Tennessee

In Tennessee, medical malpractice victims must prove: “(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred; (2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and (3) As a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.”

However, Tennessee severely impedes the ability of medical malpractice victims to obtain and provide medical expert testimony to establish the above by requiring such experts to live nearby: “No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a), unless the person was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make the person’s expert testimony relevant to the issues in the case and had practiced this profession or specialty in one (1) of these states during the year preceding the date that the alleged injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for the defendant as rebuttal witnesses. The court may waive this subsection (b) when it determines that the appropriate witnesses otherwise would not be available.” TN Code § 29-26-115 (2023).

If an orthopedic surgeon operates on a patient’s wrong knee in Tennessee, it appears that Tennessee does not trust the expert opinion of an orthopedic surgeon in Massachusetts, Maryland, Michigan, or Minnesota whose opinion is the Tennessee orthopedic surgeon breached the standard of care by operating on the patient’s wrong knee.

Texas

In a recent Texas appellate court case, an emergency medical technician was transporting a patient by ambulance on an emergency basis when the ambulance entered an intersection against a red light and was struck by a pickup truck driven by Dexter Fernil. Fernil and his spouse sued the ambulance driver and her employer, alleging that Fernil was injured in the collision, but the trial court dismissed the claims at the defendants’ request on the ground that these were health care liability claims (HCLCs) for which the Fernils had failed to file an expert report as required by the Texas medical malpractice statute.

The Texas appellate court held: “Here, the record includes expert testimony that the accident was caused by the Ambulance Parties’ breach of accepted standards of safety, and that those specialized standards arise from the Ambulance Parties’ professional duties as health care providers performing an emergency transport of a patient. Although the Fernils argued that the expert testimony was not admitted, they make no arguments addressing its content. Both the need for expert testimony and the Ross considerations support our conclusion that the Fernils’ claims are HCLCs.”

The Dissenting Opinion stated: “The Texas Health Care Liability Act was originally enacted by the Legislature to protect physicians from questionable medical malpractice lawsuits. Today’s majority opinion expands this protection to ambulance drivers who negligently violate rules of the road. A medical opinion is not required to either establish the rules of the road or common negligence. To the extent that the majority extends the HCLA to the facts of this case, I respectfully dissent.”

Source Fernil v. Bluebird Medical Enterprises, LLC, NO. 14-23-00910-CV.

Is it really necessary to hire a medical expert to provide a report stating that an ambulance driver was at fault for entering an intersection against a red light and thereby causing a collision that injured another driver who had the right-of-way? In Texas, it is required …

Ohio

R.C. 2305.113(E)(3) defines the term “medical claim” for statute of limitations purposes and provides, in relevant part:
“Medical claim” means any claim that is asserted in any civil action against a physician, podiatrist, hospital, home, or residential facility, against any employee or agent of a physician, podiatrist, hospital, home, or residential facility, or against a licensed practical nurse, registered nurse, advanced practice registered nurse, physical therapist, physician assistant, emergency medical technician-basic, emergency medical technician-intermediate, or emergency medical
technician-paramedic, and that arises out of the medical diagnosis, care, or treatment of any person. “Medical claim” includes the following: * * * (e) Claims that arise out of skilled nursing care or personal care services provided in a home pursuant to the plan of care, medical diagnosis, or treatment.

In a civil lawsuit alleging that an Ohio nursing home resident was injured on May 22, 2019, when two aides failed to properly assist her to a toilet from her wheelchair and the resident fell and suffered a displaced fracture of the distal fibula with fragment displacement, a vertical fracture of the posterior malleolus, and posterior talar dislocation, the plaintiff-estate argued the trial court erred in holding that two aides dropping a patient while using a commode is a “medical claim.”

The Court of Appeals of Ohio Eighth Appellate District stated in its December 21, 2023 Journal Entry and Opinion: “[U]nder the 2015 amendment, “medical claims” are no longer limited to injuries caused by an act or omission related to some type of medical test or procedure ordered by a doctor or other medical professional. They now include claims arising from personal-care services provided in a nursing home or residential facility, including assisting residents with activities of daily living. Assisting a patient in moving from a wheelchair to a toilet is an activity of daily living. Classifying such assistance as a personal-care service makes sense because ordinarily no duty of care exists for one person to assist another with activities of daily living such as toileting or getting in and out of a wheelchair. Such a duty only arises when skilled nursing and personal-care services are provided to people, who require this kind of assistance. Therefore, Smith’s claim constitutes a medical claim under R.C. 2305.113(E)(3)(d) because it involved the provision of personal-care services in a nursing facility.”

Source Smith v. Mentor Ridge Health & Rehab., 2023-Ohio-4659.

Is failing to properly assist a nursing home resident from the toilet to a wheelchair a medical malpractice claim? In Ohio, it is …

If you or a loved one may have been harmed as a result of medical malpractice in the United States, you should promptly find a medical malpractice lawyer in your state who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

Click on the “Contact Us Now” tab to the right, visit our website, or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your state who may assist you.

Turn to us when you don’t know where to turn.