Kelly on Malpractice

by Clint Kelly on May. 15, 2019

Accident & Injury Medical Malpractice 

Summary: Theories of liability

III.      The Duty to Warn 


            As stated previously, not every claim of negligence against a hospital or a doctor is medical malpractice.[i]  Some claims arise from a duty to warn, which sounds in ordinary negligence.  A claim against a health care provider by a third party for failing to provide information to safeguard the third party is not medical malpractice.  I do not think the new tort reform law affects the basic tenets of a duty to warn.  In Bradshaw v. Daniel, 854 S.W.2d 865 (Tenn.1993), the patient, Mr. Johns, went to an emergency room at Methodist Hospital South in Memphis complaining of headaches, muscle aches, fever, and chills.  He was admitted to the hospital under the care and treatment of the defendant, Dr. Daniel.  Mr. Johns’ condition rapidly deteriorated, and he died the next day.  The Center for Disease Control conclusively confirmed that the cause of death was Rocky Mountain spotted fever.  Although Dr. Daniel communicated with Mr. Johns’ wife during her husband’s treatment, he never advised her of the risks of exposure to Rocky Mountain spotted fever.  

            A week after her husband’s death Genevieve Johns came to the emergency room of Baptist Memorial Hospital with similar symptoms of headaches, muscle aches, fever, and chills.  She was admitted to the hospital and treated for Rocky Mountain spotted fever but died three days later.  It was undisputed that no patient-physician relationship existed between Genevieve Johns and Dr. Daniel.  The plaintiff, Genevieve’s son, filed suit against Dr. Daniel.  He alleged that Dr. Daniel failed to warn Genevieve of the risk of exposure to Rocky Mountain spotted fever.  Dr. Daniel filed a motion to dismiss for failure to state a claim on the grounds that he owed Genevieve Johns no legal duty in absence of a patient-physician relationship.[ii]

            In addressing this argument, the court stated, “[w]hile it is true that a physician-patient relationship is necessary to the maintenance of a medical malpractice action, it is not necessary for the maintenance of an action based on negligence.” 870.  A physician may owe a duty to a non-patient third party for injuries caused by the physician’s negligence, if the injuries suffered were reasonably foreseeable.[iii]  There is no medical malpractice when a party is under the affirmative duty to act to prevent another from sustaining harm.  This is known as the Tarasoff principle.[iv]  Thus, Bradshawwas an ordinary negligence case and not a medical malpractice case.  

             In Doe v. Vanderbilt, 958 S.W.2d 117 (Tenn.Ct.App.1997), following elective jaw surgery, Jane Doe received HIV contaminated blood.  Vanderbilt never informed Mrs. Doe that she had undergone a blood transfusion with contaminated blood.  Vanderbilt never informed Mrs. Doe that she was at risk of HIV infection.  While unaware of this, Ms. Doe got married. Later, Ms. Doe gave birth to a daughter who was infected with HIV in utero. This is when Ms. Doe learned she had received HIV-contaminated blood at Vanderbilt.  Mrs. Doe’s infant daughter died of AIDS shortly after birth. Mrs. Doe died of AIDS before trial. Mrs. Doe’s negligence claim arose out of Vanderbilt’s failure to notify patients who had received blood transfusions about the risk of HIV.  The blood had not been tested for the HIV.[v]  Vanderbilt contended that Mrs. Doe’s claim was a malpractice claim because she was a former patient.  However, Mrs. Doe did not have a physician-patient relationship with Vanderbilt during the time that Vanderbilt was supposed to warn her about the HIV-contaminated blood.  Therefore, the court of appeals held that Mrs. Doe’s claim was ordinary negligence based on a failure to warn.  It was not a medical malpractice case. 

            Finally, in Burroughs v. Magee, 2003 WL 22247369 (Tenn.Ct.App.), the plaintiff filed a wrongful death action arising from an automobile accident, where her husband was killed by a truck driver under the influence of medications.  The plaintiff also sued the other driver’s physician alleging that on the day before the accident the physician, Dr. McGee, negligently prescribed two medications to the other driver and failed to warn the driver of the risks of driving while under the influence of the two medications.    Dr. Magee had prescribed two medications for the truck driver, Soma (a muscle relaxant) and Esgic-Plus (a barbiturate).  Dr. Magee prescribed Soma to treat the driver’s muscle cramps and the Esgic-Plus to treat his headaches.  Both drugs act as depressants on the central nervous system and can affect a patient’s ability to safely operate a motor vehicle.  The truck driver testified that Dr. Magee gave him no warnings about the effect of taking these two medications before driving.  The driver’s medical chart indicated that physicians at Dr. Magee’s clinic refused to prescribe Soma to him on several occasions due to prior drug abuse.   On the day of the wreck, the truck driver took Soma and Esgic-plus before driving so his ability to operate a vehicle was impaired.  

            The Supreme Court reviewed a line of cases where a physician owes a duty of care to a third party if the physician’s negligence causes foreseeable injuries to that third party. SeeTurner v. Jordan, 957 S.W.2d 815 (Tenn.1997). (holding that a psychiatrist owed duty of care to a nurse to protect her from a mentally ill patient with known tendencies toward assault); Bradshaw v. Daniel, 854 S.W.2d 865 (Tenn.1993) (holding that the physician of a patient suffering from Rocky Mountain Spotted Fever owed a duty of care to warn the patient’s wife of the risk of infection);Wharton Trans. Corp. v. Bridges, 606 S.W.2d 521 (Tenn.1980) (holding that a physician performing pre-employment physical of a truck driver owed duty of care to motoring public to perform the physical reasonably).  These cases involved ordinary negligence.  The Court concluded that a physician owes a duty to third parties affected by his failure to warn his patient about the possible side effects of medication that could affect the patient’s ability to safely operate a vehicle. This claim is ordinary negligence not medical malpractice. 

            False imprisonment arising out of a wrongful commitment to a psychiatric hospital is not medical malpractice.  Aphysician or designated professional who commits a patient to a mental institution must “personally examine” the patient in advance, rather than relying on medical records or someone else’s examination of the patient. Otherwise, the patient may sue under principles of ordinary negligence. Vickroy v. Pathways, Inc., 2004 WL 3048972 (Tenn.Ct.App.).  

            The issue of general negligence versus medical malpractice is an important consideration with regard to the statute of repose.  If the claim is medical malpractice, then the three-year statute of repose applies, which provides in pertinent part:   


            Tenn.Code Ann. § 29-26-116. Limitation of actions.

(3) In no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant, in which case the action shall be commenced within one (1) year after discovery that the cause of action exists.


There is a three-year stature of repose in medical malpractice cases.  The purpose of the statute of repose was to place an absolute three-year limit upon the time within which medical malpractice actions may be brought.[vi]  There is no discovery rule in it.  This is why I call the statute of repose an “iron ceiling.”  It is very difficult to circumvent.  Check the background of a new claim to determine whether the negligent act occurred more than three years ago.  Courts will bar consideration of any negligent act where it occurred more than three years before the date that the complaint was filed.


IV.       “Screening the Case” – The Initial Evaluation


            As stated previously,the most important decision you will make is whether to take a medical malpractice case.  It is crucial to make a complete evaluation of each claim that you consider.  Medical malpractice cases are costly to litigate in time and money.  Your initial evaluation should be divided into four parts: (1) assessing the client, (2) assessing the medical issues, (3) assessing the legal issues, and (4) assessing the financial cost.  You will often reject a claim based on one of these four factors.  For example, a legal evaluation may reveal the claim is probably barred by the statute of limitations or statute of repose.  This makes it fruitless to pry into the other questions.  You may reject a claim based on the financial cost, which is one-tenth or less of the potential verdict.  I tend to reject any claim unless its potential verdict is at least $500,000.  These cases are too hard and expensive to pursue without a significant reward that justifies the investment.  Remember, defendants win over 80% of malpractice cases.  A few bad choices could bankrupt your firm.  


V.        Client Interview — assessingthe “star” of the case


            The evaluation always starts with the client interview.  He or she is the most important part of the case.  Defense lawyers and insurance companies know this too.  Have the client identify physicians, dates of treatment, and other important facts.  I use a client questionnaire as an initial interview form.  The questionnaire is helpful in gathering important details while cutting the time our firm spends in the interview.  Always assess your client’s credibility.  Some clients are neurotic about doctors and hospitals.  Some are looking for a scapegoat due to a “bad outcome.” Some clients are mad about an excessive bill and want to convert this to a malpractice case.  Some clients have a personal problem with their doctor, which may have nothing to do with negligence.  Beware of any client who brings you a secret taped conversation with his doctor.  In my experience, these clients are looking for lawsuits.  Go with your gut impression about the client after your first interview.  The jury will probably have the same impression about your client.


VI.       Medical Evaluation — beingforewarned is            forearmed


            The medical evaluation begins with the medical records.  Review all the pertinent medical records to make an informed choice about whether to take the case.  Past medical records contain information about the client’s pre-existing condition. You need to know this before taking the case.  For instance, the client’s claim for damages could be caused by his pre-existing condition rather than negligence.  The prior records may show a pattern of how the client interacts with his physicians. Does the patient constantly skip his appointments?  Is he a pill-seeker?  Does he bounce around from doctor to doctor or hospital to hospital?  Does he have a history of alcohol abuse?  These are important matters you need to know before taking the case.  When I have skimped on reviewing the prior medical records, it has hurt me.  The cost of gathering records can be high. However, the cost of surprise when an unknown, crucial medical record is thrown at you in the middle of the case is much higher.

            I usually have a nurse check the records for two major reasons: the nurse can tell me if the records are complete, and the nurse can translate the records for me.  With all that chicken-scratch in the hospital chart, I need a translator to find out what’s going on.  Be sure the records include all the laboratory studies, nursing notes, clinic records, operative notes, fetal monitoring strips, and radiological assessments, in addition to the admission and discharge summaries.  If the records are incomplete, then send a supplemental request.  If you suspect that the records have been altered, then have them analyzed by a handwriting expert.  Laboratory equipment can compare the age of ink in the records.  Handwriting experts can compare handwritten notes and typed notes for differences.  The Tennessee Supreme Court approved the use of handwriting experts when medical records were altered and there were late entries.[vii] Forensic computer experts are adept at determining whether electronic medical records have been altered.

            Medical research is crucial when assessing the merits of a claim.  For example, I research PubMed (formerly Medline) on the web based on the medical topic in the claim.  These medical studies are the state of the art in medicine.  They suggest the standard of care and principles for deciding causation. Once I find the relevant abstracts of the studies, I order the full text of the study from Vanderbilt Medical Library or from PubMed.  I also research medical textbooks maintained at my office.  It is helpful to consult these textbooks in advance of searching PubMed.  These medical textbooks sharpen my medical inquiry like hornbooks to prevent wasteful meandering through PubMed.  Textbooks have parallel citations to other textbooks and studies that cover the same medical topics. 

I use the research to familiarize myself with the medical terminology.  You cannot pursue a medical malpractice case effectively unless you understand the medicine in your case.  How can you persuade the jury to return a verdict for your client if you don’t understand the medicine?  Don’t delegate this major responsibility to your experts.  You need to educate the jury along with the experts.  In fact, successful trial lawyers educate their own experts in advance.  You are supposed to know more about the medical issues than anyone else in the courtroom.  Jurors are looking for leadership in the courtroom.  You are the leader.  Leadership requires superior knowledge.  The truth should be found in your superior knowledge of the medical issues.  Leadership is persuasive.  Leadership wins lawsuits.  It is the essence of trial advocacy. 


VII.     Statute of Limitations 


A statute of limitations or repose may bar the claim.  You should quickly decide whether the discovery rule saves the claim.[viii]  Medical malpractice cases are hard enough to win without the additional fight over the statute of limitations.  Unless you are very confident that the discovery rule applies, you should avoid claims in which the statute of limitations is a viable defense.  The plaintiff’s cause of action accrues when the plaintiff “knows or in the exercise of diligence should know that an injury has been sustained as a result of wrongful or tortuous conduct by the defendant.” Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 146 (Tenn.2001).  Tennessee’s discovery rule alleviates the intolerable result of the statute of limitations barring a cause of action before the plaintiff discovers the injury or the wrong. Foster v. Harris,633 S.W.2d 304, 305 (Tenn.1982).  In Foster, the Supreme Court of Tennesseedeclared it is “axiomatic” that no judicial remedy is available until the plaintiff has discovered or reasonably should have discovered, (1) the occasion, the manner and means by which a breach of duty occurred that produced his injury; and (2) the identity of the individual who breached the duty. 305.

The Supreme Court of Tennessee revisited the discovery rule in Sherrill v. Souder, 325 S.W.3d 584, 596 (Tenn.2010).  In Sherrill, the court reaffirmed that a plaintiff must have “knowledge of a wrongful act” in order to trigger the limitations period. Sherrill v. Souder, 325 S.W.3d 584, 596 (Tenn.2010).  Moreover, the issue of whether the plaintiff exercised reasonable care and diligence in discovering the wrong is a question of fact. Id. at 596.  You should examine whether the physician breached his patient’s trust by misleading the patient to believe that nothing was wrong.[ix]  

In Matz v. Quest Diagnostics Clinical Laboratories, Inc., 2003 WL 22409452 (Tenn.Ct.App.), the defendants obtained a summary judgment based on the statute of limitations. Matzwas a failure to diagnose cancer case. The trial court ruled the plaintiff “knew or should have known” that his cause of action accrued “more than one year before the complaint was filed.”  The plaintiff alleged that on April 18, 2001 Mr. Matz had a bleeding lesion on his head. He went to see Dr. Hughes in April of 1999.  Dr. Hughes took a biopsy, which he sent to the defendant’s lab.  The lab did not find cancer.  The plaintiff alleged that Mr. Matz’ cancer was not diagnosed until April 26, 2000, when his tumor recurred, and he was diagnosed with melanoma.  Mr. Matz had a much lower chance of survival than he would have had if the cancer had been diagnosed earlier.  

The defendants alleged that the plaintiff failed to file the complaint within the one-year statute of limitations.  Mr. Matz testified in his deposition that “he thought he had cancer all along” and that it had just not been diagnosed.  Mrs. Matz testified that her husband was certain he had cancer “all along” and that the doctors had simply failed to diagnose it.  Thus, the defendants argued that the suit was not timely filed because Mr. Matz had a subjective belief that he had cancer for some time before it was actually diagnosed.  

The court of appeals in Matz revisited the discovery rule in medical malpractice cases.  The statute of limitations begins to run when the patient discovers, or reasonably should have discovered (1) the occasion, the manner, and the means by which a breach of duty that caused his or her injuries occurred and (2) the identity of the person who caused the injury. Stanbury v. Bacardi, 953 S.W.2d 671, 677 (Tenn. 1997).  However, the discovery rule does not permit a patient to delay filing suit until he or she becomes aware of all the injurious consequences of the alleged negligence. The statute will begin running when the patient becomes aware of facts that would put a reasonable person on notice that he or she has sustained an injury as a result of a tortious act of a health care provider. 

            Mr. Matz’ subjective belief or fear had no factual basis because the doctor found no cancer was present.  The discovery rule requires that a plaintiff know “the occasion, the manner, and the means by which a breach of duty that caused his or her injuries occurred.” Stanbury, 953 S.W.2d at 677.   Mr. Matz had no factual knowledge of the “occasion, manner, and means" by which defendants breached their duty that caused him harm.  Generally, the question of whether a plaintiff should have discovered his injury earlier based on the facts known to him is a question of fact for the jury.  The court of appeals reversed the trial court and held that whether Mr. Matz discovered his cause of action in a timely manner was an issue for the jury.

            How do you approach a case involving the reassuring physician who coaxes his patient into believing that everything is fine when it really isn’t?  In McIntosh v. Blanton, 2004 WL 1869977 (Tenn.Ct.App.), a 77-year old plaintiff with an eleventh grade education saw her surgeon for carpal tunnel problems.  In August 1995, Dr. Blanton performed successful surgery on Ms. McIntosh’s right wrist.  This surgery gave Ms. McIntosh immediate relief.  On September 8, 1998, Dr. Blanton performed surgery on Ms. McIntosh’s left wrist.  This surgery was unsuccessful.  Ms. McIntosh’s condition did not improve, and she lost all feeling in two of her fingers. In her complaint, Ms. McIntosh asserted that her ulnar and radial nerves were injured during surgery causing constant pain and “drawing” of the fingers.  She discovered the negligent surgery in conversations with another surgeon on April 20, 1999, within one year of the date she filed her complaint. 

The defendant, Dr. Blanton, said he revealed the negligence to Ms. McIntosh during a post-operative visit on February 12, 1999.  However, Ms. McIntosh testified that she had no reason to believe Dr. Blanton did something wrong until she met with second surgeon, Dr. Muhlbauer, on April 20, 1999.  She said Dr. Muhlbauer was the first doctor to give her an opinion that Dr. Blanton’s surgery, not risks or complications from surgery, was the cause of her injury.  The medical records contained Ms. McIntosh’s earlier affidavit which stated: 


In April 5, 1999, I first learned that the problems surrounding the pain and numbness in my hand was probably caused by a surgical error. I was advised of this fact by my treating physician, M.A. Blanton, III, M.D. 


Thus, on April 5, 1999, Ms. McIntosh was aware that her injury was the result of some surgical error although she was not aware that Dr. Blanton was negligent.  Ms. McIntosh also said Dr. Blanton had a “reassuring attitude” and that he always kept discussions away from negligent risks.  

            The pivotal issue in this case was whether the discovery rule saved Ms. McIntosh’s case.  Tenn.Code Ann. § 29-26-116(a)(1)(2) provides, “In the event the alleged injury is not discovered within such one-year period, the period of limitation shall be one year from the date of such discovery.”  Under the discovery rule, the determination of when the statute of limitations begins to run requires a determination of when the plaintiff had sufficient knowledge that she had sustained an injury.  The inquiry does not require that the plaintiff have knowledge that a “breach of the appropriate legal standard” has occurred. Roe v. Jefferson, 875 S.W.2d 653, 657 (Tenn.1994).  

The statute begins to run when the plaintiff is “aware of the facts sufficient to put a reasonable person on notice that he has suffered an injury as a result of wrongful conduct,” and the plaintiff knows the identity of the person who engaged in the conduct.  Thus, the statute does not begin to run until the plaintiff has “sufficient information” to put him on notice that he has suffered an injury and that the injury was caused by a wrongful act.  The determination of when a reasonable person should know that his injury was caused by some wrongful or negligent act is generally a question for the trier of fact.  In other words, notice is a jury issue.

            Post-surgical pain does not automatically trigger the statute of limitations.  In Collins v. Edwards, 2004 WL 1056137 (Tenn.Ct.App.), the plaintiff alleged that Dr. Edwards surgically removed a healthy colon on October 15, 1996.  She first discovered that her healthy colon had been removed on June 16, 1998 and that Dr. Edwards intentionally failed to advise her of the actual condition of her colon and conspired to fraudulently hide that her colon was removed unnecessarily. At a post-op visit in December 1996, the plaintiff told Dr. Edwards that she continued to have the same type of pain in her abdomen she experienced before the surgery.  He responded that it would take time to heal, and there could still be post-operative changes taking place in the muscle.  The plaintiff testified that her post-operative pain resolved within 60 to 90 days.  However, she continued to experience no improvement in her pain.  Dr. Edwards filed a motion for summary judgment because the statute of limitations had run.  The trial court found that plaintiff’s continued pain put her on notice of her claim.  The trial court also found a duty for her to suspect and investigate malpractice as a cause of her pain.  The Court of Appeals reversed by holding that pain does not equal notice.  

            A patient may claim that the medication she was taking affected her abilityto discover the wrongful act.  In Sampson v. Wellmont Health Sys., 228 S.W.3d 124 (Tenn.Ct.App.2007), the plaintiff claimed that the statute of limitations was tolled while she was taking drugs that altered her mental status.  She was taking Oxitrol, Ambien, and Lortab until the date of her deposition.  The Court of Appeals held it was improper for the plaintiff to express an opinion as to the effects of these medications on her “perception, understanding, and mental abilities” because this is a medical opinion.  The lesson in Sampsonis that the plaintiff should get an expert to prove that she was drugged into failing to file the complaint within the statute of limitations.  However, the new tort reform law has changed this result because the statute of limitations can only be tolled where there has been a judicial determination of incompetency.  

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