Akers v. Heritage Med. Assocs., P.C.
| Decision Date | 04 January 2019 |
| Docket Number | No. M2017-02470-COA-R3-CV,M2017-02470-COA-R3-CV |
| Parties | DEBORAH L. AKERS v. HERITAGE MEDICAL ASSOCIATES, P.C., ET AL. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Davidson County
This is a health care liability action in which the plaintiff asserted claims of professional negligence, negligent supervision, and medical battery against a physician's assistant, a dermatologist, and their employer. The trial court granted the defendants' motion for summary judgment under Tennessee Rule of Civil Procedure 56.02, motion for dismissal under Tennessee Rule of Civil Procedure 37.02, and motion for sanctions under Tennessee Code Annotated section 29-26-122(d). We agree with the trial court's determination that the plaintiff failed to obtain a competent expert witness to testify on the applicable standard of care as required by Tennessee Code Annotated section 29-26-115 and violated Tennessee Code Annotated section 29-26-122 by filing a non-compliant certificate of good faith. Accordingly, we affirm the trial court's dismissal of plaintiff's action and award of sanctions.
Deborah Akers, Nashville, Tennessee, pro se.
Rachel Hogan and Wendy Longmire, Nashville, Tennessee, for the appellees, Heritage Medical Associates, Shelly F. Franklin, M.D., and Ivylee B. Trump, P.A.-C.
OPINIONOn November 19, 2014, Deborah Akers ("Plaintiff") went to the office of Heritage Medical Associates ("Heritage") for treatment of a rash on her wrist. Plaintiff was seen by Dr. Shelly Franklin's physician assistant, Ivylee Trump, who treated Plaintiff by performing a punch biopsy of the area and suturing the resulting laceration.
Two days later, Plaintiff awoke with "flu-like symptoms" and noticed red streaks emanating from the wound. Plaintiff's husband promptly took her to the St. Thomas Hospital Emergency Room, where George Carpenter, M.D., evaluated her. Dr. Carpenter diagnosed Plaintiff's condition as cellulitis1 and lymphangitis2 and treated her for a staphylococcus aureus infection.
On November 23, 2015, Plaintiff filed a complaint against Heritage, Dr. Franklin, and Ms. Trump (collectively, "Defendants"). Plaintiff asserted a professional-negligence claim against Defendants, a medical-battery claim against Ms. Trump and Dr. Franklin, and a negligent-supervision claim against Dr. Franklin and Heritage. Plaintiff alleged that Ms. Trump was not qualified to perform the punch biopsy and did not wash her hands, wear gloves, or use sterile medical equipment when performing the procedure. Plaintiff also alleged that, as a result, she suffered from the staphylococcus infection and was incapacitated for 11 days. Defendants answered the complaint and denied any wrongdoing.
On December 21, 2015, Defendants served Plaintiff with interrogatories, including the following:
Plaintiff responded by providing the following:
George Carpenter, M.D., c/o Saint Thomas West Hospital, 4220 Harding Road, Nashville, Tennessee 37205; no relationship to herein Plaintiff other than Doctor Patient; causation, severity, Emergency Room treatment, "post-release treatment plan & instructions"; & follow up recommendations.
. . .
Qualifications are self-evident; list of all publications authored in the previous ten (10) years is unknown; list of all other cases in which during the previous four years the witness testified as an expert is unknown; statement of the compensation to be paid for the study and testimony in the case is yet to be determined.
(punctuation added).
By letter, counsel for Defendants requested Plaintiff to amend several of her responses, including the responses to interrogatories four and five, above. In response, Plaintiff asserted that her responses were "both accurate and complete" and stated, "If you/your clients yet assert the same to be woefully insufficient please feel free to seek a ruling from the Court." Accordingly, on May 2, 2016, Defendants filed a motion to compel Plaintiff's amended responses.
Before the motion was heard, the parties agreed to supplement their responses to each other's discovery requests. However, Plaintiff made no changes to her response to interrogatory number four. Plaintiff amended her response to interrogatory number five by adding that Dr. Carpenter's "[q]ualifications are self-evident inasmuch as witness is a licensed Medical Doctor in good standing within the State of Tennessee" and asserting that the compensation to be paid was "premature for disclosure at [the] current stage of litigation."
On September 28, 2016, counsel for Defendants sent a second letter to Plaintiff asserting, inter alia, that Plaintiff's response to interrogatory number four remained deficient. After receiving no response, Defendants renewed their motion to compel.
On December 12, 2016, after a hearing on Defendants' Motion to Compel, the trial court entered an order requiring Plaintiff to, inter alia, supplement her response to interrogatory number four. Plaintiff filed supplemental responses; however, Plaintiff's response to number four simply contended that the issue was premature because the court had not set a deadline for disclosure of expert witnesses.
After the parties attended a second case-management conference, the trial court entered an order requiring Plaintiff to disclose her expert witnesses by July 10, 2017. In response, Plaintiff filed a "Disclosure of Expert Witness(es)" that provided the following:
On August 4, 2017, Defendants filed a Motion to Strike the disclosure, contending that it failed to (a) identify a standard of care expert; (b) state the grounds for the experts' opinions; (c) provide the experts' qualifications; (d) list the cases in which the experts had testified; and (e) state the amount of compensation to be paid. The trial court heard the motion on August 18, 2017, and ordered the parties to meet and confer in good faith to resolve the dispute. The same day, Plaintiff met with Defendants' counsel and revealed that she had not retained the experts identified in her disclosure. Nonetheless, she agreed to supplement her disclosure by September 11, 2017.
On September 7, 2017, Defendants filed a Motion for Summary Judgment, alleging that Plaintiff's evidence could not establish any of her claims.
Defendants' Motion to Strike was heard on September 15, 2017, and the court ordered Plaintiff to supplement her interrogatory responses related to expert witnesses by October 2, 2017. Defendants submitted a proposed order on September 20, 2017, and a signed copy was entered on September 29, 2017. The order provided that, if Plaintiff met the October 2 deadline, the court would entertain a motion to continue Defendants' pending Motion for Summary Judgment. The order also notified Plaintiff that the Motion for Summary Judgment was set for a hearing on October 20, 2017; Plaintiff's response was due by October 13, 2017; and failing to file a response might cause the Defendants' motion to be granted.
Despite the fact that Plaintiff...
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