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Smith v. Testerman

Court of Appeals of Tennessee, Knoxville

March 10, 2015

DENNIS SMITH
v.
GEORGE TESTERMAN, M.D., ET. AL.

Session January 13, 2015

Appeal from the Law Court for Sullivan County (Kingsport) No. C40423(C) Hon. E.G. Moody, Chancellor.

This is a case alleging negligence by the defendants which resulted in injury to a patient, Dennis Smith. Following hernia surgery, Mr. Smith was fitted for a wound vacuum because an infection had developed at the surgical site. A sponge was placed to absorb the infection. The defendants removed the wound vacuum when the infection dissipated, but they failed to remove the sponge, which later caused the wound to burst. Mr. Smith filed suit, and the defendants asserted that dismissal was appropriate because Mr. Smith had not complied with the filing requirements of the health care liability statute.[1] Mr. Smith responded that his complaint sounded in ordinary negligence, not health care liability. The trial court agreed and denied the motions but also granted permission for the defendants to pursue an interlocutory appeal. We granted the application for permission to appeal and now reverse the decision of the trial court.

Jeffrey M. Ward, Greeneville, Tennessee, for the appellants, George Testerman, M.D. and Medical Education Assistance Corporation.

Andrew T. Wampler and Russel W. Adkins, Kingsport, Tennessee, for the appellants, Wellmont Holston Valley Medical Center, Wellmont Physicians Services, and Wellmont Medical Associates.

Richard E. Ladd, Jr. and Holly N. Mancl, Bristol, Tennessee, for the appellant, Advanced Home Care, Inc.

Larry V. Roberts and Wesley A. Mink, Johnson City, Tennessee, for the appellee, Dennis Smith.

John W. McClarty, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and Thomas R. Frierson, II, J., joined.

OPINION

JOHN W. McCLARTY, JUDGE.

I. BACKGROUND

On April 7, 2011, George Testerman, M.D. performed surgery on Dennis Smith ("Plaintiff") to repair a hernia. An infection developed following surgery that required additional surgery to place a wound vacuum to drain the infection and a sponge to absorb the fluid as the infection drained. Plaintiff was discharged, and Advanced Home Care, Inc. ("AHC") provided home health care nursing services for Plaintiff's continued treatment. Likewise, Daniel Anderson, M.D., Tiffany Lasky, M.D., Corydon Siffring, M.D., and Dr. Testerman periodically examined Plaintiff as he recovered. Dr. Testerman removed the wound vacuum on August 16, 2011. Plaintiff's wound did not heal, and in December 2012, he was readmitted to the hospital, where the wound burst open, revealing that the sponge had been left in the wound. The majority of the sponge was removed upon discovery, but a portion remained inside the wound for fear that removal would injure a herniated bowel.

On December 2, 2013, Plaintiff filed suit against AHC, Dr. Testerman, and Dr. Testerman's employers, WellMont Physician Services, Inc., Medical Education Assistance Corporation d/b/a University Physicians Practice Group, Wellmont Health System d/b/a Wellmont Holston Valley Medical Center, and Wellmont Medical Associates, Inc. (collectively "Defendants"). Plaintiff alleged that Dr. Testerman and AHC were negligent by failing to either remove the sponge or communicate with the other physicians to ensure that the sponge had been removed. He claimed that their negligence resulted in physical and emotional injury, pain and suffering, and further medical treatment that otherwise would not have occurred. He sought compensatory damages in the amount of $1, 000, 000.

Defendants responded by filing motions to dismiss, alleging that although the allegations clearly related to an injury arising out of Plaintiff's medical care and treatment, he had failed to comply with the Tennessee Medical Malpractice Act ("the Act"), which sets forth specific filing requirements for health care liability actions. When a complaint is filed pursuant to the Act, the plaintiff is required to file pre-suit notice 60 days prior to filing suit and to attach a certificate of good faith and a copy of the pre-suit notice with relevant documentation to the actual complaint. Tenn. Code Ann. §§ 29-26-121, -122. Defendants alleged that Plaintiff's failure to comply with the Act required dismissal of the complaint with prejudice. Plaintiff conceded that he had not provided pre-suit notice or attached a certificate of good faith to his complaint. He asserted that he was not required to comply with the Act because he filed an ordinary negligence action, not a health care liability action.

The trial court denied the motions to dismiss based upon the belief that Plaintiff was not required to comply with the Act because he had filed a claim for ordinary negligence, not health care liability. The court granted permission to seek an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Thereafter, Defendants filed applications for permission to appeal to ...


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