Kelly on Malpractice

In any case involving the conduct of health care providers, you must assume it is medical malpractice. Otherwise, the result will likely be dismissal. For example, in Luter v. Vanderbilt, 2009 WL 230231 (Tenn.Ct.App.), Ms. Stratton was admitted to Vanderbilt Stallworth Rehabilitation Hospital (“VSRH”) for in-patient physical and occupational therapy. At the time of her admission, Ms. Stratton had numerous major medical problems. Mr. Luter alleged that VSRH employees negligently failed to attend to Mrs. Stratton’s movement, as a result of which she suffered bed sores, and that Ms. Stratton was not given rehabilitation services. He further alleged that as Mrs. Stratton was being removed from her bed by a VSRH employee, she was negligently dropped to the floor. Ms. Stratton was transferred to Lourdes Hospital where she died of heart failure.

VSRH filed a motion for summary judgment, supported by the expert affidavits. Plaintiff filed a response to the statement of undisputed facts, but presented no countervailing expert affidavits. The trial court granted summary judgment, finding there was nothing to contradict the proof submitted by VSRH concerning the allegation that Mrs. Stratton failed to receive rehabilitative measures at VSRH. The trial court further found that the plaintiffs failed to submit any evidence to support their allegation that VSRH was in any way negligent in treating Mrs. Stratton’s bed sores.

Mr. Luter’s main argument on appeal was that the facts and issues were derived upon ordinary negligence and not medical malpractice and that the negligence at issue “can be readily assessed on the basis of common everyday experience as opposed to a determination of medical science or specialized skill issues.” Thus, Mr. Luter contended, it was not necessary to produce expert testimony to respond to the summary judgment motion. Indeed, it is true that expert proof is not necessary when the conduct at issue constitutes ordinary negligence. Mr. Luter cited the fall Ms. Stratton suffered while being transferred from her bed as the conduct constituting ordinary negligence and, relying upon his affidavit as well as an investigative report of the Tennessee Department of Health, contended that genuine issues of material fact existed.
The Court of Appeals revisited Peete v. Shelby County Health Care Corp. 938 S.W.2d 693 (Tenn Ct.App.1996), which explains the distinction between ordinary negligence and medical malpractice as follows:

Medical malpractice cases typically involve a medical diagnosis, treatment or other scientific matters. The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring specialized skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of common everyday experience by the trier of fact. Id.

The Court of Appeals held that the claims were grounded in medical malpractice, not ordinary negligence. Mr. Luter did not file a countervailing expert affidavit or proof of any facts that would establish a genuine issue of fact for trial. Therefore, the Court of Appeals affirmed the summary judgment. Always assume it is medical malpractice, and you can never go wrong.