Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Tennessee follows a modified rule of joint and several liability pursuant to which, if multiple defendants are found liable for malpractice, each defendant is severally lable only in proportion to the percentage of fault for the danages attributed to that defendant. However, if there was a conspiracy among two or more at-fault defendants to accomplish by concert an unlawful purpose, or to accomplish by concert a lawful purpose by unlawful means, which results in damage to the plaintiff, joint and several liability applies. Also, joint and several liability extends to defendants in product liability actions predicated upon theories of strict liability or breach of warranty.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Tennessee has eliminated the collateral source rule for medical malpractice cases.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Tennessee, the statute of limitations runs one year from the date of injury or the date of its reasonable discovery, but not more than three years from the date of the act or omission. An exception to that rule applies to claims arising from a foreign object left within a patient's body, in which case the action must be commenced within one year after the injury is or reasonably should have been discovered by the patient. Further, in the event of fraudulent concealment of the cause of action by a defendant, the cause of action must be filed within one year of the date when the cause of action is or reasonably should have been discovered.
For malpractice claims by minors, the statute of limitations is tolled during minority, but the three year statute of repose is not tolled. As a result, even when the injury is to a minor, any cause of action must be commenced within a maximum of three years from the date of injury or the action is barred.
Additional rules affecting malpractice litigation in the State of Tennessee include:
Limits on Attorney Fees
Attorney fees for a malpractice claimant's lawyer are subject to judicial review for reasonableness on the basis of the time and effort devoted to the litigation by the attorney, the complexity of the claim and other matters deemed relevant by the court. The fee may not exceed one third of all damages awarded to the claimaint.
Certificate of Good Faith
A certificate of good faith is a document created by a medical expert, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim. In Tennessee, in any medical malpractice action for which expert testimony is required, the plaintiff must file a certificate of good faith along with the complaint. If the required certificate is not filed, in the absence of a showing that the failure was due to the failure of the health care provider to provide timely copies of the climant's medical records, or upon a demonstration of extraordinary cause, the complaint must be dismissed. The certificate must state that the plaintiff or the plaintiff's lawyers have consulted with one or more qualified experts who have provided a signed, written statement attesting that, based upon their review of the medical records, they believe that there is a good faith basis to proceed with a medical malpractice case, or they believe that there are facts material to the resolution of the case that cannot be reasonably ascertained from the medical records available to the plaintiff and that, despite the absence of that information, there is a good faith basis for pursuing a medical negligence claim against each defendant. The requirement that the expert review the claimant's medical records is waived if the defendant refuses to release the claimant's medical records in a timely manner or if it is impossible for the plaintiff to obtain the medical records. The failure of the plaintiff to file a timely, compliant certificate of good faith subjects the cause of action to dismissal with prejudice.
Within thirty days after a defendant alleges in an answer or amended answer to a complaint that a non-party is at fault for the injury to the plaintiff, if expert witness testimony is necessary to prove the non-party's fault, the defendant must file a certificate of good faith relating to the acts or omissions attributed to the third party, analogous in content to the requirements imposed on the plaintiff. The court may extend the deadline for filing the certificate if the court determines that the health care provider in possession of the relevant medical records has failed to timely produce those records, or for other good cause shown. The failure of a defendant to file a timely, compliant certificate of good faith subjects the defendant's claims against the non-party, upon proper motion, to be stricken with prejudice unless the plaintiff waives the filing requirement.
The written statement of an expert witness relied upon in executing a certificate of good faith is not admissible, except that in the event that an adverse party prevails on the basis of the opposing party's failure to offer competent expert testimony in support of their cause or defense, the court may compel the production of the statement and also may compel the expert's testimony for purpose of determining the party's compliance with the requirement to file a certificate of good faith. If a court finds that a party violated the requirement, the court may impose sanctions. A finding that an attorney violated the requirement must be forwarded to the state bar and, if the attorney is found to have violated the rule three or more times in any court of record in the state, that attorney must post a bond in any future medical negligence matter as security against sanctions for further violations. A certificate of good faith must disclose the number of prior violations of the rule by the executing party.
Medical Expert Witness Restrictions
In order to testify as an expert witness in a medical malpractice case, a proposed expert must be licensed to practice in Tennessee or in a contiguous bordering state a profession or specialty that makes the person's expert testimony relevant to the issues in the cause. The expert must also have practiced that profession or speciality in one of those states during the year preceding the date of the alleged injury or wrongful act. The court may waive this rule when it deermines that appropriate expert witnesses would otherwise not be available.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Tennessee's apology rule for accidental injuries provides that the portion of any statement, writing, or benevolent gesture expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to such person or to their family is inadmissible as evidence of an admission of liability in a civil action. However, a statement of fault that is part of such a statement remains admissible.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.