When relying on vicarious liability in an HCLA (formerly known as medical malpractice or medical negligence) case, a plaintiff must identify the standard of care for a specific agent of the defendant and how that agent deviated from the standard of care.
In Miller v. Vanderbilt University, No. M2015-02223-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2017), plaintiff was in a motorcycle accident and sustained several serious injuries. He was taken to defendant hospital for treatment, where he had three surgeries, the last being a surgery on his right knee and left foot on November 2, 2010. Plaintiff was discharged from the hospital on November 5th, but two days later he came to the ER with “fever, nausea, blurred vision, and severe pain in his right leg.” His right knee incision had become infected, and his leg was eventually amputated above the knee.
Plaintiff filed this HCLA case for compensatory and punitive damages. Plaintiff alleged that defendant “failed to recognize and investigate the signs of infection that [plaintiff] exhibited before his discharge,” and that “he was negligently and recklessly discharged from the hospital.” At the close of plaintiff’s proof at trial, defendant moved for a directed verdict, which the trial court first granted as to punitive damages and then granted as to all claims. The trial court found that “plaintiff failed to establish, through expert medical testimony, the standard of care applicable to a specific agent of Vanderbilt, how that agent had deviated from the standard of are, and that deviation had caused an injury that otherwise would not have occurred, as required by Tennessee Code Annotated § 29-26-115.” On appeal, the directed verdict was affirmed.
Plaintiff raised three issues on appeal. First, he asserted that the trial court wrongly excluded evidence that he was uninsured at the time of the incident. Plaintiff argued “that evidence of his health insurance status was relevant to Vanderbilt’s motive in discharging him and his punitive damages claim.” The Court held, however, that “motive is not an element of a health care liability action,” and that “[w]hy the defendant may have deviated from the standard of care is not a factor of consequence[.]” Further, the Court noted that even if it were relevant to punitive damages, “the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Exclusion of this evidence was thus affirmed.
Second, the Court analyzed plaintiff’s assertion that directed verdict on the punitive damages claim was inappropriate. In light of the evidence and allegations here, the Court quickly rejected this argument, stating that “[p]unitive damages are reserved for the most egregious cases” and that there was “no evidence, much less clear and convincing evidence, that the defendant acted [intentionally, fraudulently, maliciously or recklessly].” (internal citation omitted).
Finally, the Court looked at the directed verdict as to plaintiff’s remaining claims. The case against defendant hospital was based on vicarious liability. “In Tennessee, a principal may be held vicariously liable for the negligent act of its agent when the acts are within the actual or apparent scope of the agent’s authority.” (internal citation and quotation omitted). To prove a vicarious liability claim, “the plaintiff must present expert testimony on the standard of care applicable to the agent, that the agent deviated from that standard, and that the plaintiff’s injuries were a proximate result of that deviation.” (internal citation omitted). Here, the Court of Appeals agreed with the trial court that plaintiff’s expert “failed to adequately identify a specific agent of Vanderbilt that deviated from the standard of care and whose deviation caused an injury that would not have otherwise occurred.”
Plaintiff’s expert, Dr. Gandy, testified that plaintiff was showing signs of infection, including an elevated white blood cell count and fever, before his discharge, and that it was a deviation from the standard of care to not do more testing based on these indications. Dr. Gandy, though, testified somewhat generally, stating “they failed to investigate,” “they didn’t follow up on it,” and “nobody did anything else after that.” Dr. Gandy failed to identify any physician who made a decision regarding plaintiff’s discharge. The only reference he made to specific physicians was during the following exchange:Q: …do you recall who the surgeons were for the November surgery?
A: Dr. Mir was the primary surgeon. I don’t recall the—the assistant surgeon.
Q: Dr. Sethi?
A: Dr. Sethi was listed as one of them.
Q: …did Dr. Mir examine the surgical wound site from 11/2 before [plaintiff’s] discharge…?
A: There’s nothing in the record to that effect.
Q: Is there anything in the record that would indicate that Dr. Sethi examined the wound site from 11/2 before [plaintiff’s] discharge on 11/5?
Regarding this testimony, the Court concluded:
Dr. Gandy failed to draw a connection between the deviations from the standard of care that he identified and any individual physician. His identification of Dr. Mir and Dr. Sethi as two orthopedic surgeons who operated on [plaintiff] but who did not examine his wound site after November 2 is insufficient. He never testified that one or both of these physicians were responsible for [plaintiff’s] post-surgical care and discharge. …A jury verdict in [plaintiff’s] favor based on this evidence could only rest on impermissible ‘speculation, conjecture, and guesswork.’
(internal citation omitted). The directed verdict was thus affirmed.
The Court also affirmed the trial court’s decision to deny plaintiff’s motion to reopen proof. The Court stated that plaintiff “had a reasonable opportunity to prove his case” and that he was “seeking to present evidence that was available during his case in chief.”
Judge Richard Dinkins wrote a partial dissent in this case, disagreeing with the directed verdict as to plaintiff’s non-punitive damages claims. Judge Dinkins wrote that the “proof introduced by [plaintiff] was sufficient to survive the motion for directed verdict.” He stressed that a court deciding a directed verdict must “take the strongest legitimate view of the evidence against the directed verdict and must deny the motion in any case where all reasonable persons would not reach the same conclusion.” (internal citation and quotation omitted). Here, he found that “[t]o the extent the court would require a specific physician be named, I believe Dr. Gandy’s reference to Dr. Mir, quoted in the majority opinion, while not the clearest identification of the responsible physician, is sufficient to meet the agency principles applicable in this case and would require Vanderbilt to proceed with the presentation of its proof.” He further stated that “if there were any question in the trial court’s mind,” the motion to reopen proof should have been granted, as that would cause “no unfairness to the defendant.”
While many cases have held that expert witnesses do not have to use some “magic words” as to the degree of certainty in an HCLA case, the majority opinion in this case seems to be holding expert testimony to a very specific standard regarding identifying the physician who caused the alleged injury. This case is an important read if you are preparing an HCLA case against a hospital or medical center based on the conduct of a physician. Let me add this: if both of the physicians involved were orthopedic surgeons, presumably the same standard of care was applicable to each. How was Vanderbilt harmed by the failure to specifically identify which doctor did what?