Bradshaw v. Daniel

• Court: Supreme Court of Tennessee
• Writing for the Court: ANDERSON; REID
• Citation: 854 S.W.2d 865
• Decision Date: 05 April 1993
• Parties: William Jerome BRADSHAW, Plaintiff-Appellant, v. Chalmers B. DANIEL, Jr., M.D., Defendant-Appellee.

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854 S.W.2d 865 William Jerome BRADSHAW, Plaintiff-Appellant,
v.
Chalmers B. DANIEL, Jr., M.D., Defendant-Appellee. Supreme Court of Tennessee.
April 5, 1993.
Rehearing Denied June 1, 1993.

R. Sadler Bailey, Memphis, for plaintiff-appellant.

Larry E. Killebrew, Charles G. Walker, Heiskell, Donelson, Bearman, Adams, Williams & Kirsch, Memphis, for defendant-appellee.

OPINION

ANDERSON, Justice.

We granted this appeal to determine whether a physician has a legal duty to warn a non-patient of the risk of exposure to the source of his patient's non-contagious disease--Rocky Mountain Spotted Fever. The trial court denied the defendant physician's motion for summary judgment, but granted an interlocutory appeal on the issue of the physician's legal duty. The Court of Appeals limited the record and held that the facts were insufficient to show that the risk to the non-patient of contracting Rocky Mountain Spotted Fever was such that a legal duty arose on the part of the physician. We disagree and conclude, for the reasons stated herein, that the physician had a legal duty to warn the non-patient of the risk of exposure to the source of the patient's non-contagious disease.

BACKGROUND

On July 19, 1986, Elmer Johns went to the emergency room at Methodist Hospital

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South in Memphis, Tennessee, complaining of headaches, muscle aches, fever, and chills. He was admitted to the hospital under the care and treatment of the defendant, Dr. Chalmers B. Daniel, Jr. Dr. Daniel first saw Johns on July 22, 1986, at which time he ordered the drug Chloramphenicol, which is the drug of choice for a person in the latter stages of Rocky Mountain Spotted Fever. Johns' condition rapidly deteriorated, and he died the next day, July 23, 1986. An autopsy was performed, and the Center for Disease Control in Atlanta conclusively confirmed, in late September 1986, that the cause of death was Rocky Mountain Spotted fever. Although Dr. Daniel communicated with Elmer Johns' wife, Genevieve, during Johns' treatment, he never advised her of the risks of exposure to Rocky Mountain Spotted Fever, or that the disease could have been the cause of Johns' death.

A week after her husband's death, on August 1, 1986, Genevieve Johns came to the emergency room of Baptist Memorial Hospital in Memphis, Tennessee, with similar symptoms of chills, fever, mental disorientation, nausea, lung congestion, myalgia, and swelling of the hands. She was admitted to the hospital and treated for Rocky Mountain Spotted Fever, but she died three days later, on August 4, 1986, of that disease. It is undisputed that no patient-physician relationship existed between Genevieve Johns and Dr. Daniel.

The plaintiff, William Jerome Bradshaw, is Genevieve Johns' son. He filed this suit alleging that the defendant's negligence in failing to advise Genevieve Johns that her husband died of Rocky Mountain Spotted Fever, and in failing to warn her of the risk of exposure, proximately caused her death. The defendant filed a motion to dismiss for failure to state a cause of action on the grounds that the physician owed Genevieve Johns no legal duty because of the absence of a patient-physician relationship. The trial judge denied the motion.

Later, the defendant filed a motion for summary judgment on the same grounds, supported by the affidavit of Dr. Michael S. Gelfand. Dr. Gelfand testified that the medical standard of care did not require a physician treating a patient infected with, or suspected of being infected with, Rocky Mountain Spotted Fever to treat the family of the patient in contact with him, or to warn them of the risk of exposure to the disease or the risk of exposure to ticks or tick bites. The plaintiff responded with the affidavit of Dr. Burt Prater. Dr. Prater testified that because of the clustering effect of the disease, the medical standard of care required that a physician treating a patient with symptoms of Rocky Mountain Spotted Fever advise the family of the patient as to the incubation period, the symptoms of the disease, and the need for immediate medical attention upon manifestation of the symptoms. Dr. Prater further testified that the defendant, Dr. Daniel, negligently failed to diagnose Elmer Johns' fatal disease of Rocky Mountain Spotted Fever and failed to warn his wife, Genevieve Johns, of the incubation period of the disease, the symptoms, and the need to seek medical treatment upon manifestation of the symptoms. He also testified that the disease, if untreated, has a 40 percent mortality rate, but if treated promptly, has a 4 percent mortality rate. Based on the affidavits, the defendant's motion for summary judgment was denied.

The case was then transferred to another judge and tried before a jury, which returned a verdict of $50,000 against the defendant. Thereafter, the plaintiff filed a motion for a new trial or additur on the grounds of inadequate damages, and the defendant filed a motion notwithstanding the verdict on the grounds, among others, that no legal duty existed. The plaintiff's motion for a new trial was granted, and the defendant's motion was overruled.

After the new trial was granted, the defendant again filed a motion for summary judgment contending that he owed no legal duty to his patient's wife, Genevieve Johns. In support of the motion, the defendant relied upon the pleadings, the affidavit of Dr. Michael Gelfand, and the "entire record in this cause." The plaintiff filed no written response but, during oral argument on the motion, stated that he relied on the entire record in the original

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trial. The trial judge again denied the motion; however, he granted the defendant an interlocutory appeal.

The Court of Appeals also granted the defendant's application for interlocutory appeal. See Tenn.R.App.P. 9. The plaintiff filed a designation of the record on appeal, listing, among other things, the defendant's testimony at the first trial, which had not been transcribed at the time of the hearing on the motion for summary judgment. The defendant moved to strike portions of the plaintiff's designation of the record on appeal, including the trial testimony of the defendant. The trial judge ordered that the defendant's trial testimony be included in the record on appeal.

The Court of Appeals refused to consider the defendant's trial testimony in its determination of the substantive issue of legal duty. The intermediate court then granted the motion for summary judgment, concluding that the record did not contain sufficient facts to establish a risk to Genevieve Johns which would give rise to a legal duty. We granted the plaintiff's application for permission to appeal and now reverse for the reasons set out herein.

RECORD ON APPEAL

In this case, the trial judge ruled that the defendant's testimony at the first trial was properly includable in the record on appeal. The defendant, Dr. Daniel, testified at trial that he did not see his patient, Elmer Johns, for the first three days he was hospitalized, but communicated with another physician about him. On the fourth day of his hospitalization, Dr. Daniel examined him, recognized that Rocky Mountain Spotted Fever could be one of the causes of his symptoms, and prescribed a strong drug with significant side effects--which was the drug of choice for Rocky Mountain Spotted Fever victims. He also testified that although he was in communication with Genevieve Johns, he did not warn her that Rocky Mountain Spotted Fever could be causing her husband's symptoms, nor did he advise her of the incubation period, the need to be on the lookout for similar symptoms, and the need to seek immediate treatment if such symptoms occurred. Dr. Daniel conceded that there is a medical, but not a legal, duty to educate the family and provide information when a patient is diagnosed as having Rocky Mountain Spotted Fever. The Court of Appeals refused to consider this testimony, opining that since it was not transcribed at the time of the hearing on the motion, it was not before the trial judge when he ruled on the motion.

The general policy of the Tennessee Rules of Appellate Procedure is to "disregard technicality in form in order that a just, speedy, and inexpensive determination of every appellate proceeding on its merits may be obtained." Tenn.R.App.P. 1 advisory commission comments.

The content of the record on appeal is governed by Tenn.R.App.P. 24, which is designed to ensure that the record on appeal conveys "a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal." The procedure for correction or modification of the record is set forth in subsection (e) of Rule 24 which provides:

If any matter properly includable is omitted from the record, is improperly included, or is misstated therein, the record may be corrected or modified to conform to...