Hinkle v. Kindred Hosp.
| Decision Date | 31 August 2012 |
| Docket Number | No. M2010-02499-COA-R3-CV,M2010-02499-COA-R3-CV |
| Parties | DORIS HINKLE, ET AL. v. KINDRED HOSPITAL, ET AL. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Davidson County
The widow of a man who suffered a devastating injury while undergoing a medical procedure in the defendant hospital filed suit against the hospital and the doctor who ordered the procedure, claiming medical malpractice, failure to obtain informed consent, and battery. The defendant hospital filed a motion for summary judgment, and the defendant doctor filed a motion to dismiss, both arguing that the plaintiff's malpractice claims had to be dismissed because she failed to strictly comply with requirements of the Medical Malpractice Act, specifically Tenn. Code Ann. § 29-26-121 (a)(1) (60-day notice) and §29-26-122(a) (). The trial court granted both motions in part and denied them in part. We reverse the trial court's dismissal of the medical malpractice claims against both defendants as well as the related claims. We also reverse the trial court's dismissal of the claim against the defendant doctor for failure to obtain the patient's informed consent, but we affirm its dismissal of the medical battery claim against the defendant doctor.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed in Part, Affirmed in Part, and Remanded
RICHARD H. DINKINS, J., filed a concurring in part and dissenting in part opinion.
Bede O. M. Anyanwu, Jackson, Tennessee, for the appellant, Doris Hinkle, Executrix of the estate of Muriel Jesse Hinkle deceased, and Doris Hinkle.
Heidi Anne Barcus, Hillary Browning Jones, Daniel T. Swanson, Knoxville, Tennessee, for the appellee, Dr. Tuan Quoc Nguyen; Harry Peoples Ogden, Kenny L. Saffles, Carrie C. McCutcheon, Knoxville, Tennessee, for the appellee, Kindred Hospital.
This case arose from a severe physical injury suffered by Mr. Muriel Jesse Hinkle in his first day as a patient at the defendant Kindred Hospital. The following account of the events leading up to and following that injury is largely derived from the allegations of the complaint. Since the proceedings below were decided on a motion for summary judgment and a motion to dismiss, we must take those allegations as true for the purposes of this appeal.
Mr. Hinkle underwent an elective aneurysm repair and a cardiac bypass at Vanderbilt University Medical Center. He suffered some post-surgical complications which required ventilator support and the placement of a tracheotomy. He remained at Vanderbilt for two weeks. On June 29, 2009, he was transferred to the defendant Kindred Hospital for rehabilitation and to wean him off the ventilator. Prior to his discharge and transfer, he was given a laxative, resulting in a soft stool that was controlled with bed pads at Vanderbilt.
When Mr. Hinkle arrived at Kindred Hospital, the defendant Dr. Tuan Quoc Nguyen ordered that a Bowel Management System (BMS) rectal tube be inserted in his rectum.1 When the nursing staff arrived to perform the procedure, Mr. Hinkle refused to allow the insertion of the tube. Because the tracheotomy tube left him unable to speak, he signaled his refusal with hand gestures. Mr. Hinkle's sixteen year old son, who was also present in the room, told the staff that Mr. Hinkle did not want the BMS tube to be inserted and did not consent to the procedure. But the young man was ordered to leave the room immediately so the medical staff could insert the tube.
Mr. Hinkle's wife, Doris Hinkle, had a power of attorney to make medical decisions on behalf of her husband. But she was not at Kindred Hospital when her husband arrived. She arrived half an hour after the BMS tube was inserted in her husband's rectum. After she arrived, she signed a three page Admission Agreement that included a general consent fortreatment. The following day, she signed an Alternate Dispute Resolution agreement.
Upon insertion of the BMS tube, Mr. Hinkle immediately experienced excruciating pain in his rectum and started to bleed. He bled profusely the next day because parts of the BMS tube had separated. The hospital staff tried to correct the problem, but could not. On July 1, 2009, the attending physician transferred Mr. Hinkle to Vanderbilt Medical Center by ambulance, because Kindred Hospital did not have the equipment needed to remove the part of the tube that remained in the patient's rectum.
Mr. Hinkle underwent four surgical procedures at Vanderbilt Medical Center to repair his rectal wall, which had been damaged by the BMS tube insertion. He also received numerous transfusions because of the blood loss he had suffered. Although he was eventually released from the hospital, the injury he suffered continued to negatively affect the quality of his life. He suffered incontinence and impotence, had to wear a diaper, could not swim or bathe like every one else, and faced public embarrassment. Mr. Hinkle passed away on March 29, 2010, at the age of 46.
Mr. and Ms. Hinkle retained an attorney prior to Mr. Hinkle's death. The attorney sent a registered letter to the Chief Administrator of Kindred Hospital, Mike Moody, on November 5, 2009. The attorney recited the basic facts regarding the incident with the BMS tube and stated that his clients had contacted the administrator repeatedly to try to resolve the matter, but that the administrator had failed to acknowledge their concerns. He warned that if the administrator failed to respond to his letter within seven days of its receipt, his clients would have "no other option, but to resort to the legal forum to resolve this matter."
On November 12, 2009, the Hinkles' attorney received a letter from the hospital's attorney acknowledging receipt of the letter of November 5 and setting out contact information for future communications. A subsequent exchange of letters showed that the parties shared relevant medical information. Mr. Hinkle's medical records from Vanderbilt Medical Center were sent to the Hospital's attorney and the medical records from Kindred Hospital were sent to the Hinkles' attorney. Settlement negotiations were also conducted by letter. Mr. Hinkle died in the midst of those negotiations.
The Kindred Hospital website and its letterhead stationery listed Dr. Nguyen as a member of its medical staff. Ms. Hinkle's attorney sent a registered letter to the doctor on April 9, 2010 using the hospital's address, with return receipt requested. The letter was returned undelivered. On April 23, 2010, the attorney faxed a copy of the letter to Dr. Nguyen at Kindred Hospital's fax number. On April 27, 2010, Ms. Hinkle's attorneyreceived a letter from the hospital's attorney, stating that the faxed letter had been sent to Dr. Nguyen's employer.2 On May 4, 2010, Dr. Nguyen's professional liability insurer sent a letter to Mr. Hinkle's attorney, giving the name of a claims specialist representing Dr. Nguyen's interests in the matter, and asking for copies of his medical records and a signed HIPAA3 release for medical information. The documents were sent as requested to the insurance company.
On June 28, 2010, Doris Hinkle (hereinafter "Plaintiff") filed a complaint individually and as executor of her late husband's estate against Kindred Hospital and Dr. Nguyen. Although the negotiations between the parties had not yet ended, Plaintiff asserts that the complaint was filed in order to prevent the statute of limitations from extinguishing her legal remedies. The complaint recited the operative facts set out above and asserted claims against both defendants for medical malpractice, lack of informed consent, battery, failure to train and supervise, and loss of consortium. The complaint also declared that notice of the potential claim had been given to the defendants by registered mail on November 5, 2009 and April 9, 2010.
The complaint was accompanied by the affidavit of Dr. Gift Eze, a doctor of internal medicine practicing in Jackson, Tennessee. Dr. Eze stated that he had knowledge and experience of the standard of medical care for patients with diarrhea, including the placement and use of the Bowel Management System device and similar rectal tubes. He testified that it was a breach of the standard of care for a doctor to order insertion of a BMS tube without first-hand knowledge of the condition of the patient's rectum, that Mr. Hinkle was not an appropriate candidate for the procedure because of a prolapsed hemorrhoid, and that the nursing staff had improperly inserted the tube.
Kindred Hospital responded to each of the claims raised by Ms. Hinkle in a motion for summary judgment filed on August 23, 2010. The hospital asserted that Plaintiff had failed to fulfill the statutory notice requirements for filing a medical malpractice claim set out in Tenn. Code Ann. § 29-26-121 and § 29-26-122; that Kindred Hospital had no legal duty to obtain informed consent; that there was no battery because there was a signed consent for treatment; that failure to train and supervise and loss of consortium were not independent causes of action, but were derived from the underlying claim for medical malpractice; andthat those derivative claims therefore had to be dismissed because of the statutory defects in the filing of the malpractice claims.
Dr. Nguyen filed a motion to dismiss for failure to state a claim under Tenn. R. Civ. P. 12.02(6) on August 25, 2010. He repeated essentially the same arguments that had been presented in the Hospital's motion, with most of the focus likewise on the plaintiff's alleged failure to fully comply with the requirements of the Medical Malpractice Act set out in Tenn. Code Ann. § 29-26-121 and § 29-26-122.
The hearing on the two motions was conducted on October 15, 2010. The defendants argued that...
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