White v Vanderbilt University
| Decision Date | 30 December 1999 |
| Docket Number | 97-00105 |
| Parties | MARGARET WHITE and MURL WHITE, Plaintiffs/Appellants, VS. THE VANDERBILT UNIVERSITY, THE VANDERBILT UNIVERSITY d/b/a VANDERBILT UNIVERSITY MEDICAL CENTER and VANDERBILT UNIVERSITY HOSPITAL, DAN SPENGLER, M.D., R. BRADLEY WYRSCH, M.D., MICHAEL CHMELL, M.D., and CLEMENT JONES, M.D., Defendants/Appellees. AppealIN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Filed |
| Court | Tennessee Court of Appeals |
THE HONORABLE THOMAS W. BROTHERS, JUDGE
This medical malpractice action stems from a rare post-operative complication of back surgery called the cauda equina syndrome. A patient diagnosed with the syndrome filed suit in the Circuit Court for Davidson County alleging that four physicians and the hospital where her back surgery was performed had caused her permanent injury by negligently failing to monitor, diagnose, and treat her post-operative condition. The trial court granted summary judgment for one physician and directed verdicts for two others, and a jury returned a verdict for the remaining physician and the hospital. We have determined that the directed verdicts for two of the physicians and the jury's verdict for the hospital and one other physician must be set aside because the court erroneously prevented the patient from using at trial the depositions of one of the defendants' designated expert witnesses.
For Plaintiffs/Appellants:
Jeffrey A. Garrety, LAW OFFICES OF JEFFREY A. GARRETY, Jackson, Tennessee
Larry D. Ashworth, David E. High, ASHWORTH & HIGH, Nashville, Tennessee
For Defendants/Appellees:
H. Lee Barfield, Steven E. Anderson, E. Clifton Knowles, BASS, BERRY & SIMS Nashville, Tennessee
REVERSED IN PART AND REMANDED
Margaret White and her husband of almost fifty years live in Jackson, Tennessee. Mr. White is a retired railroad conductor, and Ms. White retired as a salesperson in 1983 to take care of her mother. Prior to the events giving rise to this lawsuit, Ms. White had generally been in good health and had been devoting most of her time and energy to homemaking, gardening, church activities, and serving as a Red Cross volunteer at a local hospital.
After Ms. White began to experience lower back pain, she consulted several Jackson-area physicians who determined that surgery was indicated but who also recommended that the surgery be postponed for a time. As Ms. White's back pain worsened, she consulted Dr. Dan M. Spengler, a Nashville orthopaedic surgeon. Dr. Spengler diagnosed Ms. White's condition as spinal stenosis1 and recommended surgery. On October 25, 1991, Dr. Spengler and Dr. Clement K. Jones, a fellow in spinal surgery, performed the surgery at Vanderbilt University Medical Center. The surgery was a success and is not the subject of this litigation.
Ms. White's post-operative recovery was uneventful for the first two days following surgery. At 11:00 p.m. on Sunday, October 27, 1991, Catalina Baun, Ms. White's nurse, conducted a neurovascular examination with normal results. However, four hours later at approximately 4:00 a.m. on October 28, 1991, Ms. White asked her husband to summon Ms. Baun because she was suffering from pain in her lower buttocks and right leg that "was just so bad, I could hardly stand it."
Ms. Baun, following standard physician's orders, gave Ms. White pain medication. At 4:18 a.m., Ms. Baun paged Dr. Robert Bradley Wyrsch, the junior resident orthopaedic physician on duty, because Ms. White's pain had not lessened. A dispute exists concerning whether Ms. Baun told Dr. Wyrsch that Ms. White's symptoms were new and progressive. Dr. Wyrsch simply instructed Ms. Baun to give Ms. White more pain medication. Approximately two hours later, between 6:00 and 6:30 a.m., Ms. White was examined for the first time by Dr. Michael J. Chmell, a second-year orthopaedic resident. Dr. Chmell ordered more pain medication and asked Dr. Jones, who had assisted Dr. Spengler during Ms. White's surgery, to examine Ms. White.
Dr. Jones eventually examined Ms. White between 8:15 and 8:30 a.m. and diagnosed her condition as cauda equina syndrome,2 a rare complication of spinal surgery. Dr. Jones summoned Dr. Spengler who conducted his own examination and ordered an emergency myelogram to confirm the location of the compression. At 11:30 a.m., the physicians reviewed the myelogram, and at 12:35 p.m., Ms. White underwent emergency surgery.
Because of these post-operative complications, Ms. White lost bowel and bladder control and suffered back pain for several months. She still experiences pain and discomfort that interferes with daily activities such as sitting, standing, walking, and sexual relations. She also underwent a colostomy and has been required to catheterize herself because of her bladder problems.
The Whites filed a malpractice suit in the Circuit Court for Davidson County against Drs. Spengler, Jones, Wyrsch, and Chmell and Vanderbilt University Medical Center, seeking to recover damages for the delay in diagnosing and treating the causa equina syndrome. The trial court granted Dr. Chmell a summary judgment prior to trial and directed verdicts for Drs. Spengler and Wyrsch at the close of the plaintiff's proof. Thereafter, the jury returned a verdict for Dr. Jones and Vanderbilt University Medical Center. On this appeal, the Whites take issue with the trial court's refusal to permit them to use the deposition testimony of one of the defendants' experts designated as a testifying witness, the directed verdicts for Drs. Spengler and Wyrsch, and the trial court's refusal to strike the testimony of one of the defendants' experts.3
We first take up the question regarding the Whites' efforts to introduce portions of the depositions of one of the defendants' designated experts during their case-in-chief, as well as their desire to use these depositions in rebuttal and to cross-examine the defendants' other expert witnesses. The trial court held that the Whites could not use these depositions for any purpose until the defendants actually called the expert as a witness. We disagree.
After the Whites filed suit, the defendants enlisted the assistance of Dr. John P. Kostuik, an orthopaedic surgeon recognized nationally as an expert on the development and treatment of cauda equina syndrome.4 Because Dr. Kostuik lives and practices in Maryland, the defendants sought and obtained a judicial waiver of the locality rule5 to enable him to testify.6 The Whites first deposed Dr. Kostuik by telephone on August 21, 1996. During this deposition, Dr. Kostuik opined that Ms. Baun and Dr. Wyrsch should have conducted their own neurovascular examination of Ms. White after she began complaining of pain at 4:00 a.m. on October 28, 1991. In addition, he stated that Ms. White's condition should have been diagnosed earlier than 8:30 a.m. and that obtaining the myelogram caused an unnecessary delay of the remedial surgery.
Despite Dr. Kostuik's seemingly adverse testimony during the telephone deposition, the defendants decided to obtain a videotaped deposition from Dr. Kostuik for possible use at trial. Accordingly, the parties' lawyers traveled to Baltimore and again deposed Dr. Kostuik on August 29, 1996. On this occasion, Dr. Kostuik repeated that Ms. Baun should have performed a nursing neurovascular examination on Ms. White at 4:00 a.m. and that Dr. Wyrsch should have examined Ms. White when he first received Ms. Baun's call. He also stated that Dr. Jones's response had not been prompt and that there was no "absolute indication" than a myelogram needed to be performed.
The Whites listed Dr. Kostuik as one of their potential witnesses on their witness list filed on September 3, 1996, and also disclosed that Dr. Kostuik's two depositions were among the exhibits they planned to introduce at trial. On the following day, the defendants filed their witness and exhibit list stating that Dr. Kostuik was among the witnesses "who may be called to testify."
When the trial commenced on September 9, 1996, the Whites requested the trial court to limit the number of expert witnesses called by the defendants. The defendants sought to head off the Whites' use of Dr. Kostuik's testimony by filing motions in limine to prevent the Whites from using Dr. Kostuik's depositions and from alluding to the substance of any of their experts' testimony during voir dire, opening statements, or during the cross-examination of any other defense witness. During a hearing on these motions, the defendants informed the trial court that Dr. Kostuik was "particularly important in terms of causation" and that Dr. Kostuik would testify in person if called as a witness. Based on these representations, the trial court declined to grant the Whites' motion to limit the number of the defendants' witnesses. The court also ruled that the Whites could not use Dr. Kostuik's depositions in their case-in-chief but reserved deciding whether to permit them to use the depositions in rebuttal or during their cross-examination of the defendants' expert witnesses.
The subject of Dr. Kostuik's deposition resurfaced on September 13, 1996 before the defendants began to present their evidence. The trial court inquired whether the parties had found any additional authorities regarding the permissible use of the depositions. After the parties restated their positions, the trial court decided that it was not ready to rule on the use of Dr. Kostuik's depositions but indicated that it was inclined to permit the Whites to use them for cross-examination and rebuttal with some limitations.
At the beginning of the next day of trial, the trial court ruled definitively that the Whites could not use Dr. Kostuik's depositions for rebuttal if the defendants did not call him as a witness. However, the trial court held that the Whites could...
To continue reading
Request your trial
-
Highlands Physicians, Inc. v. Wellmont Health Sys.
... ... Blue Ridge Paper Prod., Inc. , 229 S.W.3d 694, 703 (Tenn. Ct. App. 2007) (citing White v. Vanderbilt Univ. , 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999) ). "The abuse of discretion ... ...
-
State v. Miller
... ... PROCEDURAL BACKGROUND On November 25, 2015, a man wearing black clothing, gray gloves, and a white face covering entered the Bull Market in Jackson, Tennessee. The man pointed a gun at the ... and his dog, Pax, tracked the suspect to a wooded area near Lions Field at Lambuth University where he was hemmed in by the officers. According to Lieutenant Beaver, despite repeated ... professor of clinical psychiatry and director of the forensic evaluation team at Vanderbilt University Medical Center. Dr. Brown interviewed the defendant at the jail and conducted a ... ...
-
State v. Willis
... ... Included on the list of items was a pair of white tennis shoes. After the defendant's arrest, police monitored and recorded a series of telephone ... document examiner for the Department of Criminal Justice at East Tennessee State University, was accepted as an expert in handwriting analysis. He examined the rental contract for the 24-Hour ... White v. Vanderbilt Univ. , 21 S.W.3d 215, 223 (Tenn.Ct.App.1999) (citing Overstreet v. Shoney's, Inc. , 4 S.W.3d ... ...
-
Nichols v. Bell
... ... Senior trial counsel appointed by the trial court was a 1966 graduate of Vanderbilt University and a 1969 graduate of Yale Law School. He was a law clerk for a United States District ... White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn.Ct.App.1999). Courts may also impose sanctions based ... ...