Valadez v. Newstart, LLC, No. W2007-01550-COA-R3-CV (Tenn. App. 11/7/2008)
| Decision Date | 07 November 2008 |
| Docket Number | No. W2007-01550-COA-R3-CV.,W2007-01550-COA-R3-CV. |
| Parties | PEDRO AND GRISELDA VALADEZ, Individuals and as parents and next Friends of FATIMA VALADEZ, a minor v. NEWSTART, LLC, ET AL. |
| Court | Tennessee Court of Appeals |
Tim Edwards, Memphis, TN, for Appellants.
Darrell E. Baker, Jr., Peter B. Winterburn, Memphis, TN, for Appellees Newstart, LLC, and Carl Pean, M.D.
Jerry E. Mitchell, Justin E. Mitchell, Memphis, TN, for Appellee Ericka Lee Gunn-Hill, M.D.
OPINION
In this appeal we are asked to reverse the trial court's grants of summary judgment to Appellees and adopt a loss of chance theory of recovery, thus allowing Appellants to recover for Appellees' alleged failure to timely notify them that their unborn child was afflicted with spina bifida such that they could participate in a clinical trial. Because our supreme court has expressly stated that Tennessee does not recognize a cause of action for loss of chance, we affirm.
In early 2003 the National Institute of Child Health and Human Development (NICHD) commenced a study to compare two approaches to treating babies with spina bifida, a condition where a baby's spine remains exposed in the mother's uterus. The study, known as the Management of Myelomengocele Study (MOMS), was limited to three clinical centers, including Vanderbilt University. Persons interested in participating in the study were sent an information packet and were required to consent to both an evaluation of their medical records and consultation with their doctor, if necessary. After eligibility was confirmed, participants were assigned to one of the three clinical centers, where a final screening was performed.1 Upon enrollment in the study, women were assigned to one of two groups: the intrauterine surgical group (prenatal surgery group), in which surgery was performed on the fetus's spine while in the uterus, or the standard care group (postnatal surgery group), in which surgery was performed after birth, typically within 48 hours. Assignment to either group was randomly "made by a central computer system" and [n]either the MOMS Center staff nor the woman [was] able to choose which group she [was] assigned to." Thus, each participant "had a 50-50 of either being in the [intrauterine surgery] study group or in the [postnatal surgery] group."
Griselda Valadez ("Appellant" or "Ms. Valadez"), was a patient of Dr. Carl Pean ("Appellee"), for prenatal care. However, during Ms. Valadez's pregnancy Dr. Pean was called to serve on active military duty, and his patients were treated by Dr. Ericka Gunn-Hill. In January 2004, at approximately twenty-one weeks pregnant, Ms. Valadez underwent an ultrasound examination, administered by the Flinn Clinic. Appellants allege that the results of the examination, which showed Ms. Valadez's unborn child was afflicted with spina bifida, were promptly relayed to Appellees; however, Appellees failed to notify Appellants of the results until March 2004.
On December 30, 2004, Pedro and Griselda Valadez (collectively, "Appellants") filed a Complaint for Medical Malpractice and for Breach of Contract against Newstart, LLC, Carl Pean, M.D., and Ericka Gunn-Hill, M.D. (collectively, "Appellees").2 Appellants claimed that Appellees were notified by the Flinn Clinic of the results of the ultrasound, but failed to timely notify Appellants. This failure, Appellants claimed, prevented Ms. Valadez from qualifying for the MOMS study, whereby she could have potentially received the intrauterine surgery, as women must qualify for the study by the twenty-fifth week of pregnancy.
On January 11, 2007, Appellees filed motions for summary judgment claiming that Appellants would "not be able to establish their claims to a reasonable degree of medical certainty in that there is no more than a 50% chance that Griselda Valadez would have been included in the fetal surgery side of a randomized study[.]" The trial court granted Appellees' Motions in a Memorandum Opinion and Order, filed July 3, 2007, holding that "this is a `lost opportunity' case within the meaning of Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993)" and thus the
Appellants have timely filed their notice of appeal and present the following issue for review:
1. Whether Tennessee should adopt a loss of chance theory of recovery.
For the following reasons, we affirm the decision of the circuit court.
In the instant case, we are asked to review the trial court's grant of summary judgment to a defendant. Thus, we are bound by the following standard of review:
Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Tenn. R. Civ. P. 56.04. Ruling on a motion for summary judgment does not involve disputed issues of fact, but only questions of law. Owner-Operator Indep. Drivers Ass'n v. Concord EFS, Inc., 59 S.W.3d 63, 68 (Tenn. 2001). Thus, our standard for reviewing a grant of summary judgment is de novo with no presumption of correctness as to the trial court's findings. See Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001). The evidence must be viewed "in the light most favorable to the nonmoving party," and all reasonable inferences must be drawn in the non-moving party's favor. Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn. 2000).
On appeal, Appellants argue that this Court should reverse the trial court's grant of summary judgment to Appellees and adopt the "loss of chance" doctrine in this medical malpractice case. Our Supreme Court dealt with the "loss of chance" doctrine in Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993). In Kilpatrick, a doctor who was sued for failing to detect breast cancer was granted summary judgment after alleging, in his motion, that the plaintiffs failed to establish the necessary elements of a medical malpractice action as outlined in Tennessee Code Annotated section 29-261-15:
(a) In a malpractice action, the claimant shall have the burden of proving by evidence . . .:
(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred;
(2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and
(3) As a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.
Tenn. Code Ann. § 29-26-115 (Supp. 2007) (emphasis added). Our Supreme Court noted that our state's medical malpractice "statute codifies the common law elements of negligence — duty, breach of duty, causation, proximate cause, and damages," Kilpatrick, 868 S.W.2d at 598 (citing Cardwell v. Bechtol, 724 S.W.2d 739, 753 (Tenn. 1987); Dolan v. Cunningham, 648 S.W.2d 652, 654 (Tenn. Ct. App. 1982)) and that "no claim for negligence can succeed in the absence of any one of these elements."Id. (citing Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993)). It further stated that "[c]ases involving the `loss of chance' theory of recovery necessarily focus on the elements of causation and proximate cause." Id. (citing Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397 (Tex. 1993)). The Court then explained that causation is a two-step process. First, courts must determine whether causation (cause in fact) has been established—whether "`the event would not have occurred but for the conduct.'" Id. (). If cause in fact is established, courts must then determine proximate cause—whether the cause is sufficiently related to the result to impose liability. Id.
"The critical issue in this appeal, as in all loss of chance cases, is whether the Plaintiffs have failed, as a matter of law, to establish the existence of causation, i.e., that the purported medical malpractice actually caused the harm complained of." Id. (citing McKellips, 741 P.2d at 470-71). "This question dominates because the rule requiring causation be proven by a preponderance of the evidence dictates that Plaintiffs demonstrate the negligence more likely than not caused the injury." Id. at 598-99 (citing Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 861 (Tenn. 1985)).
In deciding whether to recognize the "loss of chance" cause of action in Tennessee, our Supreme Court considered the doctrine's history. The "loss of chance" doctrine emerged in Hicks v. United States, 368 F.2d 626 (4th Cir. 1966), where the Fourth Circuit, in dicta, stated:
When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there is any substantial possibility of survival and the defendant has destroyed it, he is answerable.
Kilpatrick, 868 S.W.2d at 599 (quoting Hicks, 368 F.2d at 632). Relying on that language, some courts began adopting the "loss of chance" doctrine, as discussed below. Id. However, in Hurley v. United States, 923 F.2d 1091, 1093 (4th Cir. 1991), the Fourth Circuit reviewed Hicks and stated that the "dicta . . . [has] precipitated misunderstanding throughout the courts." Id. "The court in Hurley held that Hicks was not...
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