In most states, the legal requirements a Plaintiff must meet to bring a medical malpractice claim are similar if not identical to what is required in order to bring a claim against a nursing home or assisted living facility. One distinction between these types of cases, however, has been in the numerous claims and legal theories of recovery that Plaintiffs have historically brought against long term care providers in the same complaint. Some states have enacted legislation in order to end the distinction between traditional “medical malpractice” claims and Adult Protection Act claims, Negligence Per Se claims, and so-called “custodial care” or ordinary negligence claims against nursing facilities. For instance, the Tennessee Civil Justice Act of 2011 deleted the term “medical malpractice” from the Tennessee code books altogether. It was replaced, instead, with a broader cause of action called a “health care liability action.” Some notable provisions of the Act are as follows:
- There is no longer any formal claim called “medical malpractice”;
- “Health care liability action” is a defined term in the statute and includes any civil action regardless of the theory of liability on which the action is based alleging that a health care provider caused an injury related to the provision of, or failure to provide “health care services.”
- “Health care provider” is a defined term and includes physicians and nurses but now also specifically includes LPNs, advance practice nurses, physician assistants, nursing technicians, pharmacy technicians, orderlies, and CNAs.
- “Health care services” is a defined term and includes care provided not only by physicians and nurses but now also specifically includes care provided by LPNs, pharmacists, orderlies, CNAs, advance practice nurses, physicians assistants, nursing technicians and also includes staffing, custodial or basic care, positioning, hydration and similar patient services.
- Long term care facilities and their employees, such as LPNs, CNAs, and orderlies are “health care providers” whose care and services are subject to the statute’s requirements.
- Many claims which traditionally fell under ordinary negligence (i.e. care provided in a nursing home by CNAs) are now defined as health care liability claims.
- A Plaintiff must bring such an action in accordance with the provisions of this Act.
Regarding the change in the law, one Tennessee opinion, Parker v. Portland Nursing & Nursing Rehab, 2012 Tenn. App. LEXIS 606, FN. 4 (Tenn. Ct. App. Aug. 30, 2012), is instructive because the case was decided after passage of the Civil Justice Act but plaintiff’s claims accrued prior to enactment. The plaintiff initially sued the defendant nursing homes for ordinary negligence before amending her complaint to add a medical malpractice claim. The Court allowed the amendment and applied the prior law (distinguishing between ordinary negligence (custodial care) and medical malpractice) while acknowledging the change in the law for claims that accrued after the relevant date of the Act. The Court noted: “. . .[C]laims for ordinary negligence and medical malpractice are separate and distinct causes of action. . .” Importantly, however, the Court added: “Both parties note that the passage of the Tennessee Civil Justice Act of 2011 ended this distinction and created a new cause of action of a "health care liability" claim.” (See 2011 Tenn. Pub. Acts ch. 510). Id. at FN 4 (emphasis added). Clearly, the “Civil Justice Act” replaced “medical malpractice” and expanded the definition of a “health care liability claim” to include the type of claims commonly alleged against nursing homes and long term care providers.
For those interested in further discussion of this topic and learning other ways in which nursing home/ALF litigation is different from medical malpractice litigation, DRI’s Nursing Home/ALF seminar is right around the corner – September 10-11, 2015 at The Venetian/Palazzo Resort Hotel in Las Vegas, Nevada. Among the many areas discussed, there will be presentation regarding the business side of defending nursing home cases, how plaintiffs’ themes have developed and evolved, and tips and techniques for defending these types of cases from inception through trial. This is the preeminent seminar for attorneys in private practice, in-house counsel, claims specialists, and other professionals involved in the defense of claims against long-term care facilities, assisted living facilities, and other aging services providers across the country. Additional information on the seminar can be found here.