Tennessee Case Reviews

Covenants Not to Compete
HLD, v. 33, n. 8 (August 2005)]

Tennessee Supreme Court holds covenants not to compete in physician contracts Are unenforceable as a matter of public policy. Such agreements are permissible in two limited circumstances, which themselves include certain restrictions, as specified by state statute--namely, when the employer is a hospital or an affiliate of a hospital, and when the employer is a "faculty practice plan" associated with a medical school. Tenn. Code Ann. § 63-6-204. [Source:

[Murfreesboro Med. Clinic, P.A. v. Udom, No. M2003-00313-SC-S09-CV (Tenn. June 29, 2005). To read the case, go to http://www.tsc.state.tn.us/opinions/tsc/Sc2qtr2005.htm]

* * * * * * *
Causation in Informed Consent Cases
[Source: HLD, v. 28, n. 4 (April 2000)]

Tennessee Supreme Court Adopts Objective Approach to Evaluating Causation in Informed Consent Cases

The Tennessee Supreme Court agreed with the majority of jurisdictions and chose to employ the objective approach in evaluating causation in informed consent cases, finding that the objective approach was consistent with the prevailing standard in negligence cases, appropriately respected a patient's right to self-determination, and provided a realistic, rather than speculative and emotional, framework for a rational resolution of the issue of causation.

Ashe v. Radiation Oncology Assocs., 9 S.W.3d 119 (Tenn. Dec. 27, 1999) (reh'g denied Jan. 7, 2000)

* * * * * * *
Expert Testimony to Establsih Mental Distress in IIED Claims
[Source: HLD, v. 28, n. 2 (February 2000)]

Tennessee Supreme Court Holds That Expert Medical or Scientific Proof of Serious Mental Injury Is Generally Not Required to Maintain Claim for Intentional Infliction of Emotional Distress

Miller v. Willbanks,, No. E1997-00022-SC-R11-CV, 1999 WL 1146559 (Tenn. Nov. 15, 1999)

* * * * * * *
Compliance with HCQIA
[Source: HLD, v. 31, n. 1 (January 2003)]

Tennessee Appeals Court Says Hospital That Complied With HCQIA Requirements Was Not Liable For Monetary Damages To Suspended Physician

Dr. Richard Peyton sued Johnson City Medical Center (Hospital) in state trial court, alleging that the Hospital had improperly revoked his privileges and seeking injunctive relief and monetary damages in the amount of $10 million. The trial court granted partial summary judgment in favor of the Hospital pursuant to the Health Care Quality Improvement Act (Act), 42 U.S.C. § 11101 et seq., a decision that effectively prevented Peyton from receiving monetary damages. Peyton appealed.

The Tennessee Court of Appeals affirmed. As a threshold matter, the appeals court noted the presumption under the Act is that a facility is entitled to immunity from monetary liability under § 11112(a). The appeals court agreed that Peyton had failed to rebut this presumption by failing to show by a preponderance of the evidence that the Hospital did not comply with the Act.

Peyton v. Johnson City Med. Ctr., No. E2001-02477-COA-R3-CV, 2002 WL 31421670 (Tenn. Ct. App. Oct. 29, 2002).

* * * * * * *

Locality Rule - Medical Malpractice
[Source: HLD, v. 30, n. 4 (April 2002)]

Tennessee Appeals Court Upholds Exclusion Of Expert's Testimony Under Locality Rule In Medical Malpractice Action

The appeals court explained that, because Engle did not begin making Tenn Care reviews until almost two years after the alleged malpractice, his testimony did "not meet the language of the statute requiring knowledge at the time of the alleged malpractice." Accordingly, the appeals court affirmed the lower court's judgment.

A concurring opinion commented that "the General Assembly should revise Tenn. Code Ann. § 29-26-115 and bring it in compliance with how physicians are being trained and how health care is being administered to patients in this State."

Henry v. Obstetrics and Gynecology Consultants, P.C., No. E2001-01246-COA-R2-CV, 2002 WL 199723 (Tenn. Ct. App. Feb. 8, 2002).

* * * * * *

Statute of Limitations Tolled by Mental Incapacity

Tennessee High Court Finds Statute Of Limitations In Negligence Action Against Nursing Home Tolled By Deceased Resident’s Mental Incapacity

The applicable one-year statute of limitations for a negligence action filed against a Tennessee nursing home and its owners by a deceased nursing home resident’s son who was the resident’s durable power of attorney at the time the action accrued was tolled by the resident’s mental incapacity, the Tennessee Supreme Court ruled April 24.

The Tennessee high court also held the existence of a durable power of attorney did not affect the tolling of the applicable statute of limitations.

Sullivan ex rel. Wrongful Death Beneficiaries of Sullivan v. Chattanooga Med. Investors, L.P., No. M2004-02264-SC-R11-CV (Tenn. Apr. 24, 2007).

* * * * * *

Institutional Liability for Informed Consent
[Source: HLD, v. 28, n. 6 (June 2000)]

Tennessee Supreme Court Holds That Hospitals Do Not Owe Duty to Obtain Informed Consent of Patient Undergoing Surgery Ordered and Performed by Non-Employee Physician

In a case of first impression in Tennessee, the Tennessee Supreme Court affirmed, holding that Tennessee law generally does not require a hospital "to procure a patient's informed consent to surgical procedures ordered and performed by non-employee doctors." First, the supreme court observed that Centennial was within the purview of the Tennessee Medical Malpractice Act ("Act"), which states that

"In a malpractice action, the plaintiff shall prove by evidence as required by § 29-26-115(b) that the defendant did not supply appropriate information to the patient in obtaining his informed consent (to the procedure out of which plaintiff's claim allegedly arose) in accordance with the recognized standard of acceptable professional practice in the profession and in the specialty, if any, that the defendant practices in the community in which he practices and in similar communities."

Bryant v. HCA Health Servs., No. 96C-1013, 2000 WL 266821 (Tenn. Mar. 13, 2000)

* * * * * *

Hospital Liability for Agent Action

Tennessee Appeals Court Finds Hospital Cannot Be Held Liable For Actions Of Physician It “Disavowed” As Agent In Consent Form

In two separate medical malpractice cases, a hospital took sufficient steps to disavow an agency relationship between itself and the physician alleged to have committed the underlying negligent act thereby precluding plaintiffs’ apparent agency claims, a Tennessee appeals court ruled June 12.

Dewald v. HCA Health Servs. of Tennessee, No. M2006-2369 (Tenn. Ct. App. June 12, 2007).

Boren v. Weeks, No. M2007-628 (Tenn. Ct. App. June 12, 2007).

* * * * * *

Medical Board's Right to Request Patient Records
[Source: HLD - April 2007]

Tennessee Appeals Court Holds Physician May Not Shield Patient Records From Medical Board’s Review

Physicians in Tennessee have no reasonable expectation that they can shield their patients’ records from the regulatory oversight of the state’s medical board, a Tennessee appeals court ruled March 13.

Accordingly, a physician who refused to comply with the board’s lawful request for his patient records was properly subject to discipline, the appeals court found.

Under state law, the Board has the authority to obtain patient records through a written request from healthcare providers being investigated for potential wrong doing. See Tenn. Code Ann. § 63-1-117.

McNiel v. Cooper, No. M2005-01206-COA-R3-CV (Tenn. Ct. App. Mar. 13, 2007).

Acting CMS administrator vows to introduce more agency transparency.

[Source: Health and Life Sciences Law Daily, September 13, 2007]

Modern Healthcare (9/13, Lubeli) reports that Kerry Weems, acting CMS administrator, "laid out his agenda to reporters and promised to introduce more transparency in the way the CMS does business. Starting at the end of the month, for example, all corrective-action measures between the CMS and Medicare Advantage plans will be made public on the agency's Web site, Weems said." Modern Healthcare notes that Weems "said he would continue to support quality and health information-technology initiatives, and would be issuing a report to Congress soon on value-based purchasing in hospitals. To get the message out on the Medicare Part D drug benefit, his goal is to inform the family members and others who take care of the beneficiaries using Part D, he said."

The Hill (9/13, Young) adds that Weems also vowed "to improve program management and to evaluate the agency's relationships with health plans and other private contractors." Weems said CMS "would seek to refute criticisms that the agency is too close to and too lenient on the private companies with which it does business." He noted, "The tone that I'm trying to set is that CMS needs to make sure that we maintain an arm's-length relationship with our partners."

Community Health Systems agrees on settlement in class-action ADA lawsuit.

[Source: Health and Life Sciences Law Daily, September 13, 2007]

The Tucson Explorer News (9/12, Stebbins) reported that "Community Health Systems, parent company of Northwest Medical Center, has reached a settlement with plaintiffs in a class-action lawsuit filed in 2003 involving physical access barriers at Northwest's Oro Valley facilities." Still awaiting approval by the U.S. District Court, Northern District of Texas in Dallas, the settlement "means approximately 280 upgrades at Northwest facilities to bring it into compliance with the Americans with Disabilities Act (ADA), according to John Bosco, the attorney representing Community Health Systems which owns Northwest." Bosco "said upgrades at Northwest would include installation of grab bars in restrooms, Braille room signage, adjustment of drinking fountain heights, coat-hook height adjustments and installation of new door knobs for easier grasping and turning." The lawsuit was "filed by plaintiffs with an advocacy group known as Access Now," against "Triad, which owned Northwest at the time."

Feds Crack Down on Physician ‘Self-Referral’

[Source: WSJ Health Blog, posted by Jacob Goldstein]

Docs make lots of money by investing in medical facilities — like surgery centers and MRI shops — and then sending their patients to them for care. The consultants at McKinsey figure the profit to doctors from this self-dealing runs in the neighborhood of $8 billion a year.

Medicare doesn’t like it, citing overuse, and could soon begin denying payments for many self-referred services, the WSJ reports.

Self-referral arrangements are “corrupting medical decision-making” by creating a financial incentive for doctors to refer patients who don’t really need procedures, according to this recent document from the Centers for Medicare and Medicaid Services.

The document is part of proposed Medicare rules that could go into effect in a few months and would largely target joint ventures between doctors and hospitals. Those deals allow the hospitals to offset some of the revenue they’ve lost as doctors have begun to enter businesses — like high-end medical imaging — that were formerly the sole domain of hospitals. And when the hospital bills for the work, insurance often reimburses at a higher rate than when the work is billed by doctors.

Some defenders of these businesses say they help bring expensive new medical technologies to communities that might not otherwise have them. Critics point to overuse of medical procedures and improper financial relationships. “Self-referral arrangements represent an inherent conflict of interest for referring physician investors,” Jean Mitchell, a health-care economist at Georgetown University who studies doctors’ referral practices, told the WSJ.