Day on Torts
A nurse who worked in an administrative capacity in the year preceding an incident underlying an HCLA claim may not be qualified to give expert testimony in the case. A Rule 59.04 motion did not cure the deficiency in the initial affidavit.
In Smith v. Methodist Hospitals of Memphis, No. W2018-00435-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2019), plaintiff filed an HCLA suit alleging that defendant hospital failed to provide him proper postsurgical care, necessitating a subsequent hospitalization and surgery. This case was originally filed in 1999 and had already been through one round of appeals, but the issue in this opinion was whether the trial court rightly granted summary judgment on the basis that neither of plaintiff’s identified expert witnesses were competent to testify, and then properly denied a motion to alter or amend the judgment.
Plaintiff had identified two experts. One, Dr. Lim, had already admitted that “she was not familiar with the acceptable standard of professional practice for recovery room nurses in 1999.” The expert at issue, then, was the nurse identified by plaintiff. While the nurse was licensed in the year preceding the injury, there was “no evidence that she provided clinical care as a nurse during such time. Rather, the evidence suggest[ed] that she was working in an administrative capacity at a hospital and owned a nursing staffing company that year.” The trial court agreed with defendant that “neither job qualified [the nurse] to give her opinion as to the relevant nursing standard of care,” and that she was thus not qualified under Tenn. Code Ann. Section 29-26-115(b). The trial court granted summary judgment to defendant.
After summary judgment was granted, plaintiff filed a motion to alter or amend the judgment, attaching a new affidavit from the nurse wherein she stated that in “the year preceding the alleged injury, she was a clinical nurse who filled in and covered for nurses in different areas of the hospital.” The trial court denied the motion, stating that “even if Plaintiffs met their burden to demonstrate that the factors weighed in favor of considering the newly filed, supplemental Affidavit,” it was “still persuaded that [the nurse] has not demonstrated requisite familiarity with the nursing standard of care in a post-operative setting relating to [the patient’s] care.” The Court of Appeals affirmed.
Plaintiff argued on appeal that the trial court failed to properly consider the five factors outlined by the Tennessee Supreme Court for when a court is faced with “additional or new evidence in support of [a] motion to alter or amend[.]” (See Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000)). The Court of Appeals pointed out, though, that the trial court was relying on the fifth factor, “any other relevant factor,” which includes whether the new evidence cures the defect previously identified in the evidence. “Implicit in the Harris v. Chern opinion is the Tennessee Supreme Court’s recognition that relief under Tenn. R. Civ. P. 59.04 is available only when the supplemental affidavit effectively remedies the defects or shortcomings in the earlier affidavit[.]” (internal citation and quotation omitted). Here, the trial court found that the evidence presented in the new affidavit still did not qualify the nurse to testify as an expert. The Court of Appeals affirmed this decision, noting that it was not error for the trial judge to find that the nurse’s “vague statement in her 2017 affidavit that she filled in various areas of the hospital as needed in 1999 was insufficient to cure the shortcomings in her earlier affidavit.” Summary judgment and the denial of the motion to alter or amend were accordingly affirmed.
If you are trying to correct a deficiency in an expert affidavit, this case shows us that a vague statement will probably not suffice. Here, the evidence was going to be almost twenty years old, so the nurse needed to say more than that she filled in for other nurses sometimes to overcome the ruling that she was not qualified to testify.
One more point. This case is almost 20 years old. When this plaintiff was injured, Bill Clinton was President. The Twin Towers were still standing. “Genie in A Bottle” by Christine Aguilera was the number one song. The “Big Mouth Billy Bass” fish was introduced to the American public. One billion, seven hundred million people have been added to the world population since this person was injured.
I know this case was previously appealed. The first COA opinion was dated August 31, 2012 – over 13 years after the plaintiff was injured. Now, here we are over 90 months later.
The system has failed the plaintiff and defendants in this case. I don’t know enough about what happened to point the finger at anyone or at everyone. But I do know that the system has failed.