Kelly on Malpractice

What happens when a medical malpractice case involves a defendant who resides in Kentucky? If the plaintiff is a citizen of Tennessee and the Kentucky defendant is subject to in personam jurisdiction in Tennessee, then you may file a federal lawsuit in Tennessee. This raises a big choice of law question: will Tennessee or Kentucky substantive law apply. The question is important because Tennessee has much stricter standards for prosecuting a medical malpractice case than does Kentucky, e.g., the Locality Rule, the Contiguous State Rule, and abolition of the collateral source rule. You have to know what law applies before you sue.

So how do you answer the choice of law question? In a case where federal jurisdiction is based on diversity of citizenship, “a federal court must apply the choice-of-law rules of the state in which it sits.” Mahne v. Ford Motor Co., 900 F.2d 83, 85 (6th Cir.1990)(citing Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941)). This means Tennessee’ choice of law rules will apply in the first place. Tennessee has adopted the approach of the Restatement (Second) of Conflict of Laws to determine the substantive law to apply to tort cases. Hataway v. McKinley, 830 S.W.2d 53, 59 (Tenn.1992).

Under the Restatement’s “most significant relationship” approach, “the law of the state where the injury occurred will be applied unless some other state has a more significant relationship to the litigation.” Id.; see also MacDonald v. General Motors Corp., 110 F.3d 337, 342 (6th Cir.1997). In an action for personal injury or wrongful death, “the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6.” REST 2d CONFL § § 146, 176. While the law of the place of the injury occurred provides the default rule, “the Restatement approach allows a court to apply the law of a state that legitimately has a stronger interest in the controversy….” Hataway, 830 S.W.2d at 59.

Under the “General Principle” of the Restatement:
The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
REST 2d CONFL § 145(1). Principles relevant to the choice of law determination under § 6 include:
(a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.
REST 2d CONFL § 6(2).

In determining which state’s law to apply, a court will consider the following contacts: “(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, [and] (d) the place where the relationship, if any, between the parties is centered.” Messer Griesheim Indus., Inc. v. Cryotech of Kingsport, Inc., 131 S.W.3d 457, 474 (Tenn.Ct.App.2003)(quoting REST 2d CONFL § 145). “[T]he court is to evaluate the[se] contacts ‘according to their relative importance with respect to the particular issue,’ and this is to be accomplished by carefully examining the policies behind the laws of the interested states and the interests of those states in the claim.” MacDonald, 110 F.3d at 343 (quoting REST 2d CONFL § 145(2); citing Id. cmt. e); see also In re Disaster at Detroit Metro. Airport on August 16, 1987, 750 F.Supp. 793, 796-97 (E.D.Mich.1989)(noting that substantive laws of different states may be applied to different issues–such as liability, compensatory damages, and punitive damages–in same case under principle of depecage).

How you answer these Hataway factors will in turn answer the ultimate question of whether Tennessee or Kentucky law will apply. Depending on the answer, you may even choose to sue in Kentucky, where there are no restrictions on where you retain a medical expert, no caps, no stringent community standard requirement, and no credit to the defendant physician for medical expenses reimbursed by an HMO. With increasing Kentucky traffic crossing state lines for medical care in Tennessee, malpractice cases involving Kentucky defendants will be more prevalent. Consequently, choice if law will be a prominent matter in these interstate cases.

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