Olinger v. University Medical Center

• Decision Date: 17 January 2008
• Docket Number: No. M2006-02312-COA-R3-CV.,M2006-02312-COA-R3-CV.
• Citation: 269 S.W.3d 560
• Parties: Katherine Deloriese OLINGER, et al. v. UNIVERSITY MEDICAL CENTER, et al.
• Court: Tennessee Court of Appeals

269 S.W.3d 560

Katherine Deloriese OLINGER, et al. v. UNIVERSITY MEDICAL CENTER, et al.

No. M2006-02312-COA-R3-CV.

Court of Appeals of Tennessee, Middle Section, at Nashville.

November 7, 2007 Session.

January 17, 2008.

Permission to Appeal Denied by Supreme Court June 30, 2008.

David R. Smith and Edmund J. Schmidt, III, Nashville, Tennessee, for the Appellants, Katherine Deloriese Olinger and Perry Michael Hale, individually and as next friends of Michael Eugene Hale, a minor.

John F. Floyd and Mandy Langford, Nashville, Tennessee, for the Appellee, StarMed Health Personnel, Inc.

C. Bennett Harrison, Jr., and Brian W. Holmes, Nashville, Tennessee, for the Appellee, Charles B. Lanning, Jr., M.D.

Mark T. Smith and Andre Sophia Blumstein, Nashville, Tennessee, for the Appellee, National Medical Hospital of Wilson County, Inc., d/b/a University Medical Center.

OPINION

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which ANDY D. BENNETT, J., and ROSS H. HICKS, Sp. J., joined.

This medical malpractice action was filed by Katherine Deloriese Olinger and Perry Michael Hale ("Plaintiffs") after their son was born with brachial plexus palsy. Plaintiffs claim the injury occurred because the defendants failed to take the proper medical steps to resolve a delivery complication known as shoulder dystocia. Following a trial, the jury returned a verdict in favor of all of the defendants. Plaintiffs appeal claiming the Trial Court erred when it gave a jury instruction on the sudden emergency doctrine, and further erred by refusing to permit cross-examination of a witness by the use of medical literature which Plaintiffs maintain had been established as a reliable authority pursuant to Tenn. R. Evid. 618. We affirm.

Background

This is a medical malpractice action surrounding the birth of Michael Eugene Hale ("the Child"), who was permanently injured when he was born on September 27, 2000. The lawsuit was filed by the child's parents against the University Medical Center in Lebanon, Tennessee, as well as Charles B. Lanning, Jr., M.D., and StarMed Health Personnel, Inc. ("StarMed"). StarMed employed Sheila Sturgill, R.N., who was the nurse involved in the delivery.

Dr. Lanning was the treating gynecologist and obstetrician for the birth of plaintiff Katherine Olinger's first child. Ms. Olinger's first child was born without complications in August of 1995. When Ms. Olinger became pregnant with her second child in 1999, Dr. Lanning again served as her treating gynecologist and obstetrician. Ms. Olinger was admitted to the University Medical Center for delivery of her second child, Michael Eugene Hale. A complication known as shoulder dystocia occurred during the delivery. Shoulder dystocia occurs after the head of the infant is delivered and one of the infant's shoulders then becomes lodged under the mother's pubic bone. The Child suffered significant and permanent damage to his right arm as a result of the shoulder dystocia. He was diagnosed with brachial plexus palsy and has since undergone several surgical procedures.

After this litigation progressed and the issues were narrowed, the case proceeded to trial solely on the issues relating to the conduct of Dr. Lanning and Nurse Sturgill once they were confronted with the shoulder dystocia. Plaintiffs essentially claim that had Dr. Lanning and Nurse Sturgill acted in a medically reasonable manner in accordance with the acceptable standard of professional practice, their son would not have suffered any injuries. We note that as the delivery of the Child was videotaped, the jury was able to assess the testimony of the witnesses in light of what the jury could see on the videotape.

The defendants filed a motion in limine before the trial seeking to exclude the testimony of Plaintiffs' expert witness, Dr. Bruce Bryan. The defendants claimed, inter alia, that Dr. Bryan's testimony did not satisfy the locality rule. The Trial Court denied the motion in limine and permitted Dr. Bryan to testify at trial via deposition.

One of Plaintiffs' allegations was that Nurse Sturgill improperly applied fundal pressure during the delivery. Fundal pressure is pressure on the mother's abdomen. Plaintiffs claimed the fundal pressure should not have been applied and caused or contributed to the Child's injuries. At trial, Plaintiffs sought to cross-examine Nurse Sturgill using an article which they argue had been established as a reliable authority during the testimony of one of Plaintiff's expert witnesses. The defendants objected to this line of questioning for several reasons, and the Trial Court ultimately sustained the objection.

Prior to the jury being instructed, all of the defendants requested a jury charge on the sudden emergency doctrine. Plaintiffs strongly opposed such a charge. The Trial Court concluded that there was sufficient proof in the record to permit a jury charge on sudden emergency, and the jury was so charged. The jury eventually returned a verdict for all defendants.

Plaintiffs raise two issues on appeal. First, Plaintiffs claim the Trial Court erred when it charged the jury on sudden emergency. Second, Plaintiffs claim the Trial Court erred when it precluded them from cross-examining Nurse Sturgill using certain medical literature which they argue had been established as a reliable authority. Defendants raise as a separate issue their position that the Trial Court erred in allowing Plaintiffs' experts, Dr. Bryan and Martha Eakes, R.N., to testify because their testimony did not satisfy the locality rule and was not scientifically reliable.

Discussion

The recent case of White v. Premier Medical Group, 254 S.W.3d 411 (Tenn.Ct. App., 2007)¹ involved the propriety of a jury instruction in a medical malpractice case. In White, the defendants successfully sought to have the jury charged on the defense of superseding cause. Id., at 415. Following a jury verdict in favor of the defendants, the plaintiffs claimed on appeal that the trial court erred in giving that particular instruction. We ultimately concluded that the jury instruction was appropriate. In so doing we discussed the requisite amount of proof needed to support a jury instruction and the applicable standard of review. We stated:

It is proper for a court to charge the law upon an issue of fact within the scope of the pleadings upon which there is evidence, which even though slight, is "sufficient to sustain a verdict." Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn.1994); Norman v. Fisher Marine, Inc., 672 S.W.2d 414, 421 (Tenn.Ct.App.1984); Ringer v. Godfrey, 50 Tenn.App. 559, 362 S.W.2d 825, 827 (1962); Monday v. Millsaps, 37 Tenn.App. 371, 264 S.W.2d 6 (1953); Hurt v. Coyne Cylinder Co., 956 F.2d 1319, 1326 (6th Cir.1992). For the evidence to be "sufficient to sustain a verdict," there must be evidence which is "material" to the issue. Turner v. Jordan, 957 S.W.2d 815, 824 (Tenn.1997); Crabtree Masonry Co. v. C & R Constr Inc., 575 S.W.2d 4, 5 (Tenn.1978); City of Chattanooga v. Rogers, 201 Tenn. 403, 299 S.W.2d 660 (1956); D.M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897 (1947).

The Tennessee Supreme Court has described "material evidence" as "evidence material to the question in controversy, which must necessarily enter into the consideration of the controversy and by itself, or in connection with the other evidence, be determinative of the case." Knoxville Traction Co. v. Brown, 115 Tenn. 323, 89 S.W. 319, 321 (1905); Fuller v. Tennessee-Carolina Transp. Co., 63 Tenn.App. 330, 471 S.W.2d 953, 956 (1970). Black's Law Dictionary defines "material evidence" as "evidence having some logical connection with the consequential facts or the issues." Black's Law Dictionary 459 (7th ed.2000); see Smith v. Tennessee Furniture Indus., Inc., 212 Tenn. 291, 369 S.W.2d 721, 728 (1963). This Court has described "material evidence" to be "such relevant evidence as a reasonable mind might accept as adequate to support a rational conclusion and such as to furnish a reasonably sound basis for the action under consideration." Sexton v. Anderson County, 587 S.W.2d 663, 666 (Tenn.Ct.App. 1979)....

When determining whether there is material evidence sufficient to sustain a verdict, the appellate courts "do not determine the credibility of witnesses or weigh evidence on appeal from a jury verdict." Reynolds, 887 S.W.2d at 823. Instead, the appellate courts "are limited to determining whether there is material evidence to support the jury's verdict." Id. If we determine the record contains material evidence supporting the verdict, we are not to disturb the verdict. Id.

Accordingly, without judging the credibility of witnesses or weighing the evidence, we must determine whether there is any material evidence sufficient to sustain the defense of superseding cause. To make this determination, we must identify the superseding cause contended by Defendants and determine whether there is any material evidence in the record that pertains to each element of this defense.

White, 2007 WL 4207868, at 416-17 (footnote omitted). We also note that "[w]e should not set aside a jury's verdict because of an erroneous instruction unless it affirmatively appears that the erroneous instruction actually misled the jury." Grandstaff v. Hawks, 36 S.W.3d 482, 497 (Tenn.Ct.App.2000).

Our Supreme Court explained the sudden emergency doctrine in McCall v. Wilder, 913 S.W.2d 150 (Tenn.1995) as follows:

The sudden emergency doctrine, which has now been subsumed into Tennessee's comparative fault scheme, Eaton v. McLain, 891 S.W.2d 587, 592 (Tenn. 1995), recognizes that a person confronted with a sudden or unexpected emergency which calls for immediate action is not expected to exercise the same accuracy of judgment as one acting under normal circumstances who has time for reflection and thought before acting. See Young v. Clark, 814 P.2d 364, 365 (Colo.1991); see also Prosser and Keeton on the Law of...