HEALTH CARE LIABILITY CLAIMS

Formerly known as medical malpractice or medical negligence, lawsuits involving injury or death due to mistakes or negligence of a health care provider, (doctors, nurses, pharmacists, physician assistants, nurse practitioners, EMS/paramedics and technicians), are now called Health Care Liability Claims under Tennessee law. Health Care Liability Claims can arise in any setting where medical care is rendered including pre-hospital care by EMS providers, in a physician’s office, hospital, nursing home, walk-in clinic, surgery center, mental health facility, military base hospital or clinic, or VA hospital or clinic. When an injury or death occurs because of a mistake or inappropriate conduct of the healthcare provider, grounds for a Health Care Liability Claim may exist.

DO I HAVE A VALID HEALTH CARE LIABILITY CLAIM?

The practice of medicine is not an exact science and oftentimes a patient suffers a bad result without medical malpractice or negligence having occurred. Health care providers are allowed a great deal of latitude in using their medical judgment when providing medical care and treatment of their patients. Proving that a health care provider’s care and treatment was outside the standard of care, or negligent, is extremely challenging and is an uphill battle for the injured party. Health care providers band together and support one another even when the care and treatment is inappropriate, making Health Care Liability Claims the most difficult type of case to pursue successfully. Before taking any case, a thorough evaluation of the medical care is performed. If the medical records support the patient’s claim of medical negligence, the damages (potential monetary value of the case) must be examined. Cases involving minor, temporary injury usually will not have enough monetary value or damages to support the cost of pursuing a Health Care Liability Claim. Unless the patient suffered severe, permanent or long-term injury, then the cost of pursuing a medical negligence claim and the time it takes to pursue the claim from beginning to end, will not support the cost of litigation. In general, it can take 2 to 4 years to complete a Health Care Liability lawsuit. Costs to pursue the claim can range from $15,000 to $100,000 depending upon the nature of the claim. The likelihood of receiving a favorable verdict or settlement must be weighed heavily in determining whether to pursue a claim.

In order to have a valid Health Care Liability Claim, the Tennessee plaintiff (injured party) has the burden of proof and must prove the following elements:

1. The recognized standard of acceptable professional practice (standard of care) in the profession and specialty of the defendant (health care provider who provided the alleged negligent treatment), in the community where the defendant practices must be established. For example, if your claim involved a radiologist practicing in Knoxville, Tennessee who failed to diagnose and report a suspicious spot on a mammogram, your testifying expert witness will be a radiologist practicing in a community similar to Knoxville, Tennessee who will state what the standard of care is or what the treating radiologist should have done in order to comply with the standard of care.
2. The defendant’s care was outside or below the recognized standards of acceptable professional practice;
3. As a result of the defendant’s care, the plaintiff suffered injuries which otherwise would not have occurred.

PROVING A HEALTHCARE PROVIDER WAS NEGLIGENT

Health Care Liability Claims are proven and won through the testimony of expert witnesses. At MONTGOMERY LAW FIRM, we engage first-rate, highly credentialed expert witnesses on your behalf. Many cases have been thrown out of court for lack of competent expert witness testimony. Our pledge to you is that we will obtain qualified expert witnesses to prove your claim.

WHEN DOES MY CASE HAVE TO BE FILED?

Each state has its own law governing the time frame within which a lawsuit can be filed. In Tennessee, the process for filing a Health Care Liability Claim is very stringent due to recent changes in the law. Before any claim can be filed in a Tennessee court, the “notice requirement” must be met and strictly adhered to. In general, the injured party must serve written notice to all potential defendants of the potential Health Care Liability Claim before the one year anniversary of the knowledge of alleged bad care. A minor (person under age 18) who has a potential claim also has strict time requirements which must be met. When written notice is properly given, the time limit within which the lawsuit must be filed is extended an additional 120 days. There are very specific and stringent requirements that must be meticulously followed and an experienced attorney can help you initiate this process. Failure to comply fully with statutory requirements can result in the dismissal of your lawsuit even though the lawsuit has merit. It is imperative that if a patient or patient’s family is on notice of bad care, legal help should be sought to determine the time frames discussed in this paragraph.

IS THERE A LIMIT ON HOW MUCH I CAN BE AWARDED?

The short answer in Tennessee is Yes. In 2011 Governor Haslam enacted Tennessee’s first ever Tort Reform initiative which placed limits on the amount of money that can be awarded in Health Care Liability Claims and other personal injury claims. The cap does not affect the amount of money that can be awarded for economic damages such as medical expenses and lost wages but does affect non-economic damages and punitive damages. While the limits have been challenged as unconstitutional, they are still in effect today. The limits are:

1. Non-economic damages have been capped at $750,000 for most cases but in rare situations, non-economic damages are capped at $1,000,000. Non-economic damages are damages that do not have a specific monetary value such as pain and suffering, loss of enjoyment of life, disfigurement or scarring, etc.
2. Punitive damages are capped at two times the compensatory damages or $500,000, whichever is greater. Punitive damages are rarely awarded and generally only occur when it has been proven by the evidence that the health care provider acted recklessly, willfully, intentionally conceals or destroys evidence; for injuries resulting if the defendant provider was intoxicated or if the defendant is convicted of a felony for the actions which caused the injury.

TYPES OF HEALTH CARE LIABILITY CLAIMS

Examples of situations in which Health Care Liability Claims arise include, but are not limited to, the following:

• Failure to diagnose cancer resulting in spread of cancer and death
• Failure to diagnose heart attack
• Failure to diagnose stroke
• Failure to diagnose spinal cord injury resulting paralysis
• Failure to appropriately perform surgical procedures resulting in injury/need for additional surgery
• Medication errors
• Surgical errors
• Failure to monitor post-op patients for complications
• Failure to diagnose internal bleeding/hemorrhagic shock

Birth injuries are another type of Health Care Liability Claim and arise from treatment provided during pregnancy, particularly when care and treatment during the labor and delivery process does not conform to the appropriate standard of professional practice. This can result in catastrophic, irreversible, permanent brain damage to the child or severe injuries such as Erb’s Palsy and Cerebral Palsy which require a lifetime of medical care. Situations which may result in a birth injury include, but are not limited to:

• Failure to provide appropriate prenatal care
• Failure to monitor fetal heart beat during labor process
• Failure to delivery baby emergently when indicated
• Failure to perform cesarean section when indicated
• Failure to position appropriately for delivery

Wrongful death actions can also be the result of medical mistakes or negligence of a health care provider. Whether due to non-surgical or surgical error, the premature and unnecessary loss of a loved one is a serious, traumatic event. If you believe your loved one has died at the hands of a health care provider, we will scrutinize the medical records on your behalf to determine if a health care liability and/or wrongful death action should be pursued.

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