Popick v. Vanderbilt Univ.
| Decision Date | 13 March 2017 |
| Docket Number | No. M2015-01271-COA-R3-CV,M2015-01271-COA-R3-CV |
| Parties | ELIZABETH A. POPICK v. VANDERBILT UNIVERSITY |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Davidson County
The plaintiff filed this health care liability action against the defendant hospital after the death of her husband, alleging that his death was the result of negligent medical treatment. The jury returned a verdict in favor of the defendant. On appeal, the plaintiff argues that the trial court committed reversible error in: (1) excluding certain email messages as hearsay; (2) overruling her objections to defense counsel's cross-examination of a witness; (3) failing to instruct the jury to ignore statements made by defense counsel in closing argument; (4) refusing a request for a special jury instruction; and (5) declining to change the special verdict form. Discerning no reversible error, we affirm the decision of the trial court.
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY J. BENNETT and THOMAS R. FRIERSON, II, JJ., joined.
Jon E. Jones and Patrick Shea Callahan, Cookeville, Tennessee, for the appellant, Elizabeth A. Popick.
Steven E. Anderson and Sara F. Reynolds, Nashville, Tennessee, for the appellee, Vanderbilt University.
OPINIONOn January 17, 2008, Mr. Joshua Popick fell over twenty feet while working on a roof. Mr. Popick suffered critical injuries, including multiple broken bones, a bruised kidney, a lung contusion, and extensive internal bleeding. His injuries necessitated a month-long stay in the trauma intensive care unit at Vanderbilt University Medical Center ("Vanderbilt"). Vanderbilt discharged Mr. Popick to a rehabilitation facility in mid-February 2008, but he returned to Vanderbilt several times over the ensuing months for additional treatment. After his death on June 18, 2008, his wife, as his widow and the administrator of his estate, filed this health care liability action against Vanderbilt, alleging Mr. Popick's doctors were negligent in treating his injuries and that such negligence caused his death.
Upon admission to Vanderbilt, Mr. Popick was immediately intubated1 and placed on a ventilator because he was in respiratory distress. Due to the severity of Mr. Popick's chest and lung injuries, he received high pressure ventilation to ensure he received an adequate amount of oxygen. His physicians knew that Mr. Popick needed multiple surgeries and long-term respiratory support. Because extended time on a ventilator entailed a high risk of serious complications, his physicians decided that Mr. Popick would benefit from a tracheostomy.2 Once the physicians were able to safely lower Mr. Popick's ventilator pressure, he was scheduled for a tracheostomy.
Seven days after admission, Dr. Chad Johnson, a surgical resident, and Dr. Nathan Mowery, his supervising physician, prepared Mr. Popick for a percutaneous tracheostomy, a bedside procedure. However, after encountering difficulties in performing the procedure, Dr. Mowery decided that it would be safer to transfer Mr. Popick to an operating room. Dr. Mowery performed a successful open tracheostomy approximately fifteen minutes later.
Mr. Popick's tracheostomy tube was removed after his discharge from Vanderbilt. Although he initially reported no breathing difficulties, on March 30, 2008, Mr. Popick was re-admitted to Vanderbilt after experiencing increasing shortness of breath. A CT scan of Mr. Popick's neck performed on March 30 showed that part of his airway had narrowed. Dr. Brian Burkey, an otolaryngologist, diagnosed him with subglottic stenosis, a narrowing of the airway below the vocal cords.
To stabilize the airway, Dr. Burkey performed another open tracheostomy on April 3, 2008. During the procedure, Dr. Burkey noted a near total narrowing of thesubglottic tracheal region. The narrowing began directly below the cricoid cartilage3 and extended downward approximately two centimeters. Dr. Burkey also found extensive cartilage growth, which needed to be removed in a subsequent surgery.
On April 18, 2008, Dr. Burkey operated again and this time removed the damaged section of Mr. Popick's trachea, including the additional cartilage. Dr. Burkey noted that Mr. Popick had developed dense scar tissue from both the April 3 tracheostomy and his original tracheostomy in January. On April 22, Mr. Popick returned to the operating room for Dr. Burkey to repair an air leak that had developed where Dr. Burkey had reattached his healthy tracheal tissue.
Subsequently, Mr. Popick continued to experience breathing difficulties caused by the development of granulation tissue4 in the area of the reattachment. Dr. Burkey removed accumulated granulation tissue that was partially blocking Mr. Popick's airway on both May 21 and June 3 and, on June 3, also applied medication to the area in an attempt to prevent regrowth.
On June 16, 2008, Mr. Popick had a routine appointment with Dr. Burkey to evaluate his condition. After an examination, Dr. Burkey recommended another surgery to remove the accumulated granulation tissue. Surgery was scheduled for June 19, but sadly, the day before, Mr. Popick collapsed at home while eating breakfast and died.
On April 21, 2009, Mrs. Popick filed this health care liability action against Vanderbilt in the Circuit Court for Davidson County, Tennessee. Her complaint alleged that Mr. Popick's doctors deviated from the standard of care in the placement and management of his January tracheostomy and by failing to admit him to the hospital on June 16 to monitor his condition until the scheduled surgery on June 19. After an extended period of discovery, the case was tried before a jury from February 23 to March 3, 2015.
Mrs. Popick claimed that, during the aborted bedside tracheostomy attempt, her husband's doctors negligently fractured his cricoid cartilage, which caused the narrowing of his airway. The procedure note in Mr. Popick's medical records erroneously describedan uncomplicated, completed percutanous tracheostomy. According to the note, after Mr. Popick was sedated, the physician made an incision over the trachea and bluntly dissected through the underlying tissue to the midline of the pre-tracheal space. "Using a [sic] Open technique technique [sic]," the physician made a small hole in the trachea into which he placed a guide wire and a series of dilators which he used to expand the hole to the necessary size. Then, a "#9 Shiley un-fenestrated cuffed [e]xtra long tracheostomy tube was inserted." The guide wire and dilator were replaced with the inner cannula, and the tracheostomy tube was connected to the ventilator. As a final step, the physician confirmed that the tracheostomy was properly placed and functioning.
At trial, Vanderbilt maintained that the procedure note was inaccurate5 and did not describe what actually occurred during the bedside attempt. Dr. Nathan Mowery testified that, during the bedside attempt, the surgical resident made a longitudinal incision over the trachea and, using a blunt instrument, pushed the underlying tissue aside until he could see the tracheal space. At that point, the resident attempted to find the physical landmarks that guide the proper placement of the tracheostomy tube. Because the resident could not find the landmarks, Dr. Mowery decided to transfer Mr. Popick to the operating room where he could better visualize the trachea before proceeding. According to Dr. Mowery, no needle, guide wire, dilators, or tube was inserted into Mr. Popick's trachea at his bedside.
Dr. Chad Johnson, the surgical resident involved in Mr. Popick's bedside tracheostomy, created the procedure note. He testified that, although he had no independent memory of the procedure or creating the note, he was familiar with the process and could explain how the incorrect note probably occurred. He explained that the note was a byproduct of Vanderbilt's electronic medical record system. The system in use at that time contained templates for physicians to use when documenting procedures. For any given procedure, the resident chose the appropriate template and selected answers to the questions from the drop down menu. The system then "auto-populated" the note with prearranged wording.
According to Dr. Johnson, residents commonly started a procedure note before actually beginning the procedure. For example, before starting the bedside tracheostomy, he would have selected the template and checked the appropriate boxes for the diagnosis, the consent form, the pre-sedation evaluation, the site preparation, the necessary medications, the location of the planned incision, and the procedure technique.
In 2008, Vanderbilt physicians used the "modified Seldinger technique" for bedside tracheostomies. In the operating room, physicians used an "open" technique. In Mr. Popick's case, Dr. Johnson explained that, before the procedure was performed, he would have chosen "modified Seldinger" as the technique. When he made that selection, the system automatically entered all the steps of the technique in the description section of the note. He would have finished the procedure note after Mr. Popick received his tracheostomy in the operating room. At that time, he assumed he chose "other" for the technique and typed in "open technique." The electronic system then incorporated "open technique" into the previously prepared description of the modified Seldinger technique.
Dr. Johnson admitted that he did not remove the incorrect language before he attested to the accuracy of the note. In his opinion, the description contained in the procedure note became less important after Mr. Popick was transferred to the operating room because the note's function changed from a procedure note to a brief operative note. According to Dr....
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