Ross v. Vanderbilt University, 99-02644

• Decision Date: 18 February 2000
• Docket Number: 99-02644
• Citation: 27 S.W.3d 523
• Parties: KIMBERLY ROSS, Plaintiff/Appellant, v. VANDERBILT UNIVERSITY MEDICAL CENTER, Defendant/Appellee. AppealCOURT OF APPEALS OF TENNESSEE Filed
• Court: Tennessee Court of Appeals

KIMBERLY ROSS, Plaintiff/Appellant v VANDERBILT UNIVERSITY MEDICAL CENTER, Defendant/Appellee

Appeal No. M1999-02644-COA-R3-CV

COURT OF APPEALS OF TENNESSEE

Filed February 18, 2000

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY AT NASHVILLE, TENNESSEE

Davidson Circuit No. 95C-1770

THE HONORABLE THOMAS W. BROTHERS, JUDGE

The issues in this case are based upon the trial court's charge to the jury involving the sudden emergency doctrine. On appeal, we find no error in the jury instructions. Accordingly, we affirm the decision of the trial court in all respects.

JOE BEDNARZ, SR., JOE BEDNARZ, JR., Bednarz & Bednarz, Suite 1400, Parkway Towers, 404 James Robertson Parkway, Nashville, Tennessee 37219

ATTORNEYS FOR PLAINTIFF/APPELLANT

STEVEN E. ANDERSON, ANNE E. S. HAMER, Bass, Berry & Sims, 2700 First American Center, Nashville, Tennessee 37238-2700

ATTORNEYS FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE

OPINION

I. Facts

This case began with a minor injury which brought Plaintiff, Kimberly Ross, to the emergency room at Defendant, Vanderbilt University Medical Center. In June of 1994, Plaintiff visited Defendant's emergency room after having cut her finger with a knife. After determining that Plaintiff's wound required suturing, Dr. Lisa Morgan injected Plaintiff's finger with Lidocaine in order to numb it. Almost immediately thereafter, Plaintiff, who was lying on a gurney, complained that she felt ill and her arm jerked up and her eyes rolled back in her head. Dr. Morgan testified that she walked about four feet across the room toward the door, yelled for help, and then returned at which point Plaintiff's body began to jerk. Dr. Morgan put her body over Plaintiff's body. Despite Dr. Morgan's actions, Plaintiff fell off the gurney on which she lay and onto the floor head first. Dr. Morgan remembered it taking only a couple of seconds before other medical staff arrived too late to help her keep Plaintiff from falling. After Plaintiff fell, she was stabilized by Dr. Morgan along with Dr. Seth Wright, the attending physician on duty, and other emergency department staff members.

Dr. Wright subsequently diagnosed Plaintiff as having suffered from a vasovagal reaction which occurs when a person's blood pressure abruptly lowers. Vasovagal reactions are often accompanied by a fainting episode and can, if a person faints, be accompanied by jerking movements that resemble seizures. In his deposition testimony entered at trial, Dr. Wright explained the vasovagal reaction as a stress phenomenon and gave as typical examples a medical student falling over at the sight of his or her first autopsy and a person standing up suddenly after lying down for a week. He said that a vasovagal reaction can occur for no reason at all even while someone is standing in line at the grocery store. He stated that, though he saw a lot of hospital patients and visitors grow faint, a fainting episode is "really uncommon" for someone who is lying on a stretcher. Moreover, only ten to thirty percent of those that faint during a vasovagal reaction also experience convulsions.

Following her fall in Defendant's emergency room, Plaintiff experienced changes in personality and problems with her memory and dexterity. She was eventually diagnosed with a traumatic brain injury as a result of her fall in the emergency room. A year after the accident, Plaintiff filed a lawsuit alleging medical malpractice and medical battery. Defendant never filed a written answer. However, prior to trial, defense counsel stated that Defendant would not be relying on any affirmative defenses. This case went to trial on both the claims of medical malpractice and battery. Following Plaintiff's proof, the trial court dismissed the battery claim upon Defendant's Motion for Directed Verdict.

Regarding the medical malpractice claim, Defendant offered the proof of Dr. Don Hasty, a board certified emergency room physician who had practiced at Baptist Hospital in Nashville for the past 28 years. He opined that Dr. Morgan had complied with the standard of care in treating Plaintiff. He emphasized how unlikely it would be for a vasovagal reaction, or a fainting spell, to be accompanied by seizure-like activity. He stated that he had seen this occur no more than five or six times in his career. Dr. Hasty concluded that it was appropriate for Dr. Morgan to walk three of four steps away to obtain help for two reasons: first, Dr. Morgan was significantly outweighed by the patient and, second, the patient appeared to be developing seizure-like activity which often requires more than one person to keep a patient on a gurney. He explained that it would not have been easy for Dr. Morgan to put up the bed rails and that the damage would likely have been done by the time she could get them up.

The deposition testimony of Dr. Seth Wright was read into evidence at trial. Dr. Wright's duties at Vanderbilt included practicing emergency medicine, teaching emergency medicine and serving as Director of Research of the Emergency Department. With regard to Dr. Morgan's treatment of Plaintiff, Dr. Wright opined that Dr. Morgan complied with the standard of care and stated that he would not have acted in any different way. It was his position that appropriate precaution to avoid seizure-like activity was taken prior to suturing Plaintiff. In light of Plaintiff's response to being injected, Dr. Wright felt that Dr. Morgan acted appropriately by calling for help immediately and attempting to protect the patient.

Plaintiff's expert, Dr. Richard Karsh, testified that he currently worked as a diagnostic radiologist but that he had experience and board certification in pediatric cardiology. He had not worked as a designated emergency room physician since 1981 when he moonlighted in an emergency room. He felt qualified as an expert in this case because his opinions were not those involving detailed aspects of emergency medical care but rather the aspects of overall patient treatment within the scope of an emergency room in which he did have personal experience.

Dr. Karsh agreed that Plaintiff had experienced a vasovagal reaction to the needle stick. It was Dr. Karsh's opinion that "Dr. Morgan violated the acceptable standards of care by leaving the bedside when the patient was clearly losing consciousness and at significant risk of falling off the gurney. And that is leaving the patient, even ever so briefly, without making an effort to raise the bed rails which more than likely would have prevented her from falling off the gurney had the bed rails been successfully raised." Dr. Karsh did not think that Dr. Morgan should have put up the bed rails before suturing Plaintiff because her reaction, an unusual one, would not have been anticipated. He agreed that raising the bed rails could possibly take twenty seconds. When asked whether Dr. Morgan was faced with a sudden or unexpected emergency, Dr. Karsh responded, "[a]bsolutely." He also agreed that she was faced with "a snap judgment decision as to what to do."

At the close of the proof, the trial court charged the jury in relevant part as follows:

In performing professional services for a patient, a physician has the duty to have that degree of learning and skill ordinarily possessed by physicians of good standing, practicing in the same or similar community and under similar circumstances and must use reasonable care to avoid causing injury to the patient.

A physician has the duty to use the care and skill ordinarily exercised in similar cases by reputable members of the physician's profession practicing in the same or a similar community under similar circumstances. A physician's best judgment must be used with reasonable diligence in the exercise of skill and the application of the physician's learning, in an effort to accomplish the purpose for which the physician is employed.

A physician who is a specialist in a particular field or practices a particular specialty has the duty to possess and exercise that degree of skill, care, and learning ordinarily possessed and exercised in similar cases by members in good standing of the physician's profession who specialize in the same field and practice in the same or similar locality.

In addition, the court granted Defendant's request to charge the jury with the Sudden Emergency Doctrine. Over Plaintiff's objections, the judge charged the jury as follows:

A physician who is faced with a sudden or unexpected emergency that calls for immediate action is not expected to use the same accuracy of judgement as a physician acting under normal circumstances who has time to think and reflect before acting. A physician faced with a sudden emergency is required to act as a reasonable careful physician placed in a similar position. A sudden emergency, however, will not excuse the actions of a physician whose own negligence created the emergency.

If you find there was a sudden emergency that was not caused by any fault of the physician whose actions you are judging, you must consider this factor in determining and comparing fault.

The jury returned a verdict in favor of Defendant finding that Dr. Lisa Morgan did not deviate from the recognized standard of acceptable professional practice for her profession and specialty in this community in her treatment of Plaintiff.

II. ISSUES

A.

The main issue in this case is brought about by the ongoing effort of our courts to resolve certain pre-McIntyre doctrines in accord with a system of comparative fault. Specifically at issue is the sudden emergency doctrine which has been addressed by the supreme court on two occasions since the adoption of comparative fault. First, in Eaton v. McClain, 891 S.W.2d 587 (Tenn. 1994), the court took the opportunity to provide trial courts with some guidance as to how to apportion fault between parties. In so doing, the court stated, as dicta, that "[t]he policy considerations underlying . . ....