Monthly Archives: June 2015

Tennessee Supreme Court Should Correct Lower Courts’ Erroneous Interpretation of its Decision in Stevens v. Hickman, Restore Sanity to Health Care Liability Act Cases

[Note:  This entry was published as the feature article of the Nashville Bar Journal’s June 2015 edition.  Interested readers should cite it as:  Daniel A. Horwitz, The Law of Unintended Consequences:  Avoiding the Health Care Liability Act Booby Trap, Nashville Bar Journal (June 2015), available at https://scotblog.org/2015/06/tennessee-supreme-court-should-correct-lower-courts-erroneous-interpretations-of-its-decision-in-stevens-restore-sanity-to-health-care-liability-cases/.]

The Law of Unintended Consequences:  Avoiding the Health Care Liability Act Booby Trap

By Daniel A. Horwitz

In 2009, interest groups representing both healthcare providers and injured patients worked together “to draft and pass” several amendments to Tennessee’s medical malpractice statute that aimed to improve medical malpractice litigation for all involved.[1]  According to the Tennessee Supreme Court, the goals of the 2009 amendments were “to give defendants written notice that a potential healthcare liability claim may be forthcoming,” to “facilitate early resolution of healthcare liability claims,” and to “equip[] defendants with the actual means to evaluate the substantive merits of a plaintiff’s claim by enabling early discovery of potential co-defendants and early access to a plaintiff’s medical records.”[2]  To accomplish these goals, the legislature required medical malpractice plaintiffs to satisfy six pre-suit “notice requirements,”[3] and it further required plaintiffs to file a “certificate of good faith” with their complaints in cases in which expert testimony would eventually be required.[4]

Due to the myriad technical dismissals that resulted from these reforms, however, the 2009 amendments unexpectedly turned out to be red tape with fangs for medical malpractice plaintiffs.  For example, since the 2009 amendments were enacted, many plaintiffs have seen otherwise valid medical malpractice claims—now referred to as “health care liability actions”[5]—barred forever due to their failure to file the requisite “certificate of good faith” at the proper time.[6]  More still have fallen prey to one or more of the pre-suit notice requirements created by the 2009 amendments, resulting in any number of Health Care Liability Act[7] (“HCLA”) complaints being dismissed due to seemingly hyper-technical errors, such as sending a letter to a defendant via FedEx rather than USPS.[8]  Thus, what began as a laudable effort to improve medical malpractice litigation in Tennessee has instead created new procedural barriers that cause many cases to be dismissed on grounds that are completely unrelated to the merits of a plaintiff’s claim.    Continue reading Tennessee Supreme Court Should Correct Lower Courts’ Erroneous Interpretation of its Decision in Stevens v. Hickman, Restore Sanity to Health Care Liability Act Cases

Tennessee Supreme Court holds that recorded forensic interviews in child sex cases are subject to evidentiary constraints on admitting prior consistent statements, reaffirms rule regarding offers of proof, and breathes life into cumulative error doctrine.

By Daniel A. Horwitz

[Disclosure:  The author filed an Amicus Curiae brief in the case discussed below on behalf of the Tennessee Association of Criminal Defense Lawyers (TACDL).  The author’s brief — which primarily addressed the issue discussed in Section B, below — is accessible here.]

Forensic interviews in child sex cases generally are not admissible as substantive evidence in criminal trials, the Supreme Court of Tennessee held in a much-overlooked but vitally important criminal procedure case.  According to the Court’s unanimous opinion in State v. Herron, No. W2012–01195–SC–R11–CD, 2015 WL 1361262 (Tenn. Mar. 26, 2015), forensic interviews in child sex cases are subject to the same evidentiary constraints that generally prohibit admitting “prior consistent statements” during criminal and civil trials.

Furthermore, the Tennessee Supreme Court’s opinion in Herron reaffirms the Court’s prior ruling in State v. Galmore that a defendant generally “is not required to make an offer of proof” in order to prove on appeal that a trial court’s erroneous, adverse ruling on impeachment evidence affected the outcome of his trial.  See State v. Galmore, 994 S.W.2d 120, 125 (Tenn. 1999).

Additionally, by granting the defendant in Herron a new trial on the basis of the combined effect of two separate trial errors, the Court’s decision in Herron has breathed life into the oft-ignored “cumulative error doctrine,” which “embodies the idea that a multiplicity of errors—though individually harmless—may in the aggregate violate a defendant’s due process right to a fair trial.”  State v. Clark, 452 S.W.3d 268, 299 (Tenn. 2014). Continue reading Tennessee Supreme Court holds that recorded forensic interviews in child sex cases are subject to evidentiary constraints on admitting prior consistent statements, reaffirms rule regarding offers of proof, and breathes life into cumulative error doctrine.

Doctors must prospectively disclose all significant medical risks to their patients—not just those risks that ultimately cause harm, holds Tennessee Supreme Court.

By Daniel A. Horwitz

Under Tennessee law, a doctor who operates on a patient generally faces liability for three potential claims if something goes wrong:

  1. Medical battery, which means that the doctor performed a procedure that the patient did not authorize;[1]
  1. Medical malpractice – traditionally known as “negligence” or “medical negligence,” and now referred to as “health care liability” under Tennessee law – which means that the doctor’s performance fell below the recognized standard of acceptable professional practice in the doctor’s community;[2] and
  1. Lack of informed consent, which means that the doctor failed to provide sufficient information to the patient to allow him or her to evaluate the risks of the procedure that was performed.[3]

In Ike J. White, III v. David A. Beeks, M.D., the Tennessee Supreme Court addressed Continue reading Doctors must prospectively disclose all significant medical risks to their patients—not just those risks that ultimately cause harm, holds Tennessee Supreme Court.