Kelly on Malpractice

In medical malpractice actions, some defense lawyers intimidate with the mistaken belief that an expert cannot meet the requirements of the locality rule by supplementing his knowledge about the relevant statistics of the medical community. Unfortunately, some plaintiff lawyers buy into this belief. This mistaken belief is fatal to meritorious cases. I suspect there are cases dismissed because the plaintiff lawyer made no effort to supplement the expert’s knowledge about the relevant statistics of the medical community to satisfy the locality rule. Let me start by admitting that the same thing happened to me years ago. A trial court granted a summary judgment motion because my expert’s affidavit lacked the specificity required to meet the locality rule. I thought I had lost the case right there. Fortunately, my father encouraged me to READ THE LAW. I found a few cases and then filed a Rule 59 motion with a supplemental affidavit from my expert. The trial judge later vacated the summary judgment, and the case settled for a substantial sum. I came that close to disaster. I don’t want you to go through the same nightmare believing there is no remedy. The purpose of this newsletter is to shatter that mistaken belief and fatalist attitude that accompanies it. There is a remedy indeed.

In Pullum v. Robinette, 174 S.W.3d 124 (Tenn.Ct.App.2004), Ms. Pullum filed a dental malpractice action. She claimed that in the course of performing a root canal, Dr. Robinette negligently and permanently damaged her mandibular nerve. She retained an expert, Dr. Neer. The central issue in this case arose from the trial court’s treatment of a motion in limine filed by the defendant. The motion asked the trial court to exclude Dr. Neer based on the locality rule. The trial court denied the motion. The jury found for Ms. Pullum. An appeal followed. Dr. Robinette asserted that Dr. Neer’s pretrial affidavit and deposition did not meet the locality rule. At the close of Dr. Neer’s discovery deposition, he decided to do more homework before anyone else questioned him again. One of the arguments made by Dr. Robinette was that if Dr. Neer testified as to specific information regarding Spring Hill in response to questions that he had previously answered with “I don’t know,” the cancellation rule would be triggered. The trial court disagreed. Dr. Neer subsequently educated himself further about the community of Spring Hill and about the standards of dental practice in that area. In particular, he spoke to a Brentwood endodontist, a Fayetteville dentist, and a Pulaski dentist. Dr. Robinette argued that the trial court should have granted his motion in limine based upon the affidavit and discovery deposition in the record “at that time.”

The Court of Appeals revisited law pertaining to motions in limine. A trial judge may issue a preliminary or conditional ruling on the motion in limine, subject to change depending on events at trial. a trial court in Tennessee is not required to rule definitively on a pre-trial motion to exclude evidence. “With a few exceptions … the trial court is given broad discretion in the timing of its decisions on the admissibility of evidence.” The Court of Appeals concluded, “We know of no authority suggesting a trial court could not change an in limine ruling for other reasons in the exercise of sound discretion.” The trial court had the discretion known or reasonably believed to exist. These are the factors courts must examine to determine the applicability of the statutory qualified immunity. The major issue of statutory interpretation in this case was whether the qualified immunity applies when a patient sues the hospital. The Court of Appeals held that it does. In so doing, the Court distinguished: (1) Bryant v. McCord, 1999 WL 10085 (Tenn.Ct.App.) (holding that hospitals have a duty to use reasonable care to select and retain only competent physicians) because Bryant involved a hospital’s control over the use of investigational devices, not the selection or recommendation of a physician by a peer review committee; (2) Wicks v. Vanderbilt Univ., 2007 WL 858780 (Tenn.Ct.App.) (recognizing a claim for negligent supervision of physicians) because Wicks focused on failure to adhere to hospital policies, which was not an issue; and (3) Edmonds v. Chamberlain Mem’l Hosp., 629 S.W.2d 28, 30 (Tenn.Ct.App.1981) (a hospital is not liable for the negligence of the physician selected by the hospital unless at the time the physician was chosen or subsequently as he performed at the hospital it was known, or should have been known, that the physician was incompetent to perform the duties he was reasonably expected to undertake) because Edmonds did not involve a doctor subjected to review by a peer review committee, so the qualified immunity of TENN.CODE ANN. § 63-6-219(d)(1) was not available and was not discussed. Thus, the Court of Appeals held that the qualified immunity defense under TENN.CODE ANN. § 63-6-219(d)(1) is available when a patient sues a hospital for credentialing decisions made by a peer review committee. This means that a patient has no claim against a hospital for negligent credentialing decisions that are a product of the peer review process. The Court of Appeals did mention an important exception to the statute. The Court declared, “As important as this holding is, just as important is what we do not hold.” Centennial would have to prove that its credentialing decision was made in good faith, without malice, on the basis of facts reasonably known or reasonably believed to exist. Moreover, qualified immunity is not available in situations other than those enumerated in TENN.CODE ANN. § 63-6-219(d)(1). In situations outside the scope of the statute, “hospitals are liable for the negligent acts of their agents and employees even though they are selected with due care.”

Smith v. Pratt is an immunizing decision that provides cover for hospitals who put dangerous physicians on the floor to treat patients, even when the decision to put that physician on the floor was negligent, as long as the hospital acts in conformity with the TENN.CODE ANN. § 63-6-219(d)(1). Judge Barbara Haynes got it right from a public policy standpoint. Blanket immunity is contrary to the central purpose of the statute, which is to encourage the medical profession to police its members without fear of being sued by physicians who are disciplined by their peers. Hospitals can police, but if they do it poorly, then the patient has no right of redress against the hospital. Drunk or drug addicted doctors and incompetent physicians can continue harming patients without the hospital being accountable. I think the thrust of discovery in these cases will be on the facts known or reasonably available to the peer review committee at the time the decision was made to credential the doctor and whether the decision was a product of “good faith.” Does an absence of good faith mean “malice?” Time will tell, but these cases just got much harder to prove.

Finally, I am very concerned about the constitutional arguments that the Court of Appeals so easily brushed aside. The Court’s ruminations foreshadowed doubt in my mind to any challenge against tort reform and draconian caps that may ensue. The Court relied on Harrison v. Schrader, 569 S.W.2d 822 (Tenn.1978) to pierce a constitutional challenge based on the “open courts” provision. We will have to hold out breath if the unthinkable happens.