Different State, Different Outcome: Medical Malpractice v. Common Law Negligence

The plaintiff in Osunde v. Delta Medical Center, 2016 Tenn. App. LEXIS 94 (Tenn. Ct. App. Feb. 10, 2016), fell to the floor on Oct. 14, 2011, after she was told by a technician at Delta Medical Center (DMC) to stand on a stool for an x-ray procedure. When she fell from what she asserted was a 12'18-inch-high stool with no rubber tips or handrails, the plaintiff sustained a right fibular fracture. The plaintiff claimed that although the technician attempted to help her get down from the stool, the proffered assistance was ineffective because the technician was not prepared for a potential fall and lacked a “professional” grip. That same day, the plaintiff underwent the first of two surgeries to take care of her fracture, but she claimed continuing injury that forced her to leave her employment as a registered nurse.

On Jan. 20, 2013, the plaintiff brought suit in Tennessee's Shelby County Circuit Court, seeking damages based on theories of common law negligence and medical malpractice. In its answer, DMC denied any negligence and moved for dismissal of all claims. The court entered a scheduling order requiring the plaintiff to disclose to the defendant her expert witnesses by April 18, 2004. No experts were named by this date, so in October 2014, the defendant moved for summary judgment on the medical malpractice claims due to the plaintiff's failure to disclose her expert witnesses. In its supporting memorandum of law, DMC asserted that the case could not go forward without expert guidance because the suit involved “complicated and technical information which is beyond the general knowledge of a jury.”

The plaintiff responded to DMC's motion for summary judgment by offering to amend her complaint to omit the cause of action for medical malpractice; her attorney was now convinced that her case was one for ordinary negligence only. As such, the plaintiff's attorney argued that no expert was necessary because an ordinary trier of fact could decipher the facts and come to a conclusion based on everyday human experience. The trial court agreed with the plaintiff that the case did not involve medical negligence and so dismissed the malpractice claim as a matter of law. It permitted the common law negligence claim to proceed, however.

Defendant DMC next moved for, and was granted, leave to file an interlocutory appeal, in which it argued that all of the plaintiff's theories of liability were in fact claims for medical negligence; as such, they all should have been dismissed after the plaintiff failed to produce an expert. The specific question the defendant asked the appellate court was this: “Whether the trial court erred in denying Defendant's motion for summary judgment regarding Plaintiffs' ordinary negligence claim due to an incorrect application of the clear and unambiguous definition of a 'health care liability action' and how such actions are handled pursuant to the Tennessee Health Care Liability Act, codified at Tennessee Code Annotated section 29-26-101, et seq.?”

The Court Provides a Short History of TN Med-Mal Law

“As we perceive it,” opened the court, “a thorough analysis of the issue requires us to answer two questions. First, are the claims asserted within [plaintiff's] complaint cognizable outside the context of a “health care liability action” as that term is statutorily defined? Second, assuming that our answer to the first question is in the negative, can [plaintiff's] allegations nevertheless be supported in the absence of expert proof?”

Before addressing these questions, the court explained that, like most states, Tennessee traditionally treated medical malpractice as a subset of negligence claims, carving a claim out into the special group if that claim required knowledge of medical science in order to assess the alleged wrongful conduct. Graniger v. Methodist Hospital Healthcare Systems, Inc., No. 02A01-9309-CV-00201, 1994 Tenn. App. LEXIS 513, 1994 WL 496781 (Tenn. Ct. App. Sept. 9, 1994).

The state's legislature amended Tennessee's Medical Malpractice Act in 2008, and again in 2009, imposing new requirements on medical malpractice actions, such as the need for expert proof before filing, and more stringent notice-of-claim requirements. However, the legislature did nothing to define exactly what constituted a medical malpractice claim versus one for general negligence. Therefore, the Tennessee Court of Appeals stepped up to provide guidance on this question, in the case of Estate of French, 333 S.W.3d 549 (Tenn. 2011).

In Estate of French, the estate of a deceased nursing home resident brought suit against that facility on theories of ordinary negligence and violations of the Tennessee Adult Protection Act. The trial and intermediate appellate courts granted partial summary judgment to the nursing home after finding that the case was one for medical malpractice, not ordinary negligence. On further appeal to the Court of Appeals of Tennessee, the court concluded that “when a claim alleges negligent conduct which constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional, the medical malpractice statute is applicable. Conversely, when the conduct alleged is not substantially related to the rendition of medical treatment by a medical professional, the medical malpractice statute does not apply.”

Further, the French court explained, “Medical malpractice cases typically involve a medical diagnosis, treatment or other scientific matters. The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring specialized skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of common everyday experience of the trier of fact.”

This might have stood as crucial guidance for the court in Osunde were it not for the fact that, in 2011, Tennessee's legislature passed the Tennessee Civil Justice Act of 2011, further amending the Tennessee Medical Malpractice Act. See Tennessee Civil Justice Act of 2011, ch. 510, 2011 Tenn. Pub Acts 1505 (codified at Tenn. Code Ann. 29-26-101 et seq . (Supp. 2011)).

These 2011 amendments removed from the Tennessee Code all references to “medical malpractice” and replaced them with the terms “health care liability” or “health care liability action,” as applicable. In addition, section 29-26-101 was added to the Code to define “health care liability action” as “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.” Tenn. Code Ann. 29-26-101(a)(1) (Supp. 2011) (emphasis added). This section goes on to state that
“[a]ny 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.” Id. ' 29-26-101(c). The law was now called the Tennessee Health Care Liability Act (THCLA). If a case falls under THCLA, the law imposes a pre-suit notice requirement (See Tenn. Code Ann. 29-26-121). In some cases, the THCLA also requires a certificate of good faith (Tenn. Code Ann. 29-26-122) and expert proof (Tenn. Code Ann. 29-26-115).

Last year, Tennessee's Supreme Court had occasion to interpret the THCLA amendments in Ellithorpe v. Weismark, 479 S.W.3d 818; 2015 Tenn. LEXIS 827 (2015). In that case, parents brought suit against their child's therapist because they did not give permission for the child to be seen by the therapist; the only permission granted was given by the child's great aunt. They styled the suit as one for negligence, negligence per se and intentional infliction of emotional distress. The therapist sought dismissal for, among other things, the parents' failure to comply with the notice and certificate-of-good-faith requirements of the THCLA. The plaintiffs countered that their claim was not one for medical negligence, but for ordinary negligence, so the THCLA did not apply.

The trial court sided with the defense and dismissed the case, but the intermediate appeals court (the same one hearing the Osunde case here) remanded for further discussion of whether the case sounded in ordinary or medical negligence, in the manner of Estate of French. Upon further appeal, the State Supreme Court announced that the analysis prescribed in Estate of French had been rendered “effectively moot” by the definitions of “health care liability” and “a health care liability action” found in the THCLA. It concluded that the Ellithorpe case was a health care liability action under the THCLA and that it must be dismissed for plaintiff's failure to comply with the requirements of that statute.

Analysis

Turning, then, to the facts of the case at hand, the court noted that Mrs. Osunde originally asserted claims for both medical malpractice and common law negligence, yet her attorney backpedaled following discovery to concede that the facts did not give rise to a medical negligence claim. In response, the appellate court stated it “must respectfully disagree.”

The plaintiff in Osunde alleged that the x-ray technician provided her with a faulty stool while she underwent a test. That technician was, according to the the THCLA, a “health care provider” because that term includes “physicians, nurses, licensed practical nurses, advance practice nurses, physician assistants, nursing technicians, pharmacy technicians, orderlies, certified nursing assistants, [and] technicians[.]” Section 29-26-101(a)(2)(D). In addition, the provision of the stool while performing an x-ray qualifies as a “ health care service” in accordance with ' 29-26-101 (b) because such services include “staffing, custodial or basic care, positioning, hydration and similar patient services.” Thus, stated the court, “Measuring the facts asserted by Mrs. Osunde against the backdrop of the definitions contained within the statute, it is inescapable that she has alleged that a 'health care provider' has injured her in relation to its provision of 'health care services.' As such, her action is subject to the THCLA.” Therefore, it was error for the trial court to dismiss the medical malpractice claim “as a matter of law” and treat the plaintiff's common law negligence claim as separate from the THCLA. All the plaintiff's claims were, necessarily, THCLA claims.

Having determined that the case fell under the statute, the question then became, should the trial court have dismissed the plaintiff's claim for failure to designate an expert? The answer, the appellate court found, was no. Quoting Kennedy v. Holder, 1 S.W.3d 670, 672 (Tenn. Ct. App. 1999), the court stated, “[E]xpert proof is not required 'where the alleged acts of negligence are so obvious that they come within the common knowledge of laymen.'” Here, the plaintiff's claim concerned a rickety stool, something that everyone could comprehend. “An expert is not needed to aid in the understanding of this issue, and as such, the trial court did not err in allowing Mrs. Osunde's case to go to trial,” the appellate court concluded.

Conclusion

Medical malpractice or common law negligence? The question has been debated in case after case, in state after state, and yet dissension remains. Each state's common law is unique, and statutory law is even more variable, due in large part to tort-reform measures. Sometimes, of course, these types of arguments are only legal ploys to keep a case alive or to manipulate the amount of the potential award. But at other times, the answer simply is not all that clear and case-by-case analysis is frustratingly necessary. Study of the myriad theories and arguments being made, even in foreign jurisdictions with different rules and traditions, may prove helpful to anyone attempting to navigate this often confusing query.

Janice G. Inman, Esq., is Editor-in-chief of this newsletter.