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New trial affirmed where defendant shifted blame after failing to plead comparative fault.

Where the defendant in an HCLA case did not plead comparative fault, but during his testimony at trial stated that the reason he failed to take certain actions was because the nurses never notified him of the patient’s chest pain, the trial court did not abuse its discretion in ruling that defendant attempted to shift blame to a non-party and ordering a retrial.

In Kanipe v. Patel, No. E2019-01211-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2020), plaintiff filed a healthcare liability suit after his mom died from “an undiagnosed aortic dissection while in the care of [defendant].” The patient had been taken to the ER by ambulance on the morning of December 31, 2012, and after being seen by the ER physician, she was transferred to defendant, a cardiologist. Defendant examined the patient and prescribed medication, then left the hospital before lunch with an order that he “be called for questions, orders, or changes in [the patient’s] condition.” Defendant received a call from Nurse Crepo at 3:30 p.m, which proved to be “one of the most contested parts of the case.” After this call, defendant ordered medications for pain and nausea for the patient, but he never re-evaluated her. At 1:47 a.m. that night, the patient was pronounced dead from an aortic dissection.

The patient’s son filed this HCLA suit, and defendant did not plead comparative fault in his answer. At a jury trial, defendant testified that when Nurse Crepo called him, he was not notified that plaintiff was complaining of chest pain, and that had he been notified he would have possibly “gone back in and reevaluated [the patient]” depending on what he had been told. After this testimony from defendant, plaintiff called Nurse Crepo as a rebuttal witness, who stated that she told defendant during the phone call that the patient’s chest pain had not subsided.

In this first trial, the jury found in favor of all defendants, including the defendant doctor at issue in this appeal, and the trial court approved the verdict as thirteenth juror. Plaintiff, however, filed a motion for a new trial, and although the trial court initially reaffirmed the jury’s verdict, it eventually entered an order granting a new trial “on grounds that [defendant] had, through his testimony, shifted blame to a non-party despite never having pled comparative fault.”

Before the second trial began, the parties litigated a number of evidentiary issues. First, regarding the phone call between Nurse Crepo and defendant, the trial court ruled that “[defendant] and Nurse Crepo could testify about the 3:30 phone call, but it would instruct the jury that there was no other party to potentially blame besides [defendant].” Second, defendant sought to “exclude any evidence reflecting that since the underlying events of the case he had voluntarily relinquished his privileges to practice at” the hospital where this incident occurred, based on the peer review privilege. Because plaintiff obtained this information from an original source that was publicly available, the trial court ruled that this information could be presented to the jury and used in “evaluating the discrepancy between the testimony of [defendant] and [Nurse Crepo],” but that it should not be used in determining whether defendant was at fault in this case.

At the second trial, Nurse Crepo testified during plaintiff’s case-in-chief, stating that she informed defendant that the patient was having continued chest pain. During defendant’s testimony, he was asked whether the standard of care would have required him to go back and reevaluate the patient if he knew about her chest pain, to which he responded that it would. After all the evidence was presented, the jury found in favor of plaintiff at the second trial, and this appeal followed.

Defendant raised three issues on appeal. First, the Court addressed whether the trial court erred by granting plaintiff’s motion for a new trial after the first trial based on defendant attempting to shift blame to the nurse even though he had not pled comparative fault. Defendant argued that he did not attempt to blame the nurses, as he presented “no expert testimony regarding the nursing standard of care, or deviation from that standard of care,” but the Court disagreed. The Court noted that defendant’s “own testimony highlights how impactful it would have been had he known about [the patient’s] ongoing chest pain,” as he himself testified that if he had been notified, he would have re-evaluated the patient. The Court stated that it was “unpersuaded that the matter of whether [defendant] was notified about [the patient’s] ongoing chest pain somehow was immaterial to a determination of the cause in fact of her death,” and that “it was incumbent upon [defendant] to plead the comparative fault of the nurses in his answer if he intended to assert that they never notified him of [the patient’s] ongoing pain.” Due to the failure to plead comparative fault, the Court of Appeals determined that the trial court did not abuse its discretion in granting the motion for new trial.

Next, the Court addressed whether the trial court erred by admitting evidence that defendant had voluntarily surrendered his privileges at the hospital where this incident took place. Defendant asserted that this evidence violated the peer review privilege, but the Court of Appeals disagreed. While records of quality improvement committees (QIC) are statutorily privileged under Tennessee law, this privilege is subject to the original source exception, which provides that “any information, documents or records that were not produced for use by a QIC, or which were not produced by persons acting on behalf of a QIC, and are available from original sources, are not immune from discovery or admission into evidence even if the information was presented during a QIC proceeding.” (Tenn. Code Ann. § 68-11-272(c)(2)). In this case, the information about the voluntary surrender of privileges was found by plaintiff’s attorney “on the Tennessee Department of Health website under [defendant’s] publicly available Practitioner Profile.” Further, the jury was instructed that this information was only to be used in considering defendant’s “competence as an expert witness and his credibility in resolving the factual dispute over the content of the 3:30 p.m. phone call with Nurse Crepo.” Accordingly, the Court ruled that the trial court did not abuse its discretion in allowing this evidence.

Finally, defendant asserted that the trial court “failed to independently exercise its role as thirteenth juror” because it initially upheld the first jury’s verdict for defendant, and defendant argued that it could therefore not uphold the second jury’s verdict for plaintiff because the same evidence was presented at both trials. The Court of Appeals noted, though, that the trials were different in some ways, such as Nurse Crepo testifying during plaintiff’s case-in-chief in the second trial. The Court ruled that there was no evidence that the trial court failed to exercise its independent discretion and accordingly affirmed the trial court’s verdict for plaintiff.

The rulings in this case were fairly fact specific, but this opinion does emphasize the importance of a defendant pleading comparative fault if he or she intends to shift blame to another party or a nonparty.  This has been the law of Tennessee since the decision in George v. Alexander over 20 years ago.  In this case, defendant’s failure to plead comparative fault and then subsequent testimony that the nurse did not fully inform him of the patient’s condition led to a jury verdict in his favor being vacated and a second trial where he was found to be liable.

NOTE: the opinion in this case was released about six weeks after oral argument.

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