Tennessee Medical Malpractice Law Blog

Medical Records Review

When reviewing a case with voluminous medical records, we find it helpful to create a typed chronology of medical events. We make sure to include information in the chronology such as the name of the medical provider; the date of service; whether it was an office visit or hospital stay; the complaints voiced by the patient; the results of any physical examinations performed; what specific tests/x-rays were performed; what were the test results; what the diagnoses were at the time; what the treatment plan was; and any other information that we feel is pertinent to our case. The most important thing to remember when creating a chronology is to make sure to bates number your medical records and include those bates numbers in your chronology so you can quickly and easily find the important information in the chart when needed.

Atlas Images of the Brain

Here is a really interesting website of the University of Arkansas for Medical Sciences (UAMS) Department of Neurobiology and Developmental Sciences. Here you can find multiple atlas images, including sectional and MRI images, of the brain and spinal cord.

Hunt and Hess Stroke Scale

While reviewing a stroke victim's chart, you may run across something called the Hunt and Hess Stroke Scale. This is one of the scales a provider may use to evaluate/grade the clinical condition of a patient following a subarachnoid hemorrhage. Click here for a listing we found on the Internet Stroke Center website of the signs and symptoms associated with each grade of the scale.

Deep Vein Thrombosis

Deep vein thrombosis (DVT) is a disorder involving the development of a clot in a deep vein in the body. In orthopaedic patients, trauma (including fractures) and certain procedures such as total hip replacements and total knee replacements increase a patient's chances of developing a DVT. Prophylactic measures for prevention of DVT are typically instituted in these type cases. Here is some useful information regarding DVT and DVT prophylaxis from Wheeless' Textbook of Orthopaedics.

Carpal Tunnel Release

Carpal tunnel release surgery is a very common procedure. Here is a video of the surgical procedure from the OR-Live Surgical Archives.

Medical Malpractice Verdicts in Tennnessee

SVMIC, the well-managed, physician-owned liability insurance company that insures an estimated 90% of the doctors in the state, publishes a newsletter called "Riskpoints." It is available on their website.

The Fall 2006 edition of the newsletter (article in on Page 2 of the newsletter). listed the top ten jury verdicts against SVMIC insureds in the six year period 2000-2005. Four of those verdicts were by out-of-state juries (SVMIC writes insurance in multiple states).

The largest verdict was the verdict in Hunter v. Ura, a Davidson County case, in the amount of $5.8M. The decedent, a six-figure wage earner, died as the result of an anesthesa error. He left a wife and two minor children behind.

The other Tennessee verdicts were $5.5M for the death of a child, $1.7M in a back fusion case for a 36 year old male, $2M for the death of a 46 year old male, $2.94M for what appears to be a brain injury to a child (judgement against doctor and hospital) and $1.8M for death of a 62 year old male in a failure to diagnose cancer case.

The article makes it clear that "[t]he amounts listed are the actual verdicts awarded by the court or jury. Keep in mind that a number of these cases subsequently were settled for significantly lesser
amounts during the course of post-trial negotiations."

Think about it folks. Six years of cases. Six adverse jury verdicts. Less than $20M in total verdicts, some of which were admittedly settled for substantially less that the original judgmnent.

This is why the industry fought for so long not to have to reveal this information. I have sought for years to find out not just numbers but facts - who is getting these multi-million dollar judgments?

Now we are beginning to learn.

The Legislature should mandate every malpractice insurer to reveal basic facts about every claim they pay over $100,000 so that it can determine whether juries are acting reasonably.

Med Mal Reporting Forms Due in April

Read my post at www.dayontorts to learn when plaintiff's lawyers are required to report information to the Department of Commerce and Insurance about fees and expenses paid to them in medical negligence cases.

Organizing Medical Records

Organizing a medical records chart in a manner in which you and your expert(s) can easily review the records and also quickly find key documents can be a difficult task. We find it very helpful to organize a medical chart using medical record tab dividers. You can purchase these tab dividers or you can create your own using blank tabs. The categories we use are as follows: Admission Records; History & Physical; Discharge Summary; Outpatient Records; Physician Orders; Lab Reports; Progress Notes; X-ray Reports; Rehab & Therapy; Medications; Nurses Notes; Records of Operation; Anesthetic Records; Consultations; and Miscellaneous. It is also helpful to make sure you organize the records behind each tab in chronological order.

Who Can Be Subpoenaed to Trial

For cases in Tennessee state courts, Tenn. Code Ann. sec. 24-9-101 sets out the persons who cannot be subpoenaed to trial, and subsec. (6) includes practicing physicians, psychologists, senior psychological examiners, chiropractors, and dentists. If the person cannot be subpoenaed to trial, they are unavailable and their testimony is likely subject to the "former testimony" hearsay exception at Tenn. R. Evid. 804(b)(1) and Tenn. R. Civ. P. 32.01(3). Anyone else is generally available to be subpoenaed if in the geographic range of the Court, and the former testimony exception will not apply unless there is a separate basis for it.

In Federal court, on the other hand, Tenn. Code Ann. sec. 24-9-101 does not apply. Health care providers' hearsay testimony will likely not come into evidence unless they are immune from subpoena for another reason.

Discovery to Medical Provider Defendants

When sending interrogatories and requests for production of documents to medical provider defendants, make sure to always ask for information regarding the continuing medical education courses the defendants have taken during the prior few years. Make sure to request information such as the names of the courses, when and where the courses were taken, and who provided the courses. Additionally, ask for information regarding any courses provided by their employers. Some medical providers and/or their employers maintain a listing of all continuing medical education courses taken by the medical provider, so you would want to request this list. Often times the medical provider has taken courses which relate to the topics in your case. In those instances, it is also helpful to see if the medical provider has maintained handouts from those courses and to request copies of those handouts.

Cardiac Enzymes

We've all reviewed medical charts of patients who have had cardiac enzymes drawn. These studies are frequently drawn when physicians are evaluating whether a patient has suffered a heart attack. Here is a helpful explanation of cardiac enzymes that I ran across on the WebMD website.

"The Great Medical Malpractice Hoax"

John Day has posted an article over on Day on Torts reporting on a recent study entitled "The Great Malpractice Hoax." There are a number of interesting statistics cited in the post.

Discovery Questionairre - Medical Malpractice Injury Case

Following up on Rebecca Blair's earlier post of a discovery questionairre in a wrongful death case, this is a questionairre tailored to a medical malpractice claim for personal injuries. We tend to ask different questions in cases where our client has been injured as opposed to cases where our client has lost a loved one. It makes a difference as to who the question is addressed to - the person who suffered an injury or their surviving family member - as well as the type of damages and other proof that might be expected. Once again, sending the questionairre early in the case enables us to get the ball rolling without waiting for the other side to prompt us to action.

Download file.

Motion to Rely Upon Failure to Respond to Requests for Admissions

Tennessee Rule of Civil Procedure 36 is clear - a request for admission that is not responded to within 30 days after service is admitted. In a 1986 opinion, however, the Tennessee Supreme Court stated that "admissions under Rule 36 should be brought to the trial court's attention through one of three methods: at a pretrial conference where issues may be eliminated or narrowed, on motion for summary judgment (Rule 56, T.R.C.P.), or by specific motion dealing with the requested admissions." Tennessee Dep't of Human Servs. v. Barbee, 714 S.W.2d 263, 266 (Tenn. 1986). The Supreme Court ruled: "Under the highly unusual circumstances of [Barbee], in order to be certain that the failure to respond would be binding on the Defendant so that Plaintiff need not prepare evidence for trial on the issue involved, Plaintiff should have sought an order deeming the issues to be admitted." Id. at 267.

In light of Barbee, we generally file motions or otherwise bring to the Court's attention a party's failure to respond to requests for admissions, rather than relying on the failure to respond standing alone. Here is an example of a form memorandum of law in support of a motion to rely upon unaddressed requests for admission:

Download file

RASS Score for ICU Patients

In addition to medical providers evaluating the neurological status of intensive care unit patients using the Glasgow Coma Scale, you often see Richmond Agitation Sedation Scale (RASS) scores documented in the ICU flowsheets. The RASS score helps to measure the sedation and agitation of ICU patients, and is often considered when titrating sedation medications, etc. Here is an article regarding RASS scores which includes a table to help in understanding how medical providers come up with an RASS score for these patients.