Kelly on Malpractice

Whether a case is a medical malpractice action or a garden variety case of ordinary negligence is a critical question that has profound implications for the prosecution of your case. If the case is one of medical malpractice, then you must comply with the stringent requirements of the Tennessee Medical Malpractice Act found at TENN. CODE ANN. 29-26-115 et seq. This means you must have an expert (unless it is res ipsa loquitor action which is exceedingly rare); you must comply with the contiguous state rule; you must comply with the locality rule; and you must comply with the notice provision of 29-26-121, 122, including the requirement of a certificate of good faith.

I have analyzed each of these stringent requirements in medical malpractice actions at length in previous issues of this newsletter. These requirements are onerous. Many otherwise meritorious cases have been dismissed where the plaintiff lawyer failed to get an expert or failed to comply with the locality rule. Trial courts are dismissing cases where the plaintiff lawyer fails to comply with the new notice provision. There is the ever-present risk that the certificate of good faith in inadequate, which exposes the plaintiff’s lawyer to a penalty of attorneys fees and costs.

An ordinary negligence case does not implicate the aforementioned stringent requirements. The Tennessee Medical Malpractice Act does not apply to a garden variety tort case. Therefore, the initial question in any case involving a health care provider, other than whether to take it in the first place, is whether it is a medical malpractice action or an action for ordinary negligence. The answer to that question will govern how you prosecute the case procedurally.

In Tennessee, not every allegation of wrongdoing against a hospital or a doctor is necessarily for medical malpractice. See Estate of Doe v. Vanderbilt Univ., Inc., 958 S.W.2d 117, 120 (Tenn.Ct.App.1997) (holding that the failure to notify a former patient that the blood transfusion had not been tested for human immunodeficiency virus (HIV) sounded in negligence and not medical malpractice); see also Pullins v. Fentress County Gen. Hosp., 594 S.W.2d 663, 664-65 (Tenn.1979) (finding that the hospital’s alleged failure to keep premises free of brown recluse spiders judged by ordinary negligence standard); Turner v. Steriltek, Inc., 2007 WL 4523157 (Tenn.Ct.App.) (finding ordinary negligence when the hospital did not implement a policy to ensure surgical instruments were sterile and as result the patient had to undergo a second surgery); Peete v. Shelby County Health Care Corp., 938 S.W.2d 693, 696 (Tenn.Ct.App.1996) (finding ordinary negligence when the patient was struck in the head as a hospital employee attempted to dismantle an orthopedic suspension bar); Keeton v. Maury County Hosp., 713 S.W.2d 314, 317-18 (Tenn.Ct.App.1986) (finding ordinary negligence when patient fell trying to get to bathroom after a catheter was removed and the patient was not given a urinal); Franklin v. Collins Chapel Connectional Hosp., 696 S.W.2d 16, 20 (Tenn.Ct.App.1985) (finding a res ipsa loquitur case, not medical malpractice action, when a nursing home resident was scalded while the orderly gave her a bath); Harvey v. Wolfer, 1996 WL 94819 (Tenn.Ct.App.) (holding that it was ordinary negligence, when a hospital physician attempted to assist and dropped her).

In Howard v. Kindred Nursing Ctrs. Ltd. P’ship, 2006 WL 2136466 (Tenn.Ct.App), the court held that the statute of limitations barred the allegations of the Administratrix that sounded in ordinary negligence. In determining the applicable statute of limitation, the court had to first determine whether the action sounded in medical malpractice or ordinary negligence. The court noted that the distinction between the two actions is subtle, and can be problematic in any given case against a health care provider. The Howard court explained the distinction as follows:

[W]hen a claim alleges negligent conduct which constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional, the medical malpractice statute is applicable. Conversely, when the conduct alleged is not substantially related to the rendition of medical treatment by a medical professional, the medical malpractice statute does not apply. Id. (quoting Gunter v. Lab Corp. of Am., 121 S.W.3d 636, 641 (Tenn.2003).

In finding that the actions complained of sounded in medical malpractice, the court held that “the complaint was based upon allegations of professional negligence by nurses in failing to adequately care for the Decedent while she was receiving medical treatment at Baptist Hospital. The plaintiffs’ allegations of negligent conduct bears … a substantial relationship to the rendition of medical treatment by a medical professional,’ and are therefore subject to Tennessee’s Medical Malpractice Act. The Howard court applied the “substantial relationship” test of Gunter, a decision in which the Supreme Court found that a claim against a testing laboratory over a negligently performed paternity test sounded in ordinary negligence, and not medical malpractice. Gunter, 121 S.W.3d at 637. A federal district court, applying the “substantial relationship” test of Gunter, noted that the characterization of a claim as being for ordinary negligence or for medical malpractice “is a fact-sensitive inquiry, and the distinction is not always clear.” Estate of Hardin v. Broadmore Senior Servs., LLC, 2007 WL 2112670(M.D.Tenn.2007).

The Howard court listed the allegations of ordinary care in a footnote. The claims of ordinary care were: failure to properly provide accurate and complete nursing assessments for the Decedent; failure to properly develop and implement an individual nursing plan for the Decedent; failure to prevent the Decedent from becoming dehydrated; failure to prevent the Decedent from developing pressure ulcers; failure to treat those ulcers; failure to supervise the nursing staff assigned to care for the Decedent; failure to evaluate the Decedent’s response to nursing care; and failure to record and report to physicians the signs and symptoms of changes in the Decedent’s physical condition.

In Estate of French v. Stratford House, 2009 WL 211898 (Tenn.Ct.App.), the plaintiff asserted the following as ordinary negligence: failure to turn the Deceased every two hours and reposition her to prevent bed sores; failure to properly treat the bed sores once they developed, failure to assist the Deceased in eating, failure to bathe her, failure to clean her after incontinence, and failure to adequately staff the nursing home. The Court of Appeal held that the gravamen of the case sounded in medical malpractice. The plaintiff’s allegation of conduct she claims is ordinary negligence were decisions relating to the care of the Deceased that necessarily involve medical knowledge. Those decisions “bear … a substantial relationship to the rendition of medical treatment by a medical professional” and are therefore subject to Tennessee’s Medical Malpractice Act.

The prudent practice in any claim against a health care provider where the negligent conduct bears a substantial relationship to the rendition of medical treatment is to hire an expert and assume it is medical malpractice. To do otherwise is dangerous.

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