Abshure v. Methodist Healthcare-memphis Hosp.s

• Decision Date: 20 October 2010
• Docket Number: No. W2008-01486-SC-R11-CV.,W2008-01486-SC-R11-CV.
• Parties: Joann ABSHURE et al. v. METHODIST HEALTHCARE-MEMPHIS HOSPITALS.
• Court: Tennessee Supreme Court

325 S.W.3d 98

Joann ABSHURE et al.

v.METHODIST HEALTHCARE-MEMPHIS HOSPITALS.

No. W2008-01486-SC-R11-CV.

Supreme Court of Tennessee,at Jackson.

April 7, 2010 Session.

Oct. 20, 2010.

COPYRIGHT MATERIAL OMITTED.

Al H. Thomas and Kenneth R. Besser, Memphis, Tennessee, for the appellants, Joann Abshure and Billy Jack Abshure.

William L. Bomar, Buckner P. Wellford, and Jacob A. Dickerson, Memphis, Tennessee, for the appellee, Methodist Healthcare-Memphis Hospitals.

OPINION

WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which CORNELIA A. CLARK, C.J., JANICE M. HOLDER, GARY R. WADE, and SHARON G. LEE, JJ., joined.

WILLIAM C. KOCH, JR., J.

This appeal involves a vicarious liability claim against a hospital based on the conduct of an emergency room physician. A patient and her husband filed a medical malpractice suit in the Circuit Court for Shelby County against a hospital and two physicians, one of whom had treated the patient in the hospital's emergency room. Among other things, the complaint broadly alleged that the hospital was vicariously liable for the conduct of its agents. After the plaintiffs voluntarily dismissed their claims against both physicians for the second time, the hospital sought the dismissal of the vicarious liability claims on the ground that the plaintiffs' claims against its apparent agent, the emergency room physician, were barred by operation of law. The trial court granted the hospital's motion, and the Court of Appeals affirmed the dismissal of the vicarious liability claims against the hospital. Abshure v. Upshaw, No. W2008-01486-COA-R3-CV, 2009 WL 690804, at *5 (Tenn.Ct.App. Mar. 17, 2009). We granted the Tenn. R.App. P. 11 application filed by the patient and her husband to determine whether their vicarious liability claims against the hospital should be dismissed under the facts of this case. We have determined that the lower courts erred by dismissing the vicarious liability claims against the hospital.

I. ¹

Joann Abshure, a woman in her mid-sixties with a family history of colon and pancreatic cancer, complained of bloating and changes in her bowel patterns to Dr. Whitney T. Slade, her primary care physician. Dr. Slade advised her to have a colonoscopy. Dr. Jeremiah Upshaw performed the colonoscopy as an outpatient procedure on May 2, 2001 at the GI Diagnostic and Therapeutic Center in Memphis. Dr. Upshaw used a pediatric scope that was smaller in diameter and more flexible than a standard scope and reported in his operative notes that he encountered “an extremely tortuous colon with evidence of pelvic adhesions making the procedure more difficult.”

Ms. Abshure experienced significant abdominal discomfort after she returned home. When Dr. Upshaw's office made a follow-up telephone call on May 3, 2001, Ms. Abshure reported that she had a great deal of soreness in her abdomen. Ms. Abshure began to have diarrhea on May 4, 2001, and the diarrhea was replaced by constipation on May 5, 2001. On May 6, 2001, while attempting to have a bowel movement, Ms. Abshure felt a popping sensation in her side.

Ms. Abshure's abdominal pain intensified, and she began to experience rectal pain and pressure. She became extremely nauseated and began vomiting. In response to his wife's worsening condition, Billy Jack Abshure called an ambulance, and Ms. Abshure was transported to Methodist Healthcare-Memphis Hospitals (“Methodist Hospital”).

After Ms. Abshure arrived at the emergency room of Methodist Hospital at approximately 10:00 a.m. on May 6, 2001, she was examined by Dr. Luther C. Ogle III. The Abshures informed Dr. Ogle that Ms. Abshure had undergone a colonoscopy four days earlier on May 2, 2001, and they also told him about the popping sensation Ms. Abshure had experienced, as well as her abdominal and rectal pain and pressure.

Dr. Ogle noted Ms. Abshure's abdominal distention and ordered lab work, acute abdominal X-rays, and a CT scan of Ms. Abshure's abdomen. When the lab work and X-rays indicated that pancreatitis was unlikely and failed to reveal the presence of intraperitoneal air, Dr. Ogle ordered a series of enemas for Ms. Abshure before he received the results of the CT scan. Ms. Abshure was given two enemas between 1:55 p.m. and 2:35 p.m. After an attending nurse removed a fecal impaction, Ms. Abshure received a third enema at 4:40 p.m.

By this time, Ms. Abshure was experiencing extraordinary pain and was administered stronger pain medication. After the CT scan revealed the presence of free intraperitoneal air and fluid in Ms. Abshure's upper abdomen and the appearance of air and stool in the pelvis adjacent to her sigmoid colon, Dr. Clay Jones performed an emergency exploratory laparotomy that revealed a perforation of the sigmoid colon with fecal contamination of the peritoneum with secondary peritonitis. Dr. Jones performed a colostomy on Ms. Abshure and left her surgical incision open after packing the wound with gauze and abdominal pads.

While Ms. Abshure was recovering in the intensive care unit, she developed adult respiratory distress syndrome and sepsis. Many specialists were called in, including an infectious disease expert, a cardiologist, a pulmonologist, and an internist. Dr. Jones eventually closed the surgical incision on May 30, 2001, and Ms. Abshure was discharged from Methodist Hospital with a colostomy on May 31, 2001.

Ms. Abshure filed suit in the Shelby County General Sessions Court against Methodist Hospital and Drs. Upshaw and Ogle. However, she voluntarily dismissed this suit on August 28, 2002. ² Less than one year later, on June 23, 2003, the Abshures filed suit in the Circuit Court for Shelby County against Methodist Hospital and Drs. Ogle and Upshaw. The defendants filed timely answers denying liability.

On December 17, 2003, Dr. Upshaw moved for a summary judgment on the ground that the Abshures had been provided a reasonable opportunity to present expert testimony on negligence and causation and had failed to do so. Dr. Ogle likewise moved for a summary judgment on September 16, 2004. Before the trial court acted on the pending motions for summary judgment, the Abshures decided to voluntarily dismiss their claims against Drs. Upshaw and Ogle for the second time. On July 8, 2005, the trial court entered an order dismissing the Abshures' claims against Drs. Upshaw and Ogle. ³

On May 2, 2008, nearly three years after the Abshures' voluntary dismissal of their claims against Drs. Upshaw and Ogle, Methodist Hospital filed a “motion to dismiss and/or for summary judgment.” In this motion and in a supplemental memorandum of law, based upon the deposition of the Abshures' medical expert, Methodist Hospital argued that the Abshures' only claim against the hospital was premised on the hospital's vicarious liability for the acts of Dr. Ogle. The hospital then argued that the Abshures' claims against Dr. Ogle were now barred by operation of law by the statute of repose for medical malpractice actions and by Tenn. R. Civ. P. 41.01(2). ⁴

On July 2, 2008, the trial court filed a detailed order granting Methodist Hospital's motion for summary judgment on four grounds. First, the trial court concluded that Methodist Hospital did not have adequate notice of the Abshures' vicarious liability claim because the allegations in their complaint were deficient. Second, the trial court concluded that the Abshures could not pursue their vicarious liability claims against Methodist Hospital because the statute of repose had extinguished their claims against Dr. Ogle. Third, the trial court concluded that the Abshures could not pursue their vicarious liability claims against Methodist Hospital because, by operation of Tenn. R. Civ. P. 41.01(2), their second voluntary nonsuit of their claims against Dr. Ogle extinguished their claims against him by operation of law. Fourth, the trial court concluded the Abshures' second voluntary nonsuit conferred an affirmative substantive right on Dr. Ogle precluding an assessment of liability against him.

The Abshures appealed to the Court of Appeals. In an opinion filed on March 17, 2009, the appellate court determined that the Abshures had adequately pleaded their vicarious liability claim. Abshure v. Upshaw, No. W2008-01486-COA-R3-CV, 2009 WL 690804, at *6 (Tenn.Ct.App. Mar. 17, 2009). The court also held that “where an initial claim is timely filed, the expiration of the statute of repose will not extinguish a claim for vicarious liability by operation of law where the plaintiff voluntarily nonsuits his action....” Abshure v. Upshaw, 2009 WL 690804, at *7.

However, the Court of Appeals also determined that by taking the second voluntary nonsuit, “the Abshures' right of action against Dr. Ogle has been extinguished by operation of law and ... the Abshures have conferred upon Dr. Ogle an affirmative substantive right that precludes an assessment of liability against him.” Abshure v. Upshaw, 2009 WL 690804, at *8. Accordingly, the court affirmed the summary judgment because Methodist Hospital could not, as a matter of law, be held vicariously liable for Dr. Ogle's actions. See Abshure v. Upshaw, 2009 WL 690804, at *7-10.

We granted the Abshures' Tenn. R.App. P. 11 application for permission to appeal. Before this Court, the Abshures insist that the limitations on a principal's vicarious liability for acts of its agents do not apply to the circumstances of this case. Methodist Hospital responds that the Court of Appeals properly applied those limitations in this case. Methodist Hospital also argues that the Court of Appeals erred by concluding that the Abshures' complaint sufficiently states a claim for vicarious liability.

II.

The facts material to the disposition of this case are not disputed. Accordingly, a motion for summary judgment provides a proper vehicle for addressing the dispositive legal issues presented by the parties. Methodist Hospital is entitled to a summary dismissal of the Abshures'...