ERWIN — Attorneys for Erwin Health Care Center and C & E Management Co., the company over the center, filed a motion in Unicoi County Circuit Court earlier this month requesting dismissal of portions of a complaint seeking damages from the two entities for alleged negligence contributing to the death of a center resident.
A wrongful death lawsuit was filed against the center and C & E Management in late January by attorneys for William A. Warden Jr. The complaint, also filed in Circuit Court, alleges that Erwin Health Care, where William A. Warden Sr. was a resident, failed to notify Warden’s family of his deteriorating health over the course of his stay at the facility.
According to the complaint, Warden Sr. entered the center on March 8, 2011. From late April until his death on May 10, Warden’s physical condition deteriorated, but it was not until the evening of May 5 that his family was notified of the decline in his health, according to the complaint.
The motion to dismiss the claim for damages under the Tennessee Adult Protection Act was filed on March 5 by Peter Winterburn of the Memphis-based Adelman Law Firm, the firm representing Erwin Health Care and C & E Management.
The defense’s motion states that William Warden’s complaint filed in January alleges medical malpractice and wrongful death against the defendants, and also asserts a separate claim against the center for violation of the Tennessee Adult Protection Act. The motion states that because the state’s Adult Protection Act falls within the scope of the Tennessee Medical Malpractice Act, the plaintiff “cannot maintain an action under the Tennessee Adult Protection Act by operation of law.”
According to language contained in the Tennessee Adult Protection Act, the legislative intent of the act is to protect adults from “abuse, neglect or exploitation by requiring reporting of suspected cases by any person having cause to believe that such cases exist. It is intended that, as a result of such reports, the protective services of the state shall prevent further abuse, neglect or exploitation.”
According to the defense’s motion, the act did not provide an individual with a private right of action until it was amended in 2000. Prior to that, it “merely provided the State of Tennessee with a right to seek injunctive relief,” the motion states.
“This statutory language clearly expresses a legislative intent that the Tennessee Adult Protection Act does not apply to an individual’s cause of action which is ‘within the scope of’ the Tennessee Medical Malpractice Act,’ ” the motion states. “The key determination to be made by this Court is whether the Plaintiff’s Complaint does indeed fall within the scope of the TMMA. The answer to this question is a resounding yes. The Plaintiff’s claim under the TAPA must therefore be dismissed.”
While it argues that the Tennessee Adult Protection Act would not apply in the suit, the defense’s motion states the plaintiff’s cause of action would fall under the purview of the Tennessee Medical Malpractice Act. The motion states that allegations made in the complaint involve matters of “medical science or art” and are subject to the state’s Medical Malpractice Act.
“If the Plaintiff’s allegations require expert proof on matters of medical science or art, then the Plaintiff’s cause of action falls within the scope of the Tennessee Medical Malpractice Act and a separate cause of action under the Tennessee Adult Protection Act cannot be maintained,” the motion states. “A review of the Complaint readily illustrates that the Plaintiff’s allegations of medical/nursing home negligence will all require expert medical/nursing proof and, as such, the cause of action falls within the scope of the TMMA.”