The Case: Watkins v. Affiliated Internists, P.C., No. M2008-01205-COA-R3- CV, 2009 WL 5173716 (Tenn. Ct. App. Dec. 29, 2009).
The Basic Facts: Claim was filed against physician assistant for medical malpractice. Negligence per se claim was later asserted against the supervising physician for failure to supervise the activities of the assistant.
The Bottom Line:
· “Next, we consider the trial court’s denial of the Plaintiff’s motion to amend the complaint to assert a negligence claim and a negligence per se claim based on Dr. Pardue’s violations of Tennessee regulations applicable to physicians who supervise physician assistants. The regulations are promulgated jointly by the Tennessee Board of Medical Examiners pursuant to Tennessee Code Annotated § 63-6-101, and by the Committee on Physician Assistants pursuant to the Physician Assistants Act, Tennessee Code Annotated § 63-19-101, et seq.” 2009 WL 5173716, at *21.
· “The Restatement (Third) of Torts § 14 on negligence per se, states: ‘An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.’ Restatement (Third) of Torts § 14 (2005). This Court has explained:
To prevail on a negligence per se theory, the plaintiff may, in certain circumstances...rely on a statute or regulation as proof of the applicable standard of care. Proof of ‘[a]n unexplained violation of that standard renders the defendant negligent as a matter of law,’ so long as the violation was the proximate cause of the injuries and the alleged injuries were of the type which the statute was designed to prevent.
King v. Danek Med., Inc., 37 S.W.3d 429, 459 (Tenn. Ct. App. 2000) (quoting McNeil Pharm. v. Hawkins, 686 A.2d 567, 578 (D.C.1996)).” Id. at *21-22.