Document Category:
State: Tennessee
Subject Matter: Opinion
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Good evening and I hope the week is going well. Today the Tennessee Court of Appeals delivered its opinion in  Vice v. Elmcroft et al (attached) affirming the jury’s award of $250K to the daughter of an ALF resident who suffered several falls and a broken clavicle at the facility. The McHugh Fuller Group tried the case.


 

This case centers around whether or not the assisted living facility known as Elmcroft of Hendersonville, together with its related entities Senior Care, Inc. and AL Hendersonville Operations, LLC (all entities will be referred to as “Elmcroft”), and its administrator, Lisa Harrison, were negligent in their care of Julia C. Bynum while she was a resident at Elmcroft. The case was tried before a jury, which found Elmcroft and

Ms. Harrison negligent and awarded damages to Ms. Bynum’s administratrix, Cathy Vice, in the amount of $250,000. Elmcroft appealed the trial court’s judgment accepting the jury verdict.


 

The resident was 87 years old and suffering from dementia. Elmcroft

assured the daughter that it could care for her mother and admitted her after the daughter informed it of her concern about her mother’s risk for falls. Three weeks following her admission the mother fell, and then fell three more times before the daughter moved her out of Elmcroft. The final fall resulted in a broken clavicle, which caused the mother pain

and decreased mobility for the rest of her life. The daughter

sued Elmcroft and its administrator for negligence and negligent

admission and retention of her mother.


 

Relying on the recent French case decided by our Supreme Court, the Court of Appeals determined that the claim for wrongful admission and retention sounded in ordinary negligence and not medical malpractice. The Court further found that because the administrator testified that she was responsible for the admission assessments and staffing decisions, she could be found individually liable as she did not rely on a physician’s assessment in determining eligibility for placement as in a nursing home.


 

The Court of Appeals also found that the jury award was not excessive despite the medical specials amounting to approximately $3,600. There was evidence of pain and suffering due to the fracture for the 500 days after the incident and leading up to her death.


 

There are factual details related to the lack of documentations and failure to follow the fall risk interventions and incident reporting protocols all of which, if compliant argued Plaintiff, would have made know the history of falls to the staff and prevented further falls.


 

We have seen in many jurisdictions that the strength of the ALF cases are claims for negligent admission and retention and thus ALF’s should continue to evaluate the admission protocols and to enhance efforts to comply  with the applicable state regulations related to continued evaluations and changes that require transfer.


 

Under

Tennessee
’s tort reform effective 10-1-11 (for causes of action accruing on or after that date), the claims alleged in Vice would be considered a “health care liability action” and Plaintiff could not proceed with ordinary negligence.  See some of our earlier reports and I’ve also inserted the relevant sections of the new Tennessee Civil Justice Act.


 

Let us know if you have any questions and have a great day tomorrow. For those of you attending the THCA this week, I look forward to seeing you. ~Rebecca 


 

 

(b) “Health care liability action” means any civil action, including

claims against the state or a political subdivision thereof, alleging that a

health care provider or providers have caused an injury related to the

provision of, or failure to provide, health care services to a person,

regardless of the theory of liability on which the action is based.

(c) Health care services to persons includes care by health care

providers, which includes care by physicians, nurses, licensed practical

nurses, pharmacists, pharmacy interns or pharmacy technicians under

the supervision of a pharmacist, orderlies, certified nursing assistants,

advance practice nurses, physician assistants, nursing technicians and

other agents, employees and representatives of the provider, and also

includes staffing, custodial or basic care, positioning, hydration and

similar patient services.

(d) Any such civil action or claim is subject to the provisions of

this part regardless of any other claims, causes of action, or theories of

liability alleged in the complaint, provided that no provision of this part

shall apply to claims against the state of

Tennessee
to the extent that

such provision is inconsistent with or conflicts with the provisions of the

Tennessee Claims Commission Act, codified in title 9, chapter 8, part 3.


Document Author: Rebecca Adelman
Firm/Company: Adelman Law Firm PLLC
Document Date: January 1, 1970
Search Tags: French Opinion
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