Tennessee Court Finds Punching Patients Falls Below Standard of Care

(CN) – Reversing the dismissal of a medical malpractice lawsuit, the Tennessee Court of Appeals ruled it is common sense that an emergency medical technician shouldn’t punch patients in the face.

The three-judge panel reversed the dismissal of a lawsuit brought by patient Jonathan Zink, who accused an EMT of “negligently and carelessly” striking him the face with a closed fist while he was strapped to a gurney, causing him to suffer permanent injuries.

The Knox County Circuit Court dismissed Zink’s complaint, brought against EMT Randy Osborne and emergency services provider Rural Metro of Tennessee LP, with prejudice based on his failure to file a certificate of good faith confirming that an expert determined he had a legitimate reason to pursue his medical malpractice claim.

Zink appealed on the basis that his claims would fall within the “common knowledge” exception to the Tennessee Health Care Liability Act’s requirement of expert testimony in health care liability cases.

The appeals panel agreed Tuesday, citing prior decisions illustrating the type of common knowledge that would exempt the expert medical proof requirement.

In one such case, a hospital employee tried to remove a suspension bar from a patient’s hospital bed and dropped a piece of the bar on the patient’s head. The patient presented no expert medical proof, but instead testified that she began suffering severe headaches immediately following the blow to her head and had not suffered from such headaches before the incident.

“This Court accordingly determined that the plaintiff’s testimony created a genuine issue of material fact regarding the causation of the plaintiff’s injuries, such that summary judgment in favor of the defendant was inappropriate,” Judge Thomas Frierson wrote in the panel’s opinion.

Another action involved an ambulance attendant failing to lock a stretcher carrying a patient in place, causing injury when the stretcher shifted during transport. The court in that case concluded that “the determination of whether an ambulance attendant falls below the standard of care by not locking the stretcher in place in the ambulance is a matter that can be assessed on the basis of common experience.”

“Similarly, in this case, we determine that it would be within the common knowledge of a layperson whether an EMT’s alleged negligent, reckless, or intentional striking of a patient’s face while the patient is strapped to a gurney would fall below the standard of care,” Frierson said.

Because the alleged assault would not require expert proof to “aid in the understanding of this issue,” Frierson said, the trial court improperly failed to determine that the Zink case fell within the common knowledge exception.

“Therefore, the trial court should not have dismissed Mr. Zink’s action with prejudice for failing to file a certificate of good faith,” Frierson wrote.

The panel also found that the lower court improperly inferred that Osborne was restraining Zink in order to provide medical treatment, so that the force he used could have been justified.

“An equally reasonable and plausible inference could be drawn in Mr. Zink’s favor that Mr. Zink was already fully restrained at the time of the physical contact, based upon his allegation that he was ‘strapped to a gurney,’” Frierson said in the ruling. “Drawing this inference would suggest that the force used by Mr. Osborne may have been excessive.”

The panel found that Zink’s claims should not have been dismissed with prejudice, but that they should be dismissed without prejudice to refile, based on his failure to comply with pre-suit notice requirements.

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