White v. Premier Medical Group

• Decision Date: 28 November 2007
• Docket Number: No. M2006-01196-COA-R3-CV.,M2006-01196-COA-R3-CV.
• Citation: White v. Premier Medical Group, 254 S.W.3d 411 (Tenn. App. 2007)
• Parties: Bessie L. WHITE, et al. v. PREMIER MEDICAL GROUP, et al.
• Court: Tennessee Court of Appeals

254 S.W.3d 411

Bessie L. WHITE, et al. v. PREMIER MEDICAL GROUP, et al.

No. M2006-01196-COA-R3-CV.

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

April 9, 2007 Session.

November 28, 2007.

Permission to Appeal Denied by Supreme Court May 5, 2008.

Published Pursuant to Tenn. R. S. Ct. 4(D).

Steven R. Walker, Memphis, Tennessee; Randall Kinnard, Mark S. Beveridge, Lisa W. Rowan, Nashville, Tennessee, for the appellants, Bessie L. White, Linda R. Locke, Debra A. Anderson and Thomas W. Jones.

Steven Edward Anderson, Nashville, Tennessee, for the appellees, Premier Medical Group and Scott William McLain, M.D.

OPINION

FRANK G. CLEMENT, JR., J., delivered the opinion of the court, in which WILLIAM C. KOCH, JR., P.J., M.S., joined. WILLIAM B. CAIN, J., not participating.

In this medical malpractice action against a treating physician, his medical group, and several hospital entities, the plaintiffs contend the trial court erred by including in the jury instructions the defense of superseding cause requested by the treating physician and his medical group. The plaintiffs argue the evidence was insufficient to justify the instruction. It is proper to charge the law upon an issue of fact within the scope of the pleadings upon which there is material evidence sufficient to sustain a verdict. The record contains material evidence regarding each of the essential elements of the defense of superseding cause sufficient to sustain a verdict of superseding cause; therefore, an instruction as to superseding cause was appropriate.

Ms. Wastille Jones was admitted to Gateway Medical Center on January 17, 2002, suffering from bilateral flank pain, as well as elevated blood urea nitrogen (BUN) and creatinine levels. Dr. Scott William McLain was her admitting physician. Initially, Ms. Jones was given a Demerol patient-controlled analgesia (PCA) pump for back pain, and numerous diagnostic tests were performed. Within a few days, Ms. Jones' BUN and creatinine levels had returned to baseline, but her back pain continued. On the fifth day, January 22, 2002, Dr. McLain discontinued the Demerol PCA pump and ordered 7.5 mg of Lortab together with 25 mg of Demerol on an as-needed basis for breakthrough pain. On January 24, 2002, Dr. McLain increased the Lortab dosage to 10 mg. On the following day, Dr. McLain ordered a narcotic transdermal patch known as Duragesic at a dosage of 50 mcg/hour. Three days later, on January 28, 2002, the Duragesic patch was increased to 100 mcg/hour and Flexiril 10 mg, a muscle relaxant, was additionally ordered to be given every eight hours around the clock.

Dr. McLain had planned to discharge Ms. Jones to a rehabilitation facility on January 30, 2002; however, she was not discharged because on that day she was noted to be unstable when ambulating and having difficulty getting out of bed without assistance. Dr. McLain felt that Ms. Jones was getting too much pain medication and discontinued the Lortab. During his early morning rounds on January 31, 2002, Dr. McLain found Ms. Jones lethargic but arousable and in about the same condition as the previous day. By 9:00 a.m., her occupational therapist noted that Ms. Jones was so unarousable that she could not participate in therapy.

Ms. Jones' condition continued to deteriorate during the day; however, Dr. McLain was not notified about her condition until being paged shortly before 7:30 p.m. Finding her unresponsive and in respiratory distress when he arrived, Dr. McLain ordered Narcan, a medication designed solely to reverse the effects of narcotics. After the third dose of Narcan, Ms. Jones awakened and was able to speak with Dr. McLain. Because her oxygen level was low and her carbon dioxide level high, Dr. McLain intubated Ms. Jones and immediately transferred her to the intensive care unit (ICU) of the hospital. This transfer took place prior to 8:00 p.m. on January 31, 2002. Dr. Jatin Kadakia, a pulmonary and critical care specialist, was the physician responsible for patients in the ICU at the time of Ms. Jones' transfer to the ICU.

Within the first hour, the pressure reading on Ms. Jones' ventilator was above the acceptable level, and the levels continued to increase throughout the evening. By 12:30 a.m., the alarms on the ventilator sounded, indicating a blockage in the endotracheal tube that was impeding the flow of oxygen to Ms. Jones. The alarm repeatedly sounded over the next few hours and at 1:40 a.m., Ms. Jones went into cardiopulmonary arrest.

Dr. Kadakia was not advised of any of these developments until after Ms. Jones went into cardiopulmonary arrest. Dr. Kadakia was first called at approximately 2:25 a.m. and arrived at the ICU at 3:15 a.m., at which time he performed a bronchoscopy which disclosed a significant mucus "plug" that was obstructing the endotracheal tube. Removal of the mucus "plug" cleared the endotracheal obstruction, immediately following which the pressure on Ms. Jones' ventilator dropped to an acceptable level.

Ms. Jones died the following day, February 2, 2002, after life support was withdrawn.

This wrongful death action was filed in January of 2003 by the surviving children of Ms. Jones. The defendants included Gateway Health System, Inc., Gateway Health System, Inc. d/b/a Gateway Medical Center, Gateway Medical Center, Premier Medical Group, P.C., and Scott William McLain, M.D. The two defendants involved in this appeal, Dr. McLain and his medical group, Premier Medical, answered the Complaint on February 13, 2003. They denied the allegations of negligence and all allegations of an agency relationship with Gateway Medical Center. They additionally invoked the doctrine of comparative fault, contending the hospital and others were at fault. Prior to trial, Plaintiffs settled with the hospital, Gateway Health System, Inc., and its affiliated entities leaving only Dr. McLain and his medical group, Premier Medical, as the defendants.

The case against Premier Medical and Dr. McLain was tried before a jury over five days in November of 2005. At the close of the proof, and following a jury charge conference, the trial judge instructed the jury and provided an explanation of the verdict form to be used. The trial transcript reveals what the judge told the jury:

Now, the verdict form is, again, designed to help you go about your decision in a logical rational way. And you need to follow it. It reads, "We the jury present the following answers to questions submitted by the court."

"Question number 1: Do you find Premier Medical Group, P.C., and Scott William McLain, M.D., at fault?"

Remember you need to consider Dr. McLain and Premier as one entity. So focus on Dr. McLain's conduct, and if your answer to that question is yes, then you would so indicate/ if no, you so indicate. The plaintiffs bear the burden of proving that Premier and Dr. McLain are at fault. And that's called to your attention. So you'll answer that first question.

Then it says, "If you answer no, do not go any further. Please sign this form and return to the courtroom. If you answered yes, then you need to proceed on to questions 2, 3, and 4."

Question 2, "Do you find Gateway Medical Center at fault?" And on that issue the defendants, Dr. McLain and Premier, bear the burden of proof. You answer that question yes or no.

Question 3. "What percentage of fault, if any, do you assign to each of the following parties: Premier Medical Group, Dr. McLain." There's a line out from them. "Gateway Medical Center." There's a line out from them.

On those lines, you are to assess or allocate fault between those parties if you reach this issue. And you would write on this line for Dr. McLain and Premier a percentage of fault somewhere between 0 and 100 percent, as you determine. You would write on the line for Gateway Medical Center a percentage of fault somewhere between 0 and 100 percent as you determine. The two numbers that you have written must total 100 percent.

Number 4, "What amount of damages, if any, were sustained?" Do not reduce those damages by any percentage of fault you may have assigned to Gateway Medical Center. It is the responsibility of the judge after you return your verdict to reduce the damages you award to the plaintiffs, if any, by any percentage of fault that you may assign to Gateway Medical Center.

And the four sub questions under number 4 — or sub issues — are any damages for Ms. Jones' mental and physical suffering between the injury and her death. There's a blank line with a dollar sign in front of it. On that line you put the amount of damages, if any, you assign for that particular element.

Item B, element B, is Ms. Jones' funeral expenses. You're given a blank line with a dollar sign. Put on that line any damages you award for funeral expenses that the plaintiffs have proven, and you determined are the result of the parties and then you assign fault.

C, "earning capacity of the deceased by probable living expenses." Again, a line for you to put your — any award of damages for that item.

And item D is "loss of consortium for the surviving children of Ms. Jones." Put the amount of damages that you award for that, if any, on that line.

You're to total those amounts, and that would be your damage award, total damages. Your presiding juror is then to sign the form and date it. And today I think is the 3rd of November.

The jury then retired to deliberate. After completing its deliberations, the jury returned to the court room to announce its verdict. In response to the first jury question, "Do you find Premier Medical Center, P.C., and Scott William [McLain], M.D. at fault?," the foreperson stated that the jury's unanimous answer was "No." The answer to the first question rendered the remaining questions moot. A judgment was subsequently entered in favor of Dr. McLain and Premier Medical Group.¹

The issues presented by Plaintiffs for our review are: (1) whether the trial court erred by including the...