Borngne ex rel. Hyter v. Chattanooga-Hamilton Cnty. Hosp. Auth.

• Decision Date: 01 July 2021
• Docket Number: No. E2020-00158-COA-R3-CV,E2020-00158-COA-R3-CV
• Parties: BRITTANY BORNGNE EX REL. MIYONA HYTER v. CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY ET AL.
• Court: Tennessee Court of Appeals

BRITTANY BORNGNE EX REL. MIYONA HYTER v. CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY ET AL.

No. E2020-00158-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

December 2, 2020 Session

July 1, 2021

Appeal from the Circuit Court for Hamilton County

No. 15C814

J.B. Bennett, Judge

This health care liability action arises from injuries suffered by a minor, Miyona Hyter, during her birth. Miyona Hyter, a minor by and through her next friend and mother, Brittany Borngne ("Plaintiff") sued, among others, Dr. Michael Seeber who delivered the child via cesarean section and certified nurse midwife Jennifer Mercer who assisted with the birthing process. Plaintiff alleged that Nurse Mercer was negligent by failing to recognize concerning signs on the fetal monitoring strip and by failing to call Dr. Seeber for assistance sooner than she did. The Circuit Court for Hamilton County ("the Trial Court"), by agreed order, granted Dr. Seeber partial summary judgment on all claims of direct negligence against him; he remained in the case as a defendant only upon Plaintiff's theory that he was vicariously liable for Nurse Mercer's actions as her supervising physician. During his deposition, Dr. Seeber declined to answer questions that he argued required him to render an expert opinion regarding Nurse Mercer's care during times that Dr. Seeber was not present and had no involvement in Plaintiff's care. The Trial Court declined to require Dr. Seeber to answer questions that "call[] for an opinion by Dr. Seeber that asks him to comment on the actions of other healthcare providers and does not involve his own actions, as required by Lewis v. Brooks," 66 S.W.3d 883, 887-88 (Tenn. Ct. App. 2001). After Nurse Mercer's deposition, she submitted an errata sheet that substantively altered her answers to some of the questions. Plaintiff moved to suppress the errata sheet, arguing that Tenn. R. Civ. P. 30.05 does not allow a witness to make substantive changes to her deposition testimony. The Trial Court denied the motion but allowed Plaintiff the opportunity to reopen Nurse Mercer's deposition and to fully cross-examine her at trial about the changes. The case proceeded to trial before a jury, which returned a verdict in Defendants' favor. We hold that the Trial Court erred by refusing to order Dr. Seeber to answer the questions at issue in his deposition. Deeming this case distinguishable from Lewis v. Brooks, we reverse the Trial Court in its declining to compel Dr. Seeber to testify concerning the conduct of his supervisee, Nurse Mercer, and remand for a new trial. We also reverse the Trial Court in its decision to exclude proof of Miyona Hyter's pre-majority medical expenses. We affirm the Trial Court as to the remaining issues.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed, in Part, and Reversed, in Part; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the Court, in which JOHN W. MCCLARTY, J., joined. KRISTI M. DAVIS, J., filed a separate opinion concurring in part and dissenting in part.

Timothy R. Holton, Memphis, Tennessee, for the appellant, Brittany Borngne ex rel. Miyona Hyter.

Joshua A. Powers and Alexandra E. Weiss, Chattanooga, Tennessee, for the appellee, Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System.

Dixie Cooper and Jordan Gibson, Brentwood, Tennessee, for the appellees, Michael John Seeber, Jennifer Mercer, and Caring Choice Women's Center, P.C.

OPINION

Background

On March 3, 2014, Plaintiff, who was at term in her pregnancy, was admitted to the hospital for observation and then for induction of labor. She was diagnosed with high blood pressure and at risk for preeclampsia. Plaintiff's delivery began on the evening of March 5, 2014. It was managed by Nurse-midwife Mercer. After about an hour and 48 minutes of pushing, the baby had made no progress from zero station. The fetal heart monitoring strip showed concerning signs that everyone agreed warranted close observation and monitoring. Nurse Mercer called Dr. Seeber around 11:18 p.m. He arrived at the hospital about 45 minutes later, reviewed Plaintiff's chart, and ordered a c-section to be performed as soon as possible. The child was not breathing when she was delivered. She was diagnosed with permanent brain damage as a result of lack of oxygen and suffered severely debilitating injuries.

Plaintiff brought this action in the Trial Court against Dr. Seeber; Nurse Mercer; Sylvia Stephenson (another nurse who provided care during delivery); Caring Choice Women's Center, P.C., their employer; and Chattanooga-Hamilton County Hospital Authority, d/b/a Erlanger Health System. Dr. Seeber moved for summary judgment on the claims of direct negligence against him. The Trial Court granted his motion in an order stating,

Plaintiff did not dispute Dr. Seeber's motion and argument. . . .[A]ll claims of direct negligence asserted against Dr. Seeber are hereby dismissed with prejudice.

The only remaining claim against Dr. Seeber is under Plaintiff's theory that he is vicariously liable for the actions of Jennifer Mercer, C.N.M., by virtue of his role as her supervising physician.

During Dr. Seeber's deposition, defense counsel stated that he "has asserted Lewis v. Brooks and will not be commenting on the standard of care of the nurses, either directly or indirectly." Dr. Seeber testified in pertinent part as follows:

Q: What would your expectation of Mercer be if you had a patient of your group with minimal variability and late for an hour? What would you expect?

A: It depends . . . if Jennifer Mercer is aware of this, that's one thing. And if Jennifer Mercer is unaware of this is another thing. And I don't know whether she's aware or not so I can't really -I can't really say.

Q: Let's take it -assume she was aware of it. What would your expectation be? Late -

[Defense counsel:] . . . I'm going to object to this and instruct him not to answer. You're asking for an opinion.

Q: What would your expectation of your employee, the one you're supervising, be in this scenario?

[Defense counsel:] Same objection. Instruct him not to answer.

* * *

Q: Well, according to your practice, would you have expected her to tell you that they had had late and minimal variability for an hour?

* * *

A: So your question is -Jennifer Mercer called me . . . at a time when she felt it was appropriate to call me. And that was when a combination of a lack of progress and concern about the fetal heart tones made -made it in her opinion necessary for me to come see this patient. And that's what -that's exactly what she's supposed to do.

* * *

Q: Would it concern you that your patient had been in the hospital with minimal variability and lates for more than an hour before someone bothered to call you?

* * *

[Defense counsel:] No. I'm instructing him not to answer.

[Plaintiff's counsel:] All right. We're going to adjourn.

After they adjourned the deposition, Plaintiff filed a motion to compel Dr. Seeber to answer the questions, arguing that "the facts in this case are not analogous to the fact situation presented in Lewis and Dr. Seeber should be required to answer without limitation." The Trial Court denied the motion, ruling as follows, in pertinent part:

[T]he question calls for an opinion by Dr. Seeber that asks him to comment on the actions of other healthcare providers and does not involve his own actions, as required by Lewis v. Brooks. . . . Dr. Seeber is not required to answer it.

The Court further finds that hypothetical questions posed to Dr. Seeber about actions of other individuals or circumstances involving patient care while he was not involved in the patient's care, are not permissible under Lewis v. Brooks[.]

* * *

[Dr. Seeber] is prohibited from rendering opinions about the care provided by others unless and until he is designated as an expert witness pursuant to the requirements of TRCP 26. In the event Dr. Seeber is so designated, he may be deposed as an expert witness and the costs/expenses referenced hereinafter shall not apply.

Regarding Defendants' Motion to Quash Dr. Seeber's deposition, the Motion is granted in part and denied in part. The Court finds that the Plaintiff may reconvene Dr. Seeber's deposition to ask any additional questions of Dr. Seeber not previously asked but only to the extent the questions address Dr. Seeber's direct involvement and actions in the care and treatment of [Plaintiff] and her daughter, Miyona Hyter . . .

The Motion to Quash is granted in so far as it seeks to prohibit the Plaintiff from asking questions that are governed by Lewis v. Brooks. . . .

Moreover, because the Plaintiff was given the opportunity to ask all the questions she wanted to ask about Dr. Seeber's own actions and involvement in the care and treatment of [Plaintiff] during his first deposition, and her counsel refused to do so and instead adjourned the deposition to seek a ruling by the Court on the question at issue, . . . she should be required to pay for all expenses . . . incurred by Dr. Seeber associated with reconvening his deposition as well as the attorney's fees incurred by his counsel in filing that portion of the Motion to Quash which was granted as to Dr. Seeber.

Nurse Mercer submitted an errata sheet after her deposition in which she made changes to her testimony pursuant to Tenn. R. Civ. P. 30.05. Some of the changes were material and substantive, and some were more simple corrections of obvious misstatements. Nurse Mercer provided explanations for her changes on the errata sheet and in an affidavit. The Trial Court denied Plaintiff's motion to strike or suppress the proposed changes based on its judgment that Rule 30.05, which by its express terms allows "[a]ny changes in form or substance which the witness desires to make," authorizes the proposed changes by Nurse Mercer made after her deposition.

Dr. Marla Sammer is a pediatric radiologist who treated Miyona Hyter by reviewing her cranial ultrasound, CT, and MRI scans. Plaintiff...