Daniel L. Clayton
KINNARD, CLAYTON & BEVERIDGE
127 Woodmont Boulevard
Nashville, Tennessee 37205
(615) 297-1007
dclayton@KCBattys.com
www.kinnardclaytonandbeveridge.com
Daniel Clayton - 2012 Best Lawyers Lawyer of the Year in Medical Malpractice for Nashville - has been practicing law since 1987 representing individuals and families in claims for serious personal injury or death as a result of medical malpractice, product liability and automobile/trucking accidents. He is certified as a Medical Malpractice Specialist and a Civil Trial Specialist. He is a past president of the Tennessee Association for Justice. He was named to the 2011 Edition of the Nashville Post, Top 101 Lawyers; Best Lawyers in America and Mid-South Super Lawyers. He is rated AV-Preeminent by Martindale-Hubbell.
The Impact of Gov. Haslam's Tort Reform Bill On Medical Malpractice Cases
This year, the legislature passed a bill which will severely limit the rights of individuals who try to pursue a claim against their health care provider when the health care provider acts carelessly or negligently. The bill - The Tennessee Civil Justice Act of 2011 - actually changes 200 years of law in this great state and covers many areas in addition to cases where a lawsuit is filed against a nursing home, doctor or hospital. Below, I summarize some of the more significant changes that will impact Medical Malpractice cases in Tennessee.
Section 8. Tennessee Code Annotated, title 29, chapter 26, part 1, is amended by adding the following as a new section, to be designated as 29-26-101:
29-26-101.
As used in this part, unless the context otherwise requires:
(a) "health care provider" means:
(1) A health care practitioner licensed, authorized, certified, registered, or regulated under any chapter of titles 63 or 68, including but not limited to medical resident physicians, interns, and fellows participating in a training program of one of the accredited medical schools or of one of such medical school's affiliated teaching hospitals in Tennessee,
(2) A nongovernmental health care facility licensed under title 68, chapter 11,
(3) A nongovernmental health facility licensed under title 33, chapter 2, part 4,
(4) The employee of a health care provider involved in the provision of health care services, including but not limited to physicians, nurses, licensed practical nurses, advance practice nurses, physician assistants, nursing technicians, pharmacy technicians, orderlies, certified nursing assistants, technicians and those physicians and nurses employed by a governmental health facility; or
(5) A professional corporation or professional limited liability company established pursuant to title 48, a registered limited liability partnership rendering professional services under title 61 and which consists of one or more health care practitioner(s) licensed, authorized, certified, registered, or regulated under any chapter of titles 63 or 68, or any legal entity that is not itself required to be licensed but which employs one or more health care practitioners licensed, authorized, certified, registered, or regulated under any chapter of titles 63 or 68.
COMMENT:
The new law substantially expands what used to fall under a 'medical malpractice' claim. Read closely section (a)(4) above. Orderlies, certified nursing assistants and technicians are specifically mentioned as being under the umbrella of providing "health care services." No longer is it considered medical malpractice - but, as will be seen in the next section - the new terminology is "health care liability action."
(b) "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.
(c) Health care services to persons includes care by health care providers, which includes care by physicians, nurses, licensed practical nurses, pharmacists, pharmacy interns or pharmacy technicians under the supervision of a pharmacist, orderlies, certified nursing assistants, advance practice nurses, physician assistants, nursing technicians and other agents, employees and representatives of the provider, and also includes staffing, custodial or basic care, positioning, hydration and similar patient services.
COMMENT:
The intent of this is to undo the Supreme Court case of Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011). In French, the Tennessee Supreme Court stated:
Whether claims are characterized as ordinary negligence or medical malpractice affects the nature of the litigation. A medical malpractice claimant must establish the statutory elements through the testimony of an expert who meets the qualifications set forth in Tennessee Code Annotated section 29-26-115(b). See Barkes v. River Park Hosp. ,Inc., 328 S.W.3d 829, 833 (Tenn. 2010) ("Unless the negligence is obvious and readily understandable by an average layperson, expert testimony will be required to demonstrate the applicable standard of care and breach of that standard."); Seavers v. Methodist Med. Ctr. Of Oak Ridge, 9 S.W.3d 86, 92 (Tenn. 1999) ("Expert testimony is required in medical malpractice cases to assist and to educate the trier of fact unless the alleged malpractice lies within the common knowledge of lay persons."). There is no such requirement for an ordinary negligence claim. Moreover, a potential medical malpractice claimant is required to provide written notice of his or her claim to the health care provider at least sixty days before filing the complaint. Tenn.Code Ann 29-26-121(a)(1).
French, at p. 553-554.
The Court went on to state:
In summary, not all care given to patients at nursing home facilities is necessarily related to the rendering of medical care by a medical professional. The assessment of a patient's condition and the development of a plan of care that determines how often and when a patient needs to be fed, hydrated, bathed, turned, or repositioned may require specialized medical skills, and thus should proceed under the TMMA. A nursing home's failure to ensure that its staff, including certified nursing assistants, actually complies with the plan of care and performs services that, however necessary, are routine and nonmedical in nature, falls into the category ordinary negligence.
French, at p. 556.
Note in this section: Health Care Services includes acts by:
- Staff
- Orderlies
- Other agents, employees and representatives
(d) Any such civil action or claim is subject to the provisions of this part regardless of any other claims, causes of action, or theories of liability alleged in the complaint, provided that no provision of this part shall apply to claims against the state of Tennessee to the extent that such provision is inconsistent with or conflicts with the provisions of the Tennessee Claims Commission Act, codified in title 9, chapter 8, part 3.
COMMENT:
The intent of (d) is to circumvent the Tennessee Adult Protection Act (T.C.A. 71-6-101), and to make it extremely difficult to have a common law negligence action apart from this section against a 'health care provider.'
SECTION 9. The code commission is requested to delete the terms "malpractice," "medical malpractice," "malpractice action," and "medical malpractice action" wherever they appear in the Tennessee Code Annotated and substitute instead the term "health care liability" or "health care liability action" as applicable.
COMMENT:
A strict reading of Section 9 means that, under Tennessee Law, there is no longer something called "Medical Malpractice." The name given to the old statute (The Tennessee Medical Malpractice Act - TMMA) is no longer valid. Instead, the claim will be considered a "health care liability action." Thus, since the phrase "Medical Malpractice" will no longer appear in the code, one could argue that the phrase should no longer appear in our jury instructions (for example, T.P.I. 6.37 and 6.38), or even stated by the judge when he/she does his routine introduction that this case involves assertions of medical malpractice.
What is extremely important about Section 9, however, are the implications for notice, certificate of good faith, expert witnesses and attorneys fees.
NOTICE and CERTIFICATE OF GOOD FAITH.
Since orderlies, staff, and other agents, employees or representatives are included in the definition of what constitutes health care services, it definitely raises the bar that if the action involves something a person who falls into this category does with regard to a patient would technically include health care services. Thus, Notice and a Certificate of Good Faith provision could (and likely do) apply.
EXPERT WITNESSES.
Do we now have orderlies testify to the recognized standards of acceptable professional practice of an orderly practicing in the same or similar community? Or other staff testifying to this standard? Or other "agents, employees or representatives?" Do they have to be qualified under the locality rule and be working in Tennessee or a contiguous state?
Keep in mind that 29-26-115(1)(b) still applies. It states:
No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a), unless...
[Emphasis supplied].
ATTORNEYS FEES.
T.C.A. 29-26-120 will apply to all "health care liability actions." Fees cannot exceed thirty-three and one third percent of all damages awarded to the claimant.
CAPS.
Briefly, the caps are on Noneconomic damages; not economic damages.
"Noneconomic damages" means damages, to the extent they are provided by applicable law, for: physical and emotional pain; suffering; inconvenience; physical impairment; disfigurement; mental anguish; emotional distress; loss of society, companionship, and consortium; injury to reputation; humiliation; noneconomic effects of disability, including loss of enjoyment of normal activities, benefits and pleasures of life and loss of mental or physical health, well-being or bodily functions; and all other nonpecuniary losses of any kind or nature.
There are exceptions to the cap, which we will discuss that include: (1) specific intent to inflict serious physical injury, (2) intentionally falsified, destroyed or concealed records containing material evidence with the purpose of wrongfully evading liability in the case at issue (exception to too), or (3) alcohol, drugs, or other intoxicant or stimulant involved that substantially impaired judgment and caused the injury or death.
The jury is not told of the cap.
A person who is unable to walk due to a spinal cord injury can be eligible for the catastrophic exception ($1 million cap as opposed to a $750,000 cap); however, a person who is unable to walk due to a severe brain injury is not eligible for the catastrophic exception.
The caps are the total amount - regardless of the number of defendants. If more than one defendant is at fault, then each defendant would have to presumably pay its pro-rata share of the overall cap.
EFFECTIVE DATE
This act shall take effect October 1, 2011, the public welfare requiring it and shall apply to all liability actions for injuries, deaths and losses covered by this act which accrue on or after such date.
If a person is injured through "medical malpractice" on September 30, 2011, since the cause of action accrued prior to the October 1, 2011 date, the caps would not apply - even if notice is not sent until December 1, 2011.
Tennessee did not need this law. It is a case of the Legislature not trusting Tennessee juries. As for me, I would rather have a Tennessean, not a politician; decide what is fair and just after listening to all the evidence.
