Document Category:
State: Tennessee
Subject Matter: French v. Stratford House, TN Supreme CT
Document Title:
Comments:

Good
afternoon and I regret to report that this afternoon the Tennessee
Supreme Court’s rendered a very unfavorable ruling for the nursing home
industry in the French v. Stratford House appeal.   Recall that the
Tennessee Supreme Court was asked to clarify the standards for nursing
home lawsuits and to reconcile the French appellate decision from the
Eastern Section of the Court of Appeals with the Smartt v.NHC opinion
from the Middle Section of the Court of Appeals.  In French, the Court
of Appeals determined that a Plaintiff in a nursing home lawsuit could
not bring causes of action for ordinary negligence, Tennessee Adult
Protection Act claims and Resident’s Rights Act claims and was
restricted to bringing a Tennessee Medical Malpractice Claim.   In
Smartt, the Court of Appeals found that a Plaintiff could bring medical
malpractice and ordinary negligence claims in the same suit.

We
are analyzing the opinion in more detail and will send a supplemental
report. The 21 page opinion written by Justice Gary Wade provides a
detailed common law and statutory history on the development of medical
malpractice and ordinary negligence claims in Tennessee and other
jurisdictions.   Judge Koch was the sole dissenter in his 10 page
opinion and the voice of reason presenting the arguments from the Smartt
decision.  Justice Koch’s dissenting opinion is also attached.

The court ultimate ruled that in a nursing home lawsuit:

1.
        A Plaintiff may bring a claim for medical malpractice and
ordinary negligence if the claims include custodial care and other
issues that would not require expert proof.  The Court identified
understaffing, lack of training and failure of CNA’s to comply care plan
instructions and other "non-medical" events that would support an
ordinary negligence claim;

2.
        A Plaintiff can rely on state and federal regulations as
evidence that a nursing home failed to comply with the standard of care
for ordinary negligence; and

3.
        A Plaintiff may bring a claim under the Tennessee Adult
Protection Act for negligence and attorney fees, costs and punitive
damages are recoverable under TAPA.

While stating the obvious, the French opinion is a game changer and the impact is far reaching for our industry:

1.         The Motions to Dismiss we file pursuant to the Smartt case are now moot; 

2.
        A Plaintiff does not have to comply with the notice
requirements and certificate of good faith provision of the amendments
to the Medical Malpractice Act and thus the frivolous suits naming the
management and other related entities that do not provide care based on
ordinary negligence will not be limited – the precise purpose of the
amendments;

3.
        A Plaintiff’s burden of proof without the need for expert proof
to establish violations of state and federal regulations and the
threshold are significantly lower and liability easier to establish;

4.
        Facilities and management organizations and related entities
will be subject to multiple claims, increased defense costs and exposure
particularly related to the TAPA claims;

5.
        A Plaintiff can rely on the French opinion and essentially have
an outline for the line of questioning for CNA’s and other non-licensed
staff to establish claims for ordinary negligence; and

6.
        Discovery will be much broader as the claims are far-reaching
into corporate control issues (staffing, budgets and management) with
higher levels of scrutiny on claims for spoliation and corporate veil
piercing.

As
stated, we will provide a more thorough evaluation and suggest 
appropriate  strategies in the face of the opinion.  We do want to
stress that having an ADR program with proper in-servicing will be
essential in order to reduce potential risks and liabilities.

Finally,
as you may be aware, there has been a significant political shift in TN
since the November elections and there is some hope that tort reform –
ChooseCareTennessee – has a chance for success. This opinion is timely
in this respect as the costs associated with caring for our elderly and
informed population will increase as the scope and severity of claims
increases.  

Once you review the opinion, please send us your comments and we will post an update by tomorrow.

Rebecca   

cid:image001.jpg@01CBAB36.EE765FF0Adelman Law Firm, PLLC


Phone

901.529.9313

Fax

901.529.8772

Email

rebecca@adelmanfirm.com

Website

www.adelmanfirm.com

 


Document Author: Rebecca Adelman
Firm/Company: The Adelman Law Firm
Document Date: January 26 2011
Search Tags: custodial malpractice
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