No Continuance for HCLA Plaintiff Who Did Not Have Expert Affidavit After Eight Months

Where plaintiff’s expert witness in an HCLA case unexpectedly decided to no longer provide testimony soon before plaintiff’s response to a motion for summary judgment was due, and plaintiff sought to continue the motion and hold a hearing on possible witness tampering, the trial court erred by granting summary judgment to some defendants. For defendants not affected by the allegedly tampered-with witness, however, summary judgment was affirmed due to the plaintiff’s failure to obtain an expert affidavit in the eight months the case was pending.

In Stubblefield v. Morristown-Hamblen Hospital Association, No. E2017-00994-COA-R3-CV (Tenn. Ct. App. June 11, 2019), plaintiff filed an HCLA claim related to allegedly negligent post-operative care after a cardiac catheterization. Plaintiff named as defendants the hospital, the nurse who treated her overnight after her surgery, a physician group, and the physician who was first paged when a complication was discovered and who ordered treatment for plaintiff without actually going to the hospital to see her.

Plaintiff first filed suit on February 7, 2012, but “after extensive discovery,” she voluntarily dismissed this case in December 2014. Plaintiff re-filed in December 2015, and defendants filed motions for summary judgment. In support of their motions, defendants submitted affidavits from defendant nurse and defendant doctor stating that they had complied with the applicable standards of care. In May 2016, plaintiff requested additional time for discovery, which the trial court granted. Plaintiff requested additional time again in September, and the case was set for hearing on October 4, 2016.

On September 1st, plaintiff had identified two experts via email, Nurse Ogle and Dr. Lieppe. The email stated that Nurse Ogle was expected to testify as to the hospital nurses’ applicable standard of care, including the nurse individually named as a defendant. Dr. Lieppe was expected to testify regarding the nurses and the defendant doctor.

On September 30th, just before the scheduled hearing, “Plaintiff requested a continuance, claiming that the Hospital had unlawfully coerced Nurse Ogle to withhold her testimony.” The hospital denied this claim, but plaintiff sought to have an evidentiary hearing regarding witness tampering. At no point did plaintiff produce any affidavit or other evidence from any expert witness related to her claims.

Following the October 4th hearing, the trial court granted summary judgment to all defendants on all claims. “The court held that Plaintiff had failed to file a properly supported response to the motions for summary judgment, establishing that there was no deviation in the applicable standard of care and no causation for Plaintiff’s injuries.” The trial court also denied the motion for continuance and an evidentiary hearing, and this appeal followed.

In its analysis, the Court of Appeals split the claims into two categories—the claims against the hospital and the nurse, and the claims against the doctor and doctor’s group. The expert witness who withdrew her participation was expected to testify regarding the standard of care for nurses, which only affected the claims against the named nurse and the hospital. For those claims, the Court of Appeals found:

Plaintiff sought the continuance to obtain admissible evidence of the claimed intimidation, if possible, and to adequately respond to the motion for summary judgment in light of her unexpected loss of an expert witness. Plaintiff has suffered extreme prejudice as a result of the denial of the continuance as evidenced by the grant of summary judgment when she was left without an expert from which to respond to pending motions as it related to Hospital and Nurse Adams.

Accordingly, the Court ruled that the trial court abused its discretion in denying the motion for an evidentiary hearing and continuance. It reversed summary judgment as to these two defendants and remanded these claims.

On the claims against the doctor and doctor’s group, however, summary judgment was affirmed. The Court found that the testimony of the expert who was allegedly intimidated had no bearing on these claims, and that despite identifying a relevant expert by email, plaintiff failed to ever provide an expert affidavit that would support her healthcare liability claims against these defendants. The Court specifically noted that plaintiff’s “diligence throughout the case as to these defendants was questionable when no expert affidavit has been secured in the more than eight months that the case was pending, despite her filing of a certificate of good faith establishing that an expert had been consulted and her summary of Dr. Lieppe’s expected opinions.”

After the grant of summary judgment, plaintiff had filed a motion to alter or amend the judgment along with an affidavit from expert Dr. Lieppe. The trial court denied this motion, and the Court of Appeals affirmed the denial. While the Court acknowledged that the newly offered evidence was important to plaintiff’s case, it found that the other factors to be considered on a motion to alter or amend “overwhelmingly weigh in favor of a denial of the motion.” The Court stated:

Plaintiff’s effort in obtaining the information and explanation for the failure to obtain such information prior to the hearing are considerably lacking as applied to these defendants. This particular action was pending for approximately eight months prior to the hearing. This action was filed following Plaintiff’s voluntary nonsuit of the original action in which extensive discovery was completed in response to pending motions for summary judgment. Plaintiff was well-aware of the need for an expert affidavit to respond to the motions but chose to wait until the last minute to procure one. The non-moving party would also suffer unfair prejudice by allowing the case to continue further, considering the overall age of the case.

The Court also found that the failure to previously obtain an expert affidavit did not qualify as excusable neglect by plaintiff’s counsel, and affirmed the denial of the motion to alter or amend.

While this opinion was light on legal analysis and focused more on the facts of this specific case, one thing was clear—the plaintiff’s delay in obtaining expert affidavits to support her HCLA claims was fatal to her case against at least the doctor and doctor’s group. When making an HCLA claim, plaintiffs need to be prepared to obtain timely affidavits from proper expert witnesses to survive the summary judgment stage.

There is a case pending before the Tennessee Supreme Court likely will shed light on the circumstances under which a person may use a Tenn. R. Civ. Pro.  59 motion to alter or amend to introduce evidence after summary judgment has been entered.  The case, Harmon v. Hickman Community Healthcare Services, Inc., was argued in late May, 2019; a decision would be normally expected before the end of the year.