Abshure v. Upshaw, No. W2008-01486-COA-R3-CV (Tenn. App. 3/17/2009)
| Decision Date | 17 March 2009 |
| Docket Number | No. W2008-01486-COA-R3-CV.,W2008-01486-COA-R3-CV. |
| Parties | JOANN ABSHURE, ET AL. v. JEREMIAH UPSHAW, M.D., ET AL. |
| Court | Tennessee Court of Appeals |
Kenneth Raymond Besser and Al H. Thomas, Memphis, Tennessee, for the Appellants, Joann Abshure and Billy Jack Abshure.
William Lynn Bomar, Memphis, Tennessee, for the Appellee, Methodist Healthcare Memphis Hospitals.
OPINION
This is a medical malpractice action filed against individual Defendants/Physicians and Defendant Hospital. Following Plaintiffs' second Tennessee Rule of Civil Procedure 41.01 voluntary dismissal of individual Defendants, Defendant Hospital moved for summary judgment. The trial court awarded Hospital summary judgment upon concluding that the evidence demonstrated negligence on part of one Defendant/Physician only, and Plaintiffs had failed to assert a claim of vicarious liability against Hospital for the alleged negligence of its agent, Defendant/Physician prior to twice dismissing Physician. The trial court determined Plaintiffs' cause of action had been extinguished where the statute of repose applicable to claim against Physician had expired, and that Plaintiffs had conferred on Physician an affirmative right not to be sued again. Plaintiffs appeal. We reverse in part, affirm in part, and affirm the award of summary judgment to Defendant Hospital.
This is a medical malpractice action arising from the treatment of Plaintiff Joann Abshure (Ms. Abshure) in May 2001. The facts relevant to our analysis of the issues raised on appeal are undisputed. On May 2, Defendant Jeremiah Upshaw, M.D. (Dr. Upshaw) performed a colonoscopy on Ms. Abshure. On May 6, 2001, Ms. Abshure went to the emergency room of Defendant Methodist Healthcare—Memphis Hospitals ("Methodist") complaining of abdominal pain. She was treated at Methodist by emergency room physician Defendant Luther Ogle, III, M.D. (Dr. Ogle). Dr. Ogle is directly employed by T.M. Carr, M.D., P.C., which contracts with Methodist to cover its emergency room.
Dr. Ogle ordered a CT scan of Ms. Abshure's abdomen and pelvis. He also ordered three enemas to be given to Ms. Abshure to relieve the pain. Dr. Ogle apparently ordered the enemas before reviewing the CT scan. The CT scan revealed several conditions, and Ms. Abshure underwent emergency surgery. During the surgery, Dr. Clay Jones discovered a perforated colon with fecal contamination of the peritoneum with secondary peritonitis. He performed a colostomy and Ms. Abshure was taken to the ICU. She developed respiratory distress and sepsis syndrome in the ICU. She underwent surgery to close the abdominal wound on May 30, 2001, and was discharged from Methodist on May 31. She continues to have a colostomy.
On July 18, 2002, Ms. Abshure and her husband, Billy Jack Abshure (collectively, "the Abshures") filed an action against Methodist, Dr. Upshaw, and Dr. Ogle in general sessions court. Defendants were properly served. The Abshures voluntarily nonsuited their action pursuant to Tennessee Rule of Civil Procedure 41.01 ("Rule 41.01") in August 2002. On June 23, 2003, within the one-year period provided by the savings statute, the Abshures recommenced their medical malpractice action in the Shelby County Circuit Court. Defendants answered and denied claims of negligence.
In December 2003, Dr. Upshaw moved for summary judgment. In his expert affidavit, statement of undisputed facts, and memorandum of law, Dr. Upshaw asserted he had performed the colonoscopy within the recognized standard of care and that there had been no apparent complications. He asserted that the Abshures had failed to submit any evidence to demonstrate a disputed issue of material fact despite having an ample opportunity to do so, and that he was entitled to a judgment as a matter of law. Dr. Ogle moved for summary judgment in September 2004. In his expert affidavit, statement of undisputed facts and memorandum of law, Dr. Ogle asserted he had treated Ms. Abshure within the recognized standard of care and was entitled to summary judgment as a matter of law.
In June 2005, the Abshures filed the expert affidavit of Kandarp K. Shaw, M.D. (Dr. Shaw). In his affidavit, Dr. Shaw asserted that, after reviewing the medical records, in his opinion the emergency room "staff of Methodist Hospital acted with less than or failed to act within acceptable standards of care." He opined that, "based upon a reasonable degree of medical certainty, that as a proximate result of Methodist Hospital ER staffs' acts or omissions, Ms. JoAnn Abshure suffered injuries that would not otherwise have occurred." Dr. Shaw stated,
[m]ore specifically, it is my opinion that the Methodist Hospital ER staffs' improper administration of enemas to a post-colonoscopy patient with possible perforation more likely than not contributed to the spread of feces from the colon into the peritoneal cavity, which caused Ms. Abshure to have more severe complications of perforation after colonoscopy than she would have, if enemas were not given.
Although the Abshures' motion is not included in the record transmitted to this Court, on July 8, 2005, the trial court granted their motion to voluntarily dismiss Dr. Upshaw and Dr. Ogle, for the second time. In the meantime, on May 6, 2004, the statute of repose applicable to Dr. Ogle expired.
In October 2007 and March 2008, the Abshures filed the expert affidavits of Frank C. Westmeyer, M.D. (Dr. Westmeyer). In his October 2007 affidavit, Dr. Westmeyer stated that, after reviewing Ms. Abshure's medical records, it was his opinion that Dr. Ogle had not acted within the acceptable standard of care. He stated that Dr. Ogle had deviated from the standard of care when he ordered that enemas be administered to Ms. Abshure before knowing the results of the CT scan where Dr. Ogle knew Ms. Abshure had recently undergone a colonoscopy. He opined that Dr. Ogle's acts proximately caused injuries to Ms. Abshure that would not have occurred otherwise. In his March 2008 affidavit, Dr. Westmeyer stated that, in his opinion, the ER staff of Methodist Hospital failed to act within the acceptable standard of care. He stated that the ER staff should have realized Ms. Abshure was a post-colonoscopy patient with suspected perforation who could have colonic perforation, and that the improper administration of enemas more likely than not contributed to the severe complications experienced by Ms. Abshure.
Methodist took Dr. Westmeyer's deposition in June 2008. In his deposition, Dr. Westmeyer stated that the only ER staff member who, in his opinion, had failed to act within the standard of care was Dr. Ogle. When asked, "[a]nd those are the only opinions of negligence about any of the health care providers in this case that you have in this case that you're going to give is that Dr. Ogle was negligent; correct?" Dr. Westmeyer replied, "[t]hat is correct."
Methodist filed a motion to dismiss/motion for summary judgment in May 2008. In its statement of undisputed facts and memorandum of law, Methodist asserted two alternate and independent reasons for dismissal. First, Methodist asserted that, because the Abshures' claim against it was based solely on vicarious liability, and because the Abshures had nonsuited their claim against Dr. Ogle in July 2005 and could not sue him again, and because the statute of repose had run with respect to Dr. Ogle, extinguishing both the Abshures' remedy and right of action, Methodist could not be held vicariously liable for the alleged negligence of Dr. Ogle. Methodist further asserted that vicarious liability under an apparent agency theory had been eliminated by the Abshures' execution of "certain documents."
Methodist filed two supplemental memoranda in June 2008. In its first supplemental memorandum, Methodist noted that the Abshures' nonsuit of Dr. Ogle in circuit court was the second nonsuit and asserted that the Abshures did not allege that Dr. Ogle was an employee or agent of Methodist in their complaint. Methodist asserted this allegation was "recently deduced" from Dr. Westmeyer's deposition. Methodist withdrew its assertion that Dr. Ogle could not be considered an agent of Methodist under its General Conditions of Admission documents in light of the supreme court's decisions in Boren v. Weeks, 251 S.W.3d 426 (Tenn. 2008) and Dewald v. Hospital Corporation of America, 251 S.W.3d 423 (Tenn. 2008) in May 2008. Methodist asserted, however, that under this Court's opinions in Rankhorn v. Sealtest Foods, 479 S.W.2d 649 (Tenn. Ct. App. 1971) and Huber v. Marlow, No. E2007-01879-COA-R9-CV, 2008 WL 2199827 , the passing of the statute of repose applicable to Dr. Ogle extinguished any vicarious liability of Methodist for the alleged negligence of Dr. Ogle. Methodist asserted that, where Dr. Ogle had been nonsuited and the savings statute, statute of limitations, and statute of repose had run, extinguishing the Abshures' right of action against Dr. Ogle, Methodist could not be held vicariously liable for the negligence of Dr. Ogle. Methodist further argued that the Abshures extinguished Dr. Ogle's liability by nonsuiting Dr. Ogle in spite of Dr. Shah's affidavit and Dr. Ogle's motion for summary judgment.
In its second supplemental memorandum, Methodist asserted that the Abshures' second nonsuit of Dr. Ogle in effect operated as a dismissal with prejudice where it was the second voluntary nonsuit of Dr. Ogle and where the savings statute, statute of limitations, and statute of repose had run. Methodist asserted that it could not be held to be vicariously liable for Dr....
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