Medical Malpractice

How a Tennessee Medical Malpractice Lawyer Can Help You

Doctors, nurses and other healthcare providers spend years and countless hours continuously learning how to care for the sick and injured. The vast majority of medical professionals are hard-working and dedicated to caring for patients and to saving lives. Still, medical professionals are human, and just like truck drivers, airline pilots and careless drivers, they often make mistakes. Medical mistakes or errors caused by medical negligence or malpractice can be devastating. In fact, the National Academy of Sciences and Johns Hopkins University research shows that between 98,000 and 251,000 deaths occur in the U.S. each year due to preventable medical errors, and countless more patients are severely injured. Patients injured by medical mistakes, more commonly referred to as medical malpractice, often need additional, expensive medical care, and their injuries have a lasting impact on their physical and emotional health, finances and family.

If you or a family member have been injured during medical treatment, you must have your treatment and injury investigated and evaluated by an experienced Tennessee medical malpractice lawyer to determine if you have a viable medical malpractice claim. Determining whether medical negligence or medical malpractice has occurred is a complex legal and medical question, and it can be a very time-consuming and expensive to process.

The Tennessee medical malpractice lawyers at the Law Office of Burroughs & Capps have extensive experience in investigating, evaluating and litigating Tennessee medical malpractice cases. When you call with a potential medical malpractice claim, our attorneys collect your medical records; have the records reviewed and summarized by a physician or nurse; and then work with a wide variety of expert physicians, nurses, pharmacists and other healthcare professionals to verify key information about your potential case. In order to properly advise or represent you, they attempt to verify key factors required in medical malpractice cases such as:

  • Your overall health prior to injury;
  • The type of treatment or procedure you expected to receive;
  • The level or standard expected for the care you received in your geographic area;
  • How and why you were injured or had a bad outcome;
  • The history of problems or other malpractice claims against the doctor, nurse, hospital or other healthcare providers involved in your care; and
  • The extent of your injury and your physical, emotional and financial damages.

These factors must be reviewed carefully because not every bad outcome during medical treatment constitutes medical malpractice. In fact, Tennessee medical malpractice law generally recognizes the practice of medicine as an “art” rather than as an exact science. Therefore, some latitude is given to medical practitioners in how they choose to treat patients’ needs. Thus, if your doctor or other medical professional provides care according to the standard for such care in your particular community and/or within the accepted standard of his or her medical specialty (i.e. orthopedic, internist, chiropractor, etc.) he or she may not be liable for a bad outcome. Physicians and medical professionals are also not generally liable for known risks or side effects which occur during medical treatment or procedures. For example, there is a known risk of contracting certain infections during surgery. Surgery resulting in an infection is certainly a bad outcome, but because it is a known risk, it is generally not considered to be caused by medical malpractice.

Medical Malpractice Or Medical Negligence In Tennessee – What You Need To Know.

Tennessee Medical Malpractice Law and Statutes of Limitations – Time is of the essence
Over the past decade, the Tennessee legislature and Tennessee Supreme Court significantly altered Tennessee medical malpractice laws. The Legislature passed the Tennessee Healthcare Liability Act T.C.A. § 29-26-101-210 which created a list of complicated deadlines and documents which must be obtained before a medical malpractice lawsuit can be filed. The Tennessee Supreme Court rendered case opinions which shortened the statute of limitations for minors injured by medical malpractice to only three (3) years from the date the malpractice occurred. The Court also reconfirmed that adults only have a one-year (1) statute of limitations in which to file a medical malpractice lawsuit. That year runs from the date the malpractice occurred or from the date the patient knew (discovered), or should have known, that malpractice occurred. No matter when a patient discovers that malpractice occurred, a lawsuit for medical malpractice can never be brought more than three (3) years after the actual date the malpractice occurred except where a foreign object has been left in a patient’s body.

Due to Tennessee’s pre-suit requirements and short statute of limitations, it is imperative that anyone with a potential medical malpractice claim immediately seek advice from an experienced Tennessee medical malpractice lawyer like those at the Law Office of Burroughs & Capps..

Pre-Suit Requirements
The medical malpractice lawyers of Burroughs & Capps need as much time as possible to review, prepare and file a legitimate medical malpractice case. This is due the time needed to collect and review the relevant medical records and due to the complex and expensive pre-suit requirements for filing a malpractice lawsuit.

Depending on the nature of the alleged medical malpractice and the extent of a patient’s injury, medical records may need to be collected and reviewed from numerous medical providers. These records may consist of hundreds or several thousand pages. If after reviewing the records there appears to be a valid case, the Tennessee Healthcare Liability Act requires that before any lawsuit can be filed, an injured patient must do the following:

Send written Notice Letters to every potential doctor, nurse, hospital or other healthcare provider who the injured patient intends to file a lawsuit against.

Enclose with the Notice Letters a list of doctors, nurses, hospitals or other healthcare providers to be sued and provide each of them a HIPAA-compliant medical authorization allowing each one to obtain the patient’s medical records from all listed medical providers.

The Notice Letters must contain certain information about the patient and they must be sent via certified mail or hand-delivered. If mailed, each letter must have a matching Certificate of Mailing that can only be issued by the U.S. Postal Service.

A copy of all Notice Letters, HIPAA authorizations, certified mail return receipts, and Certificates of Mailing must be maintained and attached to the Complaint initiating the medical malpractice lawsuit.

If all Notice Letters are properly issued, mailed and/or hand-delivered, the patient’s statute of limitations will be extended by one hundred twenty (120) days. Once Notice Letters are sent, the patient must wait at least sixty (60) days before filing a lawsuit. If any of the detailed steps related to sending Notice Letters is missed, or the patient files suit sooner than sixty (60) days from the date notice is given, a trial court can, and likely will, summarily dismissed the case once filed.

Finally, before filing a lawsuit, the patient or his/her lawyer, must have all records reviewed by qualified medical experts. To qualify as a medical expert for Tennessee malpractice cases, a medical expert must have, within the year prior to the alleged malpractice, practiced medicine in the same position and/or specialty as the doctor, nurse or other persons alleged to be sued by the patient (i.e. cardiologist, nurse practitioner, anesthesiologist). The expert must have done so in Tennessee or a state contiguous with Tennessee.

After reviewing all available medical records, each required medical expert must provide to the patient or his/her lawyer a signed report stating that, within a reasonable degree of medical certainty, medical negligence or malpractice occurred which led to a patient being injured. Qualified medical experts are quite difficult to locate, and obtaining their reports can be very expensive costing from $1,500 to $7,500 each depending on the amount of records to be reviewed and the complexity of the issues involved.

The medical expert reports must be in the possession of the patient and his/her lawyer at the time the lawsuit is commenced via the filing of a Complaint against all defendant doctors, nurses or other medical professionals. The existence of the reports is confirmed by attaching a Certificate of Good Faith to the Complaint stating that such reports were obtained, but the reports are not disclosed at that time. The reports are only disclosed if the lawsuit is later dismissed or thrown out by the Court due to a lack of evidence proving malpractice. If the suit is dismissed, and it is determined that when the case was filed, the patient and/or lawyer did not actually possess the required expert reports, the patient and lawyer can be sanctioned by the Court. Such sanctions can include being forced to pay the defendant medical professionals attorneys fees and litigation costs. If a Tennessee attorney is found to have filed and had dismissed medical malpractice cases three (3) times without having obtained the required expert reports, he/she can be disbarred.

Given the detailed nature, and high cost, of the medical malpractice pre-suit requirements, it is difficult and dangerous for non-attorneys to represent themselves in malpractice lawsuits. Because each requirement is very time consuming, the medical malpractice lawyers of Burroughs & Capps encourage all potential victims of medical negligence to contact the firm as soon as possible to have the facts of their potential case reviewed. Otherwise, there simply may not be time to give proper notice and file a case before the running of a patient’s statute of limitations.

Standard of Care – Bad Outcomes versus Medical Neglect

The medical malpractice lawyers of Burroughs & Capps review hundreds of potential medical malpractice cases each year. In the vast majority of such reviews our lawyers determine that patients suffered a bad outcome as opposed to an injury from medical malpractice. Although the United States has an excellent healthcare system and many highly qualified physicians and other medical personnel, patients who get optimal care often have bad results.

Said another way, patients can receive medical care which meets the level, or standard of care, for such treatment in the local, or similar, community, but the result be less than hoped. Some examples are a successful surgery with properly cleaned instrumentation and proper infection control measures in which a patient still contracts a known potential infection (a known risk of the surgery); a properly performed neck surgery resulting in an injured vocal cord (a known risk of the surgery); properly performed laser eye surgery resulting in chronic dry-eye or visual impairment (known risks of the surgery).

In contrast, medical neglect – and therefore medical malpractice only occurs where a doctor or other medical professional renders care that falls below the standard of care for treatment in the local community and that substandard care caused or substantially contributes to an injury. For example: a physician orders that a patient receive a medication which, based on reported history, the patient is severely allergic to leading to a severe respiratory injury; a physician fails to perform proper testing, such as an EKG and blood enzyme tests, on an ER patient suffering with classic symptoms of a heart attack. The man is discharged and dies from a heart attack; a nurse leaves an elderly patient, who is unstable and a known fall risk, alone in a tile shower. The patient falls and suffers a hip fracture. In each of these examples, the local standard for the treatment each patient was to receive was violated because the medical provider failed to meet the basic requirements for care. In each case the failure to follow the standard caused a significant injury. These were not anticipated and/or potential bad outcomes but were avoidable errors.

Is It Medical Malpractice or General Negligence?

If you or a loved one have been injured while inside a medical facility – even if you were injured by an orderly, janitor or the hospital’s bus driver – you must speak to an experience Tennessee medical malpractice lawyer to determine if the claim is treated as a medical malpractice claim – and subject to all the medical malpractice pre-suit requirements.

The Tennessee Healthcare Liability Act made many acts and omissions which occur on the premises of medical facilities subject to medical malpractice laws – including pre-suit Notice Letters and expert reports – even where no doctor or nurse rendered the care which injured the patient.

Prior to the Healthcare Liability Act, if a hospital food service worker dropped food on the floor which caused a fall with injury or if an orderly injured a discharged patient while transporting him/her in a wheelchair to a waiting car – such claims fell outside of medical malpractice laws. They were considered to be general negligence claims, and they could be filed and litigated completely outside of malpractice laws. Under Tennessee’s new Healthcare Liability Act, such accidents and injuries can, and likely would, be subject to medical malpractice law and all pre-suit requirements including Notice letters and medical expert reports. If a patient filed lawsuits for such accidents without following the pre-suit requirements, the cases would be dismissed by the Court. Only experienced Tennessee medical malpractice lawyers like those at Burroughs & Capps can research and determine whether a given accident and injury on or near a medical facility must be treated as a medical malpractice claim.

Types of medical malpractice cases handled by the firm

  • Prescription errors
  • Pharmacy errors
  • Pharmacy errors
  • Medications errors
  • Birth trauma & child birth errors
  • Surgical errors
  • Anesthesia errors
  • Retained object injury
  • Defective medical device injury
  • Orthopedic surgery errors
  • Wrong site wrong limb surgeries
  • Failure to diagnose or misdiagnosis of a heart attack injury
  • IV infiltration error injury
  • Failure to diagnose cancer and tumors
  • Thermal injuries during surgery
  • Hospital bed malfunction injury
  • Patient fall from bed injury
  • Patient fall in shower injury
  • Patient fall in bathroom injury
  • Patient dropped in hospital injury