Expert affidavit created issues of fact to withstand summary judgment in HCLA case

Where an HCLA plaintiff presented expert testimony that defendant doctor deviated from the standard of care for a patient in respiratory distress by “failing to provide necessary treatment before ending his shift,” summary judgment for defendant was reversed because genuine issues of material fact existed.

In Davis v. Ellis, No. W2019-01367-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2020), plaintiff’s wife was admitted to the emergency room and diagnosed with pneumonia. The following day at 4:00 pm, she was examined by defendant doctor, who was the on-call intensivist. Defendant noted that the patient was awake and alert but that her oxygen saturation level was 93% and that her “respiratory condition had progressively worsened over the past 24 hours.” Defendant “did not order intubation at that time but referred [the patient] to the ICU for observation.” Defendant’s shift ended two hours later.

By 7:30 pm, the patient’s oxygen saturation level had dropped to 82%, and the intensivist who was on call ordered that she be put on non-invasive, positive-pressure face mask ventilation. Around 10:00 pm, her oxygen levels began falling again and were down to 74% by 11:00 pm. The emergency room doctor then tried to intubate her but eventually called anesthesiology for assistance. The patient was finally intubated, but she died approximately six hours later.

Plaintiff filed this HCLA suit and named Dr. Gunnerson as his expert witness. Defendant deposed Dr. Gunnerson as an adverse expert witness, then filed a motion for summary judgment, asserting that there was “no causal connection between any alleged negligence by [defendant] and any injury, including death, to [the patient].” Plaintiff responded with an affidavit from Dr. Gunnerson, but the trial court granted summary judgment, ruling that plaintiff “failed to meet his burden to show, at the summary judgment stage, that [defendant’s] failure to intubate or failure to put in place a plan for [the patient’s] treatment caused her death.” On appeal, summary judgment was reversed.

Pursuant to Tenn. Code Ann. § 29-26-115(a), plaintiff in this HCLA case needed to prove by expert testimony “(1) the applicable standard of care; (2) whether [defendant] deviated from the standard of care, and/or (3) whether [defendant’s] deviation from the standard of care caused [the patient’s death].” In analyzing whether plaintiff had produced enough evidence to survive summary judgment in this case, the Court of Appeals first found that it was not error for the trial court “to consider Dr. Gunnerson’s affidavit in addition to his deposition testimony,” as the Tennessee Rules of Civil Procedure specifically allow for affidavits in response to motions for summary judgment.

Regarding the first two elements, the trial court found that Dr. Gunnerson had testified that defendant breached the standard of care not by failing to intubate the patient, but by failing “to have a plan to address [the patient’s] condition[.]” The Court of Appeals, however, disagreed with this interpretation. The Court ruled that reading the affidavit in the light most favorable to plaintiff, Dr. Gunnerson had opined that “because [the patient’s] condition was rapidly declining, the standard of care required [defendant] to intervene and implement a treatment plan that would stabilize her respiratory condition.” Dr. Gunnerson stated that defendant’s “wait and see approach was not a sufficient plan of care and, thus, constituted a deviation from the standard of care.” Dr. Gunnerson specifically noted that defendant could have satisfied the standard of care through several options, such as attempting noninvasive positive-pressure ventilation, intubation, or “instructing other providers to perform these treatments imminently,” rather than leaving the hospital without providing a clear treatment plan. Based on this testimony, the Court of Appeals ruled that plaintiff had produced sufficient evidence to create an issue of fact regarding whether defendant failed to meet the applicable standard of care.

The Court next analyzed causation, as plaintiff was required to present evidence that it was “more likely than not that the defendant’s negligence caused plaintiff to suffer injuries which would have not otherwise occurred.” (internal citation omitted). Defendant asserted that Dr. Gunnerson failed to express his opinions “to a reasonable degree of medical certainty” as required by the HCLA, but the Court of Appeals noted that “[w]hile it [was] true that Dr. Gunnerson [did] not opine, in his deposition, that [defendant’s] failure to adhere to the standard of care caused [the patient’s] death, he was never asked this question,” as only defendant’s attorney asked questions during the deposition. In his affidavit, however, Dr. Gunnerson made a “definitive statement to a reasonable degree of medical certainty that [defendant’s] failure to implement a treatment plan for [the patient] more likely than not led to her death.”

Defendant further pointed out that Dr. Gunnerson used the world “speculation” at times in his deposition, but the Court ruled that when the deposition was viewed in its entire context, it was clear that Dr. Gunnerson used the word speculation when discussing whether a noninvasive intervention would have worked for the patient earlier in the day. The Court explained:

Dr. Gunnerson’s deposition testimony does not differ materially from his affidavit. He has consistently maintained that if [defendant] had followed the standard of care by immediately implementing a plan to address [the patient’s] declining respiratory condition, one of two things would have more likely than not occurred. Ether the noninvasive approach would have avoided intubation, or, failing that, intubation could have been achieved on a non-emergency basis before [the patient] was in full respiratory arrest. …Dr. Gunnerson explained that, with timely treatment, [the patient’s] chance of death was 25-40%. …Dr. Gunnerson opined that [defendant’s] ‘wait and see’ approach cost [the patient] critical time and resulted in further decline of her respiratory status, which ultimately led to her death.

Based on this evidence, the Court ruled that plaintiff created an issue of fact regarding causation and that summary judgment should not have been granted.

When moving for summary judgment, defendant had cited intervening/superseding cause as an alternative ground, asserting that the failed attempts to intubate the patient after he left the hospital relieved him of any liability. After quickly reviewing the requirements for such a defense, the Court ruled that Dr. Gunnerson’s testimony created issues of fact regarding “(1) whether the superseding emergency intubations were brought about by [defendant’s] original negligence in failing to adhere to the standard of care; and (2) whether the superseding intubations caused [the patient’s] death, which would not have otherwise followed from [defendant’s] original negligence.” The Court thus ruled that intervening/superseding cause was not a ground for summary judgment here.

The Court of Appeals did a good job in this case of using both the expert’s deposition and affidavit to examine whether any issues of fact existed. The Tennessee Rules of Civil Procedure allow for the submission of depositions and affidavits / declarations in response to motions for summary judgment, and plaintiff here used such an affidavit to present enough evidence to move beyond the summary judgment stage.


NOTE:  this decision was released less than three months after oral argument.

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