Tag Archives: malpractice

Fed court questions TN malpractice law in Iraq vet’s suicide

The case of a widow whose Iraq war veteran husband committed suicide after the U.S. Department of Veterans Affairs misdiagnosed his post-traumatic stress disorder is testing Tennessee’s stringent medical malpractice laws and highlighting what a federal judge called the laws’ “seemingly unfair” results, reports Jamie Satterfield.

The VA and the James H. Quillen Veterans Administration Medical Center in Mountain Home, Tenn., have conceded Greeneville veteran Scott Walter Eiswert was misdiagnosed and in 2008 committed suicide. The efforts of the National Guardsman’s widow, Tracy Lynn Eiswert, to hold the VA and the Quillen doctors accountable have failed solely because of a few paperwork errors that ran afoul of Tennessee’s medical malpractice laws.

U.S. District Judge Ronnie Greer tossed out Eiswert’s case in 2013, which he called a “seemingly unfair result” of “procedural hurdles” the Tennessee Legislature created over the past few years to make it tougher for residents to sue medical professionals and facilities.

The 6th Circuit U.S. Court of Appeals came to the widow’s rescue earlier this year, questioning whether those laws were indeed as unforgiving as they appeared. The appellate court asked the Tennessee Supreme Court to consider whether the laws required “strict compliance” with no room for error or “substantial compliance” with wiggle room for minor filing mistakes.

In a recently-released opinion, the 6th Circuit revealed the state’s high court refused to answer that question because of at least one other paperwork error Greer did not address in his ruling. Rather than declare defeat for the widow, the 6th Circuit is now sending the case back to Greer — with a twist.

The court is drawing a legal road map for Greer, citing specific cases he should consider that could favor the widow.

“On remand, we note several decisions which may inform the analysis of the unresolved issues,” the opinion stated.

All of those cases were decided by Tennessee’s Supreme Court after the widow’s lawsuit was dismissed and have poked legal holes in the “strict compliance” requirements of the state’s medical malpractice laws.

Stewart Has Been Sued for Debt; DesJarlais for Malpractice

Debate in Tennessee’s bitter 4th District congressional campaign turned over the weekend to the respective candidates’ past legal problems, reports Andy Sher.
Democrat Eric Stewart was sued by Citibank in November 2011 for failing to pay on nearly $5,000 in credit card debt, Franklin County General Sessions Court records show. Republican incumbent Scott DesJarlais, a physician, has a “history” of medical malpractice, state Democrats claim, citing claims in 1991 and 2004.
Citibank sued Stewart on Dec. 6, 2011, a little over a month after the state senator and insurance agent announced he was running for Congress. DesJarlais campaign manager Brandon Lewis said the lawsuit underscores a pattern of financial mismanagement that makes Stewart unqualified to tackle the nation’s debts.
“When Tennesseans are struggling to find jobs, we can’t count on someone with failed businesses, multiple IRS tax liens and warrants for unpaid personal debts,” he said. Small businesses “know that Eric Stewart’s support of Barack Obama’s policies and Obamacare will mean additional tax burdens that may put them out of business and cost Tennesseans even more jobs,” Lewis said.
Attorney Bill Shick, who represented Citibank, said Stewart settled the debt Dec. 27, 2011, but the suit wasn’t officially dropped until March 6.
…Already rocked by revelations that DesJarlais dated at least two patients while separated from his first wife, his campaign over the weekend responded to new charges by the Tennessee Democratic Party that his medical practice shows a “history of lawsuits.”
Democrats cited a 1991 malpractice suit in Kansas and Tennessee records indicating he settled a malpractice claim here in 2004.
Kansas court records show a hospital, DesJarlais and another doctor were sued in a case involving a newborn they delivered who had a severe form of cerebral palsy.
After a difficult labor, the other doctor determined a caesarian section was necessary and instructed a nurse to push the baby’s head up the birth canal to accommodate the procedure, according to a Kansas appellate court opinion.
The jury ruled in favor of DesJarlais and the other defendant, and the appellate court upheld the ruling.
And Tennessee Health Department records show DesJarlais in 1994 settled an “above average” malpractice claim of at least $75,000. The records contain no additional information, and Democrats said they could not find a publicly filed lawsuit. A Democratic Party spokesman said the actions raise issues of trust.

Anti-Abortion Bills to Be Rewritten, Replaced

NASHVILLE, Tenn. (AP) — State Rep. Matthew Hill says he’s taking two anti-abortion bills off notice and plans to replace them with new measures.
The proposals sponsored by the Jonesborough Republican would have required abortions to be performed in hospitals (HB433) and increase the minimum medical malpractice liability for abortions (HB436).
They were to be heard in the House Health Subcommittee. The companion bills to both were awaiting a vote in the Senate Judiciary Committee.

Will Legislature move to overturn another Supreme Court ruling?

Nashville attorney Ted Carey, writing a Tennessean op-ed piece, explains a recent state Supreme Court ruling that could help injured patients win medical malpractice (‘med-mal’) lawsuits against doctors and other health care providers. It involves a legal technicality on admitting evidence, called the “locality rule.”
But Carey also notes that the ruling could play into politics at the Legislature, where the trend has been to make it more difficult to collect damages from doctors and other health care providers. And there’s the legislative moves that some lawyers see as attacks on the state’s courts — the move to return to popular election of the state’s top judges and to have legislators, not the Supreme Court, choose a majority of members on the Court of the Judiciary.
Excerpt from Carey’s article on the “Shipley” ruling:
Finally, there is larger politics. Legislative changes to overall tort laws, and to medical malpractice laws, in 2009 and 2011, already have been followed by significant drops in med-mal case filings, with parallel reductions in malpractice insurance premiums.
In 2009, pre-case-filing requirements were enacted by the General Assembly. Caps on damages followed in 2011. Before Shipley, the state’s doctors appeared satisfied with these steps. The doctors’ lobby planned no push for further changes in the laws in 2012, wanting to see how much difference these changes would make, once the caps take effect during late 2011.
But depending on how Shipley is viewed, the Republican legislative majority might seek to overrule Shipley by statute. The General Assembly did just that last session to another Tennessee Supreme Court decision it didn’t like — dealing with the overall standard for summary judgments. Koch says Shipley further tinkers with that same summary-judgment standard.
So is Shipley a red flag in front of the legislative bull, if you will? Or is Holder’s nothing-unusual-going-on-here concurrence right? The justices are all up for retention elections next year. What would Chicken Little say?