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State: Tennessee
Subject Matter: Negligence Theory/Med Mal Theory
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The captioned case was argued before the Tennessee Supreme Court on May 4. Because Attorney Brian Brooks was involved in a trial in Arkansas, Drake Martin actually argued for the plaintiff. Wayne Ritchie appeared and argued on behalf of the Tennessee Association for Justice. Attorney Al Henry appeared on behalf of The Stratford House. Attorney Cliff Wilson appeared on behalf of the defendant which owned the facility for the first six months of the patient’s residence. Attorney David Ward appeared on behalf of the Tennessee Health Care Association. The principal issue was whether the plaintiff could proceed under an ordinary negligence theory, in addition to a medical malpractice theory.

Drake Martin

Attorney Martin directly addressed the principal issue – whether medical malpractice is the only cause of action against a nursing home. He emphasized that the same custodial care is rendered elsewhere and is not judged by medical malpractice standards. He further argued that the care is not provided by licensed medical professionals. He suggested that neither CNAs nor corporate owners should be judged by medical malpractice standards.

Attorney Martin relied heavily on the Court of Appeals opinion in the Smartt case. He indicated that the Court appropriately referenced the Tennessee Supreme Court’s decision in the Gunter case, which held that conduct which constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional must be judged by medical malpractice standards. The distinction depends on whether medical knowledge and expertise is actually used in the care provided. A distinction must be made between skilled services and custodial services. Custodial services should be judged by ordinary negligence standards.

Wayne Ritchie

Attorney Ritchie commenced his argument by stating that the Tennessee Adult Protection Act is on the books and should be enforced. He made little further progress before he was peppered with questions from the Justices, and he said little of additional significance.

Al Henry

Attorney Henry began his comments by addressing the facts of the case. He eventually pointed out that the applicable regulations require a physician recommendation for nursing home admission, that a physician must be responsible for a patient’s care, that the provision of 24-hour licensed nursing care is required, that care is provided pursuant to a complete care plan (including feeding, hydration, and turning and repositioning), and that CNAs provide care pursuant to the plan. He acknowledged that family members who provide similar care would not be judged by medical malpractice standards, primarily because they are not medical professionals and are not providing care in medical institutions.

Cliff Wilson

Attorney Wilson did not speak at all to the principal issue, but merely addressed the narrow issues which affect only his client. More specifically, he argued that because the plaintiff physician expert testified to no deviation from the standard of care during the six weeks that his client owned the facility, partial summary judgment should have been granted as to the wrongful death theory against his client. He further argued that the motion for partial summary judgment with respect to punitive damages should be granted because the testimony of the former CNAs with respect to insufficient staffing did not constitute clear and convincing evidence of reckless behavior.

David Ward

Attorney Ward repeatedly emphasized the point that the care was provided pursuant to a comprehensive care plan, and should therefore be judged by medical malpractice standards.

Justices’ Comments

Justice Wade specifically indicated he is concerned with the Court of Appeals decision. He questions whether it is necessary for the trial judge to act as gatekeeper in determining whether the plaintiff must proceed with either medical malpractice or ordinary negligence. He is concerned that such a procedure would undermine the role of the jury as the finder of fact. He questions how a trial judge should determine the "gravamen" of the case under the procedure outlined by the Court of Appeals. More specifically, he inquired whether the action must proceed under medical malpractice law if a mere majority of the allegations implicated malpractice.

Justice Clark pointed out that the Gunter case dealt with only a single act rather than the multiple acts alleged by the plaintiff in this case. She later inquired why there could not be two causes of action in a single Complaint.

Justice Lee suggested by her questions and comments that while some of the acts alleged by plaintiff might constitute ordinary negligence, other such acts might constitute medical malpractice. She drew a distinction between the treatment necessary for pressure ulcers and the mere feeding of a patient. She inquired of plaintiff counsel as to whether CNAs should always be judged by ordinary care standards. She suggested that a distinction should be drawn between skilled care and mere activities of daily living. She commented that basic care does not require specialized medical knowledge.

Justice Holder indicated she had not previously dealt with this type of action. She inquired whether the trial judge should decide which theory controlled and then charge the jury appropriately. She noted that grooming in the home would not be conducted by a medical professional, but grooming in a nursing home would be. She inquired whether a CNA, having been ordered to provide certain care, should be judged by medical malpractice standards. She noted that CNAs do not operate in a void, and that someone is deciding the care that is required. She was concerned that if the judge instructed the jury on both medical malpractice and ordinary negligence, it would be difficult to know if the jury was parsing it out correctly.

Justice Koch suggested that plaintiff’s position would require a decision from one minute to the next as to whether certain care constituted medical malpractice or ordinary negligence. Plaintiff was seemingly advocating allowing the jury to decide whether abuse or neglect was committed without the benefit of expert proof. He noted that plaintiff’s most frequent allegation in their Complaint was that the "nursing staff failed" to do something. He thought it should be easy to determine whether an act is substantially related to the rendition of medical treatment or is instead an act of simple negligence such as failing to place a warning sign on a newly mopped floor.

We should see a decision later this year. The application for permission to appeal is still pending in connection with the Smartt case, and it is entirely possible that the Court will also issue an opinion in this matter at or about the same time.

Shared by Rebecca Adelman, The Law & Mediation Offices of Rebecca Adelman, Memphis, TN  

Document Author: Rebecca Adelman
Firm/Company: The Law & Mediation Offices of Rebecca Adelman
Document Date: February 21, 2020
Search Tags: TN Supreme Ct. TMMA
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