Jernigan v. Paasche

• Decision Date: 21 June 2021
• Docket Number: No. M2020-00673-COA-R3-CV,M2020-00673-COA-R3-CV
• Citation: 637 S.W.3d 746
• Parties: David JERNIGAN, as Next of Kin and Surviving Husband to Jane Ann Jernigan, deceased v. Robert Evan PAASCHE, M.D., et al.
• Court: Tennessee Court of Appeals

637 S.W.3d 746

David JERNIGAN, as Next of Kin and Surviving Husband to Jane Ann Jernigan, deceased

v.Robert Evan PAASCHE, M.D., et al.

No. M2020-00673-COA-R3-CV

Court of Appeals of Tennessee, Middle Section, AT NASHVILLE.

March 3, 2021 Session

FILED June 21, 2021

Permission to Appeal Denied by Supreme Court: October 14, 2021

Joe Bednarz, Sr., and Joe Bednarz, Jr., Hendersonville, Tennessee, for the appellant, David Jernigan, as next of kin and surviving husband to Jane Ann Jernigan, deceased.

Daniel H. Rader, IV ; Daniel H. Rader, III ; and Lane Moore, Cookeville, Tennessee, for the appellee, Robert Evan Paasche, M.D.

Raymond G. Lewallen, Jr., Knoxville, Tennessee, for the appellee, James F. Wojcik, M.D.

Thomas R. Frierson, II, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.

Thomas R. Frierson, II, J.

In this health care liability action, an initial jury trial resulted in a verdict for the defendant physicians. The plaintiff filed a motion for new trial, which the trial court granted. Prior to the second jury trial, the trial court determined that the trial should be bifurcated such that the first phase would address only the applicable standard of care and whether the defendants deviated therefrom, and the second phase would address causation. Following completion of the standard of care phase, the jury again ruled in favor of the defendants. The plaintiff filed a second motion for new trial, which the trial court denied. The plaintiff timely appealed. Discerning no reversible error, we affirm.

I. Factual and Procedural Background

The plaintiff, David Jernigan, as surviving spouse of Jane Ann Jernigan ("Decedent"), filed a complaint on August 17, 2015, in the Putnam County Circuit Court ("trial court"), alleging wrongful death and health care liability claims against Dr. Robert Evan Paasche; Cumberland Medical Center, Inc. ("Cumberland"); Dr. James F. Wojcik; and Emergency Coverage Corporation. In his complaint, Mr. Jernigan alleged that Dr. Paasche had examined Decedent in the emergency room of the Cookeville Regional Medical Center on August 11, 2012, due to Decedent's complaints of severe abdominal pain and nausea. Dr. Paasche ordered a computerized tomography

("CT") scan and other tests. According to Mr. Jernigan, the CT scan revealed that Decedent suffered from a large paraesophageal hernia.¹ Following the CT scan, Decedent was discharged with medication prescriptions and advised to follow up with her primary care physician within two to three days.

Mr. Jernigan stated in his complaint that Decedent was subsequently taken to the Cumberland emergency room on August 12, 2012, where she was seen by Dr. Wojcik. Dr. Wojcik purportedly noted that Decedent had been to the Cookeville Regional Medical Center emergency room the prior day for the same symptoms of abdominal pain and vomiting. Decedent was discharged after receiving fluids, medication, and Dr. Wojcik's advice that she follow up with her primary care physician that week.

According to Mr. Jernigan's complaint, Decedent was again taken to the Cumberland emergency room, where she presented with severe pain and vomiting. A CT scan

performed at that time revealed that Decedent had suffered a perforation with portions of her stomach having herniated into her chest. Mr. Jernigan averred that a surgical procedure was performed on Decedent with the post-operative diagnosis listed as perforated posterior gastric ulcer with peritonitis. Decedent survived the surgery but, tragically, passed away in the recovery room. Mr. Jernigan further averred that Decedent's cause of death was noted to be a perforated gastric ulcer.

Mr. Jernigan alleged that both Dr. Paasche and Dr. Wojcik were negligent for failing to properly diagnose Decedent's condition, failing to obtain a surgical consult following their respective initial examinations of Decedent, and discharging her in an unstable condition. Mr. Jernigan also averred that Cumberland was similarly liable for the above reasons and for failing to provide reasonable care and treatment to Decedent. According to Mr. Jernigan, he believed Dr. Wojcik to be an employee of Emergency Coverage Corporation, and Mr. Jernigan therefore claimed that Dr. Wojcik's negligence should be imputed to his employer. Mr. Jernigan sought damages for wrongful death and medical negligence in the amount of three million dollars. Mr. Jernigan also noted that his complaint had been refiled pursuant to the savings statute.

Dr. Paasche and Dr. Wojcik each filed respective answers denying liability. Dr. Wojcik additionally denied that he was an employee of Emergency Coverage Corporation. On August 21, 2017, Mr. Jernigan filed an amended complaint, containing additional negligence allegations primarily concerning Dr. Paasche. Both Dr. Paasche and Dr. Wojcik (collectively, "Defendants") answered, with each respectively denying liability. The trial court granted summary judgment in favor of Cumberland and Emergency Coverage Corporation on September 28, 2017.

Although no transcript from the first trial appears in the appellate record, the parties concede and the pretrial hearing transcripts demonstrate that a jury trial was conducted by Judge Amy Hollars in December 2017, resulting in a verdict for Defendants that was subsequently set aside by Judge Hollars's grant of Mr. Jernigan's motion for new trial. On May 23, 2018, Judge Hollars entered an order transferring the matter to Judge Jonathan L. Young for further proceedings.

Following the filing of numerous pretrial motions, the trial court conducted hearings on those motions, during which Mr. Jernigan and Defendants presented substantial argument concerning alleged evidentiary problems during the first trial. As a result of those hearings, the trial court entered an order dated September 13, 2019, directing that the trial would be bifurcated. According to the trial court's order, evidence of liability would be presented first, and "only if the jury returns a verdict finding one or both Defendants negligent, then the jury will hear issues regarding causation." Mr. Jernigan filed a motion seeking reconsideration of the trial court's ruling concerning bifurcation, arguing that such approach would be "impossible to effectively implement and [would] create more problems than it solves." The trial court denied Mr. Jernigan's motion by order dated February 4, 2020, directing that the trial would be bifurcated on the issues of standard of care and causation/damages. The trial court also denied Mr. Jernigan's oral motion for an interlocutory appeal.

The trial court conducted a jury trial spanning five days concerning the issue of standard of care, beginning February 4, 2020, and ending February 10, 2020. The trial court entered a final order on February 13, 2020, incorporating the jury's verdict in favor of Defendants. The jury explicitly found that neither doctor deviated from the recognized standard of acceptable professional practice in his care of Decedent.

On March 15, 2020, Mr. Jernigan filed a motion for new trial, which was opposed by both Dr. Paasche and Dr. Wojcik. Following a telephonic hearing, the trial court entered an order on April 24, 2020, denying the motion for new trial and awarding discretionary costs to Defendants. Mr. Jernigan timely appealed.

II. Issues Presented

Mr. Jernigan presents the following issues for this Court's review, which we have restated slightly:

1. Whether the trial court erred by bifurcating the trial between the issues of standard of care and causation.

2. Whether trial court erred by excluding Mr. Jernigan's surgical and radiological experts from testifying during the standard of care phase of the trial.

3. Whether the trial court erred by declining to allow Mr. Jernigan to call rebuttal witnesses.

4. Whether the trial court erred by permitting blame-shifting.

Dr. Paasche raises the following additional issue:

5. Whether Mr. Jernigan waived the issue of "blame-shifting" because he failed to object to the alleged improper testimony at trial and failed to identify such testimony in his motion for new trial.

III. Standard of Review

With regard to bifurcation of issues, our Supreme Court has previously elucidated:

The decision whether or not to sever the issues for the jury must be left to the sound discretion of the trial judge, and the interests of justice will warrant a bifurcation of the issues in only the most exceptional cases and upon a strong showing of necessity. In making its decision the trial court should consider the possibility of juror confusion, the risk of prejudice to either party, and the needs of judicial efficiency. Above all, the issues at trial must not be bifurcated unless the issue to be tried is so distinct and separable from the others that a trial of it alone may be had without injustice.

Ennix v. Clay , 703 S.W.2d 137, 139 (Tenn. 1986) (citing Gasoline Prods. Co. v. Champlin Refining Co. , 283 U.S. 494, 500, 51 S.Ct. 513, 75 L.Ed. 1188 (1931) ).

Concerning the applicable standard of review with regard to the trial court's exclusion of an expert witness's testimony, our Supreme Court has explained:

Decisions regarding the admissibility of evidence are discretionary, and, therefore, the appellate courts review these decisions using the "abuse of discretion" standard. Biscan v. Brown , 160 S.W.3d 462, 468 (Tenn. 2005) ; Mercer v. Vanderbilt Univ., Inc. , 134 S.W.3d 121, 131 (Tenn. 2004). This standard applies to appellate review of decisions by a trial court when it is acting as a gatekeeper with regard to the admissibility of an expert witness's opinion testimony. Accordingly, the appellate courts review decisions regarding the qualifications, admissibility, relevancy, and competency of expert testimony using the abuse of discretion standard. Brown v. Crown Equip. Corp. , 181 S.W.3d 268, 273 (Tenn. 2005) ; McDaniel v. CSX Transp., Inc. , 955 S.W.2d 257, 263-64 (Tenn. 1997).

Davis v. McGuigan , 325 S.W.3d 149, 168-69 (Tenn....