Articles Posted in Expert Witnesses

In an HCLA case discovery dispute, the Tennessee Court of Appeals ruled that plaintiff’s testifying experts’ “notes, drafts, and communications with counsel” were discoverable under the Tennessee Rules of Civil Procedure and that plaintiff had waived any claim that the requested items were privileged.

In Starnes v. Akinlaja, No. E2021-01308-COA-R10-CV (Tenn. Ct. App. Mar. 2, 2023), plaintiff filed a healthcare liability case against defendants based on injuries that occurred during plaintiff’s c-section. During the deposition of one of plaintiff’s testifying experts, the expert referenced an email sent to plaintiff’s counsel that included a bullet-point list as well as a page of handwritten notes, neither of which had been provided to defendants in response to defendants’ interrogatories, requests for production of documents, or requests accompanying the deposition notice. Defendants filed a motion to compel plaintiff to produce certain documents from her testifying experts, including “correspondence to and from her expert witnesses, draft reports of expert witnesses, and any similar materials.” Plaintiff responded that the documents were protected from discovery, but the trial court ultimately granted the motion to compel, which was affirmed (but modified) on appeal.

In its analysis, the Court initially clarified which Rules of Civil Procedure applied here. Because the experts at issue were identified as testifying experts, Rule 26.02(4)(A) applied to discovery related to these experts. Further, the Court ruled that Rule 26.02(3), which addresses discovery of trial preparation materials, applied, but it clarified that “the requirements of subdivision (3) are subject to those of subdivision (4) for discovery of expert witness information.”

Where an HCLA plaintiff’s expert refused to testify due to no fault of plaintiff or plaintiff’s counsel, the Tennessee Court of Appeals ruled that the  trial court should have allowed plaintiff to secure a substitute expert.

In Blackburn v. McLean, No. M2021-00417-COA-R3-CV, 2022 WL 3225397 (Tenn. Ct. App. Aug. 10, 2022), plaintiff filed an HCLA complaint in connection with the death of 35-year-old decedent who died after presenting at defendant emergency room and being treated by defendant doctor. Plaintiff identified Dr. Sobel as his standard of care expert and Dr. Allen as his causation expert. During Dr. Allen’s deposition, he testified that the decedent would “probably be alive” if he had sought treatment earlier, and defendant doctor thereafter filed a motion to amend his answer to plead the comparative fault of decedent. Defendant also filed a motion to compel the production of certain tax records from Dr. Sobel showing “the amount of money he was paid for medico-legal matters during certain prior years.”

After a hearing, both the motion to amend and the motion to compel were granted. After financial documents related to Dr. Sobel were produced, defendant doctor moved to lift the protective order regarding these documents, which the trial court granted. After the protective order was granted, Dr. Sobel refused to testify as an expert witness for plaintiff in this case.

Plaintiff filed a Motion to Substitute Expert Witness seeking to substitute a new expert whose opinions were “for the most part identical” to those of Dr. Sobel, but the trial court denied the motion. Plaintiff also sought to retain an expert to respond to the newly added comparative fault allegations. While the trial court ruled that plaintiff could obtain a cardiologist to respond to the newly asserted comparative fault defense, it placed extensive limitations on what that expert could address, specifically stating that plaintiff could not identify new experts “to address the standard of care for Defendants or alleged violations of the standard of care[,]…to testify about the alleged fault of Defendant [doctors] and/or what he allegedly did wrong[,] …to compare the fault of the decedent to the fault of the Defendants.”

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Where the probative value of an expert witness’s testimony outweighed the risk that such testimony would confuse the jury, the expert testimony should have been allowed and the jury verdict was vacated.

In Ellis v. Modi, No. M2019-01161-COA-R3-CV (Tenn. Ct. App. May 11, 2020), plaintiff filed a complaint for assault, battery and intentional infliction of emotional distress related to an alleged sexual assault committed by defendant. According to plaintiff, she was working as a caregiver in defendant’s home. Defendant needed in-home care after sustaining injuries in a car accident and receiving a diagnosis of stage four lymphoma. While plaintiff was in defendant’s home, she alleged that he sexually assaulted her for approximately three hours.

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When a doctor is practicing in Tennessee but not licensed in Tennessee or in a contiguous state, but is instead practicing under a statutory licensure exemption as part of a fellowship program, he does not meet the requirements to testify as to standard of care and breach of said standard under the HCLA.

In Young v. Frist Cardiology, No. M2019-00316-SC-R11-CV (Tenn. April 20, 2020), plaintiff filed a health care liability case based on the alleged negligent treatment of decedent during a cardiac procedure and his subsequent death. Pursuant to the case management order, plaintiff identified Dr. Jason Rytlewski as “the expert witness who would testify that [defendant] deviated from the applicable standard of care in his treatment of [decedent].”

Defendants filed motions for summary judgment, asserting that Dr. Rytlewski was not competent to testify because he “did not have a medical license in Tennessee or a contiguous state during the year before [decedent’s] heart procedure, as required by Tennessee Code Annotated section 29-26-115(b).”  Plaintiff responded that Dr. Rytlewski was “familiar with the standards of acceptable professional practice for [decedent’s] heart procedure in the Davidson County area,” and that the “Tennessee Board of Medical Examiners had granted Dr. Rytlewski an exemption that allowed him to practice medicine without a medical license during his fellowship at Vanderbilt University.” Plaintiff argued that due to this exemption, the licensure requirement of Tenn. Code Ann. § 29-26-115(b) did not apply to him, as it only applies “if one is required to have a license.”

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The Tennessee Supreme Court recently reversed a Court of Appeals opinion and reinstated a trial court’s refusal to grant a motion to alter or amend. The trial court had granted defendant’s summary judgment motion based on plaintiff’s HCLA expert being unqualified to testify as to causation and plaintiff not obtaining a second expert affidavit until after summary judgment was granted.

In Harmon v. Hickman Community Healthcare Services, Inc., No. M2016-02374-SC-R11-CV (Tenn. Jan. 28, 2020), plaintiff filed an HCLA suit after decedent died while in Hickman County jail. Decedent had been arrested on possession of illegal drugs, and while incarcerated, she began suffering drug withdrawal symptoms. She was treated by an R.N. in the jail’s medical unit then sent back to her cell. Later that night, she was found dead on the floor of her cell.

Plaintiff filed suit and identified a “physician who was board-certified in neurology and psychiatry” as her expert, and defendant filed a motion for summary judgment asserting that plaintiff could not prove causation because her expert was not qualified to testify as to causation under the HCLA. The trial court heard oral arguments on the motion on November 2, 2015, denied a motion for partial summary judgment by plaintiff in January 2016, and finally issued an order granting summary judgment to defendant in April 2016. The trial court “held that Plaintiffs’ sole expert witness on causation…was not competent to provide testimony under Tennessee Code Annotated § 29-26-115.”

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Where a trial court did not undergo the required analysis under Tennessee Rules of Evidence 702 and 703 before deciding to exclude plaintiff’s expert witness testimony in a premises liability case, summary judgment for defendant was vacated and the case was remanded.

In Linkous v. Tiki Club, Inc., No. E2019-00357-COA-R3-CV (Tenn. Ct. App. Nov. 22, 2019), plaintiff went to defendant restaurant/bar with his friends. While there, he went to the bathroom, which he had done numerous times on previous visits. On this particular occasion, it had been drizzling outside. The bathroom at defendant restaurant was “two portable restrooms that were located approximately three feet above the outdoor level of a floating dock and were accessible by metal stairs.” Defendant had purchased the bathrooms from another company and had self-installed the units. Plaintiff alleged that as he exited the bathroom on the night in question, “he slipped on the first step and fell several feet, sustaining multiple injuries.”

Plaintiff brought this premises liability suit, and defendant filed a motion for summary judgment asserting that it had no actual or constructive notice of the allegedly dangerous condition. Defendant asserted that any building codes would not have applied to the restroom structure, and that even if they did, they would only impose a duty on the company that manufactured the portable restroom. Defendant further alleged that it had never received any complaints about the bathroom structure before this incident.

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Where plaintiff’s expert witness in an HCLA case unexpectedly decided to no longer provide testimony soon before plaintiff’s response to a motion for summary judgment was due, and plaintiff sought to continue the motion and hold a hearing on possible witness tampering, the trial court erred by granting summary judgment to some defendants. For defendants not affected by the allegedly tampered-with witness, however, summary judgment was affirmed due to the plaintiff’s failure to obtain an expert affidavit in the eight months the case was pending.

In Stubblefield v. Morristown-Hamblen Hospital Association, No. E2017-00994-COA-R3-CV (Tenn. Ct. App. June 11, 2019), plaintiff filed an HCLA claim related to allegedly negligent post-operative care after a cardiac catheterization. Plaintiff named as defendants the hospital, the nurse who treated her overnight after her surgery, a physician group, and the physician who was first paged when a complication was discovered and who ordered treatment for plaintiff without actually going to the hospital to see her.

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Where an expert in a professional negligence case against an insurance agent admitted that he had very limited experience with a certain type of policy, he was not qualified to testify as to the standard of care regarding that policy type.

In Littleton v. TIS Insurance Services, Inc., No. E2018-00477-COA-R3-CV (Tenn. Ct. App. Jan. 9, 2019), plaintiffs filed a professional negligence case against defendant insurance agent. The facts of this case revolved around a company, Merit Construction, asking its insurance agent to procure a commercial general liability insurance policy. Merit requested that the policy come from a company with an A rating, and defendant agent provided three options. Merit chose an option from Highlands, which actually had a rating of B++. Defendant procured this policy and also procured a cut-through endorsement, which defendant claimed was “to raise the Highlands policy to an A-rating…” At the time Merit was given the three options, it was not given financial information about any of the potential carriers, and defendant’s agent “indicated that all three companies were A-rated companies with the cut-through endorsement from Highlands[.]” More than a year after the policy was purchased, Highlands’ rating dropped to a B, and defendant did not inform Merit or move the coverage to a different carrier. There were subsequent issues collecting when a claim was made to Highlands because it had been placed in receivership.

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In Kempson v. Casey, No. E2015-02184-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2016), the Court of Appeals vacated a jury’s finding of no damages for a plaintiff who presented uncontroverted expert proof regarding injuries he alleged to have sustained in a car accident.

Plaintiff was rear-ended by defendant when he was sitting in traffic on the interstate. Although defendant did not deny that the collision occurred, the parties had vastly different accounts of what happened. Plaintiff alleged that defendant was going around 50 miles per hour when she hit him, that his car was knocked forward 5-6 car lengths (but that he did not hit the vehicles in front of him), and that after the accident defendant had blood going down her leg. Defendant, on the other hand, testified that she was driving between 10 and 15 miles per hour at the time of the collision, that the impact was “minor,” that her airbag did not deploy, and that she did not bleed. Both parties agreed that both vehicles were driven away from the scene.

Plaintiff sued for negligence, asserting that “as a result of the accident, [he] began experiencing intractable neck and low back pain that ultimately necessitated” surgery. In support of his claims, plaintiff presented testimony from his surgeon and his chiropractor. Both of these experts testified that plaintiff had “preexisting complaints related to his cervical, thoracic and lumbar spine,” and that his “post-accident complaints were similar to his pre-accident complaints.” The surgeon testified, though, that in his opinion “the accident at issue caused [plaintiff’s] medical condition to worsen to the point that surgery was necessary.”

Understanding medical billing and medical expenses can be quite difficult in today’s healthcare system, and courts across the country have been grappling with how to determine the reasonable amount of medical expenses in court cases. In a recent Tennessee case, the Court of Appeals declined to extend a Tennessee Supreme Court decision which held that reasonable medical expenses were those that the medical provider actually accepted as payment from an insurance company, as the Supreme Court decision was a hospital lien case and the Court of Appeals was reviewing a personal injury matter.

 

The underlying facts in Dedmon v. Steelman, No. W2015-01462-COA-R9-CV (Tenn. Ct. App. June 2, 2016) were that plaintiff was seeking recovery for injuries sustained in a car accident. Plaintiff claimed medical expenses of $52,482.87, and plaintiff provided medical bills and the deposition of a treating physician who testified that the expenses were “appropriate, reasonable, and necessary[.]”

 

After this suit was filed, the Tennessee Supreme Court issued a decision in a case about hospital liens, West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014). Tennessee law gives hospitals a lien “for all reasonable and necessary charges for hospital care, treatment and maintenance of ill or injured persons[.]” The West court tackled the issue of what exactly constituted reasonable charges, in light of the fact that the amount a patient is billed and the amount an insurance company actually pays is often vastly different. The Court in West eventually determined that, “with regard to an insurance company’s customers,” reasonable expenses were “the charges agreed to by the insurance company and the hospital,” not the billed amount. The Court stated:

The hospital’s non-discounted charges reflected in the amount of the liens it filed against the plaintiffs should not be considered reasonable charges for the purpose of [the Hospital Lien Act] for two reasons. First, the amount of these charges is unreasonable because it does not ‘reflect what is [actually] being paid in the market place.’ …[A] more realistic standard is what insurers actually pay and what the hospitals [are] willing to accept.’ …The second basis for concluding that the [hospital’s] non-discounted charges are not reasonable stems from its contracts with [the insurers]. The [hospital] furthered its own economic interest when it agreed in these contracts to discount its charges for patients insured by [the insurers]. …The [hospital’s] contract with [the insurers] defined what the reasonable charges for the medical services provided to [the plaintiffs] would be.

(Internal citations and quotations omitted).

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