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

• Docket Number: E2020-00158-SC-R11-CV
• Decision Date: 23 May 2023
• Citation: Borngne ex rel. Hyter v. Chattanooga-Hamilton Cnty. Hosp. Auth., 671 S.W.3d 476 (Tenn. 2023)
• Parties: Brittany BORNGNE EX REL. Miyona HYTER v. CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY et al.
• Court: Tennessee Supreme Court

671 S.W.3d 476

Brittany BORNGNE EX REL. Miyona HYTER

v.CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY et al.

No. E2020-00158-SC-R11-CV

Supreme Court of Tennessee, AT KNOXVILLE.

May 3, 2022 Session

FILED May 23, 2023

Joshua A. Powers and Emily M. Roberts, Chattanooga, Tennessee, for the appellant, Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System.

Dixie Cooper and Matthew H. Cline, Brentwood, Tennessee, for the appellants, Michael John Seeber, Jennifer Mercer, and Caring Choice Women's Center, P.C.

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

W. Bryan Smith, Memphis, Tennessee, John Vail, Washington, D.C., and Brian G. Brooks, Greenbrier, Arkansas, for the Amicus Curiae, Tennessee Trial Lawyers Association.

Thomas A. Wiseman, III and Bradley M. Dowd, Nashville, Tennessee, for the Amicus Curiae, Vanderbilt University Medical Center.

Devin P. Lyon and Rachel Park Hurt, Knoxville, Tennessee, for the Amici Curiae, Tennessee Defense Lawyers Association and Meharry Medical College.

Roger A. Page, C.J., delivered the opinion of the Court, in which Sharon G. Lee and Jeffrey S. Bivins, JJ., joined. Sharon G. Lee, J., filed a separate concurring opinion.

Roger A. Page, C.J.

This appeal primarily concerns the compulsion of a physician's deposition testimony in a health care liability action. In 2014, a child was born via cesarean section and suffered permanent brain damage and severely debilitating injuries. By and through her next friend and mother Brittany Borngne ("Plaintiff"), the child sued the doctor who delivered her and the certified nurse midwife who was initially in charge of the birthing process, among other defendants. The trial court dismissed all claims of direct negligence against the defendant physician but allowed the plaintiff to proceed against the physician on a vicarious liability theory as the midwife's supervising physician. However, during his deposition prior to trial, the physician refused to opine on the midwife's performance outside of his presence. The trial court declined to require the physician to do so, and after a trial, the jury found in favor of the defendants. The Court of Appeals, in a divided opinion, partially reversed the judgment. The intermediate court concluded, among other things, that the trial court committed reversible error in declining to order the physician to answer the questions at issue in his deposition and remanded for a new trial. After review, we hold that a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider's standard of care or deviation from that standard. We therefore conclude that the trial court here properly declined to compel the defendant physician's testimony. Accordingly, we reverse the decision of the Court of Appeals and affirm the trial court's judgment.

I. FACTUAL & PROCEDURAL BACKGROUND

This appeal arises from a healthcare liability action brought by Miyona Hyter, a minor, by and through her mother Brittany Borngne. Specifically, Plaintiff brought suit against certified nurse midwife Jennifer Mercer, Dr. Michael Seeber, their employer Caring Choice Women's Center, P.C. ("Caring Choice"), and Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System ("Erlanger") based on the following events.

On March 3, 2014, Plaintiff, then approximately thirty-seven weeks pregnant, was admitted to the hospital with complaints of abdominal pains and cramping, back pain, headache, visual disturbances, and leg swelling. The following day, Plaintiff was admitted to labor and delivery at the direction of Nurse Mercer for medical induction of labor for pre-eclampsia. According to the record on appeal, Dr. Seeber was notified when Plaintiff was admitted to the hospital and when she began pushing.

On the evening of March 5, Plaintiff began attempting to push at approximately 9:30 p.m. After about an hour and forty-eight minutes of pushing, the baby had made no progress from the onset of labor. The fetal heart monitoring apparatus showed concerning signs for the health of the child in the form of late decelerations in relation to the mother's contractions that were recognized by Nurse Mercer and the other medical professionals working with her. Nurse Mercer called Dr. Seeber at about 11:18 p.m. He arrived at the hospital roughly forty-five minutes later. Upon reviewing Plaintiff's chart, Dr. Seeber promptly ordered a cesarean section ("C-section"). The child was not breathing when she was delivered on March 6, 2014. She was subsequently diagnosed with hypoxic ischemic encephalopathy ("HIE"), which is a type of brain damage that occurs when the brain does not receive sufficient blood flow and oxygen.

Plaintiff sued the defendants, alleging negligence on the parts of Nurse Mercer and Dr. Seeber. Concerning Erlanger specifically, Plaintiff alleged the hospital was vicariously liable for the allegedly negligent acts of one of its nurses, Sylvia Stephenson. Later, the trial court granted partial summary judgment on all claims of direct negligence against Dr. Seeber. However, Dr. Seeber remained in the case based upon Plaintiff's theory that he was vicariously liable for Nurse Mercer's actions as her supervising physician.

During Dr. Seeber's deposition, Plaintiff asked Dr. Seeber to give his opinion on Plaintiff's condition and Nurse Mercer's performance during the period of time she cared for Plaintiff and the child prior to Dr. Seeber's arrival. Dr. Seeber refused to opine on Nurse Mercer's performance prior to his arrival after defense counsel instructed him not to answer, referencing the Court of Appeals’ opinion in Lewis v. Brooks , 66 S.W.3d 883 (Tenn. Ct. App. 2001), perm. app. denied (Tenn. Dec. 27, 2001). A pertinent portion of the dialogue during Dr. Seeber's deposition included the following:

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 ... and minimal variability for an hour?

[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: ... [T]he concern about the fetal heart tones is its minimal variability and late decelerations; right?

A: Correct.

[Defense counsel:] Object to the form.

Q: And that status had been persisting for more than an hour, had it not?

A: About an hour.

Q: When did it become concerning?

[Defense counsel:] Object to the form. Do not speculate on this. He's asking you about something –

A: I cannot tell you when – when it became concerning to those individuals, because I'm not there.

Q: Well, when would you have expected it to be concerning?

[Defense counsel:] Don't answer that question.

[Defense counsel:] Same objection.

[Defense counsel:] Lewis v. Brooks . Don't answer.

Plaintiff filed a motion to compel Dr. Seeber to testify concerning Nurse Mercer's performance prior to his arrival, which was argued and eventually denied by the trial court. In denying the motion to compel, the trial court explained:

[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 . The question is governed by Lewis v. Brooks and is an impermissible question and 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 ....

Concerning the issue of damages, Plaintiff's prayer for relief included, among other things, compensation for "[l]arge medical expenses past, present, and future," and the "[l]oss of future earning capacity" of the child. The defendants filed a joint motion for partial summary judgment relating to the claim for pre-majority medical expenses. The trial court heard oral argument on May 24, 2019, and later granted the defendants’ joint motion for partial summary judgment regarding pre-majority medical expenses.

The case proceeded to a jury trial conducted in late May and early June of 2019. The jury found that neither Nurse Mercer nor Nurse Stephenson deviated from the recognized standard of care; thus, the jury found they were not negligent. The trial court, therefore, did not reach the issues of Dr. Seeber's vicarious liability or damages. Plaintiff moved for a new trial based on several different grounds, but the trial court denied the motion. Plaintiff then filed a notice of appeal.

Relevant to the issues raised on appeal before this Court, the Plaintiff argued to the Court of Appeals that (1) the trial court erred in limiting Plaintiff's examination of Dr. Seeber during his deposition and at trial under Lewis v. Brooks ; and (2) the trial court erred in excluding proof of the child's pre-majority medical expenses. Borngne ex rel. Hyter v. Chattanooga-Hamilton Cnty. Hosp. Auth. , No. E2020-00158-COA-R3-CV, 2021 WL 2769182 at *3 (Tenn. Ct. App. July 1, 2021). As to the first issue, the Court of Appeals reversed the trial court, concluding that the trial court erred by refusing to order Dr. Seeber to answer the questions at issue in his deposition. Id. at *13. In a split opinion, the Court of Appeals distinguished the facts of this case from the facts of Lewis v. Brooks by primarily highlighting the supervisory relationship between Dr. Seeber and Nurse Mercer. Id. The...