Day on Torts
After affirming several challenged evidentiary rulings, the Court of Appeals upheld a jury verdict for the defendant doctor in an HCLA case.
In Davis v. Ellis, No. W2024-01467-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2025), the plaintiff filed an HCLA claim against the defendant doctor based on his treatment of the decedent. The decedent came to the emergency room with a complicated medical history and bilateral pneumonia. On her second day at the hospital, the defendant doctor performed a pulmonary consultation on the decedent at 4:00 pm. Based on his exam, the defendant changed the decedent’s antibiotic, ordered further testing, and ordered that she be transferred to the ICU stat. The defendant also charted that he suspected she would get worse and would likely need intubation within the next twenty-four hours.
The defendant’s shift ended at 6:00 pm, at which time the plaintiff’s vital signs were stable. Between 6:00 pm and the decedent’s death, she was seen by ten other medical professionals. The decedent’s condition began deteriorating at some point that evening, and around 11:00 pm a team attempted to intubate decedent. Intubation required multiple attempts, and the decedent passed away early the next morning.
In this HCLA suit, the plaintiff averred that the defendant was negligent in failing to intubate the decedent earlier. The jury returned a verdict for the defendant. The plaintiff appealed, raising several issues, and the Court of Appeals affirmed the defense verdict.
On appeal, the plaintiff focused largely on evidentiary issues. The plaintiff argued that the trial court erred by allowing evidence that he remarried one year after decedent’s death. The plaintiff included a claim for loss of consortium in his complaint, which Tennessee defines as “including losses by family members of the deceased’s attention, guidance, care, protection, training, companionship, cooperation, affection, love, and in the case of a spouse, sexual relations.” (internal citation omitted). In affirming the decision to allow evidence of the plaintiff’s remarriage, the Court explained: “As remarriage results in the replacement of at least some of the damages to the spouse of a decedent, remarriage is inherently relevant to the loss of consortium claim.”
The plaintiff also argued that the trial court erred by allowing the defendant to question the plaintiff’s expert about an errata sheet and affidavit the expert had submitted earlier in the litigation to clarify portions of his deposition testimony. According to the plaintiff, the trial court should have allowed the plaintiff to present evidence that the Court of Appeals had previously found that the expert’s deposition and affidavit did not differ materially. The Court disagreed. The Court wrote that a “party may examine a witness concerning prior statements,” and that the Tennessee Rules of Evidence allow for the “wide open scope of cross-examination historically favored in Tennessee.” (internal citation omitted). The Court also agreed that allowing the previous Court of Appeals opinion in could have confused the jury.
The plaintiff claimed the trial court erred by allowing the defense expert to testify about the various kinds of ICUs, including information about how the ICU that plaintiff’s expert had previously worked in varied from the type of ICU the decedent was treated in. The Court wrote that the plaintiff’s expert opened the door to this testimony by stating that there are different types of ICUs on his direct examination, and that this testimony was covered by the defendant’s expert disclosure because the disclosure stated that the defense expert would rebut the testimony of the plaintiff’s expert.
Regarding jury instructions, the Court of Appeals affirmed the trial court’s decision to give both the alternative methods instruction and the hindsight instructions. Here, both experts testified that there was more than one treatment option that defendant doctor could have utilized. The defendant testified that he chose to admit to the ICU and intubate if necessary later, which was one option detailed by the defense expert. Accordingly, the evidence supported the alternative methods instruction. In addition, the hindsight instruction was appropriate here. Both experts acknowledged that their knowledge that the decedent passed away at least partially informed their opinions in this case, so the hindsight instruction was appropriate to remind the jury that “the actor’s conduct must be judged in the light of the possibilities apparent to him at the time, and not be looking backward with the wisdom born of the event.” (internal citation omitted).
In response to the plaintiff’s assertion that the trial court failed to properly perform its duty as thirteenth juror, the Court ruled that the record contained material evidence to support the jury’s verdict. After also affirming that the trial court rightly rejected a proposed jury instruction from the plaintiff, the Court affirmed an award of discretionary costs to the defendant.
Ultimately, the jury verdict was affirmed in whole.
This opinion was released three months after oral arguments.