Tennessee Medical Malpractice Trial: The Third Time Is Not the Charm

Tennessee health care liability (formerly called medical malpractice) cases are tough.  Tough because there is lots of sympathy for the defendant health care providers.  Tough because the defendants spare no expense and thus they are expensive for patients to try.  Tough because the health care providers hire excellent lawyers.  Tough because rarely does a jury verdict end the case – there is almost always an appeal.

The case of Cullum v. Baptist Hospital System, Inc., M2012-02640-COA-R3-CV, 2014 WL 576012 (Tenn. Ct. App. Feb. 12, 2014).has been tried three times and each of the three times the verdict has been set aside and a new trial ordered.  In the most recent trial, the jury returned a verdict of $7,974,505 against the defendants and the defendants appealed raising a number of evidentiary issues.  The Court of Appeals decided two of them.

First, the trial court refused to allow the defendants to play a video of their expert’s testimony from the previous trial.  Doctors are exempt from subpoena to trial under a Tennessee statute, Tenn. Code Ann. § 24-9-101.  However, the trial court made a distinction between a treating doctor and a doctor testifying as an expert witness at trial, and ordered that the doctor was not exempt from trial and that he must testify live or not testify at all. 

The Plaintiffs, on the other hand, did not argue on appeal that the doctor was not exempt from trial pursuant to the statute.  Instead, the plaintiffs argued that the doctor must be “unavailable” before his prior testimony could be used and that the doctor was not “unavailable” because he was subject to a subpoena for deposition testimony.

The Court of Appeals held that under Tennessee Rule of Evidence 804(a)(5), the expert doctor was unavailable at trial because Tenn. Code Ann. § 24-9-101 exempted him from a subpoena, and therefore that his prior testimony could be used.  The Court of Appeals noted that the court could override that exemption by ordering the doctor to appear, but did not appear to consider the trial court’s ruling that the doctor had to testify live to be an overriding of the exemption. 

The Court of Appeals also disagreed with the trial court’s decision not to allow the doctor to testify live once he made himself available for trial.  The defendants were able to get the doctor to agree to testify live in the midst of trial, but then the plaintiffs complained that they would be ambushed by his testimony because they would have approached their case differently if they has known he would testify.  The trial court ultimately sided with the plaintiffs and ruled that the expert could not testify.  The Court of Appeals found that the expert was unique to the defendants’ case because he actually taught the doctor and the nurse on trial regarding the procedure at issue and that the defendants were prejudiced without his testimony.

The case has been remanded for a new trial. 

So, this child was injured in May of 2000.  Almost fourteen years ago.  About 166 months ago.  The case was filed in 2004.  The first trial was in December of 2007.  The doctor and the doctor’s group settled out and the jury found for the hospital.  A new trial was ordered by the trial judge.  The next trial was in June of 2009  and the hospital was found 3.75% at fault.  The Court of Appeals set aside the verdict because the jury applied a quotient verdict. 2011 WL 553768   The third trial was in July of 2012.  And now the case must be retried again.  

The Tennessee Supreme Court will be asked to review this case.  Whether it accepts the request or not will not be known for five or six months.  But, in any event, this case will not be tried until 2015.  

What is the point of reciting the procedural history of this case?  This case has moved appropriately. Sure, I can identify a few months here or there than could have been taken out of this sequence of events, but all in all three trials and two trips to the appellate courts in less than ten years is not that bad.  There are certain courts in this state where this case, handled by certain lawyers, would just have found its way to the first courtroom.  The lawyers involved here, and the judges, are to be commended for working to accomplish what they have in a decade.

But what a tremendous burden for all involved.  

Every complex trial is a long trial. And it is hard to try a long case and avoid reversible error of some type.  It truly is.  To do so it takes very good, ethical lawyers.  It also takes experienced thoughtful judges, jurors who follow the rules, and appellate judges who understand the law.  

In other words, it is dang near impossible, especially when the money involved is so great that no stone is left unturned by any party.

I wish I knew how to fix this.

I do not.  I do know that the problem will be made worse if we have inexperienced lawyers find their way to the Bench as trial or appellate judges.