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A ‘French Revolution’
Redrawing the Battle Lines in Nursing Home Litigation in the Aftermath of French v. Stratford House
History of the Conflict
According to the Tennessee Supreme Court’s opinion in Gunter v. Lab Corp. of America, the Tennessee Medical Malpractice Act (TMMA) applies to all allegations that bear a “substantial relationship” to the rendition of medical treatment by a medical professional. Additionally, a claim will also be considered subject to the TMMA if “the acts or omissions complained of involve a matter of medical science or art requiring specialized skills not ordinarily possessed by laypersons …”
In defense of lawsuits alleging poor care against nursing facilities in Tennessee, long-term care providers have argued since Gunter that aside from a set of facts that is obviously in the nature of ordinary negligence (i.e., slip and fall from spilled water on the floor), these lawsuits are subject to the statutory requirements of the TMMA because all of the nursing care as well as the related custodial services (mostly provided by certified nursing assistants or CNAs) are intertwined and substantially relate to — if not directly constitute — the rendition of medical treatment by medical professionals. Their position was bolstered on Jan. 29, 2009, with the Eastern Section Court of Appeals’ decision in French v. Stratford House (French I).
In opposition, plaintiffs who initiate these lawsuits have argued that they may maintain claims of both ordinary negligence and medical malpractice in the same lawsuit. Although they allege medical malpractice, they argue that much of the “custodial” care provided to residents is non-medical in nature and is therefore the basis for a separate claim for damages based on ordinary negligence. Their position was bolstered on Feb. 24, 2009, with the Middle Section Court of Appeals’ decision in Smartt v. NHC (Smartt).
Reinforcements for LTC Providers: The Court of Appeals’ Decision in French v. Stratford House
In April 2003, Martha French, a registered nurse, became a resident at the Stratford House Nursing Home after suffering two debilitating strokes. She died approximately four months later, and the administratrix of her estate sued the nursing home and other defendants for personal injuries and wrongful death. Plaintiff brought claims under several of the familiar theories in long-term care litigation:
- ordinary negligence;
- negligence per se;
- violations of the Tennessee Adult Protection Act (TAPA); and
- medical malpractice under the TMMA.
The Eastern Section Court of Appeals upheld the trial court’s dismissal of all of plaintiff’s claims besides medical malpractice, holding that the TMMA provided plaintiff’s exclusive avenue of recovery. The critical inquiry for the court was the distinction between claims of ordinary negligence and medical malpractice.
French I was thus important for long-term care providers in that it held that the following specific factual claims — both of alleged evaluation and negligent care — were all medical in nature according to Gunter’s “substantial relationship” test and therefore subject to the burdens of proof under the TMMA rather than ordinary negligence:
- Evaluation of how a patient needs to be fed or hydrated (filling a patient’s water pitcher, feeding her);
- Whether the patient is at risk for pressure sores (bathing and cleaning patient after incontinence, UTIs);
- How often an at-risk patient needs to be turned (failing to turn and reposition every two hours);
- How to treat pressure ulcers if they develop (development of a stage IV to-the-bone pressure ulcer on the sacrum, failure to treat it properly, severe infection, sepsis as the cause of death);
- Understaffing (how many caregivers are needed to minister to a particular group of patients, allegations of chronic understaffing, one CNA per every 62 residents, care not rendered timely as a result; and
- Care that was given by CNAs (failure to assist in eating, bathing, encouraging residents to drink water and providing it to them, cleaning residents after incontinence, and turning and repositioning).
Essentially, once the Court of Appeals determined that the TMMA controlled plaintiff’s case, it dismissed plaintiff’s negligence per se and TAPA claims as derivatives of ordinary negligence. Turning first to plaintiff’s claims of negligence per se, the court found that state and federal nursing regulations simply could not, in and of themselves, set the applicable standard of care in a medical negligence case. Instead, such proof is required by competent expert testimony under the locality rule of the TMMA.
Next, the Court of Appeals turned to plaintiff’s claims under the TAPA and held that, because the gravamen of plaintiff’s action sounded in medical malpractice, the TAPA did not apply and summary judgment was appropriate as to plaintiff’s TAPA claims. In so finding, the Court of Appeals cited to the remedies section of the TAPA for its express provision that the TAPA does not apply to a cause of action within the scope of the TMMA.
As long-term care providers in Tennessee had long argued, when the TMMA applies to a plaintiff’s cause of action for skilled nursing care and related services, the other ordinary negligence theories above are legally precluded either by their own terms or by operation of law. While this important case solidified the soundness of such arguments, the Middle Section Court of Appeals released a ruling at odds with the rationale and holding of French I a month later.
Reinforcements for Plaintiffs: The Court of Appeals’ Decision in Smartt v. NHC
In Smartt v. NHC, the Middle Section Court of Appeals considered a case alleging failures of care very similar to those addressed in French I and reached a different conclusion regarding the nature of plaintiff’s claims.
The plaintiff in Smartt filed suit against a nursing facility and related entities, seeking compensatory and punitive damages and asserting claims for ordinary negligence (including TAPA violations) as well as medical malpractice. Like the defendants in French I, the defendants in Smartt argued at the trial level that the TMMA provided plaintiff’s exclusive avenue of recovery. The trial court dismissed plaintiff’s TAPA claim but allowed the jury to consider and assess liability on ordinary negligence as well as medical malpractice as to all defendants. The jury awarded compensatory damages of roughly $820,000 on the ordinary negligence claim and nearly $3.3 million on the medical malpractice claim against all defendants. Unlike the court in French I, the court in Smartt drew a distinction between services aimed at diagnosing, treating and preventing injuries and illnesses (medical malpractice) versus mere “custodial services” or “activities of daily living” such as feeding, hydrating, cleaning and grooming (ordinary negligence).
Smartt was thus important for plaintiffs in holding that certain custodial services were not subject to the TMMA but rather principles of ordinary negligence that could be assessed by laypersons without the necessity of expert proof. The Court of Appeals held that the trial court properly denied defendant’s directed verdict motion on the ordinary negligence claim. The Middle Section Court of Appeals did not, however, reference the Eastern Section’s opinion in French I released only a month prior.
The Turning of the Tide: The Supreme Court’s Decision in French v. Stratford House
Seven months after the Court of Appeals decided French I, the Supreme Court specifically addressed this conflict between French I and Smartt and granted certiorari “in an effort to secure uniformity in the treatment of this and other comparable cases.” Oral arguments were heard on May 4, 2010, and the Tennessee Supreme Court rendered its decision on Jan. 26, 2011, in French v. Stratford House (French II), weighing in primarily on the conflict between long-term care providers and plaintiffs regarding whether allegations of injuries as a result of “custodial care” received in nursing facilities will be considered ordinary negligence or medical malpractice.
In French II, the Supreme Court held that the plaintiff was entitled to pursue claims based upon both medical malpractice and ordinary negligence. Invoking Gunter’s substantial relationship test, the court reasoned that the alleged failures of the CNAs in providing “custodial services” as set forth in the resident’s care plan constituted “basic care” and did not “substantially relate to the rendition of medical treatment by a medical professional.” The majority “simply disagree[d] with [Justice Koch’s] dissent that the alleged acts and omissions of the CNAs, as set forth in the complaint in this case, [were] ‘substantially related to the rendition of medical treatment by a medical professional.’”
Specifically, employing a rationale similar to that of the Middle Section Court of Appeals in Smartt, the Supreme Court decided that acts involving assessment and development of a care plan (i.e., how often and when a patient needs to be fed, hydrated, turned and repositioned, or bathed) should proceed under the TMMA, while acts and/or omissions in failing to actually carry out that care plan sound in ordinary negligence. Notably, the Supreme Court also stated that the failure of the CNAs to carry out that care plan could be due to corporate or administrative decisions regarding a lack of training, understaffing, or other causes. Citing relevant case law, the court stated that these additional areas of alleged failures constituted ordinary negligence in this particular case. The court reiterated that a relevant factor in comparing medical malpractice with ordinary negligence is “whether the defendant’s acts or omissions relate to a particular patient or to an entire group of persons.” Indicating that liability may therefore exist based on certain administrative or corporate decisions to the extent they adversely affect resident care, the court agreed with its recent precedent that even health care providers who do not provide direct hands-on care may nonetheless be held directly liable to their patients.
Despite this increased scrutiny regarding corporate and administrative decisions and the accompanying heightened levels of exposure during the discovery and pre-trial phases of litigation as a result of French II, long-term care providers will continue to assert challenges to plaintiffs’ allegations of “ordinary negligence” to the extent that the alleged injuries require expert proof on the elements of standard of care, breach, causation and damages. Importantly, French II does not stand for the proposition that care and treatment provided by CNAs can never be subject to the TMMA. As the Supreme Court stated, “[t]o the contrary … the TMMA may apply to nonphysicians such as CNAs if they are involved in the medical treatment of patients.”
As a subcategory of the ordinary negligence analysis, the Supreme Court also disagreed with the analysis of the Court of Appeals in French I regarding applicability of the TAPA as well as the alleged violations of federal and state nursing home regulations. Finding that both of these claims were viable as alternative theories under an ordinary negligence analysis, the court ruled that although plaintiff may not use these theories to establish proof of her medical malpractice claim, she may use them to establish proof of her ordinary negligence claim. Thus, plaintiffs can now rely on state and federal regulations as relevant to the question of whether a nursing home failed to comply with the standard of care for ordinary negligence. Plaintiffs may also bring claims under the TAPA (including claims for attorney fees, costs and statutory damages) based upon an ordinary negligence theory.
While French II has provided some guidance for nursing home plaintiffs and defendants regarding the propriety of certain recurrent allegations, ambiguity remains. Each lawsuit must still be considered upon its own facts and Tennessee’s “gravamen” test under Gunter must still be applied to determine whether a particular act or omission is “substantially related to the rendition of medical treatment by a medical professional.” Therein lies the problem with the Supreme Court’s opinion: CNAs and other nursing home staff who care for residents do not operate in a vacuum; licensed physicians must decide and order appropriate care to be provided to each resident who is placed in a nursing home by the terms of a physician’s order. Thus, it is not without reason that the term “nursing home” is defined by Tennessee law as any institution providing “skilled nursing care and related medical services” on a 24-hour basis to persons not acutely ill. Plaintiffs who sue nursing homes for failures of care routinely make allegations which, if analyzed properly, turn upon acts and/or omissions occurring within a facility whose very function was and is, by legal definition, to render skilled care of a specifically medical nature to persons who need treatment for pre-existing medical conditions.
Accordingly, certain care provided by CNAs, although “custodial” in nature, is more likely than not to be substantially related to that specific resident’s medical treatment as ordered by her physician; this “custodial care” unquestionably affects the resident’s medical condition and alleged injuries and should therefore be subject to the TMMA. Even with proper jury instructions, jurors are sure to be as confounded as judges and lawyers in attempting to parse out injuries and damages caused by medical malpractice on the one hand and those caused by supposed “ordinary negligence” on the other. These distinctions should generally be made by the trial court as a matter of law prior to trial rather than being submitted to the jury for consideration of multiple claims.
In his dissent in French II, Justice Koch addressed this very issue and stressed the problem with proof of causation, pointing out that plaintiffs, without providing expert proof, should not be able to assert claims regarding certain types of injuries which were, in his opinion, substantially related to medical treatment. Justice Koch stated:
Like the trial court and Court of Appeals, I cannot envision how laypersons, using only their common, everyday experience without the assistance of expert medical proof, could determine (1) whether Stratford House was properly staffed, (2) whether Ms. French’s pressure sores were caused by inadequate care, (3) whether Ms. French’s medical condition would have caused her to develop pressure sores notwithstanding the care she received, (4) whether Ms. French’s pressure sores would have failed to heal and would have worsened despite the care she received, and (5) whether Ms. French’s pressure sores caused the sepsis that resulted in her death.
Conclusion: Changing the Rules of Engagement
The rules of engagement in long-term care litigation are changing, particularly because many of plaintiff’s claims and allegations are no longer subject to dismissal via a pre-answer motion to dismiss. Facilities, management organizations, and related entities will be subject to multiple claims for a longer pre-trial course as well as increased defense costs and increased overall liability. In response to French II, below is a nonexhaustive list of areas that will continue to receive further evaluation and modification of defense strategies:
- Applicability of the pre-suit notice requirements contained within the recent TMMA amendments to plaintiffs’ claims of improper care (does not apply to ordinary negligence claims);
- Increased exposure of multiple defendants in long-term care lawsuits;
- Likely increased public activity/advertisements from plaintiffs’ attorneys in Tennessee regarding nursing home litigation;
- Policy concerns related to the deterrent effect on health care providers’ willingness to do business in Tennessee;
- Increased burden on the health care system with rising costs and expenses; associated increase in defense and risk management costs diverting necessary resources from senior care;
- Need for valid and binding alternative dispute resolution agreements and ADR programs review/implementation; and
- Need for meaningful tort reform.
In the aftermath of the Supreme Court’s decision in French II, long-term care providers in Tennessee have unfortunately been stripped of several defenses both during the trial and pre-trial stages of litigation. The facts of each case are different but as a general rule, and as nursing home litigation battles on in Tennessee, providers will likely not be asserting pre-answer motions to dismiss regarding plaintiffs’ claims of ordinary negligence based on the “custodial” care and services as contemplated in French. Motions to dismiss plaintiffs’ claims for recovery under other theories have not been affected by French II and such claims are still subject to dismissal based on the allegations and facts of each case. Additionally, plaintiffs’ claims of ordinary negligence remain subject to dismissal where applicable at the summary judgment stage. As noted above, the Supreme Court’s opinion also provides a welcome opportunity for providers to address, review, and/or implement arbitration programs that are aimed at reducing costs and expenses for all parties involved in a dispute.
While this “French Revolution” may have weakened the front lines of defense for health care providers, the legacy of French II on the defense of claims has yet to be determined. Even in cases where plaintiffs gain ground through multiple avenues of recovery, defendants continue the good fight of defending these expanded claims. Delivering quality care in order to meet the needs of our seniors remains the ultimate objective.
- Gunter v. Lab Corp. of America, 121 S.W.3d 636 (Tenn. 2003).
- Tenn. Code Ann. § 29-26-115 et seq.
- Peete v. Shelby County Health Care Corp., 938 S.W.2d 693 (Tenn. Ct. App. 1996).
- French v. Stratford House, 2009 WL 211898 (Tenn. Ct. App. Jan. 29, 2009).
- Smartt v. NHC, 2009 WL 482475 (Tenn. Ct. App. Feb. 24, 2009).
- Tenn. Code Ann. § 29-26-115(a)(1).
- Tenn. Code Ann. 71-6-120(g) (stating, “This section shall not apply to a cause of action within the scope of title 29, chapter 26; such cause of action shall be governed solely by title 29, chapter 26.”).
- Smartt, 2009 WL 482475 at * 9.
- French v. Stratford House, 2011 WL 238819, —- S.W.3d —- at * 4 (Tenn. Jan 26, 2011).
- Id. at * 8.
- Id. at * 8, n. 12.
- Id. at * 9.
- Id. at * 8, n. 13 (citations omitted).
- Id. at * 8, n. 13 (This direct liability exists independent of any liability based on the negligence of the providers’ employees or agents)(citing Barkes v. River Park Hosp. Inc., 2010 WL 4117151, —- S.W.3d —- (Tenn. Oct. 20, 2010).
- Id. at * 8, n. 12.
- TTenn. Code Ann. § 68-11-201(29)(A) & (B)(emphasis added).
(A) ‘Nursing home’ means any institution, place, building or agency represented and held out to the general public for the express or implied purpose of providing care for one (1) or more nonrelated persons who are not acutely ill, but who do require skilled nursing care and related medical services.
- Victory for medical providers may lie with the Tennessee General Assembly, which is considering HB 2008/SB 1522 introduced February 17, 2011 as the “Tennessee Civil Justice Act of 2011.” Co-sponsors Rep. Gerald McCormick (R – Chattanooga) and Sen. Mark Norris (R - Collierville) propose amendments to the definitions of “Health care provider” and “Health care liability action.” Section 5 of the bill provides, in part, that new definitions include:
“Health care provider” means …(4) the employee of a health care provider involved in the provision of health care:, …and
“Health care liability action” means any civil action, including claims against the state, alleging that a health care provider or providers have caused an injury related to the provision of or failure to provide health care services, regardless of the theory of liability on which the action is based. Health care services includes not only care by physicians, nurses, licensed practical nurses, orderlies, certified nursing assistants, technicians and other agents, employees and representatives of the provider, but also includes staffing, custodial or basic care, positioning, hydration, grooming and similar patient services. (emphasis added).
- Id. at *20.
PETER B. WINTERBURN practices law in Memphis at Adelman Law Firm PLLC, concentrating in the areas of health care law, nursing home and medical malpractice defense litigation. He received his law degree from the University of Memphis Cecil C. Humphreys School of Law in 2006, where he served as editor-in-chief of the Tennessee Journal of Practice and Procedure and as a member of the Moot Court Board.
REBECCA ADELMAN is the principal of Adelman Law Firm PLLC and Adelman Risk Management Group LLC in Memphis, which represent regional and national clients in the areas of insurance defense and business litigation with special focus on health care law and nursing home defense litigation. Adelman received a master’s degree in economics in 1987 from the Universite’ of Aix-Marseille II and her law degree from the University of Denver Strum College of Law in 1990. Adelman Law Firm is of counsel to Quintairos, Prieto, Wood & Boyer PA, and together provides services to national and regional clients.