Court reviews whether regulations requiring physicians to review medical charts constitute a standard of care on which a plaintiff may rely in a negligence suit

JOHN MARK WATKINS, SURVIVING SPOUSE OF AMY ROSE WATKINS, DECEASED v. AFFILIATED INTERNISTS, P.C., AND TRAVIS K. PARDUE, M.D. (Tenn. Ct. App. December 30, 2009)

This is a medical malpractice wrongful death action. The plaintiff's decedent underwent surgery and developed an infection after the surgery. The decedent visited the defendant medical clinic, the office of the defendant primary care physician, to treat the pain from the infection. The defendant physician was the supervising physician at the clinic. The decedent was seen by a physician assistant at the clinic, but not by the defendant physician. The physician assistant prescribed the decedent nausea medicine and enough Demerol to take four pills a day for three weeks. The physician assistant did not schedule a follow-up visit. After about two weeks, the decedent called the defendant clinic complaining of nausea and vomiting. The decedent was told to go to the emergency room if she felt dehydrated; she did not go to the emergency room. That same day the decedent died as a result of acute combined drug intoxication.

The decedent's husband filed this lawsuit against the defendant medical clinic and the defendant physician, alleging medical malpractice and wrongful death. During the pendency of the litigation, the defendant physician was disciplined administratively for failing to comply with medical regulations that required, inter alia, that the physician review the physician assistant's prescription of controlled medication to the decedent. The plaintiff then sought to amend the complaint to include a claim of negligence per se against the physician based on the regulatory infraction; his motion was denied. After much discovery, the defendants filed a motion for summary judgment, arguing that the expert testimony adduced by the plaintiff was insufficient to establish the standard of care or that the alleged negligence caused the decedent's death. The trial court granted the motion. The plaintiff now appeals. We affirm the trial court's decision in part and reverse in part. We find that the regulation requiring the physician to review the decedent's chart and data within a certain time period constitutes a standard of care, and that the trial court erred in denying part of the plaintiff's motion to amend the complaint to assert a claim of negligence per se. We affirm the grant of summary judgment on the remaining claims.

Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2009/watkinsj_123009.pdf