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§47.5 Cases Against Health Care Providers That Are Not Medical Malpractice Cases

The Case:  Gunter v. Laboratory Corp.of America, 121 S.W.3d 636 (Tenn. 2003).


The Basic Facts:  Plaintiff claimed defendant did not properly perform blood test that mistakenly identified him as a parent of a child born to a woman with whom he denied having sexual relations.


The Bottom Line:


·       “To determine which limitations statute controls Gunter’s claim against the laboratory, we must first decide whether the claim sounds in medical malpractice or negligence.  ‘[T]he distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and ‘no rigid analytical line separates the two.’”  Weiner v. Lenox Hill Hosp., 673 N.E.2d 914, 916 (N.Y. 1996) (quoting Scott v. Uljanov, 541 N.E.2d 398, 399 (N.Y. 1989)).  Tennessee has attempted to distinguish medical malpractice from negligence.  See Tenn. Code Ann. § 29-26-115; Bradshaw v. Daniel, 854 S.W.2d 865, 870 (Tenn. 1993).”  121 S.W.3d at 639.


·       “A claim of common law negligence requires proof of the following elements: a duty of care owed by the defendant to the plaintiff; conduct falling below the applicable standard of care that amounts to a breach of that duty; an injury or loss; cause in fact; and proximate or legal cause.  White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998).  Medical malpractice actions are specifically controlled by the medical malpractice statute, Tennessee Code Annotated section 29-26-115, which essentially codifies the common law elements of negligence.  Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993).  Section 29-26-115 places on the claimant the burden of proving the following statutory elements: (1) the recognized standard of professional care; (2) that the defendant failed to act in accordance with the applicable standard of care; and (3) that as a proximate result of the defendant’s negligent act or omission, the claimant suffered an injury which otherwise would not have occurred.  See Moon v. St. Thomas Hosp., 983 S.W.2d 225, 229 (Tenn. 1998).”  Id. at 639-40 (footnote omitted)


·       “In distinguishing between the two claims, it should be noted that not all cases involving health or medical entities sound in medical malpractice.  See Pullins v. Fentress County Gen. Hosp., 594 S.W.2d 663, 669 (Tenn. 1979) (indicating that medical malpractice statutes did not apply in the determination of whether hospital breached its duty to keep hospital free from spiders); see also Bradshaw v. Daniel, 854 S.W.2d 865, 870 (Tenn. 1993) (‘[A physician-patient relationship] is not necessary for the maintenance of an action based on negligence, and this Court has specifically recognized that a physician may owe a duty to a non-patient third party for injuries caused by the physician’s negligence . . . .’); Peete v. Shelby County Health Care Corp., 938 S.W.2d 693, 696 (Tenn. Ct. App. 1996) (holding that a complaint by patient that a piece of orthopedic suspension bar above her hospital bed fell and struck the top of her head was a claim for ordinary negligence, not medical malpractice, and thus patient was not required to prove statutory elements of malpractice action).  At the other end of the spectrum, the medical malpractice statute may extend to acts of non-physicians, such as nurses, when they are involved in the medical treatment of a patient.  Cf. Seavers v. Methodist Med. Ctr., 9 S.W.3d 86, 96 (Tenn. 1999) (finding that based on the doctrine of res ipsa loquitur, the appellant raised a genuine issue of material fact that nurses negligently restrained or positioned patient’s arm while she was under their care, resulting in the damage to her right ulnar nerve).”  Id.


·       “Although this Court has not specifically articulated the analysis to be used to distinguish an ordinary negligence claim from a medical malpractice claim, the distinguishing feature is evident from our review of the previously mentioned cases.  When a plaintiff’s claim is for injuries resulting from negligent medical treatment, the claim sounds in medical malpractice.  See, e.g.Seavers, 9 S.W.3d at 86.  When a plaintiff’s claim is for injuries resulting from negligent acts that did not affect the medical treatment of a patient, the claim sounds in ordinary negligence.  See, e.g.Bradshaw, 854 S.W.2d at 870.  The New York courts have specifically addressed this issue and have concluded as follows:


a claim sounds in medical malpractice when the challenged conduct ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician.’  By contrast, when ‘the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the hospital’s failure in fulfilling a different duty,’ the claim sounds in negligence.


Weiner, 673 N.E.2d at 916 (quoting Bleiler v. Bodnar, 479 N.E.2d 230, 234-35 (N.Y. 1985)).  We embrace this analysis and hold that when a claim alleges negligent conduct which constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional, the medical malpractice statute is applicable.  Conversely, when the conduct alleged is not substantially related to the rendition of medical treatment by a medical professional, the medical malpractice statute does not apply.”  Id. at 640-41.


·       “The crucial question here, then, is whether the services performed by LabCorp for Gunter bear a substantial relationship to the rendition of medical treatment.  Of course, there may be circumstances where the analysis of a person’s blood could be substantially related to the rendition of medical treatment.  But when that analysis is performed to obtain a DNA profile for purposes of paternity determination, no rendition of medical treatment is involved.  See, e.g.Smith v. Katzman, 611 N.E.2d 1013, 1014 (Ohio Ct. App. 1992) (recognizing precedent that ‘negligent blood-grouping analysis [done for a paternity suit] is not a claim that arises out of the medical diagnoses, care or treatment of any person’).  Thus, the core issue in this case —the adequacy of the laboratory’s blood testing procedures—does not implicate issues of medical competence or judgment linked to Gunter’s treatment.  Accordingly, we hold that the medical malpractice statute and its concomitant one-year limitation of actions have no application to Gunter’s claim.”  Id. at 641.


Other Sources of Note:  Estate of Hardin v. Broadmore Senior Services, LLC, No. Nos. 3:05-0382, 3:06-0481, 2007 WL 2112670  (M. D. Tenn. 2007) (claims asserted against assisted living center were medical malpractice claims); Draper v. Westerfield, 181 S.W.3d 283 (Tenn. 2005) (claim against doctor for failing to report child abuse was not a medical malpractice claim); Smartt v. NHC Healthcare/McMinnville, LLC, No. M2007-02026-COA-R3-CV, 2009 WL 482475 (Tenn. Ct. App. Feb. 24, 2009) (affirming trial court’s decision to permit ordinary negligence claims in nursing home case finding reasonable minds could differ as to whether an action for ordinary negligence existed in this case where some of the care patient received plaintiffs could have provided themselves); Cannon v. McKendree Village, Inc., 295 S.W.3d 278 (Tenn. Ct. App. 2008), perm. appeal denied, (Jun. 1, 2009) (holding medical malpractice act applied to claims against nursing home arising out of resident’s fall from foot of bed and resulting injuries); Cunningham v. Jones, No. M2007-01112-COA-R3-CV, 2008 WL 695871 (Tenn. Ct. App. Mar. 14, 2008) (plaintiff sued radiologist for erroneously telling her health insurer that she was suffering from renal failure, which allegedly caused her to be unable to obtain private health insurance; court determined that the case was not a medical malpractice case); Turner v. Steriltek, Inc., No. M2006-01816-COA-R3-CV, 2007 WL 4523157 (Tenn. Ct. App. Dec. 20, 2007)  (failure to provide sterile batteries and medical instruments is not a medical negligence claim); Ward v. Glover, 206 S.W.3d 17 (Tenn. Ct. App. 2006) (claims against obstetrician and anesthesiology group sounded in medical malpractice).


Recent Cases:  Gentry v. Wagner, No. M2008-02369-COA-R3-CV, 2009 WL 1910959 (Tenn. Ct. App. Jun. 30, 2009) (affirming summary judgment finding implied physician-patient relationship where physician performed independent medical examination in personal injury case and finding cause of action for alleged injuries sustained during examination is governed by Tennessee Medical Malpractice Act); Johnsey v. Northbrooke Manor, Inc., No. W2008-01118-COA-R3-CV, 2009 WL 1349202 (Tenn. Ct. App. May 14, 2009) (finding plaintiff’s claims against nursing home are for medical malpractice and not ordinary negligence but reversing summary judgment finding no scheduling orders in place that would prevent plaintiff from identifying additional witnesses to overcome summary judgment); Estate of French v. The Stratford House, No. E2008-00539-COA-R3-CV, 2009 WL 211898 (Tenn. Ct. App. Jan. 29, 2009) (finding case against nursing home for personal injuries and wrongful death was grounded in medical malpractice).


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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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