medical malpractice claim in Tennessee

2020Myers [v. AMISUB (SFH), Inc., 382 S.W. 3d 300, 309 (Tenn. 2012)] (“The essence of Tennessee Code Annotated section 29-26-121 is that a defendant be given notice of a medical malpractice claim before suit is filed. . . .

2015See Myers, 382 S.W.3d at 309 (“The essence of Tennessee Code Annotated section 29-26-121 is that a defendant be given notice of a medical malpractice claim before suit is filed.”).

2006See Logan v. W instead, No. 03A01-9902-CV-00057, 1999 W L 538208, at *2 (Tenn. Ct. App. July 14, 1999) (crediting a defendant attorney’s service as a district attorney general in the Third Judicial District and as an attorney in the county in which the case was heard as evidence of his awareness of the standard of care in his “jurisdiction”); Davis v. Simpson, No. 1295, 1990 W L 16893, at *2 (Tenn. Ct. App. Feb. -3- S.W.2d 171, 183 (Tenn. Ct. App. 1991) (finding that a professional’s familiarity with “the local standard of care is the exception rather than the rule,” with the principal excepti

2006On the one hand, two reported opinions of the Court of Appeals have linked the legal malpractice standard of care with the medical malpractice standard, which is governed by a statutory locality rule. 2 See Underwood v. Waterslides of Mid-Am., Inc., 823 S.W.2d 171, 183 (Tenn.Ct.App.1991) (finding that a professional’s familiarity with “the local standard of care is the exception rather than the rule,” with the principal exceptions being law and medicine); Cleckner v. Dale, 719 S.W.2d 535, 539 (Tenn.Ct.App.1986) (“a lawyer’s standard of care does not differ markedly from that of physicians or o

2016Because the cause of this action originated prior to the 2011 amendments to the Tennessee Medical Malpractice Act, the common law at that time is our guide to distinguishing a medical malpractice claim from a claim sounding in ordinary negligence.4 As all parties to this appeal note in their briefs, Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), provides instructive insights into delineating the difference between these two types of claims.

2014Understaffing is a negligence claim, not a medical malpractice claim.5 5 In Estate of French v. Stratford House, 333 S.W.3d 546, 558 (Tenn. 2011), the Tennessee Supreme Court found: The Administratrix claims that the failure of the CNAs [certified nursing assistants] to provide basic services resulted, at least in part, from chronic understaffing of which senior management at the Stratford House was aware.

2021Corp. of America, 121 S.W.3d 636, 639 (Tenn. 2003) (citations omitted).

2013The distinction between a medical malpractice claim and other forms of negligence is subtle, and no “‘rigid analytical line separates the two.’” Gunter, 121 S.W.3d at 639 (quoting Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 788 (N.Y. 1996)).

2020In Jackson, the pro se plaintiff filed a medical malpractice claim for injuries she allegedly sustained from a minimally invasive surgery, but did not attach a certificate of good faith to her complaint. 383 S.W.3d. at 499.

2020In Jackson, the pro se plaintiff filed a medical malpractice claim for injuries she allegedly sustained from a minimally invasive surgery, but did not attach a certificate of good faith to her complaint. 383 S.W.3d. at 499.

2014Id.; see also Braden v. Yoder, 592 S.W.2d 896, 897 (Tenn.Ct.App.1979) (“This three-year ceiling is unrelated to the accrual of a cause of action commencing not on discovery but rather at the date of the allegedly negligent act,”).

2010Id; see also Braden v. Yoder, 592 S.W.2d 896, 897 (Tenn. Ct. App. 1979) (“This three-year ceiling is unrelated to the accrual of a cause of action commencing not on discovery but rather at the date of the allegedly negligent act.”).

2012Part (l)(a), known as the “locality rule,” requires the plaintiff to “show that the defendant failed to act with ordinary and reasonable care when compared to the customs or practices of physicians from a particular geographic region,” namely, “ ‘the community in which [the defendant] practices or in a similar community.’ ” Sutphin v. Platt, 720 S.W.2d 455, 457 (Tenn. *206 1986) (quoting Tenn.Code Ann. § 29-26-115(a)(1)).

2011In order to prove a violation of the TMMA, a plaintiff must show that his or her injuries resulted because “the defendant failed to act with ordinary and reasonable care when compared to the customs or practices of physicians from a particular geographic region.” Sutphin v. Platt, 720 S.W.2d 455, 457 (Tenn.1986).

2011See Cardwell v. Bechtol, 724 S.W.2d 739, 751 (Tenn.1987); Searle v. Bryant, 713 S.W.2d 62, 65 (Tenn.1986).

2011See Cardwell v. Bechtol, 724 S.W.2d 739, 751 (Tenn. 1987); Searle v. Bryant, 713 S.W.2d 62, 65 (Tenn. 1986).

2011See Cardwell v. Bechtol, 724 S.W.2d 739, 751 (Tenn.1987); Searle v. Bryant, 713 S.W.2d 62, 65 (Tenn.1986).

2011See Cardwell v. Bechtol, 724 S.W.2d 739, 751 (Tenn. 1987); Searle v. Bryant, 713 S.W.2d 62, 65 (Tenn. 1986).

2010Unless the alleged negligence is within the common knowledge of lay people, Kenyon v. Handal, 122 S.W.3d 743, 758 (Tenn. Ct. App. 2003); Mercer v. HCA Health Services of Tennessee, 87 S.W.3d 500, 507 (Tenn. Ct. App. 2002), the essential elements of a medical malpractice claim must be established by a medical expert licensed in Tennessee or a border state is required to establish each of these elements.

2010Kenyon v. Handal, 122 S.W.3d 743, 758 (Tenn. Ct. App. 2003) (footnote omitted) (recognizing that it is now common for a medical practitioner to file a self-serving affidavit stating that his or her conduct neither violated the applicable standard of care nor caused injury to the plaintiff patient that would not otherwise have occurred in order to place the patient’s medical malpractice claim to the test and force the patient to reveal the identity of testifying experts); see also Bowman v. Henard, 547 S.W.2d 527, 531 (Tenn. 1977) (holding that “in those malpractice actions wherein expert testi

2010Thomas Hosp., 983 *260 S.W.2d 225, 229-30 (Tenn.1998); Payne v. Caldwell, 796 S.W.2d 142, 148 (Tenn.1990).

1995In medical malpractice cases, a witness is not competent to testify as to the elements of a medical malpractice claim unless the witness is "licensed to practice in the state or a contiguous bordering state a profession or specialty which would make his expert testimony relevant to the issues in the case and had practiced this profession or specialty in one of these states during the year preceding the date that 5 the alleged injury or wrongful act occurred." Tenn. Code Ann. §29-26-115 (b) (1980); see also Payne v. Caldwell, 796 S.W.2d 142, 143 (Tenn. 1990) (holding that the competency require

2003Foster v. Harris, 633 S.W.2d 304, 305 (Tenn.1982).

2001Foster v. Harris, 633 S.W.2d 304, 305 (Tenn.1982).

2010Kenyon v. Handal, 122 S.W.3d 743, 758 (Tenn. Ct. App. 2003) (footnote omitted) (recognizing that it is now common for a medical practitioner to file a self-serving affidavit stating that his or her conduct neither violated the applicable standard of care nor caused injury to the plaintiff patient that would not otherwise have occurred in order to place the patient’s medical malpractice claim to the test and force the patient to reveal the identity of testifying experts); see also Bowman v. Henard, 547 S.W.2d 527, 531 (Tenn. 1977) (holding that “in those malpractice actions wherein expert testi

1997Bowman v. Henard, 547 S.W.2d 527 (Tenn. 1977); Gambill v. Middle Tenn. Medical Center, Inc., 751 S.W.2d 145, 146-47 (Tenn. App. 1988).

2013See Shipley v. Williams, 350 S.W.3d 527, 537 (Tenn. 2011) (setting forth the required elements of proof of a medical malpractice claim and stating: “[E]xpert testimony must be provided by a plaintiff to establish the elements of his or her medical negligence case, subject to the ‘common knowledge’ exception that is not applicable here.” (citations omitted)); Morrison v. Allen, 338 S.W.3d 417, 437 (Tenn. 2011) (setting forth the required elements of proof of a negligence claim).

2011Tenn. Code Ann. § 29-26-115 (a) (Supp. 2011); Shipley, 350 S.W.3d at 550 .

2018See, e.g., Sampson, 886 S.W.2d at 764-65 (concluding that a medical malpractice claim based on failure to warn accrued when the patient had unanticipated complications after breast surgery, including bleeding, swelling, and sloughing of skin, not when she was later advised that her nipple was lost and that she may need reconstructive surgery).

2015Co., 850 S.W.2d 439, 442 (Tenn. 1992)); see also Smartt v. NHC Healthcare/McMinn-ville, LLC, No. M2007-02026-COA-R3-CV, 2009 WL 482475 , at *13 (Tenn. Ct. App. Feb. 24, 2009) (holding that the trial court did not abuse its discretion in admitting evidence to prove an element of the medical malpractice claim after applying the balancing test of Tennessee Rule of Evidence 403).

2013The distinction between a medical malpractice claim and other forms of negligence is subtle, and no “‘rigid analytical line separates the two.’” Gunter, 121 S.W.3d at 639 (quoting Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 788 (N.Y. 1996)).

2013Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn.2009) (quoting Stubbs v. State, 216 Tenn. 567 , 393 S.W.2d 150, 154 (1965) (‘“When ‘shall’ is used ... it is ordinarily construed as being mandatory and not discretionary.’ ”)). [[Image here]] The essence of Tennessee Code Annotated section 29-26-121 is that a defendant be given notice of a medical malpractice claim before suit is filed.

2013Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn.2009) (quoting Stubbs v. State, 216 Tenn. 567 , 393 S.W.2d 150, 154 (1965) (‘“When ‘shall’ is used ... it is ordinarily construed as being mandatory and not discretionary.’ ”)). [[Image here]] The essence of Tennessee Code Annotated section 29-26-121 is that a defendant be given notice of a medical malpractice claim before suit is filed.

2013Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn.2009) (quoting Stubbs v. State, 216 Tenn. 567 , 393 S.W.2d 150, 154 (1965) (‘“When ‘shall’ is used ... it is ordinarily construed as being mandatory and not discretionary.’ ”)). [[Image here]] The essence of Tennessee Code Annotated section 29-26-121 is that a defendant be given notice of a medical malpractice claim before suit is filed.

2013See Shipley v. Williams, 350 S.W.3d 527, 537 (Tenn. 2011) (setting forth the required elements of proof of a medical malpractice claim and stating: “[E]xpert testimony must be provided by a plaintiff to establish the elements of his or her medical negligence case, subject to the ‘common knowledge’ exception that is not applicable here.” (citations omitted)); Morrison v. Allen, 338 S.W.3d 417, 437 (Tenn. 2011) (setting forth the required elements of proof of a negligence claim).

2012A patient asserting a medical malpractice claim based on lack of informed consent must prove “(1) what a reasonable medical practitioner in the same or similar community would have disclosed to the patient about the risk posed by the proposed procedure or treatment; and (2) that the defendant departed from the norm.” Ashe v. Radiation Oncology Assocs., 9 S.W.3d 119, 121 (Tenn. 1999); see also Church v. Perales, 39 S.W.3d 149, 159-60 (Tenn. Ct. App. 2000).

2012A patient asserting a medical malpractice claim based on lack of informed consent must prove “(1) what a reasonable medical practitioner in the same or similar community would have disclosed to the patient about the risk posed by the proposed procedure or treatment; and (2) that the defendant departed from the norm.” Ashe v. Radiation Oncology Assocs., 9 S.W.3d 119, 121 (Tenn. 1999); see also Church v. Perales, 39 S.W.3d 149, 159-60 (Tenn. Ct. App. 2000).