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.”).

2022But here the Plaintiffs’ claims against the Defendants, who are health care providers, are for injuries arising from the surgery, and the Act applies “regardless of the theory of liability.” Before the enactment of the Civil Justice Act, including section 29-26-101, a medical battery claim may have been considered an ordinary tort claim and not subject to the Medical Malpractice Act.9 But that changed when the Legislature statutorily abrogated Estate of French by 9 See Estate of French, 333 S.W.3d at 556 (explaining that not every case against a health care provider qualified as a medical malp

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.

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

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 .

2022But here the Plaintiffs’ claims against the Defendants, who are health care providers, are for injuries arising from the surgery, and the Act applies “regardless of the theory of liability.” Before the enactment of the Civil Justice Act, including section 29-26-101, a medical battery claim may have been considered an ordinary tort claim and not subject to the Medical Malpractice Act.9 But that changed when the Legislature statutorily abrogated Estate of French by 9 See Estate of French, 333 S.W.3d at 556 (explaining that not every case against a health care provider qualified as a medical malp

2022The Legislature was purposeful in defining “health care liability action” in section 29-26-101(a)(1) broadly enough to “cast[] a wide net over civil claims that arise within a medical setting.” Cordell v. Cleveland Tenn. Hosp., LLC, 544 S.W.3d 331, 336 (Tenn. Ct. App. 2017).

2020Each of these elements must be established by expert testimony. 420 S.W.3d 1, 6 (Tenn. Ct. App. 2013).

2020The courts have also consistently rejected any excuses for delay, holding that “an intentional delay under [4.01(3)] mandates a conclusion that the original complaint was not effectively filed.” Jones v. Cox, 316 S.W.3d 616, 621 (Tenn. Ct. App. 2008) (service delayed awaiting 12 resolution of underlying case for legal malpractice claim); see also Vasu, 326 S.W.3d at 581 (service of process delayed “in order to obtain an expert opinion to support the medical malpractice claim”); Estate of Butler v. Lamplighter Apartments, 278 S.W.3d 321, 323 (Tenn. Ct. App. 2008) (delaying service of process in

2020The courts have also consistently rejected any excuses for delay, holding that “an intentional delay under [4.01(3)] mandates a conclusion that the original complaint was not effectively filed.” Jones v. Cox, 316 S.W.3d 616, 621 (Tenn. Ct. App. 2008) (service delayed awaiting 12 resolution of underlying case for legal malpractice claim); see also Vasu, 326 S.W.3d at 581 (service of process delayed “in order to obtain an expert opinion to support the medical malpractice claim”); Estate of Butler v. Lamplighter Apartments, 278 S.W.3d 321, 323 (Tenn. Ct. App. 2008) (delaying service of process in

2020The courts have also consistently rejected any excuses for delay, holding that “an intentional delay under [4.01(3)] mandates a conclusion that the original complaint was not effectively filed.” Jones v. Cox, 316 S.W.3d 616, 621 (Tenn. Ct. App. 2008) (service delayed awaiting 12 resolution of underlying case for legal malpractice claim); see also Vasu, 326 S.W.3d at 581 (service of process delayed “in order to obtain an expert opinion to support the medical malpractice claim”); Estate of Butler v. Lamplighter Apartments, 278 S.W.3d 321, 323 (Tenn. Ct. App. 2008) (delaying service of process in

2020Louis Cnty., 615 N.W.2d 53, 60 (Minn. 2000) (stating that if the facts necessary to establish a medical malpractice claim “are within the general knowledge and experience of lay persons, then expert testimony is not required”); Hubbard v. Wansley, 954 So. 2d 951 , 960–61 (Miss. 2007) (quoting Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So. 2d 790, 795 (Miss. 1995)) (acknowledging that “‘where a layman can observe and understand the negligence as a matter of common sense and practical experience,’ expert testimony is not necessary”); Thone v. Reg’l W.

2020Louis Cnty., 615 N.W.2d 53, 60 (Minn. 2000) (stating that if the facts necessary to establish a medical malpractice claim “are within the general knowledge and experience of lay persons, then expert testimony is not required”); Hubbard v. Wansley, 954 So. 2d 951 , 960–61 (Miss. 2007) (quoting Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So. 2d 790, 795 (Miss. 1995)) (acknowledging that “‘where a layman can observe and understand the negligence as a matter of common sense and practical experience,’ expert testimony is not necessary”); Thone v. Reg’l W.