Tennessee Supreme Court Clarifies Which Cases Are Subject to Tennessee Health Care Liability Act Requirements

The Tennessee Supreme Court recently handed down a very important medical malpractice decision in Adam Ellithorpe v. Janet Weismark, 2015 WL 5853873 (Tenn. 2015).  In this new decision, the Tennessee Supreme Court considered whether its prior opinion of Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011) was overruled by legislation found in the Tennessee Civil Justice Act in 2011.  In the Estate of French decision, the Tennessee Supreme Court previously ruled that claims could be characterized as ordinary negligence as opposed to medical malpractice when the conduct alleged is not substantially related to the rendition of medical treatment by a medical professional.  Following that decision, the Tennessee Legislature passed the Tennessee Civil Justice Act of 2011 which amended the definition of a “healthcare liability action” to the following:

(1) “Health care liability action” means any civil action, including claims against the state or a political subdivision thereof, alleging that a health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based;

T.C.A. § 29-26-101(a)(1). 

As a result, the question in the Ellithorpe case was whether the new definition of a “Health care liability action” overruled the Estate of French decision when determining if a case came within the Health Care Liability Act.  In Ellithorpe the Tennessee Supreme Court found that the Tennessee legislator overruled the Estate of French decision.  The Court held that “section 29-26-101 establishes a clear legislative intent that all civil actions alleging that a covered health care provider or providers have caused an injury related to the provision of, or failure to provide healthcare services be subject to the pre-suit notice and certificate of good faith requirements, regardless of any other claims, cause of action or theories of liability alleged in the complaint.”  Ellithorpe at ­­­7.

As a result, it is now very clear in Tennessee, based on the current status of the law, that if a cause of action has any relationship to a health care liabili...

Tennessee Supreme Court Finds Failure to Meet Pre-Suit Notice Requirements for Healthcare Liability Action Results in Dismissal Without Prejudice

A recent Tennessee Supreme Court decision, Samuel E. Foster v. Walter William Chiles, III, M.D., et al., No. E2012-01780-SC-R11-CV, 2015 WL 343872 (Tenn. 2015), decided the appropriate remedy for non-compliance with pre-suit notice requirements in T.C.A. § 29-26-121 for a healthcare liability action under Tennessee law.  Specifically, T.C.A. § 29-26-121(a)(1) provides the following requirements: 

(a)(1) Any person, or that person's authorized agent, asserting a potential claim for health care liability shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint based upon health care liability in any court of this state.

(2) The notice shall include:

(A) The full name and date of birth of the patient whose treatment is at issue;

(B) The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient;

(C) The name and address of the attorney sending the notice, if applicable;

(D) A list of the name and address of all providers being sent a notice; and

(E) A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.

In the Foster case the plaintiff filed suit against the defendant on March 17, 2011.  Prior to the filing of this first lawsuit, counsel properly provided defendants with pre-suit notice as required under T.C.A. § 29-26-121.  The plaintiff subsequently voluntarily dismissed the case on May 6, 2011. 

On May 4, 2012, the plaintiff filed a new complaint regarding the same claims against the same defendants.  This time the plaintiff did not comply with the pre-suit notice requirements for the second file...

Medical Malpractice - Ex-Parte Communications Between Medical Practice Defense Counsel and Non-Party Physicians Employed by Practice

The Tennessee Court of Appeals recently decided an important issue that comes up often in medical malpractice (health care liability) cause of actions in Tennessee.  The case of Cheryl Hall v. James H. Crenshaw, M.D. et al, No. W2013-00662-COA-R9-CV, 2014 WL 3555987 (Tenn. Ct. App. 2014) dealt with a situation where the plaintiff sued the Jackson Clinic under a vicarious liability theory for the actions of one of its physicians.  The plaintiff then desired to take the depositions of two employee physician shareholders of the Jackson Clinic who were also medical doctors that treated the plaintiff.  The Jackson Clinic filed a motion asking the trial court for permission to meet ex-parte with these doctors (who were employees of the defendant Jackson Clinic) to discuss matters relevant to the case including the treatment of the decedent.  They wanted to meet with them prior to their depositions so they could properly prepare them for their testimony.  The trial court denied allowing the ex-parte meeting between Jackson Clinic defense counsel and the physicians who were employed by the Jackson Clinic based on the Alsip v. Johnson Medical Center, 197 S.W.3d 722 (Tenn. 2006) decision. 

The Jackson Clinic appealed this trial court decision.  Each of the doctors who were going to be deposed by the plaintiff submitted affidavits stating they were shareholders of the Jackson Clinic and that they desired to be represented by the Rainey, Kizer, Reviere & Bell, P.L.C. defense attorneys in this matter.  The Tennessee Court of Appeals performed a significant analysis of the case law on ex-parte communications between defense counsel and physicians in the context of healthcare liability actions in Tennessee.  This is an interesting discussion and is worth reading if you want more details on these issues or are dealing with such an issues in your case (but this discussion is much too lengthy for this post). 

At the end of the day the Court found that neither “Alsip nor Givens would bar counsel for the Jackson Clinic from conferring ex parte with Drs. Cherry and Mariencheck, since both are employees of the Jackson Clinic . . . We must respectfully conclude that the trial court erred in declining to permit ex parte communications between defense counsel for the Jackson Clinic and Drs. Cherry and Mariencheck.”

Volunteer Doctors who Provide Free Services Under the Volunteer Healthcare Services Act are Not Liable for Medical Malpractice Negligence in Tennessee

The Volunteer Healthcare Services Act found in T.C.A. § 63-6-701 through 709 provides a certain level of immunity for volunteer physicians who provide healthcare in compliance with this statute.  Specifically, healthcare providers including physicians, surgeons, dentists, nurses, optometrists or “other practitioners of the healthcare discipline” who perform work for a “sponsoring organization” on a volunteer basis can be protected by the immunity provisions in this statute.

2014 Tennessee Statute Modification – Free Clinics Now Included:

In the 2014 Tennessee legislative session, this Act was amended in Public Chapter 575 in order to expand the amount of healthcare providers who receive protection under the act.  The bill summary provides a good explanation of this expansion as follows:

Under present law, no individual who is licensed, certified, or authorized by any board of the healing arts, who engages in the voluntary provision of health care services to any patient of a sponsoring organization is liable for any civil damages for any act or omission resulting from services rendered, unless the act or omission is a result of the individual's gross negligence or willful misconduct.

 
This bill extends the above immunity to services delivered at a free clinic.

This bill defines a "free clinic" as a not for profit, out-patient, non-hospital facility in which a health care provider engages in the voluntary provision of health care services to patients without charge to the recipient or a third party. "Voluntary provisions of health care services" is defined as providing health care services either without charge to the recipient or to a third party, or the recipient is charged on a sliding scale according to income.

Now, this protection extends to “free clinics” under the Act.  Prior to this legislative change, “free clinics” were not included in the protections afforded under these statutes.  “Free clinics” under the amended statute are defined in T.C.A. § 63-6-703 as:

In Tennessee One Year Healthcare Liability Action Statute of Limitations is Not Extended by Pre-Suit Notice When Dealing with GTLA Lawsuit

Analysis:  Last year the Tennessee Supreme Court decided another important case that interprets the Governmental Tort Liability Act (“GTLA”) in conjunction with other Tennessee statutes.  In this case the Tennessee Supreme Court found that the 120 day extension of time to file a healthcare liability action (formerly medical malpractice cause of action) when pre-suit notice is provided does not apply to GTLA lawsuits.  The Tennessee Supreme Court in Walton Cunningham v. Williamson County Hospital District et al, 405 S.W.3d 41 (Tenn. 2013) dealt with a medical malpractice claim that was filed 15 months after the claim accrued at the time of the death.  The plaintiffs relied upon T.C.A. § 29-26-121 that provides a 120 day extension of time beyond the one year statute of limitations to file suit after pre-suit notice is provided under the statute.  The pertinent part of T.C.A. § 29-26-121 provides as follows:

(c) When notice is given to a provider as provided in this section, the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider...

The question in this case therefore was whether the extension found in T.C.A. § 29-26-121 applies to a GTLA healthcare liability claim (essentially a medical malpractice case against a governmental entity).  The statute of limitations for a GTLA claim is one year as explicitly provided in T.C.A. § 29-20-305(b) which provides as follows:

(b) The action must be commenced within twelve (12) months after the cause of action arises.

As a result, there is a conflict between the SOL of 12 months for a GTLA claim and 12 months + 120 days (with pre-suit notice) in the healthcare liability statute.  The GTLA is a specific statute where the government waives immunity in certain limited circumstances.  However, “because waiver of immunity is in derogation of the common law, any claim for damages brought under the GTLA must be in stri...

Tennessee Statute of Repose Affirmative Defense is Waived if Not Timely Raised

Analysis:  The Tennessee Supreme Court recently decided an important case about the statute of repose that shows the importance of raising this defense in a timely manner.  The Tennessee Supreme Court in Eddie C. Pratcher, Jr. v. Methodist Healthcare Memphis Hospitals, 407 S.W.3d 727 (Tenn. 2013) discussed whether the Tennessee healthcare liability statute of repose (T.C.A. § 29-26-116(a)(3)) is an affirmative defense under Tennessee Rules of Civil Procedure 8.03 and whether it is waived if not raised in a timely manner. 

In the Pratcher case, the patient died following child birth cesarean section complications on December 4, 1999.  On December 1, 2000 her husband filed a Tennessee healthcare liability action (formerly medical malpractice action) against various parties.  There were several amendments to the complaint and the case ultimately proceeded to trial in September of 2006.  At no time throughout the pendency of the case did the defendant assert a statute of repose defense until April 2009 which was two and a half years after the first trial in this case.  At that point the defendant filed a motion to dismiss under the statute of repose defense but still did not attempt to amend its answer to actually add the defense in the answer.  Finally in October of 2010, four years after the trial, this defendant filed a motion to amend the answer to assert the statute of repose defense.  As a result, the Tennessee Supreme Court in this case addressed whether the statute of repose was waived in this context.

The Tennessee Supreme Court at length discussed the interaction between the statute of repose (for a healthcare liability action) and Tennessee Rule of Civil Procedure 8.03.  Specifically, T.C.A. § 29-26-116(a)(1-3) provides as follows:

(a)(1) The statute of limitations in health care liability actions shall be one (1)...

What is the Statute of Limitations for a Tennessee Medical Malpractice Cause of Action (Healthcare Liability Action)?

Analysis:  The statute of limitations for a medical malpractice cause of action (now known as a “healthcare liability action” due to recent changes in the Tennessee statutes) is one year as established by T.C.A. § 29-26-116.  If the alleged injury is not discovered within the one year period then the period of limitations is one year from the date of the discovery of the alleged injury (this is known as the “discovery rule” which is applied to many different statutes of limitations in Tennessee).  However, no cause of action can be brought greater than three years after the date of the negligent act or omission except when there is fraudulent concealment by the defendant.  If there is fraudulent concealment then the case must be commenced within one year after the discovery that the cause of action exists.  This three year time period is considered a statute of repose under Tennessee law and the “discovery rule” does not save a claim from being barred under this statute of repose under the plain language of this statute (unless fraudulent concealment is present as stated in the statute).   

There is one other exception to the limitation time periods identified in this statute - when a foreign object is negligently left in the patient’s body.  In this circumstance the statute of limitations is one year from the time the alleged injury is discovered or should have been discovered.  This exception also applies to the three year statute of repose based on the plain language in the statute.  (See also Bloomer v. Wellmont Holston Valley Medical Center, 299 F.Supp.2d 810 (E.D.Tenn. 2004)).

T.C.A. § 29-26-116(a) in totality provides as follows:

(a)(1) The statute of limitations in health care liability actions shall be one (1) year as set forth in § 28-3-104.

How are Tennessee Statutes of Limitations Applied when the Claimant is a Minor or Incompetent Person?

Analysis:  Statutes of limitations under Tennessee law are generally governed by Tennessee statute.  A specific time period is outlined in the statute within which a cause of action must be filed after a specific event.  However, there are certain exceptions to the statute of limitations in Tennessee.  One such exception is when the person experiences “incapacity”.   T.C.A. § 28-1-106 provides that if an individual, at the time a cause of action accrues, is under 18 years of age or is adjudicated incompetent then the statute of limitations is tolled (or put on hold) under their “legal rights” are restored.  For someone who is a minor, their “legal rights” are restored at the age of 18.  Their 18^th birthday begins the time period for the original statute of limitations for the cause of action.  For example, if a 15 year old minor is injured in an automobile accident, the one year statute of limitations for the personal injury action begins to run on their 18^th birthday so they would have one year to file the cause of action from the date of their 18^th birthday.   However, if the statute of limitations is greater than three years then they are limited to only three years from the date of their 18^th birthday (the date of the restoration of their “legal rights”). 

For an individual who is adjudicated incompetent at the time the cause of action accrued, the statute of limitations begins to run from the date their “legal rights are restored” (that would be the date they became competent again).  They can therefore commence the cause of action within the original statute of limitations from the date their legal rights are restored.  They also have the same three year cap for any statute of limitations period that exceeds three years.  T.C.A. § 28-1-106 in its entirety provides as follows:

If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person's representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.

Medical Malpractice/Healthcare Liability Action – When is a cause of action considered to be based in medical malpractice as opposed to negligence under Tennessee law?

Analysis:  The Tennessee Court of Appeals in Suzanne Renee Williams-Ali v. Mountain States Health Alliance, 2013 WL 357580, No. E2012-00724-COA-R3-CV (Tenn. Ct. App. January 30, 2013) discussed when a case is a medical malpractice cause of action (now called a “healthcare liability action” under the new statute) as opposed to simply a negligence claim.   Of course, this is of great importance because of the hoops that one must jump through in order to comply with the various pre-suit requirements for a Tennessee medical malpractice case.  This lawsuit concerned a plaintiff who was dropped from a table by the defendant’s employees while she was undergoing myocardial imaging.  She essentially fell off the table and landed on the floor and sustained injuries as a result of the fall. Williams-Ali at 1.  The plaintiff filed a lawsuit against the defendant Mountain States Health Alliance under a theory of negligence, not as a medical malpractice action.

As a result, the defendant filed a motion to dismiss asserting the causes of action in this matter were actually medical malpractice as opposed to ordinary negligence and requested dismissal because the plaintiff did not comply with the medical malpractice pre-suit requirements.  Ultimately, the trial court granted summary judgment to the defendant and found that the gravamen of the complaint sounded in medical malpractice as opposed to ordinary negligence.  The non-compliance with the pre-suit requirements was therefore fatal to the case.  This case was appealed and the plaintiff asserted that medical training and experience were not necessary to place or secure a patient onto the scan table for the nuclear stress test.  As a result, the argument was that this case should be considered a negligence case, not medical malpractice.

As the Supreme Court has previously held, “cases involving health or medical entities do not automatically fall within the medical malpractice statute.”  Williams-Ali at 4 (quoting Draper v. Westerfield, 181 S.W.3d 283, 290 (Tenn. 2005)).  The court further noted that a recent Tennessee Supreme Court provided a lengthy and well-reasoned opinion discussion of the difference between a medical malpractice claim and an ordinary negligence claim (See Estate of French v. Stratford House, 333 S.W.3d 546, 555-60 (Tenn. 2011)).  In the Estate of French case the Supreme Court discussed these issues and stated as follows:

Mental Health Law – New requirements for mental health practitioners passed in the 2013 Tennessee legislative session.

Analysis:  The 2013 Tennessee legislative session brought about an important new addition to the Tennessee Mental Health statutes found in Title 33.  Specifically, Public Chapter No. 300 which was signed into law by Tennessee Governor Bill Haslam on April 29, 2013, added T.C.A. § 33-3-210.  This statute went into effect on July 1, 2013.  It provides specific reporting requirements for mental health professionals to report “immediately” to law enforcement when their patient threatens to harm an identifiable victim under certain circumstances.  This statute provides as follows:

(a) If a service recipient has communicated to a qualified mental health professional or behavior analyst an actual threat of serious bodily harm or death against a reasonably identifiable victim or victims, the qualified mental health professional or behavior analyst, using the reasonable skill, knowledge, and care ordinarily possessed and exercised by the professional's specialty under similar circumstances, who has determined or reasonably should have determined that the service recipient has the apparent ability to commit such an act and is likely to carry out the threat unless prevented from doing so, shall immediately report the service recipient to local law enforcement, who shall take appropriate action based upon the information reported.

(b) If a mental health professional or behavior analyst is required to report pursuant to subsection (a), the professional or analyst shall report the following information:

(1) Complete name and all aliases of the service recipient;

(2) Name of the mental health professional or behavior analyst and name of private or state hospital or treatment resource from which the individual may be receiving services; and

(3) Date of birth of the service recipient.