Kelly on Malpractice 2.0

by Clint Kelly on May. 15, 2019

Accident & Injury Medical Malpractice 

Summary: other consideration

X.        Financial Evaluation—that long hard voyage


You should evaluate the financial merits of the prospective claim. I have touched upon this earlier, but it bears repeating—medical negligence cases are notoriously expensive!  You should project the case expenses and check your line of credit.  You can easily wind up advancing $75,000 in case expenses before the trial even starts. When you see how the potential case expenses compare in proportion to your fee, then you will know whether the case is affordable.[i]  Keep in mind that suing multiple defendants will substantially increase the cost of litigation due to the added number of depositions and experts in the case.  The expenses of pursuing medical negligence cases to trial are prohibitive for some firms.  This economic reality forces attorneys to decline meritorious claims. You should consult a firm with extensive experience in medical negligence cases.  Association is one method to finance a claim by spreading the investment and the risk.  With joint representation, you can share case expenses and benefit from sharing the workload with a more experienced firm.[ii]    

Only take cases you firmly believe you will win.  Steer away from questionable cases.  A great trial lawyer once said that the most money he made in his legal career was the money that he saved declining questionable or close malpractice claims.  This lawyer has a track record of winning multi-million dollar malpractice verdicts in Georgia, so imagine how much money he saved by avoiding bad cases.  

            Beware of fee disputes.  In Shoughrue v. St. Mary’s Medical Center, Inc., 2004 WL 948381 (Tenn.Ct.App.), the plaintiff’s attorney claimed that he was entitled to one third of the settlement amount by contract in a medical malpractice case.  The Court of Appeals held that one third is the maximum fee in medical malpractice cases.  Regardless of the fact that the Shoughrues agreed to a one-third fee in the case, the law firm was only entitled to that fee which the trial court determined to be “reasonable.”  The reasonableness of an attorneys’ fee is measured by: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The time limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.  Ethically, you must inform the client whether you are sharing fees in a joint representation.


XI.       The Need for and Benefits of Expert Consultation and    Review


I have each claim reviewed by an informal expert after gathering all the medical records.  This review is strictly for consultation, not in anticipation of testimony.  I probably decline about 90% of claims based on the opinion from my expert.  He provides a frank analysis of my claim by screening out the “shaky” ones.  He lets me know if all the medical records have been gathered.  He spots omissions and alterations.  He points me to literature about the medical issues that I could not find and fine-tunes my research.  He is truly the medical brain behind the claim.

I rely on my informal expert to identify potential defendants.  In some cases, he can sign a medical statement that serves as the basis for my certificate of good faith required by Tenn.Code Ann. § 29-26-122.  Sometimes, my expert locates a party a fault who I missed in my initial review.  He also identifies other Rule 26 experts who I need for the case.  Finally, I rely on my informal expert to outline the medical issues and answer the all-important question, “What is the malpractice?”  If the claim has merit, he puts me on the right track.  If the claim lacks merit, then he explains the deficiencies in lay terms, which I pass on to my client.  My informal experts are a treasured part of my litigation team in whom I have the utmost trust and confidence.  These experts cannot be discovered as long as they are consulted in anticipation of litigation and not subsequently identified as a trial witness.[iii]


XII.     The Pre-filing Checklist


I customarily use a 10-point checklist to make sure that all priorities are met.  There is always a statute of limitations lurking around the corner, so I use this checklist to conduct the review expeditiously:


1.             When I first meet the client, I have the following items available:


a.         The contract

b.         The client questionnaire

c.         A release for medical records/employment records/educational records


I have the client sign these before leaving my office.  The client can fill out the questionnaire and mail it to me later.  I also try to pinpoint when the statute runs.     


2.         I gather all the medical records and organize them.  I have a medically trained paralegal and/or a nurse index the records.  


3.         I nail the statute down.  Do not to take chances here.  You can’t always count on the discovery rule to save your claim.


4.         I then submit the medical records to my informal expert.  The cover letter need only say that I want the records reviewed and wish to discuss by phone later.  I make sure the records have been pre-analyzed for omissions and alterations before submission to my informal expert.           


5.         When my informal expert calls, we discuss:


            a.         What is the malpractice?

            b.         What is the identity of all                                                                   partieswho may be at fault?[iv]

            c.         What are the specialties or                                                                 subspecialties involved in the case?

            d.         What is the likelihood of success?


6.         I then meet with my client again to inform him of the opinion.  At this point, I ask the client to pay for a formal expert review unless exceptional circumstances dictate otherwise.  The expert’s charge for review is usually $500 to $1000.  The formal expert will likely testify in the case and is subject to discovery as a matter of right.[v]


7.         I start projecting the case expenses.  I make a final check to decide whether I will accept the case.[vi]  


8.         I draft the complaint and the discovery requests. I discuss the pleadings with my expert(s) over the telephone to make sure that I have covered everything.


9.         I make sure that I have the right venue.[vii]  Then, I file the complaint and send the discovery requests with it.  There is no need to lengthen the voyage, so I usually serve the discovery requests with the complaint.[viii]  If I non-suit, then I make sure that service on all defendants has been perfected, otherwise, the claim may be barred.[ix]  I have the right to recommence the action by means of a motion to amend the original complaint.[x]  


10.       I prepare myself for a rapid response motion for summary judgment.  Fortunately, the trial court will postpone any hearing to allow me to go ahead with discovery.[xi]


XIII.   Potential Areas of Liability — Theories and Causes of    Action


Hospitals owe each patient a duty to furnish the care, attention, and protection reasonably required by the patient’s known mental and physical condition.[xii]  The hospital’s duty starts when it accepts a patient for treatment.  The Supreme Court recognized the hospital’s institutional liability for negligence in Barkes v. River Park Hosp., Inc., ___ S.W.3d ___, 2011 WL 4115171 (Tenn. Oct. 20, 2010).  The Supreme Could held in Barkesthat a hospital is directly liable to its patients, independent of any liability imposed on its agents, when the hospital fails to exercise reasonable care in discharging it duty. 

In Barkes, River Park Hospital failed to enforce its internal policies and procedures, which led to the premature discharge of Mr. Barkes from the emergency room.  River Park’s policy required that a nurse and ER doctor see each patient like Mr. Barkes prior to discharge.  Mr. Barkes was not seen by an ER doctor prior to discharge.  He died soon after leaving the hospital.  The jury found River Park liable to Mr. Barkes for failing to enforce its policy.  The verdict was supported by proof that River Park’s negligence was an “institutional failure” that was managerial and administrative.  River Park “developed policies designed to ensure that its patients received quality care.”  Its responsibility included a “duty to create and maintain effective lines of communication” to health care providers practicing within its walls “to ensure that they were aware of and following the hospital’s policies and procedures.” The hospital was responsible for implementing an effective system of oversight “to enforce its policies.”  River Park breached its own policy and thereby breached its direct and independent duty owed to Mr. Barkes.  This was the cornerstone of the verdict.

The jury exonerated all of River Park’s hospital staff including the ER doctor, while finding that River Park violated its direct and independent duty to provide reasonable care. Thus, River Park Hospital petitioned for rehearing iBarkes v. River Park Hosp., Inc., ___ S.W.3d ___, 2011 WL 5129719 (Tenn. Jan. 26, 2011).  River Park could not understand how it could be held liable when its agents were exonerated. The Supreme Court explained that a hospital can be held directly and independently liable for failing to exercise reasonable care regardless of whether the hospital is found liable under respondeat superior.  In other words, the direct duty of care is a separate ground of liability from vicarious liability.  This means a hospital can be negligent for failing to enforce its policies in absence of a finding that its staff was also negligent.  This is how the Supreme Court reconciled the alleged inconsistency in the verdict.  The theory of direct liability is not a new concept.  Tennessee courts have long recognized that hospitals owe certain duties of care to patients for treatment and healing.  What has been called “corporate negligence” is no more than the application of common law principles of negligence. 

The existence of a physician’s duty arises out of the professional relationship between the physician and his patient.  The physician-patient relationship arises when the patient knowingly and voluntarily seeks the professional assistance of a physician, and the physician knowingly agrees to treat the patient.[xiii]  Once a physician accepts a patient, he has a duty to continue providing treatment as long as medically necessary.[xiv]  A physician’s duty to attend a patient continues unless the physician-patient relationship is ended by: (1) mutual consent, (2) the physician’s withdrawal after reasonable notice, (3) dismissal of the physician by the patient, and (4) the cessation of the medical necessity that gave rise to the relationship in the first place.  A physician is liable for abandoning the patient unless one the exceptions apply. Courts have held that when a physician is temporarily unable to attend to a patient personally, he may make arrangements for a competent person to attend the patient in the physician’s absence. 

            The Supreme Court revisited the physician-patient relationship in Kelley v. Middle Tennessee Emergency Physicians, P.C., 2004 WL 868500 (Tenn.).  Mrs. Kelley went to the emergency room complaining of chest discomfort that had progressively worsened.  She was diagnosed with a heart attack and was admitted to the hospital.  Mrs. Kelley was treated with anticoagulants and discharged from the hospital after four days.  Two months later, Mrs. Kelley again went to the emergency room and was seen by Dr. Anderson.  At that time, Mrs. Kelley complained of chest pain similar to the pain she had experienced with her heart attack two months earlier.  Dr. Anderson felt it was imperative to call her treating cardiologist, Dr. Fleet.  However, Dr. Fleet was not available.  Unable to reach Dr. Fleet, Dr. Anderson spoke instead to Dr. Cage.  Dr. Anderson informed Dr. Cage that Mrs. Kelley had atypical chest pain lasting over twelve hours, that her clinical exam was unremarkable, that there were no new EKG changes, and that she had a normal troponin level.  

            Dr. Cage asked Dr. Anderson whether a cardiac catheterization had been performed in April 1999.  Dr. Anderson replied that a cardiac catheterization had been performed and that it showed Mrs. Kelley had an occluded left anterior descending artery and no other disease.  Dr. Cage then asked Dr. Anderson if any intervention was done in April 1999.  Dr. Anderson replied that the medical records indicated that no intervention had been done and that the treating physician (Dr. Fleet) had concluded that medical therapy was indicated.  Dr. Anderson and Dr. Cage discussed how to treat Mrs. Kelley’s chest pain.  They agreed that Mrs. Kelley could be treated symptomatically with follow-up care with Dr. Fleet.  After his telephone conversation with Dr. Cage, Dr. Anderson released Mrs. Kelley from the hospital.  Thereafter, Mrs. Kelley suffered a heart attack and died one hour after she got to the emergency room.  

            Mrs. Kelley’s surviving spouse filed suit against Dr. Cage.  He filed a motion for summary judgment asserting that he had no physician-patient relationship with Mrs. Kelley.  In support of his motion, Dr. Cage filed an affidavit stating that Mrs. Kelley never personally contacted him and that he was never asked to see Mrs. Kelley.  Dr. Cage also stated that he never “knowingly accepted Lillie Kelley as a patient” and “never provided any medical services to Lillie Kelley.”  The trial court granted summary judgment to Dr. Cage finding as a matter of law that there was no physician-patient relationship.

            The Supreme Court acknowledged that the physician-patient relationship is generally characterized as a contractual one in which the patient knowingly and voluntarily seeks the professional assistance of the physician, and the physician knowingly agrees to treat the patient.  The relationship may either be express or implied. A face-to-face meeting between the physician and patient is not required.  A physician-patient relationship “may arise out of a consultation by the patient’s primary physician with another physician when that consultation is for the treatment of the patient.”  Whether a physician-patient relationship exists is not governed solely by the law of contracts.  It is for the jury to determine whether the facts establish the elements of a physician-patient relationship.  The Supreme Court reversed the trial court’s summary judgment and allowed the jury to decide the question of a physician-patient relationship.

A cause of action for medical negligence is controlled by statute. Tenn.Code Ann. § 29-26-115 sets forth the elements of negligence[xv]and res ipsa loquitor.[xvi]  Any want of skillful care or diligence by physician that sets back a patient’s recovery, prolongs the patient’s illness, increases the patient’s suffering, or makes the patient’s condition worse gives rise to a medical negligence claim.[xvii]  A plaintiff facing summary judgment or directed verdict need only demonstrate that he has been injured.  The extent of the injury is a question for the jury.[xviii]

In Duell v. The Surgical Clinic, 2010 WL 3237297 (Tenn. Ct.App.), the plaintiff brought a medical malpractice case involving the common knowledge exception and res ipsa loquitur.  The defendant physician, Dr. Geer, performed surgery on the plaintiff’s husband.  Sponges were used in the patient’s abdomen during the procedure.  Nurses in the operating room counted the sponges used in the surgery.  The nurses erred in counting the sponges.  Dr. Geer closed the surgical incision with a sponge remaining inside the patient.  The retained sponge was later discovered and removed in a second surgery.  The plaintiff’s husband subsequently died of causes unrelated to the retained sponge. 

Dr. Geer filed a motion for summary judgment.  Dr. Geer filed two medical expert affidavits, both of which stated that he had complied with the applicable standard of care by relying on the nurses’ sponge count.  He tried to shift liability to the nurses.  Initially, the plaintiff filed an expert affidavit stating that Dr. Geer did not comply with the applicable standard of care, but later filed a notice stating that she intended to proceed to trial with no expert proof to support her medical malpractice claim.  The trial court determined that neither res ipsa loquiturnor the common knowledge exception applied, and granted summary judgment in favor of Dr. Geer because the plaintiff had no countervailing expert affidavits. 

            The court of appeals reversed the trial court on both the common knowledge exception and res ipsa loquitur.  The plaintiff contended that both the common knowledge exception and the doctrine of res ipsa loquiturapplied to her case, and consequently, she did not need expert affidavits to survive Dr. Geer’s summary judgment motion.  The plaintiff maintained that surgeons such as Dr. Geer have a non-delegable duty to remove foreign objects introduced into surgical patients and thus cannot rely on a sponge count by a nurse. Plaintiff cited cases in which a sponge left in a surgical patient was a “classic example” of the common knowledge exception to the requirement of expert proof to establish the surgeon’s negligence. See Seavers v. Methodist Med. Ctr. of Oak Ridge,9 S.W.3d 86 (Tenn.1999).  The plaintiff argued that Dr. Geer could not delegate his duty to remove foreign objects from a patient’s body at the completion of surgery citing the comment in Tutton v. Patterson,714 S.W.2d 268 (Tenn.1986), that “reliance on a sponge count does not, as a matter of law, relieve a doctor from liability for leaving a sponge in a patient.”  

The common knowledge exception has been described as “when medical negligence is, so to speak, as plain as a fly floating in a bowl of buttermilk.”  In those cases wherein the acts complained of are within the ken of the common layman, the affidavit of medical experts may be considered along with all other proof, but they are not conclusive.  The court of appeals followed this rule and held that the common knowledge exception applied.  Therefore, the plaintiff did not need an expert to survive Dr. Geer’s motion for summary judgment.  

            As to the issue of res ipsa loquitur, the court of appeals rejected Dr. Geer’s argument that the “instrumentality” that caused the injury was the sponge count rather than the sponge.  It was undisputed that Dr. Geer was supposed to remove the surgical sponges.  Under those circumstances, the plaintiff had shown the requisite elements for application of the doctrine of res ipsa loquitur.  It was not necessary to the inference of negligence that Dr. Geer have such exclusive control.  Exclusive control is merely one way of proving responsibility.  The doctor may be responsible, and the inference may be drawn against him, where he “shares the control with another” or where he is under a duty that he cannot delegate to another like a nurse or other physician extender.  Summary judgment was reversed.  Duellshowcases the difference between “what you want” and “what you need.”  You want an expert to enhance your case even if the common knowledge exception applies.  However, you don’t need an expert to get past summary judgment for a claim based on res ipsa loquitor

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