"Call the Champs!"
Nahon, Saharovich, & Trotz

Recent Tennessee Law Affects Claims Brought for Nursing Home Negligence

The Tennessee legislature enacted a statute that transforms a lawsuit alleging that a “health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based” is to be considered a healthcare liability action only.  No longer can these cases be referred to as medical malpractice cases under Tennessee law. The statute directs us to call these a “healthcare liability action,” no matter what is the actual theory of the case.

Forcing all causes of action that occur in a healthcare setting into “healthcare liability actions” matters quite a bit because it can transform the conduct of businessmen into “healthcare professionals.”   Thus, the standard of proof for a Plaintiff to prove that a “healthcare professional” acted with neglect requires expert proof.  Thus, a businessman making a decision to maximize profits by understaffing a nursing home must be called a “healthcare professional” because of this Tennessee law.

An example of how Tennessee law would work can be found in a New Mexico lawsuit where allegations of systemic understaffing in nursing homes by Preferred Care Partners Management Group have been alleged.  Understaffing is a serious problem in nursing home and long term care settings because any individual caregiver can only care for a certain amount of people before their work product declines and starts to suffer.  Thus, it is extremely important that nursing homes employ an adequate number of caregivers so a certain minimum amount of care is received by each patient.

Unfortunately, the business decision made by ownership and management is almost always to maximize profits.  The easiest way to do that in a nursing home setting is to cut payroll, which limits the number of caregivers available to treat residents.  In the New Mexico case, Preferred Care Partners Management Group alleged that “their caregivers are extraordinarily compassionate” without actually discussing the number of caregivers treating residents.   When understaffing happens, it is almost inevitable that the caregivers will be overwhelmed with work and unable to provide adequate care to their residents.  The New Mexico case is still ongoing.

The same New Mexico case tried in Tennessee would be considered a “healthcare liability action.” The statute is clear.  If the service to a person, here a nursing home resident, is based on a healthcare service, then the cause of action transforms into a healthcare liability action. As such, the statute would require a Plaintiff to get expert proof to prove that the businessman’s decision to cut payroll is a “healthcare liability” act.

This deliberately confusing morass of terminology, proof, and who is a “healthcare professional” threatens to cut off the rights of elderly residents who most require protection.  Fortunately, Tennessee courts have intervened and provided some clarity on this subject. In Newman v. Guardian Healthcare Providers, the Plaintiff claimed that the Plaintiff was assaulted by a mentally disturbed patient at a psychiatric hospital.  The Plaintiff did not obtain an expert witness and argued that one was not necessary in their case.  The Court agreed with the general proposition that “expert testimony is not required where the act of alleged wrongful conduct lies within the common knowledge of a layperson.” This is otherwise known as the common knowledge exception in Tennessee.  While the Plaintiff’s case was ultimately dismissed, the holding is encouraging for plaintiffs in general.  If the cause of action does not require medical proof, then arguably expert proof would not be needed.

Now, Tennessee courts have provided an avenue for experienced and savvy attorneys to legitimately argue that the decisions of businessmen in their guise as “healthcare professionals” have committed acts of neglect.  Even though the requirements of the healthcare liability statute have to be met to file the lawsuit, the case may be able to proceed in a more traditional context without the requirement of expert proof.  Thus, a case such as the one being tried in New Mexico can arguably still be tried in Tennessee, so long as the Plaintiff’s attorney is creative, knowledgeable, and determined to fight for the client’s rights.