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Tuesday, March 10, 2015

New Health Care Liability Action Opinion: Foreign Object Case Is a Health Care Liability Action; Not a Case That Can Be Classified as One of Ordinary Negligence as Plaintiff Contends

The Tennessee Court of Appeals issued its opinion today in Smith v. Testerman, No. E2014-00956-COA-R9-CV (Tenn. Ct. App. Mar. 10, 2015).  The opinion has to do with a foreign object, a surgical sponge, left in a wound to help treat a post-surgical infection; it does not deal with a sponge left in during surgery, which is significant in my opinion as to whether a certificate of good faith is required under Tenn. Code Ann. sec. 29-26-122.

The summary from the opinion states as follows:
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. Mr. Smith 1 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.
Here is a link to the opinion:

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