Medical Malpractice Defense Verdict Affirmed

In Commercial Bank & Trust Co. v. Children’s Anesthesiologists, P.C., No. E2016-01747-COA-R3-CV (Tenn. Ct. App. Oct. 25, 2017), plaintiffs were the legal guardian of a minor who, after a shunt revision, was no longer able to walk. Plaintiffs filed an HLCA suit, and after trial, the jury returned a verdict for defendants. Plaintiffs appealed, raising four issues.

First, plaintiffs asserted that “the Trial Court erred in allowing testimony that implied that [the minor’s] parents came to this country as refugees.” Because plaintiffs did not object to this line of questioning at trial, though, this issue was deemed waived.

Second, plaintiffs alleged that it was error to not allow a certain exhibit to be taken into the jury room. During cross examination of one of the defendant doctors, plaintiffs’ counsel used a piece of paper on which “standard of care” was handwritten, and the following words were typed: “The practice that protects the patient from unnecessary risk of serious harm.” After defendant doctor said she agreed with that statement, plaintiffs’ counsel attempted to file the paper as an exhibit. The trial court marked it for identification purposes only, then later refused to let it be taken to the jury deliberation room. The Court of Appeals held that this was not error, pointing out first that plaintiffs’ counsel failed to object at trial, and further that the alleged exhibit was “needless presentation of cumulative evidence, since the statement contained in [the exhibit] was read to [defendant doctor] at trial, and she testified that she agreed with the statement.” (internal quotation omitted). In addition, the Court noted that because the statement was so general, it would have likely “resulted in confusion by giving this written statement undue weight over the oral testimony on that issue.”

Third, plaintiffs argued that “the Trial Court should have granted a new trial because defendants allegedly failed to offer evidence of the standard of care.” The Court of Appeals quickly rejected this argument, pointing out that “Plaintiffs had the burden of proving the standard of care, not defendants.”

Finally, plaintiffs’ alleged that the jury instructions constituted error because they referred to an “error in judgment.” Here, the relevant jury instruction stated:

By undertaking treatment, a medical professional does not guarantee a good result. A medical professional is not negligent merely because of an unsuccessful result or error in judgment. An injury alone does not raise a presumption of negligence. It is negligence, however, if the error of judgment or lack of success is due to a failure to have and use the required knowledge, care, and skills as defined in these instructions.

Plaintiffs asserted on appeal that this instruction was analogous to an “honest mistake” instruction, and that “because there was ‘no testimony whatsoever basing any defense on ‘error in judgment,’ it was reversible error to instruct the jury on such a defense.’” The Court of Appeals disagreed, reasoning:

Even if Plaintiffs are correct that the evidence in the record on appeal does not support a defense based upon ‘error in judgment,’ the jury instruction given provided for another possibility. The jury instruction given provided that a defendant is not negligent merely ‘because of an unsuccessful result,’ or because of an ‘error in judgment,’ Here, it was alleged that Dr. Harris’s decision to continue to attempt to remove the shunt after he encountered difficulty was inappropriate and that Dr. Harris should have made a different decision. Clearly, Dr. Harris used his medical judgment when he made the decisions that he made during the surgery. So the fact that defendants did not admit to an ‘error in judgment’ does not invalidate the use of this instruction when Plaintiffs presented proof that Dr. Harris erred in choosing to continue to attempt to remove the shunt.

Accordingly, the defense verdict was affirmed.

The “error in judgment” defense is a thorn in the side of lawyers who

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