In a case decided by the Supreme Court of Tennessee (“Tennessee Supreme Court”) in 2011, the issue was whether the negligence claims of the estate of a deceased nursing home resident against the nursing home and its corporate owners were medical malpractice claims, ordinary negligence claims, or a combination of both. The Tennessee Supreme Court held that the estate’s assertions that the initial assessment of the resident’s condition and the plan of treatment fell short of the nursing home’s duty of care to its patient was subject to the Tennessee Medical Malpractice Act requirements but the allegations that the nursing home’s certified nursing assistants (“CNAs”) failed to comply with the nursing home care plan’s instructions due to a lack of training, understaffing, or other causes, constituted claims of ordinary, common law negligence.
Ordinary Negligence Claim Vs. Medical Malpractice Claim
The Tennessee Supreme Court stated that the elements of common law negligence include (1) a duty of care owed by defendant to plaintiff; (2) conduct below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause. In order to prevail on a claim of medical malpractice, a plaintiff must establish the following statutory elements: (1) the recognized standard of professional care in the specialty and locality in which the defendant practices; (2) that the defendant failed to act in accordance with the applicable standard of care; and (3) that as proximate result of the defendant’s negligent act or omission, the claimant suffered an injury which otherwise would not have occurred. A medical malpractice claimant must establish the statutory elements through the testimony of an expert who meets the qualifications set forth in Tennessee Code Annotated section 29-26-115(b). There is no such requirement for an ordinary negligence claim.
The Tennessee Supreme Court embraced the standard set forth by the New York courts for distinguishing an ordinary negligence claim from one based upon medical malpractice: 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.
The Tennessee Supreme Court went on to state that medical malpractice cases typically involve a medical diagnosis, treatment or other scientific matters. The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring specialized skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of common everyday experience of the trier of fact.
The Tennessee Supreme Court concluded with regard to the case it was deciding that not all care given to patients at nursing home facilities is necessarily related to the rendering of medical care by a medical professional. The assessment of a patient’s condition and the development of a plan of care that determines how often and when a patient needs to be fed, hydrated, bathed, turned, or repositioned may require specialized medical skills, and thus should proceed under the Tennessee Medical Malpractice Act. However, a nursing home’s failure to ensure that its staff, including certified nursing assistants, actually complies with the plan of care and performs services that, however necessary, are routine and nonmedical in nature, falls into the category of ordinary negligence.
Negligence Per Se Claims
The Tennessee Supreme Court also addressed the issue of the estate’s claims of negligence per se based upon violations of certain federal and state nursing home regulations. Specifically, the estate claimed that the Defendants breached their duty of care to the resident by failing to comply with all standards of care required by the Federal Regulations, 42 CFR 483.10, et seq.
The Tennessee Supreme Court summarized the doctrine of negligence per se as follows: The standard of conduct expected of a reasonable person may be prescribed in a statute and, consequently, a violation of the statute may be deemed to be negligence per se. When a statute provides that under certain circumstances particular acts shall or shall not be done, it may be interpreted as fixing a standard of care . . . from which it is negligence to deviate. In order to establish negligence per se, it must be shown that the statute violated was designed to impose a duty or prohibit an act for the benefit of a person or the public. It must also be established that the injured party was within the class of persons that the statute was meant to protect.
The effect of declaring conduct negligent per se is to hold that conduct is negligent as a matter of law, thus requiring plaintiffs to prove only proximate and actual causation and damages. The Tennessee Supreme Court held that a negligence per se claim cannot co-exist with a medical malpractice claim. The estate may not, therefore, use the alleged violations of the federal and state regulations to prove a deviation in the standard of care as a component of the medical malpractice claim. The finding of negligence per se based upon federal and state nursing home regulations would be inconsistent with Tennessee’s General Assembly’s directive that the relevant standard of care for a medical malpractice claim is that existing “in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred.” In consequence, the locality rule, which the legislature intended to apply to private causes of action for medical malpractice, precludes plaintiffs from proceeding on a negligence per se theory for medical malpractice claims based upon alleged violations of nursing home regulations.
The Tennessee Supreme Court noted, however, that an issue remained whether the estate may proceed on a negligence per se theory in support of its claims of ordinary negligence. The Tennessee Supreme Court found that two prerequisites for a negligence per se claim were present in the case before it: the resident belonged to the class of persons the federal and state nursing home regulations were designed to protect, and her injuries were the type that the regulations were designed to prevent. However, other factors apply, including, but not limited to, (1) the nature of the legislative provision; (2) the adequacy of existing remedies; (3) the extent to which recognizing a cause of action in negligence per se would aid, supplement, or interfere with existing remedies; (4) the significance of the purpose that the legislative body was seeking to effectuate in the statute, regulation, or ordinance; (5) the extent of the change in tort law that would result from recognizing the action; and (6) the burden that the new cause of action would place on the judiciary.
The Tennessee Supreme Court decided the issue by concluding that a plaintiff pursuing a claim of ordinary negligence against a nursing home may prove negligence per se by offering proof that the nursing home violated relevant federal and state regulations. The nature of the regulations cited in the complaint suggests that they are directed to obviate the very injuries that the estate alleges to have been suffered by the resident. Moreover, permitting proof of violations of the regulations would supplement instead of replace or interfere with the traditional ordinary negligence action. Requiring the finder of fact to parse through voluminous regulations to determine the standard of care in an ordinary negligence action against a nursing home may not always be the most direct approach toward the establishment of a nursing home’s negligence.
Finally, “[t]he negligence per se doctrine does not create a new cause of action,” but “[r]ather . . . is a form of ordinary negligence that enables the courts to use a penal statute to define a reasonably prudent person’s standard of care.” Thus, permitting plaintiffs to proceed on a negligence per se theory against a nursing home does not burden the judiciary or change Tennessee’s tort law in any significant way. The establishment of a set of licensing requirements for nursing homes and a system of agency prosecution to ensure compliance does not create a new cause of action against nursing homes. Proof of violations of federal and state nursing home regulations is relevant in determining whether a defendant nursing home has breached the standard of care. Therefore, the Tennessee Supreme Court held that the estate may pursue a negligence per se theory with regard to her ordinary negligence claims based upon alleged violations of federal and state nursing home regulations.
Source: Estate of Martha S. French v. Stratford House et al., Supreme Court of Tennessee, No. E2008-00539-SC-R11-CV – Filed January 26, 2011.
If you or a loved one were injured (or worse) as a result of negligence in a nursing home in Tennessee or in another state in the U.S., you should promptly seek the advice of a local Tennessee medical malpractice attorney (Tennessee nursing home claim attorney) or medical malpractice attorney in your state who may agree to investigate the claim on our behalf and file a medical malpractice/nursing home claim on your behalf, if appropriate.
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