Practice Tips

PRACTICE TIPS By: Weldon E. Patterson

Butler, Vines & Babb

TIPS ON EVALUATING HEALTHCARE LIABILITY (HCLA) CASES

Practice long enough and eventually you are likely to be asked whether you “handle med mal cases,” or to give your thoughts on a particular case. Whether the inquiry comes from a fellow attorney, friend, or family member, certain basic elements should be considered. If you are in an area of practice that tends to give rise to the question two or three times a year, the initial evaluation will be very helpful in referring the case or making a determination as to whether it is a case in which you might want to become involved. The focus here is from the plaintiff’s perspective. This article does not begin to address undertaking the prosecution of a healthcare case. The sole purpose is to provide food for thought on basic considerations in initial case evaluation.

Critical Questions:

Is it an HCLA case? A review of Tenn. Code Ann. § 29-26-101 indicates this is not a simple determination. Consider whether a medical device broke during a procedure, causing harm. This could be a products case, a medical negligence case, or a combination. Long ago, the general test was whether specialized medical training or licensure was required to perform the act complained of. That “test” no longer applies, and certainly doesn’t answer the question about hybrid type cases. The previously mentioned statute includes “custodial or basic care” as being healthcare services that may fall under a “healthcare liability action.”

Liability: Does it sound plausible? While many cases require early expert input, getting an understanding of who may have been negligent and why is the most basic inquiry. Beware the case where the claim is that multiple providers are alleged to have been negligent. Such matters can require multiple experts in multiple specialties. While many meritorious lawsuits involve such circumstances, the time and expense associated with prosecuting such cases is a significant factor in determining whether to proceed with review by a medical expert.

Damages must be considered as part of your beginning review. It is amazing the number of cases we review on a regular basis that involve someone who has made a full recovery but “could have died” by the claimed actions of a healthcare provider. One mistake during a case review is to focus on the extent of medical bills. Pursuant to T.C.A. § 2926-119, there are many situations where the only medical bills that can be recovered at trial are those which are protected by a subrogation interest. Often, whether the potential client has $30,000 or $1,000,000 in medical bills, there is no net value added to the overall case.

The statute of limitations generally requires suit be filed within one year of the negligence, or within one year of the discovery of such negligence.1

Even if there was a reasonable basis for not recognizing potential negligence, the three-year statute of repose bars most claims against a healthcare provider after three years from the date of claimed negligence.2

Medical Records: Assuming the liability, damages, and time limitation issues seem to pass muster, you will want to review the relevant medical records. Often, these can be obtained by the potential client at no cost or at minimal cost by using a HITECH request.3 Alternatively, the potential client can create a patient portal to allow records to be obtained quickly. Depending upon the factual issues and your ability to evaluate such records, this is typically when the decision is made as to whether to have a medical expert review the potential case.

Consideration of the expenses necessary to prosecute one of these cases is important. The number and type of experts are a big part of whether a potential case is accepted or declined. Even with what appears to be clear liability with injury, the anticipated expenses themselves may preponderate against proceeding. Consider the hypothetical fact scenario where a patient complains of abdominal pain for three weeks postsurgery. The doctor, using the same abdominal wound location created during the surgery, goes in and discovers a sponge left in the abdominal cavity. The sponge is removed, and the wound is again closed. A full recovery is made. The doctor states, “I am very sorry about that. That is why I have insurance. Do what you have to do.” The cost of getting that case to a jury likely far outweighs any value.

A multitude of unique pitfalls exist in HCLA cases. Unfortunately, the law is everchanging in this area and the pitfalls can be moving targets. If possible, find out if any of the potential tortfeasors were residents or fellows (i.e. a “state employee” as defined by Tenn. Code Ann. § 8-42101(3)) at the time of the claimed acts. This can create requirements for special actions under the Tennessee Claims Commission Act. If a hospital or provider is a potential defendant, it will be critical to determine whether the hospital or provider is a governmental entity/ employee as this can result in statutory defenses, including the applicability of a relatively low financial cap.4

Before an HCLA lawsuit may be filed in Tennessee, a “notice letter” must be mailed. The requirements associated with notice letters are quite strict and could easily be the subject of a lengthier article. Suffice it to say, especially if the case is going to be referred to another lawyer, you can be sure that such lawyer has his/her own method of preparing notice letters and, ultimately, lawsuits. Therefore, if the case is to be referred, most reviewing attorneys would likely prefer you avoid mailing, filing, or serving anything beforehand.

Conclusion:

HCLA cases in Tennessee are challenging. The tips listed are mandatory basics for any attorney planning on bringing such an action, but are helpful if you are simply evaluating a case to determine potential strengths and weaknesses before referring it or seeking to co-counsel with someone who has experience in such matters.

1 T.C.A § 29-26-116. 2 T.C.A § 29-26-116. 3 HITECH (Health Information Technology for Economic and Clinical Health) Act of 2009. 4 T.C.A. § 29-20-310 and 403 (Tennessee Governmental Tort Liability Act).