Kelly on Malpractice

According to Jerome Groopman, M.D., author of How Doctors Think, a physician will interrupt a patient describing his or her symptoms within 18 seconds. Within that short time, many doctors decide on the likely diagnosis and best treatment. Often, decisions made this way are correct, but at crucial moments they can be wrong — with catastrophic consequences. Groopman goes on to explain how patients can stop doctors from making snap judgments, embrace uncertainty, communicate effectively, and deploy other skills that can profoundly impact the patient’s health. With this in mind, the malpractice lawyer should send a Rule 34 request for the defendant physician’s daily and weekly log of how many patients he or she saw during the month the client was injured or misdiagnosed. Also, ask for the shift and number of hours that the defendant physician worked during the day and week that the client was injured or misdiagnosed. Avoid a HIPPA problem by asking for the redaction of the patient’s names and other indentifying information. This should be a routine part of your discovery requests. You may find that your client was the victim of another snap judgment that Dr. Groopman derides as a major problem in the healthcare delivery system.

The term “dynamite charge” or Allen charge generally refers to a charge given the jury after deliberations have begun and when it appears the jury is deadlocked. The term arises from the intended effect to break the deadlock so that the jury reaches a unanimous decision. The Tennessee Supreme Court gives the following guidance when providing supplemental instructions to jurors:

(1) Jurors should be advised not to disclose how the jury may be divided;
(2) The only permissive inquiry by the court is about progress and whether further deliberations may be helpful;
(3) If giving supplemental instructions, the standard charge provided in Kersey v. State must be given; and
(4) The supplemental charge may only be given if it was included in the main charge.

If the trial court twice makes reference to the time and expense incurred for the trial, it is error. Any perceived criticism of an unanimous verdict is error. Both sides and the judge must be very careful. See Waters v. Coker, 2006 WL 1816240 (Tenn.App.) for a contemporary primer on the subject.

You are prepared to file a medical malpractice case against two defendants. One resides in Davidson County and the other resides in Montgomery County. Your client resides in Montgomery County. You elect to file the case in Davidson County. Neither defendant moves to dismiss for improper venue, and neither defendant alleges improper venue in his answer. On the eve of trial, you settle with the Davidson County defendant. Immediately thereafter, the Montgomery County defendant moves to dismiss the case for improper venue. What is the solution? The answer may surprise you. You should decide first whether the case is “local” or “transitory” within the meaning of the venue statute. The Tennessee Supreme Court has said, “the most apt illustration of a local action is an injury to real estate, and of a transitory action an injury to the person.” Hall v. Southhall Bros. & Carl, 240 S.W. 298, 299 (Tenn. 1922). Actions are local when a statute prescribes a particular county in which they must be brought. For example, actions involving immovable objects like real property are local. Local actions, being founded on causes referring to locality, must be laid in the county of the subject matter. The plaintiff has no choice in venue. He must sue where directed by statute. A transitory action is one that does not involve an immovable location. It can happen anywhere. The characteristic feature of a transitory action is that the right of action follows defendant’s person. Actions sounding in tort and contract are transitory. Medical malpractice actions are transitory. The plaintiff has a choice of venue in transitory actions. He can sue where the cause of action arose, where the defendant resides, or where the defendant may be found. TENN.CODE ANN. §20-4-104(a). Next, you should decide if venue is localized in the case. At first blush, your case appears to be transitory in nature. It is a tort action. It does not involve an immovable object. The injuries could happen anywhere. However, there is also the concept of localization. The localization doctrine is an anachronism. It dates back to English common law. It is a nostalgic reminder of the limitations associated with horse and buggy.

The localization doctrine declares that when a statute eliminates the option of suit wherever the defendant may be found and fixes venue for an otherwise transitory action in a particular county or counties, the legislative intent is to “localize” venue. Thus, the formerly transitory action becomes a local action. It means to protect the defendant from a default judgment in a foreign county. Tennessee has gone much further, however, by evolving a doctrine of localization that extends subject matter jurisdiction treatment to many other venue provisions. Professor Entman recently inveighed against the subject matter jurisdiction treatment affiliated with the localization doctrine:

Once the label “local” is attached, the selection of a forum county becomes jurisdictional, subject to the “no-waiver, no-consent rule” and other consequences of litigation in a court lacking subject matter jurisdiction. Tennessee’s localization doctrine has nothing to do with the nature of the action, or with the policies that prompted the legislature to limit permissible venues. The doctrine merely converts a statutory venue restriction into a rule of subject matter jurisdiction solely because the legislative treatment no longer supports the historical label “transitory.” June Entman, Abolishing Local Action Rules: A First Step Toward Modernizing Jurisdiction and Venue in Tennessee, 34 U. MEM. L. REV. 251, 306 (2004).

Thus, localization of venue is co-extensive with subject matter jurisdiction. The plaintiff must file suit in the local court. No other court has subject matter jurisdiction. Curtis v. Garrison, 364 S.W.2d 933 (Tenn. 1963). The defendant cannot waive an objection to the wrong venue. The parties cannot even consent to the wrong venue. The venue for transitory actions found at TENN.CODE ANN. §20-4-104 contains a localization provision. When the plaintiff and defendant both reside in the same county, such action “shall be brought” either in the county where the cause of action arose or in the county of their residence. TENN.CODE ANN. §20-4-104(b). This provision has been referred to as the “common county rule.” It localizes venue in either the common county or where the cause of action arose. It means that subject matter jurisdiction exists only in the common county or where the cause of action arose.

Returning to the facts of the case, the Plaintiffs and the doctor reside in Montgomery County. The Plaintiffs’ cause of action against the doctor arose in Montgomery County. By statute, venue is localized in Montgomery County. Only the Montgomery County Circuit Court has subject matter jurisdiction. How do you fight off a motion to dismiss? Ask the court to transfer your case against the remaining doctor to the Montgomery County Circuit Court. The next step used to be dismissal of the action. See Mills v. Wong, 39 S.W.3d 188, 190 (Tenn.Ct.App. 2000); Bing v. Baptist Memorial Hospital-Union, 937 S.W.2d 922 (Tenn. App. 1996); Winters v. Healthtrust, Inc., 836 S.W.2d 584 (Tenn. App. 1992), Tims v. Carter, 241 S.W.2d 501 (Tenn. 1951). Fortunately, the General Assembly fashioned an alternative to this harsh consequence. A court that lacks subject matter jurisdiction can simply transfer the case to a court that has subject matter jurisdiction pursuant to TENN.CODE ANN. §16-1-116. Appellate courts clearly prefer a transfer of the action via the statute when venue is localized instead of dismissal. Hawkins v. Tennessee Dept. of Correction, 127 S.W.3d 749 (Tenn. 2002); Humphreys v. Selvey, 154 S.W.3d 544, 556 (Tenn.Ct.App.2004); Wylie v. Farmers Fertilizer & Seed Co., Inc., 2003 WL 21998408, *6 (Tenn.Ct.App.).

Be sure to check residence carefully before you file suit and beware of the common county rule. Otherwise, you may have to start all over again in another county.

In Luna v. Sherwood, 208 S.W.3d 403 (Tenn.Ct.App.2006), the parents filed a medical malpractice action against the doctor, medical clinic and hospitals, alleging that during birth the baby suffered from hypoxic brain injury, thereby leaving her disabled and severely brain damaged. The doctor and medical clinic challenged the venue as an inconvenient forum, because he and his office were located in DeKalb County. The doctor and clinic alleged that many witnesses were located in Dekalb County. The other defendants in the case had offices in Davidson County. The trial court found that Davidson County was a proper venue and that the doctrine of forum non conveniens did not apply to intrastate disputes. The doctor and medical clinic appealed. The Court of Appeals revisited Zurick v. Inman, 426 S.W.2d 767 (Tenn.1968) which was an interstate, not intrastate, application of the forum non conveniens doctrine. The Court found it “significant” the doctrine of forum non conveniens had yet to be applied by our courts in an intrastate action. Finding Zurick limited to an interstate application of the doctrine, the Court declined the invitation to expand the doctrine of forum non conveniens to intrastate disputes.

According to Reuters, frivolous medical malpractice lawsuits are uncommon. In 2006, people who filed lawsuits against doctors accusing them of medical mistakes rarely did so frivolously, and those who filed trivial claims generally received no payout, researchers at Harvard University found. “Portraits of a malpractice system that is stricken with frivolous litigation are overblown,” said David Studdert who led a team of researchers at the Harvard School of Public Health in examining 1,452 randomly selected U.S. lawsuits. The study, published in this week’s New England Journal of Medicine, also found that very few patients who do make inappropriate claims receive payouts from insurance companies. “Although one third of the claims we examined did not involve errors, most of these went unpaid,” the authors wrote. The researchers also reported that one in six of those who are injured by medical errors receive no compensation at all. Studdert’s study supports other studies which have shown that the great majority of people injured by medical negligence never sue, and seems to disagree with assertions that the court system is rife with frivolous lawsuits. “Although the system seems to do very well separating the wheat from the chaff, it’s an expensive and very time-consuming process,” Studdert told Reuters. “We need to do more than put caps on damages, which may or may not be a good idea.” The researchers found that harmed patients usually have to wait five years for a payout with 54 cents of every dollar in their award going to lawyers, experts and courts. The study found that four out of five plaintiffs lose the case if it goes to trial while three out of five patients receive money if they settle out of court. Patients who do win their trials usually received $799,365 in damages, nearly twice as much as the $462,099 average out-of-court settlement, the study found. The team studied claims covering birth, surgery, medication problems and a missed or delayed diagnosis in areas of the U.S. covering 33,000 doctors, 61 hospitals and 428 outpatient facilities. In a commentary, George Annas a professor of health law at Boston University School of Public Health said few hospitals have chosen to take a patient’s right to safety seriously. Until they do, the threat of lawsuits will remain the only motivation for institutions to follow safer practices.

In Stratienko v. Chattanooga-Hamilton County Hospital Authority, 226 S.W.3d 280 (Tenn.2007), the Plaintiff physician was involved in a physical altercation with Dr. Monroe. The altercation took place in the cardiac catheterization lab lunchroom at Erlanger Hospital in Chattanooga. After the altercation, there were numerous discussions among various physicians and/or representatives of the Chattanooga-Hamilton County Hospital Authority (the “Hospital Authority”). Following these discussions, the Hospital Authority informed the Plaintiff that his clinical privileges were being summarily suspended pending an evaluation of the Plaintiff by the Tennessee Medical Foundation. The latter is a group that treats impaired physicians.

A few days after being informed that his privileges were summarily suspended, Plaintiff filed this lawsuit and immediately obtained an ex parte temporary restraining order prohibiting the Hospital Authority from suspending his hospital privileges pending an evidentiary hearing. Two days later and as required by the Medical Staff Bylaws, the Hospital Authority’s Credentials Committee met to consider the suspension of Plaintiff’s privileges. The Credentials Committee issued a recommendation to suspend Plaintiff’s hospital privileges, a decision which was later upheld by the Medical Executive Committee.

A few days after being informed that his privileges were summarily suspended, Plaintiff filed this lawsuit and immediately obtained an ex parte temporary restraining order prohibiting the Hospital Authority from suspending his hospital privileges pending an evidentiary hearing. As part of this discovery process, Plaintiff requested the Hospital Authority produce copies of Dr. Monroe’s credentials. After the Hospital Authority refused to provide these documents on the basis that they were confidential and protected from disclosure by the Peer Review Statute, Plaintiff filed a motion to compel production of these documents. The Supreme Court framed the issue as follows: whether the requested documents were protected by the “peer review” privilege pursuant to Tennessee’s Peer Review Statute, TENN.CODE ANN. § 63-6-219 or whether they came within the exception contained in the statute at paragraph (e).

The Tennessee Peer Review Statute was passed with the stated intent of encouraging “committees made up of Tennessee’s licensed physicians to candidly, conscientiously, and objectively evaluate and review their peers’ professional conduct, competence, and ability to practice medicine.” The statute further “recognizes that confidentiality is essential both to effective functioning of these peer review committees and to continued improvement in the care and treatment of patients.” Tenn.Code Ann. § 63-6-219(b)(1). To this end, the statute creates a privilege for certain documents, etc., which are generated or provided during the peer review process. Specifically, the statute provides as follows: All information, interviews, incident or other reports, statements, memoranda or other data furnished to any committee as defined in this section, and any findings, conclusions or recommendations resulting from the proceedings of such committee are declared to be privileged. All such information, in any form whatsoever, so furnished to, or generated by, a medical peer review committee, shall be privileged. The records and proceedings of any such committees are confidential and shall be used by such committee, and the members thereof only in the exercise of the proper functions of the committee, and shall not be public records nor be available for court subpoena or for discovery proceedings. One (1) proper function of such committees shall include advocacy for physicians before other medical peer review committees, peer review organizations, health care entities, private and governmental insurance carriers, national or local accreditation bodies, and the state board of medical examiners of this or any other state. The disclosure of confidential, privileged peer review committee information to such entities during advocacy, or as a report to the board of medical examiners under § 63-6-214(d), or to the affected physician under review, does not constitute either a waiver of confidentiality or privilege. Nothing contained in this subsection (e) applies to records made in the regular course of business by a hospital or other provider of health care and information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil proceedings merely because they were presented during proceedings of such committee.

The statute defines a “medical review committee” or “peer review committee” as: any committee of a state or local professional association or society, including impaired physician peer review committees, programs, malpractice support groups and their staff personnel, or a committee of any licensed health care institution, or the medical staff thereof, or any committee of a medical care foundation or health maintenance organization, preferred provider organization, individual practice association or similar entity, the function of which, or one (1) of the functions of which, is to evaluate and improve the quality of health care rendered by providers of health care service to provide intervention, support, or rehabilitative referrals or services, or to determine that health care services rendered were professionally indicated, or were performed in compliance with the applicable standard of care, or that the cost of health care rendered was considered reasonable by the providers of professional health care services in the area and includes a committee functioning as a utilization review committee under the provisions of Public Law 89-97 (42 U.S.C. §§ 1395-1395pp)(Medicare Law), or as a utilization and quality control peer review organization under the provisions of the Peer Review Improvement Act of 1982, Public Law 97-248, §§ 141-150, or a similar committee or a committee of similar purpose, to evaluate or review the diagnosis or treatment or the performance or rendition of medical or hospital services that are performed under public medical programs of either state or federal design.

The Supreme Court held that Dr. Monroe’s credentialing records were presented to a peer review committee and were thus within the broad purview of the statute. However, this did not end the inquiry. The Plaintiff argued that the records originated somewhere else, not in the peer review committee. As a result, the Plaintiff asked for permission to discover any credentialing documents that were created in the ordinary course of business. The Defendant argued that once the documents made their way to the peer review committee, the privilege attached automatically, so that the Plaintiff could not discover them. This would effectively negate the exception to the statute. Therefore, the Supreme Court concluded that based on the specific language of the Peer Review Statute: (1) the credentialing process was part of the peer review process; (2) documents generated as part of the peer review process are not made “in the regular course of business” of a hospital for purposes of the exception contained in Tenn.Code Ann. § 63-3-219(e); and (3) documents or records “otherwise available from original sources” are discoverable from either the original source.

The bottom line is that records made in the ordinary course of business may be discovered that are “otherwise available from original sources” such as hospital business records, incident reports, and the like. Records that originate in or are part of the peer review process are protected from discovery. You can thank two physicians in a fight in the Cath Lab for this instructive opinion.