Hunter v. URA
| Decision Date | 28 October 2003 |
| Docket Number | No. M2002-02573-COA-R3-CV.,M2002-02573-COA-R3-CV. |
| Parties | SHERRY HUNTER, As Administratrix of the Estate of LAWRENCE HUNTER, Deceased v. JAY MICHAEL URA, ET AL. |
| Court | Tennessee Court of Appeals |
E. Reynolds Davies, Jr., Ed R. Davies, Nashville; Daniel D. Warlick, Nashville - For Appellants, Jay Michael Ura, M.D. and Nashville Anesthesia Services.
Gary K. Smith, C. Philip M. Campbell, Memphis, For Appellee, Sherry Hunter.
OPINION
Administratrix of estate of deceased husband filed wrongful death action against defendants anesthesiologist and anesthesia services group. Jury returned a verdict for plaintiff, finding defendants at fault and awarding damages for medical and funeral expenses, and the pecuniary value of the life of the deceased including loss of consortium of wife and children. Defendants appeal, raising several procedural and evidentiary issues for consideration. We vacate and remand.
The deceased, Mr. Lawrence Hunter ("Husband"), was admitted to the Columbia Southern Hills Medical Center on October 27, 1995, to undergo an arthroscopy of his right shoulder.[1] Prior to the operation, Dr. Stephen J. Obermeier ("Dr. Obermeier") administered an interscalene nerve block.
On October 17, 1996, Plaintiff, Sherry Hunter, as Administratrix of the Estate of Lawrence Hunter, deceased, filed a Complaint for wrongful death against the Defendants, Jay Michael Ura , M.D. ("Dr. Ura"); Stephen J. Obermeier, M.D.; Susan Moyers, CRNA; Nashville Anesthesia Services ("NAS"); H.C.A. Health Services, Inc.; H.C.A. Health Services of Tennessee, Inc., d/b/a Columbia Southern Hills Medical Center, and Columbia Southern Hills Medical Center.[2]
The Complaint avers that the operation was "initiated as an arthroscopy of the right shoulder and intraoperatively converted to an open rotator cuff repair." During the surgery, Dr. Ura administered a general anesthesia to the patient. Upon completion of the operation, the "anesthesia team" was unable to awaken Husband. Continued post-operative efforts to awaken the patient proved unsuccessful and, on November 1, 1995, Husband was declared brain dead. At the time of his death, the deceased was a 49-year-old executive with Nissan Motor Manufacturing Corporation, U.S.A., and the father of two minor sons. The Complaint alleges, among other thing:
Plaintiff alleges that Plaintiff's decedent suffered, in conjunction with the operative procedure, a diffuse hypoxic insult to the brain. Said loss of oxygen to the brain was the direct and proximate cause of Plaintiff's decedent's death and said hypoxic episode was due to and directly and proximately caused by the negligence of the Defendants, Ura, Obermeier, Moyers, CRNA, as well as other employees or agents of the Defendant Hospital staff.
Plaintiff alleges that the Defendants, their agents/employees, were negligent and that the professional services rendered to Plaintiff's decedent fell below acceptable standards of professional practice including, but not limited to the following:
a. Failing to provide appropriate informed consent or adhere to consent given by the patient and as such, the administration of general anesthesia constitutes assault and battery resulting in the death of Plaintiff's decedent;
b. Failing to properly monitor and/or accommodate proper monitoring of Plaintiff's decedent preoperatively and intraoperatively;
c. Failing to diagnose in a timely fashion loss of oxygen to Plaintiff's decedent's brain when reasonable care, had it been exercised, would have indicated that Plaintiff was suffering from cerebral hypoxia;
d. Failing to take appropriate steps to prevent cerebral hypoxia;
e. Failure to take appropriate steps to resolve existing cerebral hypoxia before significant and ultimately fatal brain damage occurred;
f. Failure to exercise reasonable and ordinary care under the circumstances; and
g. Failure to follow acceptable standards of professional practice under the circumstances while providing medical services to Plaintiff's decedent.
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The negligence of the Defendants, their agents, servants and employees, including, but not limited to those acts set forth above, were the direct and proximate cause of Plaintiff's decedent's death and the physical and mental pain and suffering sustained by Plaintiff's decedent prior to death.
The Complaint seeks judgment for damages for (1) the pecuniary value of the deceased's life; (2) physical and mental pain and suffering incurred by the deceased prior to death; and (3) "[v]alue of services to be provided by [deceased] to Plaintiff and Plaintiff's minor children." On these grounds, Plaintiff prayed for a judgment against defendants in the amount of $15,000,000.00 "plus pre-judgment interest, discretionary costs and all other allowable costs."
On October 28, 1998, Plaintiff filed a Motion to Amend Complaint adding a claim for loss of consortium damages and a claim for punitive damages in the amount of $45,000,000.00. Defendants' response to Plaintiff's motion objected to the inclusion of a claim for punitive damages but did not object to Plaintiff's loss of consortium claims. The trial court allowed the amendment only as to the loss of consortium claims.
By Order entered February 27, 2001, the case was set for a jury trial to begin September 10, 2001. On May 2, 2001, Plaintiff filed a Motion in Limine seeking to preclude defendants "from offering expert testimony as to the causation or "possible" causation of the injuries or death of Plaintiff's decedent from occlusion of the carotid artery(ies)...." The trial court entered a Memorandum Opinion on July 2, 2001, addressing Plaintiff's motion to preclude defense expert testimony regarding the aforementioned "carotid artery occlusion theory." As the basis for its opinion, the court examined the deposition testimony of defense experts, Dr. Michael Hays ("Dr. Hays"), Dr. John Eichhorn ("Dr. Eichhorn"), and Dr. Ballard Wright ("Dr. Wright") with regard to the carotid artery occlusion theory, noting:
The doctors that have set forth the "carotid artery occlusion theory" posit that three simultaneous events caused the death of Mr. Hunter. The three events are (1) a left styloid process sufficiently elongated to occlude the left carotid artery, (2) a turning of Mr. Hunter's head to the left during the surgery, and (3) an interscalene block which colluded the right carotid artery.
Upon examination of the individual deposition testimony of each doctor, the court granted Plaintiff's motion as to Dr. Hays, finding that his testimony "while within the realm of scientific possibility, falls short of the strictures of legal probability necessary to be an admissible expert opinion." With regard to defense experts Dr. Eichhorn and Dr. Wright, the court expressed "some concern about the admissibility" of the experts' testimony based on their depositions. However, recognizing that the experts' testimony was offered in the limited and highly scrutinized form of discovery depositions, the court decided to hold a Daubert/McDaniel hearing prior to trial to further consider the admissibility of the experts' testimony regarding the carotid artery occlusion theory.
The trial court held a Daubert/McDaniel hearing on August 30, 2001. Several months later, the court entered a Memorandum Opinion examining the question of "whether Dr. Eichhorn's testimony complies with the factors for determining reliability of scientific evidence in McDaniel v. CSX, 955 S.W.2d 257 (Tenn. 1997)[,] as well as the legal sufficiency of a professional opinion in Lindsey v. Miami Development Corp., 689 S.W.2d 856 (Tenn. 1985)." After determining that Dr. Eichhorn was qualified to testify as an expert, the court found that the expert "passed the initial threshold necessitated by McDaniel," and thereby permitted both Dr. Eichhorn and Dr. Wright, provided Dr. Wright testified "in a similar vein," to testify at trial.
On September 4, 2001, Plaintiff filed a Motion in Limine seeking to preclude defendants from "introducing or attempting to introduce into evidence or making any reference in opening or closing arguments to any collateral source payments at the trial of this case." Plaintiff filed a Memorandum of Law in support of her motion, asserting that defendants were not entitled to set-offs or credits for payments made to Plaintiff by Husband's employer in the form of insurance and death benefits, and retirement plan payouts. Plaintiff also sought to exclude introduction of social security benefits, and investment payouts.
Defendants filed Motion in Limine #10 on September 4, 2001, seeking to exclude, as substantive evidence, any learned treatise materials "that may be utilized or referred to by plaintiffs' expert witness." On April 8, 2002, defendants filed another Motion in Limine, seeking to preclude Plaintiff from introducing "proof of actual economic losses relating to loss of services and loss of earned income to the extent these losses will be paid or have been paid and replaced by monies received by Plaintiff and her children as a result of Larry Hunter's death." Alternatively, defendants moved for a set-off or credit of the above-cited amounts against any judgment rendered in favor of Plaintiff.
Defendants filed Motion in Limine #13 on April 19, 2002, renewing their application for "a total of eight (8) peremptory challenges at the time of jury selection." Defendants also moved to limit Plaintiff to four total peremptory jury challenges.
The jury trial began on April 22, 2002, and lasted through May 3, 2002. During the course of the trial, it was...
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