Articles Posted in Medical Malpractice (Health Care Liability)

In Tennessee the vast, vast majority of physicians have medical malpractice insurance.  The medical malpractice insurance company not only hires a lawyer to defend the doctor in the event a medical malpractice (now called health care liability) lawsuit is filed in court but also pays money toward any settlement or judgment in the case.  The amount that the company will pay is an amount up to the insurance policy limits actually purchased by the doctor or the company the doctor works for.  The company also employs a team of professionals who evaluate claims and supervise the litigation process.

In fact, in over 30 years of representing patients in medical malpractice claims against doctors and other health care providers, I have never come across a single doctor in Tennessee who did not have professional liability insurance.  There are states, such as Florida, where there appears to be a significant number of uninsured doctors, but that is not an issue in Tennessee.

One reason for this is that doctors own the largest physician professional liability insurance company in the state and, in essence, sell insurance to themselves.  A large number of the doctors who do not work for educational centers (like Vanderbilt) or as employees of hospitals purchase professional liability insurance coverage from this company, State Volunteer Mutual Insurance Company.  Insurance rates for doctors are less than they were twenty years ago (after adjusting for inflation).

A Tennessee medical malpractice lawyer must prove the following things to prove a medical malpractice (now called a health care liability) case in Tennessee:

1.  The standard of care for the health care provider.  For example, if the claim is that a family doctor failed to timely diagnose an infection, the patient’s lawyer must prove what a family doctor should do when presented with the information available to the doctor at the time of the alleged failure to diagnose the infection.  The standard of care must be proved by another doctor of the same or similar specialty, and that doctor must practice medicine in Tennessee or a state adjoining Tennessee.

2.  The failure of the health care provider to follow the standard of care.  Thus, using the same example, the patient’s lawyer must demonstrate that the doctor did not comply with the standard of care, that is, that the doctor either did something the doctor should not have done or failed to do something the doctor should have done.

Tennessee law requires that certificate of good faith be filed with the Court at the time a medical malpractice (now called a health care liability) lawsuit is filed. 

The certificate of good faith form is found on the website of the Tennessee Administrative Office of the Courts.   The form requires the signer to certify that he or she has consulted with and has a signed statement from one or more experts who say that the case has merit.  

The failure to file the form with the lawsuit will result in dismissal of the case.

Tennessee law requires that formal notice of medical malpractice (now called health care liability) claims must be given before a lawsuit can be filed.

Notice must be given before the one-year statute of limitations (the typical deadline for filing suit in medical malpractice cases) expires. The notice must include certain information and must be given or send in a way required by statute to each health care provider who is going to be sued.  Failure to give the right information or to send or deliver the notice in the way required by law will result in a dismissal of any later lawsuit against that health care provider.

(To be 100% accurate, the failure to give notice will result in dismissal of any later case against the health care provider.  The Tennessee Supreme Court has not yet decided the impact of the failure to give notice precisely as called for in the statute.  However, you should assume that notice must strictly follow the dictates of the statute until the Tennessee Supreme Court decides this issue.)

An increasing number of surgeries are conducted with the assistance of robots – and the medical malpractice claims arising from such surgeries is beginning to increase.

Doctors who perform robotic surgery sit and video-game style consoles and watch a high-definition monitor hooked to a 3-D camera that shows the work being done inside of the patient.  The arms of the robot are equipped with surgical tools, and the arms are manipulated by a combination of foot pedals and hand controls.    Watch this video to understand how the da Vinci Surgical System is supposed to work.

A question that has arisen is whether the doctors using these robots are properly trained.  To date, no fewer than 10 lawsuits have been filed arising injuries occurring during robotic surgery, and training is an issue raised in most lawsuits.

I have represented patients in medical malpractice (now called health care liability) cases in Tennessee or over 31 years.  I have represented patients against a wide variety of health care providers, from pathologists to neurosurgeons, hospitals to nursing homes, dialysis centers to public health clinics.  I have had relatively few cases against dentists, and relatively few dental malpractice cases are filed in Tennessee.  Why  are there so few dental malpractice cases?

Because most "errors" by dentists result in problems that do not give rise to a major medical issue that justifies the time and expense of litigation.  Most cases involve a single lost tooth, nerve damage that is uncomfortable but not disfiguring or has a significant impact on life, or similar issues.  I am not minimizing these injuries – I am simply saying that this type of injury frequently does not rise to the level that justifies the time and expense of a professional liability lawsuit. 

Professional liability lawsuits are aggressively defended.  Expensive experts are required in virtually every case.  These factors impact the ability and willingness of lawyers to accept cases with minor injuries.

In 2010 the Tennessee General Assembly adopted the phrase "health care liability action" to encompass virtually all types of claims against health care professionals.  This claims include all claims formerly known as "medical malpractice"  or ‘medical negligence" cases.

The Legislature took this action because it was unhappy with a decision of the Tennessee Supreme Court that made certain ministerial acts by certain health care providers regular negligence rather than medical negligence cases.  The practical impact of the court’s ruling was to reduce the cost of bringing certain types of cases, particularly in some of the cases involving nursing homes, because it eliminated the need for expert testimony in those cases.  The Legislature intended to make it more difficult (expensive) to bring these lawsuits, so it broadened the definition of "medical malpractice" and "medical negligence" and then changed the name of this type of case to "health care liability" cases.

This action was one of multiple actions taken by the Tennessee General Assembly to make it more difficult for patients to file valid claims against Tennessee hospitals, nursing homes, doctors, nurses and other health care providers.  All of these actions combined have resulted in a drop in the number of such cases by almost 50%.

The failure to take appropriate steps to prevent a pulmonary embolism or the failure to diagnose a pulmonary embolism may constitute medical malpractice.

People with the following conditions are at risk for pulmonary embolus:

• Patients who have undergone a surgery lasting more than 2 hours.
• Patients who have experienced prolonged immobility ranging from bed rest to long journeys in cramped conditions.
• Patients who are dehydrated
• Patients with heart disease
• Women who are pregnant
• Cancer patients
• Patients who smoke
• Patients who are overweight
• Patients who use supplemental estrogen

Physician assistants (PAs) are increasing in number in Tennessee.  Physician assistants are licensed by the state and are supposed to assist a physician in the practice of medicine.

The State of Tennessee has issued rules concerning the work done by physician assistants.  A physician assistant must have formal training in an approved program and must pass an examination to be licensed by Tennessee.

Physician assistants have the right to prescribe certain drugs under the supervision of a physician.  In fact, all of the activities of the physician’s assistant must be under the supervision of a physician.  The regulations concerning the supervision of a physician assistant by a physician are set forth in the link (look at section 18).