Tennessee Medical Malpractice Law Blog

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.

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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:

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This is an initial set of written discovery to a defendant doctors' group. The set includes interrogatories and requests for production of documents. As I mentioned earlier when posting discovery to an individual doctor, we generally try to send discovery with the complaint at the start of a lawsuit. Click here to download file.

In many cases we file a motion to strike portions of the defendant's answer because it falls short of the requirements of pleading under Tennessee law. The most common concern we have is a comparative fault defense that does not actually identify the person (or persons) that the defendant intends to blame. Tennessee law is clear on this point: a defendant cannot attribute fault to a nonparty who is not sufficiently identified to allow the plaintiff to plead and serve process on the nonparty under Tenn. Code Ann. sec. 20-1-119. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 786 (Tenn. 2000).  This rule is vital to plaintiffs - who need a specific allegation against a nonparty in order to invoke the 90 day rule of T.C.A. 20-1-119 - and to courts - who need to balance their dockets by having a definite cutoff where all the potential parties are in the case.

We generally try to enforce the rule by filing a timely motion to strike if a defendant's answer says the defendant wants to rely on comparative fault to reduce the plaintiff's damages, but does not actually name any alleged tortfeasors (or their alleged negligent acts and/or omissions). Here is one example of a Memorandum in Support of a Motion to Strike we used in a recent case. Download the file here.

Here is a form complaint for medical malpractice injuring a child during surgery. The complaint is against two physicians - the attending surgeon and the anesthesiologist. It also includes claims against the hospital where the surgery was performed for separate acts of alleged negligence by hospital employees. The complaint is for permanent injuries to the child, and includes a separate claim by the child's parent for the child's medical expenses until the age of majority.

This is a response brief to a motion in limine to exclude the expert witness testimony of an economist. The economist was disclosed in a wrongful death case for the drowning of a three-year-old boy to testify regarding the present value of the child's loss of earning capacity. Obviously, with a child so young there is very little empirical evidence to establish the child's likely career path. The economist was asked, then, to simply address the likely present value of the child's earnings had he graduated high school and entered the workforce, and alternatively had he graduated college and entered the workforce. We then prepared to prove the child's likely success in life through other witnesses, to let the jury decide his probable earning capacity, and to let the economist explain how to calculate that in today's dollars. The Defendants moved to exclude the economist's testimony in part because he did not have a sufficient basis on his own for the assumptions of educational achievement. The Defendants also moved to exclude his testimony because the economist's original report did not include a deduction for personal maintenance expenses, which the Defendants' termed as "mandatory" under the Tennessee Supreme Court's holding in Wallace v. Couch. A careful reading of Wallace and Tennessee evidentiary law on expert witnesses demonstrates the Defendants in our case were wrong.

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This is a set of basic written discovery to an individual doctor at the outset of a medical malpractice case. We try to send written discovery at the very start of litigation; there is usually no point in waiting to ask the questions that you know you want answered. With a few exceptions, these interrogatories and requests for production of documents are applicable to almost any medical malpractice case.

Click here to download "Discovery to Individual Doctor in Medical Malpractice Case".

Say a defendant's expert witness testifies that the expert doctor actually does what the plaintiff says is required by the standard of care. The expert doctor goes on to say, however, that the expert does not think it is required by the standard of care; it's just that the expert witness goes above and beyond the norm. You should be allowed to impeach the expert using his or her own personal practices to contradict the expert's definition of the standard of care.

This is a brief in response to a motion in limine where the defendant sought to prevent any testimony from expert witnesses on what he or she does under the circumstances. Download file. The research is helpful for a bench brief when getting ready for trial if the issue has not already been raised by motion. If you would like a copy of the original to cut and paste into a bench brief, email me.

This Complaint gives examples of two different but important issues.

First, it's a claim against the State of Tennessee. The complaint is filed after the litany of other procedures (and waiting) required for suits against the State. It also references the specific statute that waives the State's sovereign immunity for the case.

Second, it's a secondary complaint filed in response to a comparative fault defense. If a defendant blames the State of Tennessee in a case already pending, the plaintiff can respond by starting up a concurrent but separate case against the State. The plaintiff cannot just amend her answer and serve the State in the pending Circuit Court case. Instead, the plaintiff must separately follow the procedure for claims against the State.

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Tennessee allows notice pleading. However, you still need to comply with the statutory and common law pleading requirements for medical malpractice cases in particular. This is as close to a generic medical malpractice complaint as you are likely to find - it involves an adult plaintiff, a hospital defendant, and no specialized care. Notice that, even in the context of an organization defendant like a hospital, you still should allege a failure to comply with the standard of care applicable to the defendant, and set out the particularized description of how the defendant was negligent.
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I am preparing for trial. Over the years, our firm has compiled a series of checklists to assist us in that process. The checklists are not mandatory. Each case is unique and must be considered and prepared on its own merits, but these lists are a great place to start in making sure that everything is in order. I hope you will find these lists as helpful as we do. Download file.

A plaintiff must prove that all expenses, including medical expenses, are reasonable and necessary in order to recover for them. Without proof of reasonableness and necessity, the plaintiff fails to prove causation between the tort and the medical bill. Taking depositions of medical providers in order to prove reasonableness and necessity can be costly for plaintiffs, particularly those with severe injuries requiring assistance from numerous medical specialists. As an alternative to taking depositions, you may want to try serving requests for admissions on the defendant seeking an admission of the reasonableness and necessity of the expenses. I would suggest serving these early so that you have time to take depositions in the event the defendant will not give admissions. What often will happen is that the defendant will not admit reasonableness and necessity, requiring plaintiff to take costly depositions for proof, then the defendant will not even challenge the medical charges at trial. As a result, the plaintiff spends a great deal of time and money proving reasonableness and necessity even though that was not really a disputed issue at trial. When the defendant refuses to admit reasonableness and necessity, I often file a motion challenging the sufficiency of the defendant's response. On at least one occassion I was able to get an order requiring the defendant to pay the cost of proving reasonableness and necessity if the defendant did not actually challenge reasonableness and necessity at trial. After entry of the order, the defendant agreed to stipulate. On other occassions we were able to at least narrow the issues in dispute and come up with alternatives to taking many costly depositions. I have attached a sample set of Requests for Admission. Good Luck. Download file

It is a bit of a stretch to describe anything as a “form” for disclosing the opinions of an expert witness in a medical negligence case. Forms are designed to avoid re-inventing the wheel, shortcutting repetitive processes in lawsuits. There is rarely anything repetitive about the medico-legal issues that arise in a medical negligence case. Before putting pen to paper, an attorney must have a real grasp of the medicine and the law as it applies to a particular case.

That said, it is helpful to check an earlier Rule 26 disclosure as a prompt for the type of information that can be included, so I am providing this Rule 26 disclosure as an example. Download file. It sets forth the bases for the expert’s knowledge in the field, including an express statement that the expert is licensed to practice in Tennessee (or a contiguous state). It describes the expert’s familiarity with the standard of care in the locality, including how the expert gained that knowledge. The disclosure lists the materials that the expert has reviewed in forming his opinions. The disclosure states that the expert is familiar with the applicable standard of care and explains what that standard of care requires. It states that the defendants failed to act with the appropriate standard of care, and that failure to act with the standard of care resulted in the injuries and death of the decedent. The disclosure states that the expert’s opinions are held within a reasonable degree of medical certainty.

You will see this disclosure is very detailed. Some people try to get by with less, and depending on your opponent and your judge you sometimes can get by with less. The law is unclear on how much detail is required in an expert witness disclosure. When drafting an expert disclosure in a medical negligence case, it is helpful to check Tenn. Code Ann. 29-26-115 and a prior Rule 26 disclosure to refresh your recollection about what information should be included. Hopefully, this "form" will help you in your case.

One of the first things we do when we begin working with a new client is give that client a Questionaire to complete. Essentially, the questionaire asks for much of the same information that is generally requested by the defendants in their intial discovery requests to the plaintiffs. Gathering the information early not only helps us investigate our case and develop our claims but also makes certain that we will be in a position to assist our client in responding to the defendant's discovery expeditiously. Attached is a sample client questionaire from a wrongful death case. We generally modify our questionaires to conform to the relevant facts and parties. Download file

This is an Order entered in Davidson County Circuit Court that effectively shifts the costs of deposing expert witnesses to the defendant if they disclose more than two experts on any subject. The Order requires the defendant pay the court reporter fee, transcript fee, and any expert witness fee associated with the plaintiff’s discovery deposition of the additional expert witnesses. The Order comes from a motion in a medical malpractice case. For a copy of the motion and memorandum of law in support (or for a clearer copy of the signed order that has not been shrunken down to post on the web), email me.

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The distinction between a lack of informed consent case and a pure medical battery case is set out in Blanchard v. Kellum, 975 S.W.2d 522 (Tenn. 1998). An informed consent case requires expert proof as to the standard of care (or recognized standard of acceptable professional practice) of similar medical professionals. The plaintiff must establish what information is provided to patients prior to the procedure, and how the information is disclosed to the patient, in order to prove that the professional deviated from the standard of care. In a medical battery case, on the other hand, the plaintiff must establish either that the patient was unaware that the doctor was going to perform the procedure, or that the patient did not authorize the procedure. Medical battery cases include those in which the doctor performs a surgery that has been discussed with the patient, but performs the surgery on the wrong part of the body (i.e., amputation of the wrong limb). A true medical battery case does not require expert witness testimony on the standard of care, because there is no prior consent to be judged.

This is complaint from a medical malpractice and medical battery case in which a surgeon mixed up two of his patients’ charts, leading him to perform a surgery on the plaintiff to which she had never consented. Download file

In some cases, a personal injury plaintiff will have medical records that merit extra protection against needless disclosure. A prime example: psychological counseling records. This simple agreed protective order can allow the defendants to discover the plaintiff's mental health records, consult with experts in evaluating the records, and use the records in the litigation without destroying the plaintiff's privacy.
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A plaintiff must prove that all expenses, including medical expenses, are reasonable and necessary in order to recover for them. Without proof of reasonableness and necessity, the plaintiff fails to prove causation between the tort and the medical bill. A plaintiff who provides the defendant with an itemized list of medical expenses at least 90 days before trial gets a rebuttable presumption that the expenses are reasonable. Tenn. Code Ann. sec. 24-5-113(b). In addition to the presumption of reasonableness, a legible itemization of medical expenses is a much cleaner exhibit for trial than a stack of xeroxed carbon copy medical bills. The itemization can be admitted by the court as a summary under Tennessee Rule of Evidence 1006.
Here is a sample itemization. Download file

FRCP 26 disclosures are due so early in litigation, it only makes sense to have a form ready. This is a fill-in-the-blank form for a personal injury plaintiff's FRCP 26 disclosures.
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