A recent Court of Appeals case serves as a great reminder of the importance of disclosing the correct experts in a timely fashion in a Health Care Liability Action. In Mikheil v. Nashville General Hospital, No. M2014-02301-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2016), plaintiffs filed an HCLA case against several parties related to the alleged failure to timely diagnose and treat cervical stenosis. Included as defendants were an orthopedic surgeon from Nashville General Hospital, a nurse practitioner, the hospital itself based upon a claim of vicarious liability through the orthopedic surgeon, and a neurologist.
To prove an HCLA claim, a plaintiff must present expert testimony regarding the “standard of care, a failure to act in accordance with the standard of care, and proximate cause.” Throughout the pretrial litigation, plaintiffs had multiple problems with their expert disclosures. First, plaintiffs failed to file their Rule 26 expert witness disclosure by the date set out in the agreed scheduling order, and instead filed a motion requesting an additional 120 days the day after the initial deadline. When the disclosure was eventually filed, plaintiff listed four potential expert witnesses, including Jane Colvin-Roberson who was to be called as a “life care planner expert.” The disclosure stated that “the plaintiffs would furnish a copy of the Life Care Plan when it is completed.”
Defendants moved to strike the experts because plaintiffs did not provide sufficient disclosures regarding the “facts and opinions to which the experts were expected to testify or a summary of the grounds for each opinion.” The Court gave the plaintiffs three days to serve full and complete disclosures. When the supplemental disclosure was given to defendants, rather than including the life care plan by Colvin-Roberson, the plaintiffs named a new life care planning expert, Nurse Lampton. Upon motion of the defendants, Nurse Lampton was stricken, as the plaintiffs did not disclose her in a timely fashion and did not seek leave of the court to substitute her for the life care expert originally named. As plaintiffs had at that point failed to provide full disclosures for a life care planner, the trial court ruled that plaintiffs were “prohibited from offering into evidence…any life care plan and any life care planning testimony.”