad choices can bankrupt you. Finally, take time to think about your case. Ruminate over it incessantly. Superior strategy is a by-product of superior knowledge. I view these cases like chess games. Use time wisely to think about your next move and that of your opponent.
1. Client Interview—assessing the “star” of the case

The evaluation starts with the client interview. He or she is the first source of information about the potential claim. Have the client identify physicians, dates of treatment, and other important facts. I use a client questionnaire as an initial interview form. The questionnaire is helpful in gathering important details while cutting the time our firm spends in the interview. Always assess your client’s credibility. Some clients are neurotic about doctors and hospitals; some are looking for a scapegoat due to a “bad outcome” or outrageous bill; some just have a personal problem with their doctor that has nothing to do with negligence. Beware of any client who brings you a secret taped conversation with his doctor. Go with your gut reaction about the client after your first interview. Remember, the client will probably make the same impression on the jury.

2. Medical Evaluation—being forewarned is forearmed

The medical evaluation always begins with the medical records. Order them all without exception. Going over all the medical records is the only way to make an informed choice about whether or not to take the case. Past medical records may appear irrelevant, but they never are. Often these records contain information about a client’s preexisting condition that you need to know before taking the case. For instance, the client’s claim for damages could be caused by his preexisting condition rather than negligence. The prior records sometimes show a pattern of how the client interacts with his physicians. Does the client constantly skip his appointments? Is he a pill-seeker? Does he bounce around from doctor to doctor? Does he have a history of alcohol and drug abuse? These are important matters you need to know in advance of taking the case. Every time I have skimped on getting the prior medical records, I have gotten burned. The cost of gathering records can be high. Yet, the cost of surprise when a surprise record is thrown at you is much higher.
I customarily mail a medical release to get all the records before review by my expert. Sometimes, the client gets them. I always have a nurse check the records for two major reasons: (1) the nurse can tell me if the records are complete, and (2) the nurse can translate the records for me. With all that chicken-scratch in the hospital chart, I need a translator just to find out what’s going on. Be sure the records include all the laboratory studies, nursing notes, clinic records, operative notes, fetal monitoring strips, and radiological assessments, in addition to the admission and discharge summaries.
If the records are incomplete, then send a supplemental request. Dilatory tactics can require an ex parte petition for production of the records before filing the lawsuit. I have only done this once in my practice, and the petition was joined with a request for an autopsy. If you suspect that the records have been altered, then have them analyzed by a handwriting expert. Laboratory equipment can compare the ages of inks in the records. Also, handwriting experts can compare handwritten notes and typewriting for similarities and differences. The Tennessee Supreme Court has already approved the use of handwriting experts in medical negligence cases when the record has altered or late entries.
Medical research is crucial when evaluating these claims. For example, I search Medline on the Internet for studies that discuss the medical topic(s) implicated by the claim. These studies typically represent the state of the art in medical science. They give clues to the standard of care and the subject of causation. Once I find the relevant abstracts, I order the full text of the study from Vanderbilt Medical Library. I also check topics in various medical textbooks at my office. It is helpful to consult these textbooks in advance of searching Medline. I have some in my office library. Like hornbooks, they sharpen my medical inquiry and prevent needless meandering through the countless studies on Medline. Many of the studies have parallel citations to other studies and texts that cover the same medical topic(s) with greater detail.
I then use the research to familiarize myself with the medical terminology. You cannot successfully pursue a medical negligence case unless you understand the medical principles of your case. Medical issues will arise throughout discovery and trial. Ask yourself this question: how can you educate and persuade the jury to return a verdict for your client if you don’t understand the material yourself? As I will discuss later, you cannot rely on your experts to educate the jury by themselves. On the contrary, successful trial lawyers educate the experts and the jury. You are supposed to know more about the medical issues of the case than anyone in the courtroom. Conventional research suggests that jurors are looking for leadership in the courtroom. The jury must believe that the truth is found in your superior knowledge of the issues in the case. You are the leader, and leadership requires superior knowledge. Leadership is persuasive and wins lawsuits. This is the essence of trial advocacy.

3. The Legal Evaluation

a. Statute of Limitations

You must make an early evaluation of the claim to assess its legal viability. A statute of limitations or repose may already bar the claim. You should quickly decide whether the discovery rule saves the claim. This includes an examination of whether the physician breached his patient’s trust and confidence in him by leading the patient to conclude that nothing is wrong. Medical malpractice cases are hard enough to win without the additional fight over the statute of limitations. Unless you are very confident that the discovery rule applies, you should avoid claims in which the statute of limitations is a viable defense.
For example, in Matz v. Quest Diagnostics Clinical Laboratories, Inc., 2003 WL 22409452 (Tenn.Ct.App.), the Defendants obtained a summary judgment on grounds the statute of limitation had run. In this medical malpractice case, the trial court ruled the plaintiffs “knew or should have known of their cause of action more than one year before the Complaint was filed.” Plaintiffs’ Complaint alleged on April 18, 2001, that Matz had a bleeding lesion on his head, and went to see Dr. Hughes in April of 1999. He took a biopsy which was sent to the defendant lab that did not find cancer. Plaintiffs alleged that because of the negligence of defendants, Matz’ cancer was not diagnosed until April 26, 2000, when the tumor recurred and was diagnosed as melanoma, and that Matz now had a lesser chance of survival than he would have had if the cancer had been diagnosed earlier. Defendants alleged that the plaintiffs failed to file their Complaint within the one year statute of limitations to wit: Matz testified in his deposition that he thought he had cancer all along and that it had just not been diagnosed. Ms. Matz testified that her husband was certain he had cancer “all along” and that they had just failed to diagnose it. Thus, the defendants argued that the suit was not timely filed, because Matz had a subjective belief that he had cancer for some time before it was actually diagnosed. The discovery rule tolls the statute of limitations in medical malpractice cases until the plaintiff knows, or reasonably should know, that he has been injured and by whom. Under the discovery rule, the medical malpractice statute of limitations begins to run when the patient discovers, or reasonably should have discovered (1) the occasion, the manner, and the means by which a breach of duty that caused his or her injuries occurred and (2) the identity of the person who caused the injury. Stanbury v. Bacardi, 953 S.W.2d 671, 677 (Tenn. 1997). However, the discovery rule does not permit a patient to delay filing suit until he or she becomes aware of all the injurious consequences of the alleged negligence. The statute will begin running when the patient becomes aware of facts that would put a reasonable person on notice that he or she has sustained an injury as a result of a tortious act of a health care provider.
Matz’ subjective belief or fear had no factual basis, because the doctors’ findings were that no cancer was present. The discovery rule requires that a plaintiff know “the occasion, the manner, and the means by which a breach of duty that caused his or her injuries occurred.” Stanbury, 953 S.W.2d at 677. Matz had no factual knowledge of the “occasion, manner, and means” by which defendants breached their duty that caused him harm. The Louisiana Supreme Court has recognized that “mere apprehension by plaintiff that something is wrong is not sufficient to start prescription unless plaintiff knew or reasonably should have known by exercising reasonable diligence that his problem condition may have been caused by acts of malpractice.” Gunter v. Plauche, 439 So.2d 437 (La. 1983). Generally, the question of whether a plaintiff should have discovered his injury earlier based on the facts known to him is a question of fact for the jury.
What about the reassuring physician who, whether wittingly or unwittingly, coaxes his patient into believing that everything is alright when it really is not? In McIntosh v. Blanton, 2004 WL 1869977 (Tenn.Ct.App.), a 77 year old plaintiff with an 11th grade education saw her surgeon for carpal tunnel problems. In August 1995, Dr. Blanton performed successful surgery on Ms. McIntosh’s right wrist. This surgery gave Ms. McIntosh immediate relief. On September 8, 1998, Dr. Blanton performed surgery on Ms. McIntosh’s left wrist. This surgery was unsuccessful. Ms. McIntosh’s condition did not improve, and she suffered a loss of feeling in two fingers.
In her complaint, Ms. McIntosh asserted that her ulnar and radial nerves were impaired during surgery, causing constant pain and “drawing” of the fingers. She discovered that negligence was present in the surgical procedure in the conversations with Dr. Blanton on April 5, 1999, and further in conversations with another physician on April 20, 1999, all within one (1) year from the date of the filing of the Complaint. Dr. Blanton, however, said he explained the failure of the surgery—that he had cut the palmar fascia instead of the transverse carpal ligament—to Ms. McIntosh during a post-operative visit on February 12, 1999.
On April 5, 1999, Dr. Blanton referred Ms. McIntosh to another clinic for further evaluation. She discovered her injury was caused by negligence in a meeting with another physician, Dr. Muhlbauer, on April 20, 1999. She contends that, although Dr. Blanton indicated the surgeries might be the cause of her pain, he presented it as part of the ordinary risks and complications of the procedures. She had no reason to believe Dr. Blanton was negligent or did something wrong until she met with Dr. Muhlbauer on April 20, 1999. Ms. Blanton asserts: Of all those who saw or did anything up to that point, Dr. Muhlbauer was the first to give me an opinion Dr. Blanton’s negligent acts, not risks or complications from surgery, could be the cause of my hand’s condition. However, the record also contained Ms. McIntosh’s earlier affidavit which stated:
In April 5, 1999, I first learned that the problems surrounding the pain and numbness in my hand was probably caused by a surgical error. I was advised of this fact by my treating physician, M.A. Blanton, III, M.D.

Thus, on April 5, 1999, Ms. McIntosh was aware that her injury was the result of some surgical error, although she arguably was not aware that Dr. Blanton was negligent. Ms. McIntosh also said Dr. Blanton had a “reassuring attitude” and that he “always kept discussions in the light of normal, non-negligent risks.”
The pivotal issue in this case was whether the discovery rule saved Ms. McIntosh’s action. TENN.CODE ANN. § 29-26-116(a)(1)(2) provides, “In the event the alleged injury is not discovered within such one (1) year period, the period of limitation shall be one (1) from the date of such discovery.” Under the discovery rule, the determination of when the statute of limitations begins to run requires a determination of when the plaintiff had sufficient knowledge that she had sustained an injury. The inquiry does not require that the plaintiff have knowledge that a “breach of the appropriate legal standard” has occurred. Roe v. Jefferson, 875 S.W.2d 653, 657 (Tenn.1994). The statute begins to run when the plaintiff is “aware of the facts sufficient to put a reasonable person on notice that he has suffered an injury as a result of wrongful conduct,” and the plaintiff knows the identity of the person who engaged in the conduct. Thus, the statute does not begin to run until the plaintiff had “sufficient information” to put him on notice that he has suffered an injury and that the injury was caused by a wrongful act. In this case, it appears that the court of appeals was influenced by the plaintiff’s age and lack of education. The determination of when a reasonable person should know that his injury was caused by some wrongful or negligent act is generally a question for the trier of fact. In other words, notice is a jury issue.
It is worthy to note that post-surgical pain does not trigger the statute of limitations. In Collins v. Edwards, 2004 WL 1056137 (Tenn.App.), plaintiff’s alleged that Dr. Edwards surgically removed a “healthy” colon on October 15, 1996. She further alleged that she first discovered that her healthy colon had been removed on June 16, 1998 and that Dr. Edwards intentionally failed to advise her of the actual condition of her colon and “conspired to fraudulently hide” from her and her family that her colon was removed unnecessarily. At a post-op follow-up in December 1996, plaintiff told Dr. Edwards that she continued to have the same type of pain in her abdomen that she experienced before the surgery. He responded that it would take time for the healing and there could still be post-operative changes taking place in the muscle.
Plaintiff testified that her post-operative pain was resolved within 60 to 90 days, but she continued to experience no improvement in her pain experienced pre-surgery. Dr. Edwards filed a Motion for Summary Judgment on the ground the statute of limitations had run. The trial court found that plaintiff’s continued pain put her on notice of her claim and that a duty was imposed upon her to investigate her problem under a suspicion of malpractice. The Court of Appeals reversed holding that pain does not equal notice.
It is also worth noting that a patient may claim that the medication she was taking affected her ability to discover the wrongful act. In Sampson v. Wellmont Health Sys., 228 S.W.3d 124 (Tenn.Ct.App.2007), plaintiff claimed that the statute of limitations was tolled while she was taking drugs that altered her mental status. Her explanation focused on the fact that she was taking “Oxitrol, Ambien, and Lortab.” She was taking them on the date of her deposition. The Court of Appeals found that she could state what medications she was taking at the time of the deposition. That testimony concerned a fact and was permissible testimony for a lay person. However, the Court held it was improper for the plaintiff, a lay person, to express an opinion as to the effects of such medication on her “perception, understanding, and mental abilities.” This is a medical opinion and, if it is to be given, must be testified to by a competent professional. The lesson here is to get an expert to prove that your client was drugged into failing to file within the statute of limitations.

b. Causation

The most important element is causation. This is usually the centerpiece of any medical malpractice defense. Assuming you can prove that the defendant is negligent, if that negligence did not cause additional injury or damage, then you don’t have a case. This is frequently called the “so what” defense. For instance, the defendant might assert that even if he had discovered and treated the plaintiff’s cancer six months earlier, the plaintiff still would have died. Moreover, the defendant may contend that some other malady or preexisting condition was the “but for” cause of your client’s demise.
In many medical negligence cases, the plaintiff’s attorney will face a motion for directed verdict on the issue of causation. Deep thought and preparation must be given to this issue well in advance of trial. You should be ready to file instantly a memorandum of law to oppose the motion for directed verdict. Your memorandum should incorporate basic principles of causation that set the framework for the argument during trial.
Here are some rudimentary concepts that underlie causation. Keep in mind that causation questions must be determined “in light of logic and common sense.” Unless undisputed facts permit a reasonable person to reach only one conclusion, the issue of causation must be resolved by the jury. When the testimony of medical expert witnesses conflicts, the jury “should be left free to adopt that view which is most consistent with reason and justice.” A negligent act or omission must have been a substantial factor in bringing about the injury in order to be a proximate cause of that injury. More than one negligent act may be the proximate cause of an injury. Finally, note that a negligent act or omission may be the proximate cause of an injury although it is not the singular cause.
Causation is also basic element that you must prove. No evaluation of the medical negligence case is complete without proof of causation. You cannot be content to wait for the defendant to raise it at trial. Normally you will need an expert to establish causation. The expert’s testimony must meet the burden of admissibility – more likely than not to a reasonable degree of medical certainty. We as trial lawyers all know that “reasonable degree of medical certainty” and “more probably than not” are synonymous terms of art. We also know that juries get confused when the terms are used interchangeably. Certainty and probability have completely different meanings. Nevertheless, we accept this contradiction as part of our ritualistic practice ordained by tradition and precedent. But what happens when precedent and pattern jury instructions collide?
The Middle Section Court of Appeals faced such a dilemma in Bara v. Clarksville Memorial Health Systems, Inc., 2002 WL 31039333 (Tenn.App.). Over objection of the plaintiff, the trial court charged the jury in accordance with the defendant’s special jury request which stated, “in order for you to find that the injuries and/or death of Ms. Bara were proximately caused by the negligence of any defendant, the plaintiffs must have proven causation to a reasonable degree of medical certainty.” This special charge came on the heels of another instruction which stated, “Plaintiffs have the burden of proving more likely true than not that the defendant’s conduct was the legal cause of the plaintiff’s injuries.” The inconsistency is obvious. Not surprisingly, the jury returned a defense verdict.
On appeal, Justice Cain declared that the term “reasonable degree of medical certainty” is an oxymoron. The phrases “reasonable degree of medical certainty” and “more probable than not” are not synonymous. Our Supreme Court has previously used both phrases interchangeably in Kilpatrick v. Bryant, 868 S.W.2d 594, 602 (Tenn.1993), “causation in fact is a matter of probability, not possibility, and in a medical malpractice case must be shown to a reasonable degree of medical certainty.” Thus, Bryant left us with two different standards to prove causation in medical negligence cases. Justice Cain concluded in Bara that the standard for the admission of expert testimony (reasonable certainty) had been erroneously converted by the trial judge into a burden of proof instruction. Therefore, he held that the defendant’s special charge was inconsistent with the pattern jury instruction and remanded the case for a new trial.
Doctors naturally tend to view causation in terms of scientific certainty. You should bear in mind that the burden of admissibility for experts only means, “testimony that expresses a professional medical judgment that one cause is the most likely cause of the injury; its weight is to be determined by the jury.” For this reason, Tennessee law does not allow a claim for “loss of chance” unless the plaintiff’s odds of survival were 51% or greater—more likely than not. Spend as much time as necessary to evaluate critically the nexus between negligence and injury in your case. Causation has torpedoed many malpractice cases.
You should also be aware that the healthcare providers have an additional weapon in their arsenal to attack the plaintiff’s causation theory. In Mitchell v. Ensor, 2002 WL 31730908 (Tenn.Ct.App.), the issue for review was whether the defense expert could testify as to alternate causes of the plaintiff’s condition. The plaintiff asserted that the physician expert’s admission that he did not know the specific cause of the plaintiff’s condition rendered his testimony speculative. The plaintiff also contended that the expert’s “alternate cause” theories were rooted in possibility rather than probability. Thus, the plaintiff moved to exclude the defense expert’s testimony regarding causation.
In a strange opinion, the Court of Appeals concluded that defendants in medical malpractice actions may introduce expert witness testimony to rebut a plaintiff’s expert even though the defendant’s expert testimony is couched in terms of a “possibility.” The defendant need not prove another cause. He only has to convince the trier of fact that the alleged negligence was not the legal cause of injury. In proving such a case, a defendant may produce other “possible” causes of the plaintiff’s injury. The result is that plaintiffs must be prepared to inquire about phantom causes during discovery in order to prevent a surprise at trial.
A plaintiff may be able to exclude these phantom causes before trial. In Hunter v. Ura, 163 S.W.3d 686 (Tenn.2005), the trial court excluded the defendant’s expert, Dr. Hays, after finding that his causation testimony was speculative. The Court of Appeals reversed the trial court’s ruling because Dr. Hays’ testimony presented “possible alternative causes” of the decedent’s death.
The Supreme Court reversed. The trial court had evaluated Dr. Hay’s testimony under McDaniel v. CSX Transp. Inc., 955 S.W.2d 257 (Tenn.1997), which governs the admissibility of scientific evidence. Under McDaniel, the trial court enjoys great deference in evidentiary rulings. It appears that the Court of Appeals overstepped its bounds. The effect of Ura is that the “possible alternative cause” remains a phantom that can still be fought in limine.
An independent, intervening cause breaks the chain of causation. It is a neat legal fiction that serves to divorce a negligent act from the injury. The key to successful application of intervening cause is a lack of foreseeability. If the injury is unforeseeable, then there is no proximate cause and hence no liability. The law is equally clear, however, that “[a]n intervening act, which is a normal response created by negligence, is not a superseding, intervening cause so as to relieve the original wrongdoer of liability, provided the intervening act could have reasonably been foreseen and the conduct [of the original wrongdoer] was a substantial factor in bringing about the harm.” Accordingly, “an intervening act will not exculpate the original wrongdoer unless it is shown that the intervening act could not reasonably be anticipated.” McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn.1991); Haynes v. Hamilton County, 883 S.W.2d 606 (Tenn.1994). Whether such an act or event constitutes an intervening cause is always for the jury to determine unless the uncontroverted facts and inferences make it clear that all reasonable persons must agree on one proper outcome.
Rule 8.03 lists intervening and superseding causes as two separate affirmative defenses. TENN.R.CIV.P. 8.03. Courts and litigators frequently blur the chalk lines between them. Nonetheless, they are different. A superseding cause cuts off the liability of an “admittedly negligent defendant.” Godbee v. Dimick, 213 S.W.3d 865, 886-87 (Tenn.Ct.App.2006). An intervening cause “presupposes a defendant’s negligence and causation.” Id. Without proof of some initial tortious act or omission by a defendant that precipitates the plaintiff’s ultimate injury, subsequent causes and their injuries cannot “intervene.” Id. Without proof of causation, there is nothing for the subsequent cause to “interrupt” or “intervene”… there is no chain of causation to break. Id (quoting Kelly v. Montoya, 470 P.2d 563, 567 (N.M.Ct.App.1970). In absence of (1) an admission of antecedent negligence by the Defendants or (2) a finding of negligence by the trial court, there is no intervening/superseding cause in this case.
Furthermore, the Defendants’ antecedent negligence is an indispensible prerequisite to an intervening/superseding cause defense. There cannot be one without the other. An intervening act, which is a normal response created by the defendant’s negligence, does not relieve the defendant of liability if the intervening act “could have reasonably been foreseen.” McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn.1991). An intervening act does not exculpate the Defendants when the intervening act “could not have been reasonably anticipated.” Id. at 775.
A nurse is incompetent to offer an opinion about causation. In Richberger v. The West Clinic, P.C., 2004 WL 787162 (Tenn.App.), plaintiff filed a medical malpractice action for injuries suffered as a result of negligent chemotherapy treatment. The key issue was whether a registered nurse was prohibited from testifying as an expert witness as to the issue of causation in a medical malpractice action for the purpose of satisfying TENN.CODE.ANN. § 29-26-115(a)(3). The trial court ruled that a nurse is not competent to give causation opinions. The trial court ruled this way because a “registered nurse is prohibited from making a medical diagnosis [pursuant to TENN.CODE.ANN. § 63-7-103(b),] and is therefore not competent to offer opinions on medical causation in a medical malpractice action.” In Nash v. Goodlark Hosp., 1990 WL 56192 (Tenn.App.), the court held that a nurse is not permitted to make a diagnosis. Moreover, in Bishop v. Smith Nephew Richards, Inc., 1995 WL 99222 (Tenn.App.), the court held that opinions regarding causation is outside the expertise of the nurses. Following this line of authority, the Court of Appeals affirmed the trial court’s exclusion of the nurse’s medical causation opinion.
The error in judgment instruction has received attention in the last couple of years. The relevant jury instruction is as follows:

A physician is not negligent or guilty of malpractice simply because his efforts prove unsuccessful. It is possible for a physician to err in judgment or be unsuccessful in diagnosis or treatment of care without being negligent. An error of judgment is not necessarily evidence of a want of skill or care because mistakes and miscalculations are incident to all of the business of life. A physician will not be liable for a mistake in judgment so long as he exercised the reasonable and ordinary care and competence that was competent to his calling and his specialty.

In Ward v. Glover, 206 S.W.3d 17 (Tenn.Ct.App.2006), the parents filed an original complaint for themselves and on behalf of baby against doctors, medical clinic, hospital and anesthesia provider, alleging that baby suffered catastrophic and permanent injuries because mother’s uterus ruptured, thereby causing baby to be ejected into mother’s abdomen. The plaintiffs contended at trial that Dr. Glover did not respond quickly enough to a telephone call from an obstetrics nurse. This was purportedly a deviation from the standard of care. Because, so the argument goes, the speed by which the defendant responded to the hospital “did not involve a choice of treatment or a decision between two medically accepted courses of action,” the jury should not have been instructed on errors in judgment.
The Court of Appeals disagreed with the plaintiffs’ position on this issue. The Court stated:

Without question, Dr. Glover used his medical judgment in all of the decisions he made with respect to Mrs. Ward and Faith on the morning of February 10, 2002: in advising the Wards in their initial telephone call to him; in advising Nurse Chellino on the care and treatment of Mrs. Ward following the 6:02 a.m. phone call; in determining the appropriate course of action to take after evaluating Mrs. Ward upon his arrival at the hospital; and, ultimately, in the delivery of Faith. Dr. Glover certainly used his medical judgment when, after listening to Nurse Chellino describe Mrs. Ward’s symptoms at 6:02 a.m., he relayed that he was coming in to the hospital immediately, but did not, at that time, give further instructions with respect to preparations for surgery. Clearly, the timeliness with which Dr. Glover responded following the 6:02 a.m. telephone call involved his medical judgment, thus justifying the jury instruction. (emphasis added).

In Godbee v. Dimick, 213 S.W.3d 865 (Tenn.Ct.App.2006), the doctor denied any mistake, honest or otherwise, and his defense did not envision an “honest mistake.” The Court of Appeals found error in the error of judgment or honest mistake instruction. It is a little difficult to square Ward with Godbee. The best strategy is to get the doctor where possible to concede that many of the rudimentary aspects of his or her conduct did not involve a judgment call but were mandated by the standard of care. Get the doctor to admit that he made no mistakes in the case whatsoever.
c. Damages

Your damages assessment is likewise significant. In wrongful death cases, there has been a marked change over the last two years. Tennessee law now allows the recovery of loss of consortium as an element of the pecuniary value of the decedent. In my opinion, Jordan tripled the value of wrongful death claims. Parental, spousal, and filial consortium losses are part of the decedent’s pecuniary value. Economists are no longer sine qua non in wrongful death cases. To get top dollar in wrongful death cases, you must “resurrect” the decedent. You need to collect biographical information: school records, extra-curricular activities, work records, hobby interests, church attendance, and so forth. More important, you need to explore the decedent’s relationship with other family members. In spousal consortium cases, the possibility of remarriage may be relevant.
What happens if you represent the parent of a deceased child, the other parent has filed a wrongful death suit, and the statute of limitations has expired? In this day of 50% divorce rates, you may encounter this situation. By all means you should intervene. Here is why. In Mosier v. Lucas, 207 S.W.2d 1021 (Tenn.Ct.App.1947), the father brought suit to recover damages for the wrongful death of his son. Over a year after the son’s death, the father moved to amend his pleadings to join the mother a party-plaintiff. The trial court overruled the motion based on the statute of limitations. The Court of Appeals reversed by finding that the amendment related back to the filing of the original suit.
The Mosier decision was later endorsed by the Tennessee Supreme Court in
Gogan v. Jones, 273 S.W.2d 700 (Tenn.1954). As administrator of his son’s estate, the father filed suit in Tennessee for the wrongful death of his son. More than one year after his son’s death, the father moved to amend by adding the mother as a party-plaintiff. The defendant objected to the proposed amendment on the ground that it was barred by this statute of limitations. The amendment, according to the defendant, was in effect the institution of a new suit commenced more than one year after the accident. The trial judge agreed and dismissed the suit.
The Supreme Court acknowledged the general principle that “when the amendment does not set up a new cause of action, or bring in new parties, the running of the statute is arrested at the date of the filing of the original pleading.” Mr. Gogan’s amendment did not assert a new cause of action, but it did add a new party. The case turned on whether the addition of a real party in interest in a wrongful death case was regarded as a new cause of action. To answer this question, the Supreme Court found that joining the mother as party-plaintiff did not change the cause of action, which was exclusively for the purpose of recovering damages for the son’s estate. Therefore, the Supreme Court concluded that the amendment related back to the father’s original complaint.
The Supreme Court had yet another opportunity to revisit this issue in Chapman v. King, 572 S.W.2d 925 (Tenn. 1978). Both parents filed suit for the wrongful death of their daughter. Over a year after death, the widower moved to be substituted as the proper party-plaintiff. He had priority to prosecute the claim as surviving spouse pursuant to TENN.CODE ANN. § 20-5-106. The trial court overruled the motion based on the statute of limitations. The Supreme Court concluded that the addition of a party-plaintiff in a wrongful death case relates back to the original complaint because there is no new cause of action.
In modern practice, TENN.R.CIV.P. 15.03 joins a new party-plaintiff to the original complaint as long as the amendment pertains to the same conduct, transaction, or occurrence. Hawk v. Chattanooga Orthopaedic Group, 45 S.W.3d 24 (Tenn.Ct.App. 2000). TENN.R.CIV.P. 24.01 allows interested parties to intervene in the lawsuit. If you represent a parent of a deceased child, do not let the statute of limitations dissuade you from intervening.
With regard to medical negligence causing personal injury, my litmus test is whether the injury is permanent and severe. The stakes are higher in these situations. A serious, permanent injury tends to level the playing field compared with the health care provider in court. This is one major reason why medical negligence verdicts are typically substantial. Fortunately, Tennessee law does not place arbitrary caps on damages. On the other hand, claims involving questionable or temporary injuries are difficult to win. I usually steer away from aesthetic or cosmetic injuries. I’ve noticed in recent issues of Laska’s malpractice reporter that plastic surgeons have an exceptionally high victory rate at trial. Perhaps aesthetic injuries are judged like beauty itself—in the eye of the beholder. Look for significant, lifelong, concrete injuries that will make the jury believe, “This is a big case!”

d. Other Tortfeasors

There is now uniformity on the Court of Appeals that the original tortfeasor is liable for subsequent medical malpractice suffered by the plaintiff. In Jackson v. Hamilton, 2003 WL 22718386 (Tenn.Ct.App.), Jackson was injured in an intersection collision. She saw a chiropractor, Dr. Robinson, on the day of the accident. Dr. Robinson performed no spinal adjustments at that appointment, but instead provided Jackson with cold packs, a neck collar, and he ordered x-rays. After she had the x-rays, the plaintiff returned home and began to experience pain in her shoulders and back with a tingling feeling in her fingers. Dr. Robinson then performed a spinal adjustment on her neck. Though she experienced an immediate decrease in pain overall, she noticed a numbness in her left hand a couple of weeks later. Because Dr. Robinson was concerned about her left arm, he referred her to a neurosurgeon, who ordered an MRI and determined that Jackson had a soft disc rupture that required surgery. Fearing that the defendants would blame Dr. Robinson for her disc rupture, Jackson requested the following jury charge in accordance with the common law:

If one is injured by the negligence of another, and these injuries are aggravated by medical treatment (either prudent or negligent), the negligence of the wrongdoer causing the original injury is regarded as the proximate cause of the damage subsequently flowing from the medical treatment.

The rationale for this time honored rule is that the tortfeasor whose negligence caused the injured party to require medical attention should bear all the foreseeable risks resulting from the injury, including risks of medical negligence. The defendants, on the other hand, sought permission to amend their answer to name Dr. Robinson as a party at fault. They argued that, given the holding in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992), the common law rule was no longer viable. The rule is at odds with McIntyre, but it has been upheld in both the Middle and Eastern Sections of the Court of Appeals, respectively. See Atkinson v. Hemphill, 1994 WL 456349 (Tenn.Ct.App.); Troy v. Herndon, 1998 WL 820698.
The effect of eliminating the common law rule would be to penalize injured parties in two ways. First, it would effectively shift the burden of proving medical negligence (or its absence) from the defendant to the plaintiff. To protect themselves, plaintiffs would feel compelled to timely name medical providers as defendants in any suit whether or not medical negligence was actually suspected. Next, if the one year statute of limitations for filing medical malpractice claims had passed, then allowing the defendant to allege medical negligence as an affirmative defense would unfairly deprive the plaintiff of a full recovery for her injuries. The Western Section, therefore, agreed with Atkinson and Troy. Defendants have the right to either implead doctors to the original suit or in the alternative sue them under a theory under a theory of subrogation.
4. Financial Evaluation—that long hard voyage

Besides to weighing the medical and legal merits of your claim, you should evaluate its financial merits. I have touched upon this earlier, but it bears repeating—medical negligence cases are notoriously expensive. You should project the case expenses and then check your chances of winning before taking the case. You can easily find yourself advancing $50,000 in case expenses before the trial even starts. When you see how the potential case expenses compare in proportion to your fee , then you will know whether the case is affordable. Keep in mind that suing multiple defendants will substantially increase the cost of litigation, due to the added number of depositions and experts in the case.
The expenses of pursuing medical negligence cases to trial are prohibitive for some firms. Unfortunately, this economic reality forces attorneys to decline meritorious claims. I therefore suggest that you consult a firm with extensive experience in medical negligence cases. Association is one method to finance a claim that you would otherwise decline. Set up a meeting and consider associating that firm. Joint representation permits the sharing of case expenses. You will benefit from spreading the risk and sharing the workload with a more experienced firm.
Be care about sharing fees. Shoughrue v. St. Mary’s Medical Center, Inc., 2004 WL 948381 (Tenn.Ct.App.) is a fee dispute case to remember. The plaintiff’s attorney claimed that he was entitled to one third of the settlement amount by contract in a medical malpractice case. The court of appeals held that one third is the maximum fee in medical malpractice cases. Regardless of the fact that the Shoughrues agreed to a 33(1/3) % of the total recovery in the case, he was only entitled to that fee which the trial court determined to be reasonable. The reasonableness of an attorneys’ fee is measured by: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The time limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.
Ethically, you must inform the client in advance of the financial risk. The client must know that the case is an economic partnership. Avoid the “shaky” claims. A colleague once told me that the most money he made in his legal career was the money that he saved declining questionable claims. This colleague has a track record of winning multi-million dollar medical negligence verdicts in Georgia. As a final note, remember that the lifespan of these cases can extend through the entire appellate process. Be prepared to extend your credit line to support that long voyage.

C. The Need for / Benefits of Expert Consultation and Review

I have each claim reviewed by an informal expert after gathering all the medical records. This review is strictly for consultation, not in anticipation of testimony. I probably decline about 90% of claims based on the opinion from my expert. He provides a frank analysis of my claim by screening out the “shaky” ones. He lets me know if all the medical records have been gathered. He spots omissions and alterations. He points me to literature about the medical issues that I could not find and fine-tunes my research. He is truly the medical brain behind the claim.
I rely on my informal expert to identify all potential defendants. In one previous case, my expert found a party a fault that I did not even know existed after my initial review. He also identifies other Rule 26 experts who are needed in the case. He identifies the specialties implicated by the claim so that I can locate other Rule 26 specialists before filing suit. I never like to hunt for experts after suit is filed.
Finally, I rely on my informal expert to outline the medical issues and answer the all-important question, “What is the malpractice?” If the claim has merit, he puts me on the right track. If the claim lacks merit, he explains the deficiencies in lay terms. I then pass this information on to my client. The informal expert is a treasured part of my litigation team in whom I have the utmost trust and confidence. This expert cannot be discovered as long as he is consulted in anticipation of litigation and not subsequently identified as a witness.

D. The Pre-filing Checklist

I customarily use a 10-point checklist to make sure that all priorities are met. There is always a statute of limitations lurking around the corner, so I use this checklist to conduct the review expeditiously:
1. When I first meet the client, I have the following items available:
a. The contract
b. The client questionnaire
c. A release for medical records / employment records / educational records

I have the client sign these before leaving my office. The client can fill out the questionnaire and mail it to me later. I also try to pinpoint when the statute runs.

2. I gather all the medical records and organize them. I have a medically trained paralegal and/or a nurse index the records.

3. I nail the statute down. Do not to take chances here. You can’t always count on the discovery rule to save your claim.

4. I then submit the medical records to my informal expert. The cover letter need only say that I want the records reviewed and wish to discuss by phone later. I make sure the records have been pre-analyzed for omissions and alterations before submission to my informal expert.

5. When my informal expert calls, we discuss:
a. What is the malpractice?
b. The identity of all parties who may be at fault
c. The specialties or subspecialties involved in the case
d. Likelihood of success

6. I then meet with my client again to inform him of the opinion. At this point, I ask the client to pay for a formal expert review unless exceptional circumstances dictate otherwise. The expert’s charge for review is usually $500 to $1000. The formal expert will likely testify in the case and is subject to discovery as a matter of right.

7. I start projecting the case expenses. I make a final check to decide whether I will accept the case.

8. I draft the complaint and the discovery requests. I discuss the pleadings with my expert(s) over the telephone to make sure that I have covered everything.

9. I make sure that I have the right venue. Then, I file the complaint and send the discovery requests with it. There is no need to lengthen the voyage, so I usually serve the discovery requests with the complaint. If I non-suit, then I make sure that service on all defendants has been perfected, otherwise, the claim may be barred. I have the right to recommence the action by means of a motion to amend the original complaint.

10. I prepare myself for a rapid response motion for summary judgment. Fortunately, the trial court will postpone any hearing to allow me to go ahead with discovery.

E. Potential Areas of Liability—Theories and Causes of Action

I have devoted myself in this section to the most prominent theories for recovery and causes of action. Although there are others, the pragmatic approach demands a focus on negligence and agency, hospitals and physicians. Hospitals owe each patient a duty to furnish the care, attention, and protection reasonably required by the patient’s known mental and physical condition. The hospital’s duty starts when it accepts a patient. The law charges it to use reasonable care to prevent a new injury. The existence of a physician’s duty arises out of the professional relationship between the physician and his patient. The physician-patient relationship arises when the patient knowingly and voluntarily seeks the professional assistance of a physician, and the physician knowingly agrees to treat the patient. Once a physician accepts a patient, he has a duty to continue providing treatment as long as medically necessary.
A physician’s duty to attend a patient continues unless the physician-patient relationship is ended by: (1) mutual consent, (2) the physician’s withdrawal after reasonable notice, (3) dismissal of the physician by the patient, and (4) the cessation of the medical necessity that gave rise to the relationship in the first place. A physician is liable for abandoning the patient unless one the exceptions apply. Courts have held that when a physician is temporarily unable to attend to a patient personally, he may make arrangements for a competent person to attend the patient in the physician’s absence.
The Supreme Court revisited the patient relationship in Kelley v. Middle Tennessee Emergency Physicians, P.C., 2004 WL 868500 (Tenn.). Mrs. Lillie Kelley went to the emergency room complaining of chest discomfort that had progressively worsened. She was diagnosed as having a heart attack and was admitted to the hospital. Mrs. Kelley was treated with anticoagulants and discharged from the hospital after four days.
Two months later, Mrs. Kelley again went to the emergency room and was seen by Dr. Anderson. At that time, Mrs. Kelley complained of chest pain similar to the pain she had experienced with her heart attack two months earlier. Dr. Anderson felt it was imperative to call her treating cardiologist, Dr. Fleet. However, when his staff called, Dr. Fleet was not available. Unable to reach Dr. Fleet, Dr. Anderson spoke instead to Dr. John Cage. Dr. Anderson told Dr. Cage that Mrs. Kelley had atypical chest pain lasting over twelve hours, that her clinical exam was unremarkable, that there were no new EKG changes, and that she had a normal troponin I level.
Dr. Cage asked whether a cardiac catheterization had been performed in April 1999. Dr. Anderson stated that a cardiac catheterization had been performed and that it showed Mrs. Kelley had an occluded left anterior descending artery and no other disease. Dr. Cage then asked Dr. Anderson if any intervention was done in April 1999. Dr. Anderson replied that the medical records indicated that no intervention had been done and that the treating physician (Dr. Fleet) had concluded that medical therapy was indicated. Dr. Anderson and Dr. Cage then discussed how to treat Mrs. Kelley’s current chest pain. They agreed that Mrs. Kelley could be treated symptomatically, with follow-up care within the next day or two with Dr. Fleet. After his telephone conversation with Dr. Cage, Dr. Anderson released Mrs. Kelley from the hospital. Thereafter, Mrs. Kelley suffered an acute cardiopulmonary arrest and was pronounced dead approximately one hour after her arrival at the hospital.
Mrs. Kelley’s surviving spouse filed suit against Dr. Cage. He filed a motion for summary judgment, asserting that no physician-patient relationship existed between himself and Mrs. Kelley. In support of his motion, Dr. Cage filed an affidavit stating that Mrs. Kelley never personally contacted him, and that he was never asked to see Mrs. Kelley. Dr. Cage also stated that he never “knowingly accepted Lillie Kelley as a patient” and “never provided any medical services to Lillie Kelley.” The trial court granted summary judgment to Dr. Cage, finding as a matter of law that no physician-patient relationship existed between Dr. Cage and Mrs. Kelley.
The Supreme Court noted that the physician-patient relationship is generally characterized as a contractual one in which the patient knowingly and voluntarily seeks the professional assistance of the physician, and the physician knowingly agrees to treat the patient. The relationship may either be express or implied. A face-to-face meeting between the physician and patient is not required, and a physician-patient relationship therefore “may arise out of a consultation by the patient’s primary physician with another physician when that consultation is for the treatment of the patient.” Thus, the question of whether a physician-patient relationship arises is not governed solely by the law of contracts.
The Supreme Court held that it is for the trial court to determine, as a matter of law, what characteristics must be present for a relationship to give rise to a duty the breach of which may result in tort liability. It is for the jury to determine whether the facts in evidence establish the elements of that relationship. Based on the facts, the Supreme Court reversed the trial court’s summary judgment and left the issue of a physician-patient relationship as a fact issue for the jury to decide.
A cause of action for medical negligence is controlled by statute. TENN.CODE ANN. §29-26-115 sets forth the elements of negligence and res ipsa loquitor. Any want of skillful care or diligence by physician that sets back a patient’s recovery, prolongs the patient’s illness, increases the patient’s suffering, or makes the patient’s condition worse gives rise to a medical negligence claim. Keep in mind that a plaintiff facing summary judgment or directed verdict need only demonstrate that he has been injured. The extent of the injury is a question for the jury.
1. Informed Consent versus Medical Battery

Two potential causes of action may arise when a physician performs a procedure without the patient’s consent. Informed consent is the first claim, and it is governed by TENN.CODE ANN. § 29-26-118. An informed consent claim is triggered when the patient knows that a procedure is going to be performed but is unaware of the potential risks associated with the procedure. The claim does not relate to the manner in which the procedure was performed, but rather to the manner in which the physician obtained the patient’s consent to perform the procedure.
Informed consent claims require proof that the physician’s conduct fell below the applicable standard of care. This deviation must be proven by expert testimony. The expert must testify that the defendant’s disclosure of risks and alternatives to the patient was insufficient; that a reasonably prudent physician would have acted differently under similar circumstances. The plaintiff must then prove that a reasonably prudent patient would not have consented to the procedure if he had been suitably informed of all the material risks, benefits, and alternatives. A hospital is not generally required to procure informed consent to surgical procedures ordered and performed by non-employee physicians.
The second cause of action is a medical battery claim. A medical battery claim is triggered when a physician performs an unauthorized procedure. A typical example is when the physician performs a procedure on the wrong part of the patient’s body. The controlling factual issues in these cases are (1) whether the patient knew that the physician was going to perform the procedure and (2) whether the patient authorized the physician to perform it. If the answer to both of these questions is “no,” then a medical battery has been committed. Since the focus of the claim is upon the patient’s knowledge, there is no prerequisite of expert testimony to maintain the claim. The existence of a signed consent form gives rise to a presumption of consent in absence of misrepresentation, forgery, or lack of capacity.
Note the intersection between medical battery and a consent form in Smith v. Portera, 2005 WL 1269081 (Tenn.Ct.App.). The plaintiff argued that a genuine issue of material fact existed as to whether she consented to an unnamed surgical procedure in addition to scheduled procedures named in a hospital consent form. The trial court granted the defendant’s motion for summary judgment upon findings that the case was actually a suit for medical malpractice, rather than medical battery, thus the plaintiff failed to present expert proof that the surgery was not in her best interest.
The Court of Appeals vacated the summary judgment. The plaintiff’s suit stated a cause of action for medical battery. The consent form signed by the plaintiff authorized the additional surgery only if it was required by an unforeseen condition and whether there was an unforeseen condition requiring the additional surgery. The meaning of the consent form was an issue. Thus, there was a genuine issue of material fact. Smith stands for the proposition that if there is an issue about the meaning of a consent form, then medical battery is a viable cause of action.
What happens when there is a repudiation of the patient’s consent? The result is medical battery. In Holt v. Alexander, 2005 WL 94370 (Tenn.Ct.App.), the plaintiff went to the hospital suffering from a kidney stone, and was admitted for observation. The next morning, the plaintiff was told that he was scheduled to undergo a procedure to remove the stone. Soon, the defendant physician came to see the plaintiff and told him that he would be performing an invasive procedure, which required significant recovery time. According to the plaintiff, the plaintiff then asked the defendant physician whether his treating urologist had approved of the procedure. The defendant physician responded that he had spoken with the urologist and that the urologist had approved the procedure.
The plaintiff then signed a consent form, and the procedure was performed. The plaintiff later learned that the defendant physician had not spoken with his urologist, and that the urologist did not approve the procedure. The plaintiff sued the defendant physician and his medical group for medical battery. The Court of Appeals held that a genuine issue of material fact existed as to whether the plaintiff’s consent to surgery was vitiated by the defendant physician’s alleged misrepresentation of fact. Please note that a child born alive has an independent cause of action for injuries caused by the failure of a physician to obtain informed consent from the child’s mother during labor. Miller v. Dacus, 2007 WL 2332942 (Tenn.).

2. Agency

You should name every potential party as a defendant, including the nurses, unless strategy dictates otherwise. There appears to some lingering doubt among the trial bar about whether you may nonsuit the agent and still proceed against the principal after you have sued them together in the same case. Rest assured that you can do so as long as you don’t release the agent when you nonsuit him. It is well established in Tennessee that an employer is not released from liability even though the plaintiff had taken a voluntary non-suit as to the employee defendant. Rankhorn v. Sealtest Foods, 479 S.W.2d 649, 652 (Tenn.Ct.App.1971). The employer is still liable under a respondeat superior theory for the employee’s actions even if the plaintiff chooses not to proceed against the employee and only against the employer. The plaintiff, of course, has an unqualified right to sue the agent without joining the principal as a defendant. It is always beneficial to deprive the defense of four jury challenges via a nonsuit. Just make sure that you don’t sign a release.
From a strategic standpoint, you may refrain from suing an arguably negligent party until the defendant brings him in. This includes any governmental entity that may be at fault. In Conley v. State, 2003 WL 21226810 (Tenn.Ct.App.), the plaintiff filed suit against a nursing home. The nursing home named the State of Tennessee as a potential tortfeasor in its affirmative defense. The plaintiff then sued the State within ninety days pursuant to the savings provision contained in § 20-1-119 after the one year of statute of limitations had run. The State contended that § 20-1-119 did not apply because “State of Tennessee” was not expressly mentioned in the statute. The Supreme Court held that the claim against State was timely under the 90-day statute even though it was filed after the one-year statute of limitations.
You may seek recovery separately from a governmental employee who is deemed a “health care practitioner.” In multiple defendant situations, common law agency rules apply. An agency relationship is created by the acts of the agent. In determining whether an agency relationship exists, the conduct and relationship of the parties is examined. For instance, when a hospital offers a service, and the patient does not choose the person who will perform the service, the court may infer that the person relied on the reputation of the hospital. The “right to control” the agent is the essential factor in determining whether an agency relationship exists. Likewise, whether a master / servant relationship exists depends upon the amount of control by the principal over the “means and method” of the work of the servant. A factual issue exists for vicarious liability based on apparent authority even in the absence of proof of actual reliance.
Tennessee also recognizes the “loaned servant” doctrine under which an employee of one employer may become the servant of another and shift the liability for his negligent acts to the servant’s employer. A good example of this arrangement is found Parker v. Vanderbilt. The surgical staff at Nashville General Hospital was furnished by Vanderbilt University under a written contract with the Metropolitan Government of Nashville. The agreement between Vanderbilt and the hospital provided that the residents, as members of the medical staff, were accountable solely to the hospital. The hospital had the right to approve the assignment of all medical staff personnel, and all residents were to be supervised by and accountable to the hospital. Therefore, the court held that the Vanderbilt doctors were the loaned servants of the hospital at the time of the operation on Mr. Parker. Any negligence on the part of the surgical team could not be imputed to Vanderbilt. In essence, the written agreement dictated which entity was liable.
In absence of an unambiguous written agreement, the courts apply a test found in the Restatement of Agency. The issue is not whether the agent remains the servant of the general employer as to matters generally, but whether as to the specific act he is acting in the business of and under the direction of one or the other. It is not conclusive that in practice he would likely obey the directions of the general employer in case of conflict. The focus of the inquiry is upon the understanding among the parties. This is a question of fact in each case when there is no unambiguous written agreement. Finally, Tennessee law allows the master to be held liable pursuant to the doctrine of respondeat superior for the actions of a servant when the servant is immune from suit.

3. Actions against the State

TENN.CODE ANN. §§9- 8-307(a)(1)(D) and (a)(1)(E) allow certain claims against the State for professional negligence. These sections state:

(a)(1) The commission or each commissioner sitting individually has exclusive jurisdiction to determine all monetary claims against the state based on the acts or omissions of “state employees,” as defined in § 8-42-101(3), falling within one (1) or more of the following categories: (D) Legal or medical malpractice by a state employee; provided, that the state employee has a professional/client relationship with the claimant;
(E) Negligent care, custody and control of persons.

Claims for damages caused by the negligent release of involuntarily institutionalized persons with dangerous propensities pursuant to (a)(1)(E) are rooted essentially in medical malpractice, thus there can also be a companion claim under (a)(1)(D), which is called “professional malpractice.”
A citizen can hold the State liable for the negligence of its professional personnel to the same extent that liability can be imposed on private parties under similar facts. On the other hand, the State cannot be held liable for negligence unless it owes a duty of care to the injured party and has breached that duty. Normally, persons have no duty to protect others from the dangerous conduct of third parties. RESTATEMENT (Second) OF TORTS §314 (1964). This duty can arise though when the State or private person has a “special relationship” either with the person who is the source of the danger or with the person or persons foreseeably at risk.
One circumstance giving rise to a special relationship involves entities like a hospital or detention center which has custody and controls dangerous persons. For example, in Hembree v. State, 1995 WL 50066 (Tenn.Ct.App), a mental patient with a history of violent criminal behavior was involuntarily committed to the Middle Tennessee Mental Health Institute. The decision was made to allow this patient to participate in a vocational program “off campus” without supervision of the MTMHI staff. Later, the patient entered an apartment in Clarksville and killed two people. The families sued the state in the claims commission. The Court of Appeals adopted RESTATEMENT (SECOND) OF TORTS §319 in Hembree and held:

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

This case opened the door to a wide variety of professional negligence claims against the State.
In deciding whether to prosecute professional negligence claims against the State, you must always remember jurisdiction. Article I, §17 of Tennessee’s Constitution provides that “suits may be brought against the State in such a manner and in such courts as the Legislature may by law direct.” When deciding whether a claim is within the proper statutory scope of the Commission’s jurisdiction to hear and decide claims against the State, appellate courts will generally give a liberal construction in favor of jurisdiction, but only so long as (1) the particular grant of jurisdiction is ambiguous and admits of several constructions, and (2) the “most favorable view in support of the petitioner’s claim” is not clearly contrary to the statutory language used by the General Assembly. Any case that appears to drift too far from the confines of TENN.CODE ANN. §§ 9-8-307(a)(1)(D) and (a)(1)(E) will be met with a stiff jurisdictional argument from the State.
Here are some examples of cases both within and outside the commission’s jurisdiction. In Learue v. State, 757 S.W.2d 3 (Tenn. App.1987), the issue was whether the state could be held liable for injuries sustained by a fourteen-year-old boy who dove into the shallow portion of a swimming area in a state park. The court held that “a fair reading of § 9-8-307(a)(1)(E), was intended to pertain to persons confined to penal institutions, residences, or health and other similar facilities maintained by the state.” Persons using recreational facilities maintained by the state are not in the “care, custody and control” of the state merely because the state has imposed rules and regulations pertaining to the use of such facilities.
In Cox v. State, 844 S.W.2d 173 (Tenn.App.1992), an inmate on work release repeatedly raped and sodomized the claimant. The claimant subsequently filed suit with the Claims Commission predicated on the state’s “negligent care, custody and control” of the inmate. The Commission dismissed the case, holding that the state had no duty to supervise inmates on work release. The Court of Appeals affirmed the judgment; however, it did so upon its finding that the inmate had no known history of violent behavior. The state could not have foreseen that the inmate would have committed any harmful acts. The State’s action, therefore, was not the proximate cause of the claimant’s injuries. The court’s holding rejected the State’s contention that it had no duty to supervise prisoners on work release.
Then came the groundbreaking case of Hembree v. State, 925 S.W.2d 513 (Tenn.1996), wherein the Supreme Court held that the state is responsible for the proper care and control of patients within its mental health facilities. This responsibility extends to the “release” decision; that is, the decision to release a patient into the community. The decision, if negligently made, may expose the State to liability in accordance with traditional tort principles. In Hodges v. State, 2002 WL 1751376, (Tenn.Ct.App.), the State’s psychologist was alleged to be negligent in his care and treatment of the deceased which resulted in suicide. The Court of Appeals held that the grant of jurisdiction to the Claims Commission for claims of medical malpractice by a state employee require only that there be a professional/client relationship with the claimant. A psychologist/patient relationship fits this description.
Always look for the assumption of custody or control by the State. In addition, look for a professional/client relationship between a State employee and your client. Keep in mind that private parties are sometimes vicariously responsible pursuant to respondeat superior for the conduct of state employees who are immune from suit. It has been our experience that the State’s negligence is usually intertwined with the conduct of a private party. With prisons, mental rehabilitation facilities, and juvenile detention centers popping up everywhere around us, these cases will likely proliferate into the foreseeable future.

4. Punitive Damages

Finally, there is the subject of punitive damages. You will rarely encounter a medical malpractice case which crosses the threshold into the realm of punitive conduct. The United States Supreme Court has forced a dramatic change in punitive damages common law. In State Farm Mut. Auto. Ins. Co. v. Campbell, 123 S.Ct. 1513 (2003), the Court ruled that few punitive damage awards exceeding a “single-digit ratio” between punitive and compensatory damages will satisfy due process. Single-digit multipliers are more likely to comport with Due Process, while still achieving the state’s deterrence and retribution goals, than are awards with 145-to-1 ratios, as in the Campbell case. Because there are no rigid benchmarks, higher ratios may comport with Due Process where a particularly egregious act has resulted in only a small amount of economic damages. However, when compensatory damages are substantial, an even lesser ratio can reach the outermost limit of the Due Process guarantee.
This case is a major pronouncement whose significance has been underestimated. The decision will affect all punitive damage cases in all state and federal courts. The Supreme Court has adopted a single digit multiplier as the cap for almost all punitive damage verdicts. The only exceptions are cases in which “a particularly egregious act has resulted in only a small amount of economic damages.” The trial court’s review of the jury’s award is entitled to no deference on appeal. The Supreme Court has in effect done what many legislatures have not — placed an arbitrary cap on punitive damages in all tort cases including medical malpractice cases.

5. Jury Instructions

The common law duty of care owed by a physician to a patient is found in the Tennessee Pattern Jury Instructions. Judges read them to the jury in almost every charge. Unfortunately, some lawyers wait until trial before reviewing the jury instructions that apply to their case. I believe you should perform this task before filing your lawsuit. This allows you to test the merits your claim. You can also tailor the language into your closing argument. I have pulled these instructions from some past cases that our firm handled:
__________________________________________________________________
1. A physician who undertakes to perform professional services for a patient must use reasonable care to avoid causing injury to the patient. The knowledge and care required of the physician is the same as that of other reputable physicians practicing in the same or similar community and under similar circumstances. A physician not only must have that degree of learning and skill ordinarily possessed by other reputable physicians but also must use the care and skill ordinarily used in like cases. In applying that skill and learning, a physician is required to use reasonable diligence and best judgment in an effort to accomplish the purpose of the employment. The failure to have and use such knowledge and skill is negligence. 3—Civil 6.10.
2. By undertaking treatment, a physician does not guarantee a good result. A physician is not negligent merely because of an unsuccessful result or an error in judgment. An injury alone does not raise a presumption of the physicians’ negligence. It is negligence, however, if the error of judgment or lack of success is due to a failure to have and use the required knowledge, care, and skill as defined in these instructions. Physician does not guarantee the cure of his patients. After a careful diagnosis, a physician is not liable for damages to his patient from an honest mistake and determining the character of treatment to be administered or determining the necessity of an operation. A physician will not be held liable for honest mistakes in judgment, but only for negligent failure to meet the standard required by the profession in the community. 3—Civil 6.12 and Comment.
3. A physician who discovers, or should discover, that the patient’s ailment is beyond the physician’s knowledge or technical skill or capacity to treat with a likelihood of success, has a duty to disclose that situation to the patient or advise the patient of the need for other or different treatment. 3—Civil 6.13.
4. When there is more than one accepted method of diagnosis or treatment, and no one of them is used exclusively and uniformly by all physicians of good standing, a physician is not negligent for selecting an accepted method of diagnosis or treatment that later turns out to be unsuccessful. This is true even if the method is one not favored by certain other physicians. In other words, when the treatment or procedure is one of choice among competent physicians, a physician cannot be held guilty of malpractice in selecting the one which, according to his best judgment, is best suited to the patient’s needs. 3—Civil 6.14 and Comment.

The term “honest mistake” has recently been criticized. In Dillard v. Meharry Medical College, 2002 WL 1465957 (Tenn.App.), the plaintiff’s attorney objected to the trial court’s use of the expression “honest mistake” in the following instruction:

A physician does not guarantee the cure of his patients, but after a careful diagnosis, a physician is not liable for damages to his patient from an honest mistake in determining the character of treatment to be administered or in determining the necessity of an operation…a physician will not be held liable for honest mistakes in judgment but only for negligence, negligent failure to meet the standard required by the profession in the community. A physician does not guarantee the cure of his patients. Presuming careful diagnosis, a physician is not liable for damages resulting from an honest mistake in determining the character of treatment to be administered.

Tennessee courts previously upheld this jury instruction as proper. However, the Court of Appeals agreed in Dillard that the term “honest mistake” has the potential for being misleading because in the context of the law of medical malpractice a doctor can be negligent without being dishonest.

6. Failure to Report Suspected Child Abuse

There is a statute that mandates disclosure of suspected child abuse to authorities. In Draper v. Westerfield, 2004 WL 1698232 (Tenn.Ct.App.), a three-month old infant died after being abused by her father. Plaintiff mother filed suit against Dr. Westerfield alleging that the infant had been previously admitted to the hospital; that x-rays were taken which showed numerous injuries; but that Dr. Westerfield who read the x-rays failed to report the injuries to anyone. Dr. Westerfield asserted that he was immune from liability pursuant to TENN.CODE ANN. § 37-1-410 because his alleged wrongful conduct took place while he was participating in a child abuse investigation and that he was acting in good faith. TENN.CODE ANN. § 37-1-401 is entitled Mandatory Child Abuse Reports, and its purpose is to “protect children whose physical or mental health and welfare are adversely affected by brutality, abuse or neglect by requiring reporting of suspected cases by any person having cause to believe that such case exists.” § 403 requires that “any person who has knowledge of or is called upon to render aid to any child who is suffering from or has sustained any wound, injury, disability, or physical or mental condition shall report such harm immediately if the harm is of such a nature as to reasonably indicate that it has been caused by brutality, abuse or neglect or that, on the basis of the available information, reasonably appears to have been caused by brutality, abuse or neglect.” Thus, if Dr. Westerfield suspected child abuse, he had an affirmative duty to report his suspicions to investigators.
§ 410 further states that any person who makes a report of harm is presumed to have acted in good faith, and thus will not be liable in any civil or criminal action “that is based solely upon” that person’s decision to report what he believed to be harm, that person’s belief that such a report was required by law, or the fact that a report was made. The statutory immunity only attaches when a person actually reports his suspicions, not when he fails to do so. Plaintiff claimed that Dr. Westerfield failed to report his suspicions of abuse to the investigators, and that this failure resulted in harm to the child. Since there was a dispute as to whether Dr. Westerfield reported the abuse to investigators, the summary judgment was reversed.
Then, the Tennessee Supreme Court settled the matter for good. Justice Holder, writing for the Court, declared the judgment as follows:

(1) that a genuine issue of material fact remained as to whether the radiologist informed investigators that the x-rays and CT scan indicated that child had been abused, for purposes of immunity under child abuse reporting statute;

(2) that mother’s claim that the radiologist failed to inform investigators of suspected child abuse sounded in common-law negligence, not medical malpractice;

(3) the radiologist assumed a duty to use reasonable care in reviewing x-rays and CT scan and reporting any suspicion of child abuse to investigators; and

(4) whether mandatory child abuse reporting statute provided for private cause of action for alleged failure to report child abuse to investigators was not subject to appellate review. Draper v. Westerfield, 2005 WL 2513888 (Tenn.).

Note the distinction between medical malpractice and general negligence. This mollifies the Plaintiff’s burden considerably. Assumption of duty is still the touchstone for an affirmative duty. Finally, the Court pretermitted the “private cause of action” issue. That will wait for another day. Please note that the doctrine of immunity in Tennessee protects a psychologist appointed by the court to assist the court in the evaluation and assessment of a family in a domestic dispute, so the psychologist will be free from intimidation and harassment by a dissatisfied litigant. Ghayoumi v. McMillan, 2006 WL 1994556 (Tenn.Ct.App.). This means that a court-appointed psychologist may disclose confidential information to third parties including the court with fear of a lawsuit.

7. Recovery of Pre-majority Medical Expenses

Does a minor have the right to sue for pre-majority medical expenses incurred as a result of personal injury, or does the right belong exclusively to the parents? The answer to this question has more than casual importance. It could be worth millions of dollars on a birth trauma case wherein the child needs round the clock care. In the ordinary personal injury action, a minor has until his or her 19th birthday to file suit against a person responsible for harm. If a minor has the right to sue for medical expenses arising out of a personal injury, then the minor may wait until his or her 19th birthday to assert such a claim. However, if the law deems that the cause of action for pre-majority medical expenses belongs solely to the parent of the minor child, then the action for recovery of those pre-majority medical expenses must be brought within the one year statute of limitations.
Judge William Cain and his colleagues at the Middle Section Court of Appeals wrestled with this question in Palanki v. Vanderbilt Univ., et al., 215 S.W.3 380 (Tenn. App. 2006). In Palanki, a medical malpractice action was brought on behalf of the minor child by the mother as next friend and mother for the negligent removal of ninety-nine percent of the child’s bladder. (Emphasis added). The mother sought recovery of all medical expenses incurred during the child minority. The defendant objected due to the statute of limitations, yet the trial court permitted the minor to admit proof of medical expenses incurred during the child’s minority. The minor recovered $300,000 in pre-majority medical expenses.
On appeal, the Palanki Court reviewed the trial court’s decision to allow the minor to admit proof of medical expenses incurred during the child’s minority. Again, Vanderbilt claimed that the right to recover pre-majority medical expenses belonged exclusively to the parent. Because the parent filed the action after the statute of limitations expired, Vanderbilt argued that the mother was barred from proving all medical expenses incurred during the child’s minority. The defendant relied on TENN. CODE ANN. § 20-1-105, which provides that a claim for medical expenses incurred by a minor during his or her minority does not belong to the minor, but rather to the minor’s parents.
The Court of Appeals disagreed with Vanderbilt’s argument. The Palanki Court found that the right conferred by TENN. CODE ANN. §20-1-205 to maintain an action for the pre-majority expenses is “not exclusive to the parents.” Instead, a minor plaintiff may maintain a cause of action for medical expenses and include the amount of medical expenses incurred during the child’s minority as an element of his or her damages. Palanki at 394. In so doing, the Court adopted a waiver rule. This rule allows “a child under circumstances where the parent has acted as next friend to maintain an action for his medical expenses provided that the parent has paid for them … or is legally obligated to pay them.” Palanki at 394. (Emphasis added).
By bringing suit as the next friend of the minor child, the parent waives any individual claim that he or she might have to recover pre-majority medical expenses. This eliminates the concern of double recovery for pre-majority medical expenses. Palanki at 394. The Court applied this waiver rule and held that the minor could properly recover pre-majority medical expenses incurred or likely to be incurred on his behalf as an element of his damages. Palanki at 394. The lesson is that in all birth trauma actions, either the parent or the child may seek premajority medical expenses depending on how the lawsuit is styled.

8. Negligent Supervision of Staff

In Wicks v. Vanderbilt Univ., 2007 WL 858780 (Tenn.Ct.App.), the plaintiff underwent a bone marrow harvest procedure at a university hospital, after which the plaintiff began experiencing pain and numbness in his legs, back, and abdomen. The plaintiff and his wife filed a complaint against the university hospital alleging that the doctor and nurse performing the procedure had done so negligently and without the plaintiff’s informed consent, and that the hospital was thus liable through respondeat superior. The plaintiff also alleged that Vanderbilt had been directly negligent in its failure to properly supervise the attending doctor and nurse. In essence, the plaintiffs claimed that the doctor was not properly experienced and credentialed to perform the surgery. The trial court dismissed the negligent supervision claim prior to trial.
The Court of Appeals reversed. “The courts of Tennessee have long recognized that hospitals have a legal duty to exercise reasonable care toward their patients.” Bryant v. McCord, 1999 WL 10085, at *10, 1999 (Tenn.Ct.App.), affirmed and remanded on other grounds at Bryant v. HCA Health Services of N. Tenn., Inc., 15 S.W.3d 804 (Tenn.2000). In Tennessee, hospitals have a duty “to use reasonable care to maintain their facilities and equipment in a safe condition, to select and retain only competent physicians, to supervise the care given to patients by hospital personnel, and to adopt and enforce rules and policies designed to ensure that patients receive quality care.” Bryant, 1999 WL 10085, at *11, 1999. Negligent supervision is a theory based upon a defendant’s breach of its duty to hire competent employees and to appropriately supervise those employees. If the hospital fails to supervise its employees reasonably, then there is a cause of action.

II. PROCEDURAL TECHNICALITIES: FILING SUIT AND DISCOVERY

A. The Statutes

Medical negligence cases are governed by statute. The statute of limitations is one year from the date of injury or discovery of the injury. The statute will begin running when the patient becomes aware of facts that would put a reasonable person on notice that he or she has sustained an injury as a result of a tortious act of a health care provider. The discovery rule has limited value in tolling the statute of limitations. In medical negligence cases, the statute of repose is three years. Once a defendant establishes a prima facie defense that the three-year period statute of repose has elapsed, the burden of proof then shifts to the plaintiff to demonstrate that he or she is entitled to take advantage of the statute’s tolling provision. The only bases for tolling the statute of repose is: (1) a fraudulent concealment on the part of the defendant, and (2) a foreign object left negligently or intentionally in the patient’s body. The exceptions to the statute of repose do not include the patient’s minority nor during the patient’s mental incompetency.
What if your client contends that he was prevented from bringing a timely claim because he was suffering from a mental disability and, as a result, the statute of repose should be tolled? While TENN.CODE ANN. § 28-1-106 tolls the applicable statute of limitation for mental incompetence, no such statutory exception exists for the statute of repose. Mills v. Wong, 2003 WL 22768781, *2 (Tenn.Ct.App.). Tennessee case law has evolved to eliminate any possible tolling of the statute of repose for mental incompetence. In Penley v. Honda Motor Co., 31 S.W.3d 181, 188 (Tenn.2000), the Tennessee Supreme Court held that the Tennessee Products Liability Act’s applicable statute of repose is not tolled due to a plaintiff’s mental incompetence. The Tennessee Supreme Court found the plain language of the statute, “admits of no tolling other than for fraudulent concealment.” There is an exception in medical malpractice actions during the plaintiff’s minority as well. Bowers v. Hammond, 954 S.W.2d 752 (Tenn.Ct.App.1997), reversed on other grounds, Penley, 31 S.W.3d at 188. This could be rightly called the “Bowers exception” to the medical malpractice statute of repose.
Tennessee law does not allow a plaintiff to disclose the ad damnum to the jury in medical negligence cases, because it may be grounds for a mistrial. TENN.CODE ANN. §29-26-117 states, “The pleading filed by the plaintiff may state a demand for a specific sum, but such demand shall not be disclosed to the jury during a trial of the case.” One court’s interpretation of this statute forbids plaintiff’s counsel from saying to the jury, “this is a multi-million dollar suit” Another court has held that the plaintiff counsel’s suggestion to the jury of $50,000 annually as compensation in closing argument, though not violative of the letter of the statute, was nevertheless an additional reason for a new trial. You should discuss this matter at the pretrial conference so that you will know the judge’s own preference for arguing damages without violating §29-26-117.
There is a way to prevent this problem. In Romine v. Fernandez, 2003 WL 21729440 (Tenn.Ct.App.), after a medical negligence trial, the defendants argued that the prevailing plaintiffs were not entitled to recover their $100,000 judgment and costs, because they failed to include the ad damnum clause in their complaint. There is a well-settled rule that a party is limited to the relief prayed for in his complaint. See Robert Banks, Jr. & June F. Entman, TENNESSEE CIVIL PROCEDURE § 5-4(c) (1999); see also Cross v. City of Morristown, No. 03A01-9606-CV- 00211, 1996 (holding that a judgment which exceeds the ad damnum clause is invalid). TENN.R.CIV.P. 8.01 requires that the pleader make a statement for relief and demand for judgment. The plaintiffs did not seek any money damages or any other relief in their complaint. The only request they made was for a jury trial.
The plaintiffs countered that TENN.CODE ANN. § 29-26-117 gives plaintiffs in a medical malpractice an election—they can include an ad damnum or not. This is a statutory exception to the common law rule of compelling ad damnum clauses. The Court of Appeals agreed. The practical effect of this decision is that plaintiffs will not use an ad damnum, but they will discuss damages to the jury without running afoul of Guess v. Maury, 726 S.W.2d 906 (Tenn.Ct.App.1987) (“repeated references to a multimillion-dollar lawsuit” warranted reversal). The proof of damages in a medical negligence cases is the same as in the garden-variety tort case with one major exception: the collateral source rule has been abrogated by statute. This statute provides in pertinent part:
In a malpractice action in which liability is admitted or established, the damages awarded may include (in addition to other elements of damages authorized by law) actual economic losses suffered by the claimant by reason of the personal injury including, but not limited to cost of reasonable and necessary medical care, rehabilitation services, and custodial care, loss of services and loss of earned income, but only to the extent that such costs are not paid or payable and such losses are not replaced, or indemnified in whole or in part, by insurance provided by an employer either governmental or private, by social security benefits, service benefit programs, unemployment benefits, or any other source except the assets of the claimant or of the members of the claimant’s immediate family and insurance purchased in whole or in part, privately and individually.

This means the defendant may prove that your client is receiving social security benefits, unemployment benefits, and the like.
However, there is one major exception to this statute: if a third party asserts a subrogation claim against your client, then the collateral source rule applies to the extent of the third party’s subrogation interest. For example, medical expenses paid by the Medicaid program to a plaintiff in medical negligence case were not costs paid for losses that were “replaced or indemnified” by social security benefits. Therefore, the plaintiff may recover these expenses. The court reasoned that the losses are not “replaced or indemnified” within meaning of TENN.CODE ANN. §29-26-119 when there is right of subrogation or legal obligation. This exception applies to both public and private insurers who assert a subrogation claim. Worker’s compensation benefits are also not “replaced or indemnified” within the meaning of §29-26-119 when there is right of subrogation. Bear in mind that the right of subrogation carries with it the subrogee’s right to intervene in your lawsuit.
You should become intimately acquainted with TENN.CODE ANN. §29-26-115 because it is the recipe for survival or death of your medical negligence case. The following is the full text of the statute:
__________________________________________________________________
§29-26-115 Claimant’s burden in malpractice action – Expert testimony – Presumption of negligence – Jury instructions.

(a) In a malpractice action, the claimant shall have the burden of proving by evidence as provided by subsection (b):
(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred;
(2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and
(3) As a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.
(b) No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a), unless the person was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make the person’s expert testimony relevant to the issues in the case and had practiced this profession or specialty in one (1) of these states during the year preceding the date that the alleged injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for the defendant as rebuttal witnesses. The court may waive this subsection when it determines that the appropriate witnesses otherwise would not be available.
(c) In a malpractice action as described in subsection (a), there shall be no presumption of negligence on the part of the defendant; provided, there shall be a rebuttable presumption that the defendant was negligent where it is shown by the proof that the instrumentality causing injury was in the defendant’s (or defendants’) exclusive control and that the accident or injury was one which ordinarily doesn’t occur in the absence of negligence.
(d) In a malpractice action as described in subsection (a), the jury shall be instructed that the claimant has the burden of proving, by a preponderance of the evidence, the negligence of the defendant. The jury shall be further instructed that injury alone does not raise a presumption of the defendant’s negligence.
__________________________________________________________________
You should memorize every part of this statute. The courts have dismissed many cases based on the strict application of this statute. The defendant always uses this statute as a sword to strike a fatal blow at your case. The standard of care is defined in § (a)(1) as “the recognized standard of acceptable professional practice in the defendant’s community or a similar community.” Experts on each side set the professional standard for the community. The geographic component of this standard must be taken seriously. It is full of traps for the unwary practitioner. I will discuss this subject in depth later.
With regard to informed consent claims, TENN.CODE ANN. §29-26-118 establishes the requirements for expert testimony. Specifically, the plaintiff must prove through expert testimony what a physician must disclose about a surgical procedure. I like to incorporate the terms of art from §29-26-115 directly into my complaint. For example, I will allege in a separate paragraph:
The defendant deviated from “the recognized standard of acceptable professional practice in his community or a similar community, and as a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.”

The courts have stressed their preference that plaintiffs utilize the statutory language.

B. Discovery in Medical Malpractice Actions

1. Full Disclosure.

The process leading to the promulgation of Tenn.R.Civ.P. 26, has tracked the decisions of federal courts with regard to pretrial discovery. There has been a consistent trend since 1959 favoring broad pretrial discovery for the purpose of enabling litigants to prepare themselves fully for trial. This enhances your ability to present to the court all the pertinent facts and legal theories necessary to prosecute your medical negligence claim. At one time, pretrial discovery in Tennessee as in other jurisdictions was looked upon with disdain by the courts as a “fishing expedition.” Trial lawyers were committed to the practice of “trial by ambush.” Due to this prevailing custom, expert commentators such as Professor Wigmore observed that trial preparation and practice were based almost entirely upon the “sporting theory of justice,” wherein civil justice depended primarily upon the skill and strategy of counsel as opposed the true merits of the case.
Reacting with great dissatisfaction to this form of “justice,” many states began to permit the use of depositions for discovery. The Federal courts followed this trend in 1938 with the adoption of the first Federal Rules of Civil Procedure. The new discovery procedures contained in these rules were intended to “seek the truth.” It was believed that the new rules promote settlements by eliminating or minimizing the chance of surprise, while also deterring frivolous trials. The fundamental axiom became, “full disclosure equals a fair trial on the merits.” Following the enactment of these new rules, the United States Supreme Court breathed life into this maxim by declaring:

No longer can the time-honored cry of “fishing expedition” serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.

The enactment of the Federal Rules of Civil Procedure caused the Tennessee legal community to scrutinize its own discovery practice. Within two years after the enactment of the Federal rules, Tennessee’s trial lawyers called for an overhaul of the discovery system. This call for a new statute governing pretrial discovery was finally answered when the General Assembly enacted the Deposition Law of 1959. The substance of this law was virtually identical to the discovery provisions of the Federal Rules of Civil Procedure. The Tennessee drafters wanted this similarity because (1) the federal rules were workable, and (2) they would serve as an indispensable guide for subsequent interpretation.
On January 26, 1970, the Tennessee Supreme Court adopted the Tennessee Rules of Civil Procedure. These rules pushed the boundaries of permissible discovery even further by authorizing the discovery of information that “might” lead to other admissible evidence. The Tennessee Supreme Court adopted this liberal standard in order to conform substantially to the 1970 revisions of the federal discovery rules. As they stand today, the Tennessee rules promote full disclosure during discovery in the prosecution of medical negligence cases.

3. Boilerplate Objections.

This tactic involves the use of a general objection in lieu of an individual response to a written discovery request. The party’s response frequently includes a laundry list of “form” objections. For example, when you seek through Rule 34 Requests all hospital regulations pertaining to the operation, monitoring, and maintenance of ventilators, the defendant may respond—“Objection. This interrogatory is vague, overly broad, and unduly burdensome.” In the alternative, the objection may simply state—“Objection. This request is not reasonably calculated to lead to discoverable evidence.” Many courts have criticized this unfettered use of unsupported objections. In Roesberg, the court overruled the defendant’s boilerplate objections and declared the proper procedure for objecting in the following manner:

To voice a successful objection to an interrogatory, the defendant cannot simply intone this familiar litany. Rather, the defendant must show specifically how, despite the broad and liberal construction afforded the federal discovery rules, each interrogatory is not relevant or how each question is overly broad, burdensome, or oppressive.

Therefore, objections to your discovery requests must be specific and reasonably articulated so that both you and the court can gauge the merit of each objection.
The general provisions governing discovery in this case are found within the corpus of the Rule 26.02 of the Tennessee Rules of Civil Procedure—“Any matter, not privileged, which is relevant to the subject matter involved in the pending action is discoverable.” You may seek information reasonably calculated to lead to the discovery of admissible evidence. Tennessee courts do not strictly limit discovery to the merits of your case, because issues may arise during a medical negligence case that are unrelated to the merits. Courts also allow parties to discover information that is germane not only to the issues apparent from the pleadings but also to additional issues that relate to the subject matter of the pleadings. Don’t let the defendant confine your discovery to the four corners of your complaint. Although discovery matters are largely in the discretion of the trial court, a reversal is appropriate when the trial court refuses to permit discovery of all relevant matters. The courts will usually countenance discovery at the expense of admissibility, as long as the request could lead to relevant matters or issues.
Relevance—or more precisely, lack of relevance—is a customary objection. The defendant’s goal in these situations is to restrict discovery with an objection like, “This request is not reasonably calculated to lead to discoverable evidence.” Courts and legal scholars alike have universally denounced this objection because the responding party, based on its own view of the case, cannot unilaterally determine what is relevant. It is improper for the defendant to decide for himself which interrogatory is relevant…the party must provide the court with specific, factual allegations supporting its objection. The party resisting discovery on the grounds of relevance has the burden of demonstrating that the information or documents sought are “clearly irrelevant” or “has no bearing upon the subject matter.” In other words, the burden is squarely upon the responding party to prove that the information sought is irrelevant. Don’t let the defendant force you to prove to the court why you need material that is arguably relevant to the issues.

A simple, general statement that a request is “burdensome” is neither an answer nor an objection and may constitute a waiver. The party resisting discovery on this ground must aver specific facts in support of every objection. Standing alone, the fact that the party resisting discovery will experience some trouble and expense in the process of responding to a discovery request is not sufficient to establish an undue burden. Only an effort that would be “unduly burdensome and oppressive” or “egregiously burdensome or oppressive” would justify limiting discovery. Wright concludes that the burden for the party resisting discovery must be substantial:

The mere fact that compliance with the inspection order will cause great labor and expense or even considerable hardship and the possibility of injury to the business of the party resisting discovery does not require denial of a motion to compel.

Accordingly, the courts have tended to reject undue burden objections in cases where the responding party can produce its own business records.
General language has been permitted in discovery requests so long as there is a reasonably clear indication of the information sought. The designation in your discovery requests should be sufficient enough to apprise a man of ordinary intelligence as to what documents are required. Likewise, the court should be able to glean from the discovery requests what documents are needed for compliance. If the defendant is resisting discovery, he must always: (1) specify precisely what language he claims as “vague” and (2) seek a more definitive request from you before refusing the discovery as “overly vague.”

3. An Award of Attorney Expenses is Presumptive.

Rule 37.01(4) provides that a party resisting discovery must pay the expenses of the opposing party in obtaining the motion. The rule specifically provides that the court should impose an obligation to pay reasonable expenses incurred in obtaining the order, including attorney’s fees unless the court finds that the opposition was “substantially justified” or that other circumstances make the award of expenses “unjust.” This provision, frequently referred to as a “sanction,” was intended by the drafters to be implemented as a matter of course. This is simply a procedure for shifting costs to the party whose conduct necessitated the intervention of the court. The structure of the rule makes it clear that expenses were intended by the drafters to be awarded presumptively. As a result, the burden is upon the party resisting discovery to invoke exceptional circumstances that would justify the court’s denial of an award of expenses.
Finally, I should mention the Tennessee Peer Review Law. Most if not all hospitals have a peer review committee comprised of physicians. The purpose of the law is to encourage these committees to candidly, conscientiously, and objectively evaluate and review their peers’ professional conduct, competence, and ability to practice medicine. As an incentive for the medical profession to undertake professional review, the law protects peer review committees from liability for their good-faith efforts. Peer review committees are granted certain immunities relating to their actions undertaken as part of their responsibility to review, discipline, and educate the profession. In addition, the law creates a privilege that bars discovery of the peer review process:
All information, interviews, incident, or other reports, statements, memoranda or other data furnished to any committee … and any findings, conclusions, or recommendations resulting from the proceedings of such committee are declared to be privileged. The records and proceedings of any such committees are confidential … and shall not be … available for court subpoena or for discovery proceedings.

The broad language of the statute encompasses any and all matters related to the peer review process. In summary, the Peer Review Law grants hospitals both a qualified immunity from liability for damages and a privilege from discovery of the peer review process.
In Tennessee, a hospital is likely to prevent a plaintiff from discovering an incident report as privileged information under TENN.CODE ANN. § 63-6-219 (the peer review statute). Suppose that the plaintiff is seeking an incident report that relates to a medication or hospital error. Suppose further that hospital policy requires the submission of an incident report when certain errors occur, without regard to litigation. There is no Tennessee case on point that decides whether the incident report is discoverable.
However, in Cochran v. St. Paul Fire and Marine Ins. Co., 909 F.Supp. 641 (W.D.Ark.1995), the hospital’s insurer requested an order protecting it from being required to produce a medication incident report, which the hospital routinely generated, when there was variance between doctor’s order and actual administration of drugs. The plaintiff sued the hospital based on a medical error. The District Court held that the incident report was discoverable when the report was not prepared by or at direction of any organized committee for committee purposes, it was not prepared or accumulated for administrative staff in connection with such review or evaluation, and it was not prepared in anticipation of litigation. Arkansas’ peer review statute did not bar discovery.
The rules of procedure favor full disclosure. Don’t allow boilerplate objections to stall your efforts. More often than not, the law is on the side of the discovering party. Aggressive motion practice during discovery is usually required to get what you need.

C. Development of Theories and Causes of Action

In my opinion, the lawsuit is won or lost in discovery. It is incumbent upon you to pursue discovery with fresh vigor in every medical negligence case. Discovery is where the real pick and shovel work is done. You will use discovery responses to prepare for cross-examination of the defense experts and witnesses. You may need to offer the discovery materials for substantive proof in your case-in-chief. Most lawyers prepare for trial by reviewing, summarizing, and relying on the discovery materials. Discovery should be thorough enough that you have all the opinions of the expert witnesses, all the factual information, and all the defenses asserted by the defendant. Proper investigation of the case can save out-of-pocket expenses and prevent personal mental distress. If you fail to execute a careful discovery plan, you risk facing surprise witnesses, surprise expert theories, and surprise documents.
Certain information must be collected early in discovery. I use a standard set of written discovery requests in medical negligence cases to obtain general information. I use these requests to get background information, to learn the identify fact witnesses, to learn the identify experts to be called a trial and their opinions. I learn alternate theories of causation, the identity of any other parties or nonparties alleged to be at fault, and any pertinent information the defendant has about my client. I also look missing records or entries in the chart. I may be entitled to impress an adverse inference to the evidence at trial.
Whether you also use the requests to inquire about the medical issues of the case is the subject of intense debate. It is a matter of personal practice. Some lawyers elect to omit questions about the medical issues and facts in the case from their discovery requests until after the party depositions. The theory of this strategy is that the defendant will be unprepared for the questions at his deposition if there are no interrogatories tailored to the medical issues. This technique relies on the element of surprise. Otherwise, full interrogatories will force defense counsel to discuss the medical facts and “educate” his client. This prepares the client for his discovery deposition. It eliminates the element of surprise.
Other lawyers believe that discovering the medical issues before the deposition is more advantageous. This strategy is two-fold: (1) the defendant will be “trapped” into a certain theory before the deposition, and (2) the plaintiff’s counsel will be forearmed from the discovery responses to ask better questions at the deposition. This strategy assumes that the defense lawyer will likely prepare the doctor about the medical issues in advance of the deposition anyway. I think the merit of one strategy over another depends entirely upon the facts and personal style.
You must carefully review the defendant’s interrogatory responses to make sure that you have a list of all witnesses who should be deposed. In some cases, the medical records will contain the names of individuals who are not disclosed in the responses. Insist on the identity and location of all persons who are named in the records. Identify all persons who were involved in the treatment of your client. Don’t ever agree to initiate the depositions until the defendant has identified all fact witnesses. Preparation is crucial to success.
Procedural rules generally obligate each party to supplement seasonably previous interrogatory answers. I believe that it is a good practice to submit additional sets of interrogatories as the case progresses, specifically asking for supplementation of previous responses. This, in addition to the rules, puts the onus on the defense attorneys to supplement all responses. Review your own responses periodically to determine if there is a need to supplement. It eliminates the potential that the trial judge will exclude evidence or witnesses pursuant to Rule 26.05 for untimely disclosure.
The defendant has records you need to prosecute the case. Physicians possess the clinic records. Hospitals have charts, X-rays, and laboratory results that can only be obtained through Rule 34 requests. In some cases, you need to copy the doctor’s telephone messages and appointment books. It depends on the nature of the case and the information already obtained. If your case involves a hospital, request the following:
• Medical staff bylaws;
• Medical staff rules and regulations;
• An organizational chart of administrative staff, nursing staff, and medical staff;
• An organizational chart of all hospital departments;
• An internal telephone directory;
• Personnel files; credential files, including information regarding privileges;
• Policies, procedures, rules, regulations, guidelines, standards, and written practices for various hospital departments;
• Documents of accreditation, licensing, and deficiencies, including surveys, inspections, deficiency reports, state inspection reports, and documents of the Joint Commission on Hospital Accreditation, the U.S. Department of Health and Human Services, Medicare, or any other health-care agency;
• Diagnostic reports such as X-rays and fetal heart strips;
• Documents indicating the number of patients on the floor and the duration of their stay during your clients hospitalization;
• Documents of the procedure your client underwent, the operative log, and the delivery and operating room records;
• An index of training films, laboratory records; and equipment records.
Review the interrogatory responses for the revelation of additional materials you want like photographs or clinic records.
Rule 34 allows entry on designated land or other property to inspect, measure, survey, photograph, test, or sample things. Under this rule, you request to inspect the medical library or phone memo book. You may invoke this rule to inspect and videotape hospital equipment, the surgical site, or a delivery room. In the past, our firm videotaped a CT Suite where our client, who was chemically paralyzed, suffocated because his ventilator ran out of air. We later showed the videotape to the jury so they could understand our theory of how the hospital negligently monitored our client and the equipment during the CT scan.
Rule 36 allows you to submit written requests for admissions. Obtaining admissions of fact is an important step in preparing a case for trial. By having facts admitted as true, you can simplify and fine-tune your case. For example, you can avoid the need to prove the authenticity of documents by requesting an admission that they are genuine. Thorough Rule 36 requesting is an efficient way to litigate.
You should frame Rule 36 requests after deposition testimony establishes the truth of certain facts. Make it a standard practice to propound these requests both during and immediately after discovery. You may use the responses to fight dispositive motions, for motions in limine, and for use substantively at trial. Always draft an accompanying interrogatory that demands the factual basis of every denial. As a result, your opponent is faced with the duty to explain his denial.
Discovered materials are useless unless you organize them well. Chance favors the prepared mind. By the same token, the prepared trial lawyer gives himself the best chance to win. You will probably use the same discovery method in another case. Every case is a cookie-cutter to some extent. Our firm uses a twin-ringed Euro file to keep the materials organized. We separate the discovery in the following manner:
• A chronology;
• Information from informal experts;
• Information concerning fact witnesses;
• Clinic records of care rendered in the case;
• A hospital chart;
• Other significant medical records that provide relevant medical history regarding -preexisting conditions;
• Summaries of all medical and hospital records;
• Research of medical literature;
• Deposition summaries;
• Interrogatory answers;
• Rule 36 requests;
• Rule 26 reports;
• Other material deemed relevant to the case.
Medical witnesses use medical terms, so you should have a separate divider with a table of definitions.

1. Comparative Joinder

Plaintiffs have the right to assert a claim against a nonparty after the statute of limitations has expired when a defendant alleges the comparative fault of an unidentified nonparty. This statute has been referred to as “the comparative fault joinder statute.” Within 90 days of the defendant’s answer alleging the nonparty’s fault, the plaintiff may amend his complaint notwithstanding the expiration of the statute of limitations. This seems simple enough but what happens if the defendant’s reference to the nonparty is not specific? Must the nonparty be specifically identified by name in order to trigger the comparative joinder statute?
The Supreme Court has held that in order to shift fault, the defendant must “identify or describe” other tortfeasors who might have caused the plaintiff’s injuries. If the identification is vague, then the plaintiff should move to strike the comparative fault defense. It may not be that easy. In Soper v. Wal-Mart Stores, Inc., 923 F.Supp. 1032 (M.D.Tenn.1996), the district court encountered this very scenario. Wal-Mart’s answer asserted the fault of a “third party” but did not specifically identify Orkin as the nonparty tortfeasor. Instead, Wal-Mart sent a letter to plaintiff’s counsel naming Orkin as a nonparty. The plaintiff contended that proper procedure demands that a nonparty be named in an answer to trigger the comparative joinder statute. The district court disagreed. By equating Wal-Mart’s letter with the concept of notice, the district court held that the actual identification of Orkin in an answer is not a prerequisite to trigger the comparative joinder statute.
In McClendon v. Bunick, 2001 WL 536614, *3 (Tenn.Ct.App.) the Court of Appeals held that §20-1-119 was triggered, even when the nonparty was not identified in the answer. The plaintiff joined the physician as a defendant instead of his practice group. The defendant identified the practice group instead of the physician in its answer. The physician cried foul and moved to dismiss because the defendant did not identify her in its answer. Using an alter ego fiction of law, the Court of Appeals found that the physician and the practice group were interchangeable to trigger the comparative joinder statute.
Now, we have Romine v. Fernandez, 2003 WL 21729440 (Tenn.Ct.App.) in which the Plaintiffs successfully amended their original complaint to add unnamed third parties. The trial court found that the language in the defendant’s answer was sufficient to invoke § 20-1-119 even though the defendant did not specifically name the third party tortfeasors. The Court of Appeals found that the statements contained in defendant’s answer were sufficient to put the plaintiffs on notice that someone other than the defendant was at fault. Although the defendant did not specifically name the third parties, the defendant’s answer provided “reasonable notice of a third party claim and, coupled with the available discovery tools, the plaintiff had more than adequate opportunity and time to discover the third party’s identity.” In so doing, the Court of Appeals expressly adopted the rationale of Soper, 923 F.Supp. at 1038. This means that plaintiffs may add nonparties pursuant to § 20-1-119 even when the defendant does not specifically identify them, notwithstanding the statute of limitations.
These cases suggest that a description of the nonparty, rather than the actual identity, may be sufficient to trigger the comparative joinder statute. In essence, Soper, McClendon, and Romine force plaintiffs to sue a moving target. Time will tell whether the Supreme Court intended this. Prudence demands that you always “smoke out” the identity of nonparty tortfeasors early. Do this through aggressive motion practice. Move to strike ambiguous references in the defendant’s answer to unnamed “other parties” who may be at fault. In the alternative, you should move for a more definite statement of the answer. You should incorporate a pleadings amendment deadline in your scheduling order. This forces the defendant to identify a tortfeasor in the answer in accordance with a scheduling order before you have to disclose your experts. This preserves a tactical advantage. In any event, you should call the court’s attention to this matter. Identification after the statute of repose is fatal. The defendant would be able to apportion fault to an “empty chair” while the plaintiff is time-barred from joining the nonparty.
One solution to this dilemma is pursuit of a conditional amendment. In Matus v. Metro. Gov’t, 2003 WL 1797986 (Tenn.Ct.App.), the plaintiffs were allowed by motion on the eve of trial to amend their complaint to allege that an unnamed nurse of the hospital was negligent. The hospital objected but did not move for a continuance in order to meet the allegations of the amendment. After an adverse judgment, the hospital appealed the trial courts acceptance of the “late amendment.” The hospital could have asked for a continuance as a condition of the amendment.
The Court of Appeals incorporated conditional amendments into Tennessee practice. A trial court has authority under Rule 15.01 to condition the grant of the motion to amend upon a specified event or contingency. You should add a provision in the scheduling order that limits amendments to join nonparties after the statute of repose. In other words, the amendment is conditional upon timely identification of other tortfeasors. This is one method to prevent late amendments that can be devastating at trial.
§ 20-1-119 Tolling Requires Amended Complaint and Process. Delays in amendment or issuance of process are fatal. In Ward v. AMI SUB, Inc., 2004 WL 350664, *1 (Tenn.Ct.App.), the court of appeals faced the issue of whether the filing of a motion to amend tolls the 90 day window for comparative joinder. The lesson from this case is due diligence. The plaintiff must pursue amendment of the complaint and issuance of process within 90 days. On April 19, 2000, Plaintiff Linda Ward (Ms. Ward) filed her original complaint against Saint Francis Hospital and Dr. Eberle alleging medical malpractice. In her complaint, Ms. Ward alleged her mother died as the result of Dr. Eberle’s failure to diagnose and treat post-operative pneumothorax following triple coronary bypass surgery. During the course of discovery, St. Francis amended its answer to assert the doctrine of comparative fault as to another physician, Dr. Fiallo. Despite the running of the one year statute of limitations, Ms. Ward had 90 days from the filing of St. Francis’s amended answer to amend her complaint to add Dr. Fiallo as a defendant and to cause process to be issued pursuant to TENN.CODE ANN. § 20-1-119.
On August 16, 2001, Ms. Ward filed a motion to amend her complaint to add Dr. Fiallo as a defendant. Ms. Ward served Dr. Fiallo’s counsel with a copy of her motion to amend and proposed order. However, Ms. Ward failed to file her amended complaint and to cause process to be issued within 90 days. On April 4, 2002, Ms. Ward and St. Francis entered an “agreed order amending complaint.” Pursuant to this order, the trial court granted Ms. Ward 15 days to file her amended complaint to add Dr. Fiallo. Ms. Ward failed to file her amended complaint to add Dr. Fiallo as a defendant and likewise failed to cause process to issue until October 3, 2002. Dr. Fiallo moved to dismiss the joinder, asserting it was barred by the statute of limitation and statute of repose. The trial court agreed and awarded Dr. Fiallo summary judgment. The only issue was whether Ms. Ward’s filing of a motion to amend her complaint to add Dr. Fiallo as a defendant satisfied the requirements of § 20-1-119, when her amended complaint was not filed and process was not served on Dr. Fiallo within 90 days of St. Francis’ amended answer. In Frazier v. East Tennessee Baptist Hospital, Inc., 55 S.W.3d 925, 929 (Tenn.2001), the Supreme Court addressed the issue of whether the filing of a motion to amend and a proposed amended complaint commenced an action for the purposes of the savings statute. Reading §§ 28-1-101 and 28-1-105 together, the Supreme Court held that the filing of a motion to amend and a proposed amended complaint were sufficient to trigger the savings statute. Ms. Ward relied on Frazier for the proposition the requirements of § 20-1-119 are satisfied when the plaintiff has “sought” to amend the complaint by filing a motion to amend. Frazier, however, concerned the savings statute and not the comparative joinder statute set forth in § 20-1-119. Thus, the Western Section Court of Appeals concluded that in order to satisfy the requirements of § 20-1-119, the complaint must be amended and process issued within 90 days, or else comparative joinder is time barred.

2. Comparative Fault

Then there is always the prospect of a comparative fault defense aimed at your client. Suppose a patient negligently injures himself in a wreck and is admitted to a local hospital. A floor nurse injects the wrong medicine and negligently kills the patient. Should the hospital in a medical negligence case be able to use to compare fault under these circumstances? Suppose a patient negligently injures himself in a wreck. The hospital staff inserts an endotracheal tube in his mouth to secure his airway. However, the staff negligently places the tube into his esophagus, and he suffocates to death. Should the hospital in a medical negligence case be able to compare fault under these circumstances? The answer is not as obvious or fair as you may think.
Cases regarding a plaintiff’s negligence in medical malpractice actions can be divided generally into four categories. The first set of cases are those where the plaintiff fails to follow a physician’s advice and instructions; the second set of cases are those where a plaintiff delays seeking or returning for medical attention; the third set of cases are those where a plaintiff has furnished false, incomplete, or misleading information to his or her physician; and the fourth set of cases are those where a patient’s negligent or intentional conduct causes the occasion for the medical attention which is the subject of the malpractice action. See Madelyn R. Orr, Defense of Patient’s Contribution to Fault in Medical Malpractice Actions, 25 CREIGHTON L.REV. 665, 676-690 (1992).
In Gray v. Ford Motor Co., 914 S.W.2d 464 (Tenn.1996), the plaintiff’s negligence caused the accident, and the impact caused her ruptured spleen. The physician negligently failed to diagnose the ruptured spleen. However, the physician did not create this injury. The plaintiff died exclusively from the ruptured spleen. The jury attributed fault to the plaintiff for “one indivisible injury” caused by plaintiff and mistreated by the physician. The Court held that the physician may allege fault against a plaintiff, “who acted negligently in causing the initial injury, and a physician who acted negligently in the treatment of the plaintiff for that injury.” Just as important, the Court penned the boundary of its ruling as follows, “This case does not present, and the court declines to address in this opinion, the rights and liabilities of the parties where there are multiple, separate injuries.”
So, is every patient, initially at fault for being in a hospital, subject to blame for anything else that happens to him there? In Tennessee, hospitals owe each patient a duty to furnish the care, attention, and protection reasonably required by the patient’s known mental and physical condition. Yet, according to Gray, a hospital still maintains the right to attribute fault to a patient for a single indivisible injury that exists prior to admission as long as there is some antecedent negligence. Gray left a gap involving the relationship between comparative fault and separate injuries.
A clear majority of courts limit a patient’s blame for antecedent negligence that merely furnishes the occasion for a hospital’s subsequent negligence. It seems illogical and unfair for the courts to reduce or excuse the hospital’s fault simply because it was the patient’s own fault that he needed treatment in the first place. The policy interest against fault attribution grows even stronger when the hospital causes a separate, distinct injury. Even the Court of Appeals seemed to adopt this majority view in its dictum by stating, “A cause for the development of the condition for which the plaintiff sought medical assistance in the first place…is neither [the] cause in fact or proximate cause of any injury or loss suffered by plaintiff.”
Fortunately, this issue and many others were resolved by the Supreme Court in Mercer v. Vanderbilt, 2004 WL 936808. The Court reinstated the final judgment of the Davidson County Eighth Circuit Court awarding $7,360,000 in damages to the conservator of a patient in a vegetative state caused by Vanderbilt’s negligence. We filed suit in 1998 on behalf of the conservator, Sally Qualls Mercer. The jury returned its verdict in November of 1999. The case was on appeal for over four years. The Court of Appeals for the Middle Section granted Vanderbilt a new trial for a variety of evidentiary reasons. The key legal issue was whether fault may be assessed against a patient in a medical malpractice action in which a patient’s negligent conduct provides only the occasion for the medical attention, care, or treatment which is the basis for the action. The Supreme Court said “No.” In addition, the Court affirmed all of the trial court’s evidentiary rulings.
The key legal issue was comparative fault. The Court determined that it would be anomalous to posit, on the one hand, that a health care provider is required to meet a uniform standard of care in its delivery of medical services to all patients, but permit, on the other hand, the conclusion that, where a breach of that duty is established, no liability may exist if the patient’s own preinjury conduct caused the illness or injury which necessitated the medical care. The Court also agreed that “patients who may have negligently injured themselves are nevertheless entitled to subsequent non- negligent medical treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded.”
The Court, therefore, held that a patient’s negligent conduct that occurs prior to a health care provider’s negligent treatment and provides only the occasion for the health care provider’s subsequent negligence may not be compared to the negligence of the health care provider. In so doing, the Court overruled Gray v. Ford Motor Co., 914 S.W.2d 464 (Tenn.1996), to the extent it held otherwise. Principles of comparative fault do not apply. The patient’s antecedent negligence should not have been considered by the jury in assessing 30% fault. The next issue involved the propriety of the trial judge’s Rule 50.02 JNOV. After receiving the jury’s verdict, which apportioned 30% of the fault to the patient, the trial court granted the patient’s Rule 50.02 motion and ruled that Vanderbilt was 100% at fault. In accordance with this ruling, a judgment was entered against Vanderbilt for the full amount of the damages found by the jury, or $7,330,000, instead of the net $5,150,000 after 30% fault was apportioned.
By assessing Vanderbilt 70% of the fault, the jury clearly found that Vanderbilt’s negligence caused Qualls’s brain injury. Because the patient’s antecedent negligence cannot be considered, the trial court did not err in removing the jury’s finding of fault against him, leaving Vanderbilt as the sole, remaining cause of his injuries. As such, the trial court’s actions were not a “reallocation” of fault. Here, the trial court was ruling on a valid Rule 50.02 motion and adjusted a verdict that was based on an error of law in accordance with that rule.
The remaining issues were evidentiary matters. The first issue involves the trial court’s exclusion of evidence regarding the patient’s alcohol-related conduct prior to his May 30, 1998 accident. Loss of earning capacity is an element of damages in personal injury actions as is the injured party’s future medical expenses. As such, evidence relating to either of these elements would be relevant in a personal injury action. The patient’s prior alcohol-related convictions, however, clearly were not relevant to his loss of earning capacity or to his future medical expenses. Qualls’s occupation did not involve driving, and there was no contention that Qualls drank alcohol during working hours or that his use of alcohol affected his ability to perform competently at work. In contrast, Qualls’s alcohol consumption leading to his admission to Vanderbilt clearly was relevant. The jury heard a considerable amount of evidence related to Qualls’s alcoholism. This evidence was properly admitted to show the medical treatment Qualls received that was related to his alcohol withdrawal and to support Vanderbilt’s theory that Qualls suffered a catastrophic event caused by his alcohol withdrawal.
Vanderbilt asserted that Qualls’s prior convictions involving his use of alcohol were relevant because they show the pecuniary value of his life. Vanderbilt contended that the court should rely upon wrongful death cases that address the pecuniary value of the life of a decedent because the issues of a decedent’s life expectancy and loss of earning capacity are similar to that of a plaintiff who is in a persistent vegetative state. The Court disagreed. Pecuniary value is judicially defined as a part of the incidental damages that may be recovered by the decedent’s survivors to compensate them for the decedent’s death. These damages are not available in a personal injury action, regardless of the medical condition of the injured party.
The next issue was the exclusion of one of Qualls’s treating physicians at NHC Healthcare, and a biomedical engineer who is employed by Vanderbilt. The trial court excluded this evidence in response to Vanderbilt’s failure to supplement its answers to plaintiff’s interrogatories. The trial court found that the patient would need an additional three to six weeks to retain additional experts and prepare for these “surprise witnesses.” Therefore, the court concluded that witness exclusion was an appropriate sanction for Vanderbilt’s discovery abuse.
In determining whether such a sanction is appropriate, the trial court should consider the Lyle v. Exxon factors: 1) the party’s reasons for not providing the challenged evidence during discovery; 2) the importance of the evidence; 3) the time needed for the other side to prepare to meet the evidence; and 4) the propriety of granting a continuance. In this case, the trial court properly considered each of these factors and determined that witness exclusion was an appropriate sanction.
Finally, the trial court excluded the testimony of Bruce Wolfe, a structural annuity specialist, offered by Vanderbilt on the issue of damages. Vanderbilt’s offer of proof indicated that Mr. Wolfe would have testified about the cost of an annuity policy that could have been purchased to ensure a stream of cash payments to cover the patient’s future medical expenses. Many changing variables affect the quote that an annuitist delivers to the jury. For instance, time limits and market factors both impact annuity rates. Moreover, an insurance company is in no way bound to the quoted rate or to its initial underwriting decision. These factors not only make the testimony as to the cost of an annuity speculative, but they also raise questions about its potential to mislead. Annuity evidence invites the jury to depart from its legal duty to award present cash.

D. Focusing Pleadings and Issues

You must identify every act of negligence in your Rule 26 report. If you need to supplement the Rule 26 report and amend your pleadings, then by all means do so. The term “seasonable supplementation” means that changes to discovery responses must be made in a timely manner. Trial courts are supposed to penalize late disclosures. Don’t expect any forgiveness for sandbagging.
Amend your pleadings promptly to allege new theories, especially given the courts’ liberal application of the “relation back” doctrine. Modern litigators were taught in law school that the short plain statement displaced the wordy code pleading requirements of the past. It seems—at least in medical negligence cases—that verbosity is rewarded. Narrowly tailored complaints can shackle the plaintiff to a specific theory of the case even when the circumstances change close to trial.
There is no rule of procedure that forces the plaintiff or defendant to fill up their pleadings with prophylactic allegations that leave maneuvering room for a change in circumstances. This is precisely what the rules drafters sought to prevent with the adoption of Rule 8.01 of the Tennessee Rule of Civil Procedure. Nevertheless, broad pleadings now seem necessary to afford some wiggle room.
Consider Yeubanks v. Methodist Hosp., 2003 WL 21392411 (Tenn.Ct.App.), in which a child died under suspicious circumstances at Le Bonheur Hospital in Memphis. The child’s mother filed suit, alleging vicarious liability on the part of Le Bonheur Hospital for the negligence of three physicians. Immediately before the trial, the mother asserted that the hospital was also liable for the negligence of a fourth physician, Dr. Lezama. Neither the original complaint nor the amended complaint included a claim which expressly mentioned Dr. Lezama by name. Le Bonheur moved to dismiss any vicarious claims against it for the negligent conduct of Dr. Lezama.
The trial court first examined whether Le Bonheur was placed on notice that Yeubanks sought to assert such a claim. The trial judge asked Yeubanks to show where in the original or amended complaint that Le Bonheur would have been put on notice that it was being held responsible for the actions of Dr. Lezama. Yeubanks directed the trial judge to the language from the original complaint that alleged vicarious liability against Le Bonheur for the actions of “Drs. Hertz, Dunavant, and Hickson, and its other employees or agents, under the doctrine of respondeat superior.” The amended complaint indicated that Le Bonheur was liable for “[a]llow[ing] unlicensed foreign students to practice medicine in its facility.” This seems expansive enough to include Dr. Lezama as an “other employee.” Nevertheless, the trial judge ruled that this language did not state a claim of agency liability for Dr. Lezama’s conduct.
The plaintiff appealed arguing that the trial court had improperly excluded evidence and the claim that Le Bonheur was liable for Dr. Lezama’s negligence. The Court of Appeals, in rather cursory fashion, affirmed the trial finding no abuse of discretion. The lack of Dr. Lezama’s name in the pleadings sealed Yeubanks’ fate on this issue.
Compare the ruling in Yeubanks with ruling in Matus v. Metro. Gov. of Nashville in which the very same notice issue was resolved in favor of the plaintiff. In Matus, the plaintiffs were allowed by motion on the eve of trial to amend their complaint to allege that an unnamed nurse of the hospital was negligent. The plaintiff sought to establish that the hospital was vicariously liable for the negligence of the unnamed nurse. The hospital objected but did not move for a continuance. After an adverse judgment, the hospital appealed the trial courts acceptance of the “late amendment.” The Court of Appeals affirmed. The hospital could have asked for a continuance as a condition of the amendment. Nevertheless, the hospital made a “calculated decision” to proceed and defend the complaint as amended.
At first blush, these two rulings appear to contradict each other. Perhaps the difference between Yeubanks and Matus was the relative complexity of the former compared to the latter. Then again, it may just come down to a trial judge’s personal preference. The lesson is the same. The plaintiff must be firm in discovery to smoke out and target all liable physicians and nurses early in the case.
Consider the fault of parties other than the defendant. Should you name them in the original complaint or join them when the defendant assigns fault to them in his answer? Think about the fault of other parties who cannot be sued either because of the statute of repose or sovereign immunity. Tennessee law allows a defendant in a medical negligence case to attribute fault to other parties regardless of their immunity. This usually serves to reduce the value of the case. If the defendant attributes fault to an out-of-state physician, then what will the effect be? Consider what happens if the defendant assigns fault to your client? How do you intend to defend that charge? What if the defendant assigns fault to a nonparty and subsequently withdraws that allegation after the nonparty is joined as a party defendant? Can it be used against the former nonparty to show that another defendant believed he was at fault? These are serious considerations that can reduce or eliminate the value of the claim.
Multiple physicians may have treated the plaintiff with multiple bad results. When this occurs, it is sometimes difficult to separate the injuries resulting form negligence from other injuries. Occasionally, non-negligent conduct and negligent conduct combine to cause bad results. If all physicians involved were negligent and must be sued, then it may be difficult to persuade a jury that several physicians deviated from the standard of care. You cannot rely on one of the defendants to opine about the standard of care applicable to the other defendant physician. Jurors may view the lawsuit as a shotgun attack on everyone involved.
In addition, a suit against multiple physicians in different specialties or fields of practice requires that you find expert witnesses in each field of practice. This is a difficult and costly undertaking. Expert witnesses in different fields of practice often protect their field of practice and blame physicians in other fields of practice who contributed to the bad result. The experts may be precluded from testifying against physicians in other fields of practice. You should be aware that physicians specializing in follow-up care might support the defendant doctors. When this occurs, jurors may give the defense testimony greater weight, finding the plaintiff’s experts less credible by comparison, and resolve the medical issues in favor of the defense.
Multiple defendants may be located in different jurisdictions. For example, medical negligence may occur in one state, with negligent follow-up care occurring in another state. It is advisable to sue in both jurisdictions since Tennessee has abolished joint and several liability. The doctor in one jurisdiction may blame the doctor in another jurisdiction. Naming multiple defendants in different jurisdictions increases the time and expense required to litigate the claim. These costs diminish your client’s net recovery from a settlement or verdict.
You should balance the benefits of having one defendant against the benefits of a case with multiple defendants. A case with multiple defendants means that the defense experts will likewise be multiplied. You appeal the entire case if the court dismisses one of the defendants, and you wish to pursue that dismissed physician on appeal, even if you want to settle with the remaining defendants or obtain a successful jury verdict against them. These On the other hand, if there are multiple defendants, then the chances are increased that there will be sufficient insurance or other financial resources available to compensate your client. In summary, you must weigh the prospect of suing everyone against a fine-tuned claim against one or a few defendants.

E. Summary Judgment / Affidavits / Experts – The Minefield

Summary judgment practice in medical negligence cases is fraught with danger for the unwary plaintiff’s counsel. It is a trap for inexperienced counsel who are unfamiliar with the rigid requirements of TENN.CODE ANN. §29-26-115. It is not like any other Rule 56 motion in a garden-variety tort case. The trial courts routinely grant these motions, and the appellate courts frequently affirm them. There is no safe harbor in these situations. You can’t procrastinate and then expect to save the day with a last minute affidavit. You must comply with the trial court’s scheduling order order. Do not count on a successful motion for enlargement of time to get an expert affidavit. The odds are that you will not get it unless you prevail on the following balance of factors: To determine whether to grant an enlargement of time, the court must consider: (1) risk of prejudice to parties opposing late filing; (2) delay and its potential impact on proceedings; (3) reasons why filings were late and whether reasons were within filer’s reasonable control; and (4) good or bad faith of filer.
You can’t shoot from the hip or just wing it. Your response requires considerable forethought. No matter how confident you are that the affidavit complies with §29-26-115, read it again and again just in case you missed something. If your opponent does not withdraw his motion after you have submitted your responsive affidavit, then watch out! That is usually a red flag that the affidavit is defective in some way. In essence, treat a Rule 56 motion with the utmost care and respect as if you were handling a deadly snake.
I also elected to devote this section to specific legal principles related to expert testimony in medical negligence cases. Expert testimony almost always intersects with summary judgment practice in these cases. As I stated previously, it is incumbent upon you to stay vigilant or “track” new medical negligence opinions from the appellate courts. The law in this field of litigation is evolving rapidly. The law pertaining to experts is particularly important. An expert is the cornerstone of any medical negligence case. They are tools of the trade. You have to know this law in order to prepare your strategy. Likewise, you will need to convey this law to your experts in order to prepare them for their testimony. This is precisely why you must focus your attention to appellate decisions that examine the relationship between expert testimony and summary judgment. After all, a surprise legal attack can be more devastating than an attack from a surprise witness or document.
Before analyzing the law, there are some points of expert preparation worth remembering in every medical negligence case:
• Explain the legal criteria through which the judge evaluates the admissibility of an expert’s opinion;
• Tell the expert not to be concerned about hypothetical questions that do not accurately describe the facts of the case;
• Explain the concept of legal causation which is a 51% probability;
• Instruct your expert to qualify preliminary opinions that may change with additional information;
• Advise your expert not to offer opinions in areas beyond his expertise;
• The expert should be expected to support opinions with specific references to the medical records, diagnostic tests, and medical literature;
• Review with your expert the defendant’s Rule 26 report or stated theory of defense;
• Prepare your expert for questions about medical research—explain that literature must be classified as “reliable;”
• Make sure the expert does not answer questions from the defendant about medical literature unless afforded an opportunity to read it in advance;
• With regard to causation, have your expert explain why he eliminated other possible causes;
• Always disclose your expert before a scheduling order deadline;
• Make sure the expert knows the opinions of any other Rule 26 experts you have retained;
• Make sure that your expert is intimately acquainted with T.C.A. § 29-26-115 so that there are no foul-ups as to competence.
• Investigate your prospective expert to make sure he was not the subject of a previous disciplinary proceeding;
• When in doubt, have your expert rely on the customary practice in his locale if it is a similar community. Circumstantial evidence of the standard of care is just as convincing as direct evidence;
• Look for an expert who practices in the same specialty as the defendant so that you don’t run into problems with “unfamiliarity;”
• A bald statement from an expert that he is familiar with the standard of care does not ipso facto render his testimony relevant and admissible. You must give him enough facts about the defendant’s medical community upon which to base his familiarity with the standard of care;
• Provide your expert with medical and statistical data about the defendant’s community in order to comply with the locality rule.
The courts demand strict adherence to the locality rule when the plaintiff is responding to a motion for summary judgment. The locality rule requires the plaintiff to show by expert testimony “that the defendant failed to act with ordinary and reasonable care when compared to the customs and practices of physicians from a particular geographic region.” The legislative purpose has been described as, “an undeniable and legitimate state interest in assuring that doctors charged with negligence in this state receive a fair assessment of their conduct in relation to community standards similar to one in which they practice.”
The plaintiff’s and defendant’s burden to establish an expert’s competence is set forth in §29-26-115, also known as the locality rule. The statute reads that “the claimant shall have the burden of proving the recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred.” The statute further requires the plaintiff to submit proof of the applicable standard of care in the same or similar community in which the defendant practices. The standard is measured at the time the wrongful conduct occurred. If the plaintiff cannot establish competence, then the proposed expert is precluded from offering standard of care opinions.
Courts have granted summary judgment in cases where the plaintiff’s expert lacked the requisite knowledge of the medical community in which the defendant practices. The best way to analyze these cases is a review of the affidavits or deposition transcripts of expert’s testimony that was deemed insufficient as a matter of law. In Mabon v. Jackson Madison County General Hosp., 968 S.W.2d 826, 830-31 (Tenn. Ct.App.1997), the court demonstrated how the plaintiff’s expert lacked the requisite knowledge of the defendant’s medical community:

In the case before us, Dr. Shane [plaintiff’s expert] states in his affidavit that he was familiar with the recognized standard of acceptable medical practice in an area such as Jackson, Tennessee and at a facility the size of the Hospital. He further states that the standard of care in Jackson and at the Hospital would be comparable to the cities and facilities at which he has practiced medicine and is the same for New York City and other large cities and, in effect, is a national standard. Dr. Shane also states that Dr. Thomas failed to meet the standard of care that “should have been available” in a city the size of Jackson, Tennessee. (Emphasis supplied). Dr. Shane’s statement concerning the standard of care that “should have been available” is significant in that it illustrates that his statement in his affidavit regarding the standard of care is premised on the national standard of care and not on the standard of care for Jackson or similar communities. Admittedly, in his discovery deposition, he quite readily admits his complete lack of knowledge of Jackson’s medical community:

Q: What’s the population, Dr. Shane, of Jackson, Tennessee?
A: I don’t know exactly.
Q: How many hospitals are there in Jackson?
A: I don’t know.
Q: Do you know if there are any colleges or universities there?
A: No, I don’t.
Q: Do you know if there are any medical schools there?
A: Not for sure.
Q: Do you know how many doctors there are in Jackson?
A: No.
Q: Do you know what medical specialties are represented in Jackson?
A: No, I don’t.
Q: Have you ever been to Jackson?
A: No.
Q: Do you know any doctors that practice in Jackson?
A: No.
Q: Have you ever treated any patients from Jackson?
A: Not that I’m aware of.
Q: Do accepted standards, that is the standard of care, do they change with time?
A: Yes, they can.
Q: Is the practice of medicine an exact science?
A: No.
Q: You can’t completely practice medicine by what’s called the cookbook method, can you?
A: No, you can’t.
Q: You’ve not reviewed any medical records from Jackson except in this case, right?
A: I don’t think so that I can recall.

To qualify as an expert, a physician is not required to be familiar with all of the medical statistics of a particular community. Ledford v. Moskowitz, 742 S.W.2d 645, 648 (Tenn.App.1987). However, a complete lack of knowledge concerning a community’s medical resources would be contrary to knowledge of the required standard of care. The plaintiff’s tendered expert must be familiar with the standard of care in the community in which the defendant practices or in a similar community. Without this requisite threshold evidence of the standard of care in the locality, a plaintiff cannot demonstrate a breach of duty.

The court excluded the expert because the he demonstrated “a complete lack of knowledge of Jackson’s medical community.” The expert (1) did not know the population of Jackson, (2) did not know the number of hospitals in Jackson, (3) if there was a medical school there, (4) the number of doctors in Jackson, (5) had never been to Jackson, (6) did not know any physicians there, and (7) had never treated a patient there. To qualify as an expert, a physician is not required to be familiar with all of the medical statistics of a particular community. However, a complete lack of knowledge concerning a community’s medical resources would be contrary to knowledge of the required standard of care.
In Bravo v. Sumner Regional Health Systems, Inc., 2003 WL 22999437 (Tenn.Ct.App.), the Court of Appeals reversed the exclusion of the plaintiffs’ proffered expert. The plaintiffs submitted the affidavit of an OB/GYN from Georgia, whose medical practice had been limited to gynecologic and fertility matters for several years. The defendant OB/GYN argued that the plaintiffs’ expert was not competent to testify regarding obstetrics since he had not practiced in that specialty for several years. The plaintiffs’ expert only received referrals as a fertility specialist. It is not necessary for an expert to have practiced the same specialty as the defendant during the year preceding the date of the occurrence. Rather, it is required that he practice in a profession or specialty “which would make the person’s expert testimony relevant to the issues in the case” during the year preceding the occurrence.
Although the focus of the expert’s practice had shifted away from obstetrics to gynecology, he maintained his knowledge about the standard of care in obstetrics through teaching classes at Emory University and attending seminars and conferences on obstetrics and gynecology. See Searle v. Bryant, 713 S.W.2d 62, 64 (Tenn.1986) (holding that there is no requirement that the expert’s knowledge of the standard of care “have been gained by treating patients in private practice”). It was a very close issue.
To the surprise of many malpractice lawyers, the Supreme Court reaffirmed strict compliance with the locality rule in Robinson v. LeCorps, 83 S.W.3d 718 (Tenn.2002). §29-26-115(a)(1) requires a plaintiff’s expert to have knowledge of the standard of professional care in the defendant’s community or a similar community. Prior to Robinson, there was an expectation that the Supreme Court would relax or even dispel compliance with the locality rule in favor of a national standard of care. After all, the Court has previously acknowledged a modern trend towards the national standardization of medicine. Instead, Robinson gave its blessing to the strict requirements of Mabon and its progeny.
In Stovall v. Clarke, 2003 WL 22038773 (Tenn.), the Supreme Court distinguished Robinson v. LeCorps, 83 S.W.3d 718, 724 (Tenn. 2002) to find that the plaintiff presented competent expert testimony establishing the recognized standard of acceptable professional practice as required by TENN.CODE ANN. § 29-26-115(a)(1). Contrary to Robinson, the expert in Stovall did not rely upon a national standard of care, nor did he simply equate the local standard with a national standard. Moreover, although the expert had never practiced medicine in the State of Tennessee, he testified that he had reviewed over twenty medical charts from the State of Tennessee and had testified in three other malpractice cases in middle Tennessee. In addition, the expert stated in his supplemental affidavit that he had reviewed statistical information about the medical community in Williamson County, Tennessee, which included information about the medical specialists and resources available at the Williamson County Medical Center. Unlike the expert proof in Robinson, the expert in Stovall showed an understanding of the locality rule and explained that he had applied the locality standard of care—and not a national standard—to the facts and circumstances of this case. Finally, the Stovall expert did not simply offer a vague, conclusory statement that he was familiar with the local standard but instead showed some underlying basis for his testimony. This is a great “how to” case to know before selecting and preparing your expert in a medical malpractice case.
While your expert may certainly discuss the similarity between the national and community standards in a given case, proof of the national standard is no substitute for strict compliance with the locality rule. In other cases, a proposed expert’s reliance on a national standard of care, without actual knowledge of the local standard, has resulted in the exclusion of that expert’s testimony. For example, in Spangler v. East Tennessee Baptist Hosp., 2000 WL 222543 (Tenn.Ct.App.), the court demonstrated how the plaintiff’s expert improperly relied on a national standard of care:

In response to the motion, plaintiffs presented a Dr. DiBianco from Washington, D.C. as an expert witness, who opined that all of the defendants had deviated from the appropriate standard of care, which caused plaintiff’s injuries. Dr. DiBianco’s affidavit stated as follows:
… all medical standards, which form the basis of my opinions, are not standards which vary from community to community. Unless otherwise indicated, the opinions expressed in this affidavit are based upon a standard of care which involves certain basic medical issues which would not be dependent upon the degree of sophistication, medical equipment, facilities, or medical practice in a particular community. To the extent that there are any medical standards which may be subject to variation from community to community, those have been determined by specific reference to the medical practices in this case in order to determine an appropriate local standard of care.

The court found that the plaintiff’s expert was not qualified to testify. The expert’s belief that he was familiar with the standard of care in the defendant’s locality was based solely on his conclusion “that standard of care did not vary from community to community.” The expert “presented no other factual basis that he was familiar with the local standard of care, and there is no proof whatsoever in the record that would explain how the witness, a physician from Washington, D.C., would be familiar with the standard of care in Knoxville.”
In these cases, the expert was shown to have no knowledge of the standard of care in the defendant’s community or similar community. An expert’s knowledge of the national standard of care, even coupled with a bare assertion that the national standard applied to the defendant’s community, is not sufficient to establish the requisite knowledge of the local standard where the facts demonstrate no knowledge of the locality or similar localities.
In Howell v. Baptist Hosp., 2003 WL 112762 (Tenn.App.), the trial court rejected the affidavit of the plaintiff’s expert who expressed familiarity with the standard of care in “Middle Tennessee” as opposed to Nashville where the defendant practiced. The Court of Appeals reiterated that the plaintiff bears the burden of proving competence. The plaintiffs presented no evidence to identify any “Middle Tennessee” communities with which the expert was familiar. The reference to “Middle Tennessee” was deemed too vague as to time and duration for the trial court to infer that the expert was actually familiar with the Nashville standard of care. Therefore, the Court of Appeals affirmed the defendant’s motion for summary judgment.
This was the same result reached in Totty v. Thompson, 2003 WL 61246 (Tenn.Ct.App.), wherein the Court of Appeals axed an expert who stated that he was generally familiar with the standard of care for the State of Georgia. There was no mention of any specific city or county. The expert provided no factual basis to establish his familiarity with the standard of care in Williamson County. The Court of Appeals frankly remarked, “the state of Georgia hardly qualifies as a ‘community’ within the meaning of the statutory locality rule.” It is obvious that any “close calls” will go in favor of the defendant. After all, the locality rule is described as “an undeniable legitimate state interest in assuring that doctors charged with negligence in this state receive a fair assessment of their conduct in relation to community standards similar to one in which they practice.” This means that the locality rule will remain a trap for the unwary practitioner.
Diligent research of medical statistics of the defendant’s community and thorough education of experts is vital to successfully beating any competence challenge. For instance, in Wilson v. Patterson, 2001 WL 912807 at *4 (Tenn.Ct.App.), the court reversed the trial court’s exclusion of the plaintiff’s expert based on the following affidavit:

1. I am familiar with the recognized standard of acceptable professional medical practice in the field of obstetrics and gynecology for Lexington, Kentucky.
2. In my opinion, the Lexington, Kentucky area is a similar area to Memphis, Tennessee with regard to the standard of care of acceptable professional medical practice in the field of obstetrics and gynecology and in regard to the medical services provided in this area. Lexington, Kentucky and Memphis, Tennessee are regional medical centers and are the locations of their state medical schools.
3. I am familiar with the recognized standard of care of acceptable professional medical practice in the field of obstetrics and gynecology in Lexington, Kentucky because I was an assistant professor in the Department of Obstetrics and Gynecology at the University of Kentucky which is located in Lexington, Kentucky for two years from 1970 to 1972. At the time of Ms. Wiechert’s subject injury, I was an assistant clinical professor in the Department of Obstetrics and Gynecology at the University of Kentucky located in Lexington, Kentucky. I also had courtesy privileges at three hospitals in Lexington, Kentucky which I utilized from time to time.
4. Further, I have testified in at least ten medical malpractice cases in Memphis, Tennessee. As a consequence, I have had the opportunity to review the depositions of and hear the testimony of numerous Memphis, Tennessee physicians on the recognized standard of care of acceptable professional medical practice in the field of gynecology and obstetrics. This has confirmed my opinion that the recognized standard of care of acceptable professional medical practice in the field of obstetrics and gynecology in Memphis, Tennessee is the same as that of Lexington, Kentucky in regard to the way that patients are evaluated for diagnostic laparoscopies and the manner in which the laparoscopic procedure is executed.

The Wilson court closely examined the expert’s testimony regarding the applicable standard of care to determine if there was sufficient proof that Lexington, Kentucky, where the expert practiced, was similar to the locality of defendant’s practice, Memphis, Tennessee. While the expert’s testimony on the similarities between the medical communities of Lexington and Memphis was viewed as “somewhat meager,” it was determined to be enough to survive summary judgment.
The analysis in Wilson is similar to that used in Ledford v. Moskowitz, 742 S.W.2d 645 (Tenn.Ct.App.1987), wherein the court reversed a trial court’s determination that the plaintiff’s expert was insufficiently familiar with the standard of care in Cleveland, Tennessee. Commenting on the expert’s admission that he had never been to Cleveland and did not know the number of hospitals or doctors there, the Ledford court emphasized, “precise knowledge of the specific medical statistics of a particular community … is not a requirement of the statute.” The expert had testified that his Atlanta practice involved referrals from small towns outside Atlanta and that he was familiar with the standard of care in small towns all over Georgia. Therefore, he stated he was familiar with the standard of care in Cleveland “in a broad sense.”
The court found that “taken as a whole, [the expert’s] proof creates a material issue of fact on the standard of acceptable psychiatric practice in similar communities to those found in Polk, McMinn, and Bradley county area[s]. Although medical negligence actions impose more rigorous procedural requirements on the plaintiff, once the threshold of proof has been crossed, then the case should proceed to trial on the merits.”
A court will not automatically conclude that a physician’s reference to a national standard renders that doctor’s testimony inadmissible. After all, the Supreme Court recognized a trend toward the “national standardization of medical practices, especially in specialties.” However, the medical profession’s trend does not dispense with the locality rule. The question is always whether your expert possesses knowledge of the standard in the relevant community. He must have “some knowledge” as a basis for his opinion on the applicable standard. File your responsive affidavit timely or ask for additional time to get another expert. The purpose of the locality rule is to insure that “doctors charged with negligence in this state receive a fair assessment of their conduct in relation to community standards similar to the one in which they practice.” Whether you provide your expert with data for a “fair assessment” is the fundamental issue that will be determined by the court in ruling on the admissibility of your expert’s testimony.
It is worth noting that an expert’s knowledge of the medical community at issue may evolve over time. In Pullum v. Robinette, 2004 WL 1631105 (Tenn.Ct.App.), the plaintiff suffered numbness and partial facial paralysis after a root canal. She filed a malpractice suit against the dentist who performed the procedure. The defendant filed a motion in limine seeking to exclude all testimony by the plaintiff’s expert witness on the ground that he did not meet the requirements of the Locality Rule.
The defendant objected to the expert being allowed to further educate himself after his discovery deposition about the Spring Hill community and the admissibility of his trial testimony being determined on the basis of that further education. He gained information about a local peer review group and its standards. In particular, the expert spoke to a Brentwood endodontist, a Fayetteville dentist, and a Pulaski dentist. He explored the Tennessee Oral Health Sciences Institute website and was able to confirm to his satisfaction that the standards described in the website were substantially the same as those he had to follow in his own practice. He testified that in both La Grange and Spring Hill, the standard of care for root canals was set by endodontists and that those standards were the same as that set out in the Tennessee Oral Health Sciences website. The expert testified that his post-deposition efforts had reinforced and affirmed his opinion as to the relevant standard of care and breach thereof. The trial court denied the defendant’s objection and the Court of Appeals affirmed. Further education is indeed permitted.
We got even further definition in Travis v. Ferraraccio, 2005 WL 2277589 (Tenn.Ct.App.). Dr. Krendel, the plaintiff’s expert, stated that he was “familiar with the recognized standard of acceptable professional practice in the field of neurology in Clarksville, Tennessee or similar communities as it applied in June, 1996,” as well as the standard of care for the defendant. Dr. Krendel had reviewed demographic information regarding the community of Clarksville and the medical community in particular. He was aware of the number of licensed beds and active physicians in Clarksville’s two hospitals in 1995. Dr. Krendel had also attended national meetings of neurologists.
When the defendant physicians deposed Dr. Krendel, he admitted that he had never been to Clarksville and that he did not have firsthand knowledge regarding the standard of acceptable professional practice in Clarksville itself. However, he insisted that he was familiar with the standards of professional practice in cities “similar” to Clarksville. When asked to identify the “small towns in the region” he believed to be similar to Clarksville, Dr. Krendel mentioned Anderson, South Carolina; Spartanburg, South Carolina; Cookeville, Tennessee; and Dalton, Georgia. However, he had difficulty explaining how he had concluded that the medical practices in these communities were similar to Clarksville.
Dr. Krendel conceded that he did not know the nearest facility where the patient could have obtained an MRI scan in 1996. While he claimed to have seen information regarding the number of hospitals and physicians in Clarksville, he admitted that he could not remember it. He was aware of Clarksville’s population, but only because the Travis’s’ lawyer had reminded him of it immediately before the deposition. Most significantly, Dr. Krendel testified that none of the information he had seen regarding Clarksville was material to him in forming his opinion regarding the standard of care applicable to Dr. Ferraraccio.
When asked to state more specifically the basis for his testimony regarding the applicable standard of care, Dr. Krendel said that he had taught at Emory University Medical School in Atlanta for fifteen years and that during that time he had done consultations for neurologists all over the region, including Tennessee and small towns in Georgia. He stated that he had reviewed medical records and notes from neurologists in those places and that he was “very familiar with the standard of care in small towns in the region.” He claimed that the standard of acceptable neurological practice in Clarksville at the time Mr. Travis was treated was the same as it would have been at Emory and that the minimum standard of acceptable neurological practice was the same nationwide.
When Dr. Krendel gave his deposition, he did not appear to be relying on his understanding of the standard of care in Dalton, Georgia to assess the defendant’s treatment of the patient. The trial court did not abuse its discretion in finding that Dr. Krendel’s testimony was inadmissible on that point.
It appears that Dr. Krendal failed to link the standard of care in Dalton, a similar community, to Clarksville. In so doing, Dr. Krendel’s opinions regarding the applicable standard of care and the breach of that standard could not “properly be applied to the facts at issue” in this case (citing McDaniel v. CSX Transp., Inc., 955 S.W.2d at 258.). The emphasis on McDaniel is interesting because it infers a lack of expertise as the defective component of competence. In other words, this lack of expertise should apply to both plaintiffs and defendants. They must both pass the locality rule.
Finally, you should be familiar with the procedure for vacating a summary judgment that you lost due to defective expert testimony. The Tennessee Rules of Civil Procedure do not authorize motions “to reconsider” a grant of summary judgment. Instead, the rules allow for motions “to alter or amend a judgment,” pursuant to Rule 59.04, or motions “to revise” a non-final partial judgment, pursuant to Rule 54.02. Rule 54.02 governs cases in which judgment was not entered as to all of the defendants or claims. That rule provides that in the absence of a final judgment:

any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

Rule 54.02 requires that a judgment disposing of fewer than all of the claims or fewer than all of the parties is final only when the trial court makes “an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” This determination is an “absolute prerequisite” to a final judgment in such a case.
The Supreme Court held that when additional evidence is submitted in support of a motion to revise a summary judgment, a trial court shall consider, when applicable: (1) the movant’s efforts to obtain evidence to respond to the motion for summary judgment; (2) the importance of the newly submitted evidence to the movant’s case; (3) the explanation offered by the movant for its failure to offer the newly submitted evidence in its initial response to the motion for summary judgment; (4) the likelihood that the nonmoving party will suffer unfair prejudice; and (5) any other relevant factor. This is a balancing test in which the trial courts must make adequate findings of fact and conclusions of law on the record to support their rulings. A ruling on a motion to revise pursuant to Rule 54.02 will be overturned only when the trial court has abused its discretion.

F. Trial Tactics

There is a split of authority as to whether an expert may be cross examined if he was named as a defendant in a medical malpractice case. On the one hand, whether a medical expert had ever been sued was irrelevant in a medical malpractice case, and questioning him on cross-examination about prior malpractice suits against him was an improper attack on the expert’s credibility. Manhardt v. Tamton, 832 So.2d 129 (Fla.Ct.App.2002). The mere fact that expert witness may have been named in unrelated medical malpractice action is not probative of expert’s truthfulness or relevant to his competency or knowledge. Wischmeyer v. Schanz, 536 N.W.2d 760 (Mich.1990).
On the other hand, a trial court committed reversible error when it unduly and unnecessarily restricted a plaintiff’s cross examination of the defendant’s expert with respect to any bias that the expert may have had against plaintiffs in medical malpractice actions due to his prior involvement as defendant in a medical malpractice case. Clements v. Dr. John Alvan Stewart, P.C., 595 So.2d 858 (Ala.1992). Likewise, in Sawyer v. Comerci, 563 S.E.2d 748 (Va. 2002) the plaintiff was entitled to cross examine an expert witness who testified on behalf of the defendant to show that that she had been a defendant in an unrelated lawsuit because the probative value of the potential bias outweighed any prejudice to the defendant. See Powell v. Burnett, 805 S.W.2d 50 (Ark.1991) (no prejudice to bring out expert’s prior claim).
What happens if an expert who relies on testing performed by another expert who is not testifying wants to tell the jury or rely on the reputation of the non-testifying expert? In U.S. v. Candoli, 870 F.2d 496 (9th Cir.1989), the court held that this tactic was improper. The court ruled that evidence of an expert’s reputation by another expert was inadmissible, where the defense challenged the testing that the non-testifying expert performed. There was no attack on the non-testifying expert’s character for truthfulness. This tactic amounted to improper bolstering.
This is the same result reached in U.S. v. Tran Trong Cuong, 18 F.3d 1132 (4th Cir.1994), where the expert was prohibited from bolstering his opinion testimony by testifying that the report of a non-testifying expert showed that testifying expert’s findings were “correct.” The forensic report of the non-testifying expert effectively subjected the defendant to evidence that he was not able to cross-examine or confront. It was strictly for the purpose of litigation, so it was not an admissible basis of the testifying expert’s opinion. Therefore, it was not “reasonably relied upon” by the testifying expert in forming his opinions.
What if your opponent retains an expert that you used in a prior case and then wants to get this evidence before the jury as some kind of implied endorsement of the expert? In Vaughn v. Protective Ins. Co., 532 S.E.2d 159 (Ga.Ct.App.2000), the court held that defense counsel’s past employment of the plaintiff counsel’s accident reconstruction expert in other cases was not admissible to rehabilitate the expert after defense counsel attacked the expert’s qualifications. The plaintiff sought to bolster the expert’s credibility. If defense counsel hired the expert in another case, his duty there was to find the best available expert willing to offer an opinion favorable to his client’s case.
Yet, the fact that he used the expert in other cases does not show what defense counsel thought of him. Defense counsel may not have retained the expert because he knew the weaknesses of the expert’s qualifications in the previous case. Such testimony essentially would make defense counsel a witness. Therefore, past employment is irrelevant. This is a good case to have in your arsenal.
Only the jury is the lie detector. Trial courts should reject attempts to use purported expert testimony to bolster or attack a witness’ credibility. There is a big difference between commenting on the credibility of a witness and embracing the ultimate issue pursuant to Rule 704. Tennessee law has long held that an expert’s opinion is not objectionable merely because it embraces an ultimate issue to be decided by the trier of facts. State v. Furlough, 797 S.W.2d 631(Tenn.Crim.App.1990). Where expert information is necessary for an intelligent decision, it does not matter that the opinion and one solution to the ultimate issue coincide. National Life & Accident Insurance Co. v. Follett, 80 S.W.2d 92 (Tenn.1935). If jurors lack experience or knowledge on a given subject and will be substantially assisted by expert testimony in their fact-finding task, the testimony should not be excluded because it addresses an ultimate issue. On the other hand, expert testimony can invade the province of the jury if it impermissibly comments on the credibility of a witness. State v. Wallen, 1995 WL 702611(Tenn.Crim.App.). “The jury is the lie detector in the courtroom.” United States v. Azure, 801 F.2d 336 (8th Cir.1986). With regard to experts commenting on other experts, an expert can criticize the technique employed by the other expert. Your expert can also dispute the validity of the procedure used by the other expert and let the jury draw its own conclusions on whether to believe the other expert’s opinion. However, your expert cannot state that the other expert is not credible because this comment invades the province of the fact finder. Network Pub. Inc., v. Bjorkman, 756 So.2d 1028 (Fla.Ct.App.2000); see also In re B.J., 735 N.E.2d 1058(Ill.Ct.App. 2000).
Another example of this phenomenon in the medical malpractice context is Hampton v. Saint Michael Hosp., 2003 WL 192180 (Ohio App.). A medical expert for the patient’s estate was properly precluded, with respect to a spoliation of evidence claim, from offering an opinion as to whether the defendant physician dictated a truthful note in detailing his findings in the hospital chart. No expert is a general expert in human honesty. It is always within the jury’s unique province to assess the credibility of witnesses. Therefore, expert testimony is not relevant if the expert is offering a personal evaluation of the testimony and credibility of other witnesses or the motivations of the parties.
In Wilson v. Muckala, 303 F.3d 1207 (10th Cir. 2002), the plaintiff sought to introduce expert testimony from her treating psychiatrist that she was telling the truth when she said she was a victim of sexual harassment. The district court limited the testimony, ruling that the witness would not be “entitled to opine on the veracity of [Ms. Wilson’s] complaint … whether [the psychiatrist] believes she is telling the truth,” or “whether he believes that she was sexually harassed.” The court did permit the witness to testify about Ms. Wilson’s psychological condition and his treatment of that condition. Expert testimony pertaining to the psychological and emotional traits of abuse victims, which is typically admissible so long as the witness makes no comment on the alleged victim’s credibility or identify the alleged victim as a victim of abuse. Nevertheless, the credibility of witness testimony is a matter left to the jury and generally not an appropriate subject for expert testimony. If you sense that another expert will make such a comment at trial, then move in limine to exclude the expert from making such a comment.
How do you nonsuit a medical malpractice claim properly? In Frye v. Blue Ridge Neuroscience Center, P.C., 70 S.W.3d 710 (Tenn. 2002), the plaintiff filed a complaint against Dr. Corradino and Blue Ridge Neuroscience Center, P.C., (“Blue Ridge”) alleging medical malpractice. That same day, the trial court clerk’s office issued summonses for the defendants, which were given to the plaintiff’s attorney. It was undisputed that the defendants were never served with process. Neither defendants made an appearance, nor were answers filed in the original lawsuit. The plaintiff filed a notice of voluntary dismissal. No certificate of service was attached to the notice of voluntary dismissal, nor were the defendants provided with a copy of the original complaint as required by TENN.R.CIV.P. 41.01.
The plaintiff then filed a second complaint against the defendants. This time, the summonses were served on the defendants and returned to the clerk’s office. However, the second complaint was filed more than one year after the alleged malpractice. The defendants filed separate motions for summary judgment asserting that the plaintiff’s action was barred by the statute of limitations because the plaintiff had failed to comply with TENN.R.CIV.P. 3 by not reissuing process on the original complaint within one year of its filing. In other words, the defendants claimed that the plaintiff should have served both defendants before nonsuiting his first complaint.
The Tennessee Supreme Court framed the issue as “whether the plaintiff’s service of process on the second complaint satisfied the ‘new process’ requirement of Rule 3.” If the issuance of process on the second complaint complied with Rule 3, then the plaintiff may rely on the filing date of the original complaint to satisfy the one-year medical malpractice statute of limitations. If, however, issuance of process on the second complaint did not satisfy Rule 3, then the first action has “expired” and the second complaint is untimely because it was filed after the one-year statute of limitations expired.
Process was issued on the original complaint and was given to the plaintiff’s attorney, but the defendants were never served with process on this first complaint. This was a fatal mistake. Having failed to serve the defendants with process within thirty days of issuance, Rule 3 provides that the plaintiff may rely on the filing date of the original complaint to satisfy the statute of limitations only if the plaintiff continues the action by issuing new process within one year of prior issuance.
The plaintiff contended that the process issued on the second complaint constituted “new process” within the meaning of Rule 3 because process was issued on the second complaint within one year of the filing of the first complaint. However, the Court found that the second complaint, as evidenced by its new docket number, was indeed a new action, not “new process.” In other words, the second complaint was filed outside the statute of limitations, and the savings statute did not apply.
Rule 3 clearly requires that when a plaintiff fails to issue process within thirty days of filing the complaint or fails to serve process within thirty days of issuance, the plaintiff may only rely on the original complaint. The Court held that, absent service of the Notice of Voluntary Dismissal and the complaint at the time of taking the nonsuit, a plaintiff who has failed to serve process prior to the taking of the nonsuit may not rely upon the benefit of the one-year tolling period of the saving statute to avoid the bar of the statute of limitations. There is a simple rule in nonsuiting to remember: always serve the defendant with the first complaint as well as the notice of nonsuit.
You should know that the appellate courts have chipped away at the “Bearman Rule.” In Dial v. Harrington, 2003 WL 23509327 (Tenn.App.), the Dials filed a complaint against Dr. Harrington for medical negligence. Dr. Harrington took the discovery deposition of the Dials’ expert, Dr. Engle, in accordance with Rule 26.02(4). In his deposition, Dr. Engle testified that Dr. Harrington had breached the standard of care. Dr. Harrington moved for summary judgment. He supported his motion with his own affidavit. The Dials filed Dr. Engle’s discovery deposition in opposition to Harrington’s motion for summary judgment. The Dials did not file an expert affidavit.
Dr. Harrington then filed a motion in limine to exclude the discovery deposition of Dr. Engle. He argued that Rule 32.01(3) prohibits the use of a discovery deposition of an expert taken in accordance with Rule 26 for any use other than to impeach the deponent. The trial court agreed and granted Dr. Harrington’s motion. The Dials appealed, asserting it was error for the trial court to exclude their expert’s discovery deposition in the summary judgment proceeding. Hence, the issue was whether Rule 32.01(3) prohibits the use of a deposition of an expert taken pursuant to Rule 26.02(4) to oppose a motion for summary judgment.
Rule 32.01 is primarily a rule of evidence. It applies to the use of deposition testimony for cross-examination and impeachment, is a rule of completeness, and provides a hearsay exception for former testimony. Rule 32.01(3) specifies that depositions of experts taken pursuant to Rule 26.02(4) may not be used at the trial except to impeach. This is commonly called “the Bearman Rule.” It prohibits the introduction, as substantive proof, of discovery depositions of experts taken in accordance with Rule 26.02(4). The Bearman Rule was included to address the dilemma faced by a lawyer taking a discovery deposition of a hostile expert who is or becomes unavailable under the rule. This includes witnesses exempt from subpoena under TENN.CODE ANN. § 24-9-101. Essentially, it is a rule of fairness which permits discovery of a hostile expert without the threat of unfavorable responses being introduced as substantive proof under what is, in essence, a hearsay exception. In Roddy v. Hardison, 1991 WL 53427 (Tenn.App.), the court previously held that depositions filed in support of, or in opposition to, summary judgment motions should be treated as affidavits for the purpose of determining whether summary judgment is warranted. In Bowen v. Defranco, 1992 WL 12129 (Tenn.App.), the court previously noted that use of an expert’s statement in deposition form does not deprive a party of any right he would have if the statement had been submitted in the form of an affidavit.
Therefore, it comes as no surprise that the Court of Appeals elected to extend Roddy and Bowen. Fairness considerations giving rise to the Bearman Rule simply are not present in the summary judgment context. At the summary judgment stage, consideration of a Rule 26 deposition presents no more unfairness than admission of an affidavit. Thus, a deposition of an expert taken in accordance with Rule 26 may be offered by a party to oppose summary judgment to the same extent that an affidavit may be so used.
There is authority that permits a party to air an expert’s dirty laundry. In Sneed v. Stovall, 2004 WL 735044 (Tenn.App.), plaintiff filed suit alleging that defendants committed medical malpractice. Counsel for the defendants took the discovery deposition of plaintiff’s medical expert, Dr. David Swan. During the course of the deposition, defense counsel examined Dr. Swan about the status of his medical license, and whether he had been the subject of any disciplinary proceedings. Dr. Swan responded that he had not. However, Dr. Swan knew that a complaint had been filed against him alleging improper sexual contact with a patient. He knew that the Kentucky Medical Society had issued an opinion finding that his conduct was inappropriate. He was also aware that a complaint had been filed with the Kentucky State Board of Medical Licensure (KSBML).
Several months later, defense counsel learned that Dr. Swan had been the subject of investigations and hearings before the KSBML. Dr. Swan had even admitted to the KSBML that he engaged in inappropriate sexual behavior with some of his patients. He entered into an Agreed Order of Probation with the KSBML. Plaintiff moved in limine to exclude all of this evidence under Rule 403. Plaintiff argued that the restrictions on Dr. Swan’s medical license were lifted by the time of Dr. Swan’s evidentiary deposition. However, Dr. Swan was untruthful in his discovery deposition and had been on probation. The trial court found the evidence relevant to credibility and permitted cross-examination on the matter. The Court of Appeals affirmed.

III. ETHICAL CONSIDERATIONS

A. Pros and Cons of Various Fee Agreements

“More for you, less for lawyers!” This statement reflects the concern of many consumers who have purchased legal services over the past decades: Lawyers charge too much. In order to vindicate this concern and ensure that lawyers receive fair fees, many initiatives proposing a ceiling on contingency fees in all tort actions are among the myriad of insurance reforms placed on state election ballots across the nation. Legislatures are certain to pass tort reform legislation, including attorney’s fee limitations, as long as the Republican Party controls the executive and legislative branches of government.
Many state legislatures have enacted comprehensive statutory schemes designed to lower medical malpractice insurance premiums and decrease malpractice litigation. These schemes, such as the “Medical Injury Compensation Reform Act” (MICRA) passed in California, typically include a provision that limits the amount an attorney can charge or collect on a contingency fee basis in actions against health care providers. However, because the courts face increasing numbers of all kinds of tort claims, and the public faces increasing insurance premiums for most forms of coverage, legislatures will most likely expand their regulating efforts beyond the medical malpractice area. As a result, an increasing number of states probably will enact, or attempt to enact, statutes or court rules that will subject contingency fees in all or most tort actions to prescribe graduated schedules or fixed ceilings. Richard Birnholz, Comment: The Validity And Propriety Of Contingent Fee Controls, 37 UCLA L. REV. 949, 949-51 (1990).
A contingent fee is an arrangement between an attorney and a client where the attorney agrees to represent the client for compensation fixed at a percentage of the amount recovered. For example, a typical contingent fee arrangement may provide that the attorney’s fee will constitute twenty-five percent of the recovery if the case settles or thirty percent if the case proceeds to trial. The attorney’s fee is said to be “contingent” because the client only pays a fee if the lawyer succeeds in securing some recovery for the client.
Prior to gaining acceptance, the contingent fee was illegal in most states, as well as in foreign nations. Courts justified this ban on contingency fees by reasoning that an advocate who had a financial interest in the outcome of litigation had “a strong inducement to prosecute doubtful and unjust claims.” An attorney’s agreement to litigate in exchange for a share of a party’s recovery also once constituted the offense of champerty for which the attorney could be subject to criminal punishment. Today, however, the contingent fee is the primary financing arrangement in personal injury and other tort litigation, and is utilized in collection suits, shareholder derivative suits, antitrust suits for damages, tax cases, will contests, and condemnation proceedings.
The most often cited justification for the contingency fee is that it allows access to the courts to those who lack the means to pay a lawyer’s hourly fees. Because the client pays no fee unless the lawyer succeeds in obtaining a settlement or judgment, the contingent fee makes it possible for the poorest litigants to obtain legal representation. In essence, the contingent fee allows the client a means to finance his litigation with funds borrowed from the lawyer, with the repayment due at the successful conclusion of the case. If the lawyer succeeds, the client pays an amount covering the costs of litigation (loosely resembling a payment of loan principal) and the lawyer’s fee (resembling interest). If the lawyer is unsuccessful, however, the lawyer receives nothing, as if he had made a bad loan. By virtue of this unique legal financing arrangement, a plaintiff can shift some of the economic risk and burden of the litigation to the attorney.
In addition to providing easy access to legal services and shifting the risk inherent in a case to the attorney, proponents of the contingent fee also maintain that the arrangement creates a unity of interest between the attorney and the client. The lawyer, who receives no fee if he does not obtain a recovery for the client and a large fee if he obtains a large recovery, has a direct incentive to pursue diligently the client’s interests and obtain the maximum return. Moreover, because of the lawyer’s desire to minimize the expense of the litigation he finances, the contingent fee “encourages efficiency, economy, and speed.” Thus, according to contingent fee supporters, both the client and the lawyer share the desire to obtain the maximum recovery at the minimum cost.
Critics of the contingent fee argue that by giving the lawyer a stake in the outcome and the plaintiff the ability to finance litigation out of recoverable proceeds, the attorney and plaintiff both possess the means and perhaps the incentive to file a lawsuit for its “nuisance” value and obtain a quick settlement. However, one must balance this potential for abuse against the possibility the contingent fee creates for bringing meritorious litigation, which might not otherwise be brought at all. Additionally, the contingent fee system itself provides the lawyer with an incentive to screen out baseless cases and file only the claims that are likely to be successful.
However, contingent fees may actually create a conflict of interest between attorneys and clients, which threatens the fulfillment of ethical and fiduciary responsibilities. First, because of general unfamiliarity with the cost and nature of legal services, the client usually will be ignorant regarding what constitutes a reasonable fee. A client’s perception of the actual fee may be further distorted because no money must be paid until the conclusion of the case, and any amount that is paid comes out of the amount recovered, not the client’s pocket. This only increases the degree of difficulty a client faces in evaluating a fee agreement. As a result, most clients generally will defer to the attorney’s expertise and agree with the attorney’s estimate of the risk and value of their case, as well as with the fee arrangement the lawyer suggests.
Second, the typical client is vulnerable when determining whether to settle his case or to commit the time necessary to litigate fully. An attorney who has a financial interest in the recovery may take charge of the litigation and disregard the desires of the client. The lawyer can use his position of superior knowledge to persuade the client to pursue a course of action (i.e., accept a certain settlement or litigate) that comports more with the attorney’s interests and desires than those of the client. Although this conflict inheres in every professional relationship, it is especially dangerous under a contingency fee arrangement because under such an arrangement the client surrenders the principal means of controlling how much the lawyer works, or does not work, on the client’s behalf—the power of the purse.
Thus, some commentators have argued that contingency fee lawyers may work less than the full amount necessary to maximize the client’s net recovery because of decreasing marginal returns on effort. One study confirmed that for cases with a value of $6,000 or less, contingent fee lawyers worked a statistically significant amount less than hourly fee lawyers (twenty-five hours as compared to thirty-two hours). However, this study on fees and lawyer effort also concluded: “We have conducted some analyses of case outcomes . . . and have been unable to detect any relationship between outcomes and effort for contingent fee lawyers.” Thus, while an “effort gap” may exist for some cases, the practical significance of such a gap is quite unclear. Because additional effort does not proportionately contribute to additional recovery, the lawyer who works fewer hours will not necessarily be less effective.
Critics of the contingent fee also usually stress that a fee representing a flat percentage of a plaintiff’s recovery bears little or no relationship to the amount of time and effort the attorney invests, or to the attorney’s risk of nonrecovery. The lawyer’s fee increases only with the size of the verdict or settlement. Accordingly, the amount of the fee often depends on circumstances unrelated to the lawyer’s services, such as the severity of the plaintiff’s injuries, the number of claimants represented in a case, and the opportunity for punitive damages.
From a pragmatic standpoint, all lawyers must agree that only one in every hundred medical malpractice cases can proceed on an hourly versus contingency basis. There is simply no reasonable way for malpractice victims to pay per hour for a good malpractice lawyer. The victim has already suffered a devastating injury to himself or his family. He cannot afford anything other than a contingency arrangement.

B. Marketing Your Legal Practice

Now more than ever, attorneys and law firms are turning to the internet to bring in new business. Legal marketing consultants can guide you and your firm through the maze of the internet and build a personalized strategic marketing plan to optimize your Internet marketing budget for maximum exposure. These Consultants have assisted many pioneers in legal internet marketing to achieve top placements and maximum exposure. With Yellow Page and billboard advertising ill effective and expensive, lawyers are looking to the Internet for a larger, more attentive audience.
More individual lawyers are joining the large law firms with personalized, professional websites to share their services and expertise. As many lawyers soon learn, the field of competitive internet marketing is very complex, very time consuming, and constantly evolving. Marketing budgets may be tight while marketing goals are unlimited. Therefore, internet marketing should include the following goals:
High-volume traffic - tens of thousands of nationwide visitors per day with a wide-range of complaints and injustices (examples: personal injury, product defects, fraudulent business activity).
User-friendly web design and effective content - all visitors, both the web-savvy and web-deficient, can easily review current legal matters and pending class actions while completing a general or campaign-specific complaint form.
Search engine optimization - consumers can easily find your website from tens of thousands of keywords. Your homepage and specific campaign pages should be at the top or on the first page of the major search engines.
Strategic online marketing and advertising - utilize a variety of strategic marketing techniques such as sponsored listings, partnerships, affiliate programs, press releases, newsletters, and more to stay on top of search results, capture visitors, and advertise your campaign or legal services. Use a popular free consumer newsletter to reaches out to many subscribers each quarter.
Qualified leads - an easy-to-use website and complaint form directs the prospective plaintiff through a set of targeted questions to determine case merit and case viability.
Larger firms may need other forms of marketing strategy to accommodate the greater number of lawyers. Every marketing strategy has at its goal to increase the profits and effectiveness in the way each lawyer practices law. The marketing plan should provide solutions to law practice management challenges and include legal coaching, customized consulting services, keynote speeches and seminars, assistance for buying and selling a law practice (including valuation, prospectus development, and negotiation strategy development), law firm retreats, legal roundtables, published articles, and other resources. For example, a nationally recognized “law coach” can be helpful. He would consult with lawyers and law firms in strategic planning, profitability analysis, and practice development. He should have experience as a corporate general counsel, government prosecutor, sole practitioner, partner, and law firm chief operating officer. He should improve client service in order to exceed client expectations. His leadership should leave the lawyers inspired and armed with practical solutions to get more cases.
Finally, any marketing firm should provide suggestions in the following areas in order to increase your income:
Web Consulting: Analyze your site, and then offer specific recommendations for changes, as well as general strategic guidance and other tips to advance your internet marketing goals.
Search Engine Submission: Provide an understanding how search engines work takes a full time commitment. With the internet evolving and growing so rapidly, search engines are constantly modifying the criteria used to evaluate and list web sites.
Banner/Link Exchange: Set up banner and link exchange accounts to help advertise your legal services on other web sites.
Banner Advertising: Banner ads are an effective way of driving traffic to a website. Design and implement a banner ad program to meet your marketing goals.
Pay Per Click Search Engines: Pay per click Search Engines are a cost-effective way to reach targeted customers via search engines. You select the search terms that are relevant to your site, and determine what to pay on a per-click basis for each. The higher you “bid”, the higher in the search results your site appears. It is targeted, cost-per-click advertising, and you set the cost per click.
Directories/Yellow Pages: Online method of listing/advertising you business with different directories. Businesses particularly targeting regionally based customers would find value in participating in these directories. Services range form a basic listing - name, contact information, and map; to priority listings that include more detailed information, link to company web site and logo placement. Some directories also offer your own company coupons for specials.
Site Traffic Analysis: Monitor your website so that they know where your visitors are coming from, what keywords they are using to find you, and where they are going while at your site. Use this information to design the site better, to find weaknesses in the search engines and directories, and to fine-tune your Meta tag data to match the most popular search criteria.
Market Competition Research: Check out your competition’s web sites and internet marketing plan. When they see interesting concepts or methods that they can use, they bring those to your attention, often with recommendations on how they can do it better.
Bear in mind that every marketing plan must be followed to the letter. No plan works if it is abandoned. Marketing must remain at least 10% of your practice if you wish to thrive, rather than just survive, in this very competitive profession.
C. Ex Parte Discussions with Defense Counsel
In Alsip v. Johnson City Medical Center, 2005 WL 1536192 (Tenn.Ct.App.), the Court of Appeals reviewed a trial court’s order that allowed defense counsel to have ex parte dialogue with the patient’s treating physicians. The court concluded that the trial court erred in entering the order that permitted defense counsel to have private conversations with the non-defendant physicians who treated the deceased during his last illness. Much of the Alsip derives from the Supreme Court’s declarations about the implied covenant of confidentiality. The Supreme Court recognized an implied covenant of confidentiality between a physician and patient in Givens v. Mullikin, 75 S.W.3d 383, 407-08 (Tenn.2002):
[W]e now expressly hold that an implied covenant of confidentiality can arise from the original contract of treatment for payment, and we find that the plaintiff’s complaint here has adequately alleged the existence of an implied covenant of confidentiality.

This covenant of confidentiality survives the death of the patient.
The issue in Alsip involved a court order. The issue in Givens involved subpoenas. It was whether a physician had a duty to keep a patient’s medical information confidential in the face of a “technically defective subpoena.” The Givens Court found no violation of the covenant in a physician’s response to such a subpoena. When the Court turned next to the subject of opposing counsel’s private conversations with a plaintiff’s physician, the tenor of the Court’s comments changed dramatically:

A much different case is presented, however, with respect to whether the physician breached his implied covenant of confidentiality by informally speaking to members of the Richardson Firm about the plaintiff’s medical information. While the understanding of the parties giving rise to the implied covenant of confidentiality permits a physician to disclose information pursuant to subpoena or court order, this understanding does not include permission to divulge this information informally without the patient’s consent…. [W]e hold that a physician breaches his or her implied covenant of confidentiality by divulging medical information, without the patient’s consent, through informal conversations with others….we are not inclined to find that patients or physicians typically expect that the physician’s implied covenant of confidentiality contains an “informal interview” exception.

Certain rules are clear from Givens:

(1) there is an implied covenant of confidentiality between a doctor and his or her patient unless there is a contrary understanding between them,
(2) with respect to subpoenas, valid or defective, a physician does not breach that covenant when he or she responds to the subpoena,
(3) a physician does not breach the covenant if he or she responds to a court order directing the physician to turn over medical records,
(4) there is no privilege that bars a physician from testifying, or countenances a physician’s refusal to testify, in court or by deposition,
(5) there are no exceptions to a physician’s statutory duty of confidentiality that permit disclosure of medical information in private conversations without the patient’s consent.

Notwithstanding these clear rules in Givens, the trial court in Alsip believed that the references to “request[s] cloaked with the authority of the court,” and the language “pursuant to subpoena or court order,” were sufficient authorization for a trial court to sign an order authorizing an opposing attorney to have private conversations with a plaintiff’s treating physicians.
The Court of Appeals disagreed. In the first place, there is no such express or implied grant of authority in Givens. Furthermore, the previously mentioned language is intertwined with language such as “does not include permission to divulge this information informally without the patient’s consent,” and a breach occurs by a physician “divulging medical information, without the patient’s consent, through informal conversations with others,” and, finally, “no exception permits disclosure of medical information in private conversations without the patient’s consent.” The trial court’s order authorized attorneys to talk privately with the deceased’s treating physicians. This was entirely different from an order in aid of discovery, directing a physician to disclose information or directing a physician to turn over medical records. Nowhere in Givens does the Supreme Court suggest, intimate, or even remotely mention an order of the type.
The trial court in Alsip designed a thoughtful, limited-in-scope order. However, the order would result in a physician breaching his or her covenant of confidentiality with the patient. This is the end product of an order prompting conversation between the defense attorney and the treating physician. It countermanded the Supreme Court’s clear edict in Givens—“physicians, thou shalt not talk informally with another about your patient’s medical information lest ye violate your covenant of confidentiality with your patient in so doing.” Finally, the filing of a lawsuit does not constitute a waiver of the covenant of confidentiality. The Supreme Court agreed with the Court of Appeals in Alsip.

IV. SAMPLE CASE: FAILURE TO DIAGNOSE SPINAL EPIDURAL ABSCESS
The most compelling type of medical malpractice case is the health care provider’s failure to rule out a life threatening condition that results in death or catastrophic injury. You encounter these situations primarily in heart attack, cancer, and neurological injury cases. In these cases there is always a warning symptom(s) or sign(s) that is a harbinger of bad things to come. The health care provider has a number of potential diagnoses on his differential diagnosis or decision tree. The latter is an algorithm or flow chart of possible causes or etiology for the underlying condition. Like a detective, the health care provider has an index of suspicion for the causes and uses his examination and tests to find the right cause. The issue in these cases is whether the health care provider ruled out the life threatening condition first and whether the patient would have survived or been spared severe injury if he had been timely diagnosed.
For example, consider this case we handled a few years ago. A 35 year-old man with persistent fever and thoracic back pain that lasted for three months was admitted to a local hospital. He had developed lower extremity weakness and anal and bladder sphincter dysfunction for 15 days. The patient was misdiagnosed as having the flu and discharged with antibiotics. Three days later, he arrived at another hospital. On admission he was alert and oriented; neurological examination revealed signs of spinal cord compression, with spastic paraparesis and sensitivity at the thoracic level at D7-D8. A lumbar puncture was performed; cerebrospinal fluid (CSF) revealed albumino/cytological dissociation. Magnetic resonance imaging (MRI) showed contiguous multilevel involvement at D6-D8, with decreased signal intensity of vertebral bone marrow on T-1weighted images, intervertebral disk space compromise, multiple vertebral deformities, plus homogeneous tissue with paravertebral and prevertebral irregular contrast enhancement and epidural extension of the infectious process (Figures 1 and 2).

The patient underwent surgical decompression and debridement. Surgical findings were pus and granulation tissue in the epidural space, with spondylitis of the D7 and D8 vertebrae. Histopathological examination of the smears obtained during surgery revealed a granulomatous inflammation, with necrosis and acid-fast bacilli. Culture of the biopsy smears yielded Mycobacterium tuberculosis (definitive diagnosis). Despite the surgery, the neurosurgical outcome was paralysis.
You must understand the course and progression of the disease in order to effectively prosecute the case. This means pulling Medline articles and reading neurological textbooks. TB osteitis of the spine (Pott’s disease) accounts for 1% of all TB infections. Mycobacterium tuberculosis infection generally spreads to the spine by the hematogenous route, or by paraspinal extension. Any level of the spine can be affected; but lesions are more commonly found in the lower thoracic region, as in our client. The lumbar and cervical spine areas are less frequently affected. Two or three adjacent vertebral bodies can be involved but noncontiguous sites of infection can also be found.
You must know the signs, symptoms, and tests in order to determine if there has been a deviation from the standard of care. Signs and symptoms of Mycobacterium tuberculosis are unspecific and include spinal pain, fever and night sweats as the most common clinical features at the time of diagnosis. Only 10% to 20% of patients have the SEA diagnosed before the onset of neurological symptoms. After several days, there is a rapidly progressing paraparesis and paraplegia, associated with sensory loss in the lower extremities, sphincteric paralysis, and urinary and fecal retention, as also found in our client. Percussion of the spine is associated with pain at the site of infection. Physical examination also reveals signs of a transverse cord lesion at the spinal level, also found in our client. A history of prolonged fever, night sweats, elevated peripheral white cell blood counts, and elevated erythrocyte sedimentation rates, is common to spinal TB infections. MRI is the method of choice for the diagnosis of a spinal epidural abscess.

You must know the prognosis in order to establish causation. Spinal TB requires urgent neurosurgical intervention (laminectomy), combined with specific antituberculous therapy. This is the treatment of choice in order to avoid neurological injury. Age, early diagnosis, and the degree of neurological involvement are the most important prognostic factors in patients with spinal epidural abscesses. For causation, ask yourself whether antibiotics given by an IV for at least 4-6 weeks would have spared your client neurological injury? Would earlier surgery needed to drain or remove the abscess have spared your client neurological injury? To what extent would surgery, needed to reduce pressure on the spinal cord or brain, have prevented further loss of neurological function? Unfortunately, permanent neurological damage or death may occur even if there is a timely diagnosis. Your damages depend on the prospects of a better recovery. This is where the case gets expensive due to a battle of neurological and neurosurgical expert testimony.
Every delayed diagnosis case has three essential components: substandard care, causation, and serious harm. You should examine each claim like a table that needs three legs to stand on its own. Each leg has co-equal significance. For instance, substandard care and serious harm in absence of causation is simply “negligence in a vacuum.” Substandard care and causation in absence of serious harm is too expensive to prosecute. Finally, causation and serious harm in absence of substandard care is characterized as a “bad outcome.” You should decline the claim unless you can prove all three components. The tremendous expense of these cases leaves you no alternative.
Medical research is crucial when evaluating delayed diagnosis claims. For example, I search Medline on the Internet for studies that discuss the medical topic(s) implicated by the claim. These studies typically represent the state of the art in medical science. They give clues to the standard of care and the subject of causation. Once I find the relevant abstracts, I order the full text of the study from Vanderbilt Medical Library. I also check topics in various medical textbooks at my office. It is helpful to consult these textbooks in advance of searching Medline. I have some in my office library. Like hornbooks, they sharpen my medical inquiry and prevent needless meandering through the countless studies on Medline. Many of the studies have parallel citations to other studies and texts that cover the same medical topic(s) with greater detail.
I then use the research to familiarize myself with the medical terminology. You cannot successfully pursue a delayed diagnosis case unless you understand the medical principles of your case. Medical issues will arise throughout discovery and trial. Ask yourself this question: how can you educate and persuade the jury to return a verdict for your client if you don’t understand the material yourself? As I will discuss later, you cannot rely on your experts to educate the jury by themselves. On the contrary, successful trial lawyers educate the experts and the jury. You are supposed to know more about the medical issues of the case than anyone in the courtroom. Conventional research suggests that jurors are looking for leadership in the courtroom. The jury must believe that the truth is found in your superior knowledge of the issues in the case. You are the leader, and leadership requires superior knowledge. Leadership is persuasive and wins lawsuits. This is the essence of trial advocacy.
Finally, a delayed diagnosis case always involves some element of chance in terms of the prospective prognosis. Make sure that the odds of a better diagnosis are greater than 50%. Tennessee law does not allow a claim for “loss of chance” unless the plaintiff’s odds of survival or a better outcome are 51% or greater—more likely than not. In Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993), the Supreme Court held that the “loss of chance” doctrine applies in situations where the plaintiff suffers from a preexisting medical condition such that he has less than a 51% chance of recovering even with optimal medical care. Spend as much time as necessary to evaluate critically the nexus between negligence and injury in your case. Causation has torpedoed many delayed diagnosis cases.

V. THE NEW MEDICAL MALPRACTICE ACT OF 2008

The new Medical Malpractice Act begins on October 1, 2008 and you better be prepared for the consequences. This Act radically changes filing requirements for any claim of medical malpractice. I studied the new Act carefully, and it has hidden traps. I will highlight the main provisions for you in this limited article. These are only my opinions for my cases. I strongly suggest that you associate more experienced counsel if you have any doubts about the new requirements. I have no doubt that defense attorneys will pounce on any perceived failure to comply with the new Act.
According to TENN. CODE ANN. § 29-26-121, the plaintiff must give written notice to each potential defendant at least 60 days before filing suit. You cannot file suit until after the 60 days has lapsed. Notice must be served by registered mail or overnight delivery. You must allege separately in the complaint that you complied with the provisions of TENN. CODE ANN. § 29-26-121(a). The Notice must provide some information about the nature of the claim. You may serve it on the health care provider or the provider’s authorized agent. Don’t just serve it on a nurse or office manager. See Dumbaugh v. Thomas, 2008 WL 2894792 (Tenn.Ct.App.) (dismissal for lack of proper service). You must attach to the Notice a separate list of all health care providers and addresses, when you perceive there is more than one health care provider at fault. If the defendant does not get served with the Notice, then expect a motion to dismiss the complaint for failure to comply with the statute.
At a minimum, the letter should look like this:

Dear Dr. Doe:
Pursuant to T.C.A. § 29-26-121, please be advised that I am the attorney representing [name of client], and I am the authorized agent of ]name of client]. Through me, [name of client] is asserting a potential claim for medical malpractice against you. Attached hereto is a list of all health care providers to whom notice is being given pursuant to T.CA. § 29-26-121(a).

If notice is given, the statute of limitations and repose is extended for a period of 90 days for all parties and potential parties. The statute is silent as to when the 90 day extension starts: when notice is sent or received? Don’t take a chance. I would file the complaint no later than 80 days after notice is sent. What if the defendant(s) alleges comparative fault against another health care provider? The statute is silent on this, but I suggest that you send notice to the new defendants as well.
The most troubling aspect of the new Act is the requirement for a Certificate of Good Faith. According to TENN. CODE ANN. § 29-26-122, the plaintiff lawyer must file a Certificate of Good Faith within 90 days after the complaint is filed. The Certificate must state that plaintiff’s counsel has consulted with one or more experts who have provided a written statement confirming that “upon information and belief” they are competent to express opinions under TENN. CODE ANN. § 29-26-115 and believe that “there is a good faith basis to maintain the action.” I think you should have a Rule 26 report in your file to support your Certificate of Good Faith. The written report should cover both elements of negligence and causation. If the defendant prevails on the merits, and the court determines that the Certificate is deficient, then the court may require the plaintiff’s lawyer to pay all of the defendant’s attorneys fees and costs incurred in the action. The court is also ordered to forward such violation to the Board of Professional Responsibility. In other words, you could lose the case and then spend time and money defending whether you had a good faith basis to bring the lawsuit in the first place. At the time I am writing this book, the new Act is just that – new. I expect some unfortunate opinions interpreting the ambiguities of this new Act. Again, if you have a claim I strongly suggest that you associate more experienced counsel until there is an appellate body of law. Better safe than sorry.