Day on Torts
Where a doctor had time to confer with her colleagues twice, even shortly, before determining a course of action for her patient, the Tennessee trial court erred by giving the jury an instruction on the sudden emergency doctrine. The jury verdict for defendants was accordingly vacated, and the case was remanded for a new trial.
In Vandyke v. Foulk, No. E2016-00584-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2017), plaintiff filed an HCLA suit related to the death of her newborn son shortly after his birth. Plaintiff was 24 weeks pregnant with twins when she was transferred to defendant hospital for pre-term labor. Once it became apparent that delivery was imminent, plaintiff was moved to the operating room, where her delivery team consisted of Dr. Foulk, the attending physician, and two fourth year residents, Goodwin and Hobbs. Baby A was born vaginally, after which time Baby B “settled into a transverse or sideways position.” Dr. Foulk rotated Baby B to a head-down position, and Baby B suffered a drop in heart rate necessitating a quick delivery. Dr. Foulk had a more senior attending physician, Dr. Herrell, paged, and Dr. Foulk and the two residents discussed what should be done. When Dr. Herrell arrived, he and Dr. Foulk assessed the situation and determined that they would attempt a delivery by forceps. Dr. Herrell tried to place a second forcep two times and “met resistance.” Baby B was then delivered by c-section, and he had a “skull fracture a scalp avulsion, meaning that his scalp was no longer attached…” Baby B was transferred to the NICU and died a few hours later.
Plaintiff filed this HCLA suit against several defendants, including the two attending physicians and the hospital. Before the trial, the Court granted defendants’ motion in limine to exclude testimony from Goodwin and Hobbs, the residents, about “an approximate 30-second discussion between Drs. Foulk, Goodwin and Hobbs in which Drs. Goodwin and Hobbs suggested that an emergency cesarean section was warranted.” Further, the Court granted defendant’s “request to include a jury instruction on the ‘sudden emergency’ doctrine.” After a six-day jury trial that was described as a “battle of the experts,” the jury returned a verdict for defendants. Plaintiff appealed, raising as issues the exclusion of the c-section discussion and the jury instruction on the sudden emergency doctrine.
First, the Court analyzed the exclusion of testimony regarding the conversation where the residents recommended a c-section. Plaintiff argued that “the court erroneously excluded the testimony from unlicensed physicians pursuant to Tennessee Code Annotated section 29-26-115(b),” and that “the testimony was not offered to establish the standard of care but to establish the…circumstances surrounding the decision, namely that ‘the cesarean option had been specifically and explicitly voiced and discussed amongst the delivery team’ prior to the attempted delivery by forceps.”
Section 29-26-115 lists the expert proof requirements that an HCLA plaintiff must meet, and section (b) of that statute states that a person who is in a profession requiring licensure who was not licensed and practicing during the year preceding the injury should not be allowed to satisfy these requirements. The trial court agreed with plaintiff, though, that barring the doctors who were residents at the time of the injury from testifying on this basis was incorrect. That, however, was not the end of the inquiry, as the Court then looked at whether the testimony was relevant and admissible. Because the testimony could have shown that “Dr. Foulk had the presence of mind and the time, albeit minimal, to consider her options before proceeding with an operative delivery by forceps,” the Court deemed the testimony relevant. Despite its relevance, the Court held that the evidence was inadmissible hearsay, as the “specific statements were offered to prove the truth of the matter asserted.” Further, the Court found that even if the testimony was admissible, the exclusion was harmless error, as plaintiff was able to present evidence that Dr. Foulk had a discussion with the two residents and a second discussion with Dr. Herrell, and that a c-section had been considered before attempting the forcep birth. Accordingly, plaintiff was not entitled to relief on this issue.
Next, the Court looked at the sudden emergency jury instruction. “The sudden emergency doctrine…recognizes that a person confronted with a sudden or unexpected emergency which calls for immediate action is not expected to exercise the same accuracy of judgment as one acting under normal circumstances who has the time for reflection and thought before acting.” (internal citation and quotation omitted). Here, plaintiff argued that “there was no material evidence to establish that the situation presented was unexpected or that the defendant physicians had little time to think and reflect before acting.” Plaintiff further argued that “the instruction is only warranted when the emergency is sudden and unexpected, not sudden or unexpected.”
On this issue, the Court reasoned:
The parties in this case place emphasis on whether the emergency must be both sudden and unexpected. The record reflects that the emergent situation presented was a sudden occurrence but was not unexpected, as evidenced by the decision to deliver in the operating room rather than a birthing suite, the presence of an ‘army’ to assist in the delivery, and the advanced preparations made in an attempt to expect the unexpected. While we agree that the presentation of the instruction in the disjunctive affects the application of the doctrine, we believe the greater distinction in this case lies in whether the defendant physicians were presented with a sudden or unexpected emergency that ‘called for immediate action’ as opposed to someone who ‘had time for reflection and thought before acting.’
The Court pointed out that Dr. Foulk’s testimony showed that she went through her options in her head and conferred with both her delivery team and Dr. Herrell before choosing to go through with the forcep procedure. Based on this evidence, the Court of Appeals held that “the court erred in issuing a jury instruction on the sudden emergency doctrine when the defendant physicians had time, while minimal, for reflection and thought before deciding on the best course of action.” The Court also held that this error more probably than not affected the outcome of the trial, especially in light of how often during the trial the defendant doctors emphasized the emergent nature of the situation.
Because of the error in jury instructions, the verdict was vacated and the case was remanded for a new trial.
This case is a good read for anyone arguing for or against a sudden emergency doctrine jury instruction. The Court went through a fairly thorough analysis of when such an instruction should be given in the medical context, and it correctly decided this case. I would never go so far as to say a “sudden emergency” instruction should never be given in a health care liability case. But the standard of care takes into account emergent circumstances, and those the instruction should be given under the rarest of circumstances.