Tennessee Medical Malpractice Bulletin
Posted 12/18/2008
The Tennessee Court of Appeals in Pedro and Griselda Valadez, individuals and as parents and next Friends of Fatima Valadez, a minor v. Newstart, LLC, et al affirmed the trial court’s grants of summary judgments, finding that the cause of action for loss of chance is not recognized in Tennessee. The Plaintiffs had alleged that the Defendants failed to timely notify them that their unborn child was afflicted with spina bifida such that they could participate in a clinical trial.
Posted 10/03/2008
“One of out six liability claims against health care entities is associated with infections, injuries and other conditions acquired at the hospital, according to a new report. The 2008 Hospital Professional Liability and Physician Liability Benchmark Analysis, released Monday, found that hospital-acquired infections, hospital-acquired injuries, objects left in the body after surgery and pressure ulcers represent more than 12% of hospitals’ liability costs. After Oct. 1, the Baltimore-based Centers for Medicare and Medicaid Services no longer will reimburse providers for 10 categories of hospital-acquired conditions and medical errors, known as ‘never events’ because they are considered preventable and should never happen. Risk managers are concerned that this change—and the resulting increased publicity surrounding these hospital-acquired ailments—will trigger an increase in hospital professional liability claims, according to the study. Several insurers have announced they will cease reimbursing for such errors, including Hartford, Conn.-based Aetna Inc., Chicago-based Blue Cross and Blue Shield of Illinois, Bloomfield, Conn.-based CIGNA HealthCare and Indianapolis-based WellPoint Inc.”
Zack Phillips, Business Insurance, 9-30-08
Posted 9/12/2008
Tenn. Code Ann. 29-26-121 and Tenn. Code Ann. 29-26-122 were passed by the Tennessee Legislature on April 24, 2008 and signed into law by Governor Bredesen on May 15, 2008. The new statutes take affect on Ocotober 1, 2008. The highlights of these important changes to the medical malpractice statutes are as follows:
29-26-121 requires the plaintiff to give written notice of his/her potential claim for medical malpractice at least sixty (60) days before the filing of a lawsuit.
29-26-122 requires the plaintiff or plaintiff’s counsel to file a Certificate of Good Faith stating they have consulted with one or more experts who have provided a signed written statement confirming that The plaintiff or plaintiff’s counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they:
(A) Are competent under § 29-26-115 to express opinion(s) in the case; and
(B) Believe, based on the information available from the medical records concerning the care and treatment of the plaintiff for the incident(s) at issue, that there is a good faith basis to maintain the action consistent with the requirements of § 29-26- 115; or
(2) The plaintiff or plaintiff’s counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they:
(A) Are competent under § 29-26-115 to express opinion(s) in the case; and
(B) Believe, based on the information available from the medical records reviewed concerning the care and treatment of the plaintiff for the incident(s) at issue and, as appropriate, information from the plaintiff or others with knowledge of the incident(s) at issue, that there are facts material to the resolution of the case that cannot be reasonably ascertained from the medical records or information reasonably available to the plaintiff or plaintiff’s counsel; and that despite the absence of this information there is a good faith basis for maintaining the action as to each defendant consistent with the requirements of § 29-26- 115.
To read the actual statutes and learn about the penalties for failure to conform, the impact on the statutes of repose and limitation, and production of medical records, simply click on the links above.
Posted 7/30/2008
In companion Tennessee medical malpractice cases, Amanda Lynn Dewald, et al. v. HCA Health Services of Tennessee, et al. and Marvin M. Boren ex rel. Dorothy Faye Boren v. Mark T. Weeks, M.D., et al., the Tennessee Supreme Court analyzed hospital liability for the negligent or wrongful acts of independent contractor physicians, stating that to hold a hospital vicariously liable for the negligent or wrongful acts of an independent contractor physician, a plaintiff must show that (1) the hospital held itself out to the public as providing medical services; (2) the plaintiff looked to the hospital rather than to the individual physician to perform those services; and (3) the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee. See, e.g., Sword, 714 N.E.2d at 152; Diggs, 628 S.E.2d at 862; Simmons, 533 S.E.2d at 322.